Comcast v. Behrend: Supreme Court overturns class certification, upholds Rule 23 “rigorous analysis”

Antitrust Alert

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In Comcast Corp. et. al. v. Behrend, et. al., the Supreme Court of the United States, in a 5-4 decision written by Justice Antonin Scalia, reaffirmed the Court’s recent holding in Wal-Mart v. Dukes  that district courts must conduct a “rigorous analysis” to ensure that the requirements of Rule 23 have been satisfied, even if doing so requires consideration of the merits of the plaintiffs’ claims.

 

The decision reversed the US Court of Appeals for the Third Circuit and held that the trial court had improperly certified a class in this antitrust action.  The Court said the plaintiffs failed to establish a sufficient connection between their alleged theory of liability and their claimed damages.

 

About the case

 

The plaintiffs were subscribers to Comcast’s cable television services who alleged that Comcast and other cable service providers had engaged in a series of transactions, swapping systems in certain territories and thereby  increasing their market shares in those markets. This clustering allegedly resulted in anticompetitive prices for cable television services and allegedly violated Sections 1 and 2 of the Sherman Antitrust Act.

 

The plaintiffs moved to certify a class under Rule 23(b)(3), which permits certification of a class only where common questions of law or fact predominate over any questions affecting only individual class members. The district court held (and it was uncontested in the Supreme Court) that this standard required plaintiffs to show that the existence of individual injury resulting from the alleged antitrust violation (antitrust impact) is capable of proof common to the class, and that the resulting alleged damages are measurable on a classwide basis through use of a common methodology.

 

The plaintiffs had offered four theories of liability to demonstrate classwide impact:

  1. Clustering allegedly allowed Comcast to withhold local sports programming from its competitors, resulting in decreased market penetration by satellite service providers.
  2. Clustering allegedly resulted in reduced competition from overbuilders – that is, companies that build networks where an incumbent cable company already operates.
  3. A reduction in competition allegedly prevented customers from being able to compare cable prices.
  4. The clustering transactions allegedly increased Comcast’s bargaining power relative to content providers.

The plaintiffs asserted that each of these theories of impact resulted in increased cable subscription prices in the relevant area, but the district court’s certification order limited the plaintiffs’ proof of antitrust impact to the overbuilder theory.

 

The plaintiffs relied solely on the testimony of their retained expert to demonstrate that the damages from the overbuilder-deterrence impact could be calculated on a classwide basis.  Although the plaintiffs’ expert could not isolate alleged damages that were attributable solely to this theory of impact, the district court nevertheless certified the class.

 

On appeal, the defendants challenged the certification order on the ground that the plaintiffs’ damages model failed to identify those damages that were solely the result of the alleged overbuilder theory. The Third Circuit refused to consider a challenge to the certification order on that basis. A divided Court of Appeals ruled that such a challenge constituted an attack on the merits of the plaintiffs’ claims, which had no place in the class certification inquiry. The Court of Appeals reasoned that Rule 23 does not require plaintiffs to tie each theory of antitrust impact to an exact calculation of damages and that, under Rule 23, the plaintiffs must assure the court only that they can provide classwide proof of antitrust impact and that the resulting damages are capable of measurement and “will not require labyrinthine individualized calculations.” 

 

Why Justice Scalia rejected the Third Circuit’s conclusions

 

Justice Scalia, writing for a divided Court, rejected the Third Circuit’s conclusions. He noted that, although Rule 23(b)(3) does not require damages calculations to be exact, the Rule does require any model supporting the plaintiffs’ damages case to be consistent with their liability theory, particularly with respect to the alleged anticompetitive effect of the violation. Justice Scalia further noted that this requires district courts, for purposes of Rule 23, to conduct a “rigorous analysis” to determine whether that standard has been met.

 

Applying these standards to the case, Justice Scalia noted that the Third Circuit’s conclusion that Rule 23 did not require the plaintiffs to tie each theory of antitrust impact to a particular damages calculation flatly contradicted the Supreme Court’s prior rulings: there must be a determination that Rule 23 is satisfied, even if doing so requires some inquiry into the merits. The economic model of damages put forth by the plaintiffs had alleged four different theories of economic harm, but the district court had allowed only one theory to go forward. Therefore, the Supreme Court concluded, the expert’s damages model could not “bridge the differences between supra-competitive prices in general and supra-competitive prices attributable to the deterrence of overbuilding.” In other words, because the plaintiffs failed to provide a methodology that could identify damages on a classwide basis that were the result of the particular form of anticompetitive harm which plaintiffs would attempt to prove at trial, the majority concluded that plaintiffs failed to satisfy the requirements of Rule 23(b)(3). Accordingly, the judgment of the Court of Appeals was reversed.

 

What the dissenters said

 

The dissent, written by Justices Ruth Bader Ginsburg and Stephen Breyer, in which Justices Sonia Sotomayor and Elena Kagan joined, opined that the case came “to the Court infected by our misguided reformulation of the question presented,” and that the writ should have been dismissed as improvidently granted.

 

Had the class had been properly certified?  The dissent stated, “As far as we can tell, the lower courts were right.” The dissent reasoned that individualized damages calculations have not precluded certification of a class in many other cases and found that the lower court did not abuse its discretion in finding that the plaintiffs’ model could measure damages adequately, even if the damages were limited to those caused by deterred overbuilding. The dissent added, in an apparent attempt to limit the reach of the majority’s decision to the facts of this case, that the majority opinion did nothing to alter the black-letter law of class certification.

 

Takeaways

With its decision in Comcast, the Supreme Court left no doubt that district courts must conduct a “rigorous analysis” at the class certification stage to ensure that the requirements of Rule 23 are satisfied, even if doing so requires an inquiry into the merits of the plaintiffs’ claims.

 

The Court also clarified that the method of proving classwide damages must be tied to the theory of liability on which plaintiffs will be proceeding at trial.

 

For more information about this decision, please contact:

 

Robert Connolly

David H. Bamberger

Eliot Burriss

 

FROM THE ARCHIVE

Ninth Circuit extends Dukes to wage-and-hour cases and voids class certification

 

The California Supreme Court clarifies class certification issues in Brinker decision