Thursday, November 14, 2013
Following the Supreme Court's reversal of certification of an antitrust class in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the district court in the case has allowed plaintiffs to present another motion for certification of a narrower class. Glaberson v. Comcast Corp., No. 03-6604 (E.D. Pa. Nov. 13, 2013).
The court rejected Comcast's argument that the rule of mandate prevented the court from considering another motion for class certification, holding:
The Supreme Court reversed our prior certification order because the Plaintiffs’ proffered evidence on antitrust impact was not limited to the overbuilding theory, and thus failed the predominance requirement in Fed. R. Civ. P. 23(b)(3). Importantly, the Supreme Court did not decide as a matter of law that class-wide proof could never be established. Rather, the Supreme Court’s opinion clearly contemplates that a damages model that measured only the antitrust impact of the overbuilding theory, and also plausibly showed that the extent of overbuilding, absent deterrence would have been the same in all counties, or that the extent was irrelevant to any effect upon Comcast’s ability to charge supra-competitive prices, could be common evidence. Comcast Corp., 133 S. Ct. at 1435 n.6. Under the Third Circuit’s law of mandate, Plaintiffs’ ability to certify a significantly narrowed class based on a more limited antitrust impact model that satisfies Footnote 6 is a “matter left open by the mandate,” since it was not decided by the Supreme Court in the first appeal and deemed finally settled.