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By Louis M. Solomon
Our immediately prior posting addressed
the issue of how a single case in a multiparty, multidistrict litigation raising
industry-wide antitrust claims was plucked out and sent to arbitration.
How a plaintiff manages around that result is a question not just of international
litigation practice but for the corporate or transactional lawyer/draftsman to avoid
How are antitrust
claims faring these days in overcoming another major procedural hurdle, that of
class certification? Behrend,
et al. v. Comcast Corp., et al., No. 10-2865 (3d Cir. Aug. 2011)
[enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], addresses the issue extensively.
And despite the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011) [enhanced version / unenhanced version ], which we discussed here, the Third Cirtcuit affirmed the District Court's certification
decision of antitrust claims.
arise out of alleged series of transactions tht increased Comcast's share of the
multichannel video programming distribution services offered in the Philadelphia
area through alleged anticompetitive "clustering". After the Third Circuit
initially denied interlocutory appeal (permissible under Fed. R. Civ. P. 23 in certain
cases) [enhanced version ], the District Court held a four-day
evidentiary hearing from both fact and expert witnesses, considered as part of that
32 expert reports, and examined depostion excerpts and documents. The
challenges on appeal centered around whether there was sufficient evidence of class-wide
antitrust impact, whether the damages methodology was acceptable, and whether the
District Court's certification of what the defendants' characterized as a per se
antitrust claim was clear error. The Third Circuit rejected all challenges.
things, the Circuit rejected the invitation to decide the merits of the litigation, without
discussing whether what the District Court did was tantamount to that trial nonetheless.
Admittedly, recent class-action jurisprudence "heightened the inquiry a district
court must perform on the issue of class certification", nothing in the controlling
cases requires "actual trials in which factual disputes are to be resolved".
The Court of Appeals differentiated requiring plaintiffs to establish the elements
of certification by a preponderance of the evidence from requiring plaintiffs to
"prove their case at the class certification stage" (the Court's emphasis).
The Court also noted "recent scholarship", which "uniformly has expressed concern
over the trend towards converting certification decisions into mini trials".
The Court did however quote Oliver Wendell Holmes's classic comment from The Path
of the Law, 10 Harv. L. Rev. 457 (1897) : "For the rational study of the law the black-letter man may be
the man of the present, but the man of the future is the man of statistics and the
master of economics".
The Circuit also rejected the suggestion
that Wal-Mart supported the claim that the damages model proffered by plaintiffs'
expert could be "safely disregarded". The Court of Appeals, without more discussion,
found that Wal-Mart "involved a massive discrimination class action and . . . neither
guides nor governs the dispute before us".
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