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Behrend v. Comcast Corp.

United States Court of Appeals for the Third Circuit

January 11, 2011, Argued; August 23, 2011, Filed

No. 10-2865



ALDISERT, Circuit Judge.

In  [**2] 2008 this Court handed down the seminal case of In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), which outlines the standards a district court should apply in deciding whether to certify a class. This appeal by Comcast requires us to decide if the District Court for the Eastern District of Pennsylvania properly satisfied Hydrogen's directions in determining that questions of fact or law common to class members predominate sufficiently to satisfy Rule 23(b)(3) of the Federal Rules of Civil Procedure. Appellants contend that the District Court exceeded a proper exercise of discretion and that its findings of fact were clearly erroneous. For the reasons that follow, we hold that the Court did not exceed its permissible discretion in determining that Plaintiffs established by a preponderance of evidence that they would be able to prove through common evidence (1) class-wide antitrust impact (higher cost on non-basic cable programming), and (2) a common methodology to quantify damages on a class-wide basis. Accordingly, we will affirm.

"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  [**3] of statistics and the master of economics."

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).

Beginning in 1998, Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable Communications, Inc., Comcast Cable Communications Holdings, Inc., and Comcast Cable Holdings, LLC (collectively "Comcast") engaged in a series of transactions that increased Comcast's share of the multichannel video programming distribution services offered in the Philadelphia Designated Market Area ("Philadelphia DMA").2 Comcast contracted with competing cable providers to either acquire them or to "swap" cable systems it owned in areas outside the Philadelphia DMA for cable systems within the Philadelphia DMA. These transactions form the "Cable System Transactions," involving the "Transaction parties."3 As a  [*186]  result of the Cable System Transactions, Comcast's share of subscribers in the Philadelphia DMA allegedly increased from 23.9 percent in 1998 to 77.8 percent by 2002, settling at 69.5 percent in 2007. See Behrend v. Comcast Corp., 264 F.R.D. 150, 160 (E.D. Pa. 2010) (setting forth Plaintiffs' expert's calculations as to Comcast's market share).

Plaintiffs, six non-basic cable television programming services customers of Comcast, brought a class action antitrust suit against Comcast in 2003. They alleged violations of section 1 of the Sherman Act, 15 U.S.C. § 1, for "imposing horizontal territory, market and customer allocations by conspiring with and entering into and implementing unlawful swap agreements, arrangements or devices," and section 2 of the Sherman Act, 15 U.S.C. § 2, on theories of monopolization and attempted monopolization.4 App. 00232-243 (Third Am. Compl.). The Complaint alleged anticompetitive conduct in the Philadelphia area and the Chicago area. As only the alleged conduct in Philadelphia is before us, we focus on the nature of the class and the allegations in Philadelphia.

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655 F.3d 182 *; 2011 U.S. App. LEXIS 17524 **; 2011-2 Trade Cas. (CCH) P77,575; 80 Fed. R. Serv. 3d (Callaghan) 394


Subsequent History: Summary judgment granted, in part, summary judgment denied, in part by, Count dismissed at Behrend v. Comcast Corp., 2012 U.S. Dist. LEXIS 51889 (E.D. Pa., Apr. 12, 2012)

US Supreme Court certiorari granted by, in part Comcast Corp. v. Behrend, 133 S. Ct. 24, 183 L. Ed. 2d 673, 2012 U.S. LEXIS 4754 (U.S., 2012)

Reversed by Comcast Corp. v. Behrend, 2013 U.S. LEXIS 2544 (U.S., Mar. 27, 2013)

Prior History:  [**1] On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 2-03-cv-06604). District Judge: Honorable John R. Padova.

Behrend v. Comcast Corp., 264 F.R.D. 150, 2010 U.S. Dist. LEXIS 1049 (E.D. Pa., 2010)


damages, overbuilding, district court, antitrust, geographic, screen, franchise, clustering, prices, penetration, class certification, cable, Plaintiffs', calculated, merits, predominance, class-wide, benchmark, market share, region, overbuilt, methodology, certification, subscribers, providers, parties, proven, clearly erroneous, cable system, conditions

Antitrust & Trade Law, Sherman Act, Scope, General Overview, Monopolization Offenses, Communications Law, Regulated Entities, Cable Systems, Civil Procedure, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Appeals, Standards of Review, Clearly Erroneous Review, Prerequisites for Class Action, Evidence, Burdens of Proof, Preponderance of Evidence, Testimony, Expert Witnesses, Predominance, Allocation, Market Definition, Relevant Market, Geographic Market Definition, Price Fixing & Restraints of Trade, Per Se Rule & Rule of Reason, Per Se Violations, Regulated Practices, Private Actions, Sherman Act, Monopolies & Monopolization, Remedies, Damages, Damages