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Comcast Corp. v. Behrend

Supreme Court of the United States

November 5, 2012, Argued; March 27, 2013, Decided

No. 11-864


 [*29]  Justice Scalia delivered the opinion of the Court.

The District Court and the Court of Appeals approved certification of a class of more than 2 million current and former Comcast subscribers who seek damages [**1430]  for alleged violations of the federal antitrust laws. We consider  [****5] whether certification was appropriate under Federal Rule of Civil Procedure 23(b)(3).

Comcast Corporation and its subsidiaries, petitioners here, provide cable-television services to residential and commercial customers. From 1998 to 2007, petitioners engaged in a series of transactions that the parties have described as “clustering,” a strategy of concentrating operations within a particular region. The region at issue here, which the parties have referred to as the Philadelphia “cluster” or the Philadelphia “Designated Market Area” (DMA), includes 16 counties located in Pennsylvania,  [***519] Delaware, and New Jersey.1 Petitioners pursued their clustering strategy by acquiring competitor cable providers in the region and swapping their own systems outside the region for competitor systems located in the region. For instance, in 2001, petitioners  [*30]  obtained Adelphia Communications' cable systems in the Philadelphia DMA, along with its 464,000 subscribers; in exchange, petitioners sold to Adelphia their systems in Palm Beach, Florida, and Los Angeles, California. As a result of nine clustering transactions, petitioners' share of subscribers in the region allegedly increased from 23.9 percent  [****6] in 1998 to 69.5 percent in 2007. See 264 F.R.D. 150, 156, n. 8, 160 (ED Pa. 2010).

The named plaintiffs, respondents here, are subscribers to Comcast's cable-television services. They filed a class-action antitrust suit against petitioners, claiming that petitioners entered into unlawful swap agreements, in violation of §1 of the Sherman Act, and monopolized or attempted to monopolize services in the cluster, in violation of §2. Ch. 647, 26 Stat. 209, as amended, 15 U.S.C. §§1, 2. Petitioners' clustering scheme, respondents contended, harmed subscribers in the Philadelphia cluster by eliminating competition and holding prices for cable services above competitive levels.

Respondents sought to certify a class under Federal Rule of Civil Procedure 23(b)(3). That provision permits certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.” The District Court held, and it is uncontested here, that to meet  [****7] the predominance requirement respondents had to show (1) that the existence of individual injury resulting from the alleged antitrust violation (referred to as “antitrust impact”) was “capable of proof at trial through evidence that [was] common to the class rather than individual to its members”; and (2) that the damages resulting from that injury were measurable “on a class-wide basis” through use of a “common methodology.” 264 F.R.D., at 154.2

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569 U.S. 27 *; 133 S. Ct. 1426 **; 185 L. Ed. 2d 515 ***; 2013 U.S. LEXIS 2544 ****; 81 U.S.L.W. 4217; 2013-1 Trade Cas. (CCH) P78,316; 85 Fed. R. Serv. 3d (Callaghan) 118; 24 Fla. L. Weekly Fed. S 125; 57 Comm. Reg. (P & F) 1487; 2013 WL 1222646



Behrend v. Comcast Corp., 655 F.3d 182, 2011 U.S. App. LEXIS 17524 (3d Cir. Pa., 2011)

Disposition: Reversed.


antitrust, certification, overbuilder, classwide, predominance, calculated, anticompetitive, subscribers, benchmark, cable, methodology, competitors, region, widget, concentrated, customers, satellite, monopoly, deter

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Predominance, General Overview, Remedies, Damages