Behrend v. Comcast Corp.
655 F.3d 182
| 3rd Cir. | 2011Background
- Plaintiffs allege Comcast engaged in anticompetitive clustering via swaps/acquisitions in the Philadelphia DMA, increasing market share and harming non-basic programming subscribers.
- Class defined as cable customers in Comcast's Philadelphia cluster who purchased non-basic video programming since 1999.
- District Court certified the class in 2007, stayed Chicago claims, and after Hydrogen Peroxide, partially reconsidered predominance and damages methods, recertifying in 2010.
- Certification rested on common evidence of antitrust impact (market-wide effects) and a common damages methodology, limiting proof to clustering’s impact on overbuilder entry.
- Appellate panel majority affirmed the District Court’s ruling on predominance and class-wide damages methodology; a concurring judge dissented on damages and proposed subclasses.
- Key questions on appeal included geographic market definition for class proof, sufficiency of common proof of antitrust impact, and whether damages can be measured class-wide.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Philadelphia DMA a proper geographic market for class proof? | Behrend: geographic market defined as DMA capable of common proof. | Comcast: market should be household or merits-driven; DMA definition improper for class proof. | DMA is susceptible to common proof for class certification. |
| Can class-wide antitrust impact be proven with common evidence? | Behrend: clustering reduced overbuilding, deterring entry, elevating prices across the DMA. | Comcast challenges the adequacy of common proof and relies on alternative theories. | Yes; common evidence supports class-wide impact. |
| Are damages measurable on a class-wide basis with common proof? | McClave provides a common damages methodology using a 'but-for' price and benchmarks. | Damages theory mis-specifies 'but-for' conditions and relies on inappropriate benchmarks. | Damages capable of class-wide proof; damages model upheld. |
| Did the court properly certify a per se claim as part of the class adjudication? | Per se question is within the scope of certification when relevant. | Merits issue; not proper to decide on Rule 23(f). | Per se issue not decided on Rule 23(f) review; certified questions limited to predominance and damages. |
Key Cases Cited
- Behrend v. Comcast Corp., 264 F.R.D. 150 (E.D. Pa. 2010) (district court’s class-cert reasoning and Behrend background)
- Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (rigorous Rule 23 analysis and predominance standard)
- In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002) (common proof for damages at certification stage)
- Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) (merits overlap and Rule 23 considerations for certification)
- Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931) (damages proof need not be precise; just and reasonable inference)
- Brown Shoe Co. v. United States, 370 U.S. 294 (1962) (relevant geographic market must be economically significant)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (class certification considerations and predominance framework)
- In re Ins. Brokerage Antitrust Litig., 618 F.3d 300 (3d Cir. 2010) (market definition and class considerations in antitrust context)