Effect of Behrend v. Comcast on Class Action Litigation

April 01, 2013

In a 5-4 decision, the U.S. Supreme Court earlier this year ruled in favor of Comcast Corporation in Caroline Behrend et al. v. Comcast Corporation, an antitrust lawsuit alleging monopolization in the Philadelphia cable television market. The economics involved in assessing damages were at the heart of this long and complicated case, says Managing Principal Tasneem Chipty, Ph.D., who testified in the lower court on behalf of Comcast on issues related to liability, damages, and class certification. Specifically, the Court considered the question of whether "a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a classwide basis."

Overturning two lower court decisions, the Court decertified the class, explaining that "[b]y refusing to entertain arguments against respondents' damages model that bore on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination, the Court of Appeals ran afoul of our precedents under the proper standard for evaluating certification." The long-term effects of this decision remain to be seen, Dr. Chipty says, but the Supreme Court has certainly raised the bar for class certification. "Now more than ever, litigators must demonstrate, not just suggest, that a common method for calculating classwide damages is available. If there are multiple theories of liability, plaintiff's expert may need to develop multiple damages methodologies capable of identifying harm caused by the alleged conduct, and those methods will be scrutinized more carefully," she says.