The Supreme Court Monday agreed to hear Comcast's appeal of
a Third Circuit decision that sufficient grounds had been established to create
a "class" in the class action suit against the nation's largest cable
operator by some subscribers.
The court said the appeal is limited to answer the following
question: "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 class-wide basis." Comcast says it can't, though a federal appeals
court said it can.
In August 2011, the Third Circuit had affirmed a district
court ruling that the plaintiffs in the suit had established "by a
preponderance of evidence" that they could prove through antitrust impacts
-- higher prices for basic -- that they would quantify for damages as a class
if they established that Comcast, through system swaps with other operators had
"abused its dominance to stifle competition from those cable
Comcast had countered in asking the court to hear the appeal
and overturn the Third Circuit that the district court had failed to result
arguments of merit that directly bore on whether the class could be certified.
Comcast had argued that any deterrent effects on
overbuilders of the system swaps would not be felt on a class-wide basis in the
Philadelphia market at issue, and that the market was not a relevant geographic
market for testing theories of antitrust impact.