The Supreme Court on Monday heard 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. Comcast had tentatively settled the suit, but
will wait until the court renders a decision before deciding how to proceed.
The court was only hearing the question of whether a
district court can certify a class (give it standing to sue collectively)
without determining whether the class qualifies for damages on a class-wide
basis. Comcast says it can't. The lower court said it could.
In August 2011, the Third Circuit federal court of appeals
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
Comcast had countered that the district court had gotten
ahead of itself by failing to first resolve arguments of merit that directly
bore on whether or not 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.
Comcast appeared on its way to settling the dispute out of
court, reportedly for several hundred million dollars, before the High Court
agreed to hear the case.