146 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com (“DMA”), which includes sixteen counties in Delaware, Pennsylvania, and New Jersey, had increased substantially, reaching 69% from only 24% in 1998. Based on the company's increased market share, customers in the Philadelphia DMA filed a class action suit in federal district court, alleging that Comcast had violated the Sherman Act through unlawful swapping agreements and attempted monopolization.736 3. The District Court Opinion The federal district court held that the plaintiffs, to meet the predominance requirement, 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.”737 The plaintiffs presented four distinct theories of antitrust impact. First, plaintiffs alleged Comcast reduced the benchmark levels of competition in the Philadelphia DMA. Second, Comcast's activities allegedly reduced the level of competition from overbuilders, companies that build competing networks in areas where an incumbent cable company already operates. Third, the clustering technique allegedly decreased market penetration by satellite providers, as it made it profitable for Comcast to withhold local sports programming from its competitors. Finally, the plaintiffs alleged Comcast's clustering technique increased Comcast's bargaining power relative to content providers. Although the district court accepted only one of the plaintiffs' theories of antitrust impact—that Comcast's activities reduced the level of competition from overbuilders—the court found that plaintiffs could still prevail under Rule 23(b)(3), and certified the class under this theory. Furthermore, the court found that damages resulting from such deterrence could still be calculated on a class-wide basis, even though the plaintiffs' expert had calculated overall damages based on the combination of all four theories of impact, not just the overbuilder theory.738 4. The Third Circuit Decision Comcast appealed to the Third Circuit, arguing that plaintiffs' alleged damages were based on all four theories of antitrust impact and, thus, did not adequately measure the harm attributable only to the overbuilder theory. According to Comcast, since it was not clear which plaintiffs' damages were based on which theory, the plaintiffs could not satisfy the commonality required under Rule 23(b). On appeal, however, a divided Third Circuit panel affirmed the trial court's certification, finding “an attack on the merits of the methodology had no place in the class certification inquiry,” and plaintiffs merely had to show they were able to prove damages of some sort.739 5. The Supreme Court Applies its Holding to the Facts The Supreme Court rejected the Third Circuit’s reasoning: “[I]n light of the [damages] model's inability to bridge the differences between supra-competitive prices in general and supra-competitive prices attributable to the 736 Id. at 1430. 737 Behrend v. Comcast Corp., 264 F.R.D. 150, 154 (E.D. Pa. 2010). 738 133 S. Ct. at 1430-31. 739 Id. at 1431.
RkJQdWJsaXNoZXIy OTkwMTQ4