Supremes Hear Comcast Challenge To Class-Action Suit

Issue Concerns Certifying Class Before Weighing Evidence Of Damages

The U.S. Supreme Court Monday (Nov. 5) 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 cable providers."

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.