In , six Comcast customers brought a class-action antitrust lawsuit in the United States District Court for the Eastern District of Pennsylvania against the company, alleging anticompetitive and monopolistic conduct in violation of Sections 1 and 2 of the Sherman Act. In , following evidentiary hearings and oral argument, the District Court recertified the proposed class. James McClave, and found that the plaintiffs could establish antitrust damages for the entire class using common evidence on a class-wide basis, thereby satisfying Rule 23 b 3. Comcast filed an interlocutory appeal to the Third Circuit. Comcast petitioned the Supreme Court for a writ of certiorari on the class-certification issue, but in the meantime reached a tentative settlement of the entire case with the plaintiffs. Consequently, Comcast refused to finalize the settlement.
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Today the Court reaches out to decide a case hardly fit for our consideration. On both procedural and substantive grounds, we dissent. I This case comes to the Court infected by our misguided reformulation of the question presented. For that reason alone, we would dismiss the writ of certiorari as improvidently granted. The parties, responsively, devoted much of their briefing to the question whether the standards for admissibility of expert evidence set out in Federal Rule of Evidence and Daubert v.
Merrell Dow Pharmaceuticals, Inc. See Brief for Petitioners 35—49; Brief for Respondents 24— Indeed, respondents confirmed at oral argument that they understood our rewritten question to center on admissibility, not Rule 23 b 3.
See, e. As it turns out, our reformulated question was inapt. To preserve a claim of error in the admission of evidence, a party must timely object to or move to strike the evidence. Rule Evid. Nor did Comcast move to strike his testimony and expert report. Consequently, Comcast forfeited any objection to the admission of Dr. See Rogers v.
United States, U. Carbon Black Export, Inc. And so Comcast did, in addition to endeavoring to address the question on which we granted review. By treating the first part of our reformulated question as though it did not exist, the Court is hardly fair to respondents. New York, U. And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen.
See infra, at 5— Windsor, U. See 7AA C. Wright, A. In particular, when adjudication of questions of liability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate.
Rule Civ. See 2 W. Legions of appellate decisions across a range of substantive claims are illustrative. Knox County, F. Veneman, F. Independent Assn. CenturyTel, Inc. Godinez, F. Antitrust cases, which typically involve common allegations of antitrust violation, antitrust impact, and the fact of damages, are classic examples.
See also 2A P. Areeda, H. Hovenkamp, R. III Incautiously entering the fray at this interlocutory stage, the Court sets forth a profoundly mistaken view of antitrust law. And in doing so, it relies on its own version of the facts, a version inconsistent with factual findings made by the District Court and affirmed by the Court of Appeals.
A To understand the antitrust problem, some simplified background discussion is necessary. See 15 U. Grinnell Corp. USA Petroleum Co. Pueblo Bowl-O-Mat, Inc. See id. The Guidelines, and any standard antitrust treatise, explain why firms in highly concentrated markets normally have the power to raise prices significantly above competitive levels. B So far there is agreement. But consider the last matter respondents must prove: Can they show that Comcast injured them by charging higher prices?
After all, a firm with monopoly power will not necessarily exercise that power by charging higher prices. It could instead act less competitively in other ways, such as by leading the quiet life. See J. It is at this point that Dr. See App. See F. On appeal, the Third Circuit held that this finding was not an abuse of discretion. To reach this conclusion the Court must consider fact-based matters, namely what this econometric multiple-regression model is about, what it proves, and how it does so.
Doe, U. See also United States v. Virginia, U. Linde Air Products Co. Under our typical practice, we should leave that finding alone. In any event, as far as we can tell, the lower courts were right.
We are particularly concerned about the matter because the Court, in reaching its contrary conclusion, makes broad statements about antitrust law that it could not mean to apply in other cases. Suppose the plaintiff also proves that the two small remaining firms—one in Ukiah, the other in San Diego—lack the capacity to expand their widget output to the point where that pos-sibility could deter Widget, Inc.
Suppose further that the plaintiff introduces a model that shows California widget prices are now twice those in every other State, which, the model concludes is after accounting for other possible reasons the result of lack of competition in the California widget market. Why would a court hearing that case restrict damages solely to customers in the vicinity of Ukiah and San Diego? Like the model in this example, Dr.
And it measures the amount of subsequent harm. The need for focused argument is particularly strong here where, as we have said, the underlying considerations are detailed, technical, and fact-based. The Court departs from our ordinary practice, risks inaccurate judicial decisionmaking, and is unfair to respondents and the courts below.
Or, at the outset, a class may be certified for liability purposes only, leaving individual damages calculations to subsequent proceedings. Further, a certification order may be altered or amended as the case unfolds. Supreme Court Toolbox.
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Comcast v. Behrend
Editor's Note :