Beginning in 1998, Comcast Corp. undertook a strategy to increase its share of the market for cable services in the Philadelphia area. It bought out smaller competitors and then made a series of “swap” contracts with AT&T Inc., Time Warner Cable Inc. and other cable providers. The contracts allowed Comcast to consolidate its dominance in the Philadelphia area by trading cable systems it owned outside of Philadelphia for cable systems that competitors owned within the Philadelphia area. By 2002, Comcast customers accounted for more than 77 percent of cable subscribers in the Philadelphia area.
According to attorneys representing a class of approximately 2.2 million subscribers and former subscribers to Comcast cable services, those “swap” deals suppressed competition and raised prices for consumers in the Philadelphia area in violation of Sections 1 and 2 of the Sherman Act.
Under Federal Rule of Civil Procedure 23, the party seeking class certification has the burden to show that a class action is appropriate because common issues of fact predominate over individual inquiries about the injuries suffered by the class members. But the meaning of that requirement has been a moving target for the past several years. The 3rd Circuit’s pronouncements on the topic have gained particular significance because it hears 25 percent of the country’s antitrust class actions.
Plaintiffs counsel in Behrend think certiorari is unlikely due to the deferential standard of review and the extensive evidence the district court considered.
“It’s well established that the plaintiffs’ burden is to show that common evidence is available to prove the class members’ claims at trial,” says David Woodward, an officer at Heins Mills & Olson and co-lead counsel for the Berhend class. “Judge Padova applied a rigorous analysis based on an extensive evidentiary record.”