Comcast Disputes ‘Bunk’ Economic Model Used to Certify Class in Clustering Case
Comcast asked the U.S. Supreme Court to overturn a ruling upholding certification of a class, in a case brought by Philadelphia-area subscribers alleging the cable operator violated federal antitrust laws when it consolidated its systems in that region (CD May 14/07 p4). By “clustering” its systems, Comcast was able to reduce competition from rivals including cable overbuilder RCN, and raise its rates 11 percent annually, the plaintiffs had argued. The 3rd U.S. Circuit Court of Appeals ruled in August 2011 that a lower court didn’t exceed its discretion when it certified the class.
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The issue before the court Monday was whether a lower court can certify a class without determining whether the plaintiff introduced admissible expert witness testimony to show that class-wide damages could be awarded. Arguing for Comcast, attorney Miguel Estrada of Gibson Dunn questioned the economic model used to buttress plaintiffs’ argument that RCN was the “little engine that could,” and that absent Comcast’s clustering in the Philadelphia market, RCN would “radiate out” throughout the area. “This model is bunk,” he said.
Justice Elena Kagan said the case appeared to bring up more case-specific questions than broad legal questions. “I'm still in search of a legal question that anybody disagrees about here,” she said. She couldn’t find any disagreements of law in the parties’ briefs, and “none of the parties have any adversarial difference,” Kagan said. Justice Sonia Sotomayor said the fundamental question appeared to be whether a district court can ever say it’s “persuaded” by “nonprobative evidence."
There was some debate whether Comcast preserved the question of admissibility for appeal. At the oral argument, Comcast didn’t explicitly object to the admissibility of the experts or their proposed test. Estrada said Comcast objected to how much weight to give the evidence, which should preserve the admissibility question. Kagan said it was a “remarkable proposition” that such a “well-lawyered” client as Comcast would only say it objects about the weight to give the expert statements, and then expect the high court to “infer” that this was also objecting to admissibility. Chief Justice John Roberts said one option is for the Supreme Court to send the case back to the 3rd Circuit to determine whether the parties adequately preserved the question for appeal.