Cable TV subscribers may get class certified against Comcast

December 10, 2013 by

Consumer Law Cases 2A Pennsylvania federal judge on Tuesday refused to dismiss the latest bid for class certification by a group of cable  TV subscribers accusing Comcast Corp. of monopolizing the Philadelphia market, saying the court has authority to  consider the plaintiffs’ motion to recertify a narrower class.

U.S. District Judge John R. Padova denied Comcast’s motion to strike plaintiffs’ motion to recertify a class of Philadelphia  area cable subscribers, ruling the U.S. Supreme Court’s earlier decision in the case does not preclude the motion. The high  court in March reversed a Third Circuit decision allowing the original class of more than 2 million cable subscribers in 16  counties in three states.

In their motion to recertify, the plaintiffs proposed a more limited class that would cover only five counties in the Philadelphia region.

“[W]e conclude that the plaintiffs’ proposed motion for certification of a narrowed class with a revised antitrust impact analysis consistent with the Supreme Court’s decision is not precluded as a matter of law,” Judge Padova wrote.

Judge Padova ordered Comcast to file a response to the plaintiffs’ motion to recertify the Philadelphia class.

Comcast said in its motion to strike that the Supreme Court’s decision to reverse the underlying decision means the plaintiffs shouldn’t be allowed to try again for class certification at all, pointing out that the high court’s ruling did not contain instructions remanding the case for further proceedings. The cable giant asserted that even the narrower class the plaintiffs have proposed would fail the test the justices laid down.

The plaintiffs argued that the Third Circuit’s “rule of mandate” permits the district court to consider any matter left open by the Supreme Court’s decision.

In denying Comcast’s motion to strike, Judge Padova cited several cases, including Dukes v. Wal-Mart Stores Inc. That case also dealt with the issue of whether plaintiffs in a class action can seek recertification of a narrowed class after the high court reversed the initial certification. The district court in the Wal-Mart case ultimately determined it was free to consider the plaintiffs’ motion for recertification because the Supreme Court did not explicitly tell it not to do so.

Similarly, in the Comcast case, the high court did not decide as a matter of law that class-wide proof could never be established, Judge Padova wrote.

“Under the Third Circuit’s law of mandate, plaintiffs’ ability to certify a significantly narrowed class based on a more limited antitrust impact model …  is a ‘matter left open by the mandate,’ since it was not decided by the Supreme Court in the first appeal and deemed finally settled,” the judge said.

The Comcast suit has been winding its way through the courts since 2003, when cable TV customers first accused the company of illegally establishing a monopoly in the Philadelphia area.

Comcast has been fighting class certification in the case for years, but when the dispute finally got to the Third Circuit, a panel ruled that the district court had adequately analyzed the plaintiffs’ evidence and arguments before granting cert. The majority in the case also ruled that Comcast’s claims that the plaintiffs’ expert damages report wouldn’t be admissible at trial were premature and went to the merits of the plaintiffs’ case.

But Comcast argued that the damages report didn’t match the claims in the case because it encompassed all four theories of anti-competitive conduct that the plaintiffs originally raised, even though the district court eventually threw out three of those arguments.

In a 5-4 decision, the nation’s high court sided with Comcast and in the process set a higher bar for class certification with its March 27 ruling.

Steve Larson
An experienced trial lawyer who handles both hourly and contingent fee cases, Steve has expertise in class actions, consumer cases, antitrust litigation, securities litigation, corporate disputes, intellectual property disputes, unfair competition claims, employment matters, and disputes involving family wealth. Steve regularly represents individuals and businesses in federal and state court and has obtained class-wide recovery in multiple class actions. A veteran practitioner, Steve's clients value his creative approach to resolving complex litigation matters.

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