Comcast Corp. v. Behrend: Plot Twists and a Surprise Ending
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On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), an antitrust monopoly case in which the Court determined “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awardingdamages on a class-wide basis.” Comcast Corp. v. Behrend, 133 S. Ct. 24 (2012). Although the Court’s decision was highly anticipated, the final decision broke very little new ground.
Background
The Comcast case began in 2003, when six non-basic cable-television-services customers filed a class-action suit against Comcast Corp. alleging unlawful monopolization and attempted monopolization in violation of the Sherman Act. Behrend v. Comcast Corp., 245 F.R.D. 195, 196–97 (E.D. Pa. 2007). The plaintiffs alleged, based on four theories of antitrust impact, that Comcast’s swaps and transactions, known as clustering, in the relevant geographic markets eliminated competition resulting in increased prices for basic-cable subscribers, including the entire putative class. Behrend v. Comcast Corp., 655 F.3d 182, 187 (3d Cir. 2011). First, the plaintiffs claimed that Comcast’s clustering impaired the ability of rival providers, also known as overbuilders, to effectively compete, resulting in higher rates for all class members. Behrend v. Comcast Corp., 264 F.R.D. 150, 162 (E.D. Pa. 2010). Second, the plaintiffs claimed that Comcast decreased penetration in the relevant market by denying its direct broadcast satellite competitors access to its regional sports programming. Third, the plaintiffs alleged that Comcast’s anti-competitive activities impaired the ability of regulators, firms, and/or customers to compare the performance of different companies, known as benchmark competition. Finally, the plaintiffs alleged that clustering increased Comcast’s bargaining power in its negotiations with content providers, which allowed Comcast to negotiate lower prices for its content, while increasing cable subscriber rates.
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