Next term’s big class action case before the Supreme Court is Comcast Corp. v. Behrend, set for argument on Nov. 5, the day before the national election. The justices are expected to decide whether a district court can certify a class without delving into the merits and determining if there is enough admissible evidence to show that class-wide damages could eventually be awarded. But whether the case will still be on the docket by November is an open question. It depends on the status of a possible settlement in the underlying antitrust dispute between Comcast and 2 million of its Philadelphia-area subscribers. Parties for both sides informed a district court judge in Philadelphia on June 13 that they “have reached a tentative agreement to resolve” the dispute. That was 12 days before the Supreme Court granted review in the case. According to a recent story in The Legal Intelligencer, a sibling publication to The National Law Journal, attorneys for the plaintiffs say the Supreme Court case could be moot, even though the settlement has not been approved by the judge. Plaintiffs also told the district court that Comcast lawyers should have informed the Supreme Court about the settlement. But Miguel Estrada, lead counsel for Comcast before the Supreme Court, said in a statement, “The case is not moot.” The Gibson, Dunn & Crutcher partner added, “I have no reason to believe that the case will, or should, be dismissed before or after argument.” Estrada also insisted, “Nothing has occurred that would warrant any filing with the Supreme Court, before certiorari was granted, or since.” He added, “Plaintiffs have filed a motion in district court trying to head off Supreme Court review, but we have opposed that motion.” Barry Barnett of Susman Godfrey in Dallas, the counsel of record for the plaintiffs before the Supreme Court, declined comment. Alleged anti-competitive transactions by Comcast to increase its hold on multichannel video programming in the Philadelphia area are at the center of the class action. The complaint, brought by a group of Comcast subscribers, alleged that the company engaged in an unlawful “clustering scheme” through business deals to eliminate competition and deprive customers of lower prices. The U.S. Court of Appeals for the 3rd Circuit last summer upheld class certification after declining to consider the merits at the certification stage. The court certified a plaintiffs’ class of all cable television customers who subscribe or subscribed to Comcast, beginning in December 1999, other than solely basic cable services. Invoking last year’s Supreme Court ruling in Wal-Mart v. Dukes as well as Rule 23 of the Federal Rules of Civil Procedure governing class actions, Judge Ruggero Aldisert wrote, “The factual and legal underpinnings of Wal-Mart — which involved a massive discrimination class action and different sections of Rule 23 — are clearly distinct from those of this case. Wal-Mart therefore neither guides nor governs the dispute before us.” In his petition to the high court Estrada, co-chair of the firm’s appellate and constitutional law practice group, said the case presents the high court the chance to resolve “an issue of great significance” in class action litigation. “[I]t would further allow the Court to continue its longstanding practice of ensuring that lower courts apply procedural rules, including Rule 23, with appropriate rigor,” Estrada wrote. Helgi Walker, who has represented Comcast in other high-profile cases but is not involved in the Supreme Court litigation, said the dispute tests whether the high court’s decision in Wal-Mart will stick. Walker is co-chair of the appellate practice at Wiley Rein. “In Wal-Mart Justice (Antonin) Scalia said evaluation of class certification requires a rigorous analysis that may often overlap with the merits of the case,” Walker said this week. “But in the Comcast matter the Third Circuit said, ‘We can’t engage in an inquiry under Rule 23 that goes to the merits.’” Walker said she thinks Wal-Mart will control how Comcast is resolved in the high court and that the 3rd Circuit will be reversed. “I think the American business interest community would be supportive of Comcast’s position,” she said. Reporter Michael Scarcella contributed to this report. Tony Mauro can be contacted at email@example.com.
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