Nov 14

Comcast Plaintiffs Try For Class Certification Again

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), was one of the most important recent class certification opinions of the United States Supreme Court.  Comcast established that before a class can be certified under Fed. R. Civ. P. 23(b)(3), a plaintiff’s damages model must survive the same “rigorous analysis” accorded all other aspects of the class certification motion.  The Supreme Court reversed the Third Circuit’s affirmance of certification of a class of Comcast subscribers in the Philadelphia regional “cluster,” because the plaintiffs’ damages model did not conform to their liability theory but instead would have included damages under liability theories the district court had rejected.  Following reversal, the Third Circuit “summarily remanded [the case] to the United States District Court for the Eastern District of Pennsylvania for proceedings consistent with the Supreme Court’s opinion.”

The Comcast litigation is not over yet, at least for now.  On August 19, 2013, plaintiffs’ moved to certify a “revised Philadelphia class,” limited to subscribers in five instead of eighteen counties, and proposed a new damages model they contend satisfies Rule 23.  Comcast moved to strike plaintiff’s motion as procedurally improper and futile in light of the Supreme Court’s opinion.  But in an order filed on November 12, 2013, the district court denied Comcast’s motion to strike, ruling that under Third Circuit precedent, plaintiffs’ renewed attempt to certify a class was consistent with the “letter and spirit” of the mandate returning the case to the district court, and Comcast’s futility argument was premature before development of the record concerning the revised damages model.  The district court directed Comcast to respond to the new class certification motion by December 6, 2013, with plaintiffs to reply by December 26.

Following withdrawal and substitution of a plaintiff, the district court action is now captioned Glaberson v. Comcast Corp., No. 2:03-cv-06604-JP (E.D. Pa.).

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