Behrend and Amgen: The Supreme Court Sends Mixed Signals About Reaching the Merits at the Class Certification Stage

The U.S. Supreme Court has sent mixed signals this term regarding when courts can address merits issues at the class certification stage. On March 27, 2013, in Comcast Corp. v. Behrend, the Court reaffirmed that lower courts may not “refus[e] to entertain arguments … that b[ear] on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination.” Op. at 6-7. However, a month earlier, in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, the Court arguably did exactly that.

The Behrend Decision In Behrend, subscribers of Comcast television services in the Philadelphia market brought suit against Comcast for violations of federal antitrust laws and sought certification of a class of current and former Comcast subscribers in the market. The plaintiffs proposed four theories of antitrust impact, i.e., four ways in which Comcast allegedly distorted the market and increased cable subscription rates. Behrend Op. at 3. The District Court found that one of these theories — that Comcast’s activities reduced the level of com- petition from “overbuilders” — was capable of class-wide proof, and certified a class based on that theory alone. Id.

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