Comcast v. Behrend Sets a Higher Bar for Class Certification

by Sheppard Mullin Richter & Hampton LLP

On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of certification satisfied Federal Rule of Civil Procedure 23(b), which requires that “questions of law or fact common to class members predominate over any questions affecting only individual members,” when calculating damages with a regression model that did not isolate the effect of specific misconduct. In a 5-4 decision authored by Justice Scalia, the Court held that the class was improperly certified, reversing the decisions of the lower courts.


The respondents consisted of approximately two million current and former Comcast subscribers from December 1, 1999 to the present within the Philadelphia “Designated Market Area” (“DMA”). They alleged that Comcast entered into unlawful agreements and monopolized or attempted to monopolize the DMA through a strategy of “clustering,” i.e., purchasing a competitor’s system in one region in exchange for Comcast’s system in another region, violating Sections One and Two of the Sherman Act.

At the district court level, respondents offered four forms of “antitrust impact” to meet Rule 23(b)(3)’s predominance requirement. However, only one theory was accepted—that Comcast’s clustering reduced competition from companies that built competing cable networks in areas where an incumbent cable company already operates. The court determined that the damages arising out of “overbuilder-deterrence” could be calculated on a class-wide basis. Respondents’ expert calculated damages of $875,576,662 using a regression model that combined the effects of the original four theories of injury. A divided court of appeals affirmed the lower court’s decision to certify the class, reasoning that “at the class certification stage, respondents were not required to ‘tie each theory of antitrust impact to an exact calculation of damages.’” Maj. Op. at 4 (citation omitted).


The Majority Opinion

The Court reversed the grant of class certification. Justice Scalia emphasized that the rigorous standards used in Rule 23(a) analyses applied with equal if not more force to scrutiny of Rule 23(b)’s predominance requirement. To that end, it “may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Maj. Op. at 6 (citations omitted). Here, the court of appeals erred “[b]y refusing to entertain arguments against respondents’ damages model that bore on the propriety of class certification simply because those arguments would also be pertinent to the merits determination.” Maj. Op. at 6-7 (citations omitted). Although the damages calculations “need not be exact . . . at the class-certification stage (as at trial), any model supporting a ‘plaintiff’s damages case must be consistent with its liability case, particularly with respect to the alleged anticompetitive effect of the violation.” Maj. Op. at 7 (citations omitted). Because the potential award of damages was premised exclusively on overbuilder-deterrence, “a model purporting to serve as evidence of damages . . . must measure only those damages attributable to that theory.” Maj. Op. at 7. From the majority’s perspective, certifying a class based on respondents’ inclusive methodology “would reduce Rule 23(b)(3)’s predominance requirement to a nullity.” Maj. Op. at 8.

The Dissent

After criticizing the Court’s post-briefing decision to recast the issue under review, the dissent, led by Justices Ginsburg and Breyer, insisted that the majority opinion “breaks no new ground on the standard for certifying a class action” pursuant to Rule 23(b). Dissent at 3. From the dissent’s vantage point, “[i]n the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when liability questions common to the class predominate over damages questions unique to class members.” Dissent at 5 (citation omitted).

Nonetheless, the dissent maintained that the majority opinion “sets forth a profoundly mistaken view of antitrust law.” Dissent at 5. The dissent found it sufficient that respondents’ model demonstrated Comcast’s conduct resulted in higher prices in the Philadelphia DNA, rather than focusing on precisely how Comcast achieved this outcome. Accordingly, the Court should not have overturned the lower court’s determination that the regression model “could measure damages suffered by the class—even if the damages were limited to those caused by deterred overbuilding.” Dissent at 10.


Commentators will likely debate whether the Comcast decision has added an extra layer of rigor or a dose of common sense to antitrust damages calculations. However, despite the dissent’s assertion to the contrary, the “universal” principle that individual damages calculations do not preclude class certification under Rule 23(b)(3) appears to be at risk. Dissent at 4. In rendering its opinion, the Court has added a potent weapon for rebuffing class certification.

What this means for antitrust cases, where the predominance test was once “readily met,” Dissent at 5, will be resolved by lower courts through fact-intensive opinions or seemingly inconsistent decisions. Comcast may articulate the law of the land today, but the Court will need to revisit its words when circuit splits inevitably occur.

Written by:

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.