Supreme Court May Let Comcast Skate on Monopoly Class Action

Posted November 29, 2012 in Class Actions Consumer Law by

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The U.S. Supreme Court this month heard arguments on a case that could have a dramatic impact on consumers’ ability to join forces in class action lawsuits against corporations that violate their rights.

In Comcast v. Behrend, the court will decide how high of a hurdle plaintiffs must clear to even be certified as a class before they can proceed with a lawsuit.

Cable customers tried to team up to file a suit against Comcast, alleging that the Philadelphia-based cable giant created a monopoly in violation of federal antitrust laws by buying out or otherwise deterring other cable providers from operating in the region surrounding the city. Comcast attempted to block the suit from proceeding, essentially arguing that class members didn’t have enough in common and therefore shouldn’t be allowed to join together for litigation.

A district court, as well as the 3rd U.S. Circuit Court of Appeals, upheld the class certification. Now, the Supreme Court justices will make a final determination that could place another anti-consumer obstacle in the way of victims seeking recourse.

Last year the court ruled on a similar case, Wal-Mart v. Dukes, that 1.6 million female Walmart employees could not be certified as a class to sue the retail chain because they did not have enough in common.


Get Out of Jail Free Card

John Vail

Federal Rules of Civil Procedure dictate certain criteria for a class to be certified: It must be made up of enough people suing over the same issue, and there must be a representative plaintiff who has a claim typical of the class and who can provide adequate representation for the class as a whole.

If those criteria are met, the class needs to meet one of several other standards in order to be certified. The most common, and the one the would-be plaintiffs in the Walmart case fall under, requires that the main issue being litigated is the one that binds class members together.

“The key thing there is finding that there’s predominance,” explains John Vail, vice president and senior litigation counsel for the Center for Constitutional Litigation. “Are the questions that are common to all the class members big questions in the overall litigation?”

The rules require the group meet a few more criteria as well. “Another is superiority, that a class action is a better way than other ways to adjudicate the claim,” Vail says. “The other key one is manageability. Can you actually bring this claim? Can you actually get it done in the court room? That was one of the big issues in Walmart.”

Comcast is trying to follow in Walmart’s footsteps by arguing that the plaintiffs don’t have enough in common to sue collectively. “What Comcast was saying was you haven’t shown that we hurt everybody in the same way, and therefore you can’t bring the case as a class,” says the attorney. “The business class is saying effectively you’ve got to show you can win before you can even get certified as a class, not just that it’s plausible that you could win.”

A court ruling in favor of Comcast would be a direct blow to consumer rights, since a class action is the only practical way to fight back in a situation where a lot of people are getting cheated out of a small amount of money. No one is going to hire a lawyer and file a lawsuit individually against a big corporation to try to win what could be damages of a few hundred dollars or less. “The cases are too expensive to bring in much smaller units, so Comcast is unlikely to even face suit for its allegedly anti-competitive conduct” if the court blocks the class certification, Vail says. “It’s effectively a get out of jail free card.”

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