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Comcast Wins, But Will Anybody Notice?

March 27, 2013

While most of the Supreme Court universe is (rightly) focused on Perry and Windsor, the Supreme Court divided deeply over a class action case decided this morning – one that merits a closer look than it’s likely to receive from most commentators – Comcast Corp. v. Behrend.

Behrend involves a class action brought by Comcast customers for various antitrust violations in the Philadelphia market – violations that allegedly led to higher prices.  In the end, the Court divided five-to-four along ideological lines – with Justice Scalia writing the majority opinion.  The Court held that the customers’ class action had been improperly certified because the plaintiff class’s proposed damages model – offered by an expert witness – didn’t established a clear enough link between class-wide damages and the customers’ underlying antitrust theory.  This ruling improved the Chamber of Commerce’s record before the Court this Term to three wins and one loss – as the Chamber filed an amicus brief in support of Comcast in the case.

Even so, the most interesting feature of Behrend may be the spirited dissent jointly authored by Justices Breyer and Ginsburg (and, in a rare move, read, in part, from the bench today).  The dissent accused the conservative wing of “[a]bandoning the question we instructed the parties to brief” and “reach[ing] out to decide a case hardly fit for our consideration” – one that was “infect[ed] by our misguided reformulation of the question presented.” 

As these quotes suggest, the dissent’s main criticism of the conservative majority was that it went out of its way to reformulate the proposed question presented twice: first, when the Court granted cert; and, second, when the conservatives discovered that Comcast had forfeited its legal answer to the reformulated question (after the parties had both briefed and argued the case).  According to the dissent, this move “left respondents [the class of customers] without an unclouded opportunity to air the issue the Court today decides against them.” 

From there, the conservative majority took it upon itself to probe the adequacy of the plaintiff class’s proposed damages model – “resolving a complex and fact-intensive question without the benefit of full briefing” and relying “on its own version of the facts, a version inconsistent with factual findings made by the District Court and affirmed by the Court of Appeals.”  In the end, the dissent argued that, in ruling in Comcast’s favor, the conservative majority “depart[ed] from our ordinary practice, risk[ed] inaccurate judicial decisionmaking, and [wa]s unfair to respondents and the courts below.”

Given this strongly worded joint dissent by Justices Breyer and Ginsburg, Behrend merits a close read by all Supreme Court watchers – especially once the Perry-Windsor haze has lifted.