On March 27, 2013 the U.S. Supreme Court rendered its decision in Comcast Corporation v. Behrend, a decision that gives employers another weapon to defeat class certification. The Comcast class action was brought by cable television subscribers who alleged that Comcast engaged in unlawful anti-competitive activities that drove up cable subscription charges. The plaintiffs sought to certify a class of over 2 million Comcast subscribers. They proposed four theories of how Comcast engaged in anti-competitive activities. Their damages expert calculated damages resulting from these activities at $875,576,662. The district found that only one of those theories was capable of meeting the requirements for class certification, and it certified the class on that theory alone. Comcast appealed, arguing that the damage calculation was based upon all four theories, and if only one theory survived, then the class plaintiffs could not prove that class member damages were based upon that theory alone. The Supreme Court agreed, holding that class certification was improper because the trial court would need to inquire as to which type of anticompetitive activity was at play in the case of each customer, and therefore, “questions of individual damage calculations will inevitably overwhelm questions common to the class.”
This case will be helpful to employers who often defend class action lawsuits alleging multiple theories of recovery. Under Comcast, if the plaintiffs do not prove that their damages under each theory are capable of class determination, then the court cannot certify a class action claim.