Third Circuit Affirms Class Certification, Cautioning Against The Need For Mini Trials

Our immediately prior posting addressed the issue of how a single case in a multiparty, multidistrict litigation raising industry-wide antitrust claims was plucked out and sent to arbitration. How a plaintiff manages around that result is a question not just of international litigation practice but for the corporate or transactional lawyer/draftsman to avoid as well.

How are antitrust claims faring these days in overcoming another major procedural hurdle, that of class certification? Behrend, et al. v. Comcast Corp., et al., No. 10-2865 (3d Cir. Aug. 2011), addresses the issue extensively. And despite the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which we discussed here, the Third Cirtcuit affirmed the District Court's certification decision of antitrust claims.

The claims arise out of alleged series of transactions tht increased Comcast's share of the multichannel video programming distribution services offered in the Philadelphia area through alleged anticompetitive "clustering". After the Third Circuit initially denied interlocutory appeal (permissible under Fed. R. Civ. P. 23 in certain cases), the District Court held a four-day evidentiary hearing from both fact and expert witnesses, considered as part of that 32 expert reports, and examined depostion excerpts and documents. The challenges on appeal centered around whether there was sufficient evidence of class-wide antitrust impact, whether the damages methodology was acceptable, and whether the District Court's certification of what the defendants' characterized as a per se antitrust claim was clear error. The Third Circuit rejected all challenges.

Among other things, the Circuit rejected the invitation to decide the merits of the litigation, without discussing whether what the District Court did was...