U.S. Supreme Court To Dive Deeply Into Antitrust: Granting Certiorari In Two Antitrust Cases

Originally published in V&E Antitrust Updates E-communication, June 27, 2012

On June 25, 2012, the U.S. Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864 and Federal Trade Commission v. Phoebe Putney Health System, Inc., No. 11-1160, two cases that will provide important guidance regarding antitrust jurisprudence. In Comcast, the Court will decide the level of inquiry a district court must make on class certification when considering whether plaintiffs can prove damages on a class-wide basis. In Phoebe Putney, the Court will address the scope of the state action doctrine as applied to immunization from the federal antitrust laws.

Comcast Corp. v. Behrend

A district court may certify a class action under Federal Rule of Civil Procedure 23(b)(3) only if the plaintiffs satisfy Rule 23(a)'s numerosity, commonality, typicality, and adequacy prerequisites, and, if the court additionally finds that "the questions of law or fact common to class members predominate over any questions affecting only individual members."1 Last year, the U.S. Supreme Court reiterated in Wal-Mart Stores, Inc. v. Dukes that Rule 23 is not merely a pleading standard, but rather that the trial court must perform "a rigorous analysis" to determine if the requirements of Rule 23(a) have been satisfied.2 On June 25, 2012, the Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864, which raises another important issue on class certification — whether trial courts must perform a rigorous analysis into the plaintiffs' proposed damages evidence to determine whether plaintiffs can prove damages for the class with common evidence.

In the decision below, a divided panel of the Third Circuit affirmed the trial court's certification of a class. Citing In re Hydrogen Peroxide Antitrust Litigation3 — the Third Circuit's seminal (but pre-Dukes) case on class certification standards — the court held that with respect to antitrust impact and the damages calculation methodology, the plaintiffs need only establish by a preponderance of evidence that they are capable of proving at trial class-wide antitrust impact and that they will be able to measure damages on a class-wide basis using common proof.4 The Court held unanimously that the plaintiffs had shown that they could prove antitrust impact on a class-wide basis, but the court split on whether plaintiffs could show that damages could similarly be proven class-wide. The majority held that the...

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