2 Million Comcast Customers May Never Get To Air Their Grievances In Court

In one of the more punishing blows to the class action mechanism since the 2011 Wal-Mart gender discrimination loss, the U.S. Supreme Court on Wednesday rejected a class lawsuit alleging that Comcast jacked up prices to Philadelphia-area customers through anticompetitive practices.

The plaintiffs may or may not have been able to prove antitrust violations by the cable company. We may never know, because the five-justice majority led by Antonin Scalia said they cannot be certified as a class, the mechanism that enables plaintiffs to band together with the necessary resources to go up against corporate behemoths. This decision is one of many by the Roberts Court to limit the class mechanism and erode corporate accountability through procedural rulings, but it may be the first in this string in which any justice, let alone two, read their dissent from the bench — an infrequent practice that typically connotes particularly strong disagreement with the majority decision. On this Wednesday morning, Justices Ruth Bader Ginsburg and Stephen Breyer had a particularly large and rapt audience for their scathing oral dissent, with court-watchers there to witness landmark arguments on marriage equality. What the audience got is a lesson on how obscure procedural cases with major implications for consumers are susceptible to manipulation.

The Comcast v. Behrend case involved a class of some 2 million plaintiffs in the Philadelphia region who argued that Comcast monopolized the regional market by exchanging territories with competitors — enabling everyone to charge higher prices. Plaintiffs who file class lawsuits must establish that they can prove their injury and damages on a classwide basis, and the majority in this case said they hadn’t met that burden. But here’s where it gets interesting. The majority’s holding does not answer the question the court had said it would answer when it agreed to review the case. It granted the petition on the much narrower question of what standard is required for admitting expert testimony in class cases, and this is what the parties addressed in their written and oral arguments. According to a passionate and fuming dissent from Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan, the plaintiffs were victims of a bait-and-switch that deprived them of even an opportunity to properly brief the issue:

The Court’s newly revised question, focused on predominance, phrased only after briefing was done, left respondents without an unclouded opportunity to air the issue the Court today decides against them. And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen. […]


Incautiously entering the fray at this interlocutory stage, the Court sets forth a profoundly mistaken view of antitrust law. And in doing so, it relies 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.

And the dissenters go farther than this. Typically it is left to outside commentators to observe the activism that motivates a particular method of deciding a case. Not here, where the majority’s manipulation of the case was so egregious that the dissenters explicitly call them out on the practice:

Today the Court reaches out to decide a case hardly fit for our consideration. On both procedural and substantive grounds, we dissent. This case comes to the Court infected by our misguided reformulation of the question presented.

Whether this case’s ruling rejecting the plaintiffs’ methodology for determining damages will have impact on future class questions is not clear. According to the dissenters, this case sets no new precedent and should have no application outside of this particular case. According to lawyers who defend these cases, the ruling will make it still easier for companies to beat back class challenges. The primary take-away is that Comcast found an ally in the Roberts Court, whose five conservative justices remain virulently hostile to the class mechanism. At a minimum, the ruling deprived at least 2 million consumers of the opportunity to challenge an alleged Comcast practice that no one consumer could take on alone.