SUPREME COURT OF THE UNITED STATES
COMCAST CORPORATION, et al., PETITIONERS
CAROLINE BEHREND et al.
on writ of certiorari to the united states
court of appeals for the third circuit
[March 27, 2013]
Justice Ginsburg and Justice Breyer, with whom
Justice Sotomayor and Justice Kagan join, dissenting.
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. For that reason
alone, we would dismiss the writ of certiorari as improvidently
Comcast sought review of the following question:
“[W]hether a district court may certify a class action
without resolving ‘merits arguments’ that bear on
[Federal Rule of Civil Procedure] 23’s prerequisites for
certifica-tion, including whether purportedly common issues
predominate over individual ones under Rule 23(b)(3).” Pet.
for Cert. i. We granted review of a different question:
“Whether a district court may certify a class action without
resolving whether the plaintiff class has introduced admissible
, including expert testimony, to show that the case is
susceptible to awarding damages on a class-wide basis.” 567
U. S. ___ (2012) (emphasis added).
Our rephrasing shifted the focus of the dispute
from the District Court’s Rule 23(b)(3) analysis to its
attention (or lack thereof) to the admissibility of expert
testimony. The parties, responsively, devoted much of their
briefing to the question whether the standards for admissibility of
expert evidence set out in Federal Rule of Evidence 702 and
v. Merrell Dow Pharmaceuticals, Inc.
(1993), apply in class certification proceedings. See Brief
for Petitioners 35–49; Brief for Respondents 24–37.
Indeed, respondents confirmed at oral argument that they understood
our rewritten question to center on admissibility, not Rule
23(b)(3). See, e.g.
, Tr. of Oral Arg. 25.
As it turns out, our reformulated question was
inapt. To preserve a claim of error in the admission of evidence, a
party must timely object to or move to strike the evidence. Fed.
Rule Evid. 103(a)(1). In the months preceding the District
Court’s class certification order, Comcast did not object to
the admission of Dr. McClave’s damages model under Rule 702
. Nor did Comcast move to strike his testimony and
expert report. Consequently, Comcast forfeited any objection to the
admission of Dr. McClave’s model at the certification stage.
At this late date, Comcast may no longer argue that
respondents’ damages evidence was inadmissible.
Comcast’s forfeiture of the question on
which we granted review is reason enough to dismiss the writ as
improvidently granted. See Rogers
v. United States
, 259 (1998) (O’Connor, J., concurring in result)
(“[W]e ought not to decide the question if it has not been
cleanly presented.”); The Monrosa
v. Carbon Black
, 359 U.S.
, 183 (1959) (dismissal appropriate in light of
“circumstances . . . not fully apprehended at the time
certiorari was granted” (internal quotation marks omitted)).
The Court, however, elects to evaluate whether re-spondents
“failed to show that the case is susceptible to awarding
damages on a class-wide basis.” Ante
, at 5, n. 4
(internal quotation marks omitted). To justify this second revision
of the question presented, the Court observes that Comcast
“argued below, and continue[s] to argue here, that
certification was improper because respondents had failed to
establish that damages could be measured on a classwide
And so Comcast
did, in addition
to endeavoring to address the question on which we granted review.
By treating the first part of our reformulated question as though
it did not exist, the Court is hardly fair to respondents.
Abandoning the question we instructed the
parties to brief does “not reflect well on the processes of
the Court.” Redrup
v. New York
, 386 U.S.
, 772 (1967) (Harlan, J., dissenting). Taking their cue from
our order, respondents did not train their energies on defending
the District Court’s finding of predominance in their
briefing or at oral argument. 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. See
, at 5–11.
While the Court’s decision to review the
merits of the District Court’s certification order is both
unwise and un-fair to respondents, the opinion breaks no new ground
on the standard for certifying a class action under Federal Rule of
Civil Procedure 23(b)(3). In particular, the decision should not be
read to require, as a prerequisite to certification, that damages
attributable to a classwide injury be measurable
“ ‘on a class-wide basis.’ ” See
at 2–3 (acknowledging Court’s dependence
on the absence of contest on the matter in this case); Tr. of Oral
To gain class-action certification under Rule
23(b)(3), the named plaintiff must demonstrate, and the District
Court must find, “that the questions of law or fact common to
class members predominate over any questions affecting only
individual members.” This predominance requirement is meant
to “tes[t] whether proposed classes are sufficiently cohesive
to warrant adjudication by representation,” Amchem
, 521 U.S.
, 623 (1997), but it scarcely demands commonality as to all
questions. See 7AA C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure §1778, p. 121 (3d ed. 2005)
(hereinafter Wright, Miller, & Kane). In particular, when
adjudication of questions of liability common to the class will
achieve economies of time and expense, the predominance standard is
generally satisfied even if damages are not provable in the
aggregate. See Advisory Committee’s 1966 Notes on Fed. Rule
Civ. Proc. 23, 28 U. S. C. App., p. 141 (“[A] fraud
perpetrated on numerous persons by the use of similar
misrepresentations may be an appealing situation for a class
action, and it may remain so despite the need, if liability is
found, for separate determination of the damages suffered by
individuals within the class.”); 7AA Wright, Miller, &
Kane §1781, at 235–237.[1
Recognition that individual damages calculations
do not preclude class certification under Rule 23(b)(3) is well
nigh universal. See 2 W. Rubenstein, Newberg on Class Actions
§4:54, p. 205 (5th ed. 2012) (ordinarily, “individual
damage[s] calculations should not scuttle class certification under
Rule 23(b)(3)”). Legions of appellate decisions across a
range of substantive claims are illustrative. See, e.g.
v. Knox County
365 F.3d 1
, 6 (CA1 2004) ( Fourth Amendment); Chiang
385 F.3d 256
, 273 (CA3 2004) (Equal Credit Opportunity Act);
v. Independent Assn. of Continental Pilots
242 F.3d 290
, 298 (CA5 2001) (Labor-Management Reporting and
Disclosure Act and Railway Labor Act); Beattie
, 511 F.3d 554, 564–566 (CA6 2007)
(Federal Communications Act); Arreola
F.3d 788, 801 (CA7 2008) ( Eighth Amendment). Antitrust cases,
which typically involve common allegations of antitrust violation,
antitrust impact, and the fact of damages, are classic examples.
See In re Visa Check/MasterMoney Antitrust Litigation
280 F.3d 124
, 139–140 (CA2 2001). See also 2A P. Areeda,
H. Hovenkamp, R. Blair, & C. Durrance, Antitrust Law ¶331,
p. 56 (3d ed. 2007) (hereinafter Areeda & Hovenkamp); 6 A.
Conte & H. Newberg, Newberg on Class Actions §18:27, p. 91
(4th ed. 2002). As this Court has rightly observed,
“[p]redominance is a test readily met” in actions
alleging “violations of the antitrust laws.”
, 521 U. S., at 625.
The oddity of this case, in which the need to
prove damages on a classwide basis through a common methodology was
never challenged by respondents, see Brief for Plaintiffs-Appellees
in No. 10–2865 (CA3), pp. 39–40, is a further reason to
dismiss the writ as improvidently granted. The Court’s ruling
is good for this day and case only. In the mine run of cases, it
remains the “black letter rule” that a class may obtain
certification under Rule 23(b)(3) when liability questions common
to the class predominate over damages questions unique to class
members. 2 Rubenstein, supra
, §4:54, at 208.
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
To understand the antitrust problem, some
(simplified) background discussion is necessary. Plaintiffs below,
re-spondents here, alleged that Comcast violated §§1 and
2 of the Sherman Act. See 15 U. S. C. §§1, 2.
For present purposes, the §2 claim provides the better
illustration. A firm is guilty of monopolization under §2 if
the plaintiff proves (1) “the possession of monopoly
power in the relevant market” and (2) “the willful
acquisition or maintenance of that power[,] as distinguished from
growth or development as a consequence of a superior product,
business acumen, or historic accident.” United States
v. Grinnell Corp.
, 384 U.S.
, 570–571 (1966). A private plaintiff seeking damages
must also show that (3) the monopolization caused
“injur[y].” 15 U. S. C. §15. We have
said that antitrust injuries must be “of the type the
antitrust laws were intended to prevent and that flo[w] from that
which makes defendants’ acts unlawful.” Atlantic
v. USA Petroleum Co.
, 495 U.S.
, 334 (1990) (quoting Brunswick Corp.
, 429 U.S.
, 489 (1977)). See 2A Areeda & Ho-venkamp ¶391a, at
320 (To prove antitrust injury, “[a] private plaintiff must
identify the economic rationale for a business practice’s
illegality under the antitrust laws and show that its harm flows
from whatever it is that makes the practice unlawful.”).
As plaintiffs below, respondents attempted to
meet these requirements by showing that (1) Comcast obtained a 60%
or greater share of the Philadelphia market, and that its share
provides it with monopoly power; (2) Comcast acquired its share
through exclusionary conduct consisting of a series of mergers with
competitors and “swaps” of customers and locations; and
(3) Comcast consequently injured respondents by charging them
If, as respondents contend, Philadelphia is a
separate well-defined market, and the alleged exclusionary conduct
permitted Comcast to obtain a market share of at least 60%, then
proving the §2 violation may not be arduous. As a point of
comparison, the government considers a market shared by four firms,
each of which has 25% market share, to be “highly
concentrated.” Dept. of Justice & Federal Trade
Commission, Horizontal Merger Guidelines §5.3, p. 19 (2010). A
market, such as the one alleged by respondents, where one
firm controls 60% is far worse. See id.,
18–19, and n. 9 (using a concentration index that
determines a market’s concentration level by summing the
squares of each firm’s market share, one firm with 100%
yielding 10,000, five firms with 20% each yielding 2000, while a
market where one firm accounts for 60% yields an index number of
3,600). The Guidelines, and any standard antitrust
treatise, explain why firms in highly concentrated markets normally
have the power to raise prices significantly above competitive
levels. See, e.g.,
2B Areeda & Hovenkamp ¶503, at
So far there is agreement. But consider the
last matter respondents must prove: Can they show that Comcast
injured them by charging higher prices? After all, a firm with
monopoly power will not necessarily exercise that power by charging
higher prices. It could instead act less competitively in other
ways, such as by leading the quiet life. See J. Hicks, Annual
Survey of Economic Theory: The Theory of Monopoly, 3 Econometrica
1, 8 (1935) (“The best of all monopoly profits is a quiet
It is at this point that Dr. McClave’s
model enters the scene. His model first selects a group of
counties, where Comcast enjoyed a lower market share (and where
satellite broadcasting accounted for more of the local business).
Using multiple regression analysis, McClave’s model measures
the effect of the anticompetitive conduct by comparing the class
counties to the benchmark counties. The model concludes that the
prices Philadelphia area consumers would have paid had the
Philadelphia counties shared the properties of the benchmark
counties (including a diminished Comcast market share), would have
been 13.1% lower than those they actually paid. Thus, the model
provides evidence that Comcast’s anticompetitive conduct,
which led to a 60% market share, caused the class to suffer
injuriously higher prices.
The special antitrust-related difficulty
present here stems from the manner in which respondents attempted
to prove their antitrust injuries. They proffered four
“non-exclusive mechanisms” that allegedly
“cause[d] the high prices” in the Philadelphia area.
App. 403a. Those four theories posit that (1) due to
Comcast’s acquisitions of competitors, customers found it
more difficult to compare prices; (2) one set of potential
competitors, namely Direct Broadcast Satellite companies, found it
more difficult to obtain access to local sports broadcasts and
consequently decided not to enter the Philadelphia market; (3)
Comcast’s ability to obtain programming material at lower
prices permitted it to raise prices; and (4) a number of potential
competitors (called “overbuilders”), whose presence in
the market would have limited Comcast’s power to raise
prices, were ready to enter some parts of the market but decided
not to do so in light of Comcast’s anticompetitive conduct.
264 F.R.D. 150, 161–162 (ED Pa. 2010).
For reasons not here relevant, the District
Court found the first three theories inapplicable and limited the
liability-phase proof to the “overbuilder” theory. See
App. to Pet. for Cert. 192a–193a. It then asked the parties
to brief whether doing so had any impact on the viability of
McClave’s model as a measure of classwide damages. See 264
F. R. D., at 190. After considering the parties’
arguments, the District Court found that striking the three
theories “does not impeach Dr. McClave’s damages
model” because “[a]ny anticompetitive conduct is
reflected in the [higher Philadelphia] price [which Dr.
McClave’s model determines], not in the [the model’s]
selection of the comparison counties, [i.e.
, the lower-price
‘benchmark counties’ with which the Philadelphia area
prices were compared].” Id.
, at 190–191. The
court explained that “whether or not we accepted all [four] .
. . theories . . . is inapposite to Dr. McClave’s methods of
choosing benchmarks.” Ibid.
On appeal, the Third
Circuit held that this finding was not an abuse of discretion. 655
F.3d 182, 207 (2011).
The Court, however, concludes that “the
model failed to measure damages resulting from the particular
antitrust injury on which petitioners’ liability in this
action is premised.” Ante,
at 8. To reach this
conclusion the Court must consider fact-based matters, namely what
this econometric multiple-regression model is about, what it
proves, and how it does so. And it must overturn two lower
courts’ related factual findings to the contrary.
We are normally “reluctant to disturb
findings of fact in which two courts below have concurred.”
, 465 U.S.
, 614 (1984). See also United States
, 518 U.S.
, 589, n. 5 (1996) (Scalia, J., dissenting) (noting
“our well-settled rule that we will not ‘undertake to
review concurrent findings of fact by two courts below in the
absence of a very obvious and exceptional showing of
error’ ” (quoting Graver Tank & Mfg.
v. Linde Air Products Co.
, 275 (1949))). Here, the District Court found
McClave’s econometric model capable of measuring damages on a
classwide basis, even after striking three of the injury theories.
264 F. R. D., at 190–191. Contrary to the
Court’s characterization, see ante
, at 8–9,
n. 5, this was not a legal conclusion about what the model
proved; it was a factual finding about how
the model worked.
Under our typical practice, we should leave that finding alone.
In any event, as far as we can tell, the lower
courts were right. On the basis of the record as we understand it,
the District Court did not abuse its discretion in finding that
McClave’s model could measure damages suffered by the
class—even if the damages were limited to those caused by
deterred overbuilding. That is because respondents alleged that
Comcast’s anticompetitive conduct increased Comcast’s
market share (and market power) by deterring potential entrants, in
particular, overbuilders, from entering the Philadelphia area
market. See App. 43a–66a. By showing that this was so,
respondents’ proof tends to show the same in respect to other
entrants. The overbuilders’ failure to enter deprives the
market of the price discipline that their entry would have provided
in other parts via threat of the overbuilders’ expansion or
that of others potentially led on by their example. Indeed, in the
District Court, Comcast argued that the three other theories,
, the three rejected theories, had no impact on prices.
See 264 F. R. D., at 166, 176, 180–181. If Comcast
was right, then the damages McClave’s model found must have
stemmed exclusively from conduct that deterred new entry, say from
“overbuilders.” Not surprisingly, the Court offers no
support at all for its contrary conclusion, namely, that the
District Court’s finding was “ ‘obvious[ly]
and exceptional[ly]’ erroneous.” Ante,
8–9, n. 5 (quoting Virginia
, 518 U. S., at
589, n. 5 (Scalia, J., dissenting)).
We are particularly concerned about the matter
because the Court, in reaching its contrary conclusion, makes broad
statements about antitrust law that it could not mean to apply in
other cases. The Court begins with what it calls an
“unremarkable premise” that respondents could be
“entitled only to damages resulting from reduced overbuilder
, at 7.
In most §2
cases, how-ever, the Court’s starting place would seem
Suppose in a different case a plaintiff were to
prove that Widget, Inc. has obtained, through anticompetitive
means, a 90% share of the California widget market. Suppose the
plaintiff also proves that the two small remaining firms—one
in Ukiah, the other in San Diego—lack the capacity to expand
their widget output to the point where that pos-sibility could
deter Widget, Inc. from raising its prices. Suppose further that
the plaintiff introduces a model that shows California widget
prices are now twice those in every other State, which, the model
concludes is (after accounting for other possible reasons) the
result of lack of competition in the California widget market. Why
would a court hearing that case restrict damages solely to
customers in the vicinity of Ukiah and San Diego?
Like the model in this example, Dr.
McClave’s model does not purport to show precisely how
Comcast’s conduct led to higher prices in the Philadelphia
area. It simply shows that
Comcast’s conduct brought
about higher prices. And it measures the amount of subsequent
* * *
Because the parties did not fully argue the
question the Court now answers, all Members of the Court may lack a
complete understanding of the model or the meaning of related
statements in the record. The need for focused argument is
particularly strong here where, as we have said, the underlying
considerations are detailed, technical, and fact-based. The Court
departs from our ordinary practice, risks inaccurate judicial
decisionmaking, and is unfair to respondents and the courts below.
For these rea-sons, we would not disturb the Court of
Appeals’ judgment and, instead, would dismiss the writ as