Antitrust and the Supreme Court's Upcoming Term

As the U.S. Supreme Court’s new term approaches, two antitrust cases highlight the docket. On June 25, 2012, the court granted certiorari in both Behrend v. Comcast¹ and FTC v. Phoebe Putney Health System.² In Behrend, the court will address “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” In Phoebe, the court will address the scope of the state action doctrine’s ability to immunize state-sponsored conduct from antitrust scrutiny. Both cases present important questions and the court’s decision in each will have a resounding impact on future antitrust cases.

‘Behrend v. Comcast’

In Behrend, six cable customers of Comcast brought a class action antitrust suit against the corporation.³ For approximately a decade starting in 1998, Comcast increased its share of cable subscribers in the Philadelphia area by acquiring competing cable providers or “swapping” its own cable systems outside the Philadelphia area for cable systems within the Philadelphia area. By 2007, Comcast’s subscriber share had reached approximately 69.5 percent. The plaintiffs alleged that this “clustering scheme” allowed Comcast to raise prices and prevent the entry or expansion of competitors in violation of Sherman Act §§1 and 2.⁴