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SCOTUS Issues Another Pro-Business Class Action Ruling

By Robyn Hagan Cain on March 29, 2013 | Last updated on March 21, 2019

Two years ago, the Supreme Court decided that 1.5 million Walmart employees couldn’t bring a class action discrimination suit against the retail chain because the plaintiffs’ interests were too varied.

In the Walmart v. Dukes opinion, Justice Antonin Scalia wrote, “Because respondents wish to sue about literally millions of employment decisions at once, they need some glue holding the alleged reasons for all those decisions together.”

The Court, in another Scalia-authored opinion, reached a similar conclusion this week in Comcast Corp et al v. Behrend.

From 1998 to 2007, Comcast Corporation and its subsidiaries engaged in a series of "clustering" transactions that sharply increased the cable-provider's market share in the Philadelphia region from 23.9 percent to 69.5 percent. Customers, annoyed by their increased cable fees, attempted to file a class action antitrust lawsuit against Comcast.

Thought the district court and Third Circuit Court of Appeals approved class certification, the Supreme Court ruled that the plaintiffs didn't satisfy the criteria for FRCP 23 certification because the plaintiffs' interests and injuries weren't sufficiently aligned to warrant class certification.

Under Rule 23(b)(3), a certifying court must find that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." But in Comcast, Justice Scalia noted that "the permutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless."

Much like Dukes, the Comcast plaintiffs claims lacked procedural "glue."

For corporations, the Court's glue-centric view is reassuring. As litigants in this term's American Express Co. v. Italian Colors Restaurant petition explained, the costs of individual litigation in these types of cases exceed individual recovery amounts. Without class certification, a plaintiff is unlikely to proceed with a claim.

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