In Behrend et al. v. Comcast Corp. et al., Eastern District of Pennsylvania Judge John R. Padova refused to compel Comcast to follow through on a settlement to which the parties had tentatively agreement before the U.S. Supreme Court granted certiorari to review a class certification issue in Comcast Corp. et al. v. Caroline Behrend et al.
A divided panel of the Third Circuit certified the class in this monopolization case in which the plaintiffs argue that Comcast anticompetitively increased cable rates. The controversial issue is whether a class may be certified even if the plaintiffs have not provided admissible evidence, including expert testimony, to demonstrate that damages could be awarded on a class-wide basis. The U.S. Supreme Court agreed to review the certification issue. But the plaintiffs argued that it should dismiss the writ as improvidently granted because the parties had reached a settlement that should be enforced against Comcast.
Judge Padova disagreed. According to the court, the parties had not entered an enforceable settlement contract. The term sheet to which they agreed explicitly recognized that additional negotiations would be required on multiple terms. “[T]he words of the term sheet, the manner in which even class counsel referred to it, and . . . the many nonfinalized terms included therein,” Judge Padova explained, all show “that the parties intended to execute a more formal contract in the future.” In addition, later drafts that the plaintiffs sent to Comcast included differences confirming that the term sheet was “merely an ‘agreement to agree’ that is not capable of being enforced.”
The plaintiffs have also argued for dismissal on the ground that Comcast now advances an argument for the inadmissibility of the plaintiffs’ export report that it did not raise in the lower courts.
On the merits, the plaintiffs contend that district courts should have broad discretion in class certification proceedings and that its evidence would meet any plausible standard of admissibility on the issue of class-wide damages.