Comcast v. Behrend

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Comcast v. Behrend

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Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
11-864	3d Cir.	Nov 5, 2012 Tr.Aud.	Mar 27, 2013	5-4	Scalia	OT 2012

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Holding: The class action brought by respondents, subscribers to the cable television services provided by petitioner, was improperly certified under Federal Rule of Civil Procedure 23(b)(3), which requires a court to find that the “questions of law or fact common to class members predominate over any questions affecting only individual members,” because the Third Circuit erred in refusing to decide whether the class’s proposed damages model could show damages on a classwide basis. Under proper standards, the model was inadequate, and the class should not have been certified.

Judgment: Reversed, 5-4, in an opinion by Justice Scalia on March 27, 2013.

Opinion analysis: No common ground (Sergio Campos)
Argument recap: You say tomato . . . (Sergio Campos)
Argument preview: An inch, or a mile? (Sergio Campos)
Petition of the day (Kali Borkoski)

Date	Proceedings and Orders (key to color coding)
Nov 30 2011	Application (11A534) to extend the time to file a petition for a writ of certiorari from December 19, 2011 to January 18, 2012, submitted to Justice Alito.
Dec 2 2011	Application (11A534) granted by Justice Alito extending the time to file until January 18, 2012.
Jan 11 2012	Petition for a writ of certiorari filed. (Response due February 13, 2012)
Feb 13 2012	Waiver of right of respondents Caroline Behrend, et al. to respond filed.
Feb 29 2012	DISTRIBUTED for Conference of March 16, 2012.
Mar 8 2012	Response Requested . (Due April 9, 2012)
Apr 9 2012	Brief of respondents Caroline Behrend, et al. in opposition filed.
Apr 24 2012	DISTRIBUTED for Conference of May 10, 2012.
Apr 24 2012	Reply of petitioners Comcast Corporation, et al. filed. (Distributed)
May 14 2012	DISTRIBUTED for Conference of May 17, 2012.
May 21 2012	DISTRIBUTED for Conference of May 24, 2012.
May 29 2012	DISTRIBUTED for Conference of May 31, 2012.
Jun 4 2012	DISTRIBUTED for Conference of June 7, 2012.
Jun 11 2012	DISTRIBUTED for Conference of June 14, 2012.
Jun 18 2012	DISTRIBUTED for Conference of June 21, 2012.
Jun 25 2012	Petition GRANTED limited to the following Question: "Whether 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.".
Jul 20 2012	The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 17, 2012.
Jul 23 2012	SET FOR ARGUMENT ON Monday, November 5, 2012
Aug 6 2012	Letter from counsel for the respondents received. (Distributed)
Aug 7 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Aug 9 2012	Record received from U.S.C.A. for 3rd Circuit. (1 box). There are sealed documents in this record.
Aug 14 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondents.
Aug 17 2012	Joint appendix filed (5 Volumes, 2 with motion to seal). (Statement of costs filed)
Aug 17 2012	Brief of petitioner Comcast Corporation, et al. filed.
Aug 17 2012	Motion to file Volumes Four and Five of the joint appendix under seal filed by petitioners Comcast Corporation, et al.
Aug 22 2012	Motion DISTRIBUTED for Conference of September 24, 2012.
Aug 22 2012	The time to file respondent's brief on the merits is extended to and including September 25, 2012.
Aug 24 2012	Brief amicus curiae of Intel Corporation filed.
Aug 24 2012	Brief amicus curiae of Equal Employment Advisory Council filed.
Aug 24 2012	Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
Aug 24 2012	Brief amicus curiae of DRI - The Voice of the Defense Bar filed.
Aug 24 2012	Brief amici curiae of Washington Legal Foundation, et al. filed.
Aug 24 2012	Brief amicus curiae of Retail Litigation Center, Inc. filed.
Aug 24 2012	Brief amicus curiae of Cato Institute filed.
Aug 24 2012	Brief amici curiae of Economists in support of neither party filed.
Sep 4 2012	Record received from U.S.D.C. for Eastern District of Pennsylvania. (3 boxes)
Sep 19 2012	CIRCULATED
Sep 25 2012	Brief of respondents Caroline Behrend, et al. filed. (Distributed)
Sep 26 2012	Letter of respondents Caroline Behrend, et al. filed. (Distributed)
Oct 1 2012	Motion for leave to file Volumes 4 and 5 of the joint appendix under seal GRANTED.
Oct 2 2012	Brief amici curiae of American Antitrust Institute, et al. filed. (Distributed)
Oct 2 2012	Brief amici curiae of American Association for Justice, Public Justice, P.C., and AARP filed. (Distributed)
Oct 24 2012	Reply of petitioners Comcast Corporation, et al. filed. (Distributed)
Oct 29 2012	Motion for leave to file a supplemental volume of the joint appendix under seal filed by petitioners Comcast Corporation, et al. (Distributed)
Oct 29 2012	Motion DISTRIBUTED for Conference of November 2, 2012.
Nov 2 2012	Motion for leave to file a supplemental volume of the joint appendix under seal GRANTED.
Nov 5 2012	Argued. For petitioners: Miguel A. Estrada, Washington, D. C. For respondents: Barry Barnett, Dallas, Tex.
Mar 27 2013	Judgment REVERSED. Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, JJ., joined. Ginsburg and Breyer, JJ., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.
Apr 29 2013	JUDGMENT ISSUED.
Jun 3 2013	Record returned to U.S.D.C. for Eastern District of Pennsylvania.
Jun 4 2013	Record returned to U.S.C.A. for Third Circuit.

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Court puts partisan-gerrymandering rulings on hold – Amy Howe

Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent – Anita Krishnakumar

Relist Watch – John Elwood
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The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.
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  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
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  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
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  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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