Comcast v. Behrend

Editor's Note :

Comcast v. Behrend

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Opinion analysis: Court holds that First Amendment does not apply to private operator of public-access channels – Amy Howe

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Conference of June 13, 2019

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.

Featured Posts

Opinion analysis: Virginia’s moratorium on uranium mining is not pre-empted, but the role of legislative purpose remains open for debate – Emily Hammond

Justices send cake sequel back to state court – Amy Howe

Opinion analysis: Court holds that First Amendment does not apply to private operator of public-access channels – Amy Howe
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This Week at the Court
The Supreme Court released orders from the June 13 conference on Monday; the justices granted, vacated and remanded Klein v. Oregon Bureau of Labor and Industries.
Also on Monday, the justices released their opinions in four argued cases: Manhattan Community Access Corp. v. Halleck, Virginia Uranium Inc. v. Warren, Gamble v. United States and Virginia House of Delegates v. Bethune-Hill.
On Thursday, we expect the Supreme Court to release opinions in one or more argued cases. The justices will meet for their June 20 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (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.
- The American Legion v. American Humanist Association
  (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.
- Gamble v. United States
  The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
see all this term’s cases »
Recent Decisions
- Gamble v. United States The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
- Manhattan Community Access Corp. v. Halleck Manhattan Community Access Corp., a private nonprofit corporation designated by New York City to operate the public access channels on the Manhattan cable system owned by Time Warner (now Charter), is not a state actor subject to the First Amendment.
- Virginia House of Delegates v. Bethune-Hill The House of Delegates lacks standing to appeal the invalidation of Virginia’s redistricting plan.
- Virginia Uranium, Inc. v. Warren The U.S. Court of Appeals for the 4th Circuit’s judgment that the Atomic Energy Act does not preempt Virginia’s prohibition on uranium mining in the commonwealth is affirmed.
- Parker Drilling Management Services, Ltd. v. Newton Under the Outer Continental Shelf Lands Act, when federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the Outer Continental Shelf.
- Quarles v. United States Michigan’s third-degree home-invasion statute substantially corresponds to or is narrower than generic burglary for purposes of qualifying for enhanced sentencing under the Armed Career Criminal Act.
- Return Mail Inc. v. United States Postal Service The federal government is not a “person” capable of petitioning the Patent Trial and Appeal Board to institute patent review proceedings under the Leahy-Smith America Invents Act.
see all this term’s cases »
Current Relists
- Department of Homeland Security v. Regents of the University of California (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
- Georgia v. Public.Resource.Org Inc. Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
- Land of Lincoln Mutual Health Insurance Co. v. United States Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.
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Merits cases granted to date 74

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Cases argued	69
Cases decided	49
Summary reversals	5
Merits cases granted to date	74

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