Today, although it did not issue its much-anticipated ruling on the Obama Administration’s health care plan, the Supreme Court did agree to hear two antitrust cases during its next term (which starts in October).
In the first case, styled in the court of appeals as Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011), Comcast challenged a decision certifying a class of cable TV subscribers. The Supreme Court has limited the question presented on appeal to: “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.”
This is an important question. In the U.S., in most antitrust class actions, plaintiffs must show that common questions predominate over individual questions. Behrend involves application of that basic rule to the issue of damages. A “no” answer could have a significant negative impact (from plaintiffs’ perspective) on antitrust class action litigation in the U.S. (In the Supreme Court, the case is numbered 11-864.)
In the second case, styled in the court of appeals as FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369 (11th Cir. 2011), the Court will take up the question of whether a hospital acquisition is immunized from antitrust scrutiny by virtue of the state action doctrine. (The Eleventh Circuit determined that the immunity attached, because the acquisition was authorized pursuant to a clearly articulated state policy to displace competition.) The FTC is pressing ahead with the appeal against the background of its challenges to three hospital mergers since 2011. (In the Supreme Court, the case is numbered 11-1160.)