Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Behrend v. Comcast Corp.

January 7, 2010

CAROLINE BEHREND, ET AL.
v.
COMCAST CORPORATION, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

I. INTRODUCTION

Presently before the Court in this antitrust suit alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, is the Plaintiffs' Amended Motion for Class Certification. On May 3, 2007, the Court granted a motion to certify the class. However, following the decision of the United States Court of Appeals for the Third Circuit in In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) ("Hydrogen Peroxide"), we granted Comcast's motion to reconsider the certification decision and the putative Class ("the Class") filed the pending Amended Motion.

The only certification issue that remains in dispute is the requirement of Fed. R. Civ. P. 23(b)(2) that common issues of law and fact predominate.*fn1 To support its certification arguments, the Class has propounded the expert reports of Dr. Michael Williams*fn2 and Dr. Hal Singer.*fn3 Its damages expert, Dr. James McClave, has also submitted reports to show class-wide damages.*fn4 Comcast has responded with the expert reports of Dr. Tasneem Chipty*fn5 and Dr. David J. Teece.*fn6 The experts' opinions raise substantial issues of fact and credibility that we are required to resolve to decide the pending motion. See Peroxide, 552 F.3d at 316 (stating that the requirements of Rule 23 are not merely "pleading rules" and an "overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met"). Having rigorously analyzed the expert reports, as well as the testimony presented by the parties during a four-day evidentiary hearing, we conclude that the Class has met its burden to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members, and that there is a common methodology available to measure and quantify damages on a class-wide basis.

II. STANDARD OF REVIEW

A. Class Certification

In order to obtain class certification, a party must satisfy the four prerequisites of Rule 23(a) and show that the action can be maintained under at least one of the provisions of Rule 23(b).*fn7 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). The Class in this case seeks certification under Rule 23(b)(3), which provides that certification is permissible if "the court finds 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." Fed. R. Civ. P. 23(b)(3). The twin requirements of Rule 23(b)(3) are referred to as the predominance and superiority requirements. Comcast concedes that the Class satisfied the Rule 23(a) prerequisites and the Rule 23(b)(3) superiority requirement; the sole remaining issue is whether it satisfies the predominance requirement of Rule 23(b)(3).

Class certification is only appropriate "if the trial court is satisfied, after a rigorous analysis," that each requirement of Rule 23 has been met. Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). "Class certification is an especially serious decision, as it 'is often the defining moment in class actions (for it may sound the "death knell" of the litigation on the part of plaintiffs, or create unwarranted pressure to settle non-meritorious claims on the part of the defendants).'" In re Constar Int'l Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009) (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 162 (3d Cir. 2001)).

The United States Court of Appeals for the Third Circuit has recently clarified what is meant by "rigorous analysis." Rigorous analysis requires "'a thorough examination of the factual and legal allegations,'" Hydrogen Peroxide, 552 F.3d at 316 (quoting Newton, 259 F.3d at 167), and the resolution of all legal or factual disputes relevant to Rule 23 by a preponderance of the evidence to "make findings that each Rule 23 requirement is met or is not met," id. at 320. In other words, we must find, based on "all relevant evidence and arguments presented by the parties," that "the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 23." Id. The district court's findings, while conclusive with respect to class certification, do not bind the fact-finder on the merits. Id.; see also In re New Motor Vehicles Can. Exp. Antitrust Litig., 522 F.3d 6, 24 (1st Cir. 2008); In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006) ("In re IPO"); Unger v. Amedisys, Inc., 401 F.3d 316, 323 (5th Cir. 2005).

Although a district court inquires into the merits of the case insofar as "arguments that go to the merits of a plaintiff's cause of action... also implicate the class certification decision," Jackson v. Se. Pa. Transp. Auth., 260 F.R.D. 168, 184 (E.D. Pa. 2009), such an inquiry is merely preliminary. Hydrogen Peroxide, 552 F.3d at 317. A plaintiff need not establish by a preponderance of the evidence the merits of its claims at the class certification stage, and any inquiry into the merits that is not necessary to a Rule 23 decision is precluded. Jackson, 260 F.R.D. at 184 (citing Newton, 259 F.3d at 166-67, and Hydrogen Peroxide, 552 F.3d at 317-18). However, the movant must do more than "assur[e]... the court that it intends or plans to meet the requirements" of Rule 23. Hydrogen Peroxide, 552 F.3d at 318; see also Wachtel v. Guardian Life Ins. Co., 453 F.3d 179, 186 (3d Cir. 2006) (holding that there must be "full and clear articulation of the litigation's contours at the time of class certification").

As with other matters relating to Rule 23 requirements, "[e]xpert opinion... calls for rigorous analysis." Hydrogen Peroxide, 552 F.3d at 323, 325 ("Rule 23 calls for consideration of all relevant evidence and arguments, including relevant expert testimony of the parties."). A district court must not uncritically accept expert opinion testimony "as establishing a Rule 23 requirement merely because [it] holds the testimony should not be excluded, under Daubert or any reason." Id. at 323. Performing a rigorous analysis may require the district court to weigh conflicting expert testimony at the certification stage and determine whether an expert's opinion is persuasive or unpersuasive. Id. at 323, 324 (noting that "a district court may find it unnecessary to consider certain expert opinion with respect to a certification requirement, but it may not decline to resolve a genuine legal or factual dispute" relevant to class certification); see also In re IPO, 471 F.3d at 42 (disavowing an earlier holding "that an expert's testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed"); Blades v. Monsanto Co., 400 F.3d 562, 575 (8th Cir. 2005). The court must resolve expert disputes to the extent necessary to determine whether a Rule 23 requirement has been satisfied even if the dispute implicates the credibility of one or more experts. Id. at 324.

B. Rule 23(b)(3) Predominance Requirement

Predominance requires that "'[i]ssues common to the class must predominate over individual issues.'" Hydrogen Peroxide, 552 F.3d at 311 (quoting In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283, 313-14 (3d Cir. 1998)). The district court must "consider whether plaintiff's legal claim, if plausible in theory, 'is also susceptible to proof at trial through available evidence common to the class.'" Jackson, 260 F.R.D. at 184 (quoting Hydrogen Peroxide, 552 F.3d at 325). The district court's analysis of predominance "is especially dependent upon the merits of a plaintiff's claim," Constar, 2009 WL 3462032 at *3, since "the nature of the evidence that will suffice to resolve a question determines whether the question is common or individual." Hydrogen Peroxide, 552 F.3d at 311 (quoting Blades, 400 F.3d at 566). Accordingly, "'a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.'" Id. (quoting In re New Motor Vehicles Can. Exp. Antitrust Litig., 522 F.3d 6, 20 (1st Cir. 2008)).

Notwithstanding the Supreme Court's observation that "[p]redominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws," Amchem, 521 U.S. at 625, the district court should not "relax its certification analysis, or presume a requirement for certification is met, merely because a plaintiff's claims fall within one of those substantive categories." Hydrogen Peroxide, 552 F.3d at 322. Therefore, "the court should not suppress 'doubt' as to whether a Rule 23 requirement is met -- no matter the area of substantive law. Id. "'If proof of the essential elements of the cause of action requires individual treatment, then class certification is unsuitable." Id. at 311 (quoting Newton, 259 F.3d at 172).

To prevail on its antitrust claim, the Class must prove the following elements: (1) violation of § 1 of the Sherman Act; (2) individual injury or impact resulting from that violation; and (3) measurable damages. Hydrogen Peroxide, 552 F.3d at 311. At the class certification stage, the Class must establish that common proof will predominate with respect to each of these elements. Weisfeld v. Sun Chem. Corp., 210 F.R.D. 136, 141 (D.N.J. 2002). With respect to antitrust impact, the Court of Appeals for the Third Circuit has explained:

Individual injury (also known as antitrust impact) is an element of the cause of action; to prevail on the merits, every class member must prove at least some antitrust impact resulting from the alleged violation. In antitrust cases, impact often is critically important for the purpose of evaluating Rule 23(b)(3)'s predominance requirement because it is an element of the claim that may call for individual, as opposed to common, proof. Plaintiffs' burden at the class certification stage is not to prove the element of antitrust impact, although in order to prevail on the merits each class member must do so. Instead, the task for plaintiffs at class certification is to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members. Deciding this issue calls for the district court's rigorous assessment of the available evidence and the method or methods by which plaintiffs propose to use the evidence to prove impact at trial.

Hydrogen Peroxide, 552 F.3d at 311-12 (citations omitted).

III. COMMON EVIDENCE OF ANTITRUST IMPACT

The Class asserts that it can establish its antitrust claims through the following common evidence of antitrust impact applicable to all class members:

! Comcast's swaps and transactions in the relevant geographic market,*fn8 the Philadelphia designated marketing area ("DMA"), eliminated competition, resulting in increased prices for expanded basic cable subscribers;

! Comcast's clustering of the Philadelphia DMA led to higher expanded basic cable rates throughout the DMA, affecting all class members;

! Comcast's clustering strategy made it profitable for Comcast to deny access to its regional sports programming content, Comcast SportsNet Philadelphia ("CSN Philadelphia"), to DirecTV and EchoStar, its direct broadcast satellite ("DBS") competitors, resulting in decreased DBS penetration in the Philadelphia DMA, which led to increased expanded basic cable prices to all class members;

! Comcast's clustering has impaired the ability of overbuilders (rival wireline providers of multichannel video programming service), such as competitor RCN, to effectively compete in the Philadelphia DMA, resulting in higher rates paid by all class members; and

! widely accepted common methodologies are available to measure and quantify damages on a class-wide basis.

! The January 2001 swap agreement with Adelphia Communications Corp., wherein Comcast obtained cable systems and approximately 464,000 subscribers located primarily in the Philadelphia area and adjacent New Jersey areas. In exchange, Adelphia received Comcast's cable systems and subscribers located in Palm Beach, Florida and Los Angeles, California.

! The April 2001 swap agreement with AT&T, wherein Comcast obtained cable systems and approximately 595,000 subscribers, including subscribers located in Pennsylvania and New Jersey.

! The August 2006 swap agreement with Time Warner in connection with the Adelphia bankruptcy, wherein Comcast obtained cable systems and approximately 41,000 subscribers in the Philadelphia DMA.

! The August 2007 acquisition of Patriot Media and its 81,000 cable subscribers located in New Jersey, within the Philadelphia DMA. (Mem. in Supp. of Pls' Am. Mot. for Cert. of the Philadelphia Class at 9; Williams Decl. ¶ 108.) Dr. Williams opines that the relevant product market is multichannel video programming services distributed by multichannel video programming distributors ("MVPDs"), including cable companies, local exchange carriers ("LECs")*fn9, and DBS providers. (Williams Decl. ¶ 22.) He states that the relevant geographic market is the Philadelphia DMA. (Id. ¶ 27.) Dr. Williams attempts to show that Comcast possesses market power in the relevant geographic market and product market by conducting a market structure analysis. He then conducts a market performance analysis to determine the results of Comcast's attaining and maintaining its market power. In his market structure analysis, Dr. Williams examines the effects of the swaps and acquisitions on Comcast's market share, the level of market concentration in the Philadelphia DMA, and barriers to entry. (Id. ¶ 111.) In his market performance analysis, Dr. Williams examines Comcast's alleged ability to charge rates above those that would prevail in the absence of the alleged anticompetitive conduct. (Id. ¶ 126.)

A. The Geographic Market

Dr. Williams states seven bases to support his conclusion that the relevant geographic market is the Philadelphia DMA.

1. Denial of access to CSN Philadelphia is based on the Philadelphia DMA

Dr. Williams' first economic explanation for his geographic market description follows from his analysis of the effect of Comcast's denial of CSN Philadelphia to the DBS providers. Dr. Williams finds that Comcast had an economic incentive to deny CSN Philadelphia to the DBS providers because of the percentage of subscribers it maintained in the Philadelphia DMA. He reasons that if Comcast had a sufficiently small percentage of subscribers in the Philadelphia DMA, it would not be profitable for the company to deny access to the DBS providers because the loss in forgone revenue on sales of CSN Philadelphia to the DBS providers would be greater than the gain in revenue on sales of multichannel video programming service to the incremental number of subscribers who would have switched to DBS had Comcast not denied access to CSN Philadelphia. Dr. Williams finds that Comcast's increase in its percentage of subscribers in the Philadelphia DMA through swaps and acquisitions made it profitable for Comcast to deny DBS providers access to CSN Philadelphia. He also finds that econometric evidence shows that, all else equal, denying access to CSN Philadelphia reduced DBS penetration rates in the Philadelphia DMA, and that, all else equal, reductions in DBS penetration rates led to higher rates for expanded basic cable service throughout the Philadelphia DMA. (Id. ¶¶ 28-29.)

2. Effect of Ownership by a Large Multi-System Operator

Dr. Williams' second economic basis for his geographic market definition follows from his analysis of how a cable system's rates change, all else equal, when it is owned by a large multi-system operator ("MSO") or becomes part of a cluster. He states that econometric evidence shows that, all else equal, cable systems affiliated with a large MSO generally have higher rates than other cable systems. Williams contends that a number of the cable systems acquired or swapped by Comcast in the Philadelphia DMA were not affiliated with a large MSO prior to becoming affiliated with Comcast, which was a large MSO. (Id. ¶ 30.) He states that econometric evidence also shows that, all else equal, cable systems owned by an MSO that are located in a geographic "cluster" generally have higher rates than other cable systems. Comcast's swaps and acquisitions in the Philadelphia DMA created such a cluster. Thus, Comcast's conduct led to rates being increased or maintained above the level that would prevail in the absence of that conduct throughout the Philadelphia DMA. (Id.)

Comcast disputes this portion of Dr. Williams' opinion, arguing that it is not supported by fact. It asserts that large portions of the Philadelphia DMA were already controlled by clustered MSOs before the swaps and acquisitions. The class certification record demonstrates that large portions of the DMA were, in fact, already controlled by MSOs. For example, Comcast acquired substantial cable assets in the DMA through its purchase of Lenfest, itself a large, clustered MSO.*fn10 (Williams Reply Decl. fig.5.) Acquisitions and swaps from AT&T, Adelphia and Time Warner also brought systems into Comcast ownership that were previously part of large MSOs. See footnote 8, supra. This does not, however, impeach Dr. Williams' assertion that the end result of the swaps and acquisitions created an antitrust impact in the relevant geographic market. The fact that parts of the DMA were already clustered does not eliminate the possibility that creating an even larger cluster had anticompetitive effects. As Dr. Williams asserts in his market performance analysis, consolidating the Philadelphia cluster from the cable properties previously owned by these MSOs and other smaller cable companies permitted Comcast to charge supra-competitive prices for expanded basic cable service in the geographic market.

3. Overbuilders

The third explanation that Dr. Williams provides for his geographic market definition follows from his analysis of how a cable system's rates change, all else equal, when it faces competition from overbuilders. His economic analysis shows that Comcast's alleged anticompetitive conduct in the Philadelphia DMA reduced the extent of competition provided by overbuilders in the Philadelphia DMA. He states that econometric evidence shows that reductions in overbuilding cause cable rates to increase, all else equal. Thus, Comcast's conduct led to rates being increased or maintained above the level that would prevail in the absence of that conduct throughout the Philadelphia DMA. (Williams Decl. ¶ 31.)

4. Benchmark Competition

Dr. Williams' fourth basis follows from an analysis of how "benchmark competition" affects cable rates. Benchmark competition occurs when competition in a market is enhanced by the actions of regulators, firms, and/or customers in comparing the performance of different companies. He opines that both cable regulators and cable customers rely on, and cable companies engage in, benchmark competition. In his opinion, Comcast's swaps and acquisitions in the Philadelphia DMA reduced the degree of benchmark competition. Reductions in benchmark competition, all else equal, cause cable rates to increase. Thus, Comcast's conduct led to rates being increased or maintained above the level that would prevail in the absence of that conduct throughout the Philadelphia DMA. (Id. ¶ 32.)

5. Industry Participants Use DMAs

Fifth, Dr. Williams opines that industry participants characterize competition between MVPDs as occurring in DMAs. (Id. ¶ 33.)

6. Clustering

The sixth basis for Dr. Williams' conclusion follows from an economic analysis that demonstrates how swaps and acquisitions by an MSO that cause clustering can reduce overbuilding and lead to higher profits and higher rates. He opines that Comcast's swaps and acquisitions in the Philadelphia DMA created such a cluster. Thus, Comcast's conduct led to rates being increased or maintained above the level that would prevail in the absence of that conduct throughout the Philadelphia DMA. (Id. ¶ 34.)

7. Increased Bargaining Power

Finally, Dr. Williams bases his geographic market definition on an economic analysis that demonstrates how a cable provider's increasing the number of its cable systems or clustering its cable systems can increase its bargaining power and lead to higher profits and higher rates. He opines that Comcast's swaps and acquisitions in the Philadelphia DMA increased its number of cable systems and created such a cluster. Thus, Comcast's conduct led to rates being increased or maintained above the level that would prevail in the absence of that conduct throughout the Philadelphia DMA. He opines that a hypothetical monopolist of MVPD services in the Philadelphia DMA would find it profitable to impose a small but significant and nontransitory increase in price ("SSNIP"). (Id. ¶ 35.)

Comcast's expert, Dr. Teece, disagrees with Dr. Williams' opinion that the Philadelphia DMA is the proper geographic market. Dr. Teece notes that the Third Amended Complaint defines the relevant geographic market as the Comcast Philadelphia cluster, not the Philadelphia DMA. (Teece Reply Decl. To Class Cert. ¶ 8 ("Teece Reply Decl.").) He goes further to propose that the relevant geographic market for expanded basic cable service is inherently local and may be as small as individual households because, in the MVPD industry, there is no demand-side substitutability between adjacent geographic areas. This is because consumers are extremely unlikely to move to a different franchise area because of higher cable prices or lower quality service. (Id. ¶ 9.) However, because it is impractical to define a market at the household level, Teece opines that the FCC calculates market share using franchise area.*fn11 (Id.) He concedes that the DMA level may be appropriate to assess regional sports programming, because interest in regional sports roughly approximates the DMA. However, he asserts, such issues are distinct from the allegations of the Third Amended Complaint. (Id. ¶ 11.)

According to Dr. Teece, six of Dr. Williams' seven economic bases for his market definition are nothing more than a restatement of the conduct that he claims is anticompetitive. (Id. at 16.) He opines that none of these bases provide an adequate explanation for asserting that the Philadelphia DMA is the proper geographic market because (1) there is substantial variation in the MVPD choices available to individual consumers in the Philadelphia DMA including DBS and FiOS; (2) there is substantial variation in MVPD subscriber shares across the DMA; and (3) variations in cable prices across local areas indicates variation in competitive conditions across the DMA. (Id. ¶¶ 19-29.)

We conclude that Dr. Williams' geographic market definition is susceptible to proof at trial through available evidence common to the class. Dr. Teece's focus on the individual household is not supported by the record. Setting the geographic market at a unit that small would be both impractical and inefficient. Thus, in its examination of cable markets, the FCC aggregates relevant geographic markets in which customers face similar competitive choices. The conduct at issue here centers on Comcast's attempt to acquire substantially all of the cable systems in the Philadelphia DMA. Because the record evidence shows that consumers throughout the DMA can face similar competitive choices and suffer the same alleged antitrust impact resulting from Comcast's clustering conduct in the Philadelphia DMA, we find that it can be the appropriate geographic market definition.

B. Market Structure Analysis

In his market structure analysis, Dr. Williams concludes that Comcast's swaps and acquisitions in the Philadelphia DMA eliminated actual or potential competition in the relevant market. Through clustering, achieved via the swaps and acquisitions, Comcast increased its share of the relevant market, leading to higher rates throughout the Philadelphia DMA. Dr. Williams asserts that Comcast's clustering strategy made it profitable for it to deny DBS providers access to CSN Philadelphia, that the inability of DBS providers to offer CSN Philadelphia reduced their penetration rates in the Philadelphia DMA, and that the reduction in DBS penetration in the Philadelphia DMA caused increases in the rates for expanded basic cable service paid by Comcast's subscribers throughout the Philadelphia DMA. According to Dr. Williams, Comcast's clustering also created an antitrust barrier to the entry of competitors, including overbuilders, and reduced or eliminated benchmark competition, resulting in higher rates paid by Comcast's subscribers throughout the Philadelphia DMA. (Williams Decl. ¶ 108.) Williams suggests that this analysis shows that consumer harm was not limited to only those Comcast subscribers located in franchise areas in which overbuilding was likely to occur but for the alleged anticompetitive conduct. Rather, he asserts that the alleged anticompetitive conduct resulted in higher rates for all Comcast subscribers throughout the Philadelphia DMA, and that Comcast's anticompetitive conduct injured all class members, because the swaps and acquisitions removed competitors, raised entry barriers, and enabled Comcast to acquire, maintain, and exercise monopoly power throughout the Philadelphia DMA. (Id. ¶¶ 109-10.)

Williams opines that, as a result of its swaps and acquisitions, Comcast was able to increase its market share in the Philadelphia DMA from 23.9% in 1998 to a high water mark of 77.8% in the second quarter of 2002, ending at 69.5% in 2007. As a result of Comcast's swaps and acquisitions, its Herfindahl-Hirschman Index ("HHI") increased from a value of 1,833 in 1998 to a range between 6,148 to 6,178 in the second quarter of 2002, ending in the range between 5,069 to 5,263 in 2007.*fn12

Dr. Williams opines that there exist substantial antitrust barriers to entry into the relevant market because MVPD providers, both wire-based and satellite, incur substantial sunk capital costs in building their networks and must spend significant resources on advertising. He reports that the FCC has determined that entry barriers may include: (1) strategic behavior by an incumbent designed to raise its rival's costs, (2) local and state level regulations which may cause new entrants to incur a delay in gaining access to local public rights-of-way facilities; and (3) technological limitations. (Id. ¶ 118.)

Finally, Dr. Williams concludes that the swaps and acquisitions allocated the geographic market because Comcast competed with cable companies that previously operated in the Philadelphia DMA for both (1) the award of original cable franchises and (2) the purchase of cable systems in the Philadelphia DMA. (Id. ¶ 121.)*fn13 He opines that the market allocations have diminished competition in the Philadelphia DMA and, because the market allocations were subject to the non-compete agreements, Comcast has the means, from an economic perspective, of enforcing the market allocations by contract, making re-entry unlikely. (Id. ¶¶ 120-24.)

We accept in part and reject in part Dr. Williams' market structure analysis as proof of antitrust impact that can be shown by evidence common to the class. First, we reject his market allocation contention based upon the assertion that the acquired cable companies that previously operated in the Philadelphia DMA competed with Comcast for the award of original cable franchises. Dr. Williams' "elimination of competition in the award of initial franchises" theory is not relevant to a market structure analysis for this Class's claims because almost all of the original franchise bids occurred well before the commencement of the class period on December 1, 1999. (Teece Reply Decl. ¶ 148; Besen Decl. ¶¶ 24-25; N.T. 10/26/09 at 121:3-7.*fn14 ) For example, the franchises in the City of Philadelphia were awarded in 1995. Once the franchises were awarded, which was prior to the class period, there was no further competition for these awards. Accordingly, the theory of class-wide impact based upon elimination of competition in the award of initial franchises is based on events that fall outside the class period.

Second, we reject Williams' contention that the non-compete clauses contained in the acquisition agreements made re-entry by the acquired firms into the Philadelphia DMA unlikely because this theory is not fully supported by the record or the case law. While the acquisition agreements contained non-compete clauses, the swap transactions did not. Further, as Comcast points out, the time periods contained in those non-compete agreements were limited and the Class has not shown that a single counter-party ever sought to re-enter the DMA after a non-compete agreement expired. More significantly, non-compete agreements executed upon the sale of a business are generally not recognized as antitrust violations. See Eichorn v. AT&T Corp., 248 F.3d 131, 145 (3d Cir. 2001) (stating that, as early as 1899, courts have recognized that covenants not to compete are not violations of § 1 of the Sherman Act; covenants not to compete executed upon the legitimate transfer of ownership of a business are ancillary restraints on trade and, so long as these covenants are reasonable in scope, there is no antitrust violation under the rule of reason).

With those caveats, we conclude that the Class has demonstrated that Dr. Williams' market structure analysis is susceptible to proof at trial through ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.