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Caroline Behrend, et al. v. Comcast Corporation

September 25, 2012


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


Presently before the Court is Class Plaintiffs' Motion to Enforce Settlement. We heard argument on the Motion on August 21, 2012. For the following reasons, we deny the Motion.


On June 11, 2012, the parties to this antitrust class action signed an "Outline Sheet of Proposed Settlement Key Terms." (Barnett Decl. Ex. E. ("Term Sheet"); Stipulation of Undisputed Facts and Documents ("Stip.") at ¶ 7.*fn1 ) The document's preamble states that "Subject to confirmation by the Parties to the Mediator (with copies to the other side) on June 12, 2012, agreement in principle on the following terms, which all participants in the mediation have committed to recommend." (Id. (parenthetical in original).) The Term Sheet lists nine terms: (1) a total price term, one-third of which is to be paid in cash, and two-thirds of which is to be paid in services; (2) a release term calling for "All-in for releases in a form satisfactory to counsel from Chicago, Boston, and Philadelphia classes"; (3) a proviso that the price term "[i]ncludes all amounts -- including but not limited to attorneys fees, costs and expenses, costs of notice and administration, service fees, if any"; (4) a term providing for allocation of the total settlement fund among all subscribers in the three classes "per a plan of allocation to be submitted to court by class counsel"; (5) a statement that the "specifics of [the] services portion [were] to be negotiated," with the parties designating a non-exclusive list of services that might be offered to class members, and a proviso that "Default services to be discounts for add-ons, specifics to be negotiated"; (6) "No reverter" of settlement funds to Comcast; (7) a provision that the value of the "services" portion of the settlement is "to be monetized for attorneys fee award on a 'dollar for dollar' basis" and "[i]f counsel are unable to negotiate attorneys fees in 14 day [sic], it will be submitted to Judge Padova;" (8) a completion date for drafting settlement papers; and (9) a provision for "Counsel to jointly request the trial date in Philadelphia to be vacated upon immediate notification to the court of pending settlement." (Id.)

The Term Sheet resulted from settlement negotiations with a private mediator, Professor Eric D. Green of Resolutions, LLC. (Barnett Decl. ¶ 5; Seshens Decl. ¶ 3.) The mediation took place in Green's office in Boston on June 11, 2012, and lasted from 9:00 a.m. to 10:00 p.m.*fn2 (Barnett Decl. ¶ 5.) Green drafted the Term Sheet. (Id.) The Term Sheet was signed by Thomas R. Nathan, Comcast's Senior Vice President and General Counsel, as well as by its trial counsel Michael Carroll and Sheron Korpus; Barry Barnett, David Woodward and Joseph Goldberg signed for the Class. (Stip. ¶ 7; Barnett Decl. at ¶ 6.)

At the time that the parties negotiated the Term Sheet, Comcast had a pending petition for writ of certiorari in the United States Supreme Court concerning this Court's order granting certification of the Philadelphia class. (Stip. ¶¶ 2-3; see Comcast Corp. v. Behrend, No. 11-864, 2012 WL 105558 (U.S. Jan. 11, 2012).) The petition was first listed for conference on March 16, 2012. On April 14, 2012, the Supreme Court reported that the petition was still under consideration and relisted it for conference on May 10, 2012. By June 11, 2012, the petition had been relisted five times and remained open. (Stip. ¶ 3.) At approximately 10:00 a.m. on June 11 -- the day the parties engaged in the mediation -- the Supreme Court again relisted the petition for conference on June 14, 2012. (Id. ¶ 4.) Both parties were aware on the morning of June 11 that the Supreme Court had relisted Comcast's petition. (Id. ¶ 5.) Also, at approximately 10:00 a.m. on June 11, 2012, the Supreme Court granted certiorari in another pending case, Amgen Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 132 S. Ct. 2742 (June 11, 2012), which also involved class certification issues and in which the certiorari petition briefing included a cross-reference to Comcast's then pending Petition. (Stip. ¶ 6; see Amgen Inc. v. Conn. Ret. Plans & Trust Funds, No. 11-1085, 2012 WL 707042, at *26 n.11 (U.S. Mar. 1, 2012)).

On June 12, 2012, counsel for each of the parties confirmed to the other party and to the mediator that they had authority from their respective clients to agree to the Term Sheet. (Stip. ¶ 8.) At 5:22 p.m., Barry Barnett emailed Professor Green that,

At the end of the mediation last night, the parties signed an outline of a tentative agreement in principle, subject to confirmation today of the negotiators' authority to commit preliminarily to the outline of terms.

I spoke by telephone a little while ago with Mike Carroll, who said he expects to receive confirmation from Comcast shortly and will forward it when he does.

With this understanding that Comcast will also provide its confirmation today, this confirms that the negotiators for class plaintiffs have authority to and do commit on behalf of class plaintiffs to the tentative agreement in the outline. (Barnett Decl. Ex. F.) At 5:25 p.m., Michael Carroll emailed: "I have now received the required authorization from Comcast." (Id.) Professor Green then emailed: "Confirmed on both sides. We have a settlement. Congratulations. Thanks to all for their fine work."*fn3 (Id.)

On June 13, 2012, at 12:23 a.m., Barnett emailed Carroll saying,

Our next task I think involves getting a first-blush reaction from Judge Padova to the agreement in principle and pivoting from there (assuming favorable feedback from the court) to taking the case off the trial calendar and the cert. calendar.

I think we both believe we should advise Judge Padova of the terms we propose in person. I could do that, and would prefer to do it, tomorrow (actually today now). Please let me know your thoughts on timing. (Barnett Decl. Ex. G.) Carroll emailed back at 10:24 a.m.,

Let's discuss this later this am. Today doesn't work for me. Cld do tmrrw but don't agree w idea that we are going to solicit padova's views/reaction. Think we are telling him we have a deal and ...

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