STANFORD GLABERSON, et al.
COMCAST CORPORATION, et al
Presently pending before the Court is the Motion of Comcast Corporation, et al. (“Comcast”) to strike the Plaintiffs’ Motion to recertify the Philadelphia class. (Doc. No. 564.) For the reasons that follow, we deny Comcast’s Motion and permit it to file a substantive response to the Plaintiffs’ Motion.
On March 27, 2013, the United States Supreme Court reversed the United States Court of Appeals for the Third Circuit’s affirmation of our decision granting Plaintiffs’ Motion to certify the Philadelphia class. Comcast Corp. v. Behrend, __ U.S. __, 133 S.Ct. 1426 (2013). In our decision, we had rejected all but one of the Class’s four proposed liability theories, finding only that the “overbuilding” theory was capable of proof through evidence common to the class. Behrend v. Comcast Corp., 264 F.R.D. 150, 174 (E.D. Pa. 2010). We went on to reject Comcast’s objection to the expert report of the Class’s damages expert, Dr. James McClave, and found that his damages model was evidence common to the class of antitrust impact. Id. at 184-91. The Third Circuit affirmed our decision, see Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011) (“the Third Circuit opinion”), but the Supreme Court held that the class action was improperly certified under Rule 23(b)(3). Comcast Corp., 133 S.Ct. at 1432.
The Supreme Court reasoned that a model that proposed to serve as evidence of damages in a class action must measure only damages attributable to the specific liability theory that the trial court has accepted. Id. at 1433 (stating that the Class’s “model purporting to serve as evidence of damages in this class action must measure only those damages attributable to [the overbuilding] theory”). Because the Class failed to present a methodology that limited the damages to only the overbuilding theory, the Court held that the Class had failed to satisfy the Rule 23(b)(3) predominance requirement with regard to antitrust impact. Id. (stating “respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class.”). The Court opined that Dr. McClave’s methodology could include damages that were not the result of the alleged wrong. Id. at 1434 (stating that, merely requiring at the class certification stage that the Class make assurances that it can prove antitrust impact and the resulting damages without labyrinthine individual calculations, is insufficient since “such assurance is not provided by a methodology that identifies damages that are not the result of the wrong”.) The Court concluded that because of the McClave model’s inability “to bridge the difference between supra-competitive prices in general and supra-competitive prices attributable to the deterrence of overbuilding, Rule 23(b)(3) cannot authorize treating subscribers within the Philadelphia cluster as members of a single class.” Id. at 1435.
Immediately following this concluding sentence, the Court inserted a footnote stating,
We might add that even if the model had identified subscribers who paid more solely because of the deterrence of overbuilding, it still would not have established the requisite commonality of damages unless it plausibly showed that the extent of overbuilding (absent deterrence) would have been the same in all counties, or that the extent is irrelevant to [have an] effect upon [the] ability to charge supra-competitive prices.
Id. at 1435 n.6 (parenthetical in original; bracketed material added). The Court then issued its disposition of the appeal, stating “The judgment of the Court of Appeals for the Third Circuit is reversed.” Id. at 1435. Notably, the Court did not specifically state that the case was remanded for further proceedings. In its Order returning the mandate to this court, the Third Circuit stated “In accordance with the remand of this case by the United States Supreme Court, it is ORDERED that the case is hereby summarily remanded to the United States District Court for the Eastern District of Pennsylvania for proceedings consistent with the Supreme Court’s opinion. . . .” (Doc. No. 546.)
On May 24, 2013, we set a status conference for June 19, 2013, and directed the parties to submit a joint status conference statement. In the statement, the parties identified a dispute between them concerning the meaning of the Supreme Court’s judgment. The Class contended that this “Court has the authority to consider the proposed motion for certification of a more modest class, ” based on the “long settled” rule of mandate that “a district court may consider any matter left open by the Supreme Court’s mandate.” Joint Statement at 2. It argued that “[n]othing in the Supreme Court’s majority decision or in the Third Circuit’s mandate precludes this Court’s consideration of the proposed motion for certification of a narrowed class” because only Dr. McClave’s previous damages model was under consideration, and the majority decision itself stated that “[w]ithout presenting another methodology, respondents cannot show Rule 23(b)(3) predominance.” Id. (quoting Comcast Corp., 133 S.Ct. at 1433). Comcast responded that the Supreme Court’s mandate “leaves no room for a third motion for class certification. The Third Circuit’s order affirming class certification was reversed, not vacated or remanded, and that deliberate choice precludes a third class motion, even as to a narrowed class.” Joint Statement at 7. Comcast argued that under the rule of mandate, an inferior court has no power or authority to deviate from the mandate issued by an appellate court, and the Supreme Court’s outright reversal was completely dispositive of whether the Class could ever meet Rule 23(b)(3).
Following the conference, we entered a scheduling order providing that the Class should submit a motion to recertify no later than August 19, 2013, appending to its submission any expert reports upon which it would rely. (Doc. No. 554.) We directed Comcast to file a response by September 19, 2013, and gave the Class the opportunity to file a reply brief by October 21, 2013. (Id.) The Class timely filed its motion (Doc. No. 560), and Comcast filed a Motion to Strike the Class’s Motion. (Doc. 564.)
In In re Sanford Fork & Tool Co., 160 U.S. 247 (1895), the United States Supreme Court outlined a lower court’s responsibility to follow an appellate court’s mandate when considering a case on remand:
When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded
Id. at 255. The lower court “may consider and decide any matters left open by the mandate of this court, ” and the “opinion delivered by this court at the time of rendering its decree may be consulted to ascertain what was intended by its mandate.” Id. at 256. Because any matter decided on appeal is considered “finally settled, ” id. at 255, lower courts must distinguish matters that have been decided on appeal, and are beyond their jurisdiction, from matters that were not decided on appeal. See EEOC v. Kronos Inc., 694 F.3d 351, 361-62 (3d Cir. 2012) (stating that district courts ‘“may consider, as a matter of first impression, those ...