Supreme Court Continues To Push The Envelope For Merits Determinations

The Supreme Court's 5-4 decision last week to overturn the certification of a class of cable television subscribers is extraordinary—not because it continues the Court's exhortations to lower courts to make merits determinations at the class certification stage, but because of the level of merits-related scrutiny the Court is now requiring.

In Comcast Corp. v. Behrend, the plaintiffs alleged that Comcast violated the federal antitrust laws through a "clustering scheme" that systematically increased Comcast's share of subscribers in the Philadelphia-area through the targeted acquisition of cable systems within the area. The scheme allegedly eliminated competition among cable service providers in the Philadelphia area and resulted in artificially high prices.