IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAROLINE BEHREND, et al. : CIVIL ACTION

:

:

v. :

:

:

COMCAST CORPORATION, et al. : NO. 03-6604

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

JACK ROGERS, et al. : CIVIL ACTION

:

:

v. :

:

:

COMCAST CORPORATION, et al. : NO. 07-218

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MARTHA KRISTIAN, et al. : CIVIL ACTION

:

:

v. :

:

:

COMCAST CORPORATION, et al. : NO. 07-219

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

ORDER - MEMORANDUM

AND NOW, this day of September, 2007, IT IS HEREBY ORDERED that:

1. The Court’s Order of August 31, 2007 is VACATED.

2. The Defendants’ Motion for Leave to File a Reply Memorandum (Docket Entries 03-6604,

No. 227; 07-218, No. 14) is GRANTED.

3. The Defendants’ Motion Pursuant to 28 U.S.C. § 1292(b) to Certify Question (Docket

Entries 03-6604, No. 224; 07-218, No. 11) is DENIED.

Case 2:03-cv-06604-JP Document 229 Filed 09/11/07 Page 1 of 5
-2-

On August 15, 2007, Defendant Comcast Corporation filed a motion pursuant to 28 U.S.C.

§ 1292(b) to certify for interlocutory appeal the Court’s Order of July 31, 2007, which denied

Comcast’s motion for judgment on the pleadings in the Philadelphia / Chicago action, and its motion

to dismiss the Boston action. On September 4, 2007, the Court entered an Order denying the §

1292(b) motion. The September 4, 2007 Order was entered before the Court received Comcast’s

motion for leave to file a reply brief. For the reasons that follow, we vacate our order of September

4, 2007, but conclude anew that the motion to certify an interlocutory appeal must be denied.

Under 28 U.S.C. § 1292(b), an otherwise non-appealable order may be certified for

immediate interlocutory appeal where: 1) the decision involves a controlling question of law; 2)

there is substantial ground for difference of opinion with respect to that question; and 3) immediate

appeal may materially advance the ultimate termination of the litigation. See Zenith Radio Corp.

v. Matsushita Elec. Indus. Co., 478 F. Supp. 889, 943 (E.D. Pa. 1979) order vacated on other

grounds, 631 F.2d 1069 (3d Cir. 1980) (quoting 28 U.S.C. § 1292(b)). The decision to certify an

order for appeal under § 1292(b) lies within the sound discretion of the trial court. Fox v. Horn, Civ.

A. No. 98-5299, 2000 U.S. Dist. LEXIS 3106, at *3 (E.D. Pa. Mar. 13, 2000). Certification is only

appropriate in “exceptional” cases. Thornbury Noble, Ltd. v. Thornbury Twp., Civ. A. No. 99-6460,

2002 U.S. Dist. LEXIS 4698, at *60 (E.D. Pa. Mar. 20, 2002) (citing Piazza v. Major League

Baseball, 836 F. Supp. 269, 270 (E.D. Pa. 1993). In exercising our discretion, we must be mindful

of the strong policy against piecemeal appeals. Orson, Inc. v. Miramax Film Corp., 867 F. Supp.

319, 321 (E.D. Pa. 1994) (citing Piazza, 836 F. Supp. at 270). In evaluating these factors, “the court

must remember that . . . [a] motion should not be granted merely because a party disagrees with the

ruling of the district judge.” Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282 (E.D. Pa. 1983);

Case 2:03-cv-06604-JP Document 229 Filed 09/11/07 Page 2 of 5
Comcast, in its opening brief, stated: 1

on remand from the Third Circuit, the scope of the remaining

Philadelphia cluster case would be dramatically curtailed, leaving to

be decided Section 2 claims premised upon conduct allegedly directed

against RCN, an overbuilder present in only a fraction of the putative

Philadelphia cluster. The claims asserted in the Boston case would

also be subject to dismissal on the same ground.

(Def. Mem. 2-3). It was on the basis of this language, as emphasized by the Plaintiffs’ in their

responsive pleading, that the Court originally determined that Comcast had failed to state a

controlling question of law because a substantial portion of the claims would remain unresolved by

the interlocutory appeal. See Piazza v. Major League Baseball, 836 F. Supp. 269, 271 (E.D. Pa.

1993) (noting that courts should be “particularly cautious” in certifying a controlling issue as to only

one count of a multi-count complaint). In its Reply Brief, Comcast persuasively argues that the

scope of an interlocutory appeal would encompass the majority of claims contained in the

Complaint. (Def. Reply Mem. 3-5.)

-3-

see also United States v. Grand Trunk Western R. R. Co., 95 F.R.D. 463, 471 (W.D. Mich. 1981)

(denying certification because the moving party “merely questions the correctness” of the court’s

ruling). Rather, the party seeking certification has the burden of “establishing that exceptional

circumstances warrant departure from the general policy against piecemeal litigation and in favor

of postponing appellate review until after the entry of final judgment.” Weaver v. Mobile

Diagnostech, Inc., Civ. A. No. 02-1719, 2007 WL 2463411, *2 (W.D. Pa. Aug. 28, 2007).

Our July 31, 2007 Order applied the recently announced standard of Bell Atlantic Corp. v.

Twombly, 127 S.Ct. 1955 (2007), to find that the Philadelphia/Chicago and Boston Complaints

alleged facts sufficient to show an “agreement” was made to impose horizontal market divisions in

violation of section 1 of the Sherman Act, and sufficiently alleged attempted monopolization claims

under section 2 of the Sherman Act. While we improperly characterized Defendants’ argument in

its moving brief as a concession that interlocutory review would only encompass the section § 1

claims, we must again conclude that Comcast has failed to meet its burden of showing that our 1

application of Twombly qualifies as an “exceptional” case sufficient to overcome the policy against

Case 2:03-cv-06604-JP Document 229 Filed 09/11/07 Page 3 of 5
-4-

piecemeal appeals. 

A “controlling question of law” is one that “would result in a reversal of a judgment after

final hearing.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). The emphasis is on

whether a different resolution of the issue would eliminate the need for trial. FDIC v. Parkway Exec.

Office Ctr., Civ. A. No. 96-122, 1997 U.S. Dist. LEXIS 14939, at *7 (E.D. Pa. Sept. 24, 1997). As

we stated in addressing an earlier motion in this matter to certify an interlocutory appeal,

“[s]ubstantial grounds for difference of opinion [on a controlling question of law] exist when there

is genuine doubt or conflicting precedent as to the correct legal standard.” Glaberson v. Comcast

Corp., Civ. A. 03-6604, 2006 WL 3762028, at *13 (E.D. Pa. Dec. 19, 2006). Comcast does not

argue that there is a genuine doubt that Twombly was the correct legal standard. Rather, it seeks to

immediately appeal our application of that standard, arguing that the Plaintiffs’ two Complaints only

make repeated bald allegations that the swap transactions eliminated competition and removed actual

and potential competitors without providing the necessary factual averments in support of those

conclusory allegations. (Def. Reply Mem. at 5-6.) Our original decision rejected this argument,

finding that the facts actually pled in the Philadelphia/Chicago and Boston Complaints contained

sufficient averments to constitute notice to Comcast of the legal claims asserted, and contained a

statement of the elements of those claims, along with allegations of the defendant’s underlying

conduct that, if proven, would plausibly demonstrate those elements. Specifically, our decision

accepted as well-pled allegations that, following the acquisition ofsmall competing systems by both

Comcast and AT&T Broadband, Comcast entered into actual agreements to swap its Chicago-area

subscribers for AT&T Broadband’s Philadelphia-area subscribers, removing AT&T Broadband as

a competitor in the Philadelphia market and Comcast in the Chicago market. Behrend v. Comcast

Case 2:03-cv-06604-JP Document 229 Filed 09/11/07 Page 4 of 5
In reaching our determination, we rejected Comcast’s construction of the Plaintiffs’

2

Complaints that, because the small competing cable operators were granted franchises by

municipalities and no acquired operator actually or potentially competed with Comcast within the

designated franchises, there was a lack of any allegation of actual or potential competition. While

Comcast contended that Twombly mandated that allegations of merely potential competition were

insufficient to state an antitrust claim because the mere potentiality of competition may give rise to

non-plausible inferences, we found no cause to conclude that the Supreme Court in deciding

Twombly – a case addressing a Sherman Act § 1 liability theory – intended to alter its decisions in

United States v. Falstaff Brewing Corp., 410 U.S. 526 (1973) and United States v. Marine

Bancorporation, 418 U.S. 602 (1974), recognizing potential competition as a viable theory of liability

under § 2 of the Sherman Act. Behrend at *5, n.7. 

-5-

Corp., Civ. A. 03-6604, 2007 WL 2221415, *5 (E.D. Pa. July 31, 2007). We determined that these

facts adequately stated a claim under § 1 of the Sherman Act based upon an agreed division of

markets between competitors in order to suppress competition. Id. We also found these factual

allegations were sufficient to state a claim of attempted monopolization under § 2 of the Sherman

Act. Id. These findings are the type that district courts routinely make in adjudicating motions to 2

dismiss complaints for failure to state claims upon which relief may be granted. Although the legal

precedent the Court applied was newly restated by the Supreme Court, the task of distinguishing

between well pled facts and conclusory allegations was not thereby made “exceptional” so as to

overcome the policy against piecemeal appeals, particularly where, as here, the Plaintiffs alleged

actual agreements, not merely parallel conduct, as the basis of their claims. See id. (distinguishing

between the allegations of parallel conduct at issue in Twombly and allegations here of actual

agreements between Comcast and its competitors).

BY THE COURT:

/s/ John R. Padova 

 

John R. Padova, J.

Case 2:03-cv-06604-JP Document 229 Filed 09/11/07 Page 5 of 5