IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_________________________________________ 

 ) 

CAROLINE BEHREND, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 03-6604 

 ) 

COMCAST CORPORATION, et al., ) 

 ) 

 Defendants. ) 

_________________________________________ ) 

NOTICE OF MOTION TO STAY TRIAL AND PRETRIAL PROCEEDINGS 

Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable 

Communications, Inc., Comcast Cable Communications Holdings, Inc., and Comcast Cable 

Holdings, LLC (collectively “Comcast”) move to stay trial and pretrial proceedings in the abovecaptioned matter pending resolution of Comcast’s appeal to the United States Supreme Court 

concerning class certification in this case. 

The grounds for this Motion are set forth in the accompanying Memorandum of Law. 

Dated: July 27, 2012 /s/ Darryl J. May 

Darryl J. May 

BALLARD SPAHR LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103-7599 

Telephone: (215) 665-8500 

Facsimile: (215) 864-8999 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 1 of 9
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Michael P. Carroll 

Arthur J. Burke 

Dana M. Seshens 

DAVIS POLK & WARDWELL LLP 

450 Lexington Avenue 

New York, New York 10017 

Telephone: (212) 450-4000 

Facsimile: (212) 701-5800 

Sheron Korpus 

KASOWITZ, BENSON, TORRES & FRIEDMAN 

LLP 

1633 Broadway 

New York, New York 10019 

Telephone: (212) 506-1700 

Facsimile: (212) 506-1800 

Attorneys for Defendants Comcast Corporation, 

Comcast Holdings Corporation, Comcast Cable 

Communications, Inc., Comcast Cable 

Communications Holdings, Inc., and Comcast 

Cable Holdings, LLC 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 2 of 9
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_________________________________________ 

 ) 

CAROLINE BEHREND, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 03-6604 

 ) 

COMCAST CORPORATION, et al., ) 

 ) 

 Defendants. ) 

_________________________________________ ) 

MEMORANDUM OF LAW IN SUPPORT OF COMCAST’S 

MOTION TO STAY TRIAL AND PRETRIAL PROCEEDINGS 

Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable 

Communications, Inc., Comcast Cable Communications Holdings, Inc., and Comcast Cable 

Holdings, LLC (collectively “Comcast”) respectfully submit this memorandum of law in support 

of their motion to stay trial and pretrial proceedings in the above-captioned matter. 

On Monday, June 25, 2012, the United States Supreme Court granted Comcast’s petition 

for a writ of certiorari in this case concerning class certification. The matter has been calendared 

for argument on November 5, 2012, and the Supreme Court ruling may result in the class being 

vacated or modified. Under these circumstances, the trial currently scheduled to begin on 

September 5, 2012 should be adjourned, and all related pretrial proceedings should be stayed, 

until the Supreme Court issues its ruling.1

 

 1

 The requested stay would not apply to plaintiffs’ pending Motion to Enforce Settlement 

Agreement (“Motion to Enforce”), which is not part of the pretrial proceedings. 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 3 of 9
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BACKGROUND

Following an evidentiary hearing in the fall of 2009, this Court certified a class of “[a]ll 

cable television customers who subscribe or subscribed at any time since December 1, 1999 to 

the present to video programming services (other than solely to basic cable services) from 

Comcast, or any of its subsidiaries or affiliates in Comcast’s Philadelphia cluster.” Behrend v. 

Comcast Corp., 264 F.R.D. 150, 191 (E.D. Pa. Jan. 7, 2010). 

Comcast appealed the Court’s certification of the Philadelphia class to the Third Circuit, 

arguing, inter alia, that the Court had erred in accepting plaintiffs’ proposed methodology for 

calculating class-wide damages because plaintiffs’ model failed to separate out damages 

purportedly caused by the single theory of antitrust impact deemed viable for trial—overbuilder 

deterrence. Instead, plaintiffs’ proposed damages model calculated damages based on all of 

plaintiffs’ antitrust impact theories, including those that had been dismissed from the case. On 

August 23, 2011, the Third Circuit affirmed the District Court’s certification in a 2-1 decision 

with Judge Jordan dissenting. Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011). 

On January 11, 2012, Comcast filed a petition for a writ of certiorari to the United States 

Supreme Court, in which Comcast argued, inter alia, that the Third Circuit’s decision was 

inconsistent with the Supreme Court’s recent opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541 (2011). On June 25, 2012, the Supreme Court granted Comcast’s petition and certified 

the following question for merits review: 

Whether a district court may certify a class action without resolving whether the 

plaintiff class has introduced admissible evidence, including expert testimony, to 

show that the case is susceptible to awarding damages on a class-wide basis. 

(Dkt. #516, Ex. A). Comcast’s appeal has been scheduled for argument on November 5, 2012, 

and merits briefing is set to begin on August 17, 2012. 

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 On June 29, 2012, plaintiffs’ filed their Motion to Enforce, which is presently pending 

before this Court.2 On June 30, 2012, the June 18, 2012 stay of certain pretrial deadlines 

expired.3 (Dkt. # 513.) According to the Court’s April 30, 2012 scheduling order, pretrial 

submissions, including pretrial memoranda, proposed voir dire questions, proposed jury 

instructions, and witness lists are now due no later than July 31, 2012. (Dkt. # 497.) 

ARGUMENT

JUDICIAL ECONOMY AND EFFICIENCY REQUIRE A STAY OF ALL PRETRIAL 

PROCEEDINGS AND VACATUR OF THE SEPTEMBER 5, 2012 TRIAL DATE 

A court’s authority to stay proceedings “is incidental to the power inherent in every court 

to control the disposition of the causes on its docket with economy of time and effort for itself, 

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also Stadler v. 

McCulloch, 882 F. Supp. 1524, 1527 (E.D. Pa. 1995) (internal citations omitted). The factors 

courts look to in deciding motions to stay include “whether the proposed stay would prejudice 

the non moving party, whether the proponent of the stay would suffer a hardship or inequity if 

forced to proceed and whether granting the stay would further the interest of judicial economy.” 

Airgas, Inc. v. Cravath, Swaine & Moore LLP, No. 10-612, 2010 U.S. Dist. LEXIS 15120, *7 

(E.D. Pa. Feb. 22, 2010) (citing Landis, 299 U.S. at 254-55); see also Stadler, 882 F. Supp. at 

 2

 The pendency of plaintiffs’ Motion to Enforce does not obviate the need for a stay in 

this case. The previous stay until June 30 has expired, and if the Motion to Enforce is denied, as 

Comcast believes it should be, then a new stay to accommodate the Supreme Court’s review will 

be required. But even if the Court were to grant plaintiffs’ Motion, then any settlement that is 

enforced would preclude a trial, rendering pretrial preparations unnecessary in any event. 

3

 Such deadlines include the time for plaintiffs to respond to Comcast’s June 8, 2012 

motions to exclude plaintiffs’ experts, Dr. Michael A. Williams and Dr. James T. McClave. 

Plaintiffs have not yet filed their opposition to those motions. 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 5 of 9
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1527 (“Courts must consider the time and effort of counsel and the litigants with a view toward a 

policy of avoiding piecemeal litigation.”) 

Courts regularly stay pending litigation in cases such as this involving Supreme Court 

review of a critical litigation issue. See, e.g., Conn. Ret. Plans & Trust Funds v. Amgen, Inc., No. 

09-56965, Dkt. # 72 (9th Cir. Jan. 12, 2012) (staying all proceedings until final disposition by 

Supreme Court of petition for certiorari on class certification issue); Dukes v. Wal-Mart Stores, 

Inc., No. 01-2252, Dkt. # 728 (N.D. Cal. Dec. 23, 2010) (staying all proceedings following 

Supreme Court’s grant of certiorari on class certification issue); Laster v. T-Mobile USA, Inc., 

No. 05-cv-1167, Dkt. # 305 (S.D. Cal. Feb. 1, 2010) (staying all proceedings pending Supreme 

Court review of arbitration issue following grant of certiorari). To otherwise proceed with 

litigation under such circumstances would thwart the interest of judicial economy and waste 

courts’ and parties’ time and resources, particularly where, as here, the case to be tried preSupreme Court appeal very easily could have to be re-litigated and re-tried post-Supreme Court 

appeal.4

 Cf. Stadler, 882 F. Supp. at 1527-28 (“We think it more sensible to await the Third 

Circuit’s decision and proceed accordingly, rather than charging forward, possibly to trial, 

knowing that we may be compelled to return to this point and begin anew.”) 

For these same reasons, courts also regularly stay pending litigation in cases where 

Supreme Court review of a relevant issue in a different case could have a significant impact on 

the matter being stayed. See, e.g., Burlington v. News Corp., No. 09-1908, 2011 U.S. Dist. 

LEXIS 1988, *5 (E.D. Pa. Jan. 10, 2011) (granting stay of upcoming trial where outcome of 

 4

 According to the SCOTUS blog, more than 70 percent of Supreme Court decisions 

resulted in reversal during the Court’s 2008, 2009, and 2010 Terms. See SCOTUSBlog Stat 

Pack, http://www.scotusblog.com/reference/stat-pack/ (last visited July 25, 2012) (Final 

StatPacks). A reversal by the Supreme Court on the class certification issue in this case would 

likely require the class to be de-certified at a minimum. 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 6 of 9
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pending Supreme Court case could necessitate a second trial, which would be “a waste of 

judicial resources and a waste of the parties’ time”); Schwartz v. Lawyers Title Ins., No. 09-841, 

2010 U.S. Dist. LEXIS 60623, *20 (E.D. Pa. June 18, 2010) (deeming the “prudent course of 

action” a stay of proceedings pending resolution of threshold subject matter jurisdiction issue in 

Pennsylvania Supreme Court); Freudberg v. Household Int’l, Inc., No. 05-1779, 2006 U.S. Dist. 

LEXIS 24765, *1-2 (E.D. Pa. Feb. 7, 2006) (staying litigation pending Pennsylvania Supreme 

Court decision in a different case as to whether same arbitration agreement was unconscionable). 

 This case is aptly suited for a stay pending the Supreme Court’s ruling on Comcast’s 

class certification appeal. Granting a stay will further the interest of judicial economy and avoid 

burdening the Court and the parties with potentially having to “begin anew” and try this case 

twice, but will not impose any prejudice or hardship on plaintiffs. This is not a case where there 

is discovery to be taken and a delay risks the loss of hard evidence and witness memory. Nor is 

this a case where a modest delay following ten years of litigation will have a material impact on 

the proceedings or where there are exigent circumstances requiring that a trial be held 

immediately. In short, there is no compelling reason not to grant a stay of proceedings under the 

circumstances presented here. 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 7 of 9
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CONCLUSION

For the foregoing reasons, Comcast respectfully requests that this Court vacate the 

September 5, 2012 trial date in the above-captioned matter and stay all proceedings until after the 

Supreme Court has ruled on Comcast’s pending appeal. 

Respectfully submitted, 

 /s/ Darryl J. May____ 

Darryl J. May 

BALLARD SPAHR LLP 

1735 Market Street, 51st Floor 

Philadelphia, Pennsylvania 19103-7599 

Telephone: (215) 665-8500 

Facsimile: (215) 864-8999 

Michael P. Carroll 

Arthur J. Burke 

Dana M. Seshens 

DAVIS POLK & WARDWELL LLP 

450 Lexington Avenue 

New York, New York 10017 

Telephone: (212) 450-4000 

Facsimile: (212) 701-5800 

Sheron Korpus 

KASOWITZ, BENSON, TORRES & 

FRIEDMAN LLP 

1633 Broadway 

New York, New York 10019 

Telephone: (212) 506-1700 

Facsimile: (212) 506-1800 

Attorneys for Defendants Comcast Corporation, 

Comcast Holdings Corporation, Comcast Cable 

Communications, Inc., Comcast Cable 

Communications Holdings, Inc., and Comcast 

Cable Holdings, LLC 

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 8 of 9
CERTIFICATE OF SERVICE

The undersigned attorney certifies that, on this date, he caused to be served copies of 

Comcast’s Motion to Stay Trial and Pretrial Proceedings by ECF filing.

Dated: July 27, 2012

/s/ Darryl J. May

Case 2:03-cv-06604-JP Document 529 Filed 07/27/12 Page 9 of 9