103198 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Stanford Glaberson, et al., ) Civil Action No. 03-6604 

 ) 

 Plaintiffs, ) The Honorable John R. Padova 

 ) 

v. ) 

 ) 

Comcast Corporation, et al., ) 

 ) 

 Defendants. ) 

______________________________________________________________________________ 

CLASS PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR CERTIFICATION OF REVISED PHILADELPHIA CLASS AND 

OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE

 

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TABLE OF CONTENTS 

PAGE 

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................1

I. COMCAST CANNOT DELAY ACTION ON THE MOTION FOR 

CERTIFICATION BY IGNORING THE COURT’S BRIEFING ORDER. ......... 1

II. THE SUPREME COURT’S OPINION DOES NOT PRECLUDE CLASS 

PLAINTIFFS’ MOTION FOR CERTIFICATION. ............................................... 2

III. THIS COURT’S CONTINUING JURISDICTION OVER CLASS 

PROCEEDINGS UNDER RULE 23(C)(1)(C) IS UNDISPUTED AND 

INDISPUTABLE. ................................................................................................... 8

IV. COMCAST’S ARGUMENTS AGAINST THE EXERCISE OF THIS COURT’S 

CONTINUING AUTHORITY AND DISCRETION FAIL. .................................. 9

V. PLAINTIFFS’ MOTION IS NOT FUTILE BECAUSE THE EXPERT REPORTS 

PROVIDE RELIABLE ANALYSES THAT SATISFY THE SUPREME 

COURT’S CONCERNS. ...................................................................................... 18

CONCLUSION ..............................................................................................................................22

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TABLE OF AUTHORITIES 

PAGE 

Cases

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013) ................................................. 17 

American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) ....................................................... 10 

Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943 (3d Cir.1985) ..................................... 2 

Behrend v. Comcast Corp., 264 F.R.D. 150 (E.D. Pa. 2010) ................................................. 20, 21 

Behrend v. Comcast Corp., No. 03-6604, 2012 WL 1231794 (E.D. Pa. Apr. 12, 2012) ............. 21 

Carcieri v. Salazar, 555 U.S. 379 (2009) ....................................................................................... 3 

Clarke v. Baptist Mem'l Health Care Corp., 264 F.R.D. 375 (W.D. Tenn. 2009) ....................... 12 

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) .............................................................. passim 

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)..................................................................... 8 

Dukes v. Wal-Mart Stores, Inc., No. C 01-02252, 2012 WL 4329009 (N.D. Cal. Sept. 

21, 2012) ................................................................................................................................... 7 

Fleischman v. Albany Med. Ctr., 06-CV-0765, 2010 WL 681992 (N.D.N.Y. Feb. 16, 

2010) ....................................................................................................................................... 10 

Gene & Gene, L.L.C. v. BioPay, L.L.C., 541 F.3d 318 (5th Cir. 2008) .......................................... 4 

Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698 (5th Cir. 2010) ...................................... 4, 5 

General Tel. Co. v. Falcon, 457 U.S. 147 (1982) ........................................................................... 8 

In re Fed. Home Loan Mortg. Corp., Nos. 09 Civ. 832, 09 MD 2072, 2012 WL 

4435292 (S.D.N.Y. Sept. 26, 2012) ........................................................................................ 11 

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) ....................................... 10 

In re Initial Pub. Offering Sec. Litig., 483 F.3d 70 (2d Cir. 2007) ........................................... 6, 11 

In re Initial Pub. Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006) ................................................. 6 

In re Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d 213 (8th Cir. 1977) ............................ 9 

In re Sanford Fork & Tool Co., 160 U.S. 247 (1895) .................................................................... 2 

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Ladik v. Wal-Mart Stores, Inc., No. 13-cv-123, 2013 WL 2351866 (W.D. Wis. May 

24, 2013) ................................................................................................................................... 7 

McNamara v. Felderhof, 410 F.3d 277 (5th Cir. 2005) ................................................................ 11 

Mogel v. UNUM Life Ins. Co. of Am., 677 F. Supp. 2d 362 (D. Mass. 2009) .............................. 12 

Quern v. Jordan, 440 U.S. 332 (1979) ........................................................................................... 2 

Schilling v. Transcor Am., LLC., No. C 08-941, 2012 WL 4859020 (N.D. Cal. Oct. 

11, 2012) ................................................................................................................................. 13 

Sprague v. Ticonic Nat’l Bank, 307 U.S. 161 (1939) ..................................................................... 2 

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) .......................................................... 8, 10 

Washington v. Vogel, 158 F.R.D. 689 (N.D. Fla. 1994) ............................................................... 12 

Wells Fargo & Co. v. Taylor, 254 U.S. 175 (1920) ........................................................................ 2 

Yang v. Odom, 392 F.3d 97 (3d Cir. 2004) ..................................................................................... 9 

Rules

Fed. R. Civ. P. 23 .................................................................................................................. 6, 9, 12 

Fed. R. Civ. P. 23(b)(2)................................................................................................................. 12 

Fed. R. Civ. P. 23(b)(3)........................................................................................................... 11, 12 

Fed. R. Civ. P. 23(c)(1)(C) .................................................................................................... passim 

Fed. R. Civ. P. 23(f) .................................................................................................................. 5, 11 

Fed. R. Civ. P. 24 .......................................................................................................................... 13 

Other Authorities

6 NEWBERG ON CLASS ACTIONS § 7: 47 (4th ed. 2002) .......................................................... 8, 14 

		

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Class Plaintiffs submit this reply in support of Plaintiffs’ Motion for Certification of 

Revised Philadelphia Class (“Motion for Certification”) and in opposition to Defendants’ Motion 

to Strike Plaintiffs’ Motion for Certification of Revised Philadelphia Class (“Motion to Strike”) 

and to request that the Court grant the Motion for Certification and deny the Motion to Strike in 

all respects. 

INTRODUCTION 

Comcast chose not to respond in detail to the Motion for Certification in spite of the 

Court’s Order that “Defendant shall file a Response to the Motion no later than September 19, 

2013.” Order (ECF No. 554 at 1). It opted instead to try to delay action on the Motion to Certify 

by filing a Motion to Strike. As we explain in this reply brief, the Court should treat the Motion 

to Strike as Comcast’s substantive response to the Motion for Certification, proceed to the merits 

of the Motion for Certification, and grant certification of the Philadelphia class and all other 

appropriate relief. 

ARGUMENT 

I. COMCAST CANNOT DELAY ACTION ON THE MOTION FOR 

CERTIFICATION BY IGNORING THE COURT’S BRIEFING ORDER. 

 Comcast’s Motion to Strike should be deemed its substantive response to Class Plaintiffs’ 

class certification motion. Class Plaintiffs understood from the status conference hearing on 

June 19, 2013, that the Court wished to resolve consideration of Class Plaintiffs’ motion on an 

expedited basis consistent with the Court’s desire to move this extended case forward efficiently. 

As the Court knows, both parties briefed the issue of whether the Court has jurisdiction to 

consider a motion for certification in the joint status conference statement submitted on June 12, 

2013. Following the status conference hearing, this Court’s Order dated June 21, 2013, directed 

that “Defendant shall file a Response to the Motion no later than September 19, 2013” and 

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allowed Plaintiffs to file their response no later than October 21, 2013. Order (ECF No. 554 at 

1). Comcast’s response should have but did not include all substantive grounds for opposing 

Class Plaintiffs’ recertification motion, in compliance with the Court’s Order. Below we answer 

the substantive points that Comcast chose to highlight in its Motion to Strike. Class Plaintiffs 

respectfully urge the Court to rule upon the Motion for Certification at the Court’s earliest 

convenience. 

II. THE SUPREME COURT’S OPINION DOES NOT PRECLUDE CLASS 

PLAINTIFFS’ MOTION FOR CERTIFICATION. 

 Class Plaintiffs’ motion is consistent with the Supreme Court’s opinion and allowed 

under rule of mandate precedent. At no point does Comcast dispute the basic rule of mandate 

principles set forth in Class Plaintiffs’ Memorandum in Support of Motion for Certification of 

Revised Philadelphia Class (“Pls.’ Mem.”) (incorporated here by reference). The Supreme Court 

has repeatedly stated that under the rule of mandate, a district court is free to consider any matter 

left open by the Supreme Court’s mandate. See Class Pls.’ Mem. at 2 (collecting Supreme Court 

precedent) (ECF No. 561, under seal).1

 The Third Circuit agrees. Bankers Trust Co. v. Bethlehem 

Steel Corp., 761 F.2d 943, 950 (3d Cir.1985) (noting that the trial court “may consider, as a 

 

1

 In a footnote, Comcast attempts to dismiss the primary Supreme Court decisions defining the rule of mandate cited 

by Class Plaintiffs – Quern v. Jordan, 440 U.S. 332, 348 n.18 (1979); Wells Fargo & Co. v. Taylor, 254 U.S. 175, 

181-82 (1920); In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895) – on the wholly formalistic grounds that 

one of them dates to 1895 and that they involve an appellate court remanding a case. Defs.’ Mem. at 6 n.2. These 

oft-cited rule of mandate cases remain good and controlling law. None focused on or considered determinative 

whether remand or reversal was involved. Indeed, in its 1979 decision in Quern, the Supreme Court clearly 

expressed a core rule of mandate principle: “‘While a mandate is controlling as to matters within its compass, on the 

remand a lower court is free as to other issues.’” Quern, 440 U.S. at 347 n.18 (citing Sprague v. Ticonic Nat’l Bank, 

307 U.S. 161, 168 (1939), citing In re Sanford Fork & Tool Co.). Sprague itself did not involve a remand but came 

to the Supreme Court on the grant of certiorari from the appellate court’s affirmance of a dismissal by the district 

court. Id. at 162. In Sprague, the Supreme Court determined that the issue before it was not previously disposed of 

in a prior decision of the Supreme Court and therefore the district court remained free to address the issue under the 

rule of mandate. Id. at 168-69. Comcast does not address, nor dispute, the controlling principle established in 

repeated Supreme Court decisions cited by Class Plaintiffs under the rule of mandate--the district court may 

consider any matter left open by the Supreme Court’s mandate. In the same footnote, Comcast seeks to discount as a 

“smattering of inapposite Third Circuit cases” cited by Class Plaintiffs. Comcast does not challenge the point made 

in the Third Circuit decisions that the absence of “remand” in an appellate court reversal does not prevent a 

defendant’s re-trial. See Pls.’ Mem. at 5. 

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matter of first impression, those issues not expressly or implicitly disposed of by the appellate 

decision”). Nor does Comcast dispute that the only matter before the Supreme Court was the 

Third Circuit’s decision affirming a different and broader class based on Dr. McClave’s previous 

damages model. By its own reasoning, the Supreme Court did not have before it a damages 

analysis tying class wide damages to the single antitrust impact theory credited by this Court. 

Class Plaintiffs have now satisfied entirely the Supreme Court’s criticism by submitting a motion 

for a narrowly-tailored class, supported by the new expert reports of Dr. McClave and Dr. 

Williams directly tying the effects of Comcast’s anticompetitive conduct to class wide damages 

based exclusively on the single theory of antitrust impact allowed by this Court. Doing so is 

entirely permissible under Rule 23 jurisprudence2

 and the rule of mandate, allowing this Court to 

consider any matter left open and not foreclosed by the Supreme Court’s opinion. See Pls.’ Mem. 

at 2-3 (collecting cases). 

Comcast argues that there is a difference between a decision to reverse and to remand, 

citing Carcieri v. Salazar, 555 U.S. 379 (2009) (Souter, J., dissenting). Defs.’ Mem. at 5. In 

Carcieri, the Department of Interior had accepted a parcel of land in trust for use by an Indian 

tribe. Id. at 382. The State and others challenged its action. Id. The district court granted 

summary judgment for DOI. Id. at 386. On appeal, the Supreme Court’s majority interpreted the 

phrase “now under Federal jurisdiction” in the governing federal statute to refer to a tribe under 

federal jurisdiction at the time of the statute’s enactment. Id. at 382. Since the record indicated 

the tribe was not then under federal jurisdiction, the Supreme Court, having decided the 

dispositive issue of law before it, understandably reversed the summary judgment in favor of 

DOI. Id. at 382-83. Justice Souter in dissent simply stated that he would reverse and remand, 

 

2

 Rule 23(c)(1)(C) allows the court to reconsider its class certification decision at any time before final judgment. 

See Pls.’ Mem. at 1-2 and Part III, infra. 

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dissenting from the majority’s “straight reversal.” Id.at 401. The case does nothing to advance 

Comcast’s cause, or to address the question of whether Class Plaintiffs’ motion is within rule of 

mandate jurisprudence. 

Nor do Class Plaintiffs erroneously rely upon the Third Circuit’s mandate rather than the 

Supreme Court’s opinion. Defs.’ Mem. at 5. Comcast misunderstands Class Plaintiffs’ position. 

The Third Circuit’s mandate, remanding the matter to this Court for “proceedings consistent with 

the Supreme Court’s opinion,” is, in turn, entirely consistent with the Supreme Court’s opinion 

and further supports this Court’s ongoing authority to entertain Class Plaintiffs’ motion. See

Pls.’ Mem. at 3-4. 

The Fifth Circuit’s ruling in Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698 (5th 

Cir. 2010), does not help Comcast. Defs.’ Mem. at 5-6. In BioPay, plaintiff brought a class 

action alleging violations of the Telephone Consumer Protection Act, which prohibits sending 

advertisements by fax without consent. Id. at 700. After the district court granted class 

certification, the Fifth Circuit reversed and remanded. Id. The district court then reopened 

discovery and recertified the class. Id. at 700-01. On appeal, the Fifth Circuit reversed, finding 

that the district court had misinterpreted its mandate in reopening discovery following remand. 

Id. at 703-05. Importantly, the Fifth Circuit did so based on its earlier holding “that ‘the 

determinative question of whether consent can be established via class-wide proof must, given 

the particular facts of this case, be answered in the negative.’” Id. at 700 (citing Gene & Gene, 

L.L.C. v. BioPay, L.L.C., 541 F.3d 318, 329 (5th Cir. 2008)). In other words, the dispositive issue 

of consent and whether it could be established by class wide proof was previously before the 

court and decided in its earlier ruling. In this case, by contrast, the Supreme Court majority 

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expressly left open the possibility of “another methodology” on remand. (Comcast Corp. v. 

Behrend, 133 S. Ct. 1426, 1433 (2013)). 

The Fifth Circuit also acknowledged the “significant discretion” in the district court 

under Rule 23(c)(1)(C), which extends on remand “‘to all areas not covered by the higher court’s 

mandate.’” Id. at 703 (citation omitted). Indeed, the Fifth Circuit stated that “a district court may 

properly alter or amend a certification order after remand from this court on a Rule 23(f) appeal” 

and that “a Rule 23(f) decision does not operate to automatically divest the district court of its 

powers under Rule 23(c)(1)(C).” Id. The court stressed that its decision was narrowly limited to 

the specific facts before it. BioPay, 624 F.3d at 704 n.4 (“We emphasize that our holding that the 

district court misinterpreted the mandate in this case is narrowly limited to the facts and 

procedural posture presented here.”). By contrast, the Supreme Court in Comcast never ruled that 

classwide proof of damages could not be established. Rather, what was before the Supreme 

Court was only the certification of a broader class based on a damages analysis the Supreme 

Court determined included four theories of antitrust impact and not the Class Plaintiffs’ proposed 

narrowed class based on a revised damages analysis meeting the Court’s critique by measuring 

class wide damages on the single theory of antitrust injury accepted by this Court. 

The Supreme Court’s reasoning here and the language of the Court’s majority opinion – 

including the majority’s statement that “[w]ithout presenting another methodology, respondents 

cannot show . . . predominance;” the statement that Dr. McClave’s methodology “might have 

been sound, and might have produced commonality of damages, if all four of those alleged 

distortions remained in the case;” and the Court’s footnote 6 (Comcast, 133 S. Ct. at 1433, 1434 

& 1435 n.6) – support Class Plaintiffs’ motion to certify a narrowed class based upon a damages 

model satisfying the very concerns raised by the Supreme Court. Nothing in the Supreme Court’s 

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majority opinion forecloses this Court’s consideration of Class Plaintiffs’ motion. Class 

Plaintiffs’ motion in no way deviates from but remains consistent with – and fully satisfies – the 

Supreme Court’s opinion. 

Comcast’s attempts to distinguish cases supporting Class Plaintiffs’ position are 

unavailing. In In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006), the 

Second Circuit articulated the standards to govern class certifications in the Second Circuit but 

determined that remanding for application of the standards set by the court was not appropriate 

because under the plaintiffs’ allegations and evidence, the Rule 23 predominance requirement 

“cannot be met under the standards as we have explicated them.” 471 F.3d at 42. The court 

concluded that with respect to “at least the factors of reliance and lack of knowledge of the 

scheme, the Plaintiffs cannot satisfy the predominance requirement.” Id. at 45. The court vacated 

the district court’s order granting class certification and “remand[ed] for further proceedings.” Id.

at 45. In subsequently denying reconsideration, the Second Circuit made clear that it had 

previously decided only the class certification order before it and that the district court remained 

free to entertain a motion to certify a different class satisfying the court’s decision. In re Initial 

Pub. Offering Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2007) (stating that “our ruling rejected class 

certification only of the class as certified by the District Court,” and that “[n]othing in our 

decision precludes the Petitioners from returning to the District Court to seek certification of a 

more modest class”). The Second Circuit further stated that “[d]istrict courts have ample 

discretion to consider (or to decline to consider) a revised class certification motion after an 

initial denial.” Id. (citations omitted). Indeed, the Second Circuit made clear that a district court’s 

authority to revise a class certification order under Rule 23(c)(1)(C) does not require the use of 

language specifically reserving the authority. Thus, the Second Circuit’s confirmation that its 

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earlier decision reversing class certification did not preclude the district court from considering a 

subsequent class certification motion directly supports this Court’s ongoing authority to consider 

Class Plaintiffs’ motion. 

Similarly, Comcast’s comments concerning Dukes v. Wal-Mart Stores, Inc., No. C 01-

02252, 2012 WL 4329009 (N.D. Cal. Sept. 21, 2012), are misplaced. Following the Supreme 

Court’s opinion reversing – without remand – certification of a nationwide class, the Northern 

District of California allowed plaintiffs to move to certify a smaller class and to attempt to 

address the Supreme Court’s stated concerns. The district court allowed plaintiffs to file a new 

class certification motion, reasoning that “[t]he failure of the Supreme Court to explicitly remand 

the case is not dispositive” and that “[a]n appellate ruling rejecting class certification does not 

change this ability to consider a renewed certification motion.” Id. at *4-5. Comcast argues that 

narrowing the class geographically cannot remedy the deficiency identified by the Supreme 

Court in Plaintiffs’ expert model. Defs.’ Mem. at 7-8. Comcast ignores the fact that in addition to 

appropriately modifying the class, Class Plaintiffs have supported their motion with 

supplemental expert reports, including from Dr. McClave, that meet the specific critique of the 

Supreme Court’s majority by measuring only damages attributable to the deterrence of 

overbuilding and thereby “bridg[ing] the difference between supra-competitive prices in general 

and supra-competitive prices attributable to the deterrence of overbuilding.” Comcast, 133 S. Ct. 

at 1435. And the fact that the district court in Dukes subsequently denied the plaintiffs’ new class 

certification motion under entirely different facts, does not address the threshold question of this 

Court’s continuing jurisdiction to entertain Class Plaintiffs’ motion under the facts of this case. 

See Pls.’ Mem. at 5 n.2.3

 

3

 Comcast’s similar reference to Ladik v. Wal-Mart Stores, Inc., No. 13-cv-123, 2013 WL 2351866 (W.D. Wis. May 

24, 2013), also misses the mark. Ladik involved an action by female employees of Wal-Mart Stores alleging sex 

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III. THIS COURT’S CONTINUING JURISDICTION OVER CLASS PROCEEDINGS 

UNDER RULE 23(c)(1)(C) IS UNDISPUTED AND INDISPUTABLE. 

Comcast concedes that district courts have “some discretion” to review “certain” class 

certification orders. Defs.’ Mem. at 9. Actually, this Court’s broad discretion to determine the 

appropriateness of class certification, and to revisit such determinations throughout the 

proceedings, is firmly established. See Fed. R. Civ. P. 23(c)(1)(C); Coopers & Lybrand v. 

Livesay, 437 U.S. 463, 469 and n.11 (1978) (noting that a class certification order “is subject to 

revision in the District Court” and that “a district court’s order denying or granting class status is 

inherently tentative”); General Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982) (stating that “[e]ven 

after a certification order is entered, the judge remains free to modify it in the light of 

subsequent developments in the litigation” and that “[t]his flexibility enhances the usefulness of 

the class-action device”); 6 NEWBERG ON CLASS ACTIONS § 7: 47 (4th ed. 2002) (stating that 

“[b]ecause class rulings may be altered or amended at any time . . ., class rulings are often 

reconsidered, and subsequently affirmed, altered, modified, or withdrawn” and collecting cases). 

Thus, this Court’s continuing authority to entertain Class Plaintiffs’ motion for a revised 

class, well within the rule of mandate and authorized under Rule 23(c)(1)(C), is beyond dispute. 

The question before the Court is whether that sound discretion should be exercised. 

 discrimination that was filed following the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 

2541 (2011). 2013 WL 2351866, at *1. Plaintiffs sought certification of a regional class. Id. The district court denied 

class certification at the pleadings stage “because plaintiffs have failed to identify any common questions of law or 

fact” in that “they have not shown how the class they propose solves any of the problems the Court found in Dukes.” 

Id. Ladik does not involve the issue of a district court’s ongoing class certification authority following a Supreme 

Court decision overturning a previous class certification order. And the fact that the Ladik plaintiffs in the different 

facts of their Title 7 action were found not to have adequately addressed the different problems identified in the 

Supreme Court’s Dukes decision says nothing about whether Class Plaintiffs have, as they submit, satisfied exactly 

the problem raised by the Supreme Court’s majority opinion in Comcast by Dr. McClave focusing this revised 

damages analysis on the single antitrust impact theory approved by this Court. 

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IV. COMCAST’S ARGUMENTS AGAINST THE EXERCISE OF THIS COURT’S 

CONTINUING AUTHORITY AND DISCRETION FAIL. 

While not disputing this Court’s ongoing authority over class certification proceedings 

under Rule 23(c)(1)(C), Comcast contends that this Court should not exercise it. The cases 

Comcast relies upon are readily distinguishable. Not one of the cases Comcast cites (Defs.’ 

Mem. at 9-12) involves a request for certification of a revised class following the changed 

circumstances and development in the litigation of an intervening Supreme Court decision. Each 

case Comcast relies upon involves quite different facts than those before this Court. 

In an MDL case, In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 

213 (8th Cir. 1977), the district court in Missouri had dismissed plaintiff’s class action 

allegations based on collateral estoppel after plaintiff had been denied class status by a Florida 

court and then had promptly voluntarily dismissed the Florida action. Id. at 215 & n.1. The 

Eighth Circuit reversed, finding that collateral estoppel did not apply due to the absence of a 

final judgment. Id. at 219. In pure dicta, in the context of discussing arguments that could be 

advanced to allow application of collateral estoppel to a previous class action determination in 

multistate district litigation, the Eighth Circuit stated that “a plaintiff ought not to have unlimited 

bites at the apple until he can convince a single district court that he qualifies as a class 

representative under Rule 23.” Id. Neither collateral estoppel, nor repeated attempts at qualifying 

appropriate class representatives is involved in the case before this Court. In any event, Class 

Plaintiffs here do not seek “unlimited bites at the apple” but rather seek the opportunity – in 

response to Comcast’s multiple attempts to displace this Court’s class certification order – to 

respond to new guidance by the Supreme Court. 

Yang v. Odom, 392 F.3d 97 (3d Cir. 2004), is equally inapposite. In Yang, the Northern 

District of Georgia denied class status to investors in a securities fraud case. Id. at 99. Three 

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members of subclasses then filed their securities fraud lawsuit in the District of New Jersey, 

which dismissed on statute of limitations grounds. Id. On appeal, the issue before the Third 

Circuit was whether American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), should be 

applied to toll the one-year statute of limitations which had run on plaintiffs’ securities law 

claims. Id. The Third Circuit held that American Pipe tolling “applies to the filing of a new class 

action where certification was denied in the prior suit based on the lead plaintiffs’ deficiencies as 

class representatives,” but does not apply “where certification was denied based on deficiencies 

in the purported class itself.” Id. Neither of these cases involved issues or facts comparable to 

those before this Court. Neither supports Comcast’s contention that a subsequent class 

certification motion must be supported by new facts. Defs.’ Mem. at 9.4

 In any event, Class 

Plaintiffs’ motion here is supported by new facts encompassed in the new expert reports by Drs. 

McClave and Williams. 

Comcast argues that “a new damages model” does not support a renewed class 

certification motion. Again, the cases Comcast relies upon are readily distinguishable. In 

Fleischman v. Albany Medical Center, 06-CV-0765, 2010 WL 681992 (N.D.N.Y. Feb. 16, 

2010), the district court had certified a class of registered nurses with respect to two issues, 

whether there was an antitrust law violation and whether there was injury to the class. Id. at *1. 

Plaintiffs then sought to amend the previous certification order to certify issues of impact and 

damages as to a narrower class of registered nurses. Id. In discussing the discretion afforded 

 

4

 Comcast does not cite any authority for its proposition that only new facts can warrant the exercise of this Court’s 

continuing authority over class certification proceedings. Indeed, Comcast’s view is not consistent with its approach 

in this litigation. For example, when Comcast moved to decertify the Philadelphia Class, it pointed to no new facts 

but relied upon issuance of the Third Circuit’s decision in In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 

(3d Cir. 2008). When Comcast urged the Third Circuit to reverse this Court’s recertification order, it did so based 

not on new factual developments but issuance by the Supreme Court of its decision in Wal-Mart Stores, Inc. v. 

Dukes, 131 S. Ct. 2541 (2011). See correspondence dated June 22, 2011 from Comcast’s counsel to the Third Circuit 

citing Dukes as supplemental authority (Behrend v. Comcast Corp., No. 10-2865 (3d Cir.)). And, of course, Comcast 

did not rely upon new facts in its successive motions challenging Class Plaintiffs’ pleadings. 

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district courts to alter class certification rulings at any point before final judgment under Rule 

23(c)(1)(C), the Fleischman Court expressed its view that “‘there must be some development or 

change in circumstances to merit revisiting a class certification decision.’” Id. at *2 (citation 

omitted) (citing, inter alia, McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir. 2005) (“[T]he 

district court noted that [petitioners] have identified no new legal authority or a changed 

circumstance . . . .”)). No such new legal authority or changed circumstances were before the 

court in Fleischman. Here, by contrast, the Supreme Court’s decision constitutes a development 

in the normal course of this litigation, reflecting new legal authority and changed circumstances. 

Comcast’s reliance upon In re Federal Home Loan Mortgage Corp., Nos. 09 Civ. 832, 09 

MD 2072, 2012 WL 4435292 (S.D.N.Y. Sept. 26, 2012), is also misplaced. In that securities 

fraud case, the district court, after an evidentiary hearing, denied class certification after finding 

that plaintiff’s expert was “unreliable and unpersuasive” and that plaintiff had failed to 

demonstrate that the market for the securities at issue was efficient, making the fraud on the 

market presumption inapplicable and resulting in individual issues of reliance predominating 

over common issues. Id. at *1. The district court denied reconsideration and the Second Circuit 

denied plaintiff’s petition for an interlocutory appeal under Fed. R. Civ. P. 23(f). Id. While 

acknowledging that district courts have “‘ample discretion’ to consider a revised class 

certification motion after an initial denial,” (citing In re Initial Public Offering Securities Litig., 

483 F.3d at 73), the district court determined the circumstances before it did not “warrant reargument or additional expert testimony about the efficiency of the market.” Id. Again, there was 

no intervening Supreme Court decision or other changed circumstances in that case. 

Comcast also cites two cases in which district courts denied subsequent class certification 

motions based on Rule 23(b)(3) after plaintiffs initially unsuccessfully sought certification under 

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Rule 23(b)(2). In Washington v. Vogel, 158 F.R.D. 689 (N.D. Fla. 1994), plaintiffs alleged that 

defendants engaged in a policy targeting minorities for pretextual traffic stops designed to seize 

property from the persons stopped. Id. at 690. The district court denied class certification after 

determining that the plaintiffs lacked standing to seek injunctive relief. Id. at 691. Plaintiffs had 

sought class certification only under Rule 23(b)(2). Id. at 690-91. After the standing problem was 

identified and class certification denied, plaintiffs sought certification under Rule 23(b)(3). The 

court denied plaintiffs’ request, because the subsequent motion to certify was not filed within the 

ninety-day period allowed under local rules and because plaintiffs failed to show good cause for 

their failure initially to seek certification under Rule 23(b)(3) in the alternative. Id. at 692. The 

court determined that there were no changed circumstances. Id. Essentially the same dissimilar 

fact pattern was present in Mogel v. UNUM Life Insurance Co. of America, 677 F. Supp. 2d 362, 

366 (D. Mass. 2009) (noting that “class action plaintiffs can, and often do, move for certification 

under alternative provisions of Rule 23” and declining to allow plaintiffs to seek certification 

under Rule 23(b)(3) after a previous denial of certification under Rule 23(b)(2)). Neither case 

involved changed circumstances, including issuance of an intervening Supreme Court decision. 

And, of course, Class Plaintiffs have always and only invoked Rule 23(b)(3) in this litigation. 

Also far afield is Clarke v. Baptist Memorial Health Care Corp., 264 F.R.D. 375 (W.D. 

Tenn. 2009). Defs.’ Mem. at 10. In that case, plaintiffs moved to intervene to add two additional 

class representatives. Id. at 376. The district court applied the multiple factors governing 

intervention motions and denied the request, finding that plaintiffs had knowledge about 

problems with their proposed class representatives more than two years before seeking 

intervention, and allowed a deadline to pass without filing a motion to intervene. Id. at 376, 377-

78. The court reasoned that affording plaintiffs the chance to substitute class representatives 

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under Rule 23 is common practice, but stated that under the facts before it “this Court must apply 

the timeliness test by looking solely at this particular case.” Id. at 381. The district court simply 

denied intervention under Rule 24 under the particular, differing facts before it. 

Comcast’s citation to Schilling v. Transcor America, LLC., No. C 08-941, 2012 WL 

4859020 (N.D. Cal. Oct. 11, 2012), is similarly unavailing. In Schilling, the district court granted 

defendants’ motion for partial summary judgment, finding as a matter of law that the conditions 

of confinement plaintiff challenged did not, on a class basis, constitute violations of the Eighth or 

Fourteenth Amendments. Id. at *1. In other words, “there was a determination of no liability for 

the class as defined by the Court on plaintiffs’ request.” Id. Plaintiffs then moved to amend and 

certify subclasses. In denying leave to amend, the court recognized “its responsibility to 

continually review the appropriateness of a certified class in light of developments subsequent to 

class certification” but found that, under the specific facts before it, “the only relevant 

development was the Court’s determination that plaintiffs could not demonstrate a constitutional 

violation on their claims as a class-wide matter.” Id. The court emphasized the distinct factual 

scenario before it – where a district court had granted defendants’ motion for summary judgment 

on a finding of no liability for the class and that decision had not been reversed on appeal. Id. By 

contrast, under the facts now before this Court, there has been no determination of “no liability” 

at summary judgment. To the contrary, this Court has allowed Class Plaintiffs’ Section 1 market 

allocation claim to proceed to trial under the rule of reason standard and has allowed their 

Section 2 monopolization claims to proceed to trial as set forth in the Court’s summary judgment 

decision. Nothing in the Supreme Court’s decision reflects any determination that Class 

Plaintiffs could not establish class wide damages. Unlike the facts in Schilling and the other 

cases Comcast cites, the Supreme Court’s opinion constitutes a new development and changed 

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circumstances subsequent to class certification, fully warranting consideration of Class 

Plaintiffs’ motion based on updated expert reports fully conforming to the Supreme Court’s 

majority decision. 

Comcast also argues that Class Plaintiffs’ motion should not be entertained because 

discovery has closed. That argument ignores the fact that this Court’s authority over class 

certification proceedings under Rule 23(c)(1)(C) is ongoing. Rule 23(c)(1)(C) allows district 

courts to alter or amend class certification order “before final judgment.” As a leading treatise 

states, “[t]he ability of a court to reconsider its initial class rulings . . . is a vital ingredient in the 

flexibility of courts to realize the full potential benefits flowing from the judicious use of the 

class action device.” 6 NEWBERG ON CLASS ACTIONS § 7:47 (4th Ed. 2002) (further noting that 

there may be “important and legitimate reasons for moving for reconsideration of an initial class 

ruling, especially a class denial order, following trial on the merits . . .”). The fact that discovery 

closed before the Supreme Court issued its decision provides no basis for declining to exercise 

the Court’s clear ongoing authority to consider Class Plaintiffs’ motion. In any event, this Court 

entered an order explicitly scheduling the filing of the motion for a revised class by Plaintiffs and 

anticipating new expert reports thereby indicating that Plaintiffs’ motion was consistent with the 

Court’s pretrial plan. 

Comcast resurrects its contention that Class Plaintiffs somehow made a “tactical” 

decision not to submit a revised damages analysis earlier. Class Plaintiffs already addressed this 

issue in their memorandum in support of class certification (Pls.’ Mem. at 7-8, ECF No. 561) and 

at the June 19, 2013 status conference hearing (June 19, 2013 Status Conf. Tr. at 12-15, ECF No. 

556). Comcast lifts a sentence in the transcript of an earlier, April 24, 2012, scheduling 

conference convened by the Court after its summary judgment ruling. The Court, as part of a 

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broader discussion, stated, “So let me give the parties a last-ditch effort to file supplemental 

expert report.” Apr. 24, 2012 Scheduling Conf. Tr. at 12 (ECF No. 525). The fuller context 

from which that snippet is drawn was a trial preparation discussion in which the Court asked 

whether any Daubert or other motions were anticipated by the parties. Id. at 7. Comcast’s thenlead counsel, Mr. Carroll, answered that for Comcast to definitely decide on the filing of Daubert

motions, greater clarification of Class Plaintiffs’ damages claims was needed following the 

Court’s summary judgment ruling. Id. at 7-8. Class Plaintiffs’ counsel, Mr. Goldberg, argued that 

Dr. McClave’s damages methodology was consistent with the Court’s class certification ruling, 

which had been affirmed by the Third Circuit, and with the Court’s summary judgment decision. 

Id. at 9-10. After listening to the parties’ positions, the Court stated that “[m]y desire is to put 

each side in a position to try their best case, that’s the idea of the adversary process.” Id. at 12. 

The Court further explained that “it’s in keeping with that desire for me to get a little more 

serious about what to do regarding damages here before we go to trial.” Id. The Court then gave 

the parties the opportunity to file a supplemental expert report. Id. In his follow-up supplemental 

damages analysis submitted June 8, 2012 (ECF No. 512, at 9), Dr. McClave explained to the 

Court why his damages methodology was indeed consistent with the Court’s summary judgment 

ruling. At the same time, Dr. McClave stated that “if the jury were to decide that damages 

should only be calculated for the five counties in which RCN initially planned to overbuild, the 

results recorded in my Initial Declaration can be used to show” the total of such damages and 

that “my basic methodology allows for a number of alternative calculations, as I have described 

in my subsequent reports and in this one.” May 8, 2012 Supplemental Report of Dr. James T. 

McClave at 9 (ECF No. 512, under seal). 

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 The above pre-trial scheduling conference exchange of course pre-dated the granting of 

certiorari by the Supreme Court, the vacating of the trial date before this Court and the 

subsequent issuance of the Supreme Court’s opinion. It clearly provides no basis for Comcast’s 

argument that Class Plaintiffs were somehow dilatory in failing to submit a renewed class 

certification motion and damages analysis addressing the Supreme Court’s concerns before the 

Supreme Court issued its decision. The Supreme Court has now issued a decision addressing the 

issue of class wide damages based only on Dr. McClave’s initial damages model. Basic fairness, 

the rule of mandate, and this Court’s continuing jurisdiction over class proceedings under Rule 

23(c)(1)(C) compel the conclusion that this Court may and should consider and grant Class 

Plaintiffs’ motion fully satisfying the Supreme Court majority’s opinion. Doing so will indeed 

“put each side in a position to try their best case . . . the idea of adversary process.” 

Comcast is wrong in arguing that it would be “unfair and prejudicial to Comcast” to 

allow Plaintiffs’ recertification motion. Comcast does not provide any explanation or factual 

basis for its unadorned claim of prejudice but rests exclusively on its erroneous contention that 

Class Plaintiffs have somehow changed course. They have not; Comcast’s unsupported claim of 

prejudice therefore fails. Importantly, Comcast’s argument in this respect ignores the interests of 

the thousands of Comcast subscribers whose legitimate claims would be wiped out if this Court 

does not consider Class Plaintiffs’ renewed motion. 

Class Plaintiffs have narrowed the class in order to further address the Supreme Court 

majority’s view of the link between damages and the suppression of overbuilding theory of 

antitrust impact accepted by this Court. In doing so, Class Plaintiffs are not reversing course in 

any manner. 

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 Nor do Plaintiffs argue that each franchise is a separate market. Comcast mistakenly 

conflates the relevant market with the unit of measurement for the analysis. Although Dr. 

McClave analyzed data at the franchise level, nowhere in his report does he describe each 

franchise as a separate market. Dr. McClave modeled at the franchise level to differentiate 

between franchises in which RCN had approval to overbuild and those in which it did not.5

 

Comcast misunderstands Dr. McClave’s analysis. 

 Starting the class period in January 2003 is consistent with and supported by the fact that, 

as Class Plaintiffs previously explained, that was “when RCN’s build out would have created a 

uniform price effect throughout the five counties but for Comcast’s anticompetitive action.” 

Pls.’ Mem. at 11 (citing Dr. Williams’ Report at 12, 31-32). In his report, Dr. Williams explains 

in detail how he determined that Comcast’s overbuilding in the five counties created an antitrust 

impact beginning in January 2003. Dr. Williams’ Report at 11-21. Comcast misunderstands 

Dr. Williams’ analysis. 

 Comcast also asserts (in a single passing sentence) that if Plaintiffs can move to recertify 

the narrowed class then the Court should permit it to renew its summary judgment motion, but 

Comcast does not cite a single case to support this misguided position.6

 More importantly, 

 

5

 “I have estimated the model at the franchise level to enable its application to specific franchises in the Philadelphia 

market. This refinement allows the model to focus on the effects of suppression of overbuilding, consistent with the 

Supreme Court decision.” Class Re-Certification Report of Dr. James T. McClave at 3 (“Dr. McClave’s Report”) 

(ECF No. 561, under seal). 

6

 Comcast asserts that this Court in its summary judgment decision noted that the “Comcast Advantage Plan” began 

in 2000 and that this Court had previously rejected Plaintiffs’ theory of antitrust impact concerning DBS access to 

Comcast’s regional sports programming in part on grounds the conduct began before the beginning of the original 

class period. Defs.’ Mem. at 17-18. Comcast’s position is irrelevant to any class certification issue or its motion to 

strike. And Comcast ignores the factual record. As Class Plaintiffs pointed out in their summary judgment 

opposition brief, the CAP program went through seven iterations beginning in 2000 and continuing at least through 

December 31, 2004. See Class Pls.’ Mem. in Opp’n to Defs.’ Mot. for Summ. J. at 79 (ECF No. 448, under seal) 

(citing App. 2, L. Burke Ex. 13). 

Amazingly, in a footnote, Comcast contends that if the Supreme Court’s opinion in this litigation allows Plaintiffs to 

proceed with their class certification motion, then “the same should be true for Comcast’s arbitration defense to 

class certification.” Defs.’ Mem. at 18 n.10 (citing Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013)). 

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Comcast is wrong on the merits. As described above, Class Plaintiffs have carved out a narrower 

class on the same antitrust impact theory that this Court, the Third Circuit, and the Supreme 

Court all approved of – deterred overbuilding. 

V. PLAINTIFFS’ MOTION IS NOT FUTILE BECAUSE THE EXPERT REPORTS 

PROVIDE RELIABLE ANALYSES THAT SATISFY THE SUPREME COURT’S 

CONCERNS. 

Dr. McClave’s and Dr. Williams’ latest expert reports fully satisfy the Supreme Court’s 

concerns, and so the Court should certify the proposed narrowed class. Dr. McClave’s report 

plainly calculates damages attributed to the deterrence of overbuilding. Dr. McClave’s Report at 

4-6; Pls.’ Mem. at 12-15. The Supreme Court also stated in a footnote that to measure damages 

resulting from overbuilding on a class wide basis, Dr. McClave’s model would have to show 

either “that the extent of overbuilding (absent deterrence) would have been the same in all 

counties, or that the extent is irrelevant to effect upon ability to charge supra-competitive prices.”

Comcast, 133 S. Ct. at 1435 n.6 (emphasis added). Dr. McClave’s revised damages model goes 

further and satisfies both prongs. As Dr. McClave explains: 

The model “establish[es] the requisite commonality of damages” in both 

of the ways that the Supreme Court endorsed in footnote 6 of its majority 

opinion. Slip op. 10 n.6. It meets the first of the two prongs by starting the 

damages period in 2003, by which time (as Dr. Williams concludes) RCN 

would have overbuilt all five counties to such an extent that each of the 

franchises for which RCN had approval to overbuild would satisfy the 

FCC’s 50/15 threshold that results in incumbent cable operators lowering 

prices. The model thus shows “that the extent of overbuilding (absent 

deterrence) would have been the same in all counties”. Id. The model also 

complies with the second prong. It does so by proving that all subscribers 

in the five counties would have paid lower, competitive prices once the 

requisite 50/15 threshold is met. The model thus demonstrates that “the 

extent” of overbuilding within the five counties “is irrelevant to [the] 

 Comcast ignores the fact that in 2006 it expressly stipulated, and this Court ordered, that all claims asserted in this 

action by class members “shall be resolved in court . . . and not through arbitration” and that Defendants “shall not 

for any purpose in this action, including class certification, (i) allege that an arbitration agreement . . . applies . . . or 

(ii) file a motion to compel arbitration . . . .” Stipulation & Order filed Nov. 20, 2006 ¶¶ 1 & 2 (ECF No. 182). 

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effect [of deterring overbuilding] upon the ability [of Comcast] to charge 

supra-competitive prices” in each of the five counties. Id. 

Dr. McClave’s Report at 8 n. 15.7

Dr. Williams’ Second Supplemental Expert Report also addresses both prongs of footnote 

6 of the Supreme Court’s majority opinion. Dr. Williams first provides economic analysis to 

support his conclusion that “[b]ut for Comcast’s anticompetitive conduct, RCN would have 

offered video services comparable to those offered by Comcast to at least 50 percent of the 

households in the area in the five counties in which it was authorized to serve and would have 

served at least 15 percent of the households in that area that subscribe to multichannel video 

programming distributor (“MVPD”) services by January 1, 2003.” Dr. Williams’ Report at 6. 

As to the second prong, Dr. Williams concludes that “[i]ndependent of, and in addition to, the 

fact that the extent of overbuilding would have been the same in all franchises in the five 

counties for which RCN had received FCC approval, Comcast has had the ability to charge 

supra-competitive prices to each of the subscribers located in the five counties because Comcast 

has had market power in the five counties. . . .” Id. at 30 ¶ 30 (emphasis added). Dr. Williams 

explains that Comcast “has monopoly power and, therefore, the ability to exclude competition 

and charge supra-competitive prices throughout the five counties” and that Comcast’s market 

power derives from its market allocating swaps and acquisitions, including Comcast’s agreement 

with AT&T resulting in Comcast’s ownership of Lenfest. Id. at 30 ¶¶ 30 & 31. Thus, 

Comcast’s market power allowed Comcast to deter overbuilding and charge supra-competitive 

prices in the five counties. Id. at 31 ¶¶ 32 & 33. 

 

7

As Dr. McClave further states, “I relied on the FCC approval documents to identify those franchises within the five 

counties that would have been overbuilt by RCN ‘but-for’ Comcast’s alleged deterrence. I have relied on the 

analysis of Dr. Michael Williams, plaintiffs’ economic expert, to determine that RCN would have built out 

sufficiently to satisfy the FCC 50/15 criteria in those locations by January 2003. By including only these franchises 

as overbuilt in the ‘but-for’ world, I have conservatively assumed that no additional overbuilding by RCN or another 

overbuilder would have occurred in the Philadelphia DMA absent Comcast’s anticompetitive conduct.” Dr. 

McClave’s Report at 8 (citations omitted). 

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Plaintiffs’ damages model is therefore wholly “consistent with its liability case, 

particularly with respect to the alleged anticompetitive effect of the violation.” Comcast, 133 S. 

Ct. at 1433. By relying on Dr. McClave’s revised model and Dr. Williams’ findings, Plaintiffs 

provide a common methodology for proving impact and damages on a classwide basis. 

The alleged “deficiencies” that Comcast points out in just two and a half pages should 

have been brought as a fully briefed, substantive response to Plaintiffs’ motion. No matter. 

Even if Comcast had complied with the Court’s Order and discussed its arguments at length, they 

would still fall flat. 

 Inclusion of Philadelphia County. Dr. McClave properly included Philadelphia 

County in his damages analysis.8 Philadelphia County is part of the clustered area that RCN had 

planned to overbuild. Dr. McClave’s Report at 3 n.4; Dr. Williams’ Report at 6-12. Plaintiffs 

allege that unlawful acts by Comcast deterred overbuilding, and Philadelphia County was one of 

the five counties where RCN had obtained approval to overbuild. Therefore, Dr. McClave 

reasonably assumes that in the “but-for” world of no unlawful behavior, RCN would have 

overbuilt in Philadelphia County. 

Overbuilding threshold. Contrary to Defendants’ position (Defs.’ Mem. at 19), Dr. 

Williams bases his conclusion about the time it would have taken RCN to reach the 50% 

overbuilding threshold on sound economic analysis and real world examples that include RCN. 

For instance, Dr. Williams’ Second Supplemental Expert Report includes the following: 

 

8

 Comcast states that this Court has held “that RCN did not overbuild that [Philadelphia] county as a result of 

Comcast’s unlawful lobbying efforts. . . .” Defs.’ Mem. at 18-19 (citing Behrend v. Comcast Corp., 264 F.R.D. 150, 

165 (E.D. Pa. 2010)). The Court made no such holding. In the page of its decision recertifiying the Philadelphia 

Class cited by Comcast, this Court just stated that “[i]n reaching our conclusion on the common impact of clustering 

on overbuilding, however, we place no reliance on Dr. Singer’s opinions regarding Comcast’s lobbying activities,” 

based on the Noerr-Pennington doctrine. 264 F.R.D. at 175. 

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 Table 1, p. 10: showing the length of time from FCC approval date to franchise 

agreement date, has four RCN examples (Boston, New York City, Redwood City, CA, 

and Washington, D.C.) 

 Table 2, pp. 13-18: showing the required build-out times for overbuilders, cites seven 

areas in which RCN overbuilt (Collingdale Borough, PA, Norwood Borough, PA, 

Redwood City, CA, San Diego, CA, Tinicum Township, PA, Upper Darby Township, 

PA, and Yeadon Borough, PA) 

 Table 3, pp. 20-21: showing how fast overbuilders actually build out their systems, 

provides an RCN example (Boston, MA) 

These tables and the accompanying economic analysis show that the extent of overbuilding 

would have been the same throughout the five counties. Dr. William’s Report at 31.9

Service of all communities. Comcast raises a non sequitur in arguing that Class 

Plaintiffs must show that RCN would have served all communities in the five counties. The 

Supreme Court required nothing of the sort. The Supreme Court stated that Plaintiffs had to 

show only that “the extent of overbuilding (absent deterrence) would have been the same in all 

 

9

 Comcast’s further criticism of Dr. Williams’ economic analysis as not supported by the record (Defs.’ Mem. at 19 

n.12) is wrong and is directly contrary to the record. In its class certification decision, the Court already determined 

that it was not persuaded by Comcast’s arguments concerning the extent of RCN’s likely overbuilding absent 

Comcast’s anticompetitive conduct. Behrend v. Comcast Corp., 264 F.R.D. at 175 (stating, “We also are not 

persuaded by his [Dr. Teece’s] criticisms based on his assertions that it is unlikely that RCN would have overbuilt in 

each of these five counties” and that “[w]hat Dr. Teece considers ‘unlikely,’ Dr. Singer considers to be the common 

evidence of antitrust impact, namely that RCN was stymied in its efforts by Comcast’s predatory behavior.”). In its 

summary judgment ruling, the Court has already ruled that Class Plaintiffs have presented evidence sufficient to go 

to a jury on their market allocation section 1 claim under rule of reason analysis; that there is sufficient evidence to 

reach the jury that Comcast acted with predation toward RCN via its targeted discounts; that Plaintiffs provided 

“evidence from which a jury could find that Comcast’s conduct did deter overbuilding, as well as evidence that RCN 

stopped overbuilding because of Comcast’s conduct;” and that “the Class has met its summary judgment burden of 

presenting evidence sufficient to create a genuine fact issue on the antitrust impact theory that clustering deters 

overbuilding.” Behrend v. Comcast Corp., No. 03-6604, 2012 WL 1231794, at *17 and *32-33 (E.D. Pa. Apr. 12, 

2012). In its summary judgment decision, the Court further noted that it had credited Dr. Williams and the Class’s 

theory that clustering deters overbuilding in general, and noted that the Court had previously found this theory of 

antitrust impact “was supported by empirical evidence and was based upon the factual record.” Id. at *32. 

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counties,” not communities. Comcast, 133 S. Ct. at 1435 n.6. RCN’s actual FCC approval 

covering the specified communities in the five counties (Dr. William’s Report at 8) is entirely 

consistent with Dr. Williams’ conclusion that but for Comcast’s anticompetitive conduct, RCN 

would have overbuilt to the same extent in the five counties. Id. at 31. 

 Benefits of overbuilding. Plaintiffs have never contended that the benefits of 

overbuilding are limited to the specific overbuilt communities, and Comcast cannot cite to any 

statement by Dr. McClave or Dr. Williams to the contrary. In fact, Dr. McClave’s latest report 

expressly establishes that overbuilding in a county has a price effect throughout the county. Dr. 

McClave’s Report at 8. His report soundly rejects the hypothesis that only overbuilt 

communities benefit from competition. Id. 

CONCLUSION 

For the above reasons and those discussed in Class Plaintiffs’ Memorandum in Support 

of Motion for Certification of Revised Philadelphia Class, the Court should treat the Motion to 

Strike as Comcast’s substantive response to the Motion for Certification, deny the Motion to 

Strike, grant the Motion for Certification, and award Class Plaintiffs all other appropriate relief. 

Dated: October 8, 2013 Respectfully submitted, 

s/ David Woodward

Samuel D. Heins 

Vincent J. Esades 

David Woodward 

Jessica N. Servais 

HEINS MILLS & OLSON, P.L.C. 

310 Clifton Avenue 

Minneapolis, MN 55403 

Tel: (612) 338-4605 

Fax: (612) 338-4692 

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Barry Barnett 

Daniel H. Charest 

LeElle Krompass 

SUSMAN GODFREY L.L.P. 

901 Main Street, Suite 5100 

Dallas, TX 75202-3775 

Tel: (214) 754-1900 

Fax: (214) 754-1933 

Anthony J. Bolognese (#36937) 

Joshua H. Grabar (JHG 1707) (#82525) 

BOLOGNESE & ASSOCIATES, LLC 

Two Penn Center Plaza 

1500 JFK Boulevard, Suite 320 

Philadelphia, PA 19102 

Tel: (215) 814-6750 

Fax: (215) 814-6764 

Joseph Goldberg 

FREEDMAN BOYD HOLLANDER GOLDBERG 

URIAS & WARD, P.A. 

200 Third Street NW 

Albuquerque, NM 87102 

Tel: (505) 842-9960 

Fax: (505) 842-0761 

 Attorneys for Plaintiffs 

 

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CERTIFICATE OF SERVICE 

The undersigned attorney certifies that on this 8th day of October, 2013, he caused the 

foregoing document and related [Proposed] Order to be served on counsel of record via the 

Court’s ECF system. 

 s/ David Woodward

 David Woodward 

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