EXHIBIT 1

Case 2:03-cv-06604-JP Document 567-1 Filed 10/11/13 Page 1 of 7
103220 

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’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ 

MOTION FOR LEAVE TO FILE A REPLY IN FURTHER SUPPORT 

OF THEIR MOTION TO STRIKE 

INTRODUCTION 

Class Plaintiffs oppose Defendants’ Motion for Leave to File a Reply in Further Support 

of Their Motion to Strike. Class Plaintiffs stand upon all of their reasons for denying Comcast’s 

Motion to Strike contained in their memorandum in support of Motion for Certification of 

Revised Philadelphia Class (“Motion to Certify”) and in Class Plaintiffs’ Reply Memorandum in 

Support of Plaintiffs’ Motion for Certification of Revised Philadelphia Class and Opposition to 

Defendants’ Motion to Strike. Comcast’s attempt to delay resolution of Plaintiffs’ Motion to 

Certify by filing a Motion to Strike focusing on the previously briefed rule of mandate issues 

rather than on Comcast’s “futility” assertion, as requested by the Court, and now seeking an 

additional 90 days in order to respond to the Motion to Certify, is not consistent with the Court’s 

June 21, 2013 Order or the procedure discussed at the June 19, 2013 status conference and 

invites months of unnecessary delay. If the Court denies Comcast’s Motion to Strike, Class 

Plaintiffs propose that a scheduling order be entered in order to expedite the Court’s 

consideration of and ruling upon Class Plaintiffs’ Motion to Certify by setting a reasonable 

briefing schedule and setting a hearing at the Court’s earliest available date. 

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ARGUMENT 

Class Plaintiffs’ position that Comcast should have included in its response not just a 

motion to strike but its complete substantive opposition to Class Plaintiffs’ Motion to Certify is 

consistent with the Court’s June 21, 2013 Order, the transcript of the June 19, 2013 status 

conference and the Court’s overall desire to manage this case efficiently. The process Comcast 

adopted simply invites further, unnecessary delays. 

The Court’s June 21, 2013 Order directs that Plaintiffs file their motion to recertify the 

proposed Philadelphia class by August 19, 2013 and include all supporting expert reports, and 

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

Plaintiffs shall file a reply “to the Defendants’ Response by October 21, 2013.” Order at 1 (ECF 

No. 554). 

At the June 19, 2013 status conference hearing, the Court requested that Comcast address 

– and concentrate on – the “futility” argument, its argument that Class Plaintiffs’ Motion to 

Certify would purportedly be futile. The Court stated it did not wish to “waste a lot of time on 

arguing futility if it really requires a factual hearing.” June 19, 2013 Status Conf. Tr. at 32:6-7 

(ECF No. 556). The exchange between the Court and Comcast’s counsel at the status conference 

hearing included the following: 

THE COURT: My comments only relate to the soundness 

of a futility argument, okay? If there is no support except 

conclusions in the motion for this alternative in Footnote 6 

or if there’s no support, well, then of course it’s futile to 

allow the motion to go forward. 

But if there is support then the motion goes forward 

and we have to have a hearing and determine as a matter of 

fact whether or not there was a plausible showing. 

MR. KORPUS: Yes, provided, your Honor, that you 

find that you are not directed by the mandate or you’re not 

exercising your discretion to prevent them from filing 

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another– 

THE COURT: I'm past that point. I’m only at the 

futility – that’s right. It may be, it may be that it goes 

at the first stop, I understand. 

MR. KORPUS: That, I think that’s correct, your 

Honor, but I think that we believe, based on their own 

allegations and the record in this case, other than just 

conclusions by Dr. Williams, it would be a very hard showing 

to make. And you’ll be able to tell that from the papers and 

if not, then you’ll tell us. 

THE COURT: Well, the only thing I’m suggesting is 

that let’s not waste a lot of time on arguing futility if it 

really requires a factual hearing to determine the ultimate 

fact and that is whether or not there is evidence of 

commonality. 

MR. KORPUS: We are not proposing as part of a 

threshold motion to present you with any factual dispute, 

your Honor. 

Id. at 31:9-32:12. Class Plaintiffs understood from the Court’s comments that Comcast’s 

“Response” to the Motion to Certify would focus on what the Court directed – the “futility” 

issue. That issue necessarily involves Comcast’s substantive opposition to the merits of the 

Motion to Certify. And the predicate issue of the Court’s jurisdiction to entertain the Motion to 

Certify had already been addressed by the parties in their 12-page joint status conference 

statement submitted on June 12, 2013. As the Court observed at the status conference hearing: 

THE COURT: And I mean the issue of whether or not the 

motion should be allowed to go forward it seems to me will 

not take us long to decide. I suspect that I mean we have 

the heart of each person’s position right here in the written 

submissions. That’s why, I mean, you’ve asked for a 

significant period of time to file a partial response to the 

motion, namely a request to dismiss. I’m really not 

comfortable with that. 

Id. at 25:15-22. The Court later remarked: 

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THE COURT: I mean they raised the issue clearly, there’s 

no dispute here. 

MR. HOCKETT: I completely agree, your Honor. The only 

issue is really just the futility argument which gets a little 

bit more into the substance. So I think once, once that’s 

teed up, then the issue is if matters proceed, how much 

time. 

THE COURT: That’s a good, good point. Let’s focus on 

the futility argument and how, where and when we should 

address the futility argument. 

Id. at 26:16-25. From these comments, Class Plaintiffs understood that the Court wished to 

expedite resolution of the Motion to Certify and avoid “wasting a lot of time on futility” by 

packaging any motion to dismiss or strike with Comcast’s substantive “futility” arguments 

addressing the merits of Class Plaintiffs’ Motion to Certify. That would move the process 

forward. That is why Class Plaintiffs affirmatively included in their opening memorandum 

supporting their Motion to Certify additional briefing on the issues of the rule of mandate and 

this Court’s ongoing authority over class certification proceedings under Rule 23(c)(1)(C). And 

that is why Class Plaintiffs’ filed their memorandum in further support of its Motion to Certify 

and in opposition to Comcast’s motion to strike in about half the 30-day time period allowed 

under the Court’s June 21 Order. 

 Rather than focus the “Response” the Court directed Comcast to file by September 19 on 

the “futility” issue, Comcast chose to devote 14 pages of its Motion to Strike memorandum to 

the rule of mandate issue and whether this Court should exercise its Rule 23(c)(1)(C) discretion, 

and spent a mere 2 1⁄2 pages on the “futility” argument. Class Plaintiffs have fully responded to 

Comcast’s arguments, including its unsupported “futility” assertions. Pls.’ Reply (ECF No. 

565). Comcast now proposes that if the Court denies its Motion to Strike, it should be allowed 

an additional 90 days to file additional substantive opposition to Class Plaintiffs’ Motion to 

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Certify and to file expert reports in opposition. Comcast’s proposal simply invites additional, 

unwarranted delays. 

 If the Court denies Comcast’s Motion to Strike, Class Plaintiffs respectfully include an 

alternative [Proposed] Order setting an appropriate briefing schedule for completion of briefing 

on Class Plaintiffs’ Motion to Certify. The [Proposed] Order directs Comcast to submit any 

further opposition to Class Plaintiffs’ Motion to Certify 30 days after any order denying its 

Motion to Strike. Additionally, the accompanying [Proposed] Order provides 45 days for Class 

Plaintiffs to submit a reply, together with any rebuttal expert reports, within 45 days of 

Comcast’s opposition. We respectfully point out that Comcast has had almost two months (since 

the filing of Class Plaintiffs’ Motion to Certify), and nearly four months since the submission of 

the parties’ joint status conference statement in which Class Plaintiffs indicated their intent to file 

their Motion to Certify, to develop their substantive opposition. The accompanying [Proposed] 

Order would set a date for any needed hearing on Class Plaintiffs’ Motion to Certify, which 

Class Plaintiffs respectfully urge be set at the Court’s earliest convenience. 

Dated: October 11, 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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