In Comcast Corp. v. Behrend the court will look at whether class action certification can be granted without first proving class damages, as opposed to simply finding that the damages are capable of being awarded on a classwide basis. The plaintiffs challenged Comcast cable practices, claiming they are anticompetitive and raise the cost of basic cable for viewers. The U.S. Court of Appeals for the Third Circuit agreed with the district court that the plaintiffs need not prove their damages to have the class certified, because the plaintiffs proved the damages are capable of being proved on a classwide basis at trial. This case has the potential to severely limit the ability of consumers to enforce their rights, because it could make it too difficult and expensive to bring class action litigation. Class action litigation is often the only way consumers can obtain remedies for practices that cost a large number of people a small amount of money but result in billions of dollars of profits for unscrupulous companies.
Monopolistic activities are also in question in FTC v. Phoebe Putney Health Systems, which examines whether state immunity of federal antitrust laws applies when a local hospital authority buys the only competing hospital in a rural county. While AARP will not file an amicus brief in this case, it is watching the debate closely, as there is extensive evidence that hospital mergers have been shown to increase prices and reduce quality of care.
Another case that AARP is watching but will not file a brief on involves whether extending the statute of limitations is permissible for hospitals filing appeals to the Provider Reimbursement Review Board in their efforts to obtain payments statutorily due for services provided to patients under the Medicare program when, as the hospitals contend, the Centers for Medicare and Medicaid Services (CMS) failed to calculate and provide accurate reimbursements in a timely manner. The answer could have an impact on hospitals and result in the Medicare system's facing substantial liability.
Discussed above are cases the Supreme Court has agreed to hear. Still in the pipeline are cases with respect to which the court has not yet determined whether it will grant review, including those on the ADEA, Medicare reimbursement rates, pharmaceutical and medical process patents, the collective bargaining rights of Medicaid home care personal assistants, the rights of Medicaid beneficiaries and providers, standards that pension plan managers must meet in making investment decisions, disability rights, the ability to enforce fair-housing laws against facially neutral laws that have a disparate impact on a protected class, class action rights of consumers and, last but not least, voting rights. Closely watched in this hotly contested election year are cases from a number of states that have enacted restrictive voter-ID laws that threaten to disenfranchise poor, disabled and older voters.
Stuart Cohen is AARP Foundation Litigation senior vice president.