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U.S. Supreme Court Sidesteps Consumer Protection Class Action Question

By the narrowest possible margin, the Court sidestepped the opportunity to clarify what proof is necessary to certify a class action to protect consumers from high cable bills; but instead decided an issue of antitrust law.


AARP filed a friend-of-the-court brief to argue that customers who challenged Comcast cable practices could proceed as a class. They alleged that Comcast’s practices that keep competitors out of the market increased the cost of basic cable for customers.

Both a trial court and an appeals court ruled that the plaintiffs could proceed as a class without first proving how much the practice cost consumers, because the costs could be proved on a class wide basis at trial. If plaintiffs are required to prove the amount of their damages in order to get a class certified, it will make it very expensive to enforce important consumer protections and allow wrongdoers to evade statutory rights.

The U.S. Supreme Court decided not to decide the class action question it took the case to answer. Instead, the bare majority of the Court delved into the merits and ruled that the practice at issue was not anti-competitive and they therefore dismissed the dispute.  

A bitter dissent noted that both procedurally and substantively the Court had mis-stepped. The dissent argued that the decision should have been limited to the question before the Court regarding class certification. They thought the Court should have remanded the case to allow the trial court (and any appeals court that might be appropriate) to weigh the evidence and conduct the fact-finding the judicial process delineates to them. They also noted that the decision is by its nature limited narrowly to the dispute itself, so while the consumers lost in this case, the precedential value is limited.

What’s at Stake

Courts have made it much harder and more expensive for consumers to join together to challenge unlawful practices that cheat large numbers of consumers out of small amounts of money. Class action litigation is the only economical and practical way that individuals can challenge unlawful practices because the cost of individual litigation greatly exceeds the amount of money to be recovered if they win. Unless consumers can effectively challenge unlawful practices, wrong doers will be able to keep billions of dollars worth of ill-gotten gain at the expense of hardworking Americans.

Case Status

Comcast v. Behrend was decided by the U.S. Supreme Court.