New York antitrust and sports law attorney Jeffrey Kessler of Winston & Strawn explains how Comcast v. Behrend has impacted antitrust law.
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The Comcast case is a decision about class certification. And what the Supreme Court said is when you’re going to certify a class of people in an antitrust case or in any other case but focusing on antitrust, you have to be able to show that there’s a common reliable way to prove that all the class members were in fact, hurt. Because if some of the class members were hurt and other were not hurt and you have to go through that one by one through thousands of millions of class members then you can’t have a class action. And this was a very, very important decision because there is a problem in antitrust law where many, many class actions get filed and some of them it’s impossible to manage them, to decide who’s been injured. But the threat of there being a class action will force companies to sometimes settle unfairly even though the consumers don’t benefit at all. The class action lawyers might benefit but the consumers don’t really benefit or the other members of the class, so this decision by the Supreme Court has become very influential. And in fact, we recently been able to use that decision in a number of cases where courts are starting to really test this issue of whether or not you can really compensate the class and decide if there’s injury to all or is this something that’s just not possible?