The Values and Consequences of Antitrust Damages
Volume 90, No. 3, Spring 2018
By Kevin Trainer [PDF]

Justice Scalia was right. Five years ago, in Comcast Corp. v. Behrend, the Supreme Court held that the trial court improperly certified a class of cable subscribers. The opinion, authored by Justice Scalia, found that the economic model used to measure damages resulting from alleged antitrust violations could not accurately compute damages on a class-wide basis. “For all we know,” Justice Scalia concluded for the five-justice majority, subscribers to Comcast cable services could have been injured by any number of antitrust violations. “[C]able subscribers in Gloucester County,” Justice Scalia supposed, “may have been overcharged because of petitioners’ alleged elimination of satellite competition.” He continued, “subscribers in Camden County may have paid elevated prices because of petitioners’ increased bargaining power vis-à-vis content providers,” while subscribers in Montgomery County “may have paid rates produced by the combined effects of multiple forms of alleged antitrust harm.” According to Justice Scalia, and the four Justices who joined him, “[t]he permutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless.”

Kevin Trainer is a J.D. Candidate, Temple University Beasley School of Law, 2018.