Yesterday, the Supreme Court heard oral argument in the class action case Comcast v. Behrend. U.S. Supreme Court Case No. 11-864. We have previously written here about the facts and issues in the case. 

The Comcast plaintiffs allege that Comcast monopolized Philadelphia’s cable market and excluded competition in violation of the Sherman Act. The class includes more than two million current and former subscribers alleging that Comcast overcharged them by approximately $875 million over the class period.

In its petition for certiorari, Comcast asked the Court to address a broad question: Whether a class action may be certified without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification.

But the Court redrafted and narrowed the question to be decided, focusing on whether a district court must insist on “admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

Plaintiffs contend that Comcast failed to raise — and therefore waived — important issues regarding the admissibility of damages evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In fact, the New York Times notes that several justices expressed a sort of buyer’s remorse about how the case reached the Court. For example, in an exchange with Comcast’s counsel, Justice Kagan explained the Court’s thinking and how it might have misfired in accepting and reformulating the question presented. “We wanted to decide a legal question, rather than a question about who was right as to this particular expert’s report and how strong it was,” she said. “And it turns out that as to that legal question, your clients waived their argument that this was inadmissible evidence.”

Chief Justice John Roberts suggested an alternative. "One option for the court, since we did reformulate the question, is to answer the question," and then ask a lower court to decide whether Comcast had waived its right to address it.

On the other hand, Reuters notes that the waiver issue aside, Justice Kennedy appeared sympathetic to Comcast on the legal question presented. "The judge has to make a determination that in his view the class can be certified," he said. "And that includes some factual inquiries as to the damages alleged."

We will continue to follow this case as it moves toward a final disposition in the Court.