This week, we ask the question: what happens to a class action after the defendants win an appeal?

The case posing this question is Glaberson v. Comcast Corp., No. 03-6604, 2013 U.S. Dist. LEXIS 160892 (E.D. Pa. Nov. 12, 2013). And the facts should be familiar: Glaberson is the current name for the case the Supreme Court heard as Comcast Corp. v. Behrend. 

After the Supreme Court reversed Behrend, the parties began litigating the question of what happened to the case next. The plaintiffs argued that they should have the opportunity to file another motion for class certification (their third), based on more specific expert testimony that would model damages based only on the court-accepted overbuild theory. The defendants argued that if the Supreme Court had meant to remand the case for further proceedings, it would have used the word "remand" somewhere in its order, instead of simply saying that the Third Circuit’s judgment was "reversed."

The debate turns on a doctine known as the "law of mandate," which determines what discretion a court has when it receives a case from a higher appellate court.

The Eastern District of Pennsylvania trial court held that

Based on the Third Circuit’s law of mandate authorities, we find that the Supreme Court’s mandate in Comcast Corp. does not preclude a new motion on behalf of the Plaintiffs for certification of a narrowed class based on a revised antitrust impact analysis. That case law clearly states that any issue left open by an appellate court may be addressed at the discretion of the district court, as long as it is consistent with the appellate court’s decision, irrespective of an explicit order remanding the matter for further proceedings.

(Emphasis added.)  More specific to the case at hand, the trial court found that the Supreme Court’s ruling clearly contemplated that plaintiffs might get another chance to prove their case.

Importantly, the Supreme Court did not decide as a matter of law that class-wide proof could never be established. Rather, the Supreme Court’s opinion clearly contemplates that a damages model that measured only the antitrust impact of the overbuilding theory, and also plausibly showed that the extent of overbuilding, absent deterrence would have been the same in all counties, or that the extent was irrelevant to any effect upon Comcast’s ability to charge supra-competitive prices, could be common evidence.

The takeaway here is an important one. When appealing a certification ruling, be prepared for the plaintiff to take another shot at certification, even if you win.