Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—NDCal: Comcast Customer Denied Certification of Class Action, (May 6, 2013)

By Jody Coultas, J.D.

The proposed class of California Comcast customers was not certified by the federal district court in Oakland to pursue California consumer protection law claims against the company for allegedly misrepresenting fees related to its Triple Play service packages (Diacakis v. Comcast Corp., May 3, 2013, Armstrong, S.).

After signing up for Comcast’s services and receiving a bill, the customer alleged that Comcast misrepresented the terms of its services by failing to disclose a modem rental charge to potential customers. The customer sought to represent a class of California residents who purchased a bundled internet, cable television and telephone service package from Comcast, and who were charged rental or lease fees for the mandatory telephony modem equipment in addition to the bundled rate.

At the outset, the court noted that the class was overbroad as defined because it included "all Comcast subscribers" rather than only those subscribers that were misled.

Federal Rule of Civil Procedure 23(a) required the customer to show that the class was so numerous that joinder of all members would be impracticable, there were questions of law or fact common to the class, his claims were typical of the class, and he would adequately represent the class.

The customer failed to meet the Rule 23(a) requirements for certification, according to the court. Although the customer noted that there were thousands of Comcast customers that used the bundled services, there was no evidence concerning how many of those customers were misled by Comcast. Typicality is proven by evidence that class members had the same injury as the representative or that other class members were injured by the same course of conduct. Because there was no evidence that Comcast made uniform omissions or had standardized business practices, the customer could not show that his claims or injury were typical of other customers.

The court also declined to certify the class for failure to meet the requirements of Rule 23(b)(3). Under Rule 23(b)(3), a class may be certified if questions of law or fact common to class members predominate over any individualized questions, and if a class action is superior to other available methods for adjudicating the controversy. Because there was no central, uniform policy or practice by Comcast to mislead consumers or any particular advertisement that was misleading, the customer was unable to show that questions common to the class would predominate. The customer also failed to provide evidence that there were "thousands" of other Triple Play subscribers who were provided any misleading information by Comcast, or that the alleged misconduct may be addressed by regulatory agencies such as the Federal Communications Commission, the FTC, and the California Public Utilities Commission.

The case is No. C 11-3002 SBA.

Attorneys: Brian Russell Strange (Strange & Carpenter) for Athanassios Diacakis. Michael P. Daly (Drinker Biddle & Reath LLP) for Comcast Corp.

Companies: Comcast Corp.

Cases: Advertising StateUnfairTradePractices CaliforniaNews