Comcast Urges 3rd Circuit to Approve Set-Top Box Settlement Class

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Comcast Corp. has asked the 3rd U.S. Circuit Court of Appeals to reverse a lower court’s decision to reject a $15.5 million set-top box class action settlement, arguing that the Pennsylvania federal court used the incorrect Class certification standard.

In November, U.S. District Judge Anita B. Brody denied the proposed Comcast class action settlement, which would have required Comcast to pay $15.5 million to resolve allegations that it forced customers who purchased premium cable subscriptions to rent set-top boxes.

In making the decision to reject the proposed Comcast settlement, Judge Brody ruled that the plaintiffs had failed to come up with a reliable way to determine which former Comcast customers would be eligible to participate as Class Members because Comcast says it does not have records for individuals who were Comcast customers between 2005 and 2010. The judge found that having consumers submit sworn statements that they were Comcast subscribers was an unreliable procedure for identifying Class Members.

Earlier this week, Comcast told the 3rd Circuit that Judge Brody applied the ascertainability standard for a proposed litigation Class instead of a settlement Class.

“Accordingly, the issue presented is: Whether it was error to deny certification of a settlement class—on the sole ground that, because plaintiffs did not demonstrate a reliable and administratively feasible mechanism for proving class membership, the settlement class is not ascertainable—even though the settlement class is clearly defined by objective criteria, and the defendant has agreed that claimants can prove class membership by a method less rigorous than would be necessary to certify a litigation class,” Comcast states in its brief.

Comcast argues that it has already agreed to the class action settlement, which includes terms allowing claimants to prove Class membership “by a method less rigorous than necessary in court.” The cable company points to other cases in which settlement Classes were certified even if they would not have been qualified for certification during the litigation stage.

Comcast asserts that settlements are recognized by the courts as “creatures of private contract law” which allows the parties to reach a compromise. By agreeing to settle the set-top box class action lawsuit, Comcast says it has agreed to waive its due process rights.

If this Comcast settlement is approved, it would resolve 24 class action lawsuits that accuse the cable company of illegally tying the sale of its premium cable services to the rental of a set-top box. In 2009, the Comcast class action lawsuits were consolidated as In re: Comcast Corp. Set-Top Cable Television Box Antitrust Litigation in Pennsylvania federal court. The parties reached the proposed class action settlement in September.

The plaintiffs are represented by Kenneth A. Wexler, Amy E. Keller and Justin N. Boley of Wexler Wallace LLP and Dianne M. Nast and Erin C. Burns of NastLaw LLC.

The Comcast Set-Top Box Class Action Lawsuit is In re: Comcast Corp. Set-Top Cable Television Box Antitrust Litigation, Case No. 15-3983, in the U.S. Court of Appeals for the Third Circuit.

UPDATE: On Sept. 5, 2018, a federal judge preliminarily approved the fourth amended version of the Comcast set-top box class action lawsuit settlement. The judge noted, however, that the notice proposed needs to be further modified to cure some deficiencies.

UPDATE 2: March 2019, the Comcast set-top box rental fees class action settlement is now open. Click here to file a claim. 

UPDATE 3: On Sept. 24, 2019, the $15.5 million Comcast set-top box class action settlement was granted final approval by a federal judge.