DocketNumber： 10-2865
Judges： Fisher, Jordan, Aldisert
Filed Date： 8/23/2011
Status： Precedential
Modified Date： 11/5/2024
OPINION OF THE COURT
In 2008 this Court handed down the seminal case of In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008), which outlines the standards a district court should apply in deciding whether to certify a class. This appeal by Com-cast requires us to decide if the District Court for the Eastern District of Pennsylvania properly satisfied Hydrogen’s directions in determining that questions of fact or law common to class members predominate sufficiently to satisfy Rule 23(b)(3) of the Federal Rules of Civil Procedure. Appellants contend that the District Court exceeded a proper exercise of discretion and that its findings of fact were clearly erroneous. For the reasons that follow, we hold that the Court did not exceed its permissible discretion in determining that Plaintiffs established by a preponderance of evidence that they would be able to prove through common evidence (1) class-wide antitrust impact (higher cost on non-basic cable programming), and (2) a common methodology to quantify damages on a class-wide basis. Accordingly, we will affirm.
I.
A.
“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897).
Beginning in 1998, Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable Communications, Inc., Comcast Cable Communications Holdings, Inc., and Comcast Cable Holdings, LLC (collectively “Comcast”) engaged in a series of transactions that increased Com-cast’s share of the multichannel video programming distribution services offered in the Philadelphia Designated Market Area (“Philadelphia DMA”).
Plaintiffs, six non-basic cable television programming services customers of Com-cast, brought a class action antitrust suit against Comcast in 2003. They alleged violations of section 1 of the Sherman Act, 15 U.S.C. § 1, for “imposing horizontal territory, market and customer allocations by conspiring with and entering into and implementing unlawful swap agreements, arrangements or devices,” and section 2 of the Sherman Act, 15 U.S.C. § 2, on theories of monopolization and attempted monopolization.
The proposed class included: “All cable television customers who subscribe or subscribed at any time since December 1, 1999, to the present to video programming services (other than solely to basic cable services) from Comcast, or any of its subsidiaries or affiliates in Comcast’s Philadelphia cluster.” App. 00217; see id. (excluding from the class “governmental entities, Defendants, Defendants’ subsidiaries and
The Complaint alleged that Comcast had perpetrated an anticompetitive “clustering scheme.” To clarify its contentions we pause to define two key terms. “Clustering” refers to a “strategy whereby cable [Multi-System Operators (“MSOs”) ] concentrate their operations in regional geographic areas by acquiring cable systems in regions where the MSO already has a significant presence, while giving up other holdings scattered across the country. This strategy is accomplished through purchases and sales of cable systems, or by system ‘swapping’ among MSOs.” Implementation of the Cable Television Consumer Prot. & Competition Act of 1992, 22 F.C.C. Red. 17791, 17810 n. 134 (2007) (citation omitted). An “overbuilder” is a company that builds and offers customers a competitive alternative where a telecommunications company already operates. According to the Complaint, Comcast eliminated competition by (1) acquiring competitors in the Philadelphia market and (2) swapping with competitors cable systems and subscribers outside of the Philadelphia market for cable systems and subscribers within the Philadelphia market. The Complaint also alleged that Comcast engaged in conduct intended to exclude competition from overbuilder RCN Telecom Services, Inc. (“RCN”), by denying it access to “Comcast Sportsnet,” requiring contractors to enter non-compete agreements, and inducing potential customers to sign up for long contracts with special discounts and penalty provisions in the areas where RCN intended to overbuild. App. 00235-239.
As a result of its clustering, Comcast allegedly harmed the class by eliminating competition, raising entry barriers to potential competition, maintaining increased prices for cable services at supra-competitive levels, and depriving subscribers of the lower prices that would result from effective competition. App. 00241-242. In other words, Comcast subscribers allegedly pay too much for their non-basic video programming cable service.
B.
On May 3, 2007, after extensive motions practice, see App. 00148-172 (listing 194 docket entries prior to certification), the District Court certified the proposed class. App. 00354. It determined that Plaintiffs had met the requirements of Rule 23(a) of the Federal Rules of Civil Procedure (numerosity, commonality, typicality, and adequacy). App. 00366-372. It held also that Plaintiffs had met the predominance and superiority requirements of Rule 23(b). App. 00373-387. We denied on June 29, 2007, Comcast’s 23(f) petition seeking interlocutory review.
The Court also certified the Chicago class’s claims, but stayed them pending the outcome of the Philadelphia class. App. 00177, 00179.
The District Court held an evidentiary hearing on October 13-15 and 26, 2009. During the four-day hearing, the Court heard live testimony from fact and expert witnesses, considered 32 expert reports, and examined deposition excerpts, as well as many other documents. Following the hearing, the Court issued to the parties a series of questions related to antitrust impact and damages methodology, and heard argument on November 16, 2009, to address its specific questions.
On January 7, 2010, the District Court recertified the Philadelphia class, and issued an amended class certification order on January 13, 2010. The Court reaffirmed and incorporated its May 2007 certification as to numerosity, commonality, typicality, and adequacy (Rule 23(a)), as well as superiority (Rule 23(b)(3)). App. 00029. On the disputed issue of predominance, the Court held that Plaintiffs had demonstrated by a preponderance of the evidence that: (1) questions of law and fact common to the members of the class predominated; (2) the relevant geographic market could be the Philadelphia Designated Market Area; (3) the class could establish antitrust impact on the theory that Comcast’s clustering through the swaps and acquisitions deterred overbuilder competition; (4) the models and analyses of Plaintiffs’ damages expert, Dr. James McClave, were common evidence available to measure and quantify damages on a class-wide basis; and (5) the class could establish antitrust impact through common evidence applicable to all class members. App. 00030. In certifying the class, however, the District Court narrowed the class’s various theories of class-wide impact to a single theory:
Proof of antitrust impact relative to such claims shall be limited to the theory that Comcast engaged in anticompetitive clustering conduct, the effect of which was to deter the entry of overbuilders in the Philadelphia DMA.
App. 00032.
The Court accompanied its order with an 81-page memorandum opinion containing its analysis of the evidence presented at the evidentiary hearing. Behrend v. Comcast Corp., 264 F.R.D. 150 (E.D.Pa. 2010). The Court summarized its opinion as follows:
Having rigorously analyzed the expert reports, as well as the testimony presented by the parties during a four-day evidentiary hearing, we conclude that the class has met its burden to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members, and that there is a common methodology available to measure and quantify damages on a class-wide basis.
Id. at 154.
Comcast filed a Rule 23(f) petition to appeal on January 27, 2010. While that petition was pending, Comcast moved for summary judgment. The class responded, and Comcast filed a reply on June 4, 2010. We granted Comcast permission to appeal on June 9, 2010. The motion for summary judgment remains pending in the District Court.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337. We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules of Civil Procedure.
“We review a class certification order for abuse of discretion, which occurs if the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Hydrogen Peroxide, 552 F.3d at 312 (citation and quotations omitted). We review de novo whether an incorrect legal standard has been used. Id. (citation omitted).
For a district court’s finding of fact to be clearly erroneous, the standard is high. “Clearly erroneous” has been interpreted to mean that a reviewing court can upset a finding of fact, even if there is some evidence to support the finding, only if the court is “left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). This means that “[i]t is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972). Especially pertinent to the issue before us, the Supreme Court has explained:
This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.... In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotations and citations omitted); accord PA Prison Soc’y v. Cortes, 622 F.3d 215, 231 (3d Cir.2010).
III.
Comcast raises three principal arguments on appeal, urging us to overturn the District Court’s certification order on the grounds that: (1) the Court’s finding that the class can establish class-wide antitrust impact through common evidence was incorrect for various reasons; (2) the District Court exceeded its discretion in accepting Plaintiffs’ proposed methodology for damages calculation; and (3) the Court’s certification of a per se antitrust claim was clear error. In response, Plaintiffs defend in all respects the District Court’s certification decision. We first outline the Rule 23 legal framework and then analyze each of Comcast’s contentions.
Rule 23 of the Federal Rules of Civil Procedure allows a class action if certain requirements are met. First, the class must meet the “prerequisites” of Rule 23(a): numerosity, commonality, typicality, and adequacy. Second, the class must fit one of the Rule 23(b) types of classes. Here, Plaintiffs seek certification under Rule 23(b)(3), which requires (1) “that the questions of law or fact common to class members predominate over any questions
The district court must conduct a “rigorous analysis” of the evidence and arguments in making the class certification decision. Hydrogen Peroxide, 552 F.3d at 318. The analysis requires “a thorough examination of the factual and legal allegations” and “may include a preliminary inquiry into the merits.” Id. at 317 (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166, 168 (3d Cir.2001)). We explained in Hydrogen Peroxide the permissible extent of any inquiry into the merits:
[T]he requirements set out in Rule 23 are not mere pleading rules. The court may delve beyond the pleadings to determine whether the requirements for class certification are satisfied.... An overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met. Some uncertainty ensued when the Supreme Court declared in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), that there is “nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Only a few years later, in addressing whether a party may bring an interlocutory appeal when a district court denies class certification, the Supreme Court pointed out that “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’ ” [Coopers & Lybrand v.] Livesay, 437 U.S. [463,] 469, 98 S.Ct. 2454 [57 L.Ed.2d 351 (1978) ] (quoting Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963)). As we explained in Newton, 259 F.3d at 166-69, Eisen is best understood to preclude only a merits inquiry that is not necessary to determine a Rule 23 requirement. Other courts of appeals have agreed.
552 F.3d at 316-317 (quotations and citations omitted).
Plaintiffs bear the burden of establishing each element of Rule 23 by a preponderance of the evidence. Id. at 320 (“[T]o certify a class the district court must find that the evidence more likely than not establishes each fact necessary to meet the requirements of Rule 23.”) (citation omitted). The court must also examine critically expert testimony on both sides and may be persuaded by either side as to whether a certification requirement has been met. Id. at 323. Indeed, “[weighing conflicting expert testimony at the certification stage is not only permissible; it may be integral to the rigorous analysis Rule 23 demands.” Id.
Reviewing a district court’s certification of a class, we examine the elements of the class’s claims “through the prism” of Rule 23. Id. (quoting Newton, 259 F.3d at 181). The elements of the claims before us are (1) a violation of the antitrust laws (here, sections 1 and 2 of the Sherman Act), (2) individual injury resulting from that violation, and (3) measurable damages. See id. Individual injury, also known as antitrust impact, “is critically important for the purpose of evaluating Rule 23(b)(3)’s predominance requirement because it is an element of the claim that may call for individual, as opposed to common, proof.” Id. At the class certification stage, Plaintiffs’ burden is “to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members.” Id. at 311— 312.
IV.
Comcast devotes much of its energy to contending that the District Court exceeded its discretion in holding that Plaintiffs had established common evidence of antitrust impact. It attacks this issue in two ways: first, that the District Court failed to apply the correct legal standard for determining the relevant geographic market, and, second, that the District Court made clearly erroneous factual findings by relying on Plaintiffs’ expert for proof of class-wide antitrust impact. We address each contention in turn.
A.
Before the District Court, Plaintiffs contended that the relevant geographic market was the Philadelphia Designated Market Area, whereas Comcast countered that it was each individual’s household. The District Court agreed with Plaintiffs. Behrend, 264 F.R.D. at 160. Plaintiffs’ expert, Dr. Michael Williams, provided seven bases to support the conclusion that the relevant geographic market was the Philadelphia DMA. The District Court set forth each basis, as well as Comcast’s counterarguments. 264 F.R.D. at 157-160. The Court stated that Comcast’s focus on the individual household was not supported by the record, and that setting such a small market would be “impractical and inefficient.” 264 F.R.D. at 160. Instead, the Court noted that the alleged conduct centered on Comcast’s attempt to acquire substantially all of the cable systems in the Philadelphia DMA, and that the Federal Communications Commission aggregates relevant geographic markets in which customers face “similar competitive choices.” 264 F.R.D. at 160. The Court concluded, “[T]he record evidence shows that consumers throughout the DMA can face similar competitive choices and suffer the same alleged antitrust impact resulting from Comcast’s clustering conduct in the Philadelphia DMA.” 264 F.R.D. at 160.
Comcast contends that the Court failed to articulate or apply the correct legal
Plaintiffs respond at three levels. First, they contend that they need not define the relevant geographic market: per se claims do not require defining the geographic market, and they offered direct evidence of market power, thereby relieving them of the obligation to define the relevant geographic market. Second, Plaintiffs state that the District Court used the commercial realities test to determine the relevant geographic market and did not ignore demand substitutability. Third, according to Plaintiffs, Comcast cannot demonstrate clear error in the Court’s factual determination that “consumers throughout the [Philadelphia] DMA can face similar competitive choices.” See Behrend, 264 F.R.D. at 160.
B.
We will affirm the District Court’s conclusion that the Philadelphia DMA is a relevant geographic market “susceptible to proof at trial through available evidence common to the class.” 264 F.R.D. at 160.
The relevant geographic market is a component of substantive antitrust law. For antitrust claims analyzed through the rule of reason, plaintiffs must demonstrate that the defendant possessed market power in the relevant geographic market. See Pa. Dental Ass’n v. Med. Serv. Ass’n of Pa., 745 F.2d 248, 260 (3d Cir.1984). For per se claims, plaintiffs need not establish a geographic market. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 316-317 (3d Cir.2010) (explaining that some prohibited practices can be conclusively presumed to unreasonably restrain competition). Additionally, “direct proof of monopoly power does not require a definition of the relevant market.” See Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 307 n. 3 (3d Cir.2007).
Defining the relevant geographic market, however, is an issue of the merits. See, e.g., Borough of Lansdale v. Phila. Elec. Co., 692 F.2d 307 (3d Cir.1982) (addressing on appeal whether jury verdict should be set aside because of allegedly erroneous definition of relevant geographic market). At the class certification stage, a court need only be satisfied that issues— including the definition of a geographic market — will be capable of proof through evidence common to the class. See Hydrogen Peroxide, 552 F.3d at 311; IIA Phillip E. Areeda et al., Antitrust Law ¶ 398b (3d ed.2007) (describing that at the class certification stage the plaintiffs’ expert typically concludes that “any significant economic issues underlying the class representative’s antitrust claims, including but not limited to issues regarding market definition ... will be analyzed and proven through the use of common data and evidence that would be used to prove the claims of the other members of the proposed Class”) (emphasis added). If the plaintiffs allege per se claims, they may still need to persuade the district court that, in the event defining the relevant geographic market becomes necessary, it is capable of common proof. See Areeda et al., supra, ¶ 398b.
The inquiry before the District Court, therefore, was whether Plaintiffs
C.
First, we perceive no legal error in the District Court’s reasoning. Procedurally, it conducted the required “rigorous analysis” by examining in depth the expert opinions on both sides and setting forth its conclusions. See Hydrogen Peroxide, 552 F.3d at 317, 320. Substantively, the Court determined that “the record evidence shows that consumers throughout the DMA can face similar competitive choices and suffer the same alleged antitrust impact resulting from Comcast’s clustering conduct in the Philadelphia DMA.” 264 F.R.D. at 160. Comcast contends that the Court failed to apply the consumer demand substitutability test, which defines the relevant geographic market as “that area in which a potential buyer may rationally look for the goods or services he seeks.” Gordon v. Lewistown Hosp., 423 F.3d 184, 212 (3d Cir.2005) (citing Pa. Dental Ass’n, 745 F.2d at 260). We determine otherwise: the Court’s analysis of the relevant geographic market for purposes of class certification comported with our precedent.
“[Identification of the relevant geographic market is a matter of analyzing competition.” Borough of Lansdale v. Phila. Elec. Co., 692 F.2d 307, 311 (3d Cir.1982). Defining it “is a question of fact to be determined in the context of each case in acknowledgment of the commercial realities of the industry being considered.” Gordon, 423 F.3d at 212 (quoting Borough of Lansdale, 692 F.2d at 311). In these decisions of our Court, one of which has commanded our attention for almost thirty years, we relied on two Supreme Court cases to develop this standard: United States v. Grinnell Corp., 384 U.S. 563, 576, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), which held that the relevant geographic market under the Sherman Act was “not the several local areas which the individual stations serve, but the broader national market that reflects the reality of the way in which they built and conduct their business,” and Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 332, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), which defined the relevant geographic area for § 3 of the Clayton Act, 15 U.S.C. § 3, as “the market area in which the seller operates, and to which the purchaser can practicably turn for supplies” or as the area in which suppliers “effectively compete.” In another Clayton Act case, the Supreme Court stated: “The geographic market selected must, therefore, both correspond to the commercial realities of the industry and be economically significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.” Brown Shoe Co. v. United States, 370 U.S. 294, 336-337, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (quotations and citations omitted); see Grinnell, 384 U.S. at 572, 86 S.Ct. 1698
D.
The District Court’s determination— that consumers “face similar competitive choices” in the Philadelphia DMA as a result of Comcast’s alleged clustering conduct — is consistent with the above standards because it considers both where a buyer may rationally look for goods and the commercial reality of the industry. Comcast’s insistence that the geographic market must be the individual household (as the only place where a consumer can “comparison shop”) ignores that the geographic market must be “economically significant,” Brown Shoe Co., 370 U.S. at 336— 337, 82 S.Ct. 1502, and may be premised on “the commercial realities of the industry being considered,” Borough of Lansdale, 692 F.2d at 311, the area where suppliers “effectively compete,” Tampa Electric Co., 365 U.S. at 332, 81 S.Ct. 623, or the broader market reflecting the reality of conducting business, Grinnell, 384 U.S. at 576, 86 S.Ct. 1698.
E.
Second, we recognize ample evidence in the record supporting the District Court’s factual findings underpinning its market determination, which precludes us from reversing those findings as clearly erroneous. See, e.g., EBC, Inc. v. Clark Bldg. Sys. Inc., 618 F.3d 253, 273 (3d Cir.2010) (“We will not reverse ‘[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety’ even if we would have weighed that evidence differently.” (quoting Anderson, 470 U.S. at 573-574, 105 S.Ct. 1504)). The Court cited Dr. Williams’s seven bases for drawing the geographic market as the Philadelphia DMA. Behrend, 264 F.R.D. at 157-160. Although it rejected three of those bases, the remaining four tended to show that Comcast’s clustering had anti-competitive effects in the Philadelphia DMA by deterring overbuilders from entering the Designated Market Area, and that the industry itself used DMAs to focus its competition. Additional evidence in the record, reviewed in detail below, demonstrated that clustering results in fewer competitors and higher cable prices for the entire market. This evidence belies Com-cast’s claim that there is no change at the individual level when Comcast aggregates surrounding franchises.
Simply put, the District Court determined by a preponderance of the evidence that, when addressed on the merits, the class may be able to prove through common evidence that the relevant geographic
V.
Comcast hinges its next line of arguments on the District Court’s final certification: “Proof of antitrust impact relative to such claims shall be limited to the theory that Comcast engaged in anticompetitive clustering conduct, the effect of which was to deter the entry of overbuilders in the Philadelphia DMA.” App. 00032. According to Comcast, the District Court made clearly erroneous findings of fact by relying on Plaintiffs’ expert, Dr. Williams, in support of the certified theory of antitrust impact.
The District Court considered in great detail the arguments presented by both sides. It rejected three of Plaintiffs’ four theories of class-wide impact. Behrend, 264 F.R.D. at 166 (rejecting theory of direct broadcast satellite (“DBS”) foreclosure); id. at 177-178 (rejecting benchmark theory); id. at 181 (rejecting bargaining power theory). Nonetheless, it accepted that Plaintiffs could establish class-wide antitrust impact on the theory of clustering and its impact on overbuilder competition. After detailing the evidence put forth by both sides, id. at 166-74, the Court concluded that “the Class has met its burden to demonstrate that the anti-competitive effect of clustering on over-builder competition is capable of proof at trial through evidence that is common to the class,” id. at 174. The Court found that through the model of Plaintiffs’ expert, Dr. Williams, and the empirical studies conducted by governmental agencies and private researchers, the class had shown that the presence of an overbuilder constrains cable prices, and that Comcast engaged in conduct designed to deter the entry of overbuilders in the Philadelphia DMA. Id. at 174. It found unpersuasive the conclusions of Comcast’s expert, Dr. David J. Teece, that overbuilding is not a successful business model. Id. at 174-75.
On appeal, Comcast constructs a four-tiered argument to support its objections. First, it contends that Plaintiffs cannot show class-wide antitrust impact based on potential overbuilding by any of the “Transaction parties.”
B.
Plaintiffs respond to each level of Com-cast’s position. First, citing many portions of the record, they assert that there is “overwhelming” record evidence that Com-cast’s clustering of the Philadelphia DMA deterred and reduced overbuilding competition, resulting in antitrust impact (higher cable prices) for all class members. According to the class, the record demonstrates: clustering deters overbuilding, the swaps and acquisitions eliminated competition, Multi-System Operators (“MSOs”) actually do overbuild one another, Comcast and other MSOs look to one another’s prices to set their own, and the MSOs chose affirmatively not to compete. The class adds that Comcast is raising a merits argument by asking the Court to consider the “potential competition” doctrine. Second, Plaintiffs contend that Comcast raises a merits issue by asking the Court to examine whether Comcast’s conduct in fact prevented RCN from overbuilding in more areas than it did. In any event, they state that the record evidence demonstrates RCN had the intent and capital to overbuild the Philadelphia market. Third, Plaintiffs state that Dr. Williams’s theoretical model plainly shows common evidence of class-wide impact; Comcast’s contention that Dr. Williams’s opinions do not prove antitrust impact is one for the jury to decide on the merits. Fourth, the evidence related to Delaware County “adds to and illustrates” the common evidence of Comcast’s anticompetitive clustering conduct.
We begin the analysis of these contentions by focusing on the precise inquiry:
Plaintiffs’ burden at the class certification stage is not to prove the element of antitrust impact, although in order to prevail on the merits each class member must do so. Instead, the task for plaintiffs at class certification is to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members.
Hydrogen Peroxide, 552 F.3d at 311-312 (emphasis added). Many of Comcast’s contentions ask us to reach into the record and determine whether Plaintiffs actually have proven antitrust impact. This we will not do. Instead, we inquire whether the District Court exceeded its discretion by finding that Plaintiffs had demonstrated by a preponderance of the evidence that they could prove antitrust impact through common evidence at trial.
This dispute therefore is evidentiary. When facts are at issue, the District Court exceeds its discretion in certifying a class only if its findings are clearly erroneous. Id. at 312. Comcast bears a heavy burden in convincing us that the District Court’s factual findings were clearly erroneous. See Anderson, 470 U.S. at 573-574, 105 S.Ct. 1504 (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it....”); Krasnov, 465 F.2d at 1302 (“It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.”).
Comcast has not carried its burden. Plaintiffs provided evidence at the certification hearing that tended to show that Comcast’s clustering (through swaps and acquisitions) reduced competition, deterred the entry of overbuilders, and resulted in higher cable prices for the entire class. This evidence displays “some hue of credibility” and bears a rational relationship to the Court’s finding. See Krasnov, 465 F.2d at 1302.
For example, one of Plaintiffs’ experts, Dr. Williams, concluded after a detailed analysis that, inter alia, Comcast’s clustering increased its market share and, consequently, its market power, thereby raising barriers to entry for other multichannel video programming distributors and resulting in higher cable rates for all members of the class. App. 03599-3600; see also Behrend, 264 F.R.D. at 166-171 (providing in great detail the analyses, evidentiary support, and conclusions of Dr. Williams). Dr. Williams also cited to Federal Communications Commission reports, Government Accountability Office reports, and academic research, all of which indicated that reducing competition by clustering leads to higher cable rates. App. 03663-3668. Another expert, Dr. Hal Singer, used extensive record evidence to analyze how Comcast’s clustering denied overbuilders access to the Philadelphia DMA. App. 03501-3529. Dr. Singer concluded that Comcast’s actions allowed it to foreclose competitors and elevate prices. App. 03450. He also referenced multiple studies — both governmental and private, some of which overlapped with those referenced by Dr. Williams — that concluded that cable prices are lower when overbuild-er competition is present. App. 03537-3548. Also in the record are specific instances of Multi-System Operators attempting to overbuild one another around the country. See Appellees’ Br. 27 n. 17 (citing 13 distinct examples in the record of MSOs overbuilding one another).
Comcast protests that the record demonstrates that there was no actual or potential competition among the Transaction parties. In light of the above record evidence, however, Comcast’s interpretation of the evidence does not render the District Court’s findings clearly erroneous. Comcast remains free to make these arguments to the jury.
VII.
Comcast’s other contentions are equally unpersuasive. There is conflicting evidence as to the role Comcast played in RCN Telecom Services, Inc.’s decision to not overbuild further in the Philadelphia DMA. Plaintiffs highlight record evidence that RCN had the intent and capital necessary to overbuild the Philadelphia market. Appellees’ Br. 34-35. Comcast contends instead that RCN faced financial woes, as a result of which it abandoned its plans to overbuild. Appellants’ Br. 24-28. The District Court credited Plaintiffs’ explanation: “What Dr. Teece considers ‘unlikely,’ Dr. Singer considers to be the common evidence of antitrust impact, namely that RCN was stymied in its efforts by Com-cast’s predatory behavior.” Behrend, 264 F.R.D. at 175. Again, we are satisfied that the District Court’s finding was not clearly erroneous. “Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. 1504. Here there are two permissible views of the evidence and we will not disturb the District Court’s finding.
Similarly, Comcast contends that Dr. Williams’s analysis and methodology was flawed for various reasons, including the allegation that it was unsupported by any actual evidence. We disagree. As detailed above, there was ample evidence that clustering conduct can deter entry of overbuilders and result in higher cable prices. Dr. Williams and Dr. Singer examined evidence specific to Comcast’s activities in the Philadelphia market, as well as numerous independent studies on the effects of cable clustering, to reach their conclusions. Comcast cites various cases for the proposition that “expert theory is not a substitute for market facts.” See, e.g., Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) (expert opinion rendered unreasonable by indisputable record facts); In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 27 (1st Cir.2008) (expert analysis unfinished and “purely conclusory”); In re Baby Food Antitrust Litig., 166 F.3d 112, 135 (3d Cir.1999) (“An expert opinion based on ... meager superficial information ... is highly speculative, unreliable, and of dubious admissibility.”). Although expressing a correct legal precept, those cases addressed situations in which the experts largely failed to tie their theories to any evidence; the precept therefore does not apply to this case in
Comcast also asserts that every individual had one or two options from which to choose cable and that consequently only the name of the provider changed, not the number of options. This assertion completely overlooks the nature of the claims of the class: by clustering, Comcast was able to deter the entry of overbuilders, which resulted in higher prices for all nonbasic Comcast subscribers. And Plaintiffs provided evidence that clustering can have this effect. In short, the District Court’s task was to weigh expert testimony and make a determination, Hydrogen Peroxide, 552 F.3d at 323, and we discern no error in the Court’s determination that Dr. Williams’s analysis demonstrated that class-wide antitrust impact was susceptible to common proof.
As to Comcast’s remaining contention that the District Court erred by crediting as evidence of class-wide impact the alleged conduct targeted at RCN Telecom Services, Inc., in Delaware County, we agree with the class that the alleged conduct is relevant to establishing class-wide impact. We have explained that “courts must look to the monopolist’s conduct taken as a whole rather than considering each aspect in isolation.” LePage’s Inc. v. 3M, 324 F.3d 141, 162 (3d Cir.2003) (en banc) (citing Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962)). Alleged specific conduct aimed at preventing the entry of an overbuilder anywhere in the Philadelphia DMA supports Plaintiffs’ allegations of Comcast’s ability to maintain supra-competitive prices for the entire market.
VIII.
At bottom, Comcast misconstrues our role at this stage of the litigation. Comcast would have us decide on the merits whether there was actual or potential competition among the Transaction parties, the reason RCN Telecom Services, Inc., abandoned the Philadelphia market, and whether Plaintiffs’ experts proved antitrust impact. We are not the jury. Although in Hydrogen Peroxide we heightened the inquiry a district court must perform on the issue of class certification, nothing in that opinion indicated that class certification hearings were to become actual trials in which factual disputes are to be resolved. Indeed, as we explained in Hydrogen Peroxide, a district court may inquire into the merits only insofar as it is “necessary” to determine whether a class certification requirement is met. 552 F.3d at 316. Eisen still precludes any further inquiry. See Eisen, 417 U.S. at 178, 94 S.Ct. 2140 (“[T]he question is not whether the plaintiff or plaintiffs ... will prevail on the merits, but rather whether the requirements of Rule 23 are met.” (quoting Judge Wisdom’s holding in Miller v. Mackey Int’l, Inc., 452 F.2d 424, 427 (5th Cir.1971))); Hydrogen Peroxide, 552 F.3d at 317 (“Eisen is best understood to preclude only a merits inquiry that is not necessary to determine a Rule 23 requirement.”). We allow preliminary merits inquiries when necessary for Rule 23 because of the potentially “decisive effect on litigation” of a certification decision, Newton, 259 F.3d at 167, but those inquiries remain limited and non-binding on the merits at trial, Hydrogen Peroxide, 552 F.3d at 318. Nothing in Hydrogen Peroxide requires plaintiffs to prove their case at the class certification stage; to the contrary, they must establish by a preponderance that their case is one that meets each requirement of Rule 23. To require more contravenes Eisen and runs dangerously close to stepping on the toes of the Seventh
In sum, we hold that the District Court’s determination — that Plaintiffs have demonstrated by a preponderance of the evidence that they can establish class-wide antitrust impact through common evidence — did not exceed its discretion.
IX.
To satisfy another portion of the predominance requirement, Plaintiffs must establish that the alleged damages are capable of measurement on a class-wide basis using common proof. See Hydrogen Peroxide, 552 F.3d at 311, 325-326; cf. Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 187 (3d Cir. 2001) (stating that the “Herculean task” of calculating individual damages from hundreds of millions of different transactions “counsels against finding predominance”). The District Court concluded that Plaintiffs, through their expert Dr. McClave, provided a damages model based on a common methodology available to measure and quantify damages on a class-wide basis. 264 F.R.D. at 191. Comcast assails that determination as an abuse of discretion.
A.
The District Court examined the methodology, conclusions, and criticisms of the experts on both sides, before providing its conclusions. 264 F.R.D. at 181-191. (Comcast does not contest that the Court performed the “rigorous analysis” required by Hydrogen Peroxide.) Because on appeal Comcast renews the arguments it made to the District Court, we set forth each side’s position in the District Court and the Court’s response.
Plaintiffs’ damages expert, Dr. McClave, concluded that the prices in the Philadelphia market were consistently and substantially higher than the prices in areas of effective competition. 264 F.R.D. at 181. His econometric analysis demonstrated that the alleged antitrust impact was class-wide, because the prices were elevated above competitive levels across all class members and for the entire time period. Id. For his methods, Dr. McClave constructed “but-for” prices against which to compare the prices Comcast charged in the Philadelphia DMA. “But-for” prices are those that would have existed absent the alleged anticompetitive conduct. To construct the “but-for” prices, he first selected comparable “benchmark” counties around the country by applying two “screens” to determine whether the coun
Comcast’s experts, Dr. Teece and Dr. Tasneem Chipty, contested several parts of Dr. McClave’s methodology, and questioned his results. 264 F.R.D. at 183. First, they challenged both benchmark screens used by Dr. McClave. Regarding the “DBS screen,” Dr. Teece asserted that Dr. McClave erroneously chose the higher national Direct Broadcast Satellite penetration rate, instead of the lower regional rate predicted by Plaintiffs’ experts Dr. Singer and Dr. Williams. The District Court rejected the critique, stating that Dr. McClave “used his national average DBS penetration screen as a descriptor of typical competitive market conditions,” and was not attempting to predict the Direct Broadcast Satellite penetration rate of the Philadelphia DMA. Id. at 184. Regarding the “market share screen,” Dr. Chipty contended that because Comcast was present in only a few counties in 1999, its actual market share was much higher in the counties where it was and 0% where it was not; as a result, the less-than-40% penetration rate provided an inappropriate screen. App. 03833. The District Court rejected the criticism as unsupported by the record, stating that Dr. Chipty should have presented evidentiary data to show that 40% was an incorrect midpoint estimate or average rate. 264 F.R.D. at 184. The Court also noted that the 40% screen was supported by the evidence as Com-cast’s approximate share of the Philadelphia DMA at the midpoint of the class period. Id. at 184 n. 43.
Second, Dr. Chipty faulted Dr. McClave’s model for failing to consider properly demographic variables among the
Third, Dr. Chipty criticized Dr. McClave’s model for comparing list prices for expanded basic cable in the Philadelphia DMA against the benchmark counties. She opined that Dr. McClave’s model did not take into account the significant number of promotions and discounts offered to Comcast customers. Id. at 187. Dr. Chipty offered several rebuttal models that included population density and discounted prices, which resulted in significantly lower or even negative damages. The Court rejected Dr. Chipty’s models as “suffer[ing] significant flaws.” Id. at 188, 189. It stated that Dr. McClave’s model accounted for discount prices in the formula (not model) when he multiplied anticompetitive overcharge by Comcast’s relevant revenues (because* Comcast receives revenue only for prices charged, the revenue side of the formula by definition includes discount prices). Accordingly, by adding discount prices to the model as well, Dr. Chipty’s model doubly counted the discount. The Court also noted that, as Dr. McClave explained, more than 80% of Comcast’s customers pay list price for expanded basic cable, and discounts from list prices are temporary (after which they return to list price). As to another of Dr. Chipty’s models, which calculated damages through direct calculations instead of multiple regression, the Court rejected it in the words of Dr. McClave as a “novel and non-standard formula for calculating damages.” Id. at 189.
Fourth, the District Court rejected Dr. Chipty’s attempt to impeach Dr. McClave’s model by using it to calculate damages for basic cable prices, instead of expanded basic cable. Id. at 190. The Court explained that Dr. McClave’s model aimed to analyze only expanded basic cable, because Com-cast alters its prices at the expanded level, so “any application of the McClave model to [basic cable prices] explains nothing.” Id. Comcast does not contest that ruling.
Fifth and finally, the Court asked the parties after the hearing how to interpret Dr. McClave’s damages model if it credited at least one, but not all, of Dr. Williams’s four theories of antitrust impact. Id. It determined that Dr. McClave’s damages model was still viable, even if it rejected some theories of antitrust impact, explaining that Dr. McClave selected benchmarks to isolate the effect of anticompetitive conduct, and that his use of the DBS screen was “entirely unrelated” to Dr. Williams’s DBS foreclosure theory. Id. The Court concluded that Dr. Williams’s theories of antitrust impact were not relevant to Dr. McClave’s methods of choosing benchmarks because “[a]ny anticompetitive conduct is reflected in the Philadelphia DMA price, not in the selection of the comparison counties.” Id. at 191.
Comcast contends that the District Court exceeded its discretion in accepting Plaintiffs’ proposed damages calculation methodology. Its arguments are recast versions of those rejected by the District Court. First, Comcast contends that Dr. McClave’s damages theory was based on all of Plaintiffs’ alleged anticompetitive effects, but the District Court rejected three of Plaintiffs’ four theories. Because Dr. McClave stated that his model was based on the cumulative effect and could not isolate damages for individual theories of harm, according to Comcast the District Court erred in accepting the damages model. Second, Comcast asserts that the economic assumptions underlying the damages model lack foundation in the record evidence. According to Comcast, both screens employed by Dr. McClave are factually unsupported and economically unsound: the “DBS penetration screen” because the Court rejected Dr. Williams’s Direct Broadcast Satellite foreclosure theory, and the “market share screen” because it bears no relation to the conditions that would have existed in the Philadelphia region but for the complained-of conduct. Third, Comcast contends that the damages model is flawed because it fails to include population density as a variable, and because it calculates damages based on list prices, which fails to consider the discounted prices that some subscribers actually pay.
Plaintiffs remind us that the District Court already thoroughly considered and rebutted each of the points that Comcast now raises. As to the specific contentions, first, the class asserts that the District Court explicitly held that Dr. McClave’s model was suitable for calculation of damages on all or individual theories of liability. Second, the class emphasizes that the damages model provides a methodology that can establish damages on a class-wide basis using common proof, and that Com-cast ignores the proper inquiry at class certification and instead prematurely attacks the merits of the model. As a result, Comcast’s arguments concerning the benchmarks miss the point. Third, the class asserts that Dr. McClave had ample justification to omit population density as a variable, and that the damages model incorporates discount prices.
X.
We pause to identify the forest for the trees. If allowed to proceed to trial, the class must establish that the injury it suffered from the violation of the antitrust laws is measurable. See Hydrogen Peroxide, 552 F.3d at 311; see also Newton, 259 F.3d at 188 (“Proof of injury (whether or not an injury occurred at all) must be distinguished from calculation of damages (which determines the actual value of the injury).”). The usual measure in an overcharge case “is the difference between the illegal price that was actually charged and the price that would have been charged ‘but for’ the violation multiplied by the number of units purchased.” Areeda et al., supra, ¶ 392a. Given the inherent difficulty of identifying a “but-for world,” we do not require that damages be measured with certainty, but rather that they be demonstrated as “a matter of just and reasonable inference.” Story Parchment Co. v. Paterson Parchment Paper Co., 282
The inquiry for a district court at the class certification stage is whether the plaintiffs have demonstrated by a preponderance of the evidence that they will be able to measure damages on a class-wide basis using common proof. See Hydrogen Peroxide, 552 F.3d at 325. Some variation of damages among class members does not defeat certification. See 7AA Charles Alan Wright et al., Federal Practice and Procedure § 1781 (3d ed. 2005) (stating for antitrust class certification that “it uniformly has been held that differences among the members as to the amount of damages incurred does not mean that a class action would be inappropriate.”). Complex and individual questions of damages, however, weigh against finding predominance. Compare Newton, 259 F.3d at 187 (reasoning that having to examine proof of the circumstances of hundreds of millions of individual transactions counseled against finding predominance), with Linerboard, 305 F.3d at 157-158 (determining that, in contrast to Newton, all purchasers were affected by the increased price). As the Court of Appeals for the First Circuit explained:
It is true that the validity of plaintiffs’ theory is a common disputed issue. It will be for the fact finder to decide whether this theory is persuasive. At the class certification stage, however, the district court must still ensure that the plaintiffs’ presentation of their case will be through means amenable to the class action mechanism. We are looking here not for hard factual proof, but for a more thorough explanation of how the pivotal evidence behind plaintiffs theory can be established. If there is no realistic means of proof, many resources will be wasted setting up a trial that plaintiffs cannot win.
In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 29 (1st Cir.2008) (citation omitted); see also Areeda et al., supra, ¶ 331 (explaining for the issue of damages that “courts will not permit class actions unless they can devise a practical means for their litigation”).
A.
Comcast contends that Dr. McClave’s model cannot isolate damages for individual theories of harm, and that it therefore cannot distinguish between lawful and unlawful competition. Comcast cites Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1353 (3d Cir.1975), and Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir.2000). In both cases, following adverse jury verdicts, the courts held that the experts’ theories of damages were “speculation” — not “just and reasonable inferences” — because the models did not distinguish between the effects of lawful and unlawful competition. In Coleman, we quoted the guidepost of Story Parchment: “The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.” Coleman, 525 F.2d at 1353 (quoting Story Parchment, 282 U.S. at 562, 51 S.Ct. 248).
We are not persuaded by Com-cast’s argument. To measure damages, Dr. McClave used screens to select and average benchmark counties against which to compare the actual Philadelphia market. The screens themselves were not intended to calculate damages, but instead to construct an estimated competitive “but-for” Philadelphia market (a market absent the alleged anticompetitive conduct). For example, although the screens incorporated Direct Broadcast Satellite penetration rates, those rates were included to estimate typical competitive market conditions, not to calculate liability for the foreclosure of DBS competitors.
As a result, if the class proves at trial that Comcast engaged in anticompetitive
Additionally, the cases that Comcast offers are distinguishable on multiple grounds. Most to the point, those cases considered the merits of experts’ theories following adverse jury verdicts; here, we address only whether Plaintiffs have provided a method to measure and quantify damages on a class-wide basis. We have not reached the stage of determining on the merits whether the methodology is a just and reasonable inference or speculative. And, to the extent Comcast worries about distinguishing between lawful and unlawful conduct, Dr. McClave’s damages methodology does not suffer from the defects present in those cases because it constructs a competitive “but-for” world that includes lawful competition, not a hypothetical one bereft of both lawful and unlawful competition. See Concord, 207 F.3d at 1056-1057 (model was “mere speculation” because it ignored inconvenient evidence, failed to account for external market events, and did not incorporate economic reality of market); Coleman, 525 F.2d at 1352-1353 (model premised on hypothetical world without even lawful competition).
B.
Comcast’s remaining arguments contest specific parts of Dr. McClave’s damages methodology. These contentions are a renewal of those it made to the District Court, each of which the Court rejected. For those determinations to be beyond the Court’s discretion, Comcast must convince us that the Court’s acceptance of the pieces of Dr. McClave’s methodology was clearly erroneous.
At the outset, we agree with the class that the heart of Comcast’s arguments are
Plaintiffs have provided a common methodology to measure and quantify damages on a class-wide basis. The District Court acted within its discretion in so finding.
The District Court certified the class for resolution of four claims. Comcast contends that the District Court erred by certifying the following claim:
Whether Defendants conspired with competitors, and whether Defendants entered into and implemented agreements with competitors, to allocate markets, territories, and customers for cable television services; and whether such conduct is a per se violation, or whether it constitutes a restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
App. 00031 (emphasis added). According to Comcast, the District Court lacked any legal authority to certify a per se claim based on the class’s allegations.
This is a merits issue beyond the scope of our Rule 23(f) jurisdiction. Comcast misconstrues the District Court’s certification order. The Court certified the class and stated that one of the questions to be litigated is whether there has been a per se violation. It did not declare that a per se violation had occurred. Appeals taken pursuant to Rule 23(f) do not furnish the proper vehicle to address the merits of Plaintiffs’ antitrust claims. See McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380, 390 (3d Cir.2002) (describing the “scrupulous” limits of Rule 23(f) jurisdiction). Comcast appeals from the District Court’s determination that questions of law or fact common to class members predominate, which was the only issue before the District Court. See App. 00029 (District Ct. Certification Order) (“The only class certification element that remained in dispute was the requirement of Fed.R.Civ.P. 23(b)(2) that common issues of law and fact predominate.”). Comcast itself stipulated as much. See App. 00436 (Comcast Letter to the District Ct., Mar. 25, 2009) (“With respect to the issues to be addressed in a new class certification motion, Comcast is prepared to stipulate that the only issues to be resolved are those of antitrust impact and methodology of damages.... ”). Com-cast’s request to have us declare on the merits that Plaintiffs cannot establish a per se antitrust violation is beyond the scope of the certification decision from which Comcast appeals pursuant to Rule 23(f). Accordingly, we do not reach this contention.
# * # * ❖
We have considered carefully all the contentions presented by the parties. Plaintiffs have demonstrated that this case can proceed as a class action. Comcast has not carried its burden to convince us otherwise. Accordingly, we will AFFIRM in all respects the District Court’s Order certifying the class.
. “A DMA is a specific media research area that is used by Nielsen Media Research to identify television stations whose broadcast signals reach a specific area and attract the most viewers. DMA boundaries are widely accepted and used by all types of companies to target and keep track of advertising.” Steak n Shake Co. v. Burger King Corp., 323 F.Supp.2d 983, 986 n. 2 (E.D.Mo.2004).
. The District Court set forth the Cable System Transactions:
• The April 1998 acquisition of Marcus Cable and its 27,000 cable subscribers located in Harrington, Delaware, which is part of the Philadelphia DMA.
• The June 1999 acquisition of Greater Philadelphia Cablevision, Inc., a subsidiary of
• The January 2000 acquisition of Lenfest Communications, Inc. and more than 1.1 million cable subscribers located in Berks, Bucks, Chester, Delaware, and Montgomery counties in Pennsylvania, and New Castle County in Delaware.
• The January 2000 acquisition of Lenfest’s ownership interests in Garden State Cablevision L.P. and its 212,000 customers located in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, and Salem counties in New Jersey, which is part of the Philadelphia DMA.
• The December 2000 swap agreement with AT & T, wherein Comcast obtained cable systems and approximately 770,000 subscribers, including subscribers located in Eastern Pennsylvania (Berks and Bucks counties) and New Jersey. In exchange, AT & T obtained cable systems and approximately 700,000 Comcast subscribers located in Chicago and elsewhere around the country.
• The January 2001 swap agreement with Adelphia Communications Corp., wherein Comcast obtained cable systems and approximately 464,000 subscribers located primarily in the Philadelphia area and adjacent New Jersey areas. In exchange, Adelphia received Comcast's cable systems and subscribers located in Palm Beach, Florida and Los Angeles, California.
• The April 2001 swap agreement with AT & T, wherein Comcast obtained cable systems and approximately 595,000 subscribers, including subscribers located in Pennsylvania and New Jersey.
• The August 2006 swap agreement with Time Warner in connection with the Adelphia bankruptcy, wherein Comcast obtained cable systems and approximately 41,000 subscribers in the Philadelphia DMA.
• The August 2007 acquisition of Patriot Media and its 81,000 cable subscribers located in New Jersey, within the Philadelphia DMA.
Behrend v. Comcast Corp., 264 F.R.D. 150, 156 n. 8 (E.D.Pa.2010).
. Section 1 of the Sherman Act states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.'' 15 U.S.C. § 1. Section 2 states: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony....” Id. § 2.
. The "Philadelphia cluster” and the "Philadelphia DMA” are separate terms. The Philadelphia DMA includes the cluster counties as well as the counties of Lehigh and Northampton, Pennsylvania. See App. 03614, 03795.
. Plaintiffs’ counsel also filed a complaint in the District of Massachusetts on behalf of a "Boston cluster.” That case was transferred to the Eastern District of Pennsylvania, and has been stayed pending resolution of the Chicago cluster claims. See App. 00179.
. The Supreme Court confirmed our interpretation of the Rule 23 inquiry in Wal-Mart Stores, Inc. v. Dukes,-U.S.-, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). See id. at 2551, 2552 n. 6 (stating that ‘‘[flrequently [the Rule 23] 'rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim,” but Eisen still prohibits "a merits inquiry for any other pretrial purpose”).
. We note additionally the tension between the concept of a "geographic market” and Comcast’s conclusion that "the relevant geographic market ... is each class member's residence.” Appellants' Br. 15. As of 2009, Philadelphia County alone had over 560,000 households. See U.S. Census Bureau, Philadelphia County QuickFacts, http://quickfacts. census.gov/qfd/states/42/42101 .html. Nationwide, in 2010 there were over 117 million households. See U.S. Census Bureau, America’s Families and Living Arrangements: 2010, http ://www. census. gov/population/www/ socdemo/hh-fam/cps2010.html (Table AVG1). Taken at face value, Comcast's assertion that there are millions of geographic markets in the Philadelphia DMA (or over one hundred million geographic markets nationwide for multichannel video programming distributors) renders the phrase "geographic market” nonsensical. Perhaps for this reason, our research revealed no case — nor does Comcast provide one — in which a geographic market has been set at the individual household level. Cf. Brown Shoe, 370 U.S. at 337, 82 S.Ct. 1502 ("Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.”).
. The Concurring and Dissenting Opinion (''Concurrence-Dissent”) faults the parties, the District Court and this Opinion for using "equivocally” the phrase "relevant geographic market.” Concurring-Dissenting Op. at 211. Specifically, it asserts that this Opinion “assumes ... that the class is properly defined to cover the Philadelphia DMA....” Id. at 212. The Concurrence-Dissent misunderstands an important distinction: as noted supra footnote 4, Plaintiffs have alleged a "class region” (to borrow from the Concurrence-Dissent’s terminology) of a "Philadelphia cluster,” which is distinct from the contested relevant geographic market of the "Philadelphia DMA.” Our "assumption” concerning the "class region” is an uncontested piece of Plaintiffs’ case: Comcast appeals only the precise issue of whether the District Court applied a correct legal standard in determining that the substantive antitrust geographic market could be established by evidence common to the class, not whether the "Philadelphia cluster” is an appropriate "class region.” See Appellants' Br. at 15 (labeling the issue as: "The District Court Failed To Apply The Correct Legal Standard In Its Ruling On Plaintiffs' Geographic Market Definition”); id. at 20 (summarizing that "the alleged geographic market accepted by the district court is wholly divorced from the legal standard for determining the correct geographic market”). Accordingly, when the Concurrence-Dissent states, "A compelling argument could be made ...,” Concurring-Dissenting Op. at 212 (emphasis added), it goes beyond our role as a reviewing court by raising and addressing an argument not before us. See, e.g., AT & T v. F.C.C., 582 F.3d 490, 495 (3d Cir.2009) ("An appellant waives an argument in support of reversal if he does not raise that argument in his opening brief.”), rev'd on other grounds,-U.S.-, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011).
. As detailed supra note 2, the “Transaction parties” are the parties that Comcast acquired or with which it swapped cable systems, which include: Marcus Cable; Greater Philadelphia Cablevision, Inc.; Lenfest Communications, Inc.; AT & T; Adelphia Communications Corp.; Time Warner; and Patriot Media.
. Indeed, recent scholarship uniformly has expressed concern over the trend towards converting certification decisions into mini trials. See Joshua P. Davis & Eric L. Cramer, Antitrust, Class Certification, and the Politics of Procedure, 17 Geo. Mason L.Rev. 969, 970 (2010) (contending that the "judicial tendency to impose requirements at class certification" serves no legitimate purpose and risks violating the Seventh Amendment); Michael J. Kaufman & John M. Wunderlich, The Unjustified Judicial Creation of Class Certification Merits Trials in Securities Fraud Actions, 43 U. Mich. J.L. Reform 323, 323 (2010) (stating that judicial resolution of merits at the certification stage precludes victims from obtaining redress, infringes on the Seventh Amendment, and serves no legitimate policy concerns); Steig D. Olson, “Chipping Away”: The Misguided Trend Toward Resolving Merits Disputes as Part of the Class Certification Calculus, 43 U.S.F. L.Rev. 935, 940 (2009) (intensifying the Rule 23 analysis is inconsistent with the Rule itself and highly inefficient); J. Douglas Richards & Benjamin D. Brown, Predominance of Common Questions — Common Mistakes in Applying the Class Action Standard, 41 Rutgers L.J. 163, 169 (2009) (contending, inter alia, that requiring the district court to determine by a preponderance whether plaintiffs' proposed proof is actually correct or incorrect would "substitute a court's own evaluation of key merits questions for that of the jury").
. Dr. McClave used Alternative Delivery Systems penetration rates as a proxy to measure Direct Broadcast Satellite penetration rates. App. 03410 n. 11. Comcast’s expert, Dr. Chipty, referred to the screen as the "DBS screen,” and as measuring DBS penetration rates. App. 03834. The parties and District Court have continued using the DBS terminology. Although the screen technically measured Alternative Delivery Systems penetration rates, we will use the parties' terminology and refer to it as the "DBS screen” and as measuring Direct Broadcast Satellite penetration rates.
. Following the Supreme Court's decision in Wal-Mart, Comcast added that Dr. McClave’s damages model, like the expert model in WalMart, could be “safely disregardfed].” See Wal-Mart, 131 S.Ct. at 2554. We disagree. The factual and legal underpinnings of WalMart — which involved a massive discrimination class action and different sections of Rule 23 — are clearly distinct from those of this case. Wal-Mart therefore neither guides nor governs the dispute before us.
. In response to the Concurrence-Dissent's position that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), applies at the stage of class certification, see Concurrence-Dissent Op. at 214, we make two observations. . First, as the Opinion acknowledges, "in neither the District Court nor before us" did Comcast raise this issue, id. at 215 n. 18, and it is therefore not properly before us. Second, although the Supreme Court recently hinted that Daubert may apply for evaluating expert testimony at the class certification stage, it need not turn class certification into a mini-trial. Wal-Mart, 131 S.Ct. at 2553-54. We understand the Court's observation to require a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence, and not requiring a district court to determine if a model is perfect at the certification stage. This is consistent with our jurisprudence which requires that at class certification stage, we evaluate expert models to determine whether the theory of proof is plausible. Hydrogen Peroxide, 552 F.3d at 324. "[I]f such impact is plausible in theory, it is also susceptible to proof at trial through available evidence common to the class. When the latter issue is genuinely disputed, the district court must resolve it after considering all relevant evidence." Id. at 325. When plaintiffs present multiple models created by expert witnesses that can show common evidence and those models are based on data, a district court does not have to determine which model should be used at the time of class certification. Linerboard,
. The Concurrence-Dissent misreads this observation as addressing the on-the-merits validity of the DBS screen. Concurring-Dissenting Op. at 218-19. We address Com-cast’s contention regarding the merits of the DBS screen, however, infra Part X. This observation indicates simply that the exclusion of the DBS foreclosure theory of liability does not render Dr. McClave’s damages methodology incapable of calculating damages on a class-wide basis if the class can prove that Comcast engaged in anticompetitive behavior.
. The Concurrence-Dissent states that Dr. McClave's damages theory can establish damages only in the five counties where RCN attempted to overbuild. This concern misses the central theory of Plaintiffs' case: by deterring the entry of overbuilders through clustering, Comcast allegedly maintained higher prices across the entire market area. Dr. McClave’s damages model appropriately reflected a "but-for” world by accounting for overbuilding only in the five counties where RCN attempted to overbuild, and his resulting calculations showed that — taking the limited actual overbuilding into account — '"the Philadelphia DMA market prices were elevated above the but-for prices in every county-year combination.” App. 03412. Additionally, the Concurrence-Dissent apparently takes up the mantle of an additional Comcast expert and raises multiple arguments against Dr. McClave’s damages model not addressed by Comcast’s experts at the District Court level nor advanced by Comcast on appeal. We must limit our review to the issues presented by Appellants and Appellees. We are not permitted to embark on an intellectual adventure of our own.
. Comcast adds that because overbuilding occurs at the franchise level, Dr. McClave’s county-to-county metric cannot calculate damages if the jury, finds that only some (if any) franchises were impacted. First, Dr. McClave indicated that franchises within counties often have identical or nearly identical pricing, which assuages Comcast's concern. See App. 03409. Second, Comcast is attempting again to redefine the relevant market: inasmuch as Plaintiffs have established that the relevant geographic market can be the Philadelphia DMA, see supra ,Part IV.A, their damages model passes muster at this stage of the proceedings.
. The Concurrence-Dissent — unlike Com-cast's experts, Comcast's lawyers and the District Court — identifies a “third screen.” Concurring-Dissenting Op. at 217. Again, this "screen” was not raised by the parties before us and we do not address it (we doubt additionally that it is a screen: the two screens were used to select benchmark counties, whereas the presence of overbuilders was an identification attached to the already-selected benchmark counties for purposes of performing a multiple regression analysis, see App. 03412, 03421 (Corrected McClave Decl.)).
. The Concurrence-Dissent expresses its additional concern over using mathematical averages across the Philadelphia DMA, given the potential variation among the franchise areas. Once again, this concern is notably absent from Comcast's briefing (except as already addressed above regarding the screens and demographic variables). Nor does the Concurrence-Dissent grapple with the abuse-of-discretion standard of review we must apply to the District Court’s acceptance of Dr. McClave’s damages model. We also note in passing that the Concurrence-Dissent overstates the degree of dissimilarity among the franchise areas. It recognizes that Dr. McClave’s model examines actual prices on a county-by-county level, see Concurring-Dissenting Op. at 224-25 n. 36, but fails to note, as Dr. McClave explained: "Many franchises within counties often have identical or nearly identical pricing. More price variability, and thus from an econometric perspective more information about prices and their determinants, is obtained by aggregating prices at the county level.” App. 03409 (Corrected McClave Decl.). Not even Comcast’s expert contested this reasoning. See App. 03831 (Chipty Decl.); App. 03954 (Chipty Rebuttal Report). Finally, to the extent the Concurrence-Dissent questions the appropriateness of using county-level statistics to measure damages across the entire Philadelphia DMA, we observe that this question was contested strenuously and repeatedly by the experts on both sides at the District Court level. See App. 03410 (Corrected McClave Decl.) (explaining choice of market share screen); App. 03833 (Chipty Decl.) (contesting market share screen); App. 04066 (McClave Rebuttal Decl.) (defending market share screen); App. 03961