Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). In this antitrust class action case, the Supreme Court of the United States split 5-4, among all too predictable lines. The majority, in a short opinion by Justice Scalia in which Chief Justice Roberts and Justices Thomas, Kennedy and Alito joined, vacated a grant of class certification. The majority concluded that plaintiffs’ expert report, which furnished the key basis for class certification, did not suffice. The expert had identified four potential types of damage, but the district court had found that only one of those types of damage could apply classwide. Since the expert’s model assumed that all four types of damages existed, the model could not be used and class certification had to be reversed.
The dissenters, in an opinion by Justices Ginsburg and Breyer, in which Justices Sotomayor and Kagan joined, persuasively showed that certiorari should not have been granted, and should therefore have been vacated as improvidently granted. The question presented in the petition that Comcast filed was not accepted by the Court. Instead, in granting certioari, the Court reformulated the question. Ultimately, as the dissenters showed, Comcast had waived any ability to argue the reformulated question, and that question turned out not to be the basis of the majority’s decision. The dissenters cited a line of cases to support the idea that the Supreme Court should not decide cases where a party has forfeited the issue on which review was granted, or address issues that have not been “cleanly presented.” The majority did not even try to address those cases.
On the merits, the dissenters went on to demonstrate that the majority had reached its conclusion by unjustifiably rejecting the factual findings of the district court, affirmed by the Third Circuit, that rejecting plaintiffs’ three other theories “does not impeach [the expert’s] damage model.” As a result, as the dissenters compellingly demonstrated, the decision in this case “breaks no new ground on the standard for certifiying a class action under Federal Rule of Civil Procedure 23(b)(3).” Instead, the ruling, at best, is “good for this day and case only.”
The question of a Supreme Court vacating its grant of review is not novel. The Supreme Court of the United States vacates certiorari as improvidently granted regularly, though not often. The Supreme Court of New Jersey has likewise vacated certification in appropriate cases. Most often, the Court has vacated the entire grant of certification. But sometimes it has done so only as to particular issues, whie retaining others for decision on the merits. See, e.g., Veazey v. Doremus, 103 N.J. 244 (1986); Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37 (1984). The Court has also made clear that, like a denial of certification, a decision to vacate certification does not constitute a ruling on the merits. Gannon v. American Home Products, Inc., 211 N.J. 454, 470 (2012).
Though vacating certification now seems to be accepted by all members of the Court, it was not always so. In Brown v. Lins Pharmacy, Inc., 67 N.J. 392 (1975), a 4-3 majority of the Court voted to vacate certification as improvidently granted. Justice Schreiber, joined by Chief Justice Hughes and Justice Pashman, dissented. Though they agreed that the case was “not the proper vehicle for a reconsideration of the public sidewalk law in this State,” they contended that “[o]nce having granted the petition for certification and having considered the briefs, the record, the exhibits, and argument of counsel, it is incumbent on the Court to adjudicate the rights and duties which exist between the litigants, at least in the light of the existing law.” More recently, there have been cases in which Justices disagreed about whether certification should have been vacated, but there has been no such generalized claim that a petition for certification, once granted, cannot be vacated.
To return to Comcast Corp. v. Behrend, the majority seems to have decided a case that is of limited guidance for other cases for reasons known only to those five Justices. It is tempting to say that ideology underlies that decision. Regardless, from the point of view of maintaining the integrity of principles of discretionary review, the proper course would have been to vacate certiorari as improvidently granted, as the dissenters suggested.