There is no shortage of discussion about the Supreme Court’s review of Comcast Corp. v. Behrend, and with good reason.  The Supreme Court rarely considers antitrust or class action cases, and Comcast presents issues in both areas of law.  While much of the discussion focuses on how the Supreme Court should rule, Comcast provides practical guidance even before a ruling issues.

The nub of Comcast’s argument to the Supreme Court is the lower court erred by relying on the plaintiffs’ expert evidence of common injury without determining whether that evidence was admissible.  On appeal, the parties disputed whether Comcast challenged the expert evidence as necessary to preserve that argument.  The plaintiffs argued Comcast did not file anything named a Daubert motion, which is a way to assess admissibility of expert evidence.  Comcast said it raised admissibility issues in the lower court by arguing the expert testimony was unreliable and not usable.  Precious minutes of Comcast’s argument before the Supreme Court were consumed debating waiver instead of the substance of the appeal, and the Justices’ questions, as reported in an article by John Lewis, suggest the waiver argument might have some traction.

The course of the Comcast appeal – regardless of how the Supreme Court rules – serves as a reminder that parties should be crystal clear in raising Daubert issues.  The Supreme Court’s ruling is sure to provide additional guidance on antitrust class action proceedings, and we will cover it here.