The Supreme Court will be hearing oral arguments in Comcast Corp. v. Behrend, No. 11-864, on November 5. In a nutshell, the issue is whether a federal district court must resolve challenges to an expert witness’s testimony concerning whether damages can be awarded on a class-wide basis before deciding whether to certify a class. Please see our previous report for more information about the case.
Soon after certiorari was granted, the plaintiffs sought to derail Supreme Court review, arguing that the parties had reached an enforceable settlement before the Supreme Court had granted certiorari by signing a “terms sheet” after a full day’s mediation session. The National Law Journal reported on that effort here (subscription required).
Last week, the federal district court in Pennsylvania rejected the plaintiffs’ effort to enforce the terms sheet, explaining that the “Term Sheet is not a completed, binding contract; it is merely an ‘agreement to agree’ that is not capable of being enforced.” Behrend v. Comcast Corp., No. 2:03-cv-6604 (E.D. Pa. Sept. 25, 2012), slip op. at 12-13. The full opinion is worth a read, not only for its discussion of the law governing when draft settlement terms may be enforced, but also for a rare public glimpse into the back-and-forth negotiations between potentially settling parties.
The decision is also good news for those who watch the Supreme Court: Comcast is (so far) likely to be the most significant class-action case on the Court’s docket this Term. We’ll be keeping a close eye on the case.