Tillage v. Comcast Corporation

Background

The plaintiffs asked the court to certify a class of Comcast customers. Their proposed class covered people who encountered advertising for a cable package that stated a base price but did not include Broadcast TV Fees and Regional Sports Fees. The plaintiffs’ class-certification arguments relied on the position that Comcast violated the California statutes they invoked whenever it advertised such a base price, even if the advertisement disclosed that the fees would be charged separately.

The court referred to its earlier summary-judgment ruling and explained that the statutes require the court to consider corrective disclosures when deciding whether an advertisement or statement was deceptive. An advertisement that merely says the price excludes “fees” might be deceptive because ordinary consumers would not necessarily expect these particular fees. But a specific disclosure that the Broadcast TV Fees and Regional Sports Fees would be charged on top of the advertised price could cure the potentially deceptive nature of the advertisement.

Class-certification analysis

The record concerning the two remaining named plaintiffs raised factual questions about whether each received a disclosure that would prevent a finding that Comcast’s advertisements were misleading. The court stated that a jury could find for one plaintiff and against the other, showing that the inquiries were highly individualized. The court also noted that their experiences appeared different from those of an earlier named plaintiff who received a flyer clearly disclosing both fees.

The plaintiffs had defined the proposed class broadly, without distinguishing among customers who responded to flyers, customers who used the online signup process, and others. The court found too much variation in what representations class members received and whether those representations were deceptive. It concluded that resolving the claims would require significantly different evidence for different class members and could produce different results. That defeated predominance, which asks whether common issues sufficiently outweigh individual issues in a class action, and likely also defeated commonality, which asks whether the class shares a question capable of classwide resolution.

The court further concluded that the two remaining lead plaintiffs’ claims were not typical of the broadly defined class. Their individualized signup processes meant their claims were not reasonably similar to the experiences of the other proposed class members.

Rulings

The motion for class certification was denied. The plaintiffs had requested permission to seek certification of a class for injunctive relief if certification was denied. The court did not decide whether such a class could be certified. Instead, it scheduled a case-management conference for August 4, 2021, to discuss that issue and required the parties to submit a joint case-management statement seven days beforehand.

The court also ruled on motions to seal filed at Docket Nos. 176 and 178. It found that none of the redacted portions of the briefs were appropriate for sealing and that exhibits were likewise not appropriate for sealing to the extent their contents appeared in the briefs. Both motions to seal were denied entirely, without prejudice to filing a renewed request within seven days that was narrower and more targeted. The court stated that, without a timely renewed motion, the materials would be unsealed.