On May 23, 2024, the NCAA reached a historic $2.8 billion settlement with former college athletes who had filed an antitrust class action demanding billions in potential compensation allegedly denied to them for decades. This represents a major turning point in college athletics. Read the full Alert on the Duane Morris website.
Alleged Health Insurance Price-Fixing Cartel Against Multiplan and Insurers
Providers in a putative class action filed on May 7, 2024, claim that Multiplan and certain named insurers in its network are a “cartel” that has agreed to underprice out-of-network reimbursement paid to providers in the Multiplan network in violation of federal antitrust laws.
To read the full text of this post by partner Seth Goldberg, please visit the Duane Morris Health Law Blog.
FTC Votes to Ban Non-Compete Agreements
On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to approve a final rule banning non-competes with all workers 120 days after publication in the Federal Register, and invalidating existing non-competes with all workers except senior executives. Although the final rule abandons many aspects of the rule proposed in January 2023, the final rule represents a sea change in the law relating to non-compete clauses in the United States. Read the full Alert on the Duane Morris website.
FTC to Vote April 23 on Rule to Ban Noncompete Agreements
The Federal Trade Commission will vote at an open commission meeting to be held virtually on Tuesday, April 23, 2024, at 2:00 p.m. Eastern on its proposed rule banning employers from entering into noncompete agreements with workers. If issued, the final rule would go into effect 60 days following its publication in the Federal Register, and companies would have to be in compliance 180 days after publication. Read more on Duane Morris’ website.
SCOTUS Declines to Review Antitrust ATM Fee Dispute
On April 15, 2024, in Visa Inc., et al., v. National ATM Council, Inc., et al., No. 23-814 (Apr. 15, 2024), the U.S. Supreme Court declined a petition for review submitted by Visa Inc. (“Visa”) and Mastercard Inc. (“Mastercard”) urging the Supreme Court to resolve a circuit split over the correct standard of review courts should use when evaluating motions for class certification. Mastercard and Visa argued that the U.S. Court of Appeals for the D.C. Circuit erred by only requiring plaintiffs to show that questions common to the class predominate and allowing the fact finder to later address issues related to uninjured class members. The Supreme Court denied the petition for review.
The D.C. Circuit’s ruling in Visa v. National ATM Council is required reading for any corporate counsel handling antitrust class actions involving price-fixing allegations and underscores the importance of the standard of review used by courts when considering class certification. Read the full post on the Duane Morris Class Action Defense Blog.
Decertification Denied in Antitrust Home-Selling Commission Class Action
On March 26, 2024, Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri denied HomeServices of America’s (“HomeServices”) motion to decertify a class of home sellers alleging that that Defendants violated the Sherman Act by entering into a conspiracy to follow and enforce a rule adopted by the National Association of Realtors (“NAR”) that had the effect of raising commission rates in Moehrl et al. v. The National Association of Realtors et al., No. 1:19-CV-01610 (W.D. Mo. Mar. 26, 2024). HomeServices argued that the class of plaintiffs fail to satisfy Rule 23(b)(3) because trial showed that individual facts and proof predominated over common issues. The Court accepted Plaintiffs’ arguments that its expert sufficiently demonstrated a but-for world through common evidence, satisfying the predominance requirement of Rule 23(b). Moerhl is required reading for any corporate counsel handling antirust class actions involving price-fixing allegations.
Read more on the Duane Morris Class Action Defense Blog.
White House Announces New Strike Force on Unfair and Illegal Pricing
The federal government is taking a more aggressive approach to lowering prices and costs for American consumers. On March 5, 2024, President Joseph Biden announced a new Strike Force on Unfair and Illegal Pricing co-chaired by the Department of Justice (DOJ) and Federal Trade Commission (FTC). The strike force is yet another attempt by the federal government to implement the president’s July 2021 Executive Order on Promoting Competition in the American Economy.
Guidance for Controlling Drug Prices
The Federal Trade Commission (FTC) has announced its support of the federal government’s use of “march-in rights” as a mechanism to control the price of pharmaceuticals. The National Institute of Standards and Technology (NIST) late last year issued its “Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights” that would fundamentally change the use of march-in rights by allowing the government to exercise price control under the Bayh-Dole Act, which the FTC announced its support for last week. This shift is the latest effort by federal agencies to lower drug prices in the wake of President Joe Biden’s Executive Order on Promoting Competition in the American Economy.
Is Misclassification of Workers an Unfair Method of Competition?
The Federal Trade Commission (FTC) is signaling its intent to get further involved in employment practices after its activity of the last year and a half in proposing a ban on noncompete clauses in employment contracts and signing a memorandum of understanding with the U.S. Department of Labor (DOL) to bolster the FTC’s efforts to promote competitive U.S. labor markets.
New Bill Keeps Predictive Tech Under Scrutiny with Price Fixing
Several Democratic senators introduced a bill intended to stop companies from utilizing predictive technology to raise prices. Businesses are increasingly delegating important competitive decisions, including price-setting power, to artificial intelligence, algorithms, and other predictive technology software. Read more on the Duane Morris Artificial Intelligence Blog.