Category: Antitrust Class Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley and associates AJ Rudowitz and Daniel Selznick with their discussion of 2023 developments and trends in antitrust class action litigation as detailed in the recently published Duane Morris Antitrust Class Action Review – 2024.

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Episode Transcript

Jennifer Riley: Welcome to our listeners. Thank you for being here for our weekly podcast, the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today are associates AJ Rudowitz and Daniel Selznick from our Philadelphia office. Thank you for being on the podcast today, guys.

AJ Rudowitz: Thanks, Jen. Happy to be part of the podcast.

Daniel Selznick: Thanks, Jen, glad to be here.

Jen: Today on the podcast we are discussing the recent publication of this year’s edition of the Dwayne Morris, Anti-trust, class Action Review. Listeners can find the e-book publication on our blog, the Duane Morris Class Action Defense Blog. AJ, can you tell our listeners a bit about the publication?

AJ: Absolutely, Jen. Happy to talk a little bit about the publication, and I know all the contributors are very happy with and proud of the final work product. So, in 2023, we saw many key developments in class action litigation involving antitrust claims. And as we know, most antitrust class actions are settled before trial, and one of the most crucial phases of the case, if not the most crucial phase, is class certification. Thus the order granting or denying a motion to certify a class in all these cases is critical to the ultimate outcome, and particularly the settlement of all these cases. This stage is it’s akin to winning or losing the coin toss, and over time in an NFL game for any football fans out there. It’s very determinative of the outcome, which is usually settlement. To assist companies and employers with understanding what these key developments mean in facing antitrust claims, Duane Morris has released the 2024 Duane Morris Antitrust Class Action Review, which analyzes the key rulings and litigation developments from 2023, and the significant trends that are necessarily going to impact these types of cases, these types of class actions in 2024 and beyond. And we hope that companies and employers will benefit from this resource in their compliance with these evolving and highly impactful laws and standards that can oftentimes result in high-stakes litigation.

Jen: Daniel, what were some of the key takeaways from the publication with regard to litigation in this area in 2023?

Dan: Sure. So one of the topics that was actually fairly prevalent this year, and what we discussed in the publication, was courts’ treatment of so called no-poach or no-hire agreements. As a general matter, a recurring issue, and sort of major battleground in antitrust cases is whether the court is going to apply a per se treatment, a quick look, analysis, or a rule of reason test, and that was certainly the case in 2023 with respect to cases involving no poach agreements.

One of the most significant cases came out of the Seventh Circuit in a case captioned Deslandes, et al. v. McDonald’s. In that case, a group of former McDonald’s workers alleged that they had been restricted in their ability to earn higher wages because of a provision in McDonald’s franchising agreements that prohibited a franchise from hiring another franchise’s employee who was within 6 months of leaving that franchise. The district court concluded that the plaintiffs were not entitled to a per se treatment, because in the courts view, the no-poach agreement at issue was ancillary to the franchise agreement. In the court’s view, it expanded the output of McDonald’s food, and it aided in the success of a cooperative venture. On appeal, the Seventh Circuit reversed and remanded the district court’s decision, and what the Seventh Circuit essentially said was that while there was a possibility that these no-poach provisions were ancillary to the franchise agreement – and one of the things that the Seventh Circuit mentioned was it may have been there to protect franchise, franchise investments, and training of employees – the court was not satisfied with the district court’s reasoning, and found that just because it could potentially increase the output of burgers and fries, that determination is immaterial and does not justify any detriment to workers that could have been caused by these no-poach agreements.

Jen: Interesting. AJ, what are some of the setbacks, and what will this really mean for companies in 2024?

AJ: Well, there’s certainly a few takeaways from the Seventh Circuit’s Deslandes decision. First and foremost, it is important in the antitrust class action context, because it supports the Justice Department’s position that no-poach agreements can be adjudicated as per se violations of Section 1 of the Sherman Act, and the U.S. Supreme Court has since denied McDonald’s petition for review. So, as a very general matter, it is, of course, easier for plaintiffs in antitrust class actions to secure class certification, and to win on the merits, if the alleged anti-competitive conducted issue is treated as per se anti-competitive, rather than being required to go through the full rule of reason analysis, or the so-called quick look analysis. And the Deslandes case will certainly impact any future no-poach cases specifically, and we can anticipate more class actions being brought by plaintiffs in this context. Companies and employers will need to develop new strategies both before litigation to try to prevent it, and during any such litigation to try to defeat it.

Jen: Thanks so much for that information – very important for companies navigating compliance with the antitrust statutes. The review also talks about another important no poach anti-trust class action ruling in 2023. Daniel, could you tell us a bit about that decision?

Dan: Sure, Jen. So that case came out of the United States District for the District of Connecticut, and the case captioned Borozny, et al. v. Raytheon Technologies Corp. In that case the plaintiff filed a class action alleging six corporate defendants violated Section 1 of the Sherman Act by conspiring to restrain wages, essentially by secretly agreeing to restrict competition for the recruitment and hiring of aerospace engineers and similarly skilled workers in in that space. The defendants move to dismiss, arguing that the alleged anti-competitive agreement was vertical in nature rather than horizontal, and therefore it should not be afforded per se treatment. The court disagreed with defendants and denied the motion, holding that even though the defendants were operating at different levels in the supply chain – for example, some of the defendants were manufacturers and some were distributors – the court found that, in fact, the relevant market was the market for aerospace workers, and that, even though defendants were participating in a vertical supply chain, with respect to the market for workers, they competed horizontally. So in this instance, the court found that the labor market restraint at issue was a naked restrain on trade, and not ancillary to any legitimate or competitive purpose such that the complaint adequately pleaded for per se treatment.

Jen: Thanks so much. I anticipate that these issues will remain hotly debated in the courts in 2024. The review also talks about the top antitrust class action settlements in 2023. How do plaintiffs do in securing settlement funds this past year?

AJ: Plaintiffs were hugely successful. In 2023, the top 10 antitrust class action settlements totaled over $11.7 billion, which was nearly a threefold increase over the prior year. By comparison, the top 10 settlements for antitrust class actions in 2022 totaled only $3.7 billion. And that’s something to keep an eye on here in 2024.

Jen: Wow! We will continue to track those settlement numbers in 2024, as record breaking settlement amounts have been a trend that we’ve been tracking over the past two years. Thank you to AJ and Daniel for being here today, and thank you to our listeners for tuning in. Please stop by the blog for a free copy of the Antitrust Class Action Review e-book.

Dan: Thanks for having me, Jen. Thanks, listeners, and I hope you enjoy the publication, and look forward to doing another one of these.

AJ: Thanks, so much, everybody.

By Gerald L.  Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways: 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.

Case Background

Plaintiffs are ATM operators. Defendants are global payment technology companies. Plaintiffs alleged that Defendants instituted ATM fee non-discrimination rules that violated federal antitrust laws by prohibited ATM operators from charging customers different access fees for transactions on different ATM networks. Specifically, Plaintiffs alleged that the rules allowed Defendants to charge supracompetitive transaction fees and foreclose competition from other networks.

The D.C. Circuit’s Ruling

The Supreme Court declined Defendants’ petition for review of the D.C. Circuit’s affirmation of the certification of three different classes. Two consumer classes were certified on grounds that they were forced to pay supracompetitive ATM surcharges and a class of ATM operators was certified on grounds that that they could not use competing ATM networks. According to Defendants, the D.C. Circuit used a lower standard for class certification similar to one utilized by the Eighth and Ninth Circuits, whereas the Second, Third, Fifth, and Eleventh Circuits employ a more rigorous “careful consideration” standard regarding Plaintiffs’ burden to establish predominance.

By denying review, this issue remain unresolved in terms of Rule 23 class certification standards.

Implications For Defendants

Visa v. National ATM Council is an important example of the importance of Plaintiffs’ ability to show that questions common to the class predominate to earn class certification.

To the extent that the conflict between the two standards implemented across the circuit courts becomes more distinct, the U.S. Supreme Court may eventually weigh in to resolve it.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Sean P.  McConnell 

Duane Morris Takeaway: Class action litigation involving antitrust claims had several key developments in 2023, despite a relative lack of actual verdicts. Because antitrust remedies often allow recovery of treble damages, the incentive to settle these cases is often paramount. Additionally, plaintiffs are entitled to reasonable attorneys’ fees that may be substantial because of the complexity of this kind of litigation. As a result, most antitrust class actions are settled before trial, and one of the most crucial phase in these cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical.

The class action team at Duane Morris is pleased to present a new publication – the 2024 edition of the Antitrust Class Action Review. We hope it will demystify some of the complexities of antitrust class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues.  We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with antitrust class action litigation.

Click here to download a copy of the Duane Morris Antitrust Class Action Review – 2024 eBook.

Stay tuned for more Antitrust class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

By Gerald L. Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways: 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.

Case Background

Plaintiffs are home sellers. The Defendants relevant to the motion at bar are HomeServcies, BHH Affiliates, LLC, and HSF Affiliates, LLC. Plaintiffs alleged that Defendants violated the Sherman Act by entering into a conspiracy to follow and enforce a rule adopted by NAR, which had the purpose and effect of raising, inflating, or stabilizing buyer broker commission rates paid by home sellers from April 29, 2015, through June 30, 2022. The Court certified the class of plaintiffs on April 22, 2022, and the Eighth Circuit denied Rule 23 review requested by Defendants. In October 2023, a jury awarded $1.8 billion to the class against NAR, HomeServices, and Keller Williams, though Keller Williams had previously settled out of the litigation.

Last month, NAR entered into a groundbreaking $418 million settlement to resolve all related litigation.

The Court’s Ruling

The Court was unconvinced by HomeServices’ arguments and stuck with its initial analysis in granting class certification.

The Court reasoned that the Class’ economic expert opined that commission rates were uniformly high because of the cooperative compensation rule, without which a seller would not pay the commission of the buyer’s broker. According to the Court, trial testimony from the Class Plaintiffs further established that commission rates were uniformly high due to the cooperative compensation rule and that the higher commissions were paid during the entire class period. The Court further found that the damages model of Plaintiffs’ expert sufficiently relied on common proof by calculating the specific amount of damages for each class home sale transaction.

Implications For Defendants

Moehrl is another example of a federal antitrust class certification decision that turned on whether evidence of common, injury-producing conduct existed. The Court credited evidence capable of showing the impact of the anticompetitive conduct across all class member at trial.

By Gerald L. Maatman, Jr. and Sean McConnell

Duane Morris Takeaways: On March 20, 2024, a regulatory filing by UFC parent company, TKO Group Holding Inc., revealed that TKO will pay $335 million to settle a class action brought by MMA fighters who alleged that the UFC engaged in anticompetitive conduct to suppress the fighters’ wages in Le v. Zuffa, LLC, No. 2:15-CV-01045 (D. Nev. 2024). The parties had engaged in mediation last month prior to the start of trial scheduled for April 15, 2024. Earlier this year, Judge Richard F. Boulware II of the U.S. District Court for the District of Nevada denied Defendant’s motion for summary judgment and declined to exclude two of Plaintiffs’ key experts. Id. (D. Nev. Jan. 18, 2024). The Court had also certified the class on August 9, 2023.

Le v. Zuffa has been closely watched in the antitrust space and the trial was much anticipated as it was the first labor monopsony case ever. The prior rulings in the case are required reading for any corporate counsel handling antitrust class action litigation involving wage-suppression issues. The announced settlement underscores the risks and exposures emanating from this type of antitrust claim.

Case Background

Plaintiffs are current or former UFC fighters. Defendant Zuffa, LLC does business as the UFC and is the preeminent MMA event promoter in the United States.

Plaintiffs alleged that UFC used exclusive contracts, market power, and a series of acquisitions to suppress wages paid to UFC fighters during the class period by up to $1.6 billion. Plaintiffs filed suit in December 2014 and defeated UFC’s motions for partial summary judgment in 2017.

In February 2018, plaintiffs moved to certify two classes. The Court granted the motion and certified a class consisting of all persons who competed in one or more live professional UFC-promoted MMA bouts taking place in the United States from December 16, 2010 to June 30, 2017.  In light of the class certification, Defendant renewed its motion for summary judgment and moved to exclude expert testimony. The Court struck two of Defendant’s motions to exclude and denied summary judgment. The case was scheduled to start trial on April 15, 2024.

Class Action Settlement Announced

The settlement, which will be paid out over an unspecified amount of time, resolves all of the antitrust wage-suppression claims against the UFC and avoids the risks associated with trial.

The parties will still need to present the settlement to the Court for preliminary and final approval pursuant to Rule 23.

Implications For Employers

Le v. Zuffa was a significant labor antitrust class action.

The settlement underscores the ability of  workers to use antitrust law to tilt labor market dynamics in their favor and to increase workers’ bargaining leverage for greater compensation and benefits.

By Gerald L. Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways: On February 20, 2024, Judge Andrea R. Wood of the U.S.  District Court for the Northern District of Illinois granted Defendants’ motion to dismiss with respect to a federal antitrust claim seeking injunctive relief for violations of Section 1 of the Sherman Act, among other claims, in Batton, et al. v. The National Association of Realtors, et al., No. 21-CV-00430 (N.D. Ill. Feb. 20, 2024). The Court accepted defense arguments that the members of the putative class were only indirect purchasers of buyer-broker services; therefore the Court opined that they were barred from seeking damages under federal antitrust law by Illinois Brick Co. v. Illinois, 431 U.S. 720, 729 (1977), and dismissed the claim for injunctive relief under Section 1 because the more directly injured home sellers are challenging the same rules and seeking the same injunction in separate, related cases.

Batton is required reading for any corporate counsel handling antitrust class action litigation involving indirect purchasers.

Case Background

Plaintiffs are homebuyers. Defendants, National Association of Realtors (“NAR”), Realogy Holdings Corp., HomeServices of America, Inc., HSF Affiliates, LLC, Long & Foster Companies, Inc., BHH Affiliates, LLC, RE/MAX LLC, and Keller Williams Realty, Inc. utilized a Multiple Listing Service (“MLS”) in the sale of homes. Plaintiffs alleged that MLS access was restricted only to home sellers who make a set commission offer to the successful buyer-broker, resulting in supracompetitive commission rates that get baked into the purchase price for homes. Plaintiffs brought a claim for injunctive relief under Sherman Act Section 1 as well as various state antitrust and consumer protection claims.

The Court’s Ruling

Although Illinois Brick does not preclude indirect purchasers like the putative class of homebuyers from pursing claims for injunctive relief under the Sherman Act, the Court dismissed the claim. It reasoned that because the more directly injured home sellers were challenging the same rules and seeking the same injunction in separate litigation before the same Court, the claim could not stand.

Implications For Defendants

Batton could be an important test of indirect purchasers’ ability to use antitrust law when there are other purchasers better suited to bring federal antitrust claims. Hence, it is an important decision in this space.

By Gerald L. Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways: On February 6, 2024, in In Re Delta Dental Antitrust Litigation, No. 1:19-CV-06734, MDL No. 2931 (N.D. Ill. Feb. 6, 2024). roughly 240,000 dentists and dental practices sought class certification in the U.S. District Court for the Northern District of Illinois against Delta Dental, the largest dental insurance system in the United States, on grounds that Delta Dental and its related entities artificially lowered the reimbursement rates paid for dental goods and services to Plaintiffs in violation of the federal antitrust laws. Plaintiffs moved for class certification under Rule 23(a) and Rule 23(b)(3) on the grounds that all class members have been harmed substantially by the alleged conspiracy between Defendants and that evidence common to the class confirms the existence of the conspiracy to suppress reimbursement rates in violation of Sherman Act Section 1.

Corporate counsel should follow In Re Delta Dental Antitrust Litigation as the ruling on class certification could have a significant impact class action law, generally, and on trade and professional associations facing antitrust issues, specifically.

Case Background

Plaintiffs are dentist and dental practices who participate pursuant to provider agreements in Delta Dental’s Premier or PPO networks. Defendants are the largest dental insurance system in the United States and are comprised of Delta Dental, its 39 state-level member companies and their national coordinating entities, Delta Dental plans Association and DeltaUSA. Plaintiffs claim that Defendants formed a cartel and committed per se violations of Section 1 of the Sherman Act by agreeing to reduce reimbursements to Plaintiffs through territorial restrictions, agreeing to fix the prices for specific dental goods and services, and agreeing to restrict competition from other competitors.

Rule 23 Contentions

Plaintiffs argue that class certification is appropriate under Rule 23(b)(3) because evidence common to the class can prove the existence of the conspiracy and harm to the class in the form of lower reimbursement rates. Plaintiffs claim that written agreements imposed territorial restrictions on competition and required adherence to uniform, or fixed, prices for dental goods and services. The agreements also restricted efforts to sell dental insurance under different brands. According to the model advanced by Plaintiffs’ economic expert, Plaintiffs will be able to establish both class-wide impact and class-wide damages on behalf of more than 97 percent of the proposed class. Plaintiffs also argue that Defendants’ procompetitive justifications for the restrictions are irrelevant in a per se antitrust case, but, in any event, are without merit because premiums paid by dental patients increased substantially during the class period and Delta Dental passed on the increased premiums to executives in the form of generous salaries.

Implications For Corporate Defendants

In Re Delta Dental Antitrust Litigation is another example of a federal court class certification decision that will turn whether evidence of common, injury-producing conduct exists. It will be interesting to follow whether the Court credits evidence as capable of showing the impact of the allegedly anticompetitive conduct across all class members at trial.

By Gerald L. Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways: On January 19, 2024, the Illinois Supreme Court unanimously held that the Illinois Antitrust Act does not allow staffing agencies to avoid allegations that they suppressed wages and agreed not to hire each other’s workers in The State of Illinois ex rel. Kwame Raoul v. Elite Staffing, Inc., et al., No. 2024 IL 128763 (Ill. Jan. 19, 2024). The Supreme Court rejected defense arguments that the complaint failed to state a cause of action because the Illinois Antitrust Act provides that services otherwise subject to the Act “shall not be deemed to include labor which is performed by natural persons as employees of others.” Id. at 3. The Supreme Court concluded that reading the Illinois Antitrust Act so broadly would contradict the entire purpose of the Act, i.e., promoting and protecting free and fair competition; therefore it found that the Act does not exclude all agreements concerning labor services, including the conduct alleged.

Illinois v. Elite Staffing is an important reminder that businesses must be mindful of state antitrust and competition laws, in addition to the federal antitrust laws, and is required reading for any corporate counsel handling antitrust class action litigation under state antitrust and competition laws involving wage-suppression issues.

Case Background

In July 2020, the Illinois Attorney General sued Elite Staffing Inc., Metro Staff Inc., Midway Staffing Inc. and their common customer, Colony Inc., on grounds that Colony required the staffing agencies not to poach each other’s employees and to agree to below-market wages for temporary workers at Colony. The three staffing firms provided a Colony facility with temporary workers beginning in 2018 where between 200 and 1,000 temporary workers would work at any given time. According to the allegations in the Complaint, Colony required the staffing agencies not to offer better wages or other benefits to any of each other’s workers and precluded the workers from trying to switch between the agencies. The Defendants moved to dismiss the complaint arguing that the alleged conduct was exempted from antitrust liability under the Illinois Antitrust Act. The circuit court denied the motion, and the Illinois Appellate Court concluded that the exemption in the Act did not extend to services provided by staffing agencies. The Illinois Supreme Court thereafter granted Defendants’ petition for leave to appeal.

Illinois Antitrust Act Does Not Exclude All Agreements Concerning Labor

Section 4 of the Illinois Antitrust Act exempts from coverage “labor which is performed by natural persons as employees of others.” See 740 ILCS § 10/4. This section is important because, among other reasons, § 3 of the Illinois Antitrust Act, which is expressly modeled after § 1 of the Sherman Act and federal court interpretations thereof, would otherwise proscribe the conduct alleged in the Complaint. The Supreme Court noted that just as reading §1 of the Sherman Act to prohibit every restraint on competition would be absurd, so too would be reading § 4 of the Illinois Antitrust Act in isolation. Specifically, the Supreme Court found that “service” cannot be read so broadly as to exempt all agreements concerning wages and conditions of employment from antitrust scrutiny regardless of their anticompetitive effects, which would be contrary to the entire purposes of the Illinois Antitrust Act. Id at 19. The Supreme Court concluded that agreements between employers that concern wages or hiring may violate the Illinois Antitrust Act unless it is part of a collective bargaining process.

Implications For Employers

Illinois v. Elite Staffing opens to door for workers in Illinois to use state antitrust law to tilt labor market dynamics in their favor and to increase their bargaining leverage for greater compensation and benefits. It serves as an important reminder for employers to also be mindful of state antitrust and competition laws when making labor market decisions.

By Gerald L. Maatman, Jr. and Sean McConnell

Duane Morris Takeaways: On January 18, 2024, Judge Richard F. Boulware II of the U.S. District Court for the District of Nevada denied Defendant’s motion for summary judgment in a wage suppression antitrust class action and declined to exclude two of Plaintiffs’ key experts in Le v. Zuffa, LLC, No. 2:15-CV-01045 (D. Nev. Jan. 18, 2024). The Court rejected defense arguments that summary judgment was appropriate on largely the same grounds that it certified the class on August 9, 2023, including arguments that the statistical model of Plaintiffs’ expert was flawed because it failed to include everyone in the sport and failed to consider the ways promoters help fighters develop into bigger stars. Defendant also argued that there was no dispute that there are more UFC fighters, more fights, and better compensation than at the start of the class period; however, the Court found sufficient evidence that UFC may have used its market power to suppress wages in any event.

 Le v. Zuffa is the first labor monopsony case ever, and the ruling in is required reading for any corporate counsel handling antitrust class action litigation involving wage-suppression issues.

Case Background

Plaintiffs are current or former UFC fighters. Defendant, Zuffa, LLC does business as UFC and is the preeminent MMA event promoter in the United States. Plaintiffs allege that UFC used exclusive contracts, market power, and a series of acquisitions to suppress wages paid to UFC fighters during the class period by up to $1.6 billion. Plaintiffs filed suit in December 2014 and defeated UFC’s motions for partial summary judgment in 2017. In February 2018, plaintiffs moved to certify two classes. A class consisting of all persons who competed in one or more live professional UFC-promoted MMA bouts taking place in the United States from December 16, 2010 to June 30, 2017 was certified last August (our prior post on that ruling is here).

In light of the class certification, Defendant renewed its motion for summary judgment and moved to exclude expert testimony. The Court struck two of Defendant’s motions to exclude and denied summary judgment. As a result, the case is scheduled to start trial on April 8, 2024.

Denial Of Summary Judgement

The Court rejected Defendant’s arguments for summary judgment on grounds that they were repetitive and unavailing.

Specifically, Zuffa argued that the total number of bouts, fighter compensation, and fighters all increased during the class period, that there are no barriers to enter the fight promotion market, and that it did not prevent competitors from signing and promoting fighters. The Court found that the fact that the raw numbers of fighters, bouts, and compensation increased is not dispositive and credited Plaintiffs’ evidence that their wages were still suppressed. The Court also noted that it expressly rejected Defendant’s arguments regarding barriers to entry and completion in the class certification decision.

Implications For Employers

Le v. Zuffa has the potential to be a landmark labor antitrust class action.

The Court credited evidence establishing that UFC has anticompetitive power on the buyer-side market of purchasing fighter services and that it used this power to harm all UFC fighters. Like other labor antitrust cases, Le v. Zuffa could be an important test of workers’ ability to use antitrust law to tilt labor market dynamics in their favor and to increase workers’ bargaining leverage for greater compensation and benefits.

By Gerald L. Maatman, Jr. and Sean P. McConnell

Duane Morris Takeaways:  On December 28, 2023, Judge Elizabeth A. Wolford of the U.S. District Court for the Western District of New York denied a motion by Plaintiffs – purchasers of caustic soda – for class certification under Rule 23(b)(3) in Miami Products & Chemical Co., et al., v. Olin Corp., et al., No. 1:19-CV-385 (W.D.N.Y. Dec. 28, 2023). Judge Wolford refused to certify the putative class of caustic soda purchasers because individual issues predominated over questions common to the class and because the proposed class was not objectively ascertainable. As one of the final class certification rulings of the year, the decision is instructive reading for corporate defendants facing class-wide claims of alleged price-fixing.

Case Background

Plaintiffs alleged that they purchased caustic soda, a chemical co-produced with chlorine that is used in a variety of industries, from Defendants between October 1, 2015 and December 31, 2018. Defendants are the five largest producers of caustic soda sold in the United States. Plaintiffs asserted that Defendants unlawfully conspired to raise prices of caustic soda. Specifically, Plaintiffs claimed that Defendants violated antitrust laws by engaging in parallel conduct of announcing and implementing over a dozen price increases during the class period that resulted in prices of caustic soda rising by nearly 10% more than prices would have otherwise existed absent the alleged cartel.

The Court’s Order Denying Class Certification

Plaintiffs moved for class certification under Rule 23(b)(3). Defendants mostly focused their opposition on grounds that the Plaintiffs did not adequately represent the proposed class, that the claims were not typical of the proposed class, and that individual issues would predominate. Plaintiffs’ proposed class excluded purchases of caustic soda during the class period pursuant to contracts because the alleged anticompetitive price increases would not have impacted the contract prices.

The Court issued a 51-page ruling in denying Plaintiffs’ motion. To determine whether there has been class-wide injury, the Court noted that there must to be a reliable methodology for whether particular caustic soda purchases should be included or excluded from the class. The Court concluded that the methodology of Plaintiffs’ expert could not accurately determine whether a particular purchase fell within the class or not. The Court also opined that Plaintiffs could not establish an alternative common proof of class-wide impact because of the complexities of determining the prices paid for caustic soda during the class period; therefore, individual questions would predominate over common questions.

The Court also concluded that three of the proposed class members did not use the same price negotiation strategy as Plaintiffs; therefore, the Court held that Plaintiffs failed to demonstrate typicality. Finally, the Court determined that Plaintiffs failed to meet the ascertainability requirement because Plaintiffs failed to adequately define the contract purchases that were to be excluded from the proposed class.

Implications Of The Ruling

The Court’s ruling is important for antitrust class action defendants accused of price-fixing. The decision highlights the difficulties of earning class certification in antitrust cases where putative class members may not have always paid supracompetitive prices, in particular in markets characterized by complex pricing methodologies.