Category: Antitrust Class Actions

By Sean McConnell and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On June 6, 2025, Judge Claudia Wilken issued a highly anticipated 76-page order approving the proposed settlement in House v. NCAA, Oliver v. NCAA and Hubbard v. NCAA (collectively, the House settlement). As discussed in a prior Alert, the settlement—between the NCAA and its Power Five conferences (Atlantic Coast, Big Ten, Big 12, Pac-12 and Southeastern) and a class of current and former NCAA athletes—provides for approximately $2.8 billion in back-pay damages and sets forth the initial revenue share framework that will allow colleges and universities to offer direct payment to their student-athletes.

Judge Wilken’s approval of the settlement follows her directive for multiple revisions to the agreement initially presented at the April 7, 2025, final approval hearing. During that hearing and in the ensuing two months, Judge Wilken expressed significant concerns, particularly regarding whether the NCAA would agree to grandfather in current athletes to protect them from potentially losing scholarships under the new House settlement framework. The judge was ultimately satisfied with the modifications made, and the revised settlement is set to become effective on July 1, 2025.

While the settlement is certain to face additional legal challenges and scrutiny, the NCAA’s new compensation model will mirror elements of professional sports leagues, marking the official end of the “amateurism” era in college athletics.

Key Settlement Provisions

Back Pay

As finalized, the House settlement requires the NCAA and its Power Five conference members to pay approximately $2.8 billion in damages, characterized as “back pay,” to compensate student-athletes for the denial of name, image and likeness (NIL) opportunities under prior NCAA eligibility rules. This component of the settlement was not contested during the approval process. The settlement class—subject to certain exclusions—includes all Division I student-athletes who competed from 2016 to the present, reflecting the applicable statute of limitations. Compensation will be distributed to eligible athletes to account for lost NIL, video game and broadcast-related opportunities that were previously restricted under NCAA rules.

Permissive Revenue Sharing

With Judge Wilken’s approval, the House settlement ushers in a more professionalized era of college sports, effective July 1, 2025. Participating NCAA Division I institutions will be permitted to directly compensate student-athletes with up to 22 percent of the school’s average annual athletic revenue derived from media rights, ticket sales and sponsorships. This amount is capped at $20.5 million per school in the first year of the agreement, with the cap projected to increase by approximately 4 percent annually over the 10-year term of the settlement.

Importantly, the court-imposed “salary cap” excludes contributions from boosters or alumni groups, third-party NIL deals, traditional scholarships and any payments made prior to July 1, 2025.

Participation in the revenue-sharing framework is entirely voluntary. Institutions are not obligated to adopt the model, nor are those that do required to pay student-athletes the full $20.5 million annual cap. The Ivy League, for example, has opted out entirely, citing its recent antitrust victory affirming its policy against athletic scholarships. As such, Ivy League schools will continue to operate under traditional amateurism principles and will not participate in the new compensation structure.

For schools that elect to opt in, the settlement permits direct athlete payments from institutional revenues, subject to the cap. While the model introduces a regulated mechanism for athlete compensation, it also has the potential to create competitive disparities. Institutions with larger alumni bases and robust booster support may continue to offer additional NIL compensation outside the cap, which could significantly enhance their recruiting advantage.

Moreover, few institutions may be in a financial position to fully utilize the cap. Outside the Big Ten and SEC—whose media contracts generate substantial revenue—most Division I schools lack the revenue base to allocate $20.5 million (or more in future years) to athlete compensation. Data indicates that approximately 75 percent of athletic revenue at many institutions comes from football, with an additional 17 percent from men’s and women’s basketball. This structure disproportionately benefits programs with strong football revenues and places smaller or football-absent schools (e.g., Big East basketball programs) at a disadvantage, as their 22 percent revenue share may fall well below the cap.

As such, institutions must conduct a thorough financial and legal assessment to determine whether opting into the revenue-sharing model is feasible. Those that opt in must also ensure that their distribution plans are compliant with the settlement’s terms and applicable legal requirements. In many cases, a significant portion of compensation is expected to flow to revenue-generating sports, potentially pressuring athletic departments to reevaluate their support for nonrevenue sports. This could lead to budget cuts, program reductions or reclassification of certain sports to club-level status.

Institutions adopting the revenue-sharing model should take care to develop clear and compliant agreements and implementation plans. Legal counsel, if engaged early, can help ensure compliance with Title IX, labor laws and evolving NCAA regulations.

Scholarship Limits

A key component of the House settlement is the elimination of NCAA-imposed scholarship limits, allowing institutions to offer a greater number of full or partial scholarships to student-athletes. This shift grants schools increased flexibility in structuring team rosters and allocating financial aid, aligning more closely with professional team management models.

An earlier draft of the settlement included roster limits that would have gone into immediate effect and, in some cases, would have resulted in current athletes losing their roster spots or scholarships. Judge Wilken raised significant concerns about this approach, particularly because affected athletes would have had no opportunity to opt out of the settlement to preserve their eligibility or position.

In response to the court’s concerns, the NCAA and plaintiffs’ counsel revised the agreement to include a “grandfathering” mechanism. Under the final settlement terms, schools may elect to retain current student-athletes and recruits on their rosters for the duration of their NCAA eligibility without those individuals counting toward any new roster or scholarship limits. This adjustment is intended to ensure continuity and fairness for athletes already enrolled or committed.

Despite this revision, certain objectors challenged the adequacy of the provision, arguing that it fails to protect athletes at institutions that choose not to implement the grandfathering option. In rebuttal, the NCAA and plaintiffs’ counsel noted that roster spots in college athletics have never been guaranteed and are traditionally subject to coaching decisions and program needs.

Judge Wilken ultimately approved the revised provision, concluding that it provided a reasonable and sufficient remedy under the circumstances.

Pay-for-Play and Evaluation & Conditional Approval of NIL Deals

Although the settlement creates a path for more direct compensation of student-athletes, it includes significant oversight mechanisms. Any NIL deal exceeding $600 must be reported to and reviewed by the NCAA. This relatively low threshold ensures ongoing NCAA involvement in most NIL arrangements.

The NCAA retains the authority to approve NIL agreements only if they meet two criteria:

1. The deal must serve a valid business purpose, meaning it must promote or endorse goods or services offered to the general public for profit; and
2. Compensation must be commensurate with the value of similarly situated individuals, including nonathletes.

To facilitate fair compensation, Deloitte has been appointed to assess the market value of NIL agreements based on 12 evaluative factors, including the athlete’s social media reach, athletic performance, geographic market, deal duration and scope, and potential red flags indicating impropriety. These criteria, however, leave considerable room for litigation over their precise interpretation, requiring schools to invest significant resources in research to accurately determine fair market values ahead of Deloitte’s assessments. Meanwhile, the NCAA retains oversight by mandating that all NIL agreements serve a “valid business purpose,” defined broadly as promotion or endorsement of goods or services offered to the general public for profit, and that compensation be “commensurate with the NIL value of similarly situated individuals.” This framework grants the NCAA substantial discretion to approve or reject NIL agreements, ensuring that payments align with rates and terms paid to comparable individuals outside the institution who possess similar NIL value.

Despite this framework, it remains unclear how the NCAA will define “similarly situated individuals” and apply this standard consistently—leaving open the possibility of further legal disputes.

Does This Settlement Solve All Outstanding Legal Issues?

Although Judge Wilken’s approval was expected, it is not the end of this story. There are still many open legal questions and issues that this settlement did not address and that will be the subject of ongoing litigation for years to come:

Ongoing Litigation for Opt-Out Plaintiffs

Student-athletes who opted out of the settlement continue to pursue their claims (e.g., Fontenot v. NCAA), which will now proceed on an individual basis.

Transfer Portal Rules

The House settlement agreement does not establish specific guidelines regarding the transfer portal or how the “fair market value” analysis will apply to transferring athletes. The process for assessing a player’s fair market value in the fast-moving transfer portal environment remains undefined and is likely to create challenges and potential disputes. Additionally, some institutions have already developed or implemented buyout provisions for athletes who leave early or transfer, particularly those subject to third-party NIL agreements.

Impact on Nonrevenue Sports

The salary cap structure may lead institutions to cut costs associated with nonrevenue sports, potentially reducing participation opportunities in these programs.

Title IX Concerns

Judge Wilken acknowledged that the settlement may raise significant gender equity concerns. Although Title IX compliance was not addressed within the scope of the settlement, the order notes that affected athletes may need to pursue separate legal remedies if violations occur. As Judge Wilken emphasized, potential challenges related to Title IX, state NIL statutes and federal or state employment and labor laws fall outside the court’s jurisdiction. It is widely anticipated that the revenue-sharing framework will face Title IX litigation, given that participating schools are expected to allocate substantially more revenue to male athletes—particularly football players—than to female athletes.

Federal Government Intervention

Congress and President Donald Trump could also consider legislation that alters the legal landscape of various college sports issues, and the president is weighing an executive order on college athlete compensation that might spawn new legal challenges

Conclusion

The House settlement represents a seismic shift in the regulation of college athletics, formalizing a compensation model for student-athletes and introducing robust oversight of NIL activity. While it provides much-needed clarity and structure, it also opens the door to new legal challenges—particularly around compliance, enforcement and equitable treatment across sports and gender lines.

Colleges, collectives and student-athletes must now carefully navigate this evolving regulatory environment. Institutions should consult with counsel to address these considerations and develop strategies, including draft template agreements, that adequately address all of these considerations to optimally position institutions to comply with and profit from this new opportunity.

For More Information

If you have any questions, please contact Sean P. McConnell, Andrew John (AJ) Rudowitz, Bryan Shapiro, any of the attorneys in our Antitrust and Competition Group, Daniel R. Walworth, any of the attorneys in our Education Industry Group, Gerald L. Maatman, Jr., any of the attorneys in our Class Action Defense Group, any of the attorneys in our Sports Group or the attorney in the firm with whom you are regularly in contact.our Sports Group or the attorney in the firm with whom you are regularly in contact.

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaway: Class action litigation involving antitrust claims had several key developments in 2024, 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 the 2025 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 bookmark or download a copy of the Antitrust Class Action Review – 2025 e-book.

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

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.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Google Podcasts, the Samsung Podcasts app, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, YouTube or our RSS feed.

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.