Duane Morris Antitrust Class Action Review – 2024

involve a fact intensive inquiry into the availability of adequacy of “class-wide evidence” and continued to be a battleground for antitrust litigants in 2023 as shown by National ATM Council, Inc., et al. v. Visa Inc., 2023 U.S. App. LEXIS 19028 (D.C. Cir. July 25, 2023). Even where class certification is contested on multiple fronts, predominance frequently becomes the locus of attention where dueling experts may impact a court ’ s analysis of how and to what extent a proposed class experiences distinct or common antitrust harms. This played out in 2023 in Moehrl, et al. v. National Association of Realtors, 2023 U.S. Dist. LEXIS 53299 (N.D. Ill. Mar. 29, 2023), and In Re Pork Antitrust Litigation, 2023 U.S. Dist. LEXIS 53505 (D. Minn. Mar. 29, 2023). While class certification in antitrust actions is determined by the criteria of Rule 23, like all other class actions, courts may take specialized

approaches to the Rule 23 requirements when dealing with antitrust cases. For example, Rule 23(a)(1) requires the plaintiffs to show that their proposed class is so numerous that joinder of the members would be impracticable. This element of class certification is often referred to as the “numerosity” requirement. Essentially the courts weigh the alleged advantages and efficiencies of class actions against the practicality of simply joining parties to the litigation. In the antitrust context, courts have found that fewer than 20 members is likely insufficient while more than 40 members is likely sufficient, and between 20 to 40 members requires an analysis of other circumstances in the case that affect impracticability of joinder. This analysis played out over the past year in In Re Niaspan Antitrust Litigation , 67 F.4th 118 (3d Cir. 2023), and Value Drug Co., et al. v. Takeda Pharmaceuticals, U.S.A. Inc., 2023 U.S. Dist. LEXIS 33102 (E.D. Pa. Feb. 28, 2023), where a proposed class of 49 members was deemed not impracticable of joinder and class certification was denied. In 2023, courts granted class certification in 75% of antitrust class actions, or in 15 of 20 motions.

II. Significant Rulings In Antitrust Class Actions In 2023 1. Per Se Treatment Versus Quick-Look Analysis Versus Rule Of Reason Test In 2023, per se treatment versus quick-look analysis versus the rule of reason test was the ultimate battleground for adjudication of antitrust class action claims, in particular in the context of alleged “no poach” or “no hire” agreements. The most significant development on this battleground occurred in Deslandes, et al. v. McDonald’s USA, LLC , 2023 U.S. App. LEXIS 22509 (7th Cir. Aug. 28, 2023), where the U.S. Court of Appeals for the Seventh Circuit overturned a federal district court decision that held that the rule of reason test – and not per se treatment – applies to no-poach provisions in franchise agreements. The underlying dispute involved a group of former McDonald ’ s workers who brought a class action over alleged antitrust violations. The defendants operate fast-food restaurants, or do so through a subsidiary, and until recently, every McDonald ’ s franchise agreement contained a provision prohibiting any franchise

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