Duane Morris Antitrust Class Action Review – 2024

the Sherman Act by interfering with the plaintiff company ’ s contacts such that the company could not work with the contacts. The court ultimately determined that the plaintiff failed to properly define an economic market that could have been distorted by the policy. The court ruled that the complaint failed to provide specific facts establishing the existence of any business relationship between the plaintiffs and any identifiable third parties. Id. at *30. The court found that the complaint alleged that the “relevant geographic market in this case” was “Central, Coastal, and Southern California,” and the “relevant product market is the business of generating, transmitting, and distributing electricity and other related services, such as application designers and installers and their construction services relating to the product market.” Id. at *27. The court determined that the market definition was facially overbroad, and thereby granted the defendant ’ s motion to dismiss. In the second case, Alvarado, et al. v. Western Range Association, 2023 U.S. Dist. LEXIS 122127 (D. Nev. Mar. 21, 2023), the plaintiff – a Peruvian citizen who came to the United States on a temporary H-2A visa to work as a sheepherder – filed a putative class action against Western Range Association (WRA), an association of sheep ranches located throughout the Western United States. The plaintiff alleged that WRA and its members unlawfully restrained trade in violation of Section 1 of the Sherman Act by conspiring and agreeing to fix the wages offered to both domestic and foreign sheepherders at or near the wage floor set by the U.S. Department of Labor for H-2A sheepherders, and instructed all members to pay the minimum wage. Id. at *3-4. The plaintiff also alleged that the WRA allocated the market for foreign H-2A sheepherders among its members by assigning them to ranches and not allowing them to seek employment elsewhere. Id. The defendant WRA and its member sheep ranches argued that the plaintiff failed to state a viable Sherman Act claim because its allegations were nothing more than conclusory recitations of the elements of a violation. The court disagreed because the plaintiffs alleged parallel and concerted conduct in the form of similar wages across the board and that testimony from a former executive at WRA supported the inference that a tacit agreement between WRA and its members existed. Moreover, the fact that WRA did not pay the same precise wage to every sheepherder was not enough to defeat the plaintiff ’ s allegations of an unlawful agreement or overall wage-fixing scheme. Accordingly, the court rejected the defendant ’ s motion to dismiss under the rule of reason. Another important per se versus rule of reason case did not involve a no-poach agreement but instead involved a dispute between a group of subscribers of YouTube TV, Disney, ESPN, and Hulu. In Biddle, et al. v. The Walt Disney Co., et al. , 2023 U.S. Dist. LEXIS 176547 (S.D. Cal. Sept. 30, 2023), plaintiffs alleged that Disney entered into anticompetitive carriage agreements with YouTube TV and conspired to inflate prices of monthly subscriptions in the Streaming Live Pay TV (SLPTV) market in violation of Section 1 of the Sherman Act. Specifically, the plaintiffs alleged that Disney ’ s ESPN charges cable companies high affiliate fees to broadcast its channels, leading to increased costs for consumers. The plaintiffs argued that Disney ’ s control of ESPN, Hulu, and its position in the SLPTV market has allowed it to have substantial influence on pricing and carriage agreements. The plaintiffs claimed that Disney ’ s actions, particularly after acquiring Hulu, led to substantial price increases in SLPTV subscriptions, reducing competition, and harming consumers. Disney moved to dismiss the claims. The court concluded that the alleged arrangement was not appropriate for per se treatment, and granted Disney ’ s motion in that respect; however, under a rule of reason analysis, the court denied Disney ’ s motion and allowed the plaintiff ’ s antitrust claims to proceed. 2. Class Certification Rulings In Antitrust Cases Several important antitrust lawsuits in 2023 went to decision on class certification. The Court of Appeals for the D.C. Circuit upheld class certification of a group of ATM operators and debit

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