Duane Morris Antitrust Class Action Review – 2024

card holders in National ATM Council, Inc., et al. v. Visa Inc., 2023 U.S. App. LEXIS 19028 (D.C. Cir. July 25, 2023). The ATM operators and debit card holders alleged violations of Section 1 of the Sherman Act in connection with Visa and Mastercard ’ s requirement that ATM operators seeking to use their networks agree to rules governing the access fees that ATMs may charge cardholders. Plaintiffs specifically asserted that these access fee rules constituted an unlawful agreement and that defendants engaged in anticompetitive conduct by preventing bank and non-bank ATM operators from offering cardholders lower access fees for transactions routed over cheaper networks, and by blocking independent ATM operators from competing with bank-owned ATMs by charging cardholders less. Id. at *6. The district court certified three classes, finding that each satisfied the requirements of Rule 23. On appeal, Mastercard and Visa argued that the district court failed to give a “hard” or “close look” at plaintiffs’ evidence or to perform a “rigorous analysis” as to whether plaintiffs met the predominance requirement. Id. at *12. The D.C. Circuit determined that the district court ’ s class certification decision sufficiently explained the basis on which it concluded that the plaintiffs “satisfy through evidentiary proof” that common issues predominated for each class. The D.C. Circuit further opined that the record clearly supported the district court ’ s finding that “all three plaintiff groups have demonstrated that common evidence will predominate in proving each element of their claims.” Id. at *18. The district court confirmed not only that the plaintiffs offered common proof of injury, but also that their methods of establishing injury were reasonable, well accepted, and reliable. Id. at *21. The D.C. Circuit agreed with the district court that all three certified classes established the predominance requirement, and thus class certification was appropriate. For these reasons, the D.C. Circuit affirmed the district court ’ s class certification orders. Another important antitrust class case in 2023 involved both sports and access to certain television content. In the litigation entitled In Re NFL’s Sunday Ticket Antitrust Litigation, 2023 U.S. Dist. LEXIS 21752 (C.D. Cal. Feb. 7, 2023), the court granted class certification to a group of subscription television subscribers who alleged that the defendant used interlocking broadcast licensing agreements to suppress competition for the sale of professional football game telecasts in violation of Sections 1 and 2 of the Sherman Act. Id. at *2. The plaintiffs specifically asserted that the NFL, acting on behalf of the 32 individual NFL teams through a pooled-rights agreement, entered into two licensing agreements, including: (i) an agreement in which CBS and Fox coordinated to create a single telecast for every Sunday afternoon NFL game and were permitted to broadcast only a limited number of games through free, over-the-air television; and (ii) an agreement allowing DirecTV to obtain all of the live telecasts produced by CBS and Fox and bundle them into a subscription package called NFL Sunday Ticket. Id. at *2-3. As a result of the two licensing agreements, Sunday Ticket subscribers are able watch both local and out-of-market games, but non-subscribers could only watch a limited number of games. The plaintiffs asserted that the licensing agreements prohibited them from having the option to purchase just one team or out-of-market telecast and that, absent the agreement, a greater number of telecast options for NFL games would be more accessible to more viewers at lower prices. Id. at *3. The court certified two classes – a residential subscriber class and a commercial subscriber class – because the plaintiffs established that the Sunday Ticket had an anticompetitive impact on a class-wide basis and that the claims and damages were all subject to common issues of law and fact. The court determined that although there could be individual issues with precisely how each class member was impacted, they were all impacted in some common way and had some common injury due to the defendants’ alleged conduct. The U.S. District Court for the Northern District of Illinois certified a damages class and an injunctive relief class both consisting of home sellers in Moehrl, et al. v. National Association of Realtors, 2023 U.S. Dist. LEXIS 53299, at *1-2 (N.D. Ill. Mar. 29, 2023). The plaintiff home sellers alleged that various rules between the National Association of Realtors and multiple real estate brokerages allegedly inflated the commission rates that plaintiffs pay to sell their homes. The court found that there was at least one central, common question sufficient to meet the commonality requirement of Rule 23(a)(2) – whether the defendants conspired to artificially inflate the buyer-broker commissions paid by the class by adopting the challenged restraints in violation of Section 1 of the

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