Duane Morris Antitrust Class Action Review – 2024

the disputed NCAA rules constitute a horizontal contract, agreement, or conspiracy under Section 1 of the Sherman Act, whether the defendants have any procompetitive justifications for the challenged rules, and whether any of the procompetitive justifications advanced by the defendants could have been achieved through less restrictive means. Accordingly, the court granted the plaintiffs’ motion for class certification for injunctive relief under Rule 23(b)(2). In Simon & Simon P.C., et al. v. Align Technology, Inc ., 2023 U.S. Dist. LEXIS 212506 (N.D. Cal. Nov. 29, 2023), the plaintiffs, a group of consumers in two related actions, alleged that the defendant, the maker of Invisalign, had a monopoly on the market for teeth straightening plastic aligners in violation of the Sherman Act. The plaintiffs filed a motion for class certification, seeking to represent direct purchasers of aligners, an injunctive relief class of indirect purchasers, and state law damages classes of indirect purchasers. The defendant opposed class certification and presented three main arguments in opposition, including: (i) that exclusive dealing agreements in the Fusion program, Advantage program, and Dental Services Organization contracts were inappropriately incorporated into expert models; (ii) that flaws in the expert models made them unreliable and therefore the expert testimony should be excluded; and (iii) that the plaintiffs failed to meet the typicality and adequacy requirements of Rule 23. The court granted class certification for the direct purchasers of aligners, the injunctive relief class of indirect purchasers, and the state law damages classes of indirect purchasers. The court denied certification for the class of scanner purchasers on the basis that there was not an adequate and typical named plaintiff who purchased a scanner within the defined class period. The court allowed the plaintiffs to proceed with two theories of liability, i.e ., a refusal to deal theory related to the termination of interoperability (TOI-only theory) and a combined theory involving exclusive dealing agreements in addition to the termination of interoperability. In support of the motion for class certification, the plaintiffs offered expert models prepared by Dr. Singer and Dr. Vogt. Dr. Singer's models included a TOI-only model and a combined model, which outlined the alleged anticompetitive effects and damages. Dr. Vogt performed a benchmark analysis and a pass- through analysis, which compared the aligner market to the dental implants market. The defendant challenged the reliability of expert models, arguing they failed to differentiate between conduct that was legal and alleged anticompetitive conduct. As to Dr. Singer’s model, the defendant contested the timing of anticompetitive effects, arguing that the impact should have occurred sooner if the defendant had market dominance for which Dr. Singer justified the one-year lag in his models (by citing reasons such as avoiding market backlash and adjusting discount programs). The court stated that a jury may be persuaded that the price effect showing up later made Dr. Singer’s the model less convincing or that his analysis was too results-oriented to be credible, but that the analysis was sufficiently reliable to support a class-wide showing of antitrust impact and damages. Id . at *14. The defendant also challenged Dr. Vogt’s analysis on the basis that the dental implant market was an improper comparator. The court determined that, through Dr. Vogt’s expert analysis, the plaintiffs showed that the pass-through analysis is consistent with qualitative evidence, is founded on substantial data, and was formed using reliable methods. Id . at *21. The court opined that Dr. Vogt adequately explained his use of averages and his decision not to look at a single dental practice. Accordingly, the court reasoned that the plaintiffs provided a reliable opinion that there was a consistent pass-through of prices from direct to indirect purchasers, and thus demonstrated that indirect purchaser damages were susceptible to class-wide proof. Id . The court therefore allowed the expert testimony of Dr. Singer and Dr. Vogt, and granted class certification to the direct purchasers of aligners, the injunctive relief class of indirect purchasers, and the state law damages classes of indirect purchasers. However, the court agreed with the defendant’s argument that the plaintiffs failed to establish that the met the typicality and adequacy requirements for class certification of a scanner purchaser class. The court found that there were significant differences of injuries and required proof compared to aligner purchasers such that certification of this class was not warranted. For these reasons, the court granted in part and denied in part the plaintiffs’ motion for class certification. In the case of In Re NorthShore University HealthSystem Antitrust Litigation, 2023 U.S. Dist. LEXIS 27977 (N.D. Ill. Feb. 20, 2023), the court rejected the defendants’ motion to decertify a class of all end payors who purchased inpatient or outpatient healthcare services directly from NorthShore. The plaintiffs alleged that NorthShore illegally monopolized the healthcare services market and used its leverage to artificially

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