Duane Morris Antitrust Class Action Review – 2024

inflate prices paid by the plaintiffs and the putative class in violation of § 2 of the Sherman Act and § 7 of the Clayton Act. The defendants argued that the plaintiffs’ class failed to meet the predominance and superiority requirements of Rule 23(b), specifically with respect to the reliability and relevance of the plaintiffs’ expert ’ s testimony. The defendants asserted that the testimony relied on averages, and argued that averages could not establish predominance because the data would mask class members who were not in fact impacted by the merger. The court found defendants’ arguments unpersuasive because the methodology of the plaintiffs’ expert was the same as that of another expert that had already been deemed satisfactory for establishing predominance by the Seventh Circuit. The court opined that the plaintiffs sufficiently demonstrated that the class was able to use “common evidence of the post-merger price increases NorthShore negotiated with insurers to show that all or most of the insurers and individuals who received coverage through those insurers suffered antitrust injury as a result of the merger.” Id. at *26. As to superiority, the court noted that the defendants’ only argument as to why the plaintiffs could not establish superiority was that the class failed to establish predominance. Since the court ruled that the predominance requirement was met, it also concluded that the class met the superiority requirement. For these reasons, the court denied defendants’ motion for decertification. Finally, in the case captioned In Re Interest Rate Swaps Antitrust Litigation , Case No. 16-MD-2704 (S.D.N.Y. Dec. 18, 2023), the plaintiffs in this multi-district litigation were investors alleging antitrust claims brought against investment banks that were dealers in the market for interest rate swaps. The plaintiffs contended that the defendants unlawfully conspired to boycott and undermine trading platforms that would have supplied investors with more competitive prices for interest rate swaps (IRSs). Id . at 1. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The plaintiffs asserted that the defendants’ alleged conspiracy prevented the growth of all-to-all trading platforms that would have provided price benefits to investors, which were otherwise unavailable in the “over-the-counter” model where investors trade IRSs through direct communications with dealers. Id . at 2. Without the direct involvement of a dealer, the plaintiffs contended that the platforms could have developed to keep the IRSs spreads lower for investors. The defendants argued that the plaintiffs’ proposed class failed to meet the predominance requirement of Rule 23(b)(3). The defendants also asserted that the proposed class was overbroad and failed to meet the typicality and adequacy requirements of Rule 23(a). Id . at 5. Despite a string of decisions finding that plaintiffs had established predominance under Rule 23(b)(3) in analogous cases, the court agreed with the defendants that individual issues predominated over common questions to the class such that certification would not be proper. The plaintiffs argued that common class-wide proof existed that all putative class members paid more than they would have in a “but-for” scenario of investing. Id . at 12. The defendants asserted that large numbers of IRS trades were unharmed by the alleged conspiracy because they were executed at spreads that were less than or equal to zero. Id . The defendants stated that class members could not have been harmed by these trades, and their presence made a showing of class-wide antitrust impact impossible. Id . The court found that the plaintiffs failed to rebut the defendants’ showing that there were numerous trades made during the class period that were at or below zero. The plaintiffs relied on their expert testimony, which indicated that there were no IRS trades with zero or negative spreads, but the defendants provided evidence that the plaintiffs’ expert’s methodology was “fundamentally unsuited” to determining whether those trades occurred. Id . at 13. The court found that the plaintiffs’ expert’s methodology raised false positives because under the approach used, there were many IRSs that should qualify as at or below-zero swamps but appeared as above-zero swaps. The court ruled that the plaintiffs failed to demonstrate that class-wide impact of an antitrust violation was capable of common class-wide proof. Accordingly, the court denied the plaintiffs’ motion for class certification. 3. Rule 23 ’ s Numerosity Requirement And The Impracticability Of Joinder In 2023, the plaintiffs also failed to achieve class certification in two pay-for-delay putative antitrust class actions.

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