Antitrust Class Action Review – 2025

II. Significant Rulings In Antitrust Class Actions In 2024 1. Algorithm Cases And Other Tech Industry Cases

In Gibson, et al. v. Cendyn Group, LLC, 2024 U.S. Dist. LEXIS 83547 (D. Nev. May 8, 2024), the class plaintiffs, comprised of “all persons who rented hotel rooms on the Las Vegas Strip” from one of the defendants from January 24, 2019 to present, alleged that the defendants (five hotel entities that operate on the Las Vegas Strip, and two providers of hotel management software) unlawfully conspired to fix prices and artificially inflate the price of hotel rooms in violation of § 1 of the Sherman Antitrust Act. Id. at *4. Specifically, the plaintiffs alleged a “hub and spoke” conspiracy where the defendant hotels tacitly agreed that each hotel would use the software provider’s prices, which would then be set artificially high. The defendants moved to dismiss the action, and the court granted the motion. Id. at *6. The court determined that the plaintiffs failed to sufficiently allege a tacit agreement between the hotel operators and the software companies (The Rainmaker Unlimited Inc. and Cendyn Group) to manipulate prices. The court stated that the plaintiffs failed to demonstrate that the hotel operators agreed to use the pricing-algorithm software simultaneously or show that the hotel operators followed the software’s pricing recommendations uniformly or that they exchanged confidential information through the software’s machine-learning capabilities. Further, the court rejected the plaintiffs’ argument that vertical agreements were in place between the hotel operators and Cendyn Group because there was no evidence suggesting that the hotel operators were obligated to accept the software’s pricing recommendations, and that they often rejected them. The court concluded that the plaintiffs failed to sufficiently allege an agreement by defendants to restrain their ability to price their hotel rooms competitively, and thus granted the defendants’ motion to dismiss. An appeal followed and the DOJ has weighed in on this case on appeal, arguing that the court erred on multiple fronts, and that information sharing alone can form the basis of a Sherman Act claim; and that no parallel pricing is required. The court in In Re Apple iPhone Antitrust Litigation, Case No. 11-CV-6714 (N.D. Cal. Feb. 2, 2024), granted the plaintiffs’ motion for class certification. It rejected the defendants’ arguments that the model of the plaintiffs’ expert revealed millions of uninjured class members and that individual issues would predominate. Instead, the court found that the model showed an estimated 7.9% of the class was uninjured and that with more complete data the model will be capable of showing antitrust impact on a class-wide basis. The plaintiffs were purchasers of iPhone applications (apps), app subscriptions, and/or in-app content via the iPhone App Store. The defendant

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