Antitrust Class Action Review – 2025

The court agreed that Craft’s methodology lacked the specificity required to meet Rule 23’s ascertainability requirement. The court noted that despite Craft’s claims that her approach did not necessitate individual inquiries, it found the methodology too vague and general to be reliable or administratively feasible. The court thus concluded that the EPPs failed to meet the burden of proof to show that their class identification and exclusion methodologies were reliable, specific, or administratively feasible. For these reasons, the court denied the EPPs motion for class certification. The plaintiffs in two consolidated class actions, In Re Actos Antitrust Litigation, 2024 U.S. Dist. LEXIS 142236 (S.D.N.Y. Aug. 9, 2024), brought claims alleging that the defendant inflated the price of its diabetes drug, Actos, by delaying the market entry of generic versions, causing the direct purchasers and end-payor purchasers to overpay for both the brand and generic versions of Actos. The plaintiffs moved for class certification for a direct purchaser class and an end-payor class, and the court granted the motion, adopting the Magistrate Judge’s recommendation. The plaintiffs, which included employee health care plans and direct payer wholesalers, argued that the defendant misrepresented its patents to the FDA, thereby preventing generics from entering the market and causing them to pay higher prices for Actos. The court agreed with the Magistrate Judge’s determination that the plaintiffs established that all class members suffered similar injuries, and therefore met the commonality requirement. Despite the potential presence of some uninjured class members, the court concluded that the class could still be certified as long as the number of uninjured members was minimal, and the plaintiffs’ expert demonstrated that only a small percentage of the class members would be uninjured by the alleged delay of generic versions. The Magistrate Judge also found that the end payors provided a viable damages model based on the difference between the actual costs paid and what would have been paid in a hypothetical competitive market, multiplied by the quantity of purchases. In Miami Products & Chemical Co., et al. v. Olin Corp., 2024 U.S. Dist. LEXIS 227194 (W.D.N.Y. Dec. 16, 2024), a case involving allegations of price-fixing in the caustic soda, or lye, market, the Indirect Purchaser Plaintiffs (IPPs) alleged that several chemical companies — Olin Corp., K.A. Steel Chemicals, Occidental Chemical Corp., Westlake Chemical Corp., Shintech Inc., and Formosa Plastics Corp. — colluded to artificially inflate the price of caustic soda in the U.S. The IPPs asserted that the conspiracy led to supracompetitive prices that harmed indirect purchasers of the chemical. The IPPs filed a motion for class certification pursuant to Rule 23, seeking to represent two classes of purchasers who were allegedly affected by the price-fixing. The classes were defined based on geographic regions and time periods, with one class focusing on antitrust claims and the other on unjust enrichment claims. To support their motion for class certification, the IPPs offered the expert testimony from Dr. Gareth Macartney, who used statistical models to argue that prices were artificially inflated and that class-wide damages could be calculated. The defendants opposed class certification on the basis that the case was unsuitable for class treatment. The defendants also moved to exclude the expert opinions by Dr. Macartney. The IPPs moved to exclude the testimony of the defendants’ expert, Dr. John H. Johnson, which contradicted Dr. Macartney’s models, claiming they failed to account for key market factors and were based on flawed assumptions. The court first addressed the IPPs’ challenge to the reliability of Dr. Johnson’s regression analysis, which was central to the defense’s argument that any price increases in the caustic soda market were not driven by anticompetitive conduct. The IPPs claimed that Dr. Johnson’s analysis failed to reliably account for global supply and demand dynamics. The court, however, opined that it already addressed, and rejected, a similar argument raised by the Direct Purchaser Plaintiffs (DPPs) in their class certification motion, finding Dr. Johnson’s methodology reasonable. Accordingly, the court denied the IPPs’ motion to strike Dr. Johnson’s opinions and testimony. Further, the court found that the IPPs’ proposed classes failed to meet the predominance requirement of Rule 23(b). The court explained that the caustic soda market is characterized by diverse and complex pricing mechanisms, including fixed price contracts, indexed pricing, and differing negotiated terms. The defendants periodically issued price increase announcements, but these did not automatically lead to price hikes for all customers, particularly those with contract types that were not directly affected by such announcements. The court explained that because of these characteristics of the caustic soda market, to prove class-wide injury, the DPPs and the IPPs both must present common proof of a plausible mechanism through which the defendants’ alleged anticompetitive behavior — namely, agreeing to increase prices by issuing parallel price increase announcements unsupported by market conditions — could have caused customers with widely differing contract terms to pay inflated prices. Id. at *32. The court concluded that the DPPs had not done so in their previous attempt for class certification and ruled that the IPPs also failed to make the same showing. Id. at *33. The court also stated that Dr. Macartney’s model relied on flawed

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