Antitrust Class Action Review – 2025

transaction data that had not been properly categorized, which undermined the reliability of the analysis, and that the model was thereby unsuitable for proving class-wide injury. For these reasons, the court concluded that the IPPs failed to demonstrate by a preponderance of the evidence that common questions would predominate over individual questions with respect to their proposed class and denied the motion for class certification. The court granted class certification to a class of over 32,000 individuals and companies in In Re Valve Antitrust Litigation , 2024 U.S. Dist. LEXIS 215475 (W.D. Wash. Nov. 26, 2024). The plaintiffs, Wolfire Games, LLC, Dark Catt Studios Holdings, Inc., and Dark Catt Studio Interactive LLC filed a class action alleging that the defendant, Valve Corp., the digital distributor of PC games through its Steam platform, had an anti-competitive practice known as the Platform Most Favored Nations (PMFN) Policy, which required game companies to offer games on Steam at the same price and with the same features as they offered them elsewhere. If game developers violated this policy by offering a lower price or better version of a game on another platform, Valve could retaliate by removing the game from Steam’s marketing or delisting it altogether. The plaintiffs contended that this practice resulted in higher consumer prices, prevented competition between digital distribution platforms, and harmed other game companies by forcing them to accept Valve’s higher commission rates in violation of §§ 1 and 2 of the Sherman Act and Washington’s Consumer Protection Act. The plaintiffs filed a motion for class certification, and the defendant moved to exclude the plaintiffs’ expert testimony from Dr. Steven Schwartz. The court granted the plaintiffs’ motion and denied the defendant’s motion. The plaintiffs sought certification of a class consisting of U.S.-based individuals or entities that paid commissions and U.S.-based consumers who purchased games during this period. Dr. Schwartz opined that the defendant’s PMFN Policy allowed the company to maintain its market dominance and inflate its commission rates and that without the PMFN Policy, the defendant would face more competition and would have to reduce its commission rates to stay competitive. The defendant challenged Dr. Schwartz’s testimony on several grounds, arguing that his methods were flawed, especially his analysis of Steam as a “one-sided” rather than “two-sided” platform and his speculative conclusions regarding Valve’s market share in a competitive, “but-for” world. Id. at *11. The court rejected the defendant’s arguments. The court ruled that Dr. Schwartz’s conclusions were not based on unreasonable assumptions, and that his analysis of the defendant’s pricing and commissions was sufficiently grounded in viable evidence. Accordingly, the court denied the defendant’s motion to exclude Dr. Schwartz’s expert testimony. Relative to the motion for class certification, the defendant contested that the plaintiffs could establish the predominance and commonality requirements. The defendant argued that the plaintiffs could not establish a “price parity” policy, that the antitrust impact and damages were too individualized, and that the statute of limitations posed individualized issues that would predominate. The court rejected all arguments. The court found sufficient evidence that the defendant maintained a “content parity” and “price parity” policy and that the policy affected all class members. Id. at *29-30. The court also determined that Dr. Schwartz’s testimony provided common evidence of antitrust impact (inflated commissions) and injury, which affected all class members. As to any statute of limitations issues, the held opined that even if some individualized inquiry was required, it would not defeat class certification. Thus, the court determined that a class action would be the superior method of adjudication and granted the plaintiffs’ motion for class certification. The plaintiffs in City Of Rockford, et al. v. Mallinckrodt ARD, Inc., 2024 U.S. Dist. LEXIS 58878 (N.D. Ill. Mar. 29, 2024), including the named plaintiff City of Rockford, filed a class action lawsuit alleging anticompetitive behavior by the defendants. The plaintiffs asserted that defendant Express Scripts, a drug distributor, conspired with Mallinckrodt, a drug manufacturer, to raise prices of H.P. Acthar Gel, a drug prescribed to plaintiffs’ employees under their health plan. The plaintiffs filed a motion for class certification for four classes, including: (i) direct Acthar purchasers; (ii) indirect purchasers via CVS Caremark; (iii) an injunction class; and (iv) a declaratory judgment class on antitrust liability issues. The court denied the motion for class certification. The main dispute for the damages classes concerned the damages model proposed by the plaintiff’s expert, Professor Comanor. The defendant argued that the model failed to account for non-conspiratorial factors affecting Acthar’s price and lacked a proper basis for using the Producer Price Index (PPI) as a comparison metric. The court found Comanor’s model unreliable due to unsupported assumptions about therapeutic benefits and failure to control for market factors. The court determined that without a reliable method to calculate damages on a class-wide basis, the individualized issues of damages would overwhelm common questions, thereby making class certification impractical. Therefore, the court denied certification of the damages class because the plaintiffs had not met Rule 23(b)(3)’s predominance standard because they lacked a reliable economic model to demonstrate that damages were capable of measurement on a class-wide basis. The court also denied class certification for the plaintiffs’ injunction class under Rule 23(b)(2). The court explained that the

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