Antitrust Class Action Review – 2025

mechanism to identify class members without individualized fact-finding. The court ruled as that the parties were still in an early stage of litigation before the end of fact discovery, the motion was premature. Moreover, the court stated that even if the defendant was correct that ultimately the plaintiff will be unable to meet the ascertainability requirement, it was too early to make such a determination. Accordingly, the court denied the motion to strike the class allegations from the complaint. The pharmaceutical industry was not the only one that saw class certification decisions in 2024. The court in In Re Broiler Chicken Grower Antitrust Litigation No. II, 2024 U.S. Dist. LEXIS 84110 (E.D. Okla. May 8, 2024), granted class certification to the plaintiffs, consisting of growers of broiler chickens providing broiler grow-out services, who filed suit alleging that defendant Pilgrim’s Pride Corp. (PPC) engaged in a years-long conspiracy to suppress grower compensation in violation of the Sherman Antitrust Act. The proposed class included 24,354 Growers who raised at least one flock of broilers for either PPC or one of PPC’s co-conspirators during the class period, defined as any time between January 27, 2013 and December 31, 2019. The court agreed that commonality existed and common issues predominated such that the plaintiffs could establish the “essential elements” of their claims with class-wide proof. Id. at *28. The court rejected PPC’s argument that “there is no common evidence for resolution of plaintiffs’ sweeping wage-suppression claims” as “[t]he market for grower services is highly localized with myriad local factors that determine grower pay.” Id. The court determined that the plaintiffs presented documentary, testimonial, and economic evidence to support the alleged antitrust violation that PPC and its co-conspirators engaged in a years-long nationwide conspiracy to suppress Grower pay. The court reasoned that a horizontal conspiracy of this nature “is the prototypical example of an issue where common questions predominate, because it is much more efficient to have a single trial on the alleged conspiracy rather than thousands of identical trials all alleging identical conspiracies based on identical evidence.” Id. at *91. The court stated that either the alleged nationwide conspiracy exists, or it does not. Therefore, the court concluded that the plaintiffs’ claim likely will prevail or fall in common based on the answer to that single predominating question. Similarly, the court determined that the plaintiffs showed, through their broadly-accepted two-step method, that antitrust impact presents issues susceptible to common proof. The court noted that the plaintiffs presented documentary, testimonial, economic, and econometric evidence to demonstrate the overarching agreement suppressed grower pay and that the suppression was experienced broadly throughout the class. The court also stressed that litigating this case as a class action was preferable because most proposed class members could not bear the costs of litigating the claims individually, and due to the overlapping nature of the claims, evidence, and witnesses, individual litigation would be “grossly inefficient, costly,” and “unnecessarily duplicative.” Id. at *96. The plaintiffs in Burnett, et al. v. The National Association Of Realtors, Case No. 19-CV-332 (W.D. Mo. Mar. 26, 2024), a group of home sellers, filed a class action alleging that the defendants, HomeServcies, BHH Affiliates, LLC, and HSF Affiliates, LLC, violated the Sherman Antitrust Act by entering into a conspiracy to follow and enforce a rule adopted by National Association of Realtors (NAR), which allegedly inflated buyer broker commission rates paid by home sellers from April 29, 2015, through June 30, 2022. The court certified the class of plaintiffs on April 22, 2022, and the Eighth Circuit denied Rule 23 review requested by the defendants. In October 2023, a jury awarded $1.8 billion to the class against NAR, HomeServices, and Keller Williams, though Keller Williams had previously settled out of the litigation. Subsequently, NAR entered into a groundbreaking $418 million settlement to resolve all related litigation as multiple cases had been filed all over the country against NAR and its member organizations based on NAR’s cooperative compensation rule. In January 2024, the defendants moved for decertification of the class in Burnett, which the court denied. The court endorsed its initial analysis in granting class certification. Specifically, the court reasoned that the class’s economic expert opined that commission rates were uniformly high because of the cooperative compensation rule, without which a seller would not pay the commission of the buyer’s broker. According to the court, trial testimony from the class plaintiffs further established that commission rates were uniformly high due to the cooperative compensation rule and that higher commissions were paid during the entire class period. The court further found that the damages model of the plaintiffs’ expert sufficiently relied on common proof by calculating the specific amount of damages for each class home sale transaction. In Oliver, et al. v. American Express Co., 2024 U.S. Dist. LEXIS 4717 (E.D.N.Y. Jan. 9, 2024), the plaintiffs, a group of non-Amex cardholder credit and debit card users, filed a class action alleging that the defendant’s “non-discrimination provisions” (NDPs) restricted merchants who accept defendant’s cards from showing

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