Antitrust Class Action Review – 2025

preferences for other payment networks or charging fees in violation of state and federal antitrust laws. Id. at *4. The plaintiffs filed a motion for class certification of two classes (one of credit card users and one of debit card users) in 11 states, alleging that these NDPs result in higher costs for non-Amex cardholders due to inflated merchant fees. The court granted the plaintiffs’ motion to certify the class for debit card users, but denied it for credit card users. The court found that the plaintiffs’ class definitions, which were based on billing addresses, card usage, and transactions with qualifying merchants within the same state, were readily ascertainable. The classes consisted of thousands or millions of potential members, and clearly met the numerosity requirement. As to the commonality and typicality requirements, the court determined that the classes both met these requirements as the class members were all subject to the alleged higher fees from using non-Amex cards. As to the predominance requirement, the court concluded that common evidence supported the argument that Amex’s practices led to higher merchant discount rates and thus higher prices for consumers. However, the court opined that individual issues overwhelmed the common proof for credit card classes regarding the impact on non-Amex card-issuing banks. Therefore, the court found that the statewide debit card classes met the predominance requirement, but the credit card classes failed to establish predominance. The court thereby granted in part and denied in part the plaintiffs’ motion for class certification. 3. Other Important Antitrust Rulings In a case relating to the same NAR cooperative compensation rule discussed in Burnett , on February 20, 2024, the court granted the defendants’ motion to dismiss with respect to a federal antitrust claim seeking injunctive relief for violations of § 1 of the Sherman Act, among other claims, in Batton, et al. v. The National Association of Realtors , Case No. 21-CV-430 (N.D. Ill. Feb. 20, 2024). The court accepted defense arguments that the members of the putative class were only indirect purchasers of buyer-broker services; therefore the court opined that they were barred from seeking damages under federal antitrust law by Illinois Brick Co., et al. v. Illinois , 431 U.S. 720, 729 (1977), and dismissed the claim for injunctive relief under Section 1 because the more directly injured home sellers are challenging the same rules and seeking the same injunction in separate, related cases. The plaintiffs are homebuyers. The defendants, National Association of Realtors (NAR), Realogy Holdings Corp., HomeServices of America, Inc., HSF Affiliates, LLC, Long & Foster Companies, Inc., BHH Affiliates, LLC, RE/MAX LLC, and Keller Williams Realty, Inc. utilized a Multiple Listing Service (MLS) in the sale of homes. The plaintiffs alleged that MLS access was restricted only to home sellers who make a set commission offer to the successful buyer-broker, resulting in supracompetitive commission rates that get baked into the purchase price for homes. The plaintiffs brought a claim for injunctive relief under § 1 of the Sherman Act as well as various state antitrust and consumer protection claims. Although Illinois Brick does not preclude indirect purchasers like the putative class of homebuyers from pursing claims for injunctive relief under the Sherman Act, the court dismissed the claim. It reasoned that because the more directly injured home sellers were challenging the same rules and seeking the same injunction in separate litigation before the same court, the claim could not stand. Batton could be an important test of indirect purchasers’ ability to use antitrust law when there are other purchasers better suited to bring federal antitrust claims. Hence, it is a significant decision in this space. In Alvarado, et al. v. Western Range Association, 2024 U.S. Dist. LEXIS 36803 (D. Nev. Mar. 4, 2024), the plaintiff filed a class action against an association of sheep ranges, the Western Range Association (WRA) and eight individual member ranches, under § 1 of the Sherman Act. The plaintiff alleged that WRA and its member ranches fixed wages and allocated the market for sheepherders. Initially suing only WRA, the plaintiff later amended the complaint to include the member ranches, and alleged that WRA, an association of sheep ranches, coordinated the hiring of foreign sheepherders through the H-2A visa program and mandated minimum wage compliance among its members. The defendants moved to dismiss the amended complaint, arguing that the plaintiff failed to sufficiently allege each defendant’s participation in the alleged anticompetitive agreements, beyond alleging membership in the Association. The court agreed, finding that the complaint did not sufficiently allege each defendant’s participation in the anticompetitive agreements with WRA. Though antitrust jury trials are rare, they do happen as discussed above in Burnett – and that was true again in In Re NFL Sunday Ticket Antitrust Litigation, 2024 U.S. Dist. LEXIS 140596 (C.D Cal. Aug. 1, 2024). There, the plaintiffs filed an antitrust class action alleging that the defendants entered into agreements that limited the number of telecasts of out-of-market NFL games, leading to inflated prices for the Sunday Ticket option. During trial, the jury determined that the defendants’ actions violated §§ 1 and 2 of the Sherman Act. The jury awarded damages of approximately $96.9 million to the commercial class and $4.6 billion to the residential class.

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