Antitrust Class Action Review – 2025

Following the trial, both parties sought judgment as a matter of law under Rule 50(a). The defendants argued that the testimony from plaintiffs’ key experts Dr. Rascher and Dr. Zona, should be excluded due to unreliable methodologies. Dr. Rascher’s testimony was based on a model that compared the NFL’s broadcasting of out-of- market games to college football’s system. Dr. Rascher hypothesized that without the alleged anticompetitive practices, NFL games would have been available for free on over-the-air and major cable channels, leading to zero costs for consumers. However, the court found that Dr. Rascher’s model was fundamentally flawed. His projections lacked a coherent economic basis and failed to address how such a distribution model would work in practice. The court excluded Dr. Rascher’s testimony due to its reliance on speculative assumptions rather than solid economic analysis. Dr. Zona’s models suggested that in a but-for world without exclusivity, the price of Sunday Ticket could have been higher through alternative distributors, including potential streaming services. However, the court determined that the models predicted irrational consumer behavior and failed to account for the feasibility of alternative distribution channels, such as streaming services, during the relevant period. The court found that Dr. Zona’s models lacked necessary assumptions and reliable data, and excluded the reports. Given the exclusion of these key expert testimonies, the court determined that the plaintiffs could not establish class-wide damages reliably. As a result, while the jury could reasonably find that an anticompetitive conspiracy existed, the court granted judgment as a matter of law in favor of the defendants due to the absence of reliable damages. On April 15, 2024, in Visa Inc., et al., v. National ATM Council, Inc., et al., No. 23-814 (U.S. Apr. 15, 2024), the U.S. Supreme Court declined a petition for review submitted by Visa and Mastercard urging the Supreme Court to resolve a circuit split over the correct standard of review courts should use when evaluating motions for class certification. Mastercard and Visa argued that the U.S. Court of Appeals for the D.C. Circuit erred by only requiring plaintiffs to show that questions common to the class predominate and allowing the fact finder to later address issues related to uninjured class members. The Supreme Court denied the petition for review. The plaintiffs are ATM operators. The defendants are global payment technology companies. The plaintiffs alleged that the defendants instituted ATM fee non-discrimination rules that violated federal antitrust laws by prohibited ATM operators from charging customers different access fees for transactions on different ATM networks. Specifically, the plaintiffs alleged that the rules allowed the defendants to charge supracompetitive transaction fees and foreclose competition from other networks. Specifically, the Supreme Court declined the defendants’ petition for review of the D.C. Circuit’s affirmation of the certification of three different classes. Two consumer classes were certified on grounds that they were forced to pay supracompetitive ATM surcharges and a class of ATM operators was certified on grounds that that they could not use competing ATM networks. According to the defendants, the D.C. Circuit used a lower standard for class certification similar to one utilized by the Eighth and Ninth Circuits, whereas the Second, Third, Fifth, and Eleventh Circuits employ a more rigorous “careful consideration” standard regarding a plaintiffs’ burden to establish predominance. By denying review, this issue remains unresolved in terms of Rule 23 class certification standards. On January 18, 2024, the court denied the defendants’ motion for summary judgment in a wage suppression antitrust class action and declined to exclude two of the plaintiffs’ key experts in Le, et al. v. Zuffa, LLC , Case No. 15-CV-1045 (D. Nev. Jan. 18, 2024). The court rejected defense arguments that summary judgment was appropriate on largely the same grounds that it certified the class on August 9, 2023, including arguments that the statistical model of the plaintiffs’ expert was flawed because it failed to include everyone in the sport and failed to consider the ways promoters help fighters develop into bigger stars. The defendant also argued that there was no dispute that there are more UFC fighters, more fights, and better compensation than at the start of the class period; however, the court found sufficient evidence that UFC may have used its market power to suppress wages. The plaintiffs are current or former UFC fighters. The defendant, Zuffa, LLC does business as UFC and is the preeminent MMA event promoter in the United States. The plaintiffs alleged that UFC used exclusive contracts, market power, and a series of acquisitions to suppress wages paid to UFC fighters during the class period by up to $1.6 billion. Plaintiffs filed suit in December 2014 and defeated UFC’s motions for partial summary judgment in 2017. In February 2018, plaintiffs moved to certify two classes. A class consisting of all persons who competed in one or more live professional UFC-promoted MMA bouts taking place in the United States from December 16, 2010 to June 30, 2017 was certified last August. In light of the class certification, the defendant renewed its motion for summary judgment and moved to exclude expert testimony. The court struck two of the defendant’s motions to exclude and denied summary judgment. The court rejected the defendant’s arguments for summary judgment on grounds that they were repetitive and unavailing. Specifically, Zuffa asserted that the total number of bouts, fighter compensation, and fighters all increased

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