Antitrust Class Action Review – 2025

Antitrust Class Actions I. Executive Summary

Class action litigation involving antitrust claims had several key developments in 2024, despite a relative lack of actual verdicts. Because antitrust remedies often allow recovery of treble damages, the incentive to settle these cases is often paramount. Additionally, plaintiffs are entitled to reasonable attorneys ’ fees that may be substantial because of the complexity of this kind of litigation. As a result, most antitrust class actions are settled before trial, and one of the most crucial phase in these cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical. Even in cases taken to jury verdict, there are frequently post-trial motions regarding decertification of the class. This played out in two cases this year in Burnett, et al. v. The National Association Of Realtors, Case No. 19-CV-332 (W.D. Mo. Mar. 26, 2024), and In Re NFL Sunday Ticket Antitrust Litigation, 2024 U.S. Dist. LEXIS 140596 (C.D. Cal. Aug. 1, 2024). In 2024, cases based on uses of pricing algorithms, information sharing, and data management increased in popularity. This reflects the changes in technology used by organizations, and as a result, changes in the types of allegations made by the plaintiffs’ bar and mechanisms for challenging alleged anticompetitive behavior. In the fall of 2024, the U.S. Department of Justice (DOJ) weighed in on information sharing in a pricing algorithm case – in a Gibson, et al. v. Cendyn Group, LLC, No. 24-3576 (9th Cir. Oct. 24, 2024) - and argued that some types of information sharing are illegal even without further evidence of an agreement regarding prices. Whether or not that will be accepted by courts remains to be seen, but that perspective is likely to permeate through to the private plaintiffs’ class action bar. Unlike in prior years, there were relatively fewer challenges to alleged restraints in labor markets in 2024. This could reflect a reluctance to pursue these types of claims given the relative lack of success that the DOJ has had in pursuing labor market cases. Many of the class certification decisions issued in 2024 were in the pharmaceutical industry – a traditional sector of focus of the antitrust plaintiffs’ bar. The competitive structure and dynamics of this industry play a large role in whether courts grant class certification. That is, the simpler the supply chain and mechanism for harm, the more likely a class was to be certified and vice versa. This played out In Re Lipitor Antitrust Litigation, 2024 U.S. Dist. LEXIS 101271 (D.N.J. June 6, 2024), and with In Re Actos Antitrust Litigation, 2024 U.S. Dist. LEXIS 142236 (S.D.N.Y. Aug. 9, 2024). Plaintiffs in antirust actions often seek class certification under Rule 23(b)(3), which, after all of the requirements of Rule 23(a) have been met, allows for class certification where common questions of law or fact predominate and a class action is a superior method of adjudication. The predominance requirements involve a fact-intensive inquiry into the availability and adequacy of “class-wide evidence” and continued to be a battleground for antitrust litigants in 2024. While class certification in antitrust lawsuits is determined by the criteria of Rule 23, like all other class actions, courts may take specialized approaches to the Rule 23 requirements when dealing with antitrust cases. For example, Rule 23(a)(1) requires the plaintiffs to show that their proposed class is so numerous that joinder of the members would be impracticable. This element of class certification is often referred to as the “numerosity” requirement. Essentially the courts weigh the advantages and efficiencies of class actions against the practicality of simply joining parties to the litigation. In the antitrust context, courts have found that fewer than 20 members is likely insufficient while more than 40 members is likely sufficient, and between 20 to 40 members requires an analysis of other circumstances in the case that affect impracticability of joinder. This analysis played out over the past year in In Re EpiPen Direct Purchaser Litigation, 2024 U.S. Dist. LEXIS 115224 (D. Minn. July 1, 2024), where a proposed class of over 40 members, and all relatively large claims, was deemed not impracticable of joinder and class certification was denied. In 2024, courts granted class certification in 68% of antitrust class actions, or in 15 of 22 motions.

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