Duane Morris Takeaway:This week's episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Sean McConnell and senior associate Daniel Selznick with their discussion of the key trends analyzed in the 2025 edition of the Antitrust Class Action Review, including the rise of pricing algorithm claims and notable class certification rulings.
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Episode Transcript
Jerry Maatman: Welcome to our listeners. Thank you for being here today for our weekly podcast series, the Class Action Weekly Wire. I'm Jerry Maatman of Duane Morris, and joining me today are Sean McConnell, the chair of the Duane Morris Antitrust and Competition Group, and senior associate Daniel Selznick, who are both from our Philadelphia office. Gentlemen, thank you for being on the podcast today.
Sean McConnell: Thank you, Jerry, happy to be part of the podcast.
Daniel Selznick: Yeah, thanks, Jerry. Glad to be here.
Jerry: Today on the podcast we're discussing the recent publication of this year's edition of the Duane Morris Antitrust Class Action Review. Listeners can find this e-book publication on our blog, the Duane Morris Class Action Defense Blog. Sean, can you tell our listeners a little bit about this desk reference publication?
Sean: Absolutely, Jerry. In 2024, class action litigation involving antitrust claims had several key developments. Most antitrust class actions are settled before trial, and one of the most crucial phases in the cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical. To assist with understanding what this means for employers facing antitrust claims, Duane Morris has released the Antitrust Class Action Review for 2025, which analyzes the key rulings and litigation developments from 2024, and the significant trends that are apt to impact these types of actions in 2025. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.
Jerry: I've always thought and viewed class certification decisions as the Holy Grail in these sorts of cases. Daniel, what in your mind are the takeaways from the publication with regard to litigation in this space over the past year?
Daniel: Sure. So, one of the most notable shifts we've seen is the rise in cases involving pricing algorithms, information sharing, and data management. This trend really mirrors the technological evolution within organizations. So as businesses rely more heavily on automated pricing and complex data systems, plaintiffs' lawyers are adapting their strategies to challenge those tools under antitrust laws.
Jerry: Sean, in your experience, how are these new strategies playing out in the courts? How did the plaintiffs do this past year?
Sean: Great question, Jerry. We saw a major development in the Gibson v. Cendyn Group case in the Ninth Circuit, where the Department of Justice actually stepped in. They argued that certain types of information sharing can be illegal even if there's no explicit agreement on prices. That's a pretty aggressive position. And while it's yet to be clear if courts will accept it, I'd expect that stance to influence the plaintiffs' bar going forward. And despite the change in administration, we've seen consistent positions from both DOJ and FTC with respect to information sharing going forward in 2025.
Jerry: Very interesting in terms of how that theory evolved. Daniel, what about labor market cases that in the year before had been very, very hot – how did those turn out over the last 12 months?
Daniel: So, in contrast to recent years, 2024 actually saw fewer challenges related to labor market restraints. And one possible reason is the DOJ's limited success in prosecuting those cases which might be giving plaintiffs pause before jumping into that area.
Jerry: Let's pivot to the issue of class certification, that Holy Grail of the plaintiffs' bar. Sean, I understand there was quite a bit of activity this year in the pharmaceutical space.
Sean: Yes, absolutely, Jerry. Once again, Big Pharma and life sciences remained a core focus for antitrust class actions. A big factor is the structure of the pharmaceutical industry – when the supply chain and harm mechanism are relatively straightforward, courts are more likely to certify a class. For example, In Re Lipitor and In Re Actos, both cases from mid-to-late 2024, we saw the courts granting class certification based on those clearer market structures.
Jerry: Daniel, one of the things we've seen in other spaces is a huge battle over predominance, and how defendants latch onto that particular defense to sometimes prevent class certification. How did that play out in this space over the past 12 months?
Daniel: Yeah. So, Jerry, that's still a major battleground courts are doing deep dives into whether plaintiffs can provide class wide evidence that shows that common issues predominate. So it's not just a box-checking exercises – judges are really scrutinizing the proposed evidence, and that was a recurring theme in 2024.
Jerry: How about on the issue of numerosity under Rule 23(a)(1) in terms of how that's played out in the antitrust sector?
Daniel: Sure. So you know, the numerosity requirement provides that plaintiffs must show that it's impractical to join all members individually. And in antitrust cases, courts tend to say that fewer than 20 members likely won't cut it, but over 40 usually will. So, for classes in that 20-to-40 range, courts look at other factors. A great example from this past year is the In Re EpiPen Direct Purchaser Litigation. And in that case, even where there was a proposed class of over 40 members, all of which, whom you know, had pretty large claims, the court said that joinder was not impractical, and therefore denied certification, so it shows how fact-specific the analysis can be.
Jerry: We, of course, studied class certification rates across the board in all spaces of litigation, and the plaintiffs' bar did pretty well, and certified cases at a range of about 65 to 66% across the board. How did things go for the plaintiffs' bar in the antitrust sector?
Sean: In 2024, Jerry, it was pretty consistent with respect to antitrust cases where class certification was granted in 68% of those actions, a total of 15 out of 22 motions from the past year. So, while a majority of plaintiffs were successful, there's still a significant portion facing uphill battles, especially where the evidence class structure and damages and market dynamics are quite complex.
Jerry: That's an interesting look at inside baseball statistics. I've always thought that the business model of the plaintiffs' bar in this area is identify and file the case, certify the case, and then monetize the case. In terms of the study of class action settlements in the antitrust area, how did the plaintiffs' bar do in 2024?
Sean: Plaintiffs were hugely successful in 2024, although not quite as successful as 2023. The top 10 antitrust class action settlements totaled just over $8.42 billion in 2024, compared to $11.74 billion in 2023, which had been a nearly threefold increase over the 2022 amount.
Jerry: Those are certainly eye-popping numbers in terms of settlements. My sense is 2025 is apt to see even bigger, if not consistent numbers, in terms of those top 10 antitrust settlements. Well, thank you, Sean and Daniel, for being here today, and thank you listeners for tuning into this week's Class Action Weekly Wire.
Daniel: Thanks, Jerry. Glad to be on. And thank you, listeners.
Sean: Thanks so much, everyone.
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