The U.S. District Court for the Southern District of Florida recently dismissed an antitrust class action brought by yacht sellers against yacht brokers, brokerage trade associations, and multiple listing services for preowned yachts. In Ya Mon Expeditions LLC v. International Yacht Brokers Association Inc., 1:24-cv-20805, the yacht sellers alleged that yacht brokers conspired through trade associations to fix uniform brokerage commissions on preowned yacht sales and exclude from yacht listing services sellers who were not represented by licensed brokers.Continue Reading Court Takes Wind Out of the Sails of Yacht Sellers’ Antitrust Suit
New Jersey Court Dismisses Software Price-Fixing Claims Against Atlantic City Casinos
On September 30, a New Jersey federal court dismissed with prejudice an antitrust class action complaint alleging that several Atlantic City hotel operators engaged in a per se illegal “hub-and-spoke” price-fixing conspiracy through their use of software algorithms to set room rental rates. Cornish-Adebiyi v. Caesars Entertainment, No. 1:23-CV-02536 (D.N.J.).
According to the court, class plaintiffs’ allegations concerning Atlantic City hoteliers suffered from the “same factual deficiencies identified” by a Nevada federal court in Gibson v. Cendyn Group, No. 2:23-cv-00140 (D. Nev.), which rejected price-fixing allegations arising from Las Vegas hotels’ use of the same software. The court concluded that, in both cases, plaintiffs failed to plausibly allege the existence of unlawful agreements between the hotels at the “rim” of the alleged “hub-and-spoke” price-fixing conspiracy for several reasons.Continue Reading New Jersey Court Dismisses Software Price-Fixing Claims Against Atlantic City Casinos
Post-Class Period Statistics Alone Cannot Demonstrate Parallel Conduct in Antitrust Action, SDNY Holds
In Ohio Carpenters’ Pension Fund v. Deutsche Bank AG, no. 22-cv-10462-ER (S.D.N.Y. Aug. 26, 2024), the U.S. District Court for the Southern District of New York dismissed an antitrust class action alleging a conspiracy between Deutsche Bank and Rabobank to manipulate prices of European government bonds. Plaintiffs, certain U.S.-based pension funds, alleged that the defendants manipulated the prices they offered to investors to buy or sell EGBs in order to widen the resulting “bid-ask spread” between those prices and increase their profits. Continue Reading Post-Class Period Statistics Alone Cannot Demonstrate Parallel Conduct in Antitrust Action, SDNY Holds
Game Stopped: Eleventh Circuit Affirms Dismissal of Meme Stock Antitrust Lawsuit
In January 2021 Short Squeeze Trading Litigation (No. 22-11873), the Eleventh Circuit affirmed the dismissal of a case brought by retail investors alleging that Robinhood, a zero-fee stock brokerage platform, conspired with Citadel Securities, a high-frequency trading firm and short-seller, to block trading in “meme stocks” like GameStop, AMC Entertainment, and Bed Bath & Beyond. Although the investors alleged that prices fell in the meme stocks they owned, the court held that those losses were not “anticompetitive effects” arising in the relevant antitrust markets the investors pleaded in their complaint.Continue Reading Game Stopped: Eleventh Circuit Affirms Dismissal of Meme Stock Antitrust Lawsuit
No Dice: Nevada Court Dismisses with Prejudice Algorithmic Price Fixing Theories in Vegas Hotels Case
On May 8, a Nevada federal court dismissed with prejudice a class action complaint alleging that several Las Vegas hotel operators violated Section 1 of the Sherman Act by agreeing to set hotel room prices using pricing algorithms from the same vendor. The decision, Gibson v. Cendyn Group, No. 2:23-cv-00140 (D. Nev. 2024), follows the court’s October 24, 2023, dismissal of plaintiffs’ original complaint, which rejected plaintiffs’ allegations of a per se unlawful price-fixing conspiracy but granted leave to amend based on a Rule of Reason theory. Continue Reading No Dice: Nevada Court Dismisses with Prejudice Algorithmic Price Fixing Theories in Vegas Hotels Case
Court Denies Class Certification in Antitrust Case Based on Expert’s Reliance on Unsupported Assumptions in Damages Model
The Northern District of Illinois recently denied certification to several proposed classes of purchasers of a seizure drug called Acthar in City of Rockford v. Mallinckrodt ARD, Inc., No. 3:17-cv-50107, 2024 WL 1363544 (Mar. 29, 2024). Class plaintiffs had alleged that defendant Express Scripts, a drug distributor, conspired with Mallinckrodt, a drug manufacturer, to raise the price of Acthar through an exclusive distribution arrangement. In denying certification to the damages classes, the court determined that plaintiffs had not met Rule 23(b)(3)’s predominance standard because they lacked a reliable economic model showing that damages were “capable of measurement on a classwide basis,” as required by Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013).Continue Reading Court Denies Class Certification in Antitrust Case Based on Expert’s Reliance on Unsupported Assumptions in Damages Model
Rigorous Scrutiny of Expert Evidence Results in Denial of Caustic Soda Class Certification
On December 28, the Western District of New York denied class certification in Miami Products & Chemical Co. v. Olin Corp, 1:19-cv-00385, an antitrust lawsuit alleging collusion over the price for caustic soda—a chemical used in various industries from pharmaceuticals to detergents. The proposed class of caustic soda purchasers alleged that defendants, the largest soda manufacturers, colluded to increase prices through parallel public price announcements. After closely scrutinizing the parties’ dueling economic expert reports, the court determined that plaintiffs had not satisfied the predominance standard of Rule 23(b)(3) as to questions of antitrust injury for two principal reasons.Continue Reading Rigorous Scrutiny of Expert Evidence Results in Denial of Caustic Soda Class Certification
Brief Stay: Vegas Hotel Case Dismissed
On October 24, a Nevada federal court dismissed a class action complaint against operators of hotels on the Las Vegas Strip alleging that defendants’ use of similar room-pricing algorithms constituted a per se illegal price-fixing agreement under Section 1 of the Sherman Act. The decision, Gibson v. MGM Resorts International, No. 2:23-cv-00140 (D. Nev. 2023), rejected plaintiffs’ allegations of a per se illegal agreement among competitors or a hub and spoke conspiracy but granted leave to amend to plead a Rule of Reason theory.
Algorithmic pricing refers to the use of software tools, typically offered by vendors, that include historical and/or contemporaneous data to dynamically propose prices to businesses. In Gibson, plaintiffs alleged that Las Vegas hotel operators Caesars, Treasure Island, Wynn, and MGM violated Section 1 by “agreeing to all use pricing software marketed by the same company” resulting in “higher prices for hotel rooms than the market could otherwise support.” Continue Reading Brief Stay: Vegas Hotel Case Dismissed
Eleventh Circuit Upholds Blue Cross Blue Shield Subscriber Settlement Over Antitrust and Public Policy Objections
On October 25, 2023, the Eleventh Circuit overruled several objections to a $2.67 billion antitrust class action settlement agreement that was the product of years of negotiations between Blue Cross and classes of its past and present health plan subscribers. Two objections, raised by Home Depot, focused on (i) the settlement’s release of antitrust claims arising from Blue Cross’s conduct, and, relatedly, (ii) the adequacy of representation for an injunctive class of plaintiffs who might have future claims based on that conduct.Continue Reading Eleventh Circuit Upholds Blue Cross Blue Shield Subscriber Settlement Over Antitrust and Public Policy Objections
Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification
The Third Circuit recently affirmed the denial of class certification to end-payor health plans that alleged that the defendant’s “pay-for-delay” settlement of patent infringement litigation inflated prices on a prescription drug. In doing so, the court reaffirmed that named plaintiffs must present an administratively feasible mechanism to ascertain whether putative class members fall within the proposed class definition and thus took sides in a growing circuit split on that issue. See In re Niaspan Antitrust Litig., — F.4th –, 2023 WL 3243532 (3d Cir. 2023).Continue Reading Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification