Duane Morris Class Action Review - 2023 - Report - Page 42
CHAPTER 2
Antitrust Class Actions
I.
Executive Summary
Class action litigation involving antitrust claims experienced significant development in
2022 despite a relative paucity 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 a trial, and 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.
The most significant developments related to class action antitrust cases in 2022
involved allegations in labor markets. The focus of antitrust enforcement has
traditionally been on price-fixing and other anticompetitive conduct in sales markets.
Historically, labor markets have been more or less overlooked by antitrust enforcers and
the plaintiffs’ class action bar. Recently, however, growing recognition of the intersection
between antitrust violations and the labor markets has led antitrust authorities to
increase their scrutiny of labor markets and the plaintiffs’ bar to push the limits of class
actions to recover for employment-related anti-trust violations.
Following President Biden’s executive order in July 2022 declaring the policy of his
Administration to enforce the antitrust laws in labor markets, there was continued
antitrust focus on labor markets. For example, the U.S. Department of Justice (DOJ)
and the Federal Trade Commission (FTC) hosted a joint workshop on promoting
competition in labor markets. The DOJ asserted that principles for addressing and
preventing concentration in the horizontal merger guidelines apply just as much to labor
markets as in any other market, while the FTC Chair said her agency is committed to
investigating potentially unlawful transactions or anticompetitive conduct that harms
workers and further committed the FTC to consider competitive issues arising from noncompetition agreements through enforcement and rulemaking.
With respect to mergers, the main concern has been that mergers may lead to market
concentration, which in turn may result in so-called “monopsony” power over labor.
Whereas a monopoly involves a single seller of a product limiting the competition for
buyers, a monopsony is where a single or a few buyers limit the competition for sellers.
The result has been that antitrust authorities have increased investigations based on
anticompetitive labor market practices, and the plaintiffs’ class action bar has followed
by bringing lawsuits based on “no-poach” agreements where employers restrict their
solicitation or hiring practices in relation to one another’s employees.
41
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023