Duane Morris Class Action Review - 2023 - Report - Page 44
extent a proposed class experiences distinct or common antitrust harms. This played
out in 2022 to a significant extent in In Re Google Play Store Antitrust Litigation, 2022
U.S. Dist. LEXIS 213670 (N.D. Cal. Nov. 28, 2022).
Predominance was not the only class certification battleground in 2022. While class
certification in antitrust actions are 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 alleged 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,
more than 40 members is likely sufficient, and between 20 to 40 members requires an
analysis of the other circumstances in the case that affect impracticability of joinder.
See, e.g., In Re Modafinil Antitrust Litigation, 837 F.3d 238 (3d Cir. 2016). As a result,
litigants in 2022 continued to contest numerosity and the impracticability of joinder
issues. See, e.g. In Re Zetia Ezetimibe Antitrust Litigation, 342 F.R.D. 95 (E.D. Va.
2022). Other Rule 23 requirements, such as commonality or typicality of claims, often
pose less of a problem for antitrust plaintiffs compared to other proposed classes
because the nature of antitrust violations, such as price-fixing conspiracies, involve
common questions of conspiracy and demonstration of injury and damages that are
typical.
II.
Significant Rulings In Antitrust Class Actions In 2022
A.
The McDonald’s No Poach Agreement Litigation
Prior to the Biden Administration, the U.S. Department of Justice’s approach to nopoach provisions in the context of franchise agreements was that these provisions were
typically ancillary to legitimate business interests in structuring the vertical relationship
between franchisors and franchisees and should thus be analyzed under a rule of
reason analysis. However, in 2022, the DOJ sought to file a statement of interest in a
no-poach case filed by former McDonald’s franchise managers after defendants cited
the DOJ position in a motion for summary judgment in Deslandes, et al. v. McDonald's
USA, LLC, 2021 U.S. Dist. LEXIS 140735 (N.D. Ill. July 28, 2021). The DOJ’s statement
disclaimed that the cited position no longer fully and accurately reflects the United
States’ current views.
Plaintiffs in Deslandes challenged no-poach provisions in McDonald’s franchise
agreements as violations of Section 1 of the Sherman Act. The provisions in question
barred McDonald’s franchisees from employing or soliciting each other’s workers for up
to six months after the worker left another franchise, which plaintiffs said prevented
them from taking higher-paying jobs at other McDonald’s restaurants.
In 2021, the court denied certification of a proposed nationwide class of fast-food
workers based on a finding that the plaintiff failed to satisfy the predominance
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Duane Morris Class Action Review – 2023