Duane Morris Class Action Review - 2023 - Report - Page 50
plaintiff’s efforts to satisfy Rule 23(b)(3) predominance was the lack of evidence to
justify factual assumptions underpinning the plaintiff’s expert’s demonstration of antitrust
harm. This demonstration assumed that if the defendant’s deals to settle patent
infringement lawsuits had instead gone to trial, that they would have lost and generic
manufacturers would have entered the markets sooner than the settlement terms
allowed. Id. at *16-22. However, in seeking certification for around 50 similar
purchasers, the plaintiffs failed to produce sufficient evidence to show that loss of the
patent lawsuits was a “plausible” outcome, instead relying on judicial opinions from
several cases for the proposition that some factual assumptions are permissible at the
class certification stage. Id. at *27. Unfortunately for the plaintiffs, the court held those
cases to be non-controlling. Instead, the court followed Third Circuit precedent from In
Re Lamictal Direct Purchaser Antitrust Litigation, 957 F.3d 184 (3d Cir. 2020), requiring
a rigorous analysis of expert evidence and allowing a merit analysis at the certification
stage. Id. at 28. Thus, while Rule 23 class certification is not a determination of the
merits of the underlying antitrust claims, certain jurisdictions faced with indeterminate
expert witness testimony will engage in merits analysis to test the sufficiency of
evidence purportedly showing predominance of class wide issues.
The denials of certification in Nypl and Value Drug illustrate that predominance is a
“totality of the circumstances” type of test that involves a fact-intensive inquiry into all of
the elements of an antitrust claim, and that litigants should closely scrutinize the
sufficiency of common evidence to prove every element of an antitrust cause of action,
including violation, injury and causation, and damages. This sufficiency may also be
impacted by specific jurisdictions that have differing approaches to how much weight to
give plausibility of the antitrust claims at the certification stage.
Perhaps the most notable class certification victory for the plaintiff’s bar, and certainly
the largest class certified in 2022, is In Re Google Play Store Antitrust Litigation, 2022
U.S. Dist. LEXIS 213670 (N.D. Cal. Nov. 28, 2022). Like in Olean and Burnett, the court
in Google Play was not convinced by an array of the defendant’s objections to expert
witness evidence and whether or not it was sufficient to satisfy Rule 23. Rejecting the
defendant’s predominance challenges, as well as objections to the plaintiff’s expert on
evidentiary grounds and other Rule 23 grounds such as adequacy of class counsel and
superiority of class adjudication, the court certified a class of over 21 million consumers.
The plaintiff purchasers of mobile applications sold through Google’s app store, and
purchasers of “in-app” digital content processed by Google billing alleged, among other
claims, that Google violated Section 2 of the Sherman Act by maintaining a monopoly
over the app distribution market on Android devices, and using their dominant position
to charge supracompetitive commission rates on developers who then “passed on”
those higher costs to consumers. Id. at *21-23. To determine whether or not class
certification requirements were satisfied, the court held an evidentiary proceeding in the
form of an economics debate between the opposing sides experts. Id. at *26. The
plaintiffs’ economics expert claimed it would be possible to calculate a singular
competitive commission rate charged to app developers and presented models showing
how a rate reduction would be passed on to consumers. Id. at *49-60. The defendant’s
expert witness challenged whether assuming a singular appropriate commission rate
was appropriate, and disputed the assumption that rate reductions would be passed on.
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Duane Morris Class Action Review – 2023