Duane Morris Class Action Review - 2023 - Report - Page 51
Id. Like in Burnett, the defense expert suggested that Googles relationship with app
developers were not uniform and would involve differences in deals, of which
commission rates are but one part. Id. at *54-58. The expert also disputed whether any
rate reduction would necessarily be passed on to consumers. Id. Ultimately, the court
found that the plaintiff’s expert witness testimony and models, while not dispositive,
were sufficient at the class certification stage to have its probative value determined
later by the fact-finder. Id. at *57-60. In particular, the court credited the observation that
30% was the predominant “take rate” that justified the plaintiff’s assumed singular
competitive rate underlying all negotiations, and that competition among apps within the
same app category were a plausible economic mechanism through which lower take
rates would be passed on to consumers. Id.
D.
Rule 23’s Numerosity Requirement And The Impracticability Of Joinder
Predominance under Rule 23(b)(3) is not the only avenue of attack for defendants
seeking to oppose class certification in the antitrust realm. Proposed classes must meet
all four requirements of Rule 23(a), including the requirement that the class be so
numerous that joinder of all members is impracticable.
In In Re Zetia Ezetimibe Antitrust Litigation, 342 F.R.D. 95 (E.D. Va. 2022), the court
denied class certification after the Fourth Circuit remanded an initial certification order.
Zetia involved a group of wholesaler plaintiffs that alleged the defendant pharmaceutical
companies conspired to delay generic versions of a cholesterol medication, causing the
plaintiffs to pay inflated prices. Id. at 98-99. The plaintiffs moved for class certification,
which the court granted. On appeal, the Fourth Circuit held that it was error to analyze
the impractability of individual suits instead of the impractability of joinder, and
remanded for a more fulsome analysis of impractability under Rule 23(a)(1). Id. at *99. It
also instructed that, when a proposed class is between twenty and forty members "'all
the circumstances of the case should be taken into consideration' in evaluating the
impracticability of joinder." Id. at *100. These circumstances include "judicial economy,
the claimants' ability and motivation to litigate as joined plaintiffs, the financial resources
of class members, [and] the geographic dispersion of class members." Id.
On remand, the court rejected all of the numerous objections raised by plaintiffs. Id. at
*101-09. The court found several factors to be particularly persuasive. Even though the
plaintiffs argued that potential smaller claimants would find joinder to be uneconomical,
the executives of potential class members who testified to this effect undertook no
analysis of the potential financial benefits of joining the litigation, causing the court to
seriously discount the claimed economic disadvantages of joinder. Id. at *103. The court
also rejected the plaintiff’s suggestion that the actual class size was technically 45 and
not the 35 analyzed by the Magistrate Judge. Id. at *101-02. Seven of those putative
class members were previously determined to be likely to opt-out, and the court
declined the late addition of the other three, holding that the plaintiffs offered “no
meaningful justification for their untimely discovery.” Id. at *102. The court also found
that the named plaintiffs represented a significant majority of potential claims, that the
plaintiff businesses were sufficiently well-resourced and unlikely to be overly burdened
by technological issues if joined, that the defendants’ assertions that they do not
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Duane Morris Class Action Review – 2023