CLASS CERTIFICATION IN ANTITRUST LITIGATION
CD: How would you describe antitrust litigation activity over the last 12 months or so? To what extent have you seen a rise in class action cases in particular?
Boedeker: Tech cases have been at the forefront of the news for a while now – headlined by the Federal Trade Commission (FTC) and state attorneys’ actions against Facebook. There were also high-profile private antitrust actions like Epic Games v Apple. In these tech cases, the predominant questions circled around the definition of relevant markets and market power. Besides the tech cases, sports-related cases like NVAA v Alston, Fusion Elite All Stars v. Varsity Brands and City of Oakland v Oakland Raiders have received a lot of attention. In these sports-related cases, the predominant questions circled around violations of Section 1 of the Sherman Act. A final large group of cases worth mentioning is pharmaceutical patent settlement cases. In these kind of cases, reverse payments that may appear to be a quid pro quo for delaying entry or reducing output are often the controversial issue.
CD: Have any recent antitrust cases caught your eye? Which ones would you highlight in particular?
Boedeker: The FTC and state attorneys’ cases against Facebook alleging that the WhatsApp and Instagram acquisitions were moves to maintain monopoly power in the personal social network market were the most eye-catching cases. For one, there were dramatic turns as the case evolved from dismissing the FTC’s and the state’s cases initially, due to lack of rigorous analysis of markets and powers in those markets, to denying Facebook’s motion to dismiss after the FTC had filed an amended complaint.
Apr-Jun 2022 issue
BRG