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The FTC After Trump v. Slaughter Conference: Rapporteur’s Report

On August 3, 2026, the American Antitrust Institute (AAI) and the Competition Law Center at the George Washington University Law School hosted The FTC After Trump v. Slaughter. This conference brought together former Commissioners, academics, former agency officials, and practitioners to evaluate how Congress, the Commission, and the courts can preserve transparency, accountability, institutional integrity, and effective competition enforcement while respecting the Supreme Court’s decision. Drawing on recent scholarship and reform proposals, the program explored both administrative reforms that could be implemented immediately and legislative reforms that may be necessary to ensure the FTC remains an expert, trusted, and effective competition agency.

Read the full report: The FTC After Trump v. Slaughter: Rapporteur’s Report

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AAI Urges Fourth Circuit to Reject Heightened Pleading Requirements and Expansion of Noerr Immunity in Pharmaceutical Monopolization Case (CareFirst v. Amgen)

The American Antitrust Institute (AAI) filed an amicus brief before the U.S. Court of Appeals for the Fourth Circuit in CareFirst of Maryland, Inc. v. Amgen Inc. (No. 26-10394), urging affirmance of the district court’s denial of Amgen’s motion to dismiss plaintiff purchasers’ Section 2 monopolization case involving the blockbuster drug Enbrel.

According to CareFirst’s complaint, Amgen—which held a patent over Enbrel that was set to expire in 2012—entered into an agreement with Roche under which it acquired an exclusive license to Roche’s then-pending patent application for etanercept, the active ingredient in Enbrel. CareFirst alleged that the agreement prevented Roche and other potential competitors from entering the market for etanercept, extending Amgen’s monopoly over the drug beyond the terms of its lawful patent and causing CareFirst and other purchasers to pay higher prices for the drug.

The district court denied Amgen’s motion to dismiss after finding that CareFirst had suffered an antitrust injury and that Amgen was not immunized under the Noerr-Pennington doctrine. On appeal, Amgen argues that the alleged overcharges were not caused by the licensing agreement, but by subsequent court orders enforcing its patent rights, and that its agreement with Roche cannot give rise to antitrust liability because it is protected under Noerr-Pennington or otherwise immune from antitrust scrutiny.

In its brief, AAI argues that Amgen’s causation arguments would improperly impose a heightened pleading requirement on antitrust plaintiffs. Like other civil plaintiffs, antitrust plaintiffs need only plausibly allege causation at the motion-to-dismiss stage. CareFirst therefore need not disprove Amgen’s competing theory that subsequent patent-enforcement litigation, rather than the challenged licensing agreement, caused its injuries. It only need plausibly allege that the licensing agreement was a material cause of its overpayments. AAI also argues that Amgen incorrectly conflates causation on the merits with the antitrust-injury element of antitrust standing. CareFirst alleges that Amgen’s exclusive agreement excluded potential competitors, reduced competition, and contributed to higher prices. Those allegations plausibly describe an injury stemming from the competition-reducing effect of the challenged conduct and therefore satisfy the antitrust-injury requirement.

AAI also urges the Fourth Circuit to reject Amgen’s proposed expansion of Noerr-Pennington immunity and its argument that the acquisition of a pending patent application cannot give rise to antitrust liability. Although Noerr protects efforts to petition the government, AAI argues that Amgen’s acquisition of exclusive rights to Roche’s pending patent application was a commercial transaction, not petitioning activity. The fact that Amgen later sought and enforced patent rights does not immunize the antecedent commercial agreement from antitrust scrutiny. Extending Noerr in that fashion would substantially expand an implied antitrust immunity that the Supreme Court has repeatedly instructed courts to construe narrowly.

AAI also addresses Amgen’s argument that exempting the acquisition of pending patent applications from antitrust liability is necessary to protect innovation, explaining that antitrust law and patent law both serve to promote innovation and that exempting such acquisitions from antitrust scrutiny could serve to thwart innovation by incentivizing drugmakers to invest in exclusive licenses rather than in research and development of new drugs.

The brief was written by AAI Senior Counsel David O. Fisher with assistance from AAI President Randy Stutz, AAI Senior Counsel Mark S. Hegedus, and former AAI intern Addison Wagner.

Read the brief: CareFirst v. Amgen

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AAI Urges Fifth Circuit to Clarify Antitrust Injury Doctrine in X Advertiser Boycott Case (X v. World Federation of Advertisers)

The American Antitrust Institute (AAI) filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit in X v. World Federation of Advertisers, No. 26-10394, urging the court to clarify the distinction between the antitrust injury requirement and the substantive elements of an antitrust violation. AAI filed in support of neither party.

The case arises from allegations by Elon Musk’s X (formerly Twitter) that major national advertisers, acting through the World Federation of Advertisers’ Global Alliance for Responsible Media (GARM), violated Section 1 of the Sherman Act by collectively withholding advertising from X. The district court dismissed X’s claims, finding both that X failed to allege harm to competition and that it failed to allege antitrust injury.

AAI’s brief takes no position on whether X’s complaint should ultimately be dismissed. It argues that the district court conflated two distinct inquiries. Antitrust injury asks whether a private plaintiff’s claimed injury stems from a competition-reducing aspect of the alleged violation and is therefore the type of injury Congress authorized plaintiffs to redress. Whether the challenged conduct actually harms competition, by contrast, goes to the merits of the alleged antitrust violation.

AAI explains that courts applying the antitrust injury doctrine should assume the existence of an antitrust violation and ask whether the plaintiff’s alleged injury flows from the competition-reducing aspect of that violation. Fifth Circuit and Supreme Court precedent follow that approach. If a court instead determines that the complaint does not plausibly allege harm to competition, AAI argues, it should resolve that issue on the merits under the pleading standard established in Bell Atlantic Corp. v. Twombly, rather than recast the deficiency as a lack of antitrust injury, which is an element of antitrust standing.

Applying that distinction, AAI argues that X has adequately alleged antitrust injury. X alleges that a group of buyers with collective monopsony power boycotted X as a seller of digital advertising space, preventing X from competing for advertising sales and depriving it of resulting revenue. Assuming the alleged boycott unlawfully reduced competition, those losses flow from the competition-reducing aspect of the alleged conduct. Whether X has plausibly alleged that the boycott actually harmed competition is a separate question on which AAI takes no position.

AAI urges the Fifth Circuit to clarify that when a court concludes that a plaintiff has failed to plausibly allege harm to competition, it has no occasion to consider antitrust injury. The proper inquiry is instead whether the complaint states a substantive antitrust claim under Twombly.

The brief was written by AAI President Randy Stutz with assistance from AAI Senior Counsel David O. Fisher.

Read the full brief: AAI Amicus Brief in X v. World Federation of Advertisers

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AAI Urges D.C. Circuit to Affirm Google’s Liability But Strengthen the Remedy in Landmark Search Monopoly Case (United States v. Google)

On August 4, 2026, the American Antitrust Institute (AAI) filed an amicus brief in United States v. Google LLC, No. 26-5023, asking the D.C. Circuit to affirm the district court’s finding that Google unlawfully maintained its search monopoly but remand the remedial order with instructions to prohibit Google’s payment-for-default mechanism, which the district court’s liability opinion condemned but its remedy opinion left in place.

After a nine-week bench trial, the district court found that Google entered revenue-sharing arrangements with browser makers, device manufacturers, and other search access points, conditioning those payments on Google’s status as the distributor’s exclusive default search engine. The court found that these arrangements foreclosed a substantial share of the market, prevented rivals from gaining scale, and diminished rivals’ incentives to invest and innovate. It entered equitable relief that, among other things, imposed data and syndication remedies but permitted Google to continue paying for default placement. On appeal, Google argues, among other things, that its conduct was not exclusionary but rather competition on the merits, contending that plaintiffs must show that a rival would have won default placement in a counterfactual world without Google’s payments.

AAI’s brief argues that the district court committed no error in finding liability but erred in fashioning the remedy. On liability, AAI explains that Google’s proposed “but-for world” exclusionary-conduct standard—which would require plaintiffs to prove that a rival would have obtained default status absent Google’s payments—has no basis in Supreme Court or D.C. Circuit precedent and would defeat the consumer-welfare purpose of Section 2. The standard contravenes Microsoft, which declined to condition a finding of exclusionary conduct on proof that rivals would have prevailed in a counterfactual market, and it systematically warps the balance of error costs by effectively immunizing the most entrenched monopolists, whose conduct makes counterfactual reconstruction impossible. A monopolist that pays distributors out of its monopoly profits to foreclose rivals—rather than competing on the merits of its product—is engaged in precisely the conduct antitrust law is designed to prevent.

On the remedy, AAI argues that while the district court’s data and syndication remedies should be affirmed, the court erred by permitting Google to continue paying for default placement, the very bargain its liability opinion condemned. Antitrust remedial discretion, although broad, is bounded by a non-negotiable effectiveness requirement: relief must reach the whole of the violation. By preserving the payment-for-default mechanism while acknowledging that doing so “could blunt the effectiveness of the remedies imposed,” the district court allowed a consideration governing the choice among effective remedies to excuse its failure to impose one.

The brief was written by AAI Vice President Kathleen Bradish and AAI President Randy Stutz, with assistance from AAI General Counsel Mark Hegedus and AAI Senior Counsel David O. Fisher.

Read the full brief: AAI Amicus Brief in United States v. Google LLC

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Does Common Leadership Facilitate Collusion? A Conversation with Ellie Prager

In this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher sits down with economist Ellie Prager to discuss her paper, Collusion Through Common Leadership, co-authored with Alejandro Herrera-Caicedo and Jessica Jeffers and accepted for publication in the Journal of Political Economy.

The episode continues a discussion begun in the previous episode of Ruled by Reason about interlocking directorates, or what Professor Prager and her co-authors call “common leadership.” Whereas the term “interlocking directorates” traditionally refers to one person sitting on the boards of two companies, common leadership also encompasses arrangements in which an executive of one company simultaneously serves on the board of another.

Professor Prager and her co-authors examine whether common leadership is associated with a greater likelihood of collusion. Using evidence from litigation involving no-poach agreements among Silicon Valley companies, they find that the arrival of a common leader increases the probability that two companies will enter into a collusive agreement by 11 percentage points—a ninefold increase over the rate among company pairs without common leaders.

Fisher and Prager discuss the distinction between interlocking directorates and common leadership (3:34); the paper’s central finding connecting common leadership to collusion (5:03); how evidence from the Silicon Valley no-poach litigation made it possible to study that connection empirically (11:07); why some of the common-leadership arrangements studied were outside the current scope of Section 8 of the Clayton Act (14:22); and how the authors used company-leadership data and econometric methods to distinguish causation from correlation (16:22).

They also explore whether product-market overlap, labor-market overlap, or common ownership could explain the results (21:21); the relationship between common leadership and the broader common-ownership literature (26:15); possible efficiencies arising from information sharing and improved corporate governance (31:37); whether common leadership may be part of a preexisting plan to collude (33:42); and the limits of extrapolating from the particular companies and labor markets examined in the study (39:14).

Finally, Fisher and Prager consider the implications for antitrust policy and enforcement, including whether the findings support increased enforcement of Section 8, the use of common leadership as an investigative signal of possible collusion, and expanding Section 8 to cover competition in labor and other input markets (41:56).

GUEST:

Ellie Prager, Assistant Professor, Simon Business School, University of Rochester, and Faculty Research Fellow, National Bureau of Economic Research

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Interlocking Directorates and the Antitrust Laws: A Conversation Between Roger Noll and Mark Lemley, Jerry S. Cohen Award Winner for Antitrust Scholarship

In this episode of Ruled by Reason, guest host Roger Noll, Professor of Economics Emeritus at Stanford University and a member of the Jerry S. Cohen Award Selection Committee, sits down with Mark Lemley, the William H. Neukom Professor of Law at Stanford Law School. The two discuss Professor Lemley’s award-winning article, Anticompetitive Directors, 125 Colum. L. Rev. 1939 (2025), co-authored with Professor Rory Van Loo of the Wharton School of the University of Pennsylvania and Lane Miles, a 2025 graduate of Stanford Law School.

The article won the 24th Annual Jerry S. Cohen Memorial Fund Writing Award, presented on June 4 at AAI’s 2026 Annual Policy Conference, Competition Policy, Journalism, and the Promotion of Truth Regarding Public Matters. The article provides the first large-scale analysis of interlocking directorates involving both public and private companies and finds 2,309 instances of individuals sitting on the boards of companies that are direct competitors. It meaningfully advances our understanding of the scope and competitive significance of interlocking boards, while proposing legal and structural reforms to address the problem.

Professor Noll and Professor Lemley discuss how the project grew out of earlier research on biotech company board interlocks (5:28); why many companies appear to have forgotten that interlocking directorates remain unlawful under Section 8 of the Clayton Act (7:49); whether the per se prohibition reflects outdated formalism or an important safeguard against softened competition and collusion (9:03); the role of investors, venture capitalists, and private equity representatives on competing company boards (10:39); the data the authors used to identify competitors and board relationships across the economy (18:19); the relationship between interlocking directorates and the common-ownership literature (23:43); whether interlocks may serve as a plus factor in proving collusion (27:22); and potential reforms, including stronger enforcement, board-disclosure obligations, and pre-clearance rules (29:29).

Antitrust scholarship that is considered and selected for the Jerry S. Cohen Award reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power, or the federal statutes designed to protect society from various forms of anticompetitive activity. Selected scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.

GUESTS:

Mark Lemley, William H. Neukom Professor of Law, Stanford Law School

Roger Noll, Professor of Economics Emeritus, Stanford University

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AAI Reminds Second Circuit that a Trade Association’s Binding “Ethical” Principles Are a Section 1 Agreement Among the Members (Uddin v. Elsevier)

On June 18, 2026, the American Antitrust Institute (AAI) filed an amicus brief in Uddin, et al. v. Elsevier, B.V., No. 26-457, asking the Second Circuit to reverse a district court’s dismissal of plaintiffs’ antitrust complaint for failing to allege an agreement in restraint of trade under Section 1 of the Sherman Act. The complaint alleged an unlawful price-fixing and market-allocation conspiracy on the part of for-profit publishers of peer-reviewed scholarly journals.

Plaintiffs are four scholar-scientists who seek to represent a class of similarly situated scholar-scientists. Defendants are the world’s six-largest for-profit publishers of peer-reviewed scholarly journals. The complaint alleges that the publisher-defendants, working through a trade association, adopted “ethical principles for scholarly publishing” that, among other things, require authors to submit their manuscripts to only one journal at a time and that deny scholar-scientists any compensation for their peer review services. The publisher-defendants, as a condition of membership in the trade association, explicitly agreed to abide by the principles.

In dismissing the complaint, the district court looked only at allegations setting forth the text of the ethical principles themselves, while ignoring many other factual allegations showing that the publisher-defendants’ agreement to adhere to them and their written policies and other conduct enforcing them. The district court reasoned that, under the Second Circuit’s 2023 decision in Relevent Sports, LLC v. U.S. Soccer Federation, it could only consider the principles themselves and could not consider what it deemed to be other circumstantial evidence of agreement. Further, the district court said the principles were merely non-binding, best-practices guidelines.

AAI’s brief argues that the district court misread Relevent Sports, where the Second Circuit held that a FIFA rule, characterized as a “sporting principle,” represented direct evidence of a Section 1 agreement where soccer leagues and teams had agreed to be bound by FIFA rules. The scholar-scientists’ allegations exactly track those held sufficient to allege an agreement in Relevent Sports. AAI also argues that, even if the other allegations are deemed to be circumstantial evidence, they are as probative as directive evidence of a Section 1 agreement. That is especially so given the illusive distinction between direct and strong circumstantial evidence. And when the scholar-scientists’ allegations are considered in their entirety, they show the publisher-defendants’ commitment to and enforcement of the principles.

AAI also notes that the Supreme Court and courts of appeals have repeatedly found that ethical principles characterized in normative terms nevertheless are binding agreements under Section 1.

The brief was written by AAI General Counsel Mark Hegedus.

Read the full brief: AAI Amicus Brief in Uddin, et al. v. Elsevier, B.V.

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AAI Urges Fourth Circuit to Reject Specific-Intent Requirement and Focus on Effects in Section 2 Monopolization Claims (CareFirst of Maryland, Inc. v. Johnson & Johnson)

The American Antitrust Institute (AAI) recently filed an amicus brief in CareFirst of Maryland, Inc. v. Johnson & Johnson, No. 26-1248, urging the Fourth Circuit to reverse a grant of summary judgment that erroneously imposed a freestanding specific-intent requirement on a completed civil monopolization claim under Section 2 of the Sherman Act.

CareFirst, a health insurer, alleges that Johnson & Johnson used patents obtained in its acquisition of Momenta Pharmaceuticals as part of a scheme to delay biosimilar competition against Stelara, its blockbuster immunology drug. The district court granted summary judgment on reconsideration, holding that CareFirst could not prove J&J intended to exclude rivals anticompetitively when it acquired the Momenta patents.

AAI’s brief argues that the district court committed a clear and dangerous legal error. The test for completed civil monopolization has always been effects-based, not intent-based. Under the two-part standard articulated by the Supreme Court in United States v. Grinnell Corp., the “willful” acquisition or maintenance of monopoly power requires only a general intent to engage in the challenged conduct—not a specific purpose to exclude rivals. The Supreme Court, an unbroken line of circuit courts, and recent Fourth Circuit authority all confirm that intent evidence is relevant only to help characterize ambiguous conduct and is not a threshold element that plaintiffs must independently satisfy.

AAI’s brief shows that the district court compounded its error by isolating J&J’s patent acquisition from the broader course of conduct of which it was alleged to be a part. The Fourth Circuit’s decision in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC requires courts to assess allegedly anticompetitive conduct holistically and to draw the line between lawful and unlawful behavior based on competitive effect, not state of mind. In Duke Energy, evidence of anticompetitive intent played only a supporting role—bolstering a conclusion that the effects analysis had already reached—not a dispositive one. The district court’s approach inverts that framework.

AAI also explains that the general-intent requirements for a completed civil monopolization claim stand in contrast to the specific-intent requirement for two other distinct types of claims. Attempted monopolization requires proof of specific intent because the anticompetitive harm lies in the future and effects cannot yet supply one. Criminal Section 2 prosecutions require mens rea because of the general principles of criminal liability. Completed civil monopolization requires neither, because its effects have already materialized and can be examined directly. The district court’s ruling effectively grafted the attempt standard onto a completed offense.

Finally, AAI argues that sound antitrust policy independently supports an effects-based standard. Only an effects-based standard is consistent with the consumer welfare focus of case law under the Sherman Act and effective, fair enforcement. Because anticompetitive intent is proved largely through a defendant’s own documents, a sophisticated firm can evade liability simply by training employees to avoid incriminating language, while the underlying anticompetitive conduct and its market effects remain unchanged.

Read the full brief: AAI Amicus Brief in CareFirst of Maryland, Inc. v. Johnson & Johnson

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AAI 27th Annual Policy Conference: Rapporteur’s Report

On June 4, 2026, the American Antitrust Institute (AAI) held its 27th Annual Policy Conference, Competition Policy, Journalism, and “the Promotion of Truth Regarding Public Matters.” The full-day program brought together more than 100 diverse experts from business, government, academia, private practice, journalism, and public interest backgrounds. Guest speakers, panelists, and audience members discussed important legal, economic, and political developments affecting journalism and local news broadcasting. Key topics included (1) the challenges that journalism faces in today’s media markets, (2) the potential impacts of proposed mergers between Nexstar and Tegna and between Paramount and Warner Bros. Discovery, and (3) the use of antitrust enforcement and competition policy to protect journalism’s role in our democracy.

Read the full report: AAI 27th Annual Policy Conference: Rapporteur’s Report

This report was prepared by AAI summer intern Addison Wagner, who is a rising 3L at William & Mary Law School. Assistance was provided by Sam Bromer and former AAI intern Steven Lim.

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Class Action Issues Update Spring 2026

The American Antitrust Institute (AAI) seeks to preserve the effectiveness of antitrust class actions as a central and vital component of private antitrust enforcement. As part of its efforts, AAI issues periodic updates on developments in the courts and elsewhere that may affect this important device for protecting competition, consumers, and workers. This update covers developments since our Fall 2025 update and includes the following new decisions:

  • Mandatory Arbitration Agreements: Flores v. NFL, No. 1:22-cv-871, 2026 U.S. Dist. LEXIS 30015 (S.D.N.Y. Feb. 13, 2026); Avery v. TEKsystems, 165 F.4th 1219 (9th Cir. 2026); Flower Foods, Inc. v. Brock, __ U.S. __, 24-935, 2026 U.S. LEXIS 2297 (May 28, 2026) (slip op.); Silva v. Schmidt Baking Distrib., LLC, 162 F.4th 354 (2d Cir. 2025); Valli v. Avis Budget Grp. Inc., 162 F.4th 396 (3d. Cir. 2026); Greystone Mortg., Inc. v. Equifax Workforce Sols. LLC, No. 24-cv-2260, 2026 U.S. Dist. LEXIS 31200 (E.D. Pa. Feb. 17, 2026)
  • Uninjured Class Members and Article III Standing at Class Certification: Healy v. Milliman, 164 F.4th 701 (9th Cir. 2026); Clippinger v. State Farm Auto. Ins. Co., 173 F.4th 817 (6th Cir. 2026); Generation Changers Church v. Church Mut. Ins. Co., 168 F.4th 354 (6th Cir. 2026)
  • Ascertainability: Cline v. Sunoco, Inc. (R&M), 159 F.4th 1171 (10th Cir. 2025); Rider v. OXY USA, Inc., __ F.4th __, 2026 U.S. Dist. LEXIS 12992 (10th Cir. May 5, 2026)
  • Attorney’s Fees: Chieftain Royalty Co. v. EnerVest Energy Institutional Fund XIII-A, L.P., 166 F.4th 34 (10th Cir. 2026)
  • Incentive Awards for Class Members: Nat’l Veterans Legal Servs. Program v. United States, 170 F.4th 1353 (Fed. Cir. 2026)
  • Timing of Class Certification Determination: Oliver v. Navy Fed. Credit Union, 167 F.4th 106 (4th Cir. 2026)

I. Mandatory Arbitration Agreements

We have long been following the antitrust implications of mandatory arbitration agreements in adhesion contracts. Mandatory arbitration agreements often include forced class action waivers that may prevent class litigation and class arbitration. In our Summer 2015 update, we examined the impact of Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013), in which the Supreme Court instructed lower courts to “rigorously enforce arbitration agreements according to their terms,” even when that meant forcing federal antitrust plaintiffs into individual arbitrations that would make their claims prohibitively costly.

Italian Colors dealt with the judge-made “effective vindication” exception to the Federal Arbitration Act (“FAA”), which the Court first recognized in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), and which establishes that even FAA-protected arbitration agreements are subject to invalidation when they operate as a prospective waiver of a party’s right to pursue statutory remedies. Although it held in Italian Colors that an antitrust plaintiff cannot invoke the exception to invalidate a class-action waiver merely because the costs of individually arbitrating a federal statutory claim exceed its potential recovery, the Court did not invalidate the exception, and plaintiffs can still challenge an arbitration provision under Mitsubishi if it prevents them from effectively pursuing statutory remedies.

In our Fall 2025 update, we examined Flores v. N.Y. Football Giants, 150 F.4th 172 (2d Cir. 2025), in which the Second Circuit invalidated a professional football player’s arbitration agreement with his team and the NFL under the effective-vindication exception after finding that it required him to submit his claims to the “unilateral discretion” of the NFL Commissioner, without providing an independent arbitral forum or a process for bilateral dispute resolution. On remand, in Flores v. NFL, No. 1:22-cv-871, 2026 U.S. Dist. LEXIS 30015 (S.D.N.Y. Feb. 13, 2026), the Southern District of New York held that the Second Circuit’s opinion also invalidates other class members’ arbitration agreements with their respective teams, and ordered the case to proceed in federal court.

Also, earlier this year the Ninth Circuit held in Avery v. TEKsystems, 165 F.4th 1219 (9th Cir. 2026), that Rule 23(d)’s grant of “broad authority” includes the ability to decline to enforce an arbitration agreement. In Avery, just after the close of class certification briefing, the defendant employer sent successive emails to plaintiff employees imposing a mandatory arbitration agreement but informing them that they had a right to opt out of the agreement for the limited purpose of maintaining their ability to participate in the instant lawsuit. Reasoning that the defendant’s emails attempted to effectively convert Rule 23’s opt-out process into an opt-in process, the district court denied the defendant’s motion to compel arbitration and declined to enforce the agreement. The Ninth Circuit affirmed, explaining that, under Rule 23(c), class members are included within a certified class unless they “request[] exclusion,” and circuit precedent recognizes district courts’ “power to regulate the notice and opt-out processes and to impose limitations when a party engages in behavior that threatens the fairness of the litigation.”

Since our Fall 2016 update, we have been tracking the use of mandatory arbitration clauses in employment agreements, which the Supreme Court upheld in a 5-4 decision in Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018). In our Spring 2019 update, we reviewed the Supreme Court’s decision in New Prime, Inc. v. Oliveira, 586 U.S. 105 (2019), which held that an FAA exception for “contracts of employment” with “transportation workers” who are “engaged in foreign or interstate commerce” excludes such contracts from the Act’s coverage and that its application turns on the nature of the contract rather than whether the contract purports to create an employer-employee relationship. In our Summer 2022 update, we examined the Supreme Court’s unanimous holding in Sw. Airlines v. Saxon, 142 S. Ct. 1783 (2022), that a class of workers is “engaged in foreign or interstate commerce” for purposes of the FAA exclusion if they are “directly involved in transporting goods across state or international borders.” In our Spring 2024 update, we examined the Supreme Court’s holding in Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024), that a worker need not work in the transportation industry to fall within the exclusion, and that courts should focus on workers’ duties rather than the industry they work in. We also explained that a circuit split has formed regarding last-mile delivery drivers who do not cross state lines, with the First, Ninth, and Tenth Circuits holding that they fall within the transportation-worker exclusion and the Fifth Circuit holding that they are subject to the FAA.[1]

As we discussed in our Fall 2025 update, the Tenth Circuit in Brock v. Flowers Foods, 121 F.4th 753 (10th Cir. 2024), examined the case of a franchisee delivery driver who distributes baked goods from a national baker to in-state retail stores, following the First and Ninth Circuit’s approaches to hold that he is directly engaged in interstate commerce under Saxon such that he falls within the exclusion. The Supreme Court recently affirmed that holding in a unanimous opinion in Flower Foods, Inc. v. Brock, __ U.S. __, No. 24-935, 2026 U.S. LEXIS 2297 (May 28, 2026), ending the circuit split and confirming, based on the statutory text and the court’s Commerce Clause jurisprudence, that delivery drivers may be “engaged in interstate commerce” under Saxon even if they do not cross state lines or interact with a vehicle that does.

In December, the Second Circuit addressed the separate question of what constitutes a “contract of employment” under the exclusion, holding that the language includes contracts between business entities. In Silva v. Schmidt Baking Distrib., LLC, 162 F.4th 354 (2d Cir. 2025), plaintiff delivery drivers worked as W-2 employees through a staffing agency until their employer required them to form single-employee corporations and sign mandatory arbitration clauses to continue their work. Reversing the district court’s order forcing arbitration, the Second Circuit distinguished the drivers’ single-entity corporations from large logistics companies, emphasizing that the drivers incorporated at their employer’s behest, maintained the same work duties before and after incorporation, and personally guaranteed performance under the contracts. The case stands for the proposition that employers cannot circumvent the FAA’s transportation-worker exclusion by forcing workers to incorporate.

Beyond the employment context, we have also been tracking cases addressing circumstances under which a defendant waives its right to enforce an arbitration agreement. In our Fall 2024 update, we examined the Eighth Circuit’s holding in Thomas v. Pawn Am. Minn. LLC (In re Pawn Am. Consumer Data Breach Litig), 108 F.4th 610 (8th Cir. 2024), that a defendant waived its right to compel arbitration by “substantially invoking the litigation machinery” when it participated in a motion-to-dismiss hearing, stipulated to a discovery plan, and scheduled a mediation before moving to compel discovery. In our Fall 2025 update, we reported on the Eighth Circuit’s holding in Lackie Drug Store v. OptumRx, 143 F.4th 985 (8th Cir. 2025), that a waived right to arbitration was “revived” with respect to newly added claims in an amended complaint such that a defendant could move to compel arbitration of those claims.

Earlier this year, the Third Circuit addressed the issue in Valli v. Avis Budget Grp. Inc., 162 F.4th 396 (3d. Cir. 2026), holding that defendant Avis did not waive its right to compel arbitration of certain class claims when it litigated those claims before certification because it consistently asserted arbitration as an affirmative defense, raised arbitration issues in opposing class certification, and promptly moved to compel arbitration after certification. In February, the Eastern District of Pennsylvania distinguished the facts of Valli in an antitrust class action, Greystone Mortg., Inc. v. Equifax Workforce Sols. LLC, No. 24-cv-2260, 2026 U.S. Dist. LEXIS 31200 (E.D. Pa. Feb. 17, 2026). The court relied on the Ninth Circuit’s opinion in Avery to exercise its Rule 23(d) authority to deny arbitration, holding that defendants waived their right to arbitrate by engaging in discovery and failing to raise an arbitration agreement that it had imposed on plaintiffs after the complaint was filed. Defendants’ appeal of that decision is currently pending before the Third Circuit.

II. Uninjured Class Members and Article III Standing at Class Certification

We have long been following the recurring debate in the federal courts over the rules and standards that govern the certification of classes that may contain some class members who were not injured by the defendant’s conduct. As we explained in our Fall 2025 update, there is a persistent circuit split on this issue, and the Supreme Court has repeatedly declined to address it. As covered in our Spring-Summer 2021 update, a sharply divided Court ruled in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), that “every class member must have Article III standing to recover individual damages,” but explicitly declined to reach “the distinct question whether every class member must demonstrate standing before a court certifies a class.”

This January, the Ninth Circuit relied on TransUnion to hold in Healy v. Milliman, Inc., 164 F.4th 701 (9th Cir. 2026), that unnamed class members must demonstrate evidence of Article III standing at the summary judgment stage, not just when individual damages are awarded. Drawing on TransUnion’s language that plaintiffs “must demonstrate standing with the manner and degree of evidence required at the successive stages of the litigation,” the court reversed the district court’s order for failing to allow circumstantial evidence of standing and declining to make reasonable inferences based on that evidence, as required at summary judgment.

The issue of uninjured class members is arguably analogous to the issue of “disjuncture,” which focuses on whether a disparity between the named plaintiffs’ injuries and the injuries of prospective class members presents standing issues under Article III. As we explained in our Fall 2025 update, the First, Third, Fifth, Sixth, and Ninth Circuits have employed the “class-certification approach,” which requires only that the named plaintiffs have standing,[2] while the Second and Eleventh Circuits have adopted the more intensive “standing approach,” which requires that the named plaintiff must have suffered harms that are analogous to those suffered by the rest of the class.[3]

As we explained in our Fall 2025 update, there has recently been significant debate between judges on the Sixth Circuit about which approach to follow, with Judges Thamar and Nalbandian issuing warring concurrences on the issue in Speerly v. GM, 143 F.4th 306 (6th Cir. 2025). The debate continued earlier this year, when a three-judge panel in Generation Changers Church v. Church Mut. Ins. Co., 168 F.4th 354 (6th Cir. 2026), declined to adopt either the class-certification or standing approach after finding that plaintiffs’ class claims could continue under either approach. Calling into question Judge Thamar’s characterization in his Speerly concurrence that the court adopted the class certification approach in its 1998 opinion in Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir. 1998), the panel in Generation Changers stated that the court has “yet to explicitly endorse this view in a published opinion.” Last month, Judge Bush expanded the debate in his concurrence in Clippinger v. State Farm Auto. Ins. Co., 173 F.4th 817 (6th Cir. 2026), in which he argued that some classes may only include only a handful of injured plaintiffs such that district courts should also consider unnamed plaintiffs’ Article III standing as part of their numerosity analysis.

III. Ascertainability

We have been following a circuit split over whether Rule 23 contains a heightened ascertainability requirement under which class plaintiffs must plead and prove an administratively feasible mechanism for identifying class members. In our Winter 2022 update, we noted that the Third Circuit, where the heightened ascertainability requirement first gained credence, had been steadily eroding the requirement in a series of cases. However, in our Summer 2023 update, we noted that the court reaffirmed its heightened ascertainability requirement in an antitrust class action, In re Niaspan Antitrust Litig., 67 F.4th 119 (3d Cir. 2023), upholding a denial of class certification on administrative-feasibility grounds. The court later denied a petition for rehearing en banc.

As explained in our Fall 2024 update, the First and Fourth Circuits have joined the Third Circuit in adopting a heightened ascertainability requirement,[4] while the Second, Sixth, Seventh, Eighth, Ninth, Eleventh, and Federal Circuits have rejected any heightened ascertainability requirement.[5] The Fifth, Tenth, D.C., and Federal Circuits had not yet adopted an explicit position, although the Tenth and D.C. Circuits had acknowledged the issue. Last November, the Tenth Circuit joined the majority of circuits in rejecting a heightened ascertainability requirement.

In Cline v. Sunoco, Inc. R&M, 159 F.4th 1171 (10th Cir. 2025), Sunoco appealed the district court’s certification order and award of over $170 million in damages to a class of landowners who failed to receive interest on late oil and gas royalty payments as required by Oklahoma law. Sunoco appealed, arguing that the class members were not ascertainable because they were not identified by name. The Tenth Circuit rejected that argument, explicitly adopting the Seventh Circuit’s ascertainability test as articulated in Mullins and rejecting the heightened ascertainability requirement because it would allow Sunoco to “defeat class certification either by failing to keep proper records or failing to produce them.” The court held that “administrative feasibility may bear on whether class resolution is superior to individual resolution, but it should not operate as a trump card that outweighs all other factors under Rule 23.”

Earlier this month, the Tenth Circuit applied Cline to plaintiffs’ appeal of a district court’s pre-Cline order denying certification of another class of landowners with oil and gas leases. In Rider v. Oxy USA, Inc., No. 25-3142, 2026 U.S. App. LEXIS 12992 (10th Cir. 2026), the district court found that the class definition was not administratively feasible because it required the court to “individually consider” payment, lease, and acquisition records to determine whether class members own mineral interests in land leased to the defendant. The Tenth Circuit reversed, noting that it had since rejected the administrative feasibility requirement in Cline, that the defendant could identify class members through its own records, and that, “[r]egardless, Cline clarified that neither gaps in a defendant’s record-keeping nor the large number of records to be reviewed can defeat class certification.”

IV. Attorney’s Fees

Over the past several years, we have been tracking notable developments involving the fairness and reasonableness of fee awards in class-action settlements under Rule 23(e)(2), which has important implications for private enforcement incentives. In our Spring 2024 update, we examined In re Wawa Data Sec. Litig., 85 F.4th 712 (3d Cir. 2023) (“Wawa I”), in which the Third Circuit vacated a $3 million fee award—amounting to 25% of the recovery amount—and remanded with instructions to reconsider the reasonableness of the award. In our Fall 2025 update, we examined In re Wawa Data Sec. Litig., 141 F.4th 456 (3d Cir. 2025) (“Wawa II”), in which the court affirmed the same fee award, reiterating its “flexible approach toward analyzing fee awards.”

Also in our Spring 2024 update, we examined In re Broiler Chicken Antitrust Litig., 80 F.4th 797 (7th Cir. 2023) (“Broiler I”), in which the Seventh Circuit reversed a district court’s $57.4 million fee award—amounting to 33% of the settlement fund—because the court failed to consider auction bids made by counsel in other litigation. In our Fall 2025 update, we examined In re Broiler Chicken Antitrust Litig., 142 F.4th 568 (7th Cir. 2025) (“Broiler II”), in which the court reduced the district court’s revised award from 30% to 26.6% after comparing it to the fees in other cases.

In our Fall 2025 update we also examined Kurtz v. Kimberly-Clark Corp., 142 F.4th 112 (2d Cir. 2025), in which the Second Circuit clarified that Rule 23(e) safeguards the fairness of a settlement for the class by asking whether the proportion of attorney’s fees compared to the total recovery allocated to the class raises any questions about the settlement’s adequacy, and that courts must weigh attorney’s fees settlements against the relief provided “for the class” under Rule 23(e)(2)(C)(iii).

In January, the Tenth Circuit in Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P., 166 F.4th 34 (10th Cir. 2026), affirmed the district courts $17.3 million fee award—amounting to 33% of the settlement fund—as substantively reasonable. The court affirmed the district court’s inclusion of time class counsel spent on appeals in calculating the lodestar, emphasizing that the district court had reduced the 40% fee that counsel originally requested and had credited class counsel with winning a greater per-member recovery than a comparable case during a period when “controlling law regarding class certification was in flux.”

V. Incentive Awards for Class Members

Since our Fall 2020 update, we have been following unusual developments surrounding the legality of incentive awards for lead plaintiffs in class action settlements. In 2020, the Eleventh Circuit in Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020), unexpectedly held that incentive awards paid to lead class plaintiffs—a mainstay of antitrust and other class actions for decades—are unlawful under nineteenth-century Supreme Court precedent disallowing salaried class representatives. As discussed in our Fall/Winter 2022, Summer 2023, Spring 2024, and Fall 2024 updates, the First, Second, Seventh, and Ninth Circuit have rejected the Eleventh Circuit’s “anomalous” analysis and affirmed the legality of incentive awards.[6]

In March, the Federal Circuit joined the “overwhelming majority” of circuits to reject the Eleventh Circuit’s holding in Johnson and hold that incentive awards are legal. In Nat’l Veterans Legal Servs. Program v. United States, 170 F.4th 1353 (Fed. Cir. 2026), the court upheld the district court’s approval of $10,000 incentive awards to three nonprofit class representatives who litigated a PACER fee case on behalf of the class for eight years. In doing so, the court observed that, far from the salaries that were prohibited under the nineteenth century precedent reviewed in Johnson, incentive amounts are “token amounts to encourage the participation of representative plaintiffs,” who “step up, often at significant personal and financial cost, to vindicate the rights of others.”

VI. Empirical Data on Class Actions 

In April, Huntington Bank (Huntington) and the UC Hastings Center for Litigation and Courts (UCHCLC) published the 2025 Annual Antitrust Report: Class Actions in Federal Court, their ninth annual antitrust report examining empirical information involving the filing and resolution of private antitrust class action lawsuits. The new report covers the years 2009–2025.

The Report shows the number of antitrust class action complaints filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorney’s fees and costs awarded, and the total settlement amounts in each year and overall. It also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describes cumulative results, and tabulates cumulative totals for claims administrators involved in the settlement process. The report also distinguishes private antitrust enforcement by particular industries, by type of claim, and by type of plaintiff. Key findings include the following:

  • From 2009-2025, a mean number of 124 consolidated complaints were filed per year, with outlier years as low as 72 and as high as 220.
  • From 2009-2025, there were Defendant Wins in 158 cases as a result of judgments on the pleadings, summary judgment, judgment as a matter of law, or trial.
  • From 2009-2025, most antitrust class actions that reached final approval did so within 5-7 years.
  • The mean settlement amount varied by year from $6 million to $184 million, and the median amount varied by year from $2 million to $18.5 million.
  • The total annual settlements ranged from $225 million to $9.6 billion per year.
  • The cumulative total of settlements was $51.8 billion from 2009-2025.

Download the Spring 2026 Class Action Issues Update

 

[1] Rittmann v. Amazon.com, 971 F.3d 904 (9th Cir. 2020); Waithaka v. Amazon.com, 966 F.3d 10 (1st Cir. 2020); Lopez v. Cintas Corp., 47 F.4th 428 (5th Cir. 2022); Brock v. Flowers Foods, 121 F.4th 753 (10th Cir. 2024).

[2] Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir. 1998); Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015); In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018); Boley v. Universal Health Servs., 36 F.4th 124 (3d Cir. 2022); Wilson v. Centene Mgmt. Co., 144 F.4th 780 (5th Cir. 2025).

[3] Fox v. Ritz-Carlton Hotel Co., 977 F.3d 1039 (11th Cir. 2020); Barrows v. Becerra, 24 F.4th 116 (2d Cir. 2022).

[4] In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015); EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014).

[5] In re Petrobas Sec. Litig., 862 F.3d 250 (2d Cir. 2017); Rikos v. Proctor & Gamble Co., 799 F.3d 497 (6th Cir. 2015); Mullins v. Direct Digit., LLC, 795 F.3d 654 (7th Cir. 2015); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992 (8th Cir. 2016); Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017); Cherry v. Dometic Corp., 986 F.3d 1296 (11th Cir. 2021); Freund v. McDonough, 114 F.4th 1371 (Fed. Cir. 2024).

[6] Murray v. Grocery Delivery E-Servs. USA Inc., 55 F.4th 340 (1st Cir. 2022); Moses v. The New York Times Co., 79 F.4th 235 (2d Cir. 2023); Scott v. Dart, 99 F.4th 1076 (7th Cir. 2024); In re Apple Inc. Device Performance Litig., 50 F.4th 769 (9th Cir. 2022).