In an opinion today, Judge Schiendlin certified a Rule 23(b)(2) injunction class in a case alleging that it is anticompetitive for Major League Baseball and the National Hockey League to divide the market for games into various territories exclusive to the local teams, while allowing the broadcast of out-of-market games only as part of all-or-nothing packages like MLB Extra Innings or NHL Center Ice. The defendants’ primary argument against class certification was that the class would impermissibly consist of those would benefit from a dismantling of the existing structure — e.g., a Yankee fan in Iowa who would prefer to be able to buy a package of just Yankee games — and those who would be harmed — e.g., a Yankee fan in Iowa who would in all events buy the full MLB Extra Innings package but, if a-la-carte options were available, might not have the package option or might have to pay more. According to the defendants, these “winners” and “losers” cannot form a cohesive class. Judge Scheindlin concluded that this argument “fails three times over”:
First, it confuses the question of whether a common injury unites the class with the distinct question of whether all class members agree about how best to respond to the injury. It is the former, not the latter, that drives the Rule 23 analysis — and there is no question that here, a common injury exists in the form of diminished consumer choice. Second, at a policy level, defendants’ argument threatens the integrity of the antitrust laws. If the fact that illegal restraints operate to the economic advantage of certain class members were enough to defeat certification, the efficacy of class-wide antitrust suits — and the deterrence function they serve — would wither. Third, defendants’ argument subverts the purpose of Rule 23(b)(2). When the remedy sought is injunctive rather than monetary, divergent interests within the class militate in favor of certification — because certification gives affected parties a greater voice in the litigation.
Prior posts on the case are here.