In an extraordinary week, WilmerHale’s antitrust litigators recently secured back-to-back victories in proposed class-action cases involving two major issues frequently in the headlines in recent years, college student-athletes compensation and real estate brokerage commissions.
On Monday, Oct. 7, 2024, WilmerHale prevailed on behalf of our client Howard Hanna Real Estate Services in US District Court in the Western District of Pennsylvania with a dismissal of a lawsuit that accused Howard Hanna of violating Section 1 of the Sherman Anti-Trust Act through an alleged agreement to fix broker commissions. Howard Hanna was one of several brokerages, along with the West Penn MLS, who were sued.
Then, just days later, on Thursday, Oct. 11, WilmerHale obtained its second major win, yet another dismissal in a high-profile antitrust case, this time for its client the University of Pennsylvania in US District Court for the District of Connecticut. Like Howard Hanna, Penn, with the seven other Ivy League universities and the conference itself, were also accused of violating Section 1 of the Sherman Act.
Student-athletes contended that the Ivy League’s tradition of being the sole Division I athletic conference not to award athletic scholarships, or otherwise provide monetary compensation for athletes, was an illegal agreement that violated Section 1 of the Sherman Act.
Demonstrating WilmerHale’s frequent status as first among equals in major antitrust litigation with multiple co-counsel representing numerous defendants, the firm led the brief writing efforts for the groups of defendants in both the real estate and Ivy league cases.
Partner David Gringer, among the nation’s top antitrust litigators, helmed WilmerHale’s teams in both cases. Of the twin wins, he said: “It’s rare to have two wins like this in a year, let alone the same week.” Gringer added, “these were difficult cases against extremely challenging backdrops in both industries. “
In the Ivy League case, the motion to dismiss briefing was filed in July 2023. The Court then worked on its opinion for the next 15 months, during which time the plaintiffs submitted three separate notices of supplemental authority and sought to compel discovery.
Ultimately, the court granted the defendants’ motion to dismiss in full, without leave to amend.
In the Howard Hanna case: “WilmerHale led the motion to dismiss briefing on behalf of all defendants,” Gringer said. “Many of our co-defendants settled before briefing even concluded. We believed in the strength of our arguments and proceeded with the litigation. That proved to be the right decision.”
In the real estate case, plaintiffs sold homes listed on West Penn Multi-List, Inc.’s MLS, which serves the Pittsburgh metropolitan area. The West Penn MLS is an independent MLS with no NAR affiliation and its own distinct rules. The West Penn MLS rules permit listings to state that the seller is not offering any compensation to the buyer broker.
The plaintiffs’ complaint alleged that the West Penn MLS, Howard Hanna, and other real estate brokerages operating in Western Pennsylvania violated federal antitrust laws by agreeing to require listings to designate the amount of compensation offered to the buyer broker, resulting in artificially inflated commissions.
The complaint also alleged that defendants violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law based on the same West Penn MLS rule and an allegation that “many agents” represent that a particular buyer-broker commission is “standard.” The Court dismissed both claims with prejudice without the benefit of oral argument.
Besides Gringer, WilmerHale’s team in the Real estate case included Partners Seth Waxman and Karin Dryhurst; Counsel Emily Barnet and Claire Bergeron; Senior Associates Jane Kessner and Rishita Apsani, and Associates Andrew Gelfand, Phoebe Silos and Jackson Frazier.
The WilmerHale team in the Ivy League case, besides Gringer and Waxman, included Partner Alan Schoenfeld; Counsel Thad Eagles, Samuel Strongin, Shelby Martin and Arielle Herzberg; Senior Associates Hannah Gelbort and Ivan Navedo; and Attorney Jenny Cho. The team was awarded an American Lawyer Litigation Daily Shout-Out for the victory.