105 F. Supp. 3d 384 | S.D.N.Y. | 2015
OPINION AND ORDER
I. INTRODUCTION
In a companion Opinion issued today, I held that the damages model submitted by plaintiffs’ expert, Dr. Roger Noll, must be excluded as unreliable under Daubert.
II. BACKGROUND
These actions — Garber v. MLB and Laumann v. NHL — are antitrust challenges to sports broadcasting. Both cases rest on the same legal theory. Plaintiffs allege that Major League Baseball (“MLB”) and the National Hockey League (“NHL”), along with the regional sports networks (“RSNs”) that produce their games, have entered into agreements with multichannel video programming distributors (“MVPDs”) — DirectTV and Com-cast — that limit options, and increase prices, for baseball and hockey fans who want to watch teams from outside the home television territory (“HTT”) where the fans live. According to plaintiffs, defendants’ multilateral agreements impose conditions of “territorial exclusivity” that restrain individual teams and RSNs — such as the Yankees Entertainment Sports Network (‘YES Network”) — from selling their content directly to fans outside the HTT (in the Yankees’ case, New York and New Jersey).
According to plaintiffs, the ultimate consequence of this arrangement is that a Yankees fan living in Iowa who wants full access to a season’s worth of Yankees games has to buy an “out-of-market package” (“OMP”) — a bundle of all out-of-market games, from every team — instead of simply buying the YES Network.
Defendants have a less sanguine vision of the BFW. Although they concede — as they must — that the complained-of restraints limit consumer choice, defendants argue that the restraints are what make it profitable for teams and RSNs to broadcast their games at all. In this sense, plaintiffs’ position overlooks the “incentives that drive the telecasting of MLB and NHL games in the actual world.”
With respect to class certification, defendants make essentially two arguments.
A. Different Forms of Exclusivity
Confusion persists — even this many years into the case — about the exact prac
1.Territorial Exclusivity
First, there is “territorial exclusivity,” which refers to the inability' of individual teams and RSNs to sell their content directly to consumers outside of their HTTs. Territorial exclusivity is a product of multilateral agreements among the leagues, the RSNs, and the MVPDs.. In the .absence of such agreements, it would be in the interest of at least some (and perhaps all) RSNs to sell their content a la carte, either over the Internet or through the MVPDs. Defendants do not dispute the existence of territorial exclusivity in the actual world; nor do they dispute that territorial exclusivity is the product of deliberate cooperation among actors in the supply chain. Rather, the core dispute in this case — on the merits — is whether the procompetitive benefits of territorial exclusivity outstrip its anticompetitive effects, once all of its economic effects are taken into account. There can be no question, however, that territorial exclusivity is anticompetitive — it reflects an explicit agreement among competitors, purposely designed to prevent competition. The question is whether, by doing so, territorial exclusivity enhances consumer welfare overall.
2.Content Exclusivity
Second, there is “context exclusivity,” which refers to the ability of an individual RSN to “make its games available,” if it sees fit, “only to an exclusive producer in its home market.”
3.Game Exclusivity
Third, there is “game exclusivity,” which refers, to the monopolization of broadcast rights of a local team’s games within its HTT. Game exclusivity is similar to content exclusivity in that it concerns the ability of an RSN to control the flow of content within its HTT. But game exclusivity is also different from content exclusivity — and more restrictive — insofar as it requires limiting the ability of other RSNs from controlling the flow of their content.
Practically speaking, this means that in' the actual world, RSNs have both content exclusivity and game exclusivity within their HTT. The YES Network, for example, enjoys content exclusivity insofar as it can dictate how its productions of Yankees games are distributed within its HTT. YES is free, to veto certain forms of distribution, or to condition the licensing, of its productions on certain constraints — such as blackouts within the OMP. YES is free to do this because its productions are its IP, and, as with any IP-owner, it may do with its IP as it wishes. That would be equally true in the BFW.
4. The Nature of Plaintiffs’ Challenge
Of these forms of exclusivity, plaintiffs’ are challenging territorial exclusivity, but they are not challenging content exclusivity.
For example, if the Yankees are playing the Red Sox, in the actual world a Yankees fan in Brooklyn would have to watch the game on the YES Network. Even if she subscribed to the OMP, the NESN Network would be blacked out, so as to preserve the YES Network’s game exclusivity. And of course the Yankees fan also would not be able to buy the NESN Network a la carte — that is the point of this lawsuit. In the BFW, by contrast, a Brooklyn resident would be able to watch the Yankees-Red Sox game on either the YES Network or the NESN Network (assuming she had access to the latter through an a la carte channel or the OMP). In this sense, even though the YES Network would still have content exclusivity— it would be free to do as it pleases with the games it produces — it would no longer have game exclusivity in the Yankees’ HTT.
B. The Market for MLB and NHL Broadcasting in the Actual World
With the different forms of exclusivity in mind, this section provides an overview of the Supply Side in the market for sports broadcasting, as it exists today.
1. The Supply Side Overall
RSNs produce baseball and hockey games, which are distributed to consumers in two different ways. First, an individual RSN’s productions are included in local television programming. When a consumer purchases a cable package from an MVPD, thát will typically enable her to watch the RSN (or RSNs) operating within her HTT. Second, game productions— from all RSNs — are bundled together in
Ultimately, then, three different supply chains operate in parallel in the actual world.
Supply chain one (in-market telecasts)
Individual team -> RSN -> MVPDs -> In-market consumers that purchase cable packages
Supply chain two (out-of-market telecasts)
All teams -> RSNs (bundled together) -> MVPDs -> Consumers that purchase OMPs
Supply chain three (out-of-market Internet streaming)
All teams -* RSNs (bundled together) -> Consumers that purchase OMPs
The question, then, is how these supply chains translate into concrete options for different classes of consumers. The following pair of examples should help answer this question.
2. Case One — A Yankees Fan in Brooklyn
First, consider a Yankees fan who lives in Brooklyn. In the actual world, she can enjoy full access to Yankees games, through the YES Network, by purchasing a local cable package — because she lives within the HTT, that package will include YES. To watch other teams, however, she will have to purchase an OMP, either through her MVPD or over the Internet.
3. Case Two — A Yankees Fan in Iowa
Second, consider a Yankees fan who lives in Iowa. In the actual world, if she wants to watch the Yankees, she will have to buy an OMP.
What is conspicuously lacking in this picture — and what plaintiffs believe would exist in the absence of league-wide territorial restraints — is direct distribution from RSNs to out-of-market consumers. In essence, plaintiffs’ position is that two more supply chains should be added (and, in the BFW, would be added) to the Supply Side. Beyond the three supply chains outlined above, the-BFW would also include:
Supply chain four (a la carte out-of-market telecasts)
Individual team -> RSN -> MVPDs -> Oüt-of-market consumers that buy a la carte channels
Supply chain five (a la carte out-of-market Internet streaming)
Individual team -> RSN -» Out-of-market consumers that buy a la carte channels
The next question, then, is what would be the result for consumers if these additional supply chains were, in fact, to emerge. Considering the same pair of examples as before will help answer this question.
1. Case One — Yankees Fan in Brooklyn
In the BFW, the Yankees fan in Brooklyn will face similar conditions to the conditions she faces in the actual world. If she purchases an OMP, the YES Network will still be blacked out.
2. Case Two — Yankees Fan in Iowa
The same is not true of out-of-market fans. If the Brooklyn-based Yankees fan is likely to see little difference — and therefore little upside — from the transition to the BFW, the Iowa-based Yankees fan is likely to see a substantial upside. For her, the BFW will include an option that is unavailable in the actual world — a la carte RSNs. She will' be able to purchase the YES Network, either through an MVPD (via her cable package) or directly over the Internet. Furthermore, if she purchases an OMP, she will be able to watch the YES Network, through the OMP, even when the Yankees are playing against -a team from her HTT. In the actual word, such broadcasts are blacked out — in order to preserve game exclusivity for RSNs in the Iowa HTT. -
D. The Class-Wide Challenge
■ Plaintiffs seek to certify the TV Class and the Internet Class on the same antitrust theory. According to plaintiffs, every consumer in both classes faced — and
III. APPLICABLE LAW
A. Class Certification
1. Rule 23(a)
Rule 23(a) permits individuals to sue as representatives of an aggrieved class. To be certified,- a putative - class must first meet all four prerequisites set forth in Rule 23(a), generally- referred to as numer-osity, commonality; typicality, and adequacy.
a. Commonality
Rule 23(a)(2) requires that there be “questions of law -or fact common to the class.” Commonality thus requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’”
b. Typicality
“Typicality, ‘requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events[ ] and each class member makes similar legal arguments to prove the defendant’s liability.’ ”
c. Adequacy
“Adequacy is twofold: the proposed class representative must have an interest in vigorously pm-suing the claims of the class, and must have no interests antagonistic to the interests of other class members.”
2. Rule 23(b)
If the requirements of Rule 23(a) are met, the court “must next determine whether the class can be maintained under any one of the three subdivisions of Rule 23(b).”
a. Rule 23(b)(2)
tinder Rule 23(b)(2), plaintiffs must show that defendants “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.35
There are, however, two additional hurdles that plaintiffs must clear in order to certify a(b)(2) class. First, plaintiffs must demonstrate that the class is “cohesive.”
b. Rule 23(b)(3)
Under Rule 23(b)(3), certification is appropriate where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and class litigation “is superior to other available methods for the fair and efficient adjudication of the controversy.”
The matters pertinent to these findings include the class members’ interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action.39
The predominance inquiry focuses on whether “a proposed class is ‘sufficiently cohesive to warrant adjudication by representation.’”
B. Antitrust Injuries
Antitrust injuries come in two basic forms. First, anticompetitive conduct
C. Standing
As discussed at length in my December 5, 2012 opinion — and rehearsed only briefly here — for an antitrust claim to be justi-ciable, a plaintiff (or class of plaintiffs) must demonstrate two distinct types of standing.
1. Article ill Standing
Because “Article III, Section 2, of the United States Constitution limits federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ ” a party “seeking to bring suit in federal court must establish standing under Article III.”
Not every party that satisfies the requirements of Article III standing may bring a private antitrust suit. Because anticompetitive conduct,- by its nature, often affects many different actors within a given market, the Supreme Court has erected two additional criteria to limit who has “antitrust standing.” First-, under Illinois Brick v. Illinois,
IV, DISCUSSION
As discussed at length in a companion Opinion issued today, I find the damages model submitted by plaintiffs’ expert, Dr. Noll, to be inadmissible. As a result, plaintiffs cannot prove, their damages case on a class-wide basis. As the Second Circuit has explained, while the need for individualized inquiry into damages does not defeat (b)(3) certification,
But the issue of (b)(2) certification remains. On that front, defendants make essentially two arguments’. First, they argue that the putative class consists of winners and losers. In defendants’ view, some purchasers of OMPs actually benefit from the restraints in-dispute, which both defeats the commonality of injury and frustrates the ability of named plaintiffs to adequately represent the interests of all class members. Second, defendants argue that because some members of the class no longer subscribe to OMPs, they have no legal interest in the- prospective relief sought by named plaintiffs — ie., they are no longer “consumers in the market where trade is allegedly restrained,”
A. Winners and Losers
According to defendants, putting an end to territorial exclusivity would likely result in either (1) consumers having to pay more for OMPs, or (2) the disappearance of OMPs entirely. From this'premise, defendants conclude that certain consumers are better off in the actual world than they would-be in the BFW — specifically, those consumers that would prefer to buy an OMP, even assuming the availability of a la carte channels. Given this ostensible conflict of interest among the class members, defendants argue that the relief sought by lead plaintiffs is “likely [to] harm a great many absent class members.”
In response, plaintiffs offer two counterarguments — the first questioning defendants’ premise, the second, attacking defendants’ conclusion. First, plaintiffs disagree with defendants’ portrait of the BFW. According to plaintiffs, beyond the “self-serving affidavits of party witnesses,” such as league executives, there is little reason to think that OMPs would be more expensive or non-existent in the BFW.
Because I agree with plaintiffs’ second argument — that defendants’ theory of in-tra-class conflict, even if true, is no basis for denying certification — there is no need to address which side has painted a more accurate portrait of the BFW. In effect, defendants’ position is that certain class members would prefer the status quo to persist, antitrust violation or no. Put more bluntly, defendants believe that some class members, even if they are currently suffering an antitrust injury, would prefer to be injured than for the injury to be redressed — because the injury carries collateral benefits.
Defendants’ claim 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 classwide antitrust suits — and the deterrence function they serve — would wither. Third, defendants’ argument subverts the purpose of Rule 28(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.
1. Class Certification Versus Merits Analysis
Defendants point to a number of antitrust cases where courts have embraced a winners and losers argument against class certification. For example, defendants refer a number of times to Valley Drug Company v. Geneva Pharmaceuticals,
Further examples abound in defendants’ papers.
The same is not true in this case. Here, every class member has suffered an injury, because every class member, as a consumer in the market for baseball or hockey broadcasting, has been deprived of an option — a la carte channels — that would have been available absent the territorial restraints (“Injury One”). On top of this general injury, certain class members have also suffered the additional injury of having to pay too much for the content they wanted (“Injury Two”). Plaintiffs and defendants disagree about how many class members fall into the latter category. In plaintiffs’ view, every class member does— Injury Two is universal, because all prices would go down in the BFW. In defendants’ view, by contrast, only some class members suffered Injury Two. Other class members — those who are interested in watching many teams and would therefore be likely to buy the OMP, even in the BFW (“league-wide fans”) — suffered no price-based injury. In fact, according to defendants, league-wide fans ' derived a price-based benefit from the restraints.
Regardless of which side is ultimately correct about the scope of Injury Two — a question that depends not only on economic analysis, but also on speculation about consumer psychology — Injury One unites the class.
Against this backdrop, there are two ways to understand defendants’ position. First, defendants might be arguing that Injury One is outweighed, on balance, by the procompetitive benefits of the territorial restraints for league-wide fans — i.e., that the absence of- a la carte options, despite constituting an antitrust-injury, is justified by the availability and (comparatively) low price of OMPs. If this is true, it would make the territorial restraints lawful under the Rule of Reason.
One or both of these arguments may be correct, but neither is an argument against class certification. The first is a merits argument. Defendants believe that the complained-of restraints, though anticom-petitive to the extent that they preclude the existence of a la carte channels, are also procompetitive to the extent that they facilitate the existence of a well-priced .OMP. If defendants can convince the trier-of-fact of this point, they will have a strong defense against antitrust liability — a strong argument for why the restraints, satisfy the Rule of Reason and may continue to exist. If this is true, it is true across the class. Indeed, far from creating intra-class conflict, the question of whether the restraints are moré procompetitive than anticompetitive is exactly the question of whether a class-wide antitrust injury exists.
Defendants’ effort to east the balance of economic effects as an issue of adequacy under Rule 23(a), rather than a merits issue, is unavailing. In Freeland v. AT & T,
The second way to parse defendants’ argument is not that the territorial restraints are lawful on the merits, but rather, that even if they are unlawful, “some class members have an interest in preserving the status quo, antitrust violation or no.”
Needless to say, the role of this Court is to apply the antitrust laws, not to rewrite them. It is possible, as defendants suggest, that many baseball and hockey fans would prefer for the complained-of restraints to be deemed lawful rather than unlawful. Indeed, it is even possible that many such fans would have preferred that the instant lawsuit not be brought. But the fundamental point remains. The restraints are either illegal or they are not— and whether they are is a merits question. To properly analyze that question, the preferences of class members — including class members who would prefer for the restraints to remain in place — will certainly be relevant. Those preferences are one consideration for the jury (or, in the case of a(b)(2) class, the Court) as it assesses the restraints’ procompetitive benefits. But if the trier-of-fact decides that the restraints’ procompetitive benefits are insufficient to overcome their anticompeti-tive effects, that will be the end of the matter. An arrangement that unlawfully
2. Enforcing the. Antitrust Laws
Furthermore, even if this case were indistinguishable from others where courts have embraced the winners and losers logic, there is still good reason to reject that logic. Defendants’ argument sweeps much too broadly. If it prevails, all anticompeti-tive' conduct — regardless of the particular market in which it occurs — would be immunized from class-wide scrutiny on the basis that certain members of the class derive benefits from the conduct. For example, consider the argument championed by defendants’ class certification expert— Dr. Janusz Ordover — that territorial restraints generate super-competitive profits for the teams and RSNs, which in turn provides them with the “incentive[ ] to produce live-game content.”
This argument suffers the fatal defect of universal applicability. A .monopolist could always argue that being forced to operate at competitive rather than super-competitive margins — ie., being forced to comply with the antitrust laws — would staunch the creation of capital-intensive goods. Operating competitively diminishes profits; diminished profit generates less, disposable capital; less disposable capital means that fewer projects get funded. The problem with this reasoning is that it applies to all industries, at all times. Because it is in the nature of anticompetitive conduct to afford beneficiaries greater stores of capital, it is also in the nature of anticompeti-tive conduct to produce the sort of “conflicts” that defendants identify here. If such “conflicts” were to preclude class certification, it would become all but impossible to adjudicate antitrust actions on a class-wide basis — méaning, in practice, that it would become all but impossible to adjudicate antitrust actions, period.
This result is unacceptable. Moreover, although the result may be especially clear in antitrust cases, it is by no means unique to that, setting. It is likely to be true in many cases where defendants’ conduct, despite being unlawful, works to the economic benefit of some class members. An analogy to employment law underscores the point. Imagine that workers bring a class action against their employer — Company X — for failure to pay adequate wages. The allegation is very simple.
' Indulging this argument would stand Rule 23 on its head. Instead of serving as an “efficient means of compensating victims” by permitting the redress of common injuries,
This example, while hypothetical, has plenty of - real-world analogues. For instance, the Central District of California recently rejected a nearly identical argument in the context of a fraud suit against an insurance company.
The court flatly rejected this argument. Even if defendant was right that its assessment of (fraudulent) fees was “altering the economic fundamentals of the annuities group-wide” in a way that worked to the benefit of certain class members, that was “irrelevant” to the legal question.
These results are not surprising. In a legal system where most individuals lack either the means or the will (or both) to enforce their rights, class actions serve important deterrence goals. They rein in bad behavior. This function is especially pressing in the context of antitrust claims brought by consumers, as opposed to antitrust claims brought by competitors. The former typically involve two dynamics that frustrate individual adjudication. First, from the consumer’s perspective, antitrust injuries often have wide but slight economic effects, which means that individual’ class members might suffer few tangible damages. This does not mean, however, that antitrust violations generate correspondingly little benefit for the entities that perpetrate them. To the contrary, anticompetitive conduct can be highly lucrative. And it is this asymmetry — that the very same conduct can reap enormous gain for the perpetrators, while simultaneously causing every individual consumer a small amount of harm — that makes class actions such an important enforcement device.
Second, antitrust actions are very expensive to litigate. To make out a plausible antitrust claim — much less to-convince a trier-of-fact that illegal conduct occurred— it' is often necessary to retain an expert whose fees resemble, and might even dwarf, those of counsel.
If this became the default rule, the consequences are not hard to imagine. Fewer antitrust suits would be brought, because would-be plaintiffs (and their attorneys)
3. The Purpose of Rule 23(b)(2)
The final counterpoint to defendants’ winners and losers logic is more specifically tethered to Rule 23(b)(2), and more overtly practical. Given the prospective relief contemplated by Rule 23(b)(2) — as opposed to the retrospective redress contemplated by Rule 23(b)(3) — divergent interests among the class members is a reason to certify the class, not to avoid certification. It is only by allowing an in-junctive action to proceed class-wide that consumers whose interests differ in some respects from those of the named plaintiffs will have an opportunity to steer the course of the litigation. Absent certification, “losing” class members would likely be worse off — they would be at the mercy of individual plaintiffs seeking declaratory and injunctive relief that is likely to have sweeping effects on the market as a whole.
In this respect, injunctive classes are fundamentally different than damages classes. With regard to the latter, Rule 23 provides safeguards to protect against coercion. Specifically, Rule 23(c) erects stringent notice and opt-out requirements that must be satisfied as a condition of certification under Rule (b)(3).
With regard to injunctive classes, by contrast, coercion is harder to avoid. Indeed, in many settings the pursuit of structural remedies is inherently coercive — insofar as the outcome of the litigation often bears on the interests of many unnamed parties, whether or not the suit has been formally designated as a class action. When it comes to certain kinds of prospective relief — relief that aims to change policy, or, as here, to transform the dynamics of an entire market — “[t]here is no realistic sense of [class members] ‘opting out.’”
B. Cohesion and Standing
Putting the winners and losers issue to one side, defendants also argue that plaintiffs cannot satisfy the “cohesion” requirement of Rule 23(b)(2), because certain class members — indeed, even some named plaintiffs — are previous subscribers, but
In other words, defendants argue that even assuming, arguendo, that all class members were injured by the complained-of restraints, it does not follow that all class members will continue to be so injured. The continuity of injury depends on whether “each former subscriber among the absent class members intends to purchase an OMP in the future,” a question that defendants believe “impossible to ascertain ... [using] objective criteria.”
This argument rests on a mistaken view of the injuries alleged in this case. Defendants are correct, of course, that a plaintiff who can only claim past injuries — who faces neither an ongoing injury nor a realistic chance of future injury — lacks standing to seek prospective relief. The problem with defendants’ argument does not lie with this unremarkable proposition. It lies with the implicit premise that past subscribers to OMPs, because they no longer subscribe, are no longer injured. That is false. Short of death, cognitive illness, or a complete loss of interest in baseball and hockey, previous subscribers to OMPs are still “eon-sumer[s] ... in the market in which trade [is] restrained” — here, the market for hockey and baseball broadcasting.
Put simply, if a consumer in the market for baseball and hockey broadcasting discontinues her subscription to an OMP, that decision does not remove her from the market for baseball and hockey broadcasting. Rather, it is precisely as a consumer in the market for baseball and hockey broadcasting that she chooses to discontinue her subscription. After all, one of the choices that consumers make is declining to buy products. There are various reasons that might happen. A product might be too expensive — as David Dillon, one of the named plaintiffs here, concluded of the OMP.
But regardless of what motivates a consumer to decide not to purchase a particular product, the point is that on the basis of that decision' alone, there is no reason to infer — as defendants ask the Court to infer here — that the consumer is not in the market for such goods. Indeed, on the face of it, an explanation like the one offered by Plaintiff Dillon — that he chose not to renew his OMP subscription because it “wasn’t worth the money” — suggests that if the antitrust injury in this case were
Ultimately, defendants’ argument depends on the proposition that discontinuing one’s subscription to an OMP bespeaks a lack of interest in baseball and hockey broadcasting. There is little reason to think so. For support, defendants point to deposition testimony from named plaintiffs (such as Dillon), indicating that such plaintiffs “do not currently subscribe to an OMP [and] do not [] plan to purchase such a package.”
With respect to that question, defendants have offered no reason to think, much less any evidence to show, that previous subscribers are less interested than current subscribers in seeing the restraints lifted. Both groups have the same interest — they want the market for baseball and hockey broadcasting to be as competitive as possible.
The same reasoning also disposes of any concern about Article III. According to defendants, even if previous subscribers qualify as consumers in the market for baseball and hockey broadcasting, they have suffered no injury that is amenable to prospective relief, rendering them constitutionally unqualified to bring a claim— and frustrating class certification.
The Clapper Court echoed this reasoning two terms later, when it held that Amnesty International lacked standing to bring a constitutional challenge to section 702 of the Foreign Intelligence Surveillance Act (“FISA”). According to Amnesty International, because it tends to interact with individuals who are subject to overseas telephonic surveillance (as authorized by FISA), the organization faced “an objectively reasonable likelihood that [its] communications will be acquired ... at some point in the future” — conferring standing on the organization to bring a constitutional claim.
A common principle underlies Dukes and Clapper. It is the same principle that motivated City of Los Angeles v. Lyons
The principle uniting these cases is that, for purposes of Article III, neither a previously-inflicted injury nor a hypothetical future injury is sufficient to confer standing to pursue forward-looking remedies. To enjoy such standing, a plaintiff must show either that she currently is injured, or that a future injury is “certainly impending.”
C. The Necessity of Certification
Having disposed of all affirmative obstacles to certification under (b)(2), the final question the Court must address is whether such certification is necessa'i’y. Under Second Circuit law, there is no need for (b)(2) certification when a defendant is willing to “represent[ ]” that it “ha[s] no intention of reinstating” a challenged policy, even if the policy has only been challenged on an individual basis.
Assuming, arguendo, that this principle generally applies in cases where defendants are private corporations rather than state officials,
y. CONCLUSION
For the reasons set forth above, plaintiffs’ motion is GRANTED in part and DENIED in part. The Clerk of the Court is directed to close this motion, Dkt. No. 266 in 12 Civ. 1817, and Dkt. No. 339 in 12 Civ. 3704.
SO ORDERED.
. See Daubert Opinion.
. Amended Class Action Complaint and Jury Trial Demand ("Complaint”) ¶ 15. Accord Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel ("PL Mem.”), at 5.
. Complaint ¶ 15. Accord PL Mem. at 5. Originally, plaintiffs identified a third class of plaintiffs — those who "purchased a cable package that includes a network that is protected from competition.” Complaint ¶ 15. This class was dismissed from the case, however, in December 2012, when I held that "[p]ermitting any plaintiff who simply purchased cable or satellite programming to sue would create a class of plaintiffs for whom it is merely coincidental that they purchased [baseball and hockey programming] at all,” and accordingly granted defendants’ motion to dismiss as to “plaintiffs who merely subscribe to [a basic cable package], but do not subscribe to an out-of-market package.” Laumann v. National Hockey League, 907 F.Supp.2d 465, 484 (S.D.N.Y.2012). Nevertheless, to say that consumers who purchased only a cable package are no longer in the case is not to say that no remaining plaintiffs have standing to challenge the allegedly elevated price of cable packages that stems from the complained-of restraints. If territorial exclusivity is responsible for raising the prices of cable packages in general — in addition to the other harms that plaintiffs have alleged, which relate to the league-wide bundles, specifically — all of these harms will be remedied by the same injunctive relief, should plaintiffs prevail on the merits. In other words, no independent class is necessary to address the elevated price of cable packages. Rather, the TV Class, by challenging the impact of territorial restraints on league-wide bundles, will simultaneously challenge the elevated cost of cable packages, if any, that stems from those same restraints.
. See PL Mem. at 2, 4.
. See id. at 4 ("Clubs and their RSN partners are prevented from distributing their games outside [HTTs] to prevent consumers from choosing to watch their programming instead of the programming of the protected broadcaster in the. consumer’s territory. These restraints limit the choices that would [otherwise] be available to all class members.”).
. See id. at 4-5
. See id.
. Defendants’ Corrected Joint Memorandum of Law in Opposition to Class Certification ("Def. Mem.”), at 1.
. Id. at 2.
. In addition to these arguments, defendants also argue that plaintiffs’ damages model is not sufficiently related to their theory of liability, making (b)(3) certification inappropriate under Comcast v. Behrend. See — U.S.-, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). See also Roach v. T.L. Cannon Corp., 778 F.3d 401, 407 (2d Cir.2015) ("Comcast held that a model for determining class-wide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class’s asserted theory of injuty.”). Because I conclude that (b)(3) certification is inappropriate on other grounds, the Comcast objection is moot.
.Def. Mem. at 4.
. Reply Memorandum in Support of Plaintiffs' Motion for Class Certification ("Reply Mem.”) at 10.
. To be clear, there is nothing anitcompeti-tive about content exclusivity beyond the inherently anticompetitive nature of the IP rights from which content exclusivity stems. IP rights operate, conceptually and doctrinally, as an exception to the antitrust laws. Content exclusivity falls within that exception.
.See id. at 11 (distinguishing between the maintenance of "control over the distribution of particular content” — i.e., content exclusivity — and the "right to constrain distribution of other broadcasts of that sport,” which, in certain forms, can produce game exclusivity).
. See id. at 10 (“Plaintiffs are not challenging each individual club’s ability to make its games available only to an exclusive producer in its home market, and nothing in [plaintiffs’ view of the BFW] assumes that clubs will cease to maintain an exclusive relationship with a single RSN for each game in its local territory.”).
. In-market Internet distribution is not addressed here. For reasons explained in previous opinions, in the actual world "there is no authorized method for viewing local games on the internet.” Laumann, 907 F.Supp.2d at 475.
. She will also be able to see games that are carried nationally — -as is true of anyone with a basic cable package. Nationwide broadcasts have no bearing on these antitrust' actions.
. Of course, if the Iowa-based Yankees fan has a local cable package, she will be able to watch the Yankees play whenever the opposing teams hails from the HTT of Iowa. (Even then, she will have to watch that team's broadcast, not the YES Network.) The larger point, however, is that out-of-market fans are forced to buy packages if they want consistent access to the games of their preferred teams.
.Both sides appear to agree that this state of affairs, though uncommon, is possible. See, e.g., 3/19/15 Transcript of Proceedings, Dkt. 343, at 550 (where plaintiffs’ counsel explains that in the actual world, a small
. According to plaintiffs, there are economic grounds for hypothesizing that in-market blackouts will subside in the BFW. That-may be so. For present purposes, however, the point is that nothing about plaintiffs’ antitrust challenge requires the disappearance of in-market blackouts, because plaintiffs are not challenging content exclusivity.
.See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir.2008). "In addition to these requirements — which are explicitly codified in Rule 23 — some courts have also added an "implied requirement of ascertainability” to the express requirements of Rule 23(a).” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 42 (2d Cir.2006). Accord 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1764 (3d ed. 2008) (‘‘[T]he requirement that there be a class will not be deemed satisfied unless the class description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual’ is a member.”). Here, however, neither of the proposed classes presents such problems. Both classes are readily and precisely ascertained. Their definitions are tethered directly to a specific, easily-traceable economic decision — i.e., to purchase OMPs.
. See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.2003).
. See PL Mem. at 6 n. 4 ("Defendants have .indicated that they will not contest numerosity, which is indisputably satisfied.”).
. Wal-Mart v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
. Id.
. Central States Southeast and Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d
. Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997).
. Davis v. City of New York, 296 F.R.D. 158, 164 (S.D.N.Y.2013).
. Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006).
. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000).
. In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.2009).
. McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.2008).
. Fed.R.Civ.P. 23(b)(2).
. 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374(2011).
. Id. at 2558.'
. See Newberg on Class Actions § 4:34. See also Barnes v. American Tobacco Co., 161 F.3d 127, 143 (3d Cir.1998) (“While 23(b)(2) class actions have no predominance or superiority requirements, it is well established that the class claims must be cohesive.”); In re MTBE Prods. Liab. Litig., 209 F.R.D. 323, 342-43 (S.D.N.Y.2002).
. Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir.1985) (citing Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973)).
. See Daniels v. City of New York, 199 F.R.D. 513 (S.D.N.Y.2001) (holding that certification was appropriate even when it was unclear whether a class-wide injunction would have substantially different effects than an individual injunction, because, inter alia, defendants continued to "deny that there [was] any [] policy to withdraw”).
. Fed.R.Civ.P. 23(b)(3)(A)-(D).
. Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, - U.S. --, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013) (quoting Am-chem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).
. In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.2006) (citing Amchem, 521 U.S. at 623-24, 117 S.Ct. 2231).
. In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir.2013) (internal citations omitted).
. Brown v. Kelly, 609 F.3d 467, 484 (2d Cir.2010).
. D’Alauro v. GC Servs. L.P., 168 F.R.D. 451, 458 (E.D.N.Y.1996) (quoting Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir.1974)).
. See Port Dock & Stone Corp. v. Oldcastle Northeast Inc., 507 F.3d 117, 123-24 (2d Cir.2007) (explaining that the "danger” of antitrust violations is that they “raise prices and restrict output,” and compiling case law to that effect).
. See Ross v. Bank of America, 524 F.3d 217, 226 (2d Cir.2008) (concluding that reductions in "consumer choice” and the "equality of [ ] services offered” are antitrust injuries); United States v. Visa USA, 344 F.3d 229, 243 (2d Cir.2003) (explaining that restraints that discourage firms from "designing] ... their products more competitively" can give rise to antitrust injury); Laumann, 907 F.Supp.2d at 480 ("Reduced consumer choice ... when [it is] the result of an anticompetitive practice, constitute^] antitrust injury.”).
. See Ross, 524 F.3d at 222-25.
. See Laumann, 907 F.Supp.2d at 480-85. See also Ross, 524 F.3d at 223-25 (distinguishing between "adequately alleging] antitrust injuries in fact,” sufficient to trigger constitutional standing, and satisfying the requirements of antitrust standing, which "demands a much more detailed and focused inquiry into a plaintiff’s [] claims”); KSW Mechanical Serv., Inc. v. Mechanical Contractors Ass’n, No. 11 Civ. 5100, 2012 WL 1027354, at *5 (S.D.N.Y. Mar. 27, 2012) (explaining the difference between constitutional and antitrust standing).
. E.M. v. New York City Dep’t of Ed., 758 F.3d 442, 449 (2d Cir.2014).
. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In addition to the injury-in-fact requirement, Article III standing also requires a party to show (1) that the injury was caused by defendant, and (2) that it can be redressed in court. There is no dispute about these two elements here.
. 431 U.S. 720, 97 S.Gt. 2061, 52 L.Ed.2d 707 (1977).
. For background on these exceptions, see Laumann, 907 F.Supp.2d at 480-83.
. 459 U.S. 519, 539, 103 S;Ct. 897, 74 L.Ed.2d 723 (1983).
. Laumann, 907 F.Supp.2d at 480. In my December 5, 2012 opinion, I explained that consumers who subscribe (or who previously subscribed) to television OMPs — i.e., members of the TV Class — are not direct purchasers of baseball and hockey broadcasts, because they purchase such broadcasts from MVPDs. Nevertheless, I held that members of the TV Class have standing to bring the present challenge, in light of the “co-conspirator” exception to Illinois Brick. Because the MVPDs are named as co-defendants to this suit, it would be perverse to conclude that their position in the market — sitting between the RSNs that produce broadcasts and the consumers who watch them — somehow strips consumers of antitrust standing. The whole point of plaintiffs’ challenge is that multiple actors in the supply chain, including the MVPDs, conspired to restrain trade. Clearly, the “purpose of Illinois Brick was not to prevent the only non-conspirators in a multi-level distribution chain — consumers no less — from bringing a private antitrust suit.” Id. at 482. Accord In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 688 (2d Cir.2009) (“[B]eing forced to pay süpra-competitive prices as a result of the defendants’ anticom-petitive conduct [ ] ... plainly is [an injury] ‘of the type the antitrust laws were intended to prevent.’ ”) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). Accordingly, I held that members of the TV Class satisfied the Illinois Brick requirement for antitrust standing. This determination comports with Second Circuit and Supreme Court precedent; and it is also law of the case. Thus, the only remaining question of antitrust standing — discussed below — is if previous OMP subscribers still qualify as consumers in the market where trade is restrained;
. See Roach, 778 ,F.3d at 405 (“[í]t [is] well-established in [the Second] Circuit that the fact that damages may have to be ascertained on an individual basis is not sufficient to defeat class certification.”) (internal citations omitted).
. Sykes v. Mel S. Harris & Assoc., 780 F.3d 70, 82 (2d Cir.2015) (internal citations omitted). Accord ‘Comcast, 133 S.Ct. at 1433 ("Without presenting [a model], respondents cannot show Rule 23(b)(3) predominance; Questions of individual damage calculations will inevitábly-overwhelm questions common to the class.”).
.See In re Rail Freight Surcharge Antitrust Litig., 725 F.3d 244, 255 (D.C.Cir.2013) (‘‘[Plaintiffs’ expert’s] models are essential to the plaintiffs’ claim [that] they can offer common evidence of class-wide injury. No damages model, no predominance, no class certification.”). At the hearing, plaintiffs’ counsel conceded that if the model was stricken on Daubert grounds, the case would have to proceed exclusively on an injunctive basis — under Rule 23(b)(2). See 3/17/15 Transcript of Proceedings, Dkt. 339, at 4-5 (‘‘THE COURT: If I struck- [the model] based on the Daubert challenge, could you proceed? COUNSEL: Could we proceed in this case? Absolutely, your Honor. THE COURT: Could you proceed as a class in this case? COUNSEL: Absolutely, your Honor, because, remember, we are seeking not only damages but [also] injunctive relief. And our theory of damages is [an overcharge theory]. If we fail to prove that there is an overcharge” — which would be impossible with the model — -"then the result would be that the class members as a whole have not shown any calculable damages. THE COURT:' Then would only have a(b)(2) class? COUNSEL: Well, we would have a(b)(2) class certainly. THE COURT: Without damages?. COUNSEL: Without damages.”).
. Daniel v. American Bd. of Emergency Medicine, 428 F.3d 408, 451 (2d Cir.2005). Accord Associated Gen. Contractors, 459 U.S. at 539, 103 S.Ct. 897 (the question, for standing purposes,,^ whether a given plaintiff was "a consumer [ ]or a competitor in the market in which trade was restrained”).
. Def. Mem. at 43.
. Reply Mem. at 19. See also, e.g., Declaration of Gary B. Bettman, Commissioner of the
.Reply Mem. at 23 (internal citations omitted).
. Here, unlike most class certification disputes, the parties’ papers do not follow the typical element-based analysis of Rule 23. Rather, because defendants’ winners and losers theory reaches multiple components of Rule 23(a) simultaneously, the parties have— understandably — addressed the viability of that theory in general, instead of trying to limit it to particular sub-parts of Rule 23. This Opinion follows suit.
. 350 F.3d 1181 (11th Cir.2003).
. See id. at 1191 (“[Because some] class members appear to benefit from the effects of the conduct alleged to be wrongful by the named plaintiffs because their net economic situation is better off when branded drugs dominate the market [ ] ... certification under these circumstances would be inappropriate.’’).
. See, e.g., Duchardt v. Midland Nat’l Life Ins. Co., 265 F.R.D. 436 (S.D.Iowa 2009) (holding that a challenge to a specific method of calculating insurance claims was not amenable to class-wide adjudication, because certain plan-holders benefitted financially from the method); Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp., 247 F.R.D. 156, 168-69 (C.D.Cal.2007) (declining to certify a class-wide challenge to a medical device company’s allegedly super-competitive prices, on the grounds that "many individual class members may have benefitted from discounts and deals on [defendant’s] products” that were the result of anticompetitive conduct, and therefore "would be unavailable to [class members] in the but-for world”) (emphasis in original); Auto Ventures, Inc. v. Moran, No. 92 Civ. 426, 1997 WL 306895, at *5 (S.D.Fla. Apr. 3, 1997) (holding that class certification was inappropriate in light of the allegation that defendants — a group of car dealerships — had perpetuated their coercive market position "through a rewards and punishment system, by which cooperating [entities] were befriended and rewarded, while resisting [entities] were penalized,” giving rise to a clear divergence of interests among class members). For further examples, see Def. Mem. at 42-34; id. at 43 n. 46.
.See Kohen v. Pacific Invest. Mgmt. Co., 571 F.3d 672, 678 (7th Cir.2009) ("[A] class should not be.certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant[s].”).
. Plaintiffs would draw the distinction (between this case and other cases where defendants successfully invoked- the winners and losers logic) somewhat differently. In plaintiffs' view, the key issue is that in the instant case, “all class members were treated equally in the real world,” whereas in "in every one of [defendants’] cases, [ ] some class members received a direct and concrete benefit from the challenged conduct that others did not.” Reply Mem. at 23-24. In other words, plaintiffs would focus on' the equality (or lack thereof) of class members’ treatment by entities allegedly engaged in an antitrust violation. Here, all class members received the same treatment — paying a uniform subscription fee for the OMP — whereas in defendants’ examples, different class members received disparate treatment. For example, in Allied Orthopedic Appliances, some class members were afforded “discounts and deals” that other class members were not. 247 F.R.D. at 169. And this meant that the identification of disparities within the class was not merely a hypothesis about how, in the BFW, the market might operate — it was a reflection of how, in the actual world, the market did operate.
There are two problems with this formulation — the first is factual, the second, conceptual. First, it is unclear (and seemingly disputed) to what extent all class members here actually receive the same treatment in the actual world. Defendants have repeatedly suggested that different consumers pay different prices for the OMP — a fact that casts doubt on plaintiffs’ claim that here, unlike other winners and losers cases, every class member faces the same treatment from defendants. See, e.g., Declaration of Daniel L. McFadden (Dkt. No. 358), ¶ 38. Second, even if all class members here did receive the same treatment — or effectively the same treatment — from defendants, it is unclear if the “equal treatment” principle can shoulder its analytic burden. In some cases, even if all class members were treated the same way, no injury unites the class. Indeed, Valley Drug Co. v. Geneva Pharmaceuticals — defendants’ prime example — may well be that kind of case. There, the court declined to certify the class on the basis that certain distributors saw no economic downside (and some possibly saw an upside) from defendant’s anticompeti-tive conduct. ■ This was so in spite of the fact that all distributors were treated-the same way. All of them were forced to pay the same (allegedly super-competitive) input costs for brand-name drugs. But there was nevertheless a schism' within the class, because some distributors were able to pass on the super-competitive costs to consumers, or even to hike up the label price further, while other distributors were not. In this sense, the holding in Valley Dnig is difficult to square with the proposition that equal treatment, rather, than unity of injury, is' the wedge separating defendants’- use of the winners and losers logic here from its application in earlier cases.
. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) ("The rule of reason is the accepted standard for testing whether a practice restrains trade in violation of § I [of
. 238 F.R.D. 130 (S.D.N.Y.2006).
. Id. at 141.
. Id.
. Id. In defendants’ opposition papers, they argue that "[i]n Freeland, Judge Cote, denied [ (b)(2) ] certification ... because some proposed class members may have benefitted from the allegedly’anticompetitive bundling of products.” Def. Mem. at 44. This interpretation strains the limits of good faith. In fact, it is crystal clear from Judge Cote's opinion that intra-class conflict had nothing to do with the disposition of the (b)(2) issue. Rather, the problem was that plaintiffs had failed to establish a necessary element of their tying claim — coercion—on a class-wide basis. Because coercion would have to be'proven in an individualized manner, "even if the named plaintiffs succeed on the merits of their claims, only they would be entitled to injunc-tive relief.” Freeland, 238 F.R.D. at 157. This outcome flowed from the absence of proof as to an element of the claim, not from the fact that "some [] class members may have benefitted from the [complained-of conduct].” Def. Mem. at 44.
. Freeland, 238 F.R.D. at 142. Judge Cote’s reasoning also underscores why the Second Circuit’s holding in In re Literary Works in Electronic Databases Copyright Litigation does not control — indeed, does not even bear on— this case. There, the question was whether a class-wide settlement of copyright claims, brought by freelance authors whose works had been reproduced without their permission, was adequately protective of the class as a whole. The central issue concerned copyright holdings whose infringement only gave rise to damages, as a matter of law, insofar as the underlying copyrights were registered with the Copyright Office. Although these subordinate holdings comprised the vast majority of the total claims, they were, by a significant measure, the least valuable holding in the case. After much negotiation, a classwide settlement was formulated, which treated the subordinate holdings as nearly valueless — triggering objections from class members with predominately subordinate holdings. The Second Circuit ultimately agreed with the objectors, determining that “the interests of class members who hold only [subordinate holdings] fundamentally conflict with those of class members who hold [lucrative] claims.” 654 F.3d 242, 254 (2d Cir. 2011). In light of this, the Court was not satisfied that ”[n]amed plaintiffs,” to the extent they held lucrative copyrights, "had [an] incentive to maximize the recovery for [] plaintiffs [with subordinate holdings].” Id. On that basis, the settlement was vacated, and the case was remanded with instructions to delineate subclasses based on category of holding. See id. at 257-58.
In re Literary Works is inapplicable to the instant case. There, unlike here, it was undisputed that every class member’s rights had been violated. The question was how to divide the recovery — and whether the process for doing so safeguarded the interests of the class as a whole. In this sense, In re Literary Works raised an issue distinctive to (b)(3) actions, and in particular, to the settlements of (b)(3) actions — when the named plaintiffs negotiated settlement terms, did they allocate too large a share of damages to themselves? This question has no analogue with respect to (b)(2) classes. In that setting, it is nonsensical to speak of some class members getting a greater or lesser "share” of injunctive or declaratory relief. By its nature, the relief is uniform across the class.
. Reply Mem. at 23.
. Declaration of Dr. Janusz Ordover ("Ord-over Dec!.”), Ex. 3 to Joint App’x, ¶ 32.
. Dr. Ordover’s argument — that the OMP might not exist at all in the BFW — is but one variant of the idea that antitrust violations are in the consumer interest. Another example (also set forth by defendants, and bolstered by Dr. Ordover’s analysis) is that the OMP, if it did exist in the BFW, would include fewer broadcasts, because some RSNs rely on the protection conferred by territorial exclusivity to maintain profitability. If the territorial restraints are lifted, defendants argue that "RSNs for less popular clubs ... would have [ ] difficulty obtaining carriage, both nationally and even on MVPDs within their local market.” Def. Mem. at 26. In that case, out-of-market fans of less popular clubs might find themselves in the doubly-unfortunate situation of being unable to purchase an OMP that includes their favorite team's broadcasts, but also unable to watch their favorite team’s broadcasts on an individual RSN — because the broadcasts would not exist. This is a similar but distinct sense in which, according to defendants, the BFW might create winners and losers. This theory falls prey to the same problem as the theory that OMPs might not exist in the BFW — at bottom, both are arguments about the economic virtues of defendants' conduct. Ultimately, of course, it may be that defendants’ conduct does have economic virtues — but that is a merits issue. Incorporating it into the Rule 23 analysis would hobble the ability of federal courts to effectively enforce the antitrust laws.
. Amchem, 521 Ú.S. at 628, 117S.Ct. 2231.
. See Vaccarino v. Midland Nat'l Life Ins. Co., No. 11 Civ. 5858, 2013 WL 3200500 (C.D.Cal. June 17, 2013).
. Id. at *9.
. Id.
. Id.
. See In re FedEx Ground Package Sys., Inc., Employment Practices Litig., 273 F.R.D. 424, 438 (N.D.Ind.2008) (permitting a class-wide challenge to FedEx's practice of selectively categorizing employees as “contractors,” despite'the fact that some employees categorized as contractors might prefer that categorization due to the "favorable relationship” it allows them to cultivate with the company).
.See Horton v. Goose Creek Ind. School List., 677 F.2d 471, 487-88 (5th Cir.1982) (rejecting the government's argument that because some students might want canine "sniff” searches to be used at a school, whether or not the searches were lawful, the action should not adjudicated on a class-wide basis). The Horton court offered a helpful analogy— along the same lines as the minimum wage
. See Stolz et al. v. United Brotherhood of Carpenters and Joiners, 620 F.Supp. 396, 405 (D.Nev.1985) (holding that plaintiffs could bring a class-wide challenge to the propriety of voting procedures used to enact wage increases, despite the'fact that many class members would favor implementation of the wage increase, regardless of whether the proper procedures were followed).
. See, e.g., In re Currency Conversion Fee Antitrust Litig., 264 F.R.D. 100 (S.D.N.Y.2010) (certifying a nationwide class of credit card users on the theory that card companies conspired to charge a uniform' "currency conversion fee” for transactions outside the United States — the monetary harm of which was in the single digits and for, many consumers). See also Newberg on Class Actions § 4:66 (noting that "class actions are the primary vehicle in modem jurisprudence for the effective enforcement of the antitrust, securities laws, discrimination, and other key bodies of law”).
. See American Express v. Italian Colors, — U.S.-, 133 S.Ct. 2304, 2316, 186 L.Ed.2d 417 (2013) (J. Kagan, dissenting) (explaining that an expert report for a garden variety tying case can easily “cost between several hundred thousand and one million dollars”).
. See id. (“No rational actor would bring a claim worth-tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands.”).
.See Fed.R.Civ.P. 23(c)(2)(b). See also The American Law Institute Principles of the Law of Aggregate Litigation § 3.10 (outlining the notice requirements, codified in Rule 23(c)(2), that must be satisfied as a prerequisite of certification under Rule 23(b)(3)); id. § 3.11 (outlining the procedure for "second opt-out” rights in the event of a(b)(3) settlement).
. Newberg on Class Actions § 4:36.
. Id. § 4:34.
. Id.
. Associated Gen. Contractors, 459 U.S. at 539, 103 S.Ct. 897.
. See Def. Mem. at 44-46.
. For background on the "efficient enforcer” standard, see Laumann, 907 F.Supp.2d at 480-85.
. Def. Mem. at 46.
. Id. at 45.
. It has already been established — in my December 5, 2012 opinion — that previous subscribers to the OMP satisfy the "direct purchaser” requirement of Illinois Brick. See Laumann, 907 F.Supp.2d at 480. See also supra note 54. Defendants do not question that holding here. Instead, they focus exclusively on the “efficient enforcer” issue.
. 94 See Def. Mem. at 46.
. 95 See id.
. Def. Mem. at 46 (emphasis added).
. It is axiomatic that one result of anticom-petitive conduct is that output diminishes ■ within the relevant market.' See, e.g., Business Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988) (explaining that monopolization — and other per se antitrust violations — “always or almost always tend to restrict competition and decrease output”).
. In fact, it is not just previous subscribers ’ and current subscribers that share this interest. Everyone that watches hockey and baseball — all fans- that have some appetite for viewing baseball and hockey broadcasts remotely — are consumers in the market for baseball and hockey broadcasting, with interests adversely affect by the complained-of restraints. In this respect, the class of individuals interested in the outcome of this litigation include a large swath of baseball and hockey fans who have never subscribed to OMPs, but who nevertheless enjoy watching baseball and hockey through currently-available channels and, in the BFW, might consider subscribing to an OMP (if it were cheaper) or might be interested in purchasing a la carte RSNs. If anything, the sheer size of the" population whose interests are at stake in this litigation maltes class-wide adjudication all the more appropriate. For the reasons set forth above, one of the purposes of (b)(2) certification is to expand the number of parties that have an opportunity to steer the course of litigation.
. See Denney, 443 F.3d at 263-64 '(“[N]o class may be certified that contains members lacking Article III standing”).
. See 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
. See — U.S. -, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).
. See 131 S.Ct. at 2560.
. Clapper, 133 S.Ct. at 1143.
. Id. (emphasis in original).
. 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
. See id. at 104-10, 103 S.Ct. 1660.
. Clapper, 133 S.Ct. at 1143. Accord Susan B. Anthony List v. Driehaus-U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014); Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). For an. example of what constitutes an impending injury, see, for example, Deshawn E. v. Safir, 156 F.3d 340, 344-45 (2d Cir.1998) (holding that plaintiffs had standing to seek an injunction against the involuntary coerción of statements by police officers because there was evidence of a department-wide policy in favor of coerced statements in all cases, whereas in Lyons, the City’s policy afforded individual officers discretion in the use of choke-holds); Aguilar v. Department of Homeland Sec., 811 F.Supp.2d 803, 826-27 (S.D.N.Y.2011) (holding that plaintiffs had standing to seek prospective relief from searches by Immigration and Customs Enforcement' ['ICE'] officials, because those officials, having searchéd plaintiffs' property once, threatened to return).
. Daniels v. City of New York, 198 F.R.D. 409, 420 (S.D.N.Y.2001). Accord Davis v. Smith, 607 F.2d 535, 540 (2d Cir.1978) (''[When] the prospective benefits of declaratory and injunctive relief will benefit all members of a proposed class to such an extent that [ ] certification ... would not further the implementation of the judgment, a district court may decline certification.”); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973) (holding that (b)(2) certification would be "largely a formality” when defendant "has made clear that it understands the judgment [as to one claimant] to bind it with respect to all claimants [and that] even before entry of the judgment, [defendant] withdrew the challenged policy ... and stated it did not intend to reinstate the policy”).
. The Second Circuit has indicated that the reasoning of Galvan might be exclusive to civil rights actions, due to the "assum[ption],” in those cases, that it would be "unthinkable” for "public officials, mindful of their responsibilities,” not to "apply [an adverse] determination ... equally to all persons similarly situated.” Berger v. Heckler, 771 F.2d 1556, 1566-67 (2d Cir.1985). Accord Hurley v. Ward, 584 F.2d 609, 611-12 (2d Cir.1978) ("Since it is ordinarily assumed that state officials will abide by the court’s judgment, where the State has admitted the identity of issues as to all potential class litigants class certification is indeed unnecessary.”). Because it is unclear from these precedents how widely Galvan applies, I assume for present purposes that it applies here.
. Cutler v. Perales, 128 F.R.D. 39, 46-47 (S.D.N.Y.1989) (expounding on the importance of a defendant's "express [] commitment to apply the judgment of the court in the single action to all similarly situated persons,” and noting that in Galvan, "the defendant had withdrawn the challenged policy prior to class certification”) (emphasis added).
. Dajour B. ex rel. L.S. v. City of New York, No. 00 Civ. 2044, 2001 WL 1173504, at *10 (S.D.N.Y. Oct. 3, 2001).
. Moreover, even if defendants did explicitly represent that the territorial restraints would be lifted across the entire market in the event that plaintiffs prevail, this would still . leave unaddressed the interests of absent class members who potentially stand to “lose” in the BFW — and who might, on that basis, prefer to exercise some voice in the litigation. Because (b)(2) certification “helps [] absent parties,” concern for unnamed class members is an independent reason for certification. Newberg on Class Actions § 4:34 (emphasis in original). Even if defendants were — hypothetically — to assure the Court that' certification is unnecessaty to secure class-wide relief, it would still be necessary to ensure optimal representation.