USA – NEW YORK Trends and Developments Contributed by: Philip Iovieno, Kristen J. McAhren and Mark Singer, Cadwalader, Wickersham & Taft LLP
the United States Supreme Court declined to hear an appeal brought by two London-based metals trading banks that had been subject to conspiracy jurisdiction in the 2nd Circuit, leaving the split unresolved. (See BASF Metals Ltd. et al v KPFF Investment, Inc., U.S. Supreme Court Case No. 23-232 (2024) .) As in BASF, it is not unusual for the United States Supreme Court to decline to resolve differences among the circuits in their interpretation or approach to adjudication under the antitrust laws. Compared to other areas of the law, there is little guidance from the Supreme Court in the area of antitrust law overall. It is, therefore, especially important to investigate and understand a circuit’s approach and decisions in anti - trust law when selecting it as a venue for litigation or in a contract’s forum selection or choice of law clause. The expanding influence of the 2nd Circuit in multi-district litigation The 2nd Circuit’s reach extends beyond disputes aris - ing within its jurisdictional boundaries by means of its large role in resolving multi-district litigation (MDL) involving the Sherman Act. It is common that numerous plaintiffs file related litiga - tion under the Sherman Act against the same or simi - lar defendants in multiple courts in different parts of the United States. When this happens, the US federal court system provides a mechanism to consolidate the related cases into a single multi-district litigation court for pretrial proceedings. (See 28 USC, Sec - tion 1407.) Pretrial proceedings involve all aspects of the case except trial, including motions to dismiss, discovery, summary judgment, questions of expert admissibility, and pretrial settlement. At present, there are 34 MDLs involving the Sherman Act pending in the US federal courts. A single MDL may have dozens or even hundreds of separately filed actions. These actions include class-actions and pri - vate litigations brought by customers, consumers, and competitors. The only requirement for consolidation is that the litigations involve “one or more common questions of fact.” (28 USC, Section 1407 (a).) Because of their convenient geographic location and expertise in handling large, complex proceedings, the
district courts of the 2nd Circuit are consistently a top choice for MDLs of all types, including antitrust MDLs. As of 1 July 2025, the courts in New York had more antitrust MDLs than any other jurisdiction in the country. Its current MDL roster includes allegations of international conspiracy regarding LIBOR-based financial instruments, interest rate swaps, and con - crete and cement additives and single-firm monopoly violations regarding Google’s digital advertising prac - tices and Keurig Green-Mountain’s single-serve coffee pods. For its part, the Eastern District of New York has for over a decade managed an MDL involving allega - tions of conspiracy and monopolisation in the area of credit card interchange fees and merchant discounts brought against some of the world’s largest banks. The selection of a court to oversee an MDL is at the discretion of the judicial panel convened for this pur - pose. It is not necessary that the chosen MDL court has independent jurisdiction or venue over the litiga - tions transferred to it. Significantly, where there are dif - ferences in interpretation of the federal law, the MDL court will apply its own interpretations rather than that of the court where the litigation was actually filed. In this way, MDL is a means by which the decisional law of a circuit may be applied to numerous litigations to which it otherwise would not apply. The MDL procedures mean that New York will apply its own interpretations to the antitrust laws, even if it splits with interpretations that would otherwise govern the litigations sent to it. For example, the LIBOR-based Financial Instruments Antitrust Litiga - tion involves over 120 separate litigations originally filed in numerous courts. Once before the New York court, these and other cases became subject to a new decision by the 2nd Circuit allowing plaintiffs to litigate under a theory called “umbrella” standing. Umbrella standing enables a litigant who purchased products from non-conspirators to recover from defendants for market-wide overcharges resulting from defendants’ price fixing. Such umbrella standing is not accepted by all circuits and would not necessarily apply if the MDL were located elsewhere or if there were no MDL at all. Of note, the 2nd Circuit district courts are managing half of all MDLs where the predominant claim is for
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