Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Class certification denied in outpatient clinic employee wage suppression case for lack of predominance, (Jun 15, 2026)

By Justin Marcus Smith, J.D.

The plaintiff employees did not need to show market power or market definition to establish antitrust impact in a per se case, but Seventh Circuit case law also instructed that market examination might be helpful in assessing R. 23(b)(3) predominance.

A proposed class of outpatient clinic employees was so diverse that any evaluation of wage suppression called for individualized assessments to determine if they suffered wage suppression due to a no-poach agreement among just three companies, found the federal district court in Chicago, in denying the plaintiffs’ motion for class certification. The plaintiffs did not show that common questions would predominate in accord with R. 23(b). An analysis of the employee mix showed too many differences among them to satisfy the predominance requirement. After a similarly painstaking analysis, the court also granted in part the defendants’ Daubert motion, but it wholly denied the plaintiffs’ Daubert motion (In re Outpatient Medical Center Employee Antitrust Litigation, No. 1:21-cv-00305 (N.D. Ill. Jun. 10, 2026)).

Background. In a class action, two former medical center employees asserted that a group of medical centers violated Section 1 of the Sherman Act by agreeing not to solicit or hire each other’s senior employees. The medical centers were Surgical Care Affiliates LLC and SCAI Holdings LLC (together SCA, the plaintiffs’ former employers), DaVita Inc., United Surgical Partners International, Inc., and United Surgical Partners Partners Holding Company. The alleged conspiracy supposedly reduced and limited the compensation and mobility of medical center employees.

The court had already tackled thorny discovery and admissibility disputes over the course of the litigation. The court previously held the employees were not entitled to an order finding that SCA had waived privilege over the corporate documents of its former chief talent officer (CTO) produced in discovery. The court also previously held that some portions of expert rebuttal opinion simply rebutted conflicting opinion, while others improperly amounted to new opinions (see Antitrust Law Daily, Oct. 31, 2025).

At length, the plaintiff employees moved for certification. In connection with the certification motion, both parties sought to exclude their opponents’ expert witnesses. The motion filings ran to hundreds of pages, and each party submitted six expert reports. Including exhibits, the entire record ran to thousands of pages. In light of the voluminous submissions, the court said a Daubert hearing was unnecessary, but it heard oral argument on the class certification motion.

Class certification denied. The plaintiffs did not succeed in certifying a class of employees, defined as those who worked at the director-level and above. The defendants did not challenge R. 23(a) requirements, and the court found the plaintiffs met their burden on R. 23(a), but R. 23(b) was an obstacle.

More specifically, the plaintiffs did not have viable method of showing classwide injury with common proof such that injury would predominate over individual issues. In the context of the Daubert motions, the court found the regression analysis inadmissible to show wage suppression because it was not a reliable method for proving impact. The plaintiffs sought to show wage suppression for senior-level employees simply because three companies had agreements not to compete, but the court found the plaintiffs’ method fell short because the employees were too diverse. They had different titles and skills, different specialties, different employer opportunities, and were hired in different geographic regions. The plaintiffs would need individualized proof to show impact on individual class members.

Other methods of proving wage suppression through record evidence, economic theory, and expert opinions were likewise insufficient to show predominance given the diversity of the proposed class members in their skills, jobs, titles, and geographic locations. The court also found the record evidence did not support the plaintiffs’ theory about the defendants’ compensation structures.

Defendants’ Daubert motion. The plaintiffs’ proposed an expert witness who conducted a multivariate regression analysis to show wage suppression, but the court found the regression models did not reliably measure wage suppression during the class period. Empirical analysis derived therefrom was also not reliable to prove common impact or to estimate damages.

Two of the plaintiffs’ experts provided an opinion that the defendants have market power. The defendants moved to exclude on the basis that the two experts improperly weighed evidence and made credibility determinations. The plaintiffs were correct that they did not need to establish market power to succeed on their per se claims, but the court held the two experts could not opine on the ultimate issue of the existence of a conspiracy, nor could they narrate the evidence and tell the jury what to conclude about factual issues.

To the extent the two experts testified to opinions based on factual assumptions about the nature of the alleged agreements, they were permitted to identify those factual assumptions. However, they could not testify about their own conclusions from the underlying facts, like the timeframe of any conspiracy, or the existence of an agreement. To the extent the experts phrased certain assumptions in their reports or simply explained their review of the evidence, they were not engaging in fact finding.

One of these two plaintiffs’ experts offered opinions that the defendants had incentives to collude, but the expert lacked proper qualifications and did not use reliable methods. Although this expert knew about compensation and human resources management, he was not qualified to opine on economic matters, like incentives to collude. He said he did not consider himself an economist, his expertise did not include antitrust economics, and his report did not articulate any method for his opinions about collusive incentives to reduce employee turnover and suppress labor costs.

This expert’s opinions about no-poach agreements and competitively sensitive information exchanges, in connection with wage suppression, were mostly speculative and thus unreliable. His opinions about classwide effects were inadmissible for lack of a reliable methodology. The expert could opine that the defendants had structured compensation systems, but he could not opine that they would tend to lead to classwide impact.

In certain instances, the court had already struck sections of this expert’s report that the defendants then argued, in addition, were impermissible state-of-mind opinions, but the court did not find them improper on that basis. These sections were background observations from the evidence that supported the opinions. None went to the ultimate issues.

This expert’s opinion that the defendants maintained structured compensation systems that would cause widespread impact was admissible. The expert offered two statistical analyses, and the defendants only raised questions about persuasiveness, not admissibility.

Plaintiffs’ Daubert motion. The court characterized the plaintiffs’ Daubert motion as full of rhetoric, conclusory statements, and undeveloped arguments that did not grapple with Defendant’s experts’ actual qualifications or opinions.

First, the court found them the defendants’ experts were all qualified. Their opinions fell within their expertise as economists. The fact that they testified in many other prior antitrust cases did not undermine their qualifications, it reinforced them.

Each opined that the defendants lacked the ability to suppress class pay due to the existence of other labor market competitors, and the plaintiffs questioned reliability here, but the court found the methods were reliable. The court also disagreed with the contention that some portions of their opinions about harm were speculative, contradicted the literature, and were not supported by any reliable empirical test. The court also held these defense experts did not have to conduct their own studies for the sole purpose of the litigation. They could rely on the studies of others. The court did not find any of the opinions of the defense experts should be excluded as unreliable on the grounds the plaintiffs raised.

Third-party structured data about job histories and job movements did not necessarily make for unreliable expert opinion, and in this case, opinions based on such data were admissible. There was an effort to verify the data, and it appeared that other economists or academics had relied on it. A plaintiffs’ expert even cited to other data sets from the same third party.

However, some criticisms about the third-party data “well taken” to the extent that one of the experts had access to the underlying resumes or were involved in the data collection process. The experts’ familiarity with the data was limited. Referenced academic sources that used the data were not peer-reviewed, and there were other flaws. The court said it would evaluate the evidence in light of these concerns and give it appropriate weight. There was no reason to exclude opinions based on the defendants’ own pay data.

The Case is No. 1:21-cv-00305.

Judge: Harjani, S.

Attorneys: Cadio Zirpoli (Joseph Saveri Law Firm, LLP) for Rhonda Roe. David Haskell Seidel (Saveri Law Firm, LLP) for Allen Spradling. Amy Beth Manning (McGuireWoods LLP) for Surgical Care Affiliates, LLC. Brian Joseph Smith (Wilson Sonsini Goodrich & Rosati) for Andrew Hayek.

Companies: Surgical Care Affiliates, LLC

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