In In re Outpatient Medical Center Employee Antitrust Litigation, 2026 WL 1678954,the Northern District of Illinois recently refused to certify a proposed class of healthcare employees who alleged that their employers entered into a “no-poach agreement” that prohibited them from recruiting each other’s senior-level personnel and thereby suppressed compensation for all employees with similar qualifications. After excluding the plaintiffs’ expert’s statistical analysis of employee compensation under Rule 702, the Court determined that plaintiffs’ remaining non-statistical evidence did not show common proof of classwide antitrust impact.
According to plaintiffs, the defendant-employers’ alleged no-poach agreement harmed all senior-level employees in two different ways. First, plaintiffs argued the alleged agreement directly harmed the employees who otherwise would have been recruited by another employer-defendant. But-for the alleged agreement, those “recruited” employees would have received higher compensation either by accepting a higher-paying job offer, or by leveraging such an offer in pay negotiations with their current employer. Second, plaintiffs claimed that even employees who would not have been actively recruited by another defendant were harmed by the alleged no-poach agreement. Here, plaintiffs’ theory was that each employer used a “structured” or “equitable” compensation system that linked pay across similar jobs such that suppressed compensation for “recruited” employees would spill over to lower pay for “unrecruited” employees.
The Court found plaintiffs’ non-statistical evidence failed to show common injury for either group of employees. As to the “recruited” employees, the Court explained that proposed class members worked in distinct labor markets—holding different jobs in different geographic locations and potentially open to recruitment by many different employers across multiple industries, not just the healthcare defendants. Determining whether the alleged agreement suppressed compensation for “recruited” employees thus required individualized inquiries into each employee’s professional qualifications and employment options beyond just the three defendants in the case.
As to the “unrecruited” employees, plaintiffs’ non-statistical evidence also was deficient. After closely scrutinizing the parties’ documentary and testimonial evidence, the Court found under a preponderance of the evidence standard that plaintiffs had failed to show that the employer-defendants used rigidly “structured” employee compensation systems. Instead, there was substantial evidence that compensation levels varied according to a host of individualized factors—particularly employee performance—such that suppressed pay for some employees might not spill over to reduce compensation for others. Accordingly, the Court determined that the plaintiffs had not met their burden to show that common proof of injury predominated among the “unrecruited” employees either.
This decision illustrates the pitfalls of reliance on contestable documentary evidence and fact-witness testimony to demonstrate injury in antitrust class actions. Defendants who succeed in excluding expert statistical analyses under Rule 702 will have a far greater chance of showing that individualized inquiries into injury predominate over common questions and thus far better odds of defeating certification of a Rule 23(b)(3) damages class.