Partial Cert. Granted in Egg Donor Price-Fixing Class Action

Last week, the plaintiffs’ motion to certify their proposed Class of human egg donors was partially granted by a California federal judge in the class action lawsuit accusing the American Society of Reproductive Medicine of price-fixing when they agreed to cap compensation for egg donors.

In 2011, the lead plaintiffs, women who had donated their eggs at clinics who had agreed to price caps, filed the class action lawsuit in California federal court. In it, they accused the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) of entering into a price-fixing scheme that violated California’s antitrust laws when the organizations set compensation caps on egg donations in guidance in 2000. ASRM and SART issue guidelines that certified clinics agree to follow.

The plaintiffs alleged that the $5,000 and $10,000 limits regarding appropriate compensation issued by ASRM and SART constituted an unlawful horizontal price-fixing agreement and that these resulted in artificially low levels of compensation for egg donors. In their antitrust class action lawsuit, they asked the court for treble damages, costs, and attorneys’ fees, as well as an injunction barring further use of the appropriate price guidelines by ASRM and SART.

The plaintiffs also sought to represent a Class including “[a]ll women who sold Donor Services for the purpose of supplying human eggs to be used for assisted fertility and reproductive purposes within the United States and its territories at any time during the time period from April 12, 2007 to the present to or through any clinic that was, at the time of the donation, a member of [SART] and thereby agreed to follow the Maximum Price Rules, as set forth by SART and [ASRM]; and/or any AR Egg Agency that was, at the time of the donation, agreeing to follow the Maximum Price Rules.”

In an order issued last week, U.S. District Judge Joseph C. Spero granted the plaintiffs’ motion, but limited certification to Class Members who donated eggs from April 2007 at any clinic that was, at the time of donation, a member of SART or followed price rules set by the society and the ASRM.

The judge ruled that issuing an injunction on price capping or allowing the Class to seek damages at this time was not appropriate because the Class Members can only argue that the ASRM and SART violated the Sherman Act. However, the judge also wrote “the Court holds that in general, a plaintiff need not show that each purported class member was damaged in order to certify a class,” when declining to certify the Class for damages.

Judge Spero rejected arguments made by ASRM and SART that contended the Class could not be certified because the plaintiffs had not demonstrated any injury writing, “failure to demonstrate the ability to prove injury-in-fact through common evidence does not bar certification to determine whether a violation occurred,” in his order. “The court is not persuaded that antitrust cases warrant different treatment from any other case with respect to this issue,” he concluded.

The judge explained that the class would need to establish that ASRM and SART violated the Sherman laws before they could seek damages. Additionally, because the lead plaintiffs indicated they would not donate eggs again, they could not represent a class of future donors.

The lead plaintiffs, Lindsay Kamakahi and Justine Levy, are represented by Rosemary M. Rivas, Douglas G. Thompson and Michael G. McLellan of Finkelstein Thompson LLP and Bryan Clobes, Nyran Rose Rasche and Ellen Meriwether of Cafferty Clobes Meriwether & Sprengel LLP.

The Egg Donor Price-Fixing Class Action Lawsuit is Kamakahi v. American Society for Reproductive Medicine, et al., Case No. 3:11-cv-01781, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 29, 2016, both parties agreed to a proposed class action lawsuit settlement that would remove the wording that restricts financial award given to egg donors. In addition, the ASRM agreed not to recommend any specific dollar amount regarding donor compensation in the future.

UPDATE 2, July 26, 2016: Egg Donor Price-Fixing settlement details are available here, or visit http://www.eggdonorclassaction.com/ for information.