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Duke and UNC: No-Poach Case Update

Last month, we reported on a partial settlement in an antitrust case alleging that entities within the Duke and the University of North Carolina systems agreed not to hire each other’s medical personnel unless the lateral hire involved a promotion.  The Court has now granted in part the plaintiff’s motion to certify a class.

The Court certified a class of all individuals who were faculty members with an academic appointment at the Duke or UNC Schools of Medicine from January 1, 2012 through present.  It found that there are common questions of fact as to whether there was an antitrust violation and, if so, the amount of damages that are appropriate.  The Court also found that these issues can be addressed through common proof, and that common issues predominate individual ones.

However, the Court declined to certify a class of non-faculty physicians, nurses, and other skilled medical staff, finding that the evidence of an antitrust conspiracy affecting non-faculty is substantially weaker and that the inclusion of non-faculty in the class would cause significant confusion.

Although the plaintiff was unsuccessful in certifying the class to include both faculty and non-faculty, the approved class is still sizable, comprising approximately 5,469 faculty members.  The size of the class—as well as the availability of treble damages for antitrust violations—could subject Duke, the remaining defendant, to considerable liability should it not prevail on the merits. 

We’ll continue to monitor this case.