Willkie Obtains Dismissal for Major Retailer of Higher Education Course Materials in Antitrust Class Actions in SDNY

June 16, 2021

The case, In re Inclusive Access Course Materials Antitrust Litigation MDL, included numerous consolidated class actions asserting antitrust claims against Follett Higher Education Group and other college course materials publishers.

On June 14, Willkie achieved a significant victory for its client Follett Higher Education Group in winning motions to dismiss filed in consolidated, putative antitrust class actions. Follett, a leading provider of educational technology, services and print and digital content, is higher education’s largest campus retailer and operates nearly 1,200 local campus stores and more than 1,600 virtual stores across the U.S.

The case, In re Inclusive Access Course Materials Antitrust Litigation MDL, included numerous consolidated class actions asserting antitrust claims against Follett Higher Education Group and other college course materials publishers. The suit originally involved 15 cases filed in multiple federal courts, of which Follett was a named defendant in 12 and an alleged co-conspirator in three. After Willkie successfully argued for the U.S. Judicial Panel on Multidistrict Litigation to centralize the claims, the matters were transferred to the SDNY. Two of the cases in which Follett was a named defendant were then voluntarily dismissed. A total of 13 total cases are covered by the recent motions to dismiss.

In early 2020, two sets of plaintiffs—(1) independent, off-campus, and online retailers and (2) students—brought numerous, putative antitrust class actions against Follett, major higher education course materials publishers, and another major on-campus retailer in various district courts across the country. The plaintiffs alleged that Follett and the other defendants engaged in anticompetitive conduct, in violation of federal and state antitrust laws, by offering course materials through “Inclusive Access,” an innovative subscription and distribution service for higher education course materials.

In spring and summer of 2020, Willkie led the defendants’ efforts in briefing a Section 1407 motion, seeking consolidation of the various, related actions in a single district court. Partner Craig C. Martin successfully argued on behalf of all defendants for the U.S. Judicial Panel on Multidistrict Litigation to centralize the claims and over plaintiffs’ objections, the JPML granted the Section 1407 motion, transferring all of the cases to Judge Denise Cote of the U.S. District Court for the Southern District of New York.

On June 14, Judge Cote agreed with Follett’s and defendants’ arguments that both sets of plaintiffs failed to state a claim under federal and state antitrust laws, and under a theory of unjust enrichment, and granted all of defendants’ motions to dismiss the retailers’ and students’ second amended class action complaints in this matter.

The Willkie litigation team representing Follett include partners Craig C. Martin, Matt. D. Basil, and Matthew Freimuth; and associates Skyler Silvertrust and Maria Liu.