The Franchise Memorandum

A federal court in Illinois denied reconsideration of its decision to exclude plaintiff’s expert testimony in connection with a motion seeking class certification. Conrad v. Jimmy John’s Franchise, LLC, 2021 WL 1736887 (S.D. Ill. May 3, 2021). Employees and former employees of franchised Jimmy John’s restaurants alleged that anti-poaching provisions formerly contained in many franchise agreements constituted an unlawful conspiracy in restraint of trade in violation of Section 1 of the Sherman Antitrust Act. After extensive discovery, plaintiff filed for class certification and both parties submitted expert testimony with respect to whether damages in the form of allegedly suppressed wages could be proven on a class-wide basis. Both sides sought to exclude the opposing side’s expert testimony, and in a decision summarized in Issue 263 of The Franchise Memorandum, the court excluded only the testimony of plaintiff’s expert. Plaintiff then moved for reconsideration, which the court denied.

Plaintiff failed to meet the high standard for reconsideration. Despite plaintiff’s contentions otherwise, the court found that it did not misapprehend plaintiff’s expert’s report, that new explanations and arguments proffered by plaintiff’s expert in a supplemental report were not based on newly discovered evidence, and that interests in finality were promoted by affirming the prior decision. The court therefore affirmed the exclusion of the testimony of plaintiff’s expert based on his failure to adopt a reliable method for establishing that purported damages were susceptible to proof on a class-wide basis.