Last Week in Antitrust Litigation (#002)

Week of March 24, 2025

Top Takeaways

1. NCAA Must Change Course on NIL Rules: The court stopped the NCAA from enforcing rules that limited student-athlete compensation in a consent judgment, with broader implications for compliance in evolving labor markets.

2. New Lawsuit Highlights Risks in Drug Pricing Deals: National retailers are suing over an alleged deal to delay generic competition—raising red flags for companies negotiating exclusivity or settlement terms.

3. Health Insurers and Tech Vendor Accused of Fixing Prices: A new class action alleges major insurers colluded via a third-party repricer to hold down out-of-network payments—underscoring litigation risks around data sharing and pricing algorithms.

   
   

New Cases Filed

Walgreen Co. v. Takeda Pharm. Co. (N.D. Cal. Mar. 25, 2025): Walgreen, Kroger, Albertsons, and H-E-B filed suit against Takeda and TWi Pharmaceuticals alleging a conspiracy to restrain trade and monopolize the market for the drug Dexilant and its AB-rated generic equivalents in violation of the Sherman Act. The complaint alleges that Takeda and Twi entered into a “reverse payment agreement” whereby Takeda paid TWi $9.5 million and granted it a temporary exclusive license to sell an authorized generic in exchange for delaying generic entry until 2022, well after Takeda’s relevant patent expired in 2020. Plaintiffs contend that this agreement unlawfully prolonged Takeda’s monopoly and enabled TWi to charge supracompetitive prices during its period of exclusive generic sales, causing overcharges to direct purchasers. Plaintiffs seek treble damages and attorneys’ fees.

Empower Clinic Servs. v. LegitScript LLC (D. Ore. Mar. 26, 2025): Empower Clinic  filed suit against LegitScript alleging violations of Sections 1 and 2 of the Sherman Act and related state antitrust laws, claiming that LegitScript orchestrated an unlawful group boycott and tying arrangement to exclude Empower from several healthcare-related product markets. Empower alleges that LegitScript coerced its customers to cease doing business with Empower by enforcing a biased “Affiliates” rule, denied Empower’s own certification applications based on pretextual standards while certifying competitors with more serious regulatory issues, and disparaged Empower in customer communications. The complaint contends that this conduct has reduced output and raised prices in the compounded drug market by blocking access to lower-cost alternatives from Empower, thus harming competition and consumer access during a national drug shortage. Empower seeks treble damages, injunctive relief against the enforcement of LegitScript’s exclusionary policies, several declarations that LegitScript engaged in illegal conduct, and attorneys’ fees and costs.

Homes With Automation Inc. v. Builder’s FirstSource, Inc. (D. Idaho Mar. 27, 2025): Homes With Automation Inc. (“HWA”) filed suit against Builders FirstSource, Inc. (“BFS”) asserting a Section 2 claim alleging monopolization of the U.S. market for the supply of building products and the sub-market for building trusses and state law claims. HWA alleges that BFS extended a loan to House of Design LLC (“HOD”), a small truss automation manufacturer, knowing HOD would default, then used that default to seize HOD’s assets—including proprietary automation technology—and wrongfully retained equipment HWA had purchased, in order to eliminate competition and expand its monopoly. The complaint asserts that BFS’s conduct harmed competition by excluding rivals, raising prices, and depriving the market of innovative automation technology necessary to compete in truss production. HWA seeks treble damages, injunctive relief, and attorneys’ fees.

Pac. Inpatient Med. Grp. v. Zelis Healthcare, LLC (D. Mass. Mar. 28, 2025):  Pacific Inpatient Medical Group filed a putative class action against Zelis Healthcare, three affiliated Zelis entities, and four major health insurers (Aetna, Cigna, Elevance, and Humana), alleging a per se unlawful conspiracy to suppress payments for out-of-network (“OON”) healthcare services in violation of Section 1 of the Sherman Act. According to the complaint, defendants entered into repricing agreements that facilitated the exchange of confidential and competitively sensitive information and delegated pricing authority to Zelis, which used proprietary algorithms and data from over 770 insurers to generate artificially low payment amounts for OON services. Plaintiff alleges this horizontal agreement eliminated independent pricing decisions and fixed OON reimbursement rates, thereby foreclosing competitive alternatives and harming providers and competition in the national market for OON healthcare services purchased by commercial payers. Plaintiff seeks class certification, treble damages, injunctive relief barring continued participation in the alleged conspiracy, and recovery of attorneys’ fees and costs.

The follow-on cases that were filed are:

• Weill Cornell Med. v. Blue Cross Blue Shield Ass’n (S.D.N.Y. Mar. 26, 2025) (alleging market allocation and price-fixing in health insurance industry like in AmeriTeam Servs. v. Blue Cross & Blue Shield of Ala. (N.D. Ill. Mar. 4, 2025))

• Mount Nittany Health Sys. v. Blue Cross Blue Shield Ass’n  (M.D. Pa. Mar. 27, 2025) (same)

• N. Ariz. Pharmacy v. GoodRx, Inc. (D. Ariz. Mar. 28, 2025) (alleging GoodRx and PBMs engaged in price-fixing agreement to share sensitive pricing information like in Keaveny Drug v. GoodRx (C.D. Cal. Oct. 30, 2024))

  
  

Dispositive Orders and Verdicts

Dai v. SAS Inst. Inc. (N.D. Cal. Mar. 21, 2025):  In this antitrust case asserting a hub-and-spoke conspiracy under Section 1 of the Sherman Act, the court granted SAS Institute’s motion to dismiss. SAS sought dismissal on the grounds that: (a) the complaint failed to allege its participation in an unlawful agreement, and (b) its role as a corporate parent of IDeaS did not support liability. The court found that (a) plaintiffs alleged only that SAS provided analytics software used by IDeaS and failed to plead facts suggesting SAS had any agreement or ongoing relationship with the Hotel Defendants, and (b) plaintiffs’ bare assertion that IDeaS is a subsidiary of SAS did not justify piercing the corporate veil absent specific allegations supporting parent liability.

State of Tennessee v. NCAA (E.D. Tenn. Mar. 21, 2025): In this action under Section 1 of the Sherman Act, several states alleged that the NCAA’s “NIL Recruiting Ban” unlawfully restrained competition for student-athletes’ name, image, and likeness rights (“NIL”), and the court entered a consent judgment and permanent injunction in favor of plaintiffs. The judgment bars the NCAA and affiliated entities from enforcing NIL restrictions on transfer athletes, retaliating against plaintiffs, or adopting substitute policies that circumvent the judgment. The NCAA must also publish proposed NIL-related rule changes for five years and confer in good faith with plaintiffs over potential violations. The judgment preserves the NCAA’s ability to adopt reasonable NIL rules unrelated to athlete compensation and does not affect other NCAA bylaws outside the challenged conduct.

MiCamp Solutions, LLC v. Visa Inc. (N.D. Cal. Mar. 24, 2025): In this case alleging claims under, among others, Section 2 of the Sherman Act and various state antitrust laws, the court granted Visa’s motion to dismiss without prejudice. Visa moved to dismiss the antitrust claims on grounds that MiCamp: (a) lacked antitrust standing, (b) failed to plead the elements of its Sherman Act claims, and (c) failed to plausibly allege state antitrust violations. The court held that (a) MiCamp lacked antitrust standing under the indirect purchaser rule of Illinois Brick, as its alleged injuries stemmed from intermediary relationships, (b) it therefore did not reach the merits of the Sherman Act claims, (c) the state antitrust claims were conclusory and unsupported.

Brown v. JBS USA Food Co. (D. Colo. Mar. 26, 2025): In this class action case alleging Section 1 of the Sherman Act claims against multiple meat processors for suppressing employee wages at meat-processing plants through information exchanges, the court partially granted and partially denied motions to dismiss without prejudice filed by defendants Greater Omaha Packing Co. and Indiana Packers Corporation. These defendants moved to dismiss on grounds that: (a) the claims were barred by the statute of limitations, (b) plaintiffs failed to plausibly allege their participation in a conspiracy to fix and depress wages, and (c) plaintiffs failed to plausibly allege anticompetitive effects from the alleged conduct. The court found that (a) the statute of limitations defense raised factual issues unsuitable for resolution on a motion to dismiss, (b) plaintiffs plausibly alleged defendants' participation in the BIWI/PIWI conspiracy through their exchange of sensitive compensation data including future wage increases, but failed to plausibly allege defendants' participation in a separate WMS conspiracy since they were not alleged to have joined the Red Meat Survey Group, and (c) plaintiffs sufficiently alleged anticompetitive effects for their rule of reason claim.

Mass. Laborers’ Health & Welfare Fund v. Boehringer Ingelheim Pharms., Inc. (D. Mass. Mar. 27, 2025):  In this putative class action alleging claims under, among others, Section 2 of the Sherman Act and various state antitrust laws, the court granted in part and denied in part Boehringer’s motion to dismiss. Boehringer sought dismissal of the antitrust claims on the following grounds: (a) failure to plausibly allege causation between Boehringer’s Orange Book patent listings and antitrust injury, (b) failure to allege that Boehringer engaged in sham litigation, and (c) failure to sufficiently plead the state law antitrust claims. The court held that (a) the complaint plausibly alleged that Boehringer’s Orange Book listings materially contributed to delayed generic entry, thus satisfying antitrust causation at the pleading stage, (b) the sham litigation claim failed because Boehringer’s suits were not objectively baseless given the ambiguity in Hatch-Waxman listing requirements and favorable settlement outcomes, and (c) state law claims survived in part, but were dismissed where the plaintiff lacked standing (e.g., under Illinois and Utah statutes) and where the plaintiff failed to allege intrastate conduct (i.e., under Massachusetts and Mississippi statutes).

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If you have any antirust questions or would like more information about any of these matters, please contact one of the following authors:

Christian Lorenz Zach Martin  christian@kressinpowers.com zach@kressinpowers.com

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