Last Week in Antitrust Litigation (#004)
- Kressin Powers
- Apr 13, 2025
- 7 min read
Week of April 7, 2025
Top Takeaways
Section 2 Enforcement Evolves: New filings (Sandoz v. Amgen; Tommy’s Towing) reflect a broader use of monopolization claims, targeting conduct across licensing, government procurement, and local services — signaling a strategic shift plaintiffs’ counsel are exploiting.
Heightened Judicial Scrutiny on Market Definition and Antitrust Injury: Dismissals in Celgene and United Healthcare cases illustrate courts' insistence on rigorous market definitions, plausible conspiracy allegations, and specific antitrust injury — deficiencies that can be outcome-determinative at the motion-to-dismiss stage.
Increased Antitrust Risk in Labor and Pricing Conduct: Active litigation (Burger King no-hire case; Regeneron v. Amgen rebate bundling) suggests expanded application of per se and quick-look standards to labor practices, and revived scrutiny of bundled discounting under foreclosure theories.
New Cases Filed
Tommy’s Towing, LLC v. Candido’s Inc. (E.D. Ky. Apr. 9, 2025): Plaintiff filed suit against Candido’s, the Kentucky State Police, and two police officers asserting alleging a conspiracy to monopolize and attempt to monopolize the market for towing services in violation of Section 2 of the Sherman Act. The complaint alleges that Kentucky State Police officers repeatedly bypassed a required rotation system by falsely claiming that vehicle owners requested Candido’s services, thereby steering high-value jobs to Candido’s and excluding plaintiff. Plaintiff claims this conduct enabled defendants to unlawfully acquire and maintain monopoly power, suppress competition, and caused both irreparable and economic harm to plaintiff. Plaintiff seeks declaratory and injunctive relief, compensatory damages, and attorneys’ fees and costs.
Sandoz Inc. v. Amgen Inc. (E.D. Va. Apr. 11, 2025): Sandoz filed a complaint against Amgen Inc. and its subsidiaries alleging that defendants unlawfully extended and maintained its monopoly over the biologic drug Enbrel in violation of Section 2 of the Sherman Act and New Jersey’s antitrust law. According to the complaint, Amgen obtained an exclusive license to certain patent rights in 2004—beyond its preexisting co-exclusive rights—then used that license to prosecute and enforce the patents, which it leveraged to block biosimilar competition from Sandoz’s FDA-approved product and others, thereby extending market exclusivity long after expiration of earlier patents. Sandoz alleges this conduct excluded biosimilar competition, maintained supracompetitive pricing, and deprived U.S. patients and payors of cost-effective alternatives, even as biosimilar entry in Europe caused Enbrel prices to drop by nearly 50%. Sandoz seeks injunctive relief to enjoin Amgen’s exclusive rights under the Brockhaus Patents and permit immediate biosimilar entry, as well as treble damages, costs, and attorneys’ fees.
Follow-on actions that were filed are:
Brzovic v. NCAA (D.S.C. Apr. 6, 2025) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))
Supervalu, Inc. v. Takeda Pharma. Co. (N.D. Cal. Apr. 9, 2025) (alleging coordinated effort to limit competition in the Dexilant market through “reverse payment” and market allocation like in Walgreen Co. v. Takeda Pharm. Co. (N.D. Cal. Mar. 25, 2025))
Dao Pharmacy Inc. v. GoodRx, Inc. (E.D. Pa. Apr. 9, 2025) (alleging GoodRx and PBMs engaged in price-fixing agreement to share sensitive pricing information like in Keaveny Drug v. GoodRx, Inc. (C.D. Cal. Oct. 30, 2024))
Redbud Roots Inc. v. Shenzhen Smoore Tech. Co. (N.D. Cal. Apr. 10, 2025) (alleging conspiracy to fix prices and not compete in the wholesale distribution of cannabis oil vaporizer systems and components like in Earth’s Healing, Inc. v. Shenzhen Smoore Tech. Co. (N.D. Cal. Feb. 11, 2025))
Dispositive Orders and Verdicts
La. Health Serv. & Indem. Co. v. Celgene Corp. (S.D.N.Y. Mar. 31, 2025): In this putative class action alleging Walker Process fraud and sham litigation in violation of, among others, Sections 1 and 2 of the Sherman Act and related state laws, the court granted defendants’ motions to dismiss. Defendants sought dismissal on the following grounds: (a) Plaintiffs lacked antitrust standing; (b) Plaintiffs failed to plausibly allege that the Celgene patents were procured through fraud; (c) Plaintiffs did not sufficiently plead that Celgene’s patent infringement lawsuits were objectively baseless to support a sham litigation claim; and (d) the reverse payment settlement allegations were not actionable as standalone claims and could not salvage the broader monopolization theory. The court held that (a) plaintiffs were not efficient enforcers of antitrust law and lacked standing to assert Walker Process claims against Celgne; (b) the fraud allegations failed to meet Rule 9(b)’s heightened standard because they did not show materiality or but-for causation regarding the challenged patents also warranting dismissal of the Walker Process claims; (c) Celgene’s litigation was not objectively baseless, particularly as the lawsuits ended in settlements, some with consent judgments; and (d) plaintiffs failed to plausibly allege that the challenged settlement provisions constituted unlawful reverse payments or protected profits in the relevant market.
Long Island Anesthesiologists PLLC v. United Healthcare Ins. Co. of N.Y. Inc. (E.D.N.Y. Apr. 7, 2025): In this case asserting claims under Sections 1 and 2 of the Sherman Act and New York’s antitrust law arising out of an alleged repricing scheme among health insurance payers, the court granted defendants’ motions to dismiss. Defendants sought dismissal on multiple grounds: (a) issue preclusion, (b) failure to allege antitrust injury, (c) failure to define a relevant market, (d) failure to allege an unlawful conspiracy, and (e) failure to plead anticompetitive conduct as to its monopsony power theory. The court held that (a) an unrelated case did not warrant issue preclusion in this case, (b) the complaint alleged only harm to individual providers, not competition, and did not plausibly allege “something more” beyond reduced reimbursement rates; (c) the product market was improperly defined from the seller's perspective despite monopsony theory; (d) plaintiff failed to show a conspiracy, particularly where United and MultiPlan were not competitors in the relevant market and lacked a plausible agreement to restrain trade; (e) plaintiff’s allegations did not show unlawful monopsony conduct; and (f) the New York law claim failed for the same reasons.
KCD KC Disposal LLC v. City of Independence, Missouri (W.D. Mo. Apr. 8, 2025): In this case alleging, among other things, a claim under Section 1 of the Sherman Act due to the City’s denial of a Certificate of Need to operate as a waste hauler, the court denied the City’s motion to dismiss the antitrust claim. The City sought dismissal of the Sherman Act claim on the ground that it is immune from suit under the Sherman Act. The court found that Missouri law did not demonstrate that the Legislature foresaw anticompetitive actions of the nature alleged in the complaint, and thus, denied the motion as to the Sherman Act claim.
FTC v. Amazon.com, Inc. (W.D. Wash. Apr. 8, 2025): In this case alleging violations of Section 5 of the FTC Act and related antitrust and consumer protection statutes, the court denied Amazon’s motion for judgment on the pleadings. Amazon sought judgment on the plaintiffs’ claims on the ground that Section 13(b) of the FTC Act does not authorize the FTC to seek a permanent injunction in federal court without a pending administrative proceeding. The court held that Section 13(b) authorizes the FTC to seek permanent injunctive relief even absent an administrative proceeding, consistent with FTC v. H. N. Singer (which remains binding precedent).
Arrington v. Burger King Corp. (S.D. Fl. Apr. 9, 2025): In this case alleging defendants unlawfully agreed not to hire each other’s employees in violation of Section 1 of the Sherman Act, the court denied defendants' motion to dismiss. Defendants sought dismissal on three grounds: (a) plaintiffs failed to allege a plausible Section 1 claim; (b) plaintiffs failed to link Restaurant Brands International, RBI LP, and Burger King Worldwide to the alleged conduct; and (c) claims before October 2014 were time-barred. The court found that (a) plaintiffs plausibly alleged a horizontal no-hire agreement constituting a restraint of trade under per se and quick-look standards; (b) plaintiffs sufficiently pled concerted action and involvement by all named defendants; and (c) plaintiffs adequately alleged fraudulent concealment to toll the statute of limitations.
Regeneron Pharms., Inc. v. Amgen Inc. (D. Del. Apr. 10, 2025): In this case alleging Sherman Act violations based on Amgen’s alleged use of bundled discounts and exclusive rebate arrangements to foreclose competition, the court denied Amgen’s motion for summary judgment. Amgen sought summary judgment on the grounds that: (a) Regeneron lacked sufficient evidence of substantial foreclosure, below-cost pricing, and market power; (b) that Regeneron failed to show anticompetitive effects; and (c) that Regeneron’s alleged damages did not constitute antitrust injury. The court held that (a) material factual disputes existed regarding bundled discounts, exclusive dealing, below-cost pricing, and Amgen’s market power, (b) Regeneron had presented evidence of potential anticompetitive effects, including reduced innovation and higher prices, and (c) Regeneron’s evidence of lost profits from financially unviable contract terms supported a plausible theory of antitrust injury.
Class Action Certifications and Settlements
In re Turkey Antitrust Litig. (N.D. Ill. Apr. 9, 2025): In this case action by direct purchasers alleging antitrust violations in the market for turkey products, the court preliminarily approved plaintiffs’ settlements with Cooper Farms, Inc. and Farbest Foods, Inc. The certified class includes all persons and entities that directly purchased fresh or frozen, uncooked turkey products (excluding certain types and purchasers) from defendants in the U.S. from January 1, 2010 through December 31, 2016. Notice will be disseminated by mail, email, and publication, with a fairness hearing set for July 10, 2025.
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