Last Week in Antitrust Litigation (#008)

Week of May 5, 2025

Top Takeaways

1. Judicial Attention to Class Communications: Courts are willing to grant tailored Rule 23(d) relief when defendants’ pre-certification conduct risks undermining procedural fairness, as shown in Pospisil v. ATP Tour.

2. Refusal-to-Deal Claims Face Heightened Scrutiny: In OV Loop v. Mastercard, the court reaffirmed strict standards for asserting essential facilities and unilateral refusal-to-deal theories, particularly absent a prior course of dealing.

3. Market Definition Remains a Gatekeeper: Dismissals in Koto and OV Loop confirm that plaintiffs must ground antitrust claims in economically plausible and legally recognized markets or risk early exit.

New Cases Filed

Doe v. NFL (N.D. Ga. May 1, 2025): Plaintiff, a Georgia resident and a fan of the University of Colorado football team and the NFL, filed a pro se complaint against the National Football League alleging that NFL teams colluded to drive down where quarterback Shedeur Sanders was selected in the NFL draft in violation of, among others, the Sherman Act. Plaintiff alleges that Sanders was drafted 144^th overall due to slanderous leaked statements that Sanders “tanked interviews,” “wasn’t prepared,” and “was too cocky,” which he contends reflect racial bias and distorted league decision-making. Plaintiff seeks injunctive relief and $100 million in punitive damages.

Mattson v. Basin Electric Power Coop. (D.S.D. May 8, 2025): Plaintiffs filed a pro se complaint alleging the defendants engaged in an unlawful conspiracy to suppress wind-based Qualifying Facilities (QFs) in violation of, among others, the Sherman Act. Plaintiffs claim the defendants coordinated to block renewable energy projects by fraudulently understating avoided cost rates, obstructing interconnection access, and denying grid interconnection in violation of federal energy regulations. Plaintiffs allege this conduct excluded independent generation, preserved Basin’s dominance over generation and transmission, and deprived the market of economic and environmental benefits. Plaintiffs seek treble damages and declaratory and injunctive relief.

The follow-on cases that were filed are:

• IZQ Constr. LLC v. RB Glob., Inc.(N.D. Ill. May 2, 2025) (alleging conspiracy to artificially increase construction equipment rental prices nationwide like in AXG Roofing, LLC v. RB Glob., Inc. (N.D. Ill. Apr. 1, 2025))

• Dwight Roberts Constr. Co. v. Rouse Servs. LLC (C.D. Cal. May 5, 2025) (same)

• 2^nd Gen Plumbing, LLC v. RB Glob., Inc. (N.D. Ill. May 6, 2025) (same)

Dispositive Orders and Verdicts

Koto v. Positive Investments Corp. (E.D. Cal. Apr. 5, 2025): In this pro se action alleging defendants’ requirement for renters—including low income tenants—to maintain renter’s insurance violated the Sherman Act, the magistrate judge recommended dismissal of plaintiff's amended complaint following in forma pauperis screening under 28 U.S.C. § 1915(e). The court found that plaintiff failed to allege antitrust injury or participation in any relevant market, as required for a private right of action under the Clayton Act, and held that the insurance requirement—even if personally burdensome—did not implicate any injury to competition. Because plaintiff’s amended complaint repeated the same deficiencies as the original, the court found that further amendment would be futile, warranting dismissal with prejudice.

Floyd v. Amazon.com, Inc. (W.D. Wash. May 6, 2025): In this case alleging an illegal horizontal agreement for the sale of Apple electronics in violation of Section 1 of the Sherman Act, the court dismissed with prejudice plaintiff’s claims following his failure to respond to an order to show cause. The court previously required plaintiff to explain why his claims should not be dismissed, but he failed to file any response by the May 2, 2025 deadline. The court accordingly dismissed his claims with prejudice and deemed his counsel’s pending motion to withdraw moot, as Floyd is no longer participating in the litigation.

In re Seroquel XR (Extended Release Quetiapine Fumarate) Antitrust Litig. (D. Del. May 6, 2025): In this case alleging violations of Sections 1 and 2 of the Sherman Act based on a 2011 “reverse payment” settlement between AstraZeneca and Handa that allegedly delayed generic entry of Seroquel XR, the court entered a stipulated order dismissing with prejudice the claims brought by major pharmacy retailers against defendant Handa Pharmaceuticals.

OV Loop, Inc. v. Mastercard Inc. (D. Mass. May 7, 2025): In this case alleging Mastercard withheld access to a service that would enable Plaintiff to offer processing for payments made with Mastercard-branded cards on Plaintiff’s mobile wallet platform in violation of Section 2 of the Sherman Act, the court granted Mastercard’s motion to dismiss the amended complaint. Mastercard moved to dismiss on the grounds that Plaintiff failed to allege: (a) a relevant product market, (b) that Mastercard possessed monopoly power in such market, (c) that Mastercard engaged in the anticompetitive conduct of an unlawful refusal to deal or denial of access to an essential facility, and (d) Plaintiff failed to allege a dangerous probability of Mastercard achieving monopoly power. The court found that (a) Plaintiff plausibly defined the market for “C-M Mobile Payment Services” but not a market for “point-of-sale universal mobile wallet payment network processing using Mastercard branded cards”, (b) failed to allege that Mastercard had a dominant market share or the power to control prices or exclude competitors in the C-M Mobile Payment Services market, (c) Mastercard’s denial of access to its MDES tokenization service did not plausibly constitute exclusionary conduct under refusal-to-deal or essential facilities doctrines, especially given the availability of Visa and other competitors and the lack of a prior course of dealing between the parties, and (d) Plaintiff did not plead facts showing a dangerous probability of monopoly power, particularly since Visa had a larger market share and OV Loop had access to Visa’s services.

Class Action Certifications and Settlements

Pospisil v. ATP Tour, Inc. (S.D.N.Y. May 7, 2025): In this putative antitrust class action alleging the defendants engaged in a wide-ranging conspiracy to suppress professional player compensation and exclude rival tennis events, the court granted in part plaintiffs’ Rule 23(d) motion to limit defendants’ communications with putative class members. Plaintiffs alleged that ATP officials attempted to coerce or pressure players—including by confronting them in private areas to sign anti-lawsuit statements, denying them access to legal counsel, and suggesting that ATP would reduce player compensation or pensions to offset litigation costs. The court found that ATP’s conduct could be viewed as coercive or misleading given players’ financial dependence on ATP and warranted narrow relief. The court (1) prohibited only ATP from retaliating against a putative class member for participating (or considering participating) in the lawsuit, (2) required ATP to issue a corrective statement, and (3) ordered ATP to preserve all communications regarding their efforts to communicate with players about the lawsuit.

Dennis v. Andersons, Inc. (N.D. Ill. May 7, 2025): In this class action alleging manipulation of soft red winter wheat (“SRW”) futures and options on the Chicago Board of Trade (“CBOT”) in violation of, among others, the Sherman Act, the court granted plaintiffs’ motion for class certification under Rule 23(b)(3) in part. The certified class includes people and entities who held long or short positions in December 2017 or March 2018 CBOT SRW wheat futures or options and liquidated those positions between November 30 and December 14, 2017, with certain qualifications for March 2018 contracts. The court found that common issues—such as the alleged market-wide price manipulation and impact—predominate over the individual question of damages. Richard Dennis and Port 22 were appointed as class representatives, while Michael Glass was excluded due to credibility concerns arising from spoof trading violations involving the relevant contracts.

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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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