Last Week in Antitrust Litigation (#010)
- Kressin Powers
- May 25, 2025
- 6 min read
Week of May 19, 2025
Top Takeaways
1. Tying and Bundling Under Fire: Three new lawsuits target dominant firms—Comscore, Cisco, and Biosense—for leveraging market power through tying, bundling, and exclusivity tactics that squeeze rivals and control customer choices.
2. Antitrust Risks Now Extend to Employee Contracts: Companies using broad noncompete agreements—even outside the C-suite—face growing legal challenges under antitrust laws.
3. High-Dollar Verdicts and Settlements Signal Urgency: A string of major court victories and class settlements highlight why businesses must recheck their pricing, contracting, and employment practices.
New Cases Filed
Cinemacloudworks, Inc. v. Comscore, Inc. (C.D. Cal. May 19, 2025): Plaintiff filed a complaint alleging that Comscore, Inc. engaged in an illegally tying arrangement that suppressed competition in the theatrical data visualization market in violation of the Sherman Act and Clayton Act, among other laws. Plaintiff alleges that Comscore leveraged its monopoly over U.S. box office data to disadvantage plaintiff’s CCW platform by (a) denying access to Comscore’s Swift data portal, (b) imposing a 100% price increase without justification, (c) terminating their data agreement on pretextual grounds, and (d) conditioning data access on the use of Comscore’s rival TDS product while falsely claiming Comscore data was incompatible with CCW. The complaint asserts this Comscore’s conduct constitutes an illegal tying arrangement that conditions access to theatrical box office data on use of Comscore’s TDS product. Plaintiff seeks injunctive relief, restoration of access to Comscore data at prior subscription rates, access to the Swift feed, monetary damages, and attorneys’ fees.
Summit 360, Inc. v. Cisco Sys., Inc. (D. Minn. May 22, 2025): Summit 360 filed a complaint alleging that Cisco engaged in a multi-pronged campaign to eliminate independent resellers of its networking equipment in violation of Section 2 of the Sherman Act and Minnesota’s antitrust law. The complaint details Cisco’s alleged use of coercive “fear, uncertainty, and doubt” tactics, restrictive software licensing, retaliatory audits, and brand protection practices to block customers from purchasing through independent channels and to discredit Summit 360. Summit 360 claims this conduct suppresses competition by coercing customers into Cisco’s higher-priced Authorized Channel, locking them into Cisco’s ecosystem and depriving them of affordable alternatives. The company seeks injunctive relief barring the conduct, treble damages, punitive damages, attorneys’ fees, and equitable measures to restore its reputation and market access.
Memoir, Inc. v. Spring Venture Grp., LLC (W.D. Mo. May 22, 2025): Memoir and former Spring Venture Group (“SVG”) employee Austen Mckeithen filed a complaint alleging that SVG unlawfully restrained trade in violation of the Sherman Act by enforcing overly broad noncompete agreements against non-executive Medicare sales agents. Plaintiffs allege that SVG relied on restrictive covenants, threats of litigation, and refusal to issue “carrier releases” to prevent agents from joining competing Medicare brokerages such as plaintiff, despite the agents lacking access to trade secrets or proprietary client information. Plaintiffs contend this conduct suppresses competition in the labor market and Medicare brokerage industry by deterring worker mobility and market entry, ultimately harming consumers by sustaining commission-driven plan recommendations. Plaintiffs seek declaratory and injunctive relief to invalidate SVG’s noncompetes, along with treble damages and attorneys’ fees.
The follow-on cases that were filed are:
Zeigler v. NCAA (E.D. Tenn. May 20, 2025) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))
Teamsters Health & Welfare Fund of Phila. & Vicinity v. Takeda Pharm. Co. (N.D. Cal. May 22, 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))
Dispositive Orders and Verdicts
Regeneron Pharms., Inc. v. Amgen (D. Del. May 15, 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 jury found in favor of plaintiff Regeneron on all of its antitrust claims (Sections 1 and 2 of the Sherman Act, Section 3 of the Clayton Act, California’s Cartwright Act, and New York’s Donnelly Act). The jury found that Regeneron is entitled to $135.6 million in compensatory damages and $271.2 million in punitive damages as to its tortious interference claim.
United States v. Cohen (D.D.C. May 15, 2025): In this case alleging violations of premerger notification and waiting period requirements under Section 7A of the Clayton Act (the Hart-Scott-Rodino Act), the court entered a consent judgment in favor of the United States. The court ordered that Cohen pay a civil penalty of $985,320, with 18% annual interest accruing from the date of default or delay until payment. The court retained jurisdiction to enforce the judgment, including holding Cohen in contempt for noncompliance and requiring reimbursement of government costs if enforcement becomes necessary.
Innovative Health LLC v. Biosense Webster, Inc. (C.D. Cal. May 16, 2025): In this case alleging unlawful tying and monopolization in the markets for the sale of high-density mapping catheters and ultrasound catheters in violation of Sections 1 and 2 of the Sherman Act and California’s Cartwright Act, the jury returned a verdict in favor of plaintiff. The jury found that: (a) Biosense engaged in an unlawful tying arrangement in violation of Section 1; (b) maintained monopoly power through anticompetitive conduct; (c) attempted to monopolize the market through similar conduct; and (d) violated the Cartwright Act, awarding $147,406,481 in damages.
Little v. Pac. Seafood Procurement, LLC (N.D. Cal. May 20, 2025): In this case alleging a maximum price-fixing conspiracy among Dungeness crab buyers in violation of Section 1 of the Sherman Act, the court denied defendant Ocean King’s motion to dismiss the second amended complaint. Ocean King moved to dismiss on the grounds that: (a) plaintiffs failed to plausibly allege that it joined the alleged conspiracy or agreed to fix prices, and (b) the referenced communications were taken out of context and concerned a one-off transaction. The court held that (a) plaintiffs plausibly alleged Ocean King’s participation in a per se unlawful maximum price-fixing agreement based on contemporaneous messages showing alignment with co-conspirators and subsequent adherence to a $5/lb price ceiling while non-defendants paid more, and (b) although Ocean King argued the communications related only to a specific crabber, the broader language in the texts and the need to accept well-pleaded allegations at the pleading stage precluded dismissal.
Rumble, Inc. v. Google LLC (N.D. Cal. May 21, 2025): In this case alleging monopolization and attempted monopolization of the online video-sharing platform services market in violation of Section 2 of the Sherman Act, the court granted Google’s motion for summary judgment on statute of limitations grounds, without reaching the merits of the antitrust claims. Google sought summary judgment on the grounds that: (a) Rumble’s claims were time-barred under the four-year statute of limitations for antitrust claims, and (b) Rumble failed to raise a genuine dispute of material fact supporting tolling theories such as fraudulent concealment or continuing violations. The court found that: (a) Rumble’s claim accrued in April 2014 when the alleged harm began, and the 2021 complaint was therefore untimely; and (b) Rumble failed to plead fraudulent concealment and offered no evidence of affirmative acts by Google to conceal its conduct or any new and independent acts during the limitations period that inflicted new injury, thus failing to establish either tolling theory. As a result, the court entered judgment for Google and declined to reach the merits or address other summary judgment arguments.
Class Action Certifications and Settlements
In re Xyrem (Sodium Oxybate) Antitrust Litig. (N.D. Cal. May 16, 2025): The court preliminarily approved proposed settlements resolving claims that Jazz Pharmaceuticals and Hikma entities violated federal and state antitrust and consumer protection laws by delaying generic competition for Xyrem. The settlement class consists of entities in 36 states and territories that paid or reimbursed for brand or generic Xyrem from January 1, 2017, through May 16, 2025. The court approved joint notice procedures and appointed A.B. Data as the claims administrator and Citibank as escrow agent. A final approval hearing is set for October 23, 2025.
KPH Healthcare Servs., Inc. v. Mylan N.V. (D. Kan. May 21, 2025): In this case alleging that Mylan entered into an unlawful pay-for-delay agreement to delay generic competition for EpiPen in violation of Section 1 of the Sherman Act, the court granted final approval of a $73.5 million class action settlement and dismissed all claims with prejudice. The court found that (a) the settlement was fair, reasonable, and adequate under Rule 23(e)(2) and Tenth Circuit precedent; (b) the plan of allocation was equitable, particularly the decision to weight brand purchases more heavily due to higher estimated overcharges; and (c) the one-third fee award totaling $24.5 million was reasonable and consistent with prior awards in complex antitrust class actions.
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