Last Week in Antitrust Litigation (#011)

Week of May 26, 2025

Top Takeaways

1. New Monopoly Lawsuit Against Apple Raises App Store Pressure: A group of developers has sued Apple over fees and restrictions in its App Store, highlighting growing opportunities for customers of platform-based businesses.

2. Vendor Rebates and Patents Under Scrutiny in HVAC Case: A new lawsuit says a market leader used rebates and patents to block competition—companies should review sales practices and legal protections for compliance.

3. Courts Narrow Path for Price Discrimination Cases: A loss in the 5-hour ENERGY® case shows businesses must show real market harm—not just price differences—when challenging promotional deals.

New Cases Filed

Korean Publishers Ass’n v. Apple, Inc. (N.D. Cal. May 23, 2025): Plaintiffs filed a putative class action alleging that Apple monopolized the global (excluding China) market for iOS app distribution and in-app payment processing in violation of, among other things, the Sherman Act, California’s Unfair Competition Law, and Korea’s Monopoly Regulation & Fair Trade Act. Plaintiffs allege that Apple compelled developers to use its App Store and in-house payment system, imposed supracompetitive commissions of up to 30%, blocked alternative payment methods through anti-steering provisions, and implemented new exclusionary practices in response to court-ordered injunctions, including a 27% fee on linked purchases. Plaintiffs contend that Apple’s conduct excluded rivals, suppressed competition in app distribution and payment processing, denied developers pricing autonomy and access to customer data, and maintained Apple’s monopoly profits. Plaintiffs seek to proceed as a class action, treble damages, restitution, attorneys’ fees, and a permanent injunction to prohibit Apple from continuing its anticompetitive conduct.

Duraplas, LP v. Diversitech Corp. (N.D. Tex. May 26, 2025): DuraPlas filed a complaint alleging that DiversiTech engaged in exclusionary and coercive conduct to maintain its monopoly in the U.S. market for HVAC/R pads, in violation of, among other things, Section 2 of the Sherman Act and the Texas Antitrust Act. DuraPlas contends that DiversiTech implemented rebate programs functioning as de facto exclusive dealing arrangements, fraudulently asserted patents it allegedly obtained through inequitable conduct, and made coercive threats to customers and distributors, including patent-related insinuations and loss of access to other products. The complaint asserts that DiversiTech’s conduct has foreclosed competitors from the market, created artificial barriers to entry, chilled distributor willingness to switch suppliers, and deprived customers of lower prices and innovation that would result from fair competition. DuraPlas seeks treble damages, a permanent injunction against the exclusionary agreements and patent enforcement, and attorneys’ fees and costs.

Whalen v. Epiq Sys., Inc. (S.D.N.Y. May 29, 2025) and Tejon v. Epiq Sys., Inc. (S.D. Fl.): In virtually identical class actions, plaintiffs allege that Epiq, Angeion, JND Legal, Huntington National Bank, and Western Alliance Bank conspired to inflate class action administration costs and suppress payouts to class members by steering Qualified Settlement Funds (“QSF”) to favored banks offering below-market interest rates in exchange for undisclosed kickbacks, in violation of, among other things, Section 1 of the Sherman Act. Plaintiffs allege that the administrator defendants coordinated with each other and the bank defendants to retain a share of the interest spread through concealed payments funneled via special purpose entities, without disclosing these arrangements to courts, class counsel, or class members. The complaint asserts that this conduct harmed competition by raising class administration prices, suppressing bidding for QSF banking services, depressing class member payouts, and entrenching defendants’ dominance in the administrator and settlement deposit markets. Plaintiffs seek class certification, treble and punitive damages, restitution, disgorgement, injunctive and equitable relief, and attorneys’ fees and costs.

The follow-on cases that were filed are:

• Enter. Lodging of Huntsville, LLC v. RB Glob., Inc. (D. Conn. May 23, 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))

• Strupp Trucking, Inc. v. RB Glob., Inc. (D. Conn. May 28, 2025) (same)

• Ultra Home Set, LLC v. RB Glob., Inc. (N.D. Ill. May 28, 2025) (same)

• Cirkunovs v. Zuffa LLC (D. Nev. May 23, 2025) (alleging defendants’ anticompetitive conduct suppressed UFC fighters’ pay like in Le v. Zuffa, LLC (E.D. Cal. May 1, 2017))

• Davis v. Zuffa LLC (D. Nev. May 29, 2025) (same)

• Braham v. NCAA (D. Nev. May 27, 2025) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))

• Juetten v. Mccain Foods Ltd. (N.D. Ill. May 28, 2025) (alleging price-fixing of frozen potato products like in Redner’s Markets v. Lamb Weston (N.D. Ill. Nov. 15, 2024))

• Int'l Union of Operating Eng’rs Stationary Eng’rs Local 29 v. Takeda Pharma Co. (N.D. Cal. May 29, 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))

• Allen v. Zelis Healthcare LLC (D. Mass. May 29, 2025) (alleging conspiracy to suppress payments for out-of-network (OON) healthcare services like in Pac. Inpatient Med. Grp. v. Zelis Healthcare, LLC (D. Mass. Mar. 28, 2025))

Dispositive Orders and Verdicts

FTC v. Pepsico, Inc. (S.D.N.Y. May 22, 2025): In this case alleging price discrimination in the resale of Pepsi soft drinks in violation of the Robinson-Patman Act, the FTC voluntarily dismissed its action against PepsiCo without prejudice.

World Ass’n of Icehockey Players Unions N. Am. Div. v. NHL (W.D. Wash. May 23, 2025): In this case alleging a horizontal market allocation agreement and wage suppression conspiracy in the labor market for junior ice hockey player services in violation of Section 1 of the Sherman Act, the court granted defendants’ motions to dismiss. Defendants sought dismissal on the following grounds: (a) lack of personal jurisdiction over certain Canadian and U.S.-based club defendants and the NHL; (b) that the Foreign Trade Antitrust Improvements Act (“FTAIA”) barred claims based on injuries from Canadian conduct; and (c) international comity requires the court to dismiss the remaining claims. The court held that: (a) plaintiffs failed to establish personal jurisdiction over many CHL and NHL defendants due to insufficient allegations of purposeful direction or availment toward the U.S. or Washington; (b) the FTAIA barred claims based on foreign injury, but the domestic effects exception applied to players who were recruited from the United States and suffered foreign injuries; and (c) the relevant factors weigh in favor of abstention of the remaining claims pursuant to the doctrine of international comity.

Pickering v. Amazon.com Inc. (W.D. Wash. May 23, 2025): In this pro se case alleging Amazon’s refusal to provide a refund for the purchase of vegan products violated Sections 1 and 2 of the Sherman Act and New York’s antitrust statute, the court dismissed plaintiff’s remaining claims against FoodServiceDirect without prejudice. The court found that (a) plaintiff did not effectuate service within the 90-day period as required by Rule 4(m), despite prior warnings, and (b) his objections offered no new legal authority or facts and failed to show manifest error in the court’s earlier dismissal of Amazon, warranting denial of reconsideration and dismissal of the remaining claims.

U.S. Wholesale Outlet & Distrib., Inc. v. Living Essentials (C.D. Cal. May 28, 2025): In this case alleging discriminatory promotional allowances in violation of Section 2(d) of the Robinson-Patman Act and California’s Unfair Competition Law (“UFL”) in the wholesale market for 5-hour ENERGY® drinks, the court issued amended findings of fact and conclusions of law denying plaintiffs’ request for permanent injunction. After plaintiffs appeal reversing dismissal of their Robinson-Patman Act claim, the court found: (a) that plaintiffs proved they were in competition with Costco Business Centers (“CBC”), (b) although plaintiffs established that defendants’ promotional allowances to CBCs were not proportionally equal to those offered to plaintiffs, they failed to prove actual or threatened competitive injury as required under Section 2(d); (c) plaintiffs’ UFL claim failed because it was predicated on the same conduct; and (d) having failed to prove a Robinson-Patman or UCL violation , plaintiffs were not entitled to injunctive relief.

Class Action Certifications and Settlements

Sidibe v. Sutter Health (N.D. Cal. May 22, 2025): In this class action alleging that Sutter Health engaged in anticompetitive conduct that raised healthcare costs for purchasers of inpatient hospital services, the court granted preliminary approval of a proposed class settlement. The court found the agreement is likely to be approved as fair, reasonable, and adequate. The notice plan and plan of distribution were also preliminarily approved, and key deadlines include notice dissemination starting June 2, 2025, with a final approval hearing scheduled for November 6, 2025.

1925 Hooper LLC v. Nat'l Ass'n of Realtors (N.D. Ga. May 23, 2025): In this putative class action alleging that multiple real estate brokerages conspired to inflate broker commission rates in violation of antitrust laws, the court preliminarily approved settlements with Higher Tech Realty, eXp World Holdings, Weichert of North America, and Atlanta Communities Real Estate. The court provisionally certified a nationwide settlement class of home sellers who paid a broker commission via a multiple listing service between October 31, 2019 and the class notice date. The court found the proposed settlements fair, adequate, and reasonable, and approved a notice with a final fairness hearing set for October 28, 2025.

Snow v. Align Tech., Inc. (N.D. Cal. May 28, 2025): In this class action involving allegations that Align restrained competition in the clear aligner market, the court preliminarily approved a settlement between plaintiffs and Align. The certified settlement class includes all U.S. purchasers or reimbursers of SmileDirectClub aligners from October 22, 2017 through August 18, 2022. The court found the proposed notice plan sufficient and noted that a final approval hearing will be set.

***      ***      ***

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

This newsletter has been prepared by Kressin Powers LLC for educational and informational purposes only regarding recent legal developments and does not constitute advertising or solicitation. No legal or business decision should be based on its content. Neither this publication nor the lawyers who authored it are rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to any person constitute the establishment of an attorney-client relationship. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their jurisdiction. The invitation to contact is not a solicitation for legal work under the laws of any jurisdiction in which Kressin Powers LLC lawyers are not authorized to practice. Confidential information should not be sent to Kressin Powers LLC without first communicating directly with a member of the Firm about establishing an attorney-client relationship.