Last Week in Antitrust Litigation (#013)

Week of June 9, 2025

Top Takeaways

1. Private plaintiffs challenge vertical foreclosure in digital ecosystems: The Sezzle v. Shopify complaint alleges self-preferencing and denial of technical interoperability, reflecting intensified scrutiny of gatekeeper conduct under Sherman Act §§ 1 and 2.

2. Courts affirm aftermarket and repair-restriction theories at pleading stage: Denials of motions seeking to dismiss the complaints in Deere, Audible, and Zero Tech reinforce the plausibility of aftermarket monopolization and ecosystem control frameworks in antitrust litigation.

3. Settlement momentum accelerates across labor, consumer, and reverse payment actions: Courts granted or advanced high-value resolutions in poultry wage suppression, NIL, and delayed-generic-entry suits, underscoring the importance of proactive compliance in labor and pricing strategies.

   
   

New Cases Filed

Sezzle, Inc. v. Shopify Inc. (D. Minn. June 9, 2025): Sezzle filed a complaint alleging that Shopify Inc. used its dominance in drag-and-drop e-commerce platforms to exclude Sezzle’s competing buy-now, pay-later (BNPL) payment service in violation of, among other things, Sections 1 and 2 of the Sherman Act and Minnesota’s antitrust law. Sezzle alleges that Shopify favored its own BNPL product—Shop Pay Installments—by setting it as the default for merchants, degrading rival BNPL options in the checkout process, imposing a 1–2% fee on merchants who used third-party BNPL services, removing Sezzle’s access to technical features like order IDs and inventory locking, and misleading merchants by claiming Sezzle would soon be deprecated from the platform. Sezzle contends that these practices reduced BNPL competition on Shopify’s platform, raised merchant costs, limited consumer access to preferred payment options, and caused a dramatic drop in Sezzle’s transaction volume and market share. Sezzle seeks treble damages, injunctive and declaratory relief, and recovery of attorneys’ fees and costs.

Follow-on cases that were filed include:

• Diaz v. Lodi Ass'n of Realtors (C.D. Cal. June 9, 2025) (alleging defendant’s requirement that real estate brokers be members of multiple associations is an unreasonable restraint of trade like in Hardy v. Nat’l Ass’n of Realtors (E.D. Mich. Aug. 12, 2024))

Dispositive Orders and Verdicts

Zero Techs., LLC v. Clorox Co. (E.D. Pa. June 5, 2025): In this case alleging unlawful monopolization and exclusionary conduct in the U.S. water filtration market in violation of, among other things, Section 2 of the Sherman Act, the court denied defendants’ Rule 12(c) motion to dismiss. The court held that (a) defendants’ motion relied “in meaningful part” on exhibits from a prior ITC proceeding that were not properly subject to judicial notice; (b) converting the Rule 12(c) motion to one for summary judgment was inappropriate given the ongoing discovery process; and (c) because the court only took judicial notice of some exhibits and expressly declined to do so for others central to defendants’ arguments, dismissal was premature.

FTC v. Deere & Co. (N.D. Ill. June 9, 2025): In this case alleging monopolization of the repair tools and services aftermarkets for Deere-brand agricultural equipment in violation of Section 2 of the Sherman Act, related state statutes, and Section 5 of the FTC Act, the court denied Deere’s motion for judgment on the pleadings. Deere sought dismissal on the grounds that: (a) plaintiffs failed to plausibly allege a cognizable aftermarket; (b) Deere did not have market power because it did not “participate” in the relevant aftermarket because dealers—not Deere—perform repairs; (c) plaintiffs failed to allege anticompetitive conduct under a recognized theory; (d) the FTC lacks constitutional authority to sue under Section 13(b); (e) the State plaintiffs lack standing; and (f) the state law claims are time-barred. The court found that: (a) plaintiffs plausibly alleged a valid aftermarket due to customers’ inability to assess lifecycle pricing and Deere’s restrictive licensing of its diagnostic tool; (b) Deere effectively participated in and controlled the aftermarket through exclusive licensing and dealer oversight, sufficient to allege market power; (c) no formal antitrust category was required at the pleading stage, and plaintiffs plausibly alleged exclusionary conduct through Deere’s refusal to deal and control over the repair ecosystem; (d) any constitutional concerns with FTC structure did not void its enforcement authority or show injury to Deere; (e) the States plausibly alleged quasi-sovereign interests supporting parens patriae standing; and (f) allegations of ongoing conduct plausibly restarted the statute of limitations, so dismissal was inappropriate at the pleadings stage.

Reiss v. Audible, Inc. (S.D.N.Y. June 11, 2025): In this case alleging monopolization and attempted monopolization in the market for audiobook retail distribution in violation of Section 2 of the Sherman Act, the court denied Audible’s motion to dismiss. Audible sought dismissal on the grounds that: (a) the complaint failed to plausibly allege exclusionary conduct because the 90-day exclusivity period for self-published audiobooks was short-term and optional, and (b) the plaintiff, a self-published author, lacked antitrust standing. The court held that (a) plaintiff adequately alleged anticompetitive conduct by pleading a multifaceted scheme—including exclusivity arrangements,coopetition with Apple, and subscriber restrictions—that plausibly foreclosed competition in a substantial share of the audiobook market, and (b) plaintiff had antitrust standing as a direct purchaser harmed by supracompetitive fees, asserting a non-speculative overcharge injury consistent with the aims of antitrust law.

Class Action Certifications and Settlements

Pro Slab, Inc. v. Argos USA, LLC (D.S.C. June 5, 2025): In this class action alleging price-fixing of Ready-Mix Concrete, the court preliminarily approved a settlement with Lafarge North America, Inc. The court certified a settlement class of direct purchasers of Ready-Mix Concrete from Lafarge’s plants between January 1, 2010 and July 31, 2016, and approved the proposed notice plan, settlement administrator, and schedule for final approval. Class members must opt out or object by August 4, 2025; a final fairness hearing is to be held on or after September 15, 2025.

Jien v. Perdue Farms, Inc. (D. Md. June 5, 2025): In this class action involving poultry processing workers, the court granted final approval of settlements with over 20 defendants, including major poultry producers such as Perdue, Tyson, Sanderson Farms, and Pilgrim’s Pride. The court certified two overlapping settlement classes covering workers employed by the defendants from 2000 or 2009 through July 2021 and approved a plan of allocation providing pro rata distributions based on earnings, with a second distribution round or escheatment to the Maryland Attorney General for unclaimed funds. The court found the settlements fair, reasonable, and adequate, with no objections and over 3,300 opt-outs, and retained jurisdiction to oversee administration of the settlement fund.

Deselms v. Occidental Petroleum Corp. (D. Wyo. June 6, 2025): In this mineral rights class action, the court approved the plan of allocation and distribution of a $5.89 million settlement fund among settlement class members. Payments will be made based on each member’s net mineral acreage, with a per-acre payout of $93.59. Distribution will occur in two waves, with final payments by September 15, 2025, and any unclaimed funds reconciled by September 2026.

In re College Athlete NIL Litig. (N.D. Cal. June 6, 2025): In this class action regarding college athletes’ rights to compensation for use of their name, image, and likeness, the court granted final approval of a $2.576 billion settlement. The settlement creates three damages classes and one injunctive relief class covering approximately 389,700 athletes, with monetary relief paid annually over ten years. Injunctive relief allows—but does not require—schools to provide compensation and benefits up to 22% of average Power Five revenues and eliminates NCAA scholarship limits. It narrows NIL restrictions from third parties to a limited category of ‘Associated Entities or Individuals’ and requires neutral arbitration to resolve enforcement disputes. The court found the relief extraordinary, noting only 73 objections and 357 opt-outs among the nearly 390,000 class members.

In re Seroquel XR (Extended Release Quetiapine Fumarate) Antitrust Litig. (D. Del. June 9, 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 preliminarily approved settlements between direct purchasers and AstraZeneca (over $50 million) and Handa Pharmaceuticals ($494,000 plus cooperation), finding the agreements fair, reasonable, and adequate. The certified class includes U.S. purchasers of specified strengths of Seroquel XR from August 2, 2015 to April 30, 2017. A final fairness hearing is scheduled for September 12, 2025.

Hubbard v. NCAA (N.D. Cal. June 9, 2025): In this class action brought by student-athletes alleging that the NCAA and the Power 5 college conferences’ rules prohibiting member schools from offering certain academic achievement awards, the court granted final approval of a settlement. The certified class includes all current and former Division I athletes from April 1, 2019 to September 15, 2024, who would have met their school’s criteria for such awards. The court overruled objections challenging the allocation formula, class definition, and exclusion of post-2022 damages, finding the settlement fair, reasonable, and consistent with plaintiffs’ theory of liability.

Nosalek v. MLS Prop. Info. Network, Inc. (D. Mass. June 10, 2025): In this class action in which home sellers alleged that defendants conspired to impose inflated buyer-broker commissions through the multiple listing service (“MLS”) Pinergy, the court preliminarily approved a fourth amended settlement between plaintiffs and MLS Property Information Network, Inc. The certified settlement class includes sellers who paid, or on whose behalf seller-brokers paid, buyer-broker commissions for homes listed on Pinergy during the class period. Notice will begin by July 10, 2025, with a final approval hearing scheduled for September 29, 2025.

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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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