Last Week in Antitrust Litigation (#015)

Week of June 23, 2025

Top Takeaways

1. Courts reaffirm the importance of antitrust standing and market definition: complaints in the steel and concrete sectors dismissed for failure to establish market participation and plausible anticompetitive effects.

2. Rule-of-reason analysis gains prominence: courts uphold claims against NASCAR teams and Visa based on nuanced theories of vertical restraint and non-price foreclosure.

3. Structural and behavioral remedies in real estate continue to reshape compliance norms: final settlements in national broker commission cases impose both monetary and operational reforms.

   
   

New Cases Filed

NECEC Transmission LLC v. Campos EPC, LLC (S.D.N.Y. June 26, 2025): NECEC filed a complaint alleging that Campos and HDD Company engaged in a bid-rigging conspiracy to inflate the price of a horizontal directional drilling contract under the Kennebec River, in violation of, among other things, Section 1 of the Sherman Act. According to NECEC, after HDD terminated its fixed-price contract, Campos bid over triple the original amount for the same work and then subcontracted the drilling back to HDD, exploiting NECEC’s lack of alternatives in a highly specialized market. NECEC alleges that this coordinated scheme, followed by threats to halt work and dismantle progress unless NECEC paid an additional $14.5 million, coerced NECEC into signing a change order under economic duress. NECEC seeks, among other things, treble damages and attorneys fees’ and costs under the Sherman Act.

Follow-on cases that were filed include:

• Pierre v. Teva Pharms. Indus., Ltd. (E.D.N.Y. June 23, 2025) (alleging Teva foreclosed generic competition for EpiPens like in Pennington v. Teva Pharms. Indus., Ltd. (C.D. Cal. June 18, 2025))

• Compass, Inc. v. Zillow, Inc. (S.D.N.Y. June 23, 2025) (alleging Zillow engaged in anticompetitive conduct in the real estate online search market like in REX – Real Estate Exchange, Inc. v. Zillow, Inc. (W.D. Wash. Mar. 9, 2021))

• Cigna Grp. v. Celgene Corp. (S.D.N.Y. June 24, 2025) (alleging Bristol Myers and Celgene illegally monopolized the market for Pomalyst (pomalidomide) like in Centerwell Pharmacy, Inc. v. Celgene Corp. (S.D.N.Y. Sept. 13, 2024))

• Inza v. Apple Inc. (D.D.C. June 24, 2025) (alleging Apple and others engaged in an illegal coordinated scheme to exclude standalone Wi-Fi calling in the United States like in  Inza v. AT&T, Inc. (D.D.C. Oct. 25, 2024))

• State Univ. of Iowa v. Blue Cross Blue Shield Ass'n (N.D. Ill. June 26, 2025) (alleging market allocation and price-fixing in health insurance industry like in AmeriTeam Servs. v. Blue Cross & Blue Shield of Ala. (N.D. Ill. Mar. 4, 2025))

Dispositive Orders and Verdicts

Freeland v. Nippon Steel Corp. (N.D. Cal. June 20, 2025): In this case alleging that Nippon Steel’s acquisition of U.S. Steel would substantially lessen competition in the United States steel manufacturing market in violation of Section 7 of the Clayton Act, the court granted defendants’ motion to dismiss with leave to amend. Defendants sought dismissal on the grounds that: (a) plaintiffs lacked Article III standing, (b) plaintiffs lacked antitrust standing because they were not participants in the relevant steel market, and (c) the complaint failed to plausibly allege that the merger would have anticompetitive effects. The court held that while plaintiffs sufficiently alleged a particularized injury for Article III standing, it (a) reserved judgment on traceability due to lack of briefing but cautioned that it would be difficult to show, (b) found plaintiffs lacked antitrust standing because they were consumers of downstream products rather than participants in the steel market, and (c) found plaintiffs failed to plausibly allege probable anticompetitive effects because they did not allege Nippon Steel’s U.S. market share or other facts showing how the merger would increase concentration or eliminate actual or potential competition between the firms.

2311 Racing LLC v. Nat’l Ass’n for Stock Car Auto Racing (W.D.N.C. June 23, 2025): In this case asserting, among other things, a counterclaim alleging that two NASCAR Cup Series teams jointly negotiated with competitors to fix terms in the 2025 Charter Agreement in violation of Section 1 of the Sherman Act, the court denied plaintiffs’ and Curtis Polk’s motions to dismiss NASCAR’s antitrust counterclaim. The court held that (a) joint negotiations by racing teams with NASCAR were not categorically per se unlawful given the collaborative structure of the Cup Series, but (b) NASCAR sufficiently pled a plausible rule of reason claim by identifying a relevant market (entry of cars into Cup Series races), alleging market power among chartered teams, and asserting harm to competition through reduced incentives for performance-based entry and disincentives for “open” teams to race.

Davis v. Hanna Holdings, Inc. (E.D. Pa. June 23, 2025): In this putative class action filed by home purchasers alleging an illegal conspiracy to maintain and enforce anticompetitive rules governing real estate brokerage commissions in violation of, among other things, Section 1 of the Sherman Act and state antitrust laws, the court denied in part Hanna’s motion to dismiss the antitrust claims. Hanna sought dismissal of the antitrust claims on the grounds that: (a) plaintiffs failed to plausibly allege a horizontal agreement among Hanna and its competitors; (b) plaintiffs did not plausibly allege a vertical agreement between Hanna and the National Association of Realtors (“NAR”) that unreasonably restrained trade under the rule of reason by failing to plead a plausible relevant product and geographic market; and (c) certain of plaintiffs’ state antitrust claims fail for lack of notice. The court held that: (a) plaintiffs did not plausibly allege a horizontal agreement because their allegations pointed to participation in NAR governance and adherence to rules but not to a prior agreement to restrain trade; (b) plaintiffs plausibly alleged a vertical agreement with NAR and that such agreement may have unreasonably restrained trade, justifying analysis under the rule of reason; (c) plaintiffs’ definitions of the product market (buyer-broker services) and the geographic market (areas served by NAR MLSs) were sufficient at the pleading stage, though subject to future factual development including the potential applicability of two-sided market analysis; and (d) the claims based on the antitrust laws of Arizona, Hawaii, Nevada, and Utah failed for not following their notice requirements.

United States v. Visa, Inc. (S.D.N.Y. June 23, 2025): In this case alleging that Visa used exclusive agreements to monopolize and restrain trade in the market for general purpose debit network services and a narrower card-not-present (CNP) e-commerce submarket in violation of Sections 1 and 2 of the Sherman Act, the court denied Visa’s motion to dismiss. Visa moved to dismiss on the grounds that: (a) the Government failed to allege a plausible product market by excluding interbank payment networks; (b) the complaint did not allege anticompetitive conduct because it failed to plead below-cost pricing; and (c) the terms of Visa’s current contracts negate any inference of unlawful agreements not to compete. The court held that: (a) the Government plausibly alleged a distinct market based on debit-specific features like real-time settlement, fraud protections, merchant guarantees, and chargebacks that interbank networks lack, and supported by industry recognition and practical indicia; (b) the price-cost test was inapplicable because the challenged conduct involved non-price coercion and exclusive dealing arrangements that foreclosed over 45% of the market and warranted rule-of-reason analysis; and (c) the allegations about Visa’s past conduct and course of dealing with fintech partners, including threats, termination rights, and incentives to suppress competition, plausibly stated a claim, and factual disputes could not be resolved at the pleadings stage.

In re Concrete & Cement Additives Antitrust Litig. (S.D.N.Y. June 25, 2025): In this case alleging that multiple corporate groups conspired to fix prices in the market for concrete admixtures, cement additives, and related products (“CCAs”) in violation of, among other things, Section 1 of the Sherman Act and various state antitrust laws, the court granted Defendants’ motions to dismiss. Defendants moved to dismiss the antitrust claims on the grounds that: (a) Plaintiffs failed to plausibly allege direct evidence or parallel conduct sufficient to infer a conspiracy; (b) the asserted “plus factors” did not support a plausible inference of agreement; (c) Plaintiffs failed to allege facts tying each Defendant to the alleged conspiracy; (d) Plaintiffs did not sufficiently allege a violation of a state’s antitrust law. The court held that: (a) price increases were not sufficiently parallel to support an inference of collusion, as they differed in geography, timing, magnitude, and product category; (b) the plus factors did not raise the inference of agreement when considered individually or together, particularly in the absence of plausible parallel conduct; and (c) the state antitrust claims must be dismissed for the same reasons.

Price v. City of Chicago (N.D. Ill. June 25, 2025): In this case alleging, among other things, monopolization in violation of Section 2 of the Sherman Act based on a City of Chicago ordinance that required rideshare companies to report driver deactivations for public safety reasons, the court granted the City’s motion to dismiss the Sherman Act claim without prejudice. The court held that the claim was conclusory and did not, among others, define a relevant market.

In re Tecfidera Antitrust Litig. (N.D. Ill. June 25, 2025): In this case alleging that Biogen conspired with major pharmacy benefit managers (PBMs) to suppress generic competition for the multiple sclerosis drug Tecfidera in violation of, among other things, Sections 1 and 2 of the Sherman Act and state antitrust laws, the court granted Biogen’s motion to dismiss the complaint without prejudice. Biogen moved to dismiss on the grounds that: (a) plaintiffs failed to plausibly allege substantial foreclosure under an exclusive dealing theory, and (b) plaintiffs lacked antitrust standing to seek monetary damages based on Illinois Brick and to seek injunctive relief for lack of directness. The court held that: (a) plaintiffs did not allege how state substitution laws operate in a way that would make equivalent formulary tiering suppress generic competition or explain why plans could not select unaffected formularies, and as a result, the court could not find that substantial foreclosure was alleged, (b) plaintiffs were potentially barred from pursuing monetary damages based on Illinois Brick, and (c) plaintiffs were the most directly injured victims and as a result, plaintiffs’ claims for injunctive relief were not barred on the basis of antitrust standing.

Coronavirus Rep. Corp. v. Apple Inc. (N.D. Cal. June 25, 2025): In this case alleging monopolization of app distribution on Apple devices in violation of the Sherman Act, the court granted Apple’s motion to dismiss the first amended complaint with prejudice. Apple sought dismissal on the grounds that plaintiffs’ claims were barred by res judicata based on a prior suit involving the same conduct and parties. The court held that (a) all three elements of claim preclusion were satisfied—identity of claims based on the same transactional nucleus of facts, a final judgment on the merits in the prior action affirmed on appeal, and privity between the plaintiffs in the two suits—and thus barred the claims.

Class Action Certifications and Settlements

Mackmin v. Visa Inc. (D.D.C. June 23, 2025): In this consumer class action alleging that Visa and Mastercard conspired with banks to fix foreign ATM access fees, the court granted final approval of a settlement with the Visa and Mastercard defendants. The certified settlement class includes all individuals and entities that paid an unreimbursed ATM access fee to a bank defendant or alleged co-conspirator for a foreign ATM transaction in the U.S. between October 1, 2007 and July 26, 2024. The court appointed class counsel and representatives, excluded timely opt-outs, and retained jurisdiction over implementation of the settlement and allocation of the fund.

Keel v. House of Seven Gables Real Estate, Inc. (W.D. Mo. June 24, 2025): In this nationwide class action challenging real estate brokerage commission practices, the court granted final approval of settlements with brokerage and MLS defendants, including Side, Seven Gables, WFP, JPAR, Signature, First Team, Sibcy Cline, Brooklyn MLS, and CNYIS. The settlements apply to all U.S. home sellers from various date ranges who used a multiple listing service and paid a brokerage commission, and include both monetary relief and industry practice changes. Over 2.5 million claims were submitted, only one objection was filed, and 28 members opted out. The court also awarded class counsel one-third of the common fund in attorneys’ fees and approved continued administration and development of a plan of allocation for class member payments.

Gibson v. Nat’l Ass’n of Realtors (W.D. Mo. June 24, 2025): In this class action challenging alleged nationwide conspiracies in residential real estate commission practices, the court granted final approval of settlements with six brokerage defendants: NextHome, Keyes, John L. Scott, LoKation, Real Estate One, and Baird & Warner. The approved settlements certify nationwide classes (with some state-specific date ranges) of home sellers who listed properties on an MLS and paid broker commissions, and provide both monetary relief and changes to brokerage practices. The court found the settlements fair, reasonable, and adequate, noting the absence of objections, over 2.5 million claims submitted, and substantial notice reach. The court also approved attorneys’ fees of one-third of the fund and reimbursement of over $17 million in expenses, with further proceedings to establish the allocation plan.

Anderson v. Boyne USA, Inc. (D. Mont. June 25, 2025): In this class action challenging the rental management practices and governance structure at several Montana condominium hotels, the court granted final approval of a settlement. The class consists of all unit owners who participated in Boyne’s rental program since 2013. The agreement provides for $18.8 million in monetary relief and significant injunctive relief—including governance reforms and revised rental management terms—for a Rule 23(b)(2) class. The court also approved attorneys’ fees totaling approximately $8.33 million (including a one-third share of the monetary fund and CAPEX-related fees), $344,564.65 in litigation costs, and $10,000 service awards to each of the four class representatives. A single objection was withdrawn following a stipulation clarifying that the settlement did not affect unrelated litigation, and the court found the settlement fair, reasonable, and supported unanimously by the class.

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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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