Last Week in Antitrust Litigation (#025)

Week of September 2, 2025

Top Takeaways

1. Behavioral Remedies in Big Tech: The Google remedy order eschews structural breakups in favor of conduct-based relief, reinforcing D.C. Circuit precedent and signaling courts’ caution in fast-moving tech markets.

2. Expansion of Private Enforcement: New complaints—ranging from Fox’s alleged carriage restrictions to NCAA eligibility rules—illustrate plaintiffs’ reliance on established precedent to extend antitrust theories into adjacent markets.

3. Judicial Emphasis on Plausibility and Proof: Courts are demanding concrete evidence of parallel conduct and antitrust injury (dismissing speculative hotel and energy shot claims) while allowing well-supported pharma and digital media allegations to proceed, underscoring the centrality of rigorous pleading and economic analysis.

   
   

New Cases Filed

Newsmax Broad., LLC v. Fox Corp. (S.D. Fl. Sept. 3, 2025): Newsmax filed a complaint against Fox Corporation and Fox News alleging various anticompetitive conduct in the market for right-leaning pay TV news in violation of, among others the Sherman Act and the Florida Antitrust Act. The complaint alleges that Fox conditions carriage of its must-have Fox News Channel and sports programming on distributors’ agreement not to carry, or to disadvantage, competing right-leaning networks like Newsmax, while also imposing financial penalties, forcing carriage of lesser-watched Fox channels, and using restrictive “drag down” and other contractual provisions to deter carriage. Newsmax contends this conduct foreclosed its growth, raised rivals’ costs, suppressed competition, deprived consumers of meaningful choice, and enabled Fox to extract supracompetitive fees from distributors, thereby harming both competitors and consumers. The complaint seeks treble damages, injunctive and declaratory relief, pre- and post-judgment interest, and attorneys’ fees and costs.

Follow-on cases that were filed include:

• Patterson v. NCAA (M.D. Tenn. Sept. 2, 2025) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))

Dispositive Orders and Verdicts

In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa. Aug. 27, 2025): In this case alleging horizontal price-fixing of the generic drug clomipramine in violation of Section 1 of the Sherman Act and various state antitrust and consumer-protection statutes, the court denied Mylan’s motion for summary judgment in the direct purchase plaintiff  action, granted in part and denied in part Mylan’s and defendants’ summary judgment motions in the end-payer plaintiff (“EPP”) action, and dismissed without prejudice Taro and Sandoz’s joint summary judgment motion due to pending settlements. The court held that plaintiffs’ evidence (a) raised a genuine issue of material fact as to parallel conduct and plus factors—particularly traditional conspiracy evidence such as contemporaneous communications, coordinated price hikes, and expert economic analysis—sufficient to exclude independent oligopolistic behavior, (b) supported antitrust standing, and (c) did not justify summary judgment on Comcast-based damages challenges, while Mylan prevailed only on EPP claims tied to its CVS sales.

Moskowitz v. Am. Express Co. (E.D.N.Y. Aug. 28, 2025): In this case alleging that American Express’s Non-Discrimination Provisions restrained trade in the two-sided market for credit card transactions in violation of the Sherman Act and state antitrust laws, the jury returned a verdict for defendants on the federal claims but found liability under Illinois state law. The jury determined that (a) plaintiffs proved a relevant product market but failed to show the provisions unreasonably restrained trade or caused injury to any of the federal classes (including Alabama, D.C., Kansas, Maine, Mississippi, North Carolina, Oregon, and Utah), (b) as to Illinois, plaintiffs established that American Express engaged in unfair practices that proximately caused damages to the Illinois non-rewards credit card class (but not the Illinois debit card class), awarding $6,006,339.55 in compensatory damages, and (c) punitive damages of $6,500,000 were warranted, while rejecting mitigation defenses.

Portillo v. Costar Grp., Inc. (W.D. Wash. Aug. 29, 2025): In this case alleging “price fixing in its modern form” in the luxury hotel market through participation in CoStar’s Smith Travel Research (“STR”) information exchange in violation of Section 1 of the Sherman Act, the court granted defendants’ motion to dismiss with leave to amend. The court held that plaintiffs failed to plausibly allege (a) direct evidence of an agreement because STR’s terms and conditions did not require hotel operators to share “the most recent price charged or quoted,” the complaint did not allege such prices could be derived from STR reports, and plaintiffs’ repeated references to “price information” were conclusory, (b) parallel conduct because plaintiffs did not plead that defendants exchanged actual hotel room prices, their only common conduct was contracting with STR to receive aggregated benchmarking reports, which the court found insignificant, and their economic analysis was too attenuated to STR reports, and (c) a hub-and-spoke conspiracy because plaintiffs failed to show that either the hub (STR) or spokes (hotel operators) exchanged actual pricing information, making the alleged conspiracy speculative, and therefore the court did not reach intent to harm or restrain trade or injury.

Vitamin Energy, Inc. v. Bhargava (E.D. Mich. Aug. 29, 2025): In this case alleging that defendants conspired to monopolize the U.S. energy shot market in violation of, among other things, the Sherman Act, the court granted defendants’ motion to dismiss with prejudice. As to the Sherman Act claims, the court held that (a) plaintiff lacked antitrust standing because its allegations of counter placement and rebate agreements showed only harm to a competitor, not competition, particularly given plaintiff’s continued sales and its own similar contracts, and (b) the attempted monopolization claim failed because the same agreements did not amount to anticompetitive conduct; the court further struck irrelevant allegations and denied leave to amend as futile.

United States v. Google LLC (D.D.C. Sept. 2, 2025): In this case alleging that Google monopolized the general search services and search text advertising markets in violation of Section 2 of the Sherman Act, the court issued its remedy order following its prior finding of liability. The court ordered (a) injunctions banning exclusive default search distribution agreements; however, Google is allowed to pay for non-exclusive default placement (b) mandatory sharing of certain search index and user-interaction data with competitors, and (c) no structural breakup or divestiture of Google assets, reflecting a restrained remedy focused on behavioral changes in light of rapidly evolving AI-driven competition. (Disclaimer: Kressin Powers represents several third-party witnesses in connection with this litigation.)

Litovich v. Bank of Am. Corp. (S.D.N.Y. Sept. 2, 2025): In this case alleging a conspiracy among major banks to boycott certain trading platforms that restrained competition in the secondary corporate bond market in violation of Section 1 of the Sherman Act, the court granted defendants’ motion to dismiss. The court found that (a) plaintiffs failed to plead direct or circumstantial facts supporting a plausible inference of an agreement, as their allegations of parallel conduct were conclusory and reflected only rational independent self-interest, (b) the alleged “catch-and-kill” acquisitions of platforms like TradeWeb, BondDesk, and Trading Edge were inadequately tied to any concerted scheme and consistent with lawful business strategies, and (c) claims were independently barred by the four-year statute of limitations because plaintiffs did not plausibly allege a continuing violation or fraudulent concealment sufficient to toll the limitations period, and leave to amend was denied as futile.

2311 Racing LLC v. Nat'l Ass'n for Stock Car Auto Racing (W.D.N.C. Sept. 3, 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 2 of the Sherman Act, the court denied plaintiffs’ motion for a preliminary injunction. The court found that (a) plaintiffs could not show irreparable harm because NASCAR changed its rules to guarantee their participation as “Open” cars in the remaining 2025 Cup Series races, (b) any financial harm from lost Charter payments, drivers, or sponsors was compensable with money damages and therefore not irreparable, and (c) NASCAR’s agreement not to sell the disputed Charters and to limit creation of new Charters to four (Nos. 37–40) maintained the status quo and ensured equitable remedies would remain available if plaintiffs ultimately prevail.

LyricFind, Inc. v. Musixmatch, S.P.A. (N.D. Cal. Sept. 3, 2025): In this case alleging that Musixmatch, backed by TPG, engaged in anticompetitive conduct to monopolize the lyric data services and lyric rights licensing markets in violation of, among other things, the Sherman Act and California’s Cartwright Act, the court granted in part and denied in part the defendants’ motions to dismiss and denied Musixmatch’s personal jurisdiction challenge. The court held that (a) LyricFind plausibly alleged antitrust injury because the Warner Chappell exclusive resulted in no choices and no competition with no pro-competitive justification, (b) the complaint alleged substantial foreclosure, (c) the complaint adequately defined two relevant product market (lyric data services and a sublicensing submarket) and plausibly alleged Musixmatch possessed monopoly power in them, (d) conspiracy-to-monopolize claims failed for lack of allegations that Warner Chappell specifically intended to further Musixmatch’s monopoly, and (d) TPG could face liability based on its independent participation in the scheme.

Class Action Certifications and Settlements

In re Surescripts Antitrust Litig. (N.D. Ill. Aug. 28, 2025): In this class action alleging that Surescripts and Allscripts (now Veradigm) engaged in anticompetitive conduct in the market for electronic prescription routing, the court preliminarily approved a settlement between plaintiffs and the two defendants. The court certified a settlement class of all U.S. pharmacies that paid for e-prescriptions routed through the Surescripts network from September 21, 2010 through July 18, 2025, approved the proposed notice plan, and appointed Angeion Group as claims administrator and Huntington National Bank as escrow agent. Notice will issue within 30 days, and class members must submit claims or request exclusion or objection within 60 days thereafter, with a final approval hearing set for December 2, 2025.

In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa. Aug. 29, 2025): In this antitrust class action by direct purchasers alleging price-fixing of generic drugs, the court preliminarily approved settlements with Greenstone LLC and Pfizer Inc. and certified a settlement class of direct purchasers who bought specified generic drugs in the U.S. from 2009–2019. The court also preliminarily approved the plan of allocation, approved notice procedures (including mail, publication, and a settlement website), appointed A.B. Data as claims administrator and Huntington National Bank as escrow agent, and scheduled a fairness hearing for April 8, 2026; plaintiffs’ counsel indicated they will seek up to $3 million in expenses, $40,000 in service awards, and one-third of the net settlement fund for attorneys’ fees.

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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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