Last Week in Antitrust Litigation (#027)
- Kressin Powers
- Sep 21, 2025
- 7 min read
Week of September 15, 2025
Top Takeaways
Google faces escalating litigation risk: Major publishers have launched new monopolization suits, signaling continuing scrutiny of Google’s AI and ad tech practices.
Courts tightening aftermarket and tying claims: Recent dismissals underscore the high bar for alleging aftermarket lock-in and tying without concrete market power and competition evidence.
Exclusive dealing under fire: Teva’s win on key monopolization claims shows courts are receptive to theories of distribution foreclosure and sham Orange Book listings, raising compliance risks for pharma and beyond.
New Cases Filed
Penske Media Corp. v. Google LLC (D.D.C. Sept. 12, 2025): Penske Media, along with subsidiaries including Billboard, Rolling Stone, Variety, and The Hollywood Reporter, filed a complaint against Google alleging unlawful reciprocal dealing, monopoly leveraging, monopolization, and attempted monopolization in the market for general search services violation of, among others, the Sherman Act. Plaintiffs contend that Google has abused its monopoly in general search services by coercing publishers to provide content for republication in Featured Snippets, training large language models, and use in AI Overviews and AI Mode without compensation, thereby diverting traffic from publishers’ sites. According to the complaint, this conduct deprives publishers of revenue needed to sustain high-quality journalism, suppresses output in online publishing, entrenches Google’s dominance in search, and positions Google to monopolize online publishing by keeping users within its ecosystem.
Follow-on cases that were filed include:
Slate Grp. LLC v. Google LLC (S.D.N.Y.) (alleging Google monopolized the ad server and ad exchange markets like in United States v. Google LLC (E.D. Va. Jan. 24, 2023))
Dispositive Orders and Verdicts
WPEngine, Inc. v. Automattic Inc. (N.D. Cal. Sept. 12, 2025): In this case alleging monopolization, attempted monopolization, and unlawful tying in the web content management systems market and three WordPress aftermarkets in violation of, among other things, Sections 1 and 2 of the Sherman Act and the California Cartwright Act, the court granted defendants’ motion to dismiss the federal and state antitrust claims with leave to amend. The court held that (a) plaintiff failed to adequately plead a relevant aftermarket under the Epic Games factors because WordPress users would have known they were locked into WordPress-related aftermarkets, (b) plaintiff’s allegations of direct evidence of monopoly power—such as demands for licensing fees, blocking access to WordPress.org, and alleged quality reductions—did not show actual detrimental effects on competition in the foremarket, and (c) plaintiff’s indirect evidence theory was deficient because it cited WordPress’s overall web share but failed to allege defendants’ market share vis-à-vis other competitors.
Teva Pharms. USA, Inc. v. Corcept Therapeutics, Inc. (N.D. Cal. Sept. 12, 2025): In this case alleging that Corcept Therapeutics and its distributor Optime Care unlawfully monopolized and restrained trade in the U.S. market for Korlym (mifepristone) used to treat Cushing’s syndrome, in violation of Sections 1 and 2 of the Sherman Act and related California laws, the court granted in part and denied in part defendants’ motion to dismiss, allowing most claims to proceed. The court held that (a) Teva’s claims were not time-barred due to the continuing violation theory but it could only seek damages within the four years preceding the filing of the complaint, (b) Teva plausibly alleged an exclusive-dealing arrangement that foreclosed nearly 100% of the relevant distribution channel, (b) Teva sufficiently pled monopoly power, anticompetitive conduct (exclusive dealing), and causal antitrust injury under Section 2 based on fraudulent Orange Book listings, exclusive dealing, kickbacks, and the first sham patent suit, though the remaining infringement suits were not objectively baseless and therefore immune, and (c) Teva’s omnibus state-law antitrust claims were dismissed with leave to amend.
United States v. Keysight Techns., Inc. (D.D.C. Sept. 15, 2025): In this case alleging that Keysight Technologies’ proposed merger with Spirent Communications would substantially lessen competition in the high-speed ethernet, network security testing, and RF channel emulator markets in violation of Section 7 of the Clayton Act, the court entered a consent judgment requiring divestiture of Spirent’s high-speed ethernet testing, network security testing, and RF channel emulation businesses to an approved acquirer. The consent judgment also imposes certain safeguards, including asset preservation, transition services, firewall protections, and a divestiture trustee mechanism to ensure the remedy’s effectiveness and prevent defendants from frustrating it.
Jazz Pharms., Inc. v. Avadel CNS Pharms., LLC (D. Del. Sept. 15, 2025): In this case asserting counterclaims alleging that Jazz Pharmaceuticals unlawfully maintained its market position in the narcolepsy treatment market by improperly listing and refusing to delist a REMS-related patent in the FDA’s Orange Book, in violation of Section 2 of the Sherman Act, the court denied Jazz’s motions for summary judgment on antitrust standing and liability. The court held that (a) factual disputes remained as to whether the FDA would have approved its competing oxybate drug LUMRYZ earlier but for Jazz’s improper Orange Book listing, warranting denial of the summary motion on antitrust standing grounds, and (b) denial of the summary judgment motion related to antitrust standing required denial of Jazz’s liability motion under the court’s summary judgment procedures.
Bradford Aquatic Grp. LLC v. Condor, Inc. (C.D. Cal. Sept. 15, 2025): In this case alleging counterclaims for attempted monopolization and price-fixing in the markets for salesmen within the pool and spa industry and pool and spa fabricators in violation of, among other things Section 2 of the Sherman Act, the court granted plaintiffs’ motion to dismiss the counterclaims without prejudice. The court held that (a) the counterclaims were barred by Noerr-Pennington immunity because plaintiffs’ underlying Lanham Act and trade secret lawsuit was not objectively baseless, (b) defendants’ allegations of sham litigation failed to meet the heightened pleading requirement, relying only on conclusory assertions rather than specific facts showing the suit was meritless, and (c) settlement proposals incidental to that litigation were treated as conduct protected under Noerr-Pennington’s extension to petitioning activity.
FlightBlitz, Inc. v. Tzell Travel, LLC (C.D. Cal. Sept. 17, 2025): In this case alleging price-fixing in the travel services industry in violation of Section 1 of the Sherman Act and California’s Cartwright Act, the court denied defendants’ motion for summary judgment. The court held that (a) whether defendants and All Star Travel Group (“ASTG”) functioned as a single entity incapable of conspiring presented a triable issue of fact under American Needle, given plaintiffs’ evidence of independent management, separate economic interests, and competition, and (b) evidence that ASTG’s president may have acted for his own financial advantage created a fact issue as to the principal–agent exception to conspiracy liability, precluding summary judgment.
Cavalleri v. Hermes Int'l (N.D. Cal. Sept. 17, 2025): In this case alleging unlawful tying in the sale of Birkin handbags in violation of, among others, the Sherman Act and the Cartwright Act, the court granted Hermès’s motion to dismiss with prejudice. The court held that (a) plaintiffs failed to plausibly allege a relevant tying market or market power, relying only on outdated articles and conclusory assertions, and (b) the complaint did not plausibly allege injury to competition in the proposed tied product market, which impermissibly lumped diverse, non-substitutable goods together, warranting dismissal of the federal antitrust claims with prejudice and declining supplemental jurisdiction over state claims.
Muddy Bites, Inc. v. Evergreen USA LLCA (S.D.N.Y. Sept. 17, 2025): In this case asserting a counterclaim for attempted monopolization of the U.S. mini-cone snack market in violation of the Sherman Act, the court denied Muddy Bites’ motion to dismiss the antitrust claim. The court held that Noerr-Pennington immunity could not be resolved at the pleading stage because Evergreen plausibly alleged Muddy Bites fraudulently procured its trademark and used it as a sham to exclude competition.
Class Action Certifications and Settlements
In re Seroquel XR (Extended Release Quetiapine Fumarate) Antitrust Litig. (D. Del. Sept. 12, 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 granted final approval of settlements with AstraZeneca and Handa Pharmaceuticals, dismissing all direct purchaser class claims with prejudice and approving the proposed plan of allocation. The certified class includes U.S. individuals and entities that directly purchased brand or generic Seroquel XR in specified strengths between August 2, 2015 and April 30, 2017, excluding several major retailers that opted out, and the settlement provides for distribution through RG/2 Claims Administration. The court awarded $16.85 million in attorneys’ fees (32% of the fund), $4.41 million in expenses, and $100,000 service awards to each of the two class representatives.
Smart v. NCAA (E.D. Cal. Sept. 16, 2025): In this putative class action alleging that the NCAA’s now-repealed bylaw barring compensation for Division I baseball volunteer coaches violated the antitrust laws, the court granted final approval of a $49.25 million settlement and certified a settlement class of approximately 1,000 volunteer coaches who served between November 29, 2018 and July 1, 2023. The agreement provides $32.9 million in direct payments to class members (averaging about $36,000 each), $14.8 million in attorneys’ fees (30% of the fund), $1.38 million in costs, and $7,500 incentive awards for each of the two named plaintiffs (totaling $15,000). With no objections or opt-outs and nearly 99% notice reach, the court found the settlement fair, reasonable, and adequate, emphasizing that it returned about 99% of estimated damages, and dismissed the case with prejudice while retaining jurisdiction to enforce the agreement.
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