Last Week in Antitrust Litigation (#028)

Week of September 22, 2025

Top Takeaways

1. Big Pharma Under Fire: Bausch faces a new reverse-payment class action—highlighting continued risk for branded drugmakers using settlements to delay generics.

2. Illumina Targeted Again: Element Biosciences’ suit underscores heightened antitrust scrutiny of life sciences incumbents leveraging pricing and exclusivity to block rivals.

3. NCAA Rule Struck Down: A federal court enjoined the “Five-Year Rule,” reinforcing that labor-market restraints in college sports face real Sherman Act exposure.

   
   

New Cases Filed

R.I. Laborers Health & Welfare Fund v. Bausch Health Cos. Inc. (D.R.I. Sept. 22, 2025): R.I. Laborers Health and Welfare Fund filed a putative class action against Bausch Health and other defendants alleging a scheme to delay generic competition for Bausch’s branded drug Apriso in violation of, among others, the Sherman Act and state antitrust laws. According to the complaint, Bausch and multiple generic manufacturers entered into unlawful reverse-payment settlements—including no-authorized-generic promises and cash or other consideration—that postponed the launch of lower-cost generic Apriso. Plaintiffs allege this conduct maintained supracompetitive pricing, eliminated price competition that would have quickly reduced Apriso’s cost, and caused purchasers to pay artificially inflated prices for years.

Element Biosciences, Inc. v. Illumina, Inc. (N.D. Cal. Sept. 22, 2025): Element Biosciences filed a complaint against Illumina alleging monopolization, attempted monopolization, unlawful exclusive dealing, and tying in the market for short-read next-generation DNA sequencing (“NGS”) instruments, consumables, and instrument services in violation of, among others, the Sherman Act. Element asserts that Illumina engaged in anticompetitive conduct including (a) threatening punitive pricing on NGS consumables and instrument services for preexisting NGS instruments, (b) imposing explicit and de facto exclusive dealing on customers for short-read NGS instruments, (c) predatory below-cost pricing and bundled discounts, and (d) disparaging Element to existing and prospective customers. The complaint alleges these practices foreclosed competition, drove up prices, suppressed innovation, and harmed consumers and research institutions by entrenching Illumina’s dominance.

The follow-on cases that were filed are:

• Haff Poultry, Inc. v. Foster Farms LLC (N.D. Cal. Sept. 19, 2025) (alleging poultry companies illegally fixed chicken boiler growers’ compensation like in In re Broiler Chicken Grower Antitrust Litig. (No. II) (E.D. Okla.))

• Haff Poultry, Inc. v. Peco Foods, Inc. (N.D. Ill. Sept. 19, 2025) (same)

• Haff Poultry, Inc. v. George's, Inc. (W.D. Va. Sept. 19, 2025) (same)

• Haff Poultry, Inc. v. House of Raeford Farms Inc. (D.S.C. Sept. 19, 2025) (same)

Dispositive Orders and Verdicts

Neumark v. Swedish Match N. Am. LLC (E.D. Va. Sept. 18, 2025): In this case alleging monopolization, attempted monopolization, and unlawful merger in the U.S. market for modern oral nicotine pouches in violation of the Sherman Act, Section 7 of the Clayton Act, and state antitrust laws, the court granted defendants’ motion to dismiss. The court held that plaintiffs failed to plausibly allege (a) a horizontal merger theory because Philip Morris lacked a competing U.S. product when it acquired Swedish Match, and their allegations of market concentration, pricing, and innovation effects were conclusory and contradictory, (b) a potential competition theory because plaintiffs did not plead “certain” or “unequivocal” evidence that Philip Morris would have entered the U.S. market absent the merger, and (c) monopolization, attempted monopolization, or a Section 1 conspiracy because the acquisition by a non-market participant did not increase market share or constitute anticompetitive conduct, dooming both the federal and state antitrust claims .

Martinson v. NCAA (D. Nev. Sept. 18, 2025): In this case alleging that the NCAA’s “Five-Year Rule” unlawfully restrains trade in the nationwide labor market for competitive college football services in violation of Section 1 of the Sherman Act, the court granted plaintiff’s motion for a preliminary injunction, enjoining the NCAA from applying the rule to disqualify him from the 2025–2026 season and from enforcing its Rule of Restitution against him or UNLV. The court held that (a) the Five-Year Rule is commercial conduct within the scope of the Sherman Act because NCAA eligibility rules now operate in a compensated labor market, (b) the NCAA’s rules likely have substantial anticompetitive effects by categorically excluding JUCO athletes under the NCAA’s monopsony power, (b) the NCAA failed to show valid procompetitive justifications, and (c) less restrictive alternatives exist, such as starting the eligibility clock only upon enrollment at an NCAA institution, with the court also finding irreparable harm, equities, and public interest weighed in favor of injunctive relief.

Collision Chiropractors LLC v. Arizona (D. Ariz. Sept. 19, 2025): In this case alleging that the Arizona Board of Chiropractic Examiners and its chairman restrained trade in the Arizona chiropractic services market in violation of the Sherman Act, the court granted defendants’ motion to dismiss with leave to amend. The court held that (a) plaintiff failed to plead facts showing defendants’ conduct had a substantial effect on interstate commerce, (b) conclusory arguments that such effects were “self-evident” could not substitute for specific allegations in the complaint, and (c) because plaintiff bears the burden of establishing subject matter jurisdiction, dismissal was required, though leave to amend was appropriate since allegations might be cured.

Yiwu Jieya E-Commerce Co. Ltd. v. Xu (W.D. Wash. Sept. 19, 2025): In this case alleging Walker Process fraud and sham patent enforcement in the Amazon marketplace for rotating desk organizers in violation of, among other things, the Sherman Act, the court granted plaintiff’s motion for a temporary restraining order directing defendants to retract prior Amazon complaints and barring them from submitting further complaints based on the patent at issue. The court found that (a) plaintiff was likely to succeed on the merits because it presented unrebutted evidence that the accused products were publicly sold more than one year before the patent’s filing date, rendering the patent likely invalid or, alternatively, non-infringed, (b) plaintiff demonstrated irreparable harm through loss of access to its best-selling products, damaged rankings, reputation, goodwill, and threatened layoffs that monetary damages could not remedy, and (c) the balance of equities and public interest favored relief because the TRO restored the status quo, imposed minimal burden on defendants who could later recover damages if successful, and prevented use of questionable intellectual property complaints to suppress online competition.

Avangrid, Inc. v. Nextera Energy, Inc. (D. Mass. Sept. 22, 2025): In this case alleging that NextEra unlawfully sought to monopolize the wholesale electricity, capacity, and access markets in New England in violation of, among other things, the Sherman Act and the Massachusetts Antitrust Act, the court granted NextEra’s motion to dismiss the antitrust claims. The court held that (a) Avangrid adequately alleged wholesale electricity and capacity as relevant product markets but failed to plausibly define an “upstream access” market, (b) Avangrid did not allege facts showing NextEra possessed monopoly power or a predominant market share, particularly given ISO-NE’s administration of competitive pricing and interconnection rules, and (c) NextEra’s use of the Seabrook “Breaker” and other delaying tactics, even if improper, did not plausibly support an inference of supracompetitive pricing power or a dangerous probability of monopolization, rendering the claims insufficient under Section 2.

Sandford v. Morris (W.D. Mo. Sept. 22, 2025): In this case alleging, among other claims, that defendants conspired in violation of the Sherman Act, the court denied defendants’ motion to dismiss. The court held that (a) plaintiffs adequately alleged an agreement among legally distinct actors pursuing separate economic interests, citing American Needle for the “independent centers of decisionmaking” standard, (b) plaintiffs plausibly pleaded a Sherman Act conspiracy by alleging that Morris and Freeman diverted assets, acquired LLC debt, and misused confidential information and trade secrets to reduce competition in markets served by the shared LLCs, and (c) whether defendants acted as independent economic actors or as a single entity was a factual issue inappropriate for resolution at the pleading stage, making dismissal unwarranted.

Class Action Certifications and Settlements

In re Amitiza Antitrust Litig. (D. Mass. Sept. 19, 2025): In this antitrust class action alleging Takeda delayed generic entry of Amitiza through an agreement with Par Pharmaceutical, the court granted in part class certification for both direct purchasers and end-payors. The court certified a direct purchaser class of entities that bought brand or generic Amitiza (excluding Meijer, due to arbitration, and thirteen generic-only purchasers lacking standing), with KPH appointed as representative and Hagens Berman as lead counsel, and certified two end-payor classes (damages and unjust enrichment) covering third-party payors across specified states, with Premera as representative and Lowey Dannenberg as lead counsel. The court also ordered Takeda to withdraw certain letters sent to absent class members, denied motions to exclude plaintiffs’ experts and to strike a declaration, and confirmed that common issues of antitrust injury and damages predominate, allowing both classes to proceed.

In re Delta Dental Antitrust Litig. (N.D. Ill. Sept. 22, 2025): In this MDL in which dentists and dental practices allege that Delta Dental’s national association and 39 member companies conspired to fix reimbursement rates and allocate territories, the court denied certification of a nationwide class of approximately 240,000 providers. The court held that plaintiffs failed to show antitrust impact and damages could be proven through common evidence, given significant local market variations, and concluding that the conduct must be assessed under the rule of reason. The court also resolved related Daubert motions, excluding one plaintiffs’ expert (David Lewin), but admitting others.

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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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