Last Week in Antitrust Litigation (#030)

Week of October 6, 2025

Top Takeaways

1. Expanding Enforcement in Labor Markets: The Herzog and Paradise Tails filings exemplify continued Section 1 and state-law focus on wage-fixing and no-poach conduct—aligning with the DOJ’s post-2023 labor antitrust policy framework.

2. Information Exchange as Coordinated Conduct: Mendez v. Optimal Blue reflects renewed scrutiny of algorithmic and platform-facilitated data sharing, echoing recent enforcement theories treating analytics hubs as “cartel enablers.”

3. Refined Judicial Boundaries on Injury and Standing: The Treace dismissal and Spradlin mixed ruling illustrate courts’ tightening approach to antitrust injury and indirect-purchaser standing, particularly under Illinois Brick and rule-of-reason analyses.

New Cases Filed

Herzog v. Fluor Fed. Servs., Inc. (S.D. Fl. Oct. 3, 2025): Plaintiff filed a class action against Fluor Federal Services and several subcontractors—Atkinson Consulting, BJMC Global, iParametrics, Emergency Management Partners, and Novaces—alleging that defendants conspired to fix wages and restrict employee mobility in violation of Section 1 of the Sherman Act and the Florida Antitrust Act. The complaint alleges defendants entered into unlawful non-solicitation, anti-poaching, and wage-fixing agreements that prohibited subcontractors from recruiting one another’s FEMA Technical Assistance Contract (TAC) workers and pre-determined uniform hourly pay rates for FEMA disaster recovery projects. Herzog contends that these agreements suppressed competition in FEMA labor markets by eliminating job mobility and wage competition among contractors, artificially depressing compensation for hundreds of FEMA subcontractors across multiple states.

Paradise Tails Inc. v. D & D Seafood Corp. (S.D. Fl. Oct. 6, 2025): Plaintiffs filed a putative class action against D&D Seafood Corporation, Keys Fisheries, Inc., and their executives alleging a long-running conspiracy to fix the prices paid to Florida fishermen for stone crab claws and spiny lobsters in violation of, among others, Section 1 of the Sherman Act and the Florida Antitrust Act. Plaintiffs allege that from at least 2017 through 2025, defendants and co-conspirators met before each fishing season to agree on dockside purchase prices, coordinated price adjustments via calls and text messages, and blacklisted fishermen who sought higher prices. They contend the scheme suppressed fishermen’s compensation, eliminated price competition, and harmed Florida’s seafood economy while allowing defendants to widen profit margins on resale to restaurants and export markets.

Mendez v. Optimal Blue, LLC (M.D. Tenn. Oct. 3, 2025): Plaintiffs filed a putative class action against Optimal Blue, LLC, its parent Constellation Software, Inc., and several major mortgage lenders alleging a nationwide conspiracy to fix and inflate residential mortgage prices in violation of, among others, Section 1 of the Sherman Act. The complaint alleges that the lenders used Optimal Blue’s “Competitive Analytics” and “Competitive Data License” tools to exchange non-public, real-time loan-level pricing, margin, and borrower data—enabling them to coordinate rate and fee increases and eliminate price competition across the mortgage industry. Plaintiffs contend this data-sharing scheme transformed Optimal Blue into the central hub of a price-fixing cartel that raised average mortgage rate spreads nationwide and extracted supracompetitive profits from borrowers.

The follow-on cases that were filed are:

• Cement & Concrete v. N.Y. & Presbyterian Hosp. (E.D.N.Y. Oct. 3, 2025) (refiling voluntarily case alleging defendant engaged in anticompetitive conduct in the market for acute inpatient hospital services originally filed as Cement & Concrete v. N.Y. & Presbyterian Hosp. (S.D.N.Y. July 25, 2025))

• City of Augusta v. Oshkosh Corp. (E.D. Wis. Oct. 7, 2025) (alleging defendants conspired to inflate the price of fire trucks like in City of La Crosse v. Oshkosh Corp. (E.D. Wis. Aug. 20, 2025))

• Walgreen Co. v. Bausch Health Cos., Inc. (D.R.I. Oct. 7, 2025) (alleging defendants agreed to delay generic competition of a drug to treat IBS like in R.I. Laborers Health & Welfare Fund v. Bausch Health Cos. Inc. (D.R.I. Sept. 22, 2023))

Dispositive Orders and Verdicts

Treace Med. Concepts, Inc. v. Stryker Corp. (D.N.J. Oct. 2, 2025): In this case alleging that Stryker Corporation and its subsidiary Wright Medical Technology, Inc. used their dominance in the trauma service line market to unlawfully bundle and tie tarsal-metatarsal (“TMT”) bunion correction systems in violation of Section 1 of the Sherman Act, Section 3 of the Clayton Act, and the New Jersey Antitrust Act, the court granted defendants’ motion to dismiss the antitrust claims. The court found that Treace, as the market incumbent, failed to allege an antitrust injury because its claimed harm reflected the effects of increased competition rather than exclusionary conduct.

Spradlin v. Elanco Animal Health, Inc. (S.D. Ind. Oct. 7, 2025): In this case alleging unlawful exclusive-dealing and “no generics” agreements in the topical flea-and-tick medication market in violation of Sections 1 and 2 of the Sherman Act and multiple state antitrust laws, the court granted in part and denied in part Elanco’s motion to dismiss. The court held that (a) plaintiff lacked standing to seek Sherman Act damages because she was an indirect purchaser and failed to plausibly allege a “hub-and-spokes” conspiracy among pet retailers under Illinois Brick and Marion Healthcare, (b) state indirect-purchaser claims under Kansas and similar statutes could proceed because the complaint adequately alleged a relevant market for imidacloprid products sold through pet retailers under the rule of reason, and (c) Elanco’s remaining challenges—including state-specific procedural bars—failed, as the court followed recent precedent allowing Illinois, Maryland, Hawaii, and Massachusetts antitrust claims to proceed in federal court.

Class Actions and Other Settlements

Gibson v. Nat’l Ass’n of Realtors (W.D. Mo. Oct. 3, 2025): In this class action challenging alleged nationwide conspiracies in residential real estate commission practices, the court granted preliminary approval of settlements with Hanna Holdings, William Raveis, EXIT Realty, Windermere, and William L. Lyon & Associates. The settlements provisionally certify nationwide classes of home sellers who paid broker commissions between 2017 and the date of notice, depending on state. The court found the agreements fair, reasonable, and the best practicable means of resolving the claims, with a fairness hearing to be scheduled before final approval.

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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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