Last Week in Antitrust Litigation (#047)
- Kressin Powers
- Feb 9
- 5 min read
Week of February 2, 2026
Top Takeaways
Structural Presumptions Drive Merger Challenges: United States v. Reddy Ice reflects continued reliance on Philadelphia National Bank–style concentration analysis, with regulators emphasizing loss of head-to-head rivalry and durable entry barriers in localized markets.
Judicial Gatekeeping Narrows Private Antitrust Claims: Decisions in Pease, Dhamala, Brown v. NFL, and OWN Your Hunger reaffirm rigorous application of standing, market definition, and competitive-effects pleading requirements under Twombly and Iqbal.
HSR Enforcement Targets Pre-Closing Conduct: The XCL Resources consent decree highlights ongoing DOJ scrutiny of gun-jumping, reinforcing that violations of Section 7A can carry significant penalties even absent consummation of the transaction.
New Cases Filed
United States v. Reddy Ice LLC (D.D.C. Jan. 30, 2026): The United States sued to block Reddy Ice LLC’s proposed acquisition of Arctic Glacier, alleging the merger would substantially lessen competition in violation of Section 7 of the Clayton Act. The complaint asserts that Reddy Ice and Arctic Glacier are two of the three largest packaged ice producers in the country and directly compete to supply retail chains, airlines, and airline caterers. The DOJ contends that the merger would eliminate head-to-head competition, leading to higher prices and reduced service quality in several key regional markets—specifically for retail chains in Oregon, Washington, and Southern California, and for airlines and caterers in the New York City and Boston metropolitan areas. The complaint argues that smaller local producers cannot replace this competition due to limited scale, capital costs, and logistical barriers, and that no merger-specific efficiencies would offset the harms.
The follow-on cases that were filed include:
Connecticut v. Novartis AG (D. Conn. Feb. 2, 2026) (alleging conspiracy to fix and maintain prices of generic drugs like in In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa.))
Dispositive Orders and Verdicts
Pease v. SEC (W.D. Tex. Jan. 30, 2026): In companion rulings arising from alleged manipulation of MMTLP share trading and the December 2022 market halt, the magistrate judge recommended that the court dismiss all antitrust claims against both FINRA and Next Bridge Hydrocarbons with prejudice. The court held that plaintiff failed to plead he has antitrust standing and that the complaint lacked sufficient allegations to establish a relevant product or geographic market, warranting a Rule 12(b)(6) dismissal of the antitrust claims. The court also found that it did not have personal jurisdiction over FINRA, further warranting dismissal of the complaint against it. Finding the defects incurable after multiple amendments, the court recommended that plaintiff be denied leave to amend.
Dhamala v. Elsevier, B.V. (E.D.N.Y. Jan. 30, 2026): In this case alleging a worldwide conspiracy among major academic publishers to restrain trade through coordinated editorial rules, the court dismissed the complaint in full. The court held that the complaint failed to plausibly allege that the “Foreign Defendants” purposefully availed themselves of doing business in the U.S. through their own conduct, the conduct of subsidiaries, or the conduct of any conspirators, and thus dismissed the complaint against them for lack of personal jurisdiction. The court also held that plaintiffs—academic authors and reviewers—failed to plausibly allege any unlawful agreement under Section 1 of the Sherman Act, finding that the “International Ethical Principles for Scholarly Publication” adopted by defendants’ trade group were nonbinding best-practice guidelines, not a contract or policy controlling members’ competitive conduct. The court rejected plaintiffs’ claim that the principles constituted direct evidence of a conspiracy, and the court dismissed all claims with prejudice, denying leave to amend as futile.
Brown v. NFL (S.D.N.Y. Feb. 3, 2026): In this case alleging that the National Football League’s prohibition on its teams using the social media platform Bluesky constituted an unreasonable restraint of trade under Section 1 of the Sherman Act, the court dismissed the complaint for lack of Article III standing. The court held that the fan plaintiffs, who sought injunctive relief, failed to allege any concrete injury because NFL team content remained freely available to them on X (formerly Twitter) and they suffered no monetary or competitive harm from its absence on Bluesky. The court found that plaintiffs’ ideological preference for a different platform did not constitute a cognizable injury-in-fact, distinguishing cases recognizing diminished product value or choice. The court dismissed the action without prejudice for lack of subject-matter jurisdiction and denied leave to amend as futile.
United States v. XCL Res. Holdings, LLC (D.D.C. Feb. 4, 2026): In this case alleging a gun-jumping violation under Section 7A of the Clayton Act, the court granted the United States’ unopposed motion for entry of a final judgment against XCL Resources Holdings, Verdun Oil Company II, and EP Energy. The court held that (a) the proposed consent decree, which imposes $5.68 million in civil penalties and detailed prohibitions on pre-consummation control and information sharing, reasonably remedies the alleged HSR Act violations, (b) the compliance and monitoring provisions are sufficiently clear and enforceable to deter future violations, and (c) entry of the decree is in the public interest under the Tunney Act because it facilitates effective premerger antitrust enforcement.
OWN Your Hunger LLC v. Linus Tech., Inc. (S.D.N.Y. Feb. 4, 2026): In this case alleging defendants engaged in a monopolistic scheme to eliminate competition in the market for EPG, a patented fat substitute, the court granted defendants’ motion to dismiss and denied plaintiffs’ motion for a preliminary injunction. The court held that (a) plaintiffs failed to plead competitive harm in the pleaded “global market for EPG supply” because output, price, and quality were not alleged to have worsened and the supplier monopoly existed pre- and post-merger, (b) plaintiffs’ alternative downstream-market theories failed because they did not plausibly define any downstream relevant market or defendants’ power within it to support foreclosure or monopoly-leveraging theories, and (c) without a viable antitrust claim plaintiffs could not show a likelihood of success required for injunctive relief.
Class Actions and Other Settlements
Pro Slab, Inc. v. Argos USA, LLC (D.S.C. Feb. 4, 2026): In this class action alleging price-fixing of Ready-Mix Concrete, the court granted preliminary approval of a settlement with Elite Concrete, conditionally certifying a settlement class of direct purchasers of Ready-Mix Concrete from specified plants between 2010 and 2016. It found the Rule 23(a) and (b)(3) requirements satisfied for settlement purposes, appointed class representatives and settlement class counsel, and approved the proposed notice plan with Verita Global as settlement administrator. The court determined the settlement falls within the range of reasonableness, directed dissemination of notice, set opt-out and objection deadlines, and scheduled a final fairness hearing for June 10, 2026.
*** *** ***
If you have any antirust questions or would like more information about any of these matters, please contact one of the following authors:
This newsletter has been prepared by Kressin Powers LLC for educational and informational purposes only regarding recent legal developments and does not constitute advertising or solicitation. No legal or business decision should be based on its content. Neither this publication nor the lawyers who authored it are rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to any person constitute the establishment of an attorney-client relationship. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their jurisdiction. The invitation to contact is not a solicitation for legal work under the laws of any jurisdiction in which Kressin Powers LLC lawyers are not authorized to practice. Confidential information should not be sent to Kressin Powers LLC without first communicating directly with a member of the Firm about establishing an attorney-client relationship.
Comments