Last Week in Antitrust Litigation (#060)

Week of May 4, 2026

Top Takeaways

1. Information Sharing and Vertical Restraints Remain Central Enforcement Themes: Twomey v. Ace Hardware and Ellman v. BTL advance Section 1 and 2 theories targeting coordinated pricing architectures, resale restraints, and data-sharing mechanisms that allegedly suppress intrabrand and local-market competition.

2. Courts Continue to Sustain Complex Foreclosure Theories: Decisions in Teva v. Corcept, ZoomInfo v. ZenLeads, and FTC v. Zillow demonstrate judicial receptiveness to exclusionary conduct claims involving exclusive dealing, acquisitions, data control, and platform leverage where plaintiffs plausibly allege market-wide harm.

3. Parallel Conduct Plus-Factor Pleading Remains Robust in MDLs: The latest Generic Drug MDL ruling reinforces that detailed allegations of coordinated pricing, interfirm communications, and conduct against self-interest remain sufficient to survive dismissal in sprawling industrywide conspiracy litigation.

   
   

New Cases Filed

Kessler v. CommonSpirit Health (D. Kan. May 1, 2026): Plaintiff filed suit against CommonSpirit Health and affiliated entities alleging anticompetitive conduct in the market for hospital-based emergency medical services in Southwest Kansas in violation of, among others, the Sherman and Clayton Acts. The complaint alleges that defendants acquired the only competing hospital in the region, denied physicians admitting privileges and access to medical records, and used regulatory complaints to exclude and retaliate against competing physicians. According to plaintiff, this conduct foreclosed physician competition, reduced patient access to care, increased prices, and degraded quality in a market with high barriers to entry and no practical alternatives.

Doehr v. Lucky Strike Ent. Corp. (W.D. Wash. May 6, 2026): Plaintiffs filed a putative class action against Lucky Strike and AMF Bowling Centers alleging that defendants engaged in a nationwide acquisition-driven scheme to monopolize local markets for bowling centers in violation of, among others, Sherman and Clayton Acts. The complaint alleges that defendants acquired competing bowling centers and related assets, reduced output by closing locations, imposed algorithmic dynamic pricing and aggressive upselling practices, and leveraged scale to obtain discriminatory supplier terms that foreclose rivals. According to plaintiffs, this conduct has increased prices, reduced quality, limited consumer choice, and raised barriers to entry across numerous local markets.

Twomey v. Ace Hardware Corp. (N.D. Ill. May 7, 2026): Plaintiff filed a putative class action against Ace Hardware and Epicor Software alleging price fixing, market allocation, and anticompetitive information sharing among Ace cooperative member stores in violation of Section 1 of the Sherman Act. The complaint alleges that defendants collected and shared detailed point-of-sale pricing and sales data among Ace member stores, organized stores into geographic “Price Zones” with coordinated “Price Levels,” issued pricing directives and “Critical Price Change” alerts through Epicor software, and restricted store entry and ownership transfers to limit competition among Ace stores in local markets. According to plaintiff, these practices enabled Ace member stores to coordinate retail prices, avoid price competition, and maintain supracompetitive margins while limiting entry and consumer choice in local convenience hardware markets nationwide.

Ellman Aesthetics, LLC v. BTL Indus., Inc. (D. Mass. May 7, 2026): Ellman Aesthetics and Dr. Ellman filed suit against BTL Industries alleging that BTL imposed unlawful minimum advertised pricing restraints and monopolized markets for services using BTL’s body-contouring and skin-tightening equipment in violation of, among other things, the Sherman and Robinson-Patman Acts. The complaint alleges that BTL required purchasers of Emsculpt NEO® and related devices to adhere to fixed minimum advertised prices for treatment sessions, imposed coercive penalties for discounting including increased consumable costs and removal from BTL’s provider network, restricted resale of equipment through transfer and recertification fees, and fraudulently induced providers to purchase expensive equipment through false representations about profitability and market demand. According to plaintiffs, these practices foreclosed competition among providers, inflated consumer prices, reduced provider profitability, and trapped providers in unprofitable investments while preserving BTL’s dominance over markets for services using its patented equipment.

The follow-on cases that were filed are:

• Gilman Feed Co. v. CF Indus. Holdings, Inc. (N.D. Ill. May 1, 2026) (alleging defendants conspired to fix the price of fertilizers like in Stevens v. Nutrien AG Sols. (N.D. Ill. Mar. 7, 2026))

• Johnson v. Mosaic Co. (W.D. Mo. May 4, 2026) (same)

• HBP I, LLC v. Actavis Holdco US, Inc. (E.D. Pa. May 2, 2026) (alleging conspiracy to fix and maintain prices of generic drugs like in In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa.))

• Oak Point Partners, LLC v. Actavis Holdco US, Inc. (E.D. Pa. May 6, 2026) (same)

• Philly Phlava Original Steaks & Hoagies, Inc. v. Cal-Maine Foods, Inc. (W.D. Mo. May 4, 2026) (alleging conspiracy to fix prices of conventional fresh shell eggs like in King Kullen Grocery Co. v. Cal-Maine Foods, Inc. (S.D. Ind. Nov. 6, 2025))

• LPJJ LLC v. Cal-Maine Foods, Inc. (W.D. Wis. May 6, 2026) (same)

• Centene Corp. v. Celgene Corp. (D.N.J. May 7, 2026) (alleging defendants illegally delayed generic competition for drugs like in Centerwell Pharmacy, Inc. v. Celgene Corp. (S.D.N.Y. Sept. 13, 2024))

• Rave Inc. v. Apple Inc. (D.N.J. May 7, 2026) (alleging Apple used its dominance in the smartphone market to illegally exclude applications like in United States v. Apple, Inc. (D.N.J. Mar. 21, 2024))

Dispositive Orders and TROs

In re Generic Pharms. Pricing Antitrust Litig. (E.D. Pa. May 4, 2026): In this MDL alleging price-fixing of generic drugs, the court denied most defendants’ motions to dismiss while granting dismissal as to certain defendants and claims. The court reasoned that (a) plaintiffs plausibly alleged an overarching conspiracy through parallel conduct and plus factors including motive, conduct against self-interest, and interfirm communications, (b) statute of limitations issues were not resolvable at the pleading stage except where defendants were not named in prior tolling actions, and (c) detailed factual allegations linking defendants to coordinated pricing and market allocation were sufficient to state claims, with dismissal limited to pleading deficiencies or jurisdictional issues specific to certain parties.

Teva Pharms. USA, Inc. v. Corcept Therapeutics, Inc. (N.D. Cal. May 5, 2026): In this case alleging that Corcept and its distributor Optime unlawfully monopolized and restrained trade in themarket for Korlym (mifepristone) used to treat Cushing’s syndrome in violation of the Sherman Act and related California laws, the court denied defendants’ motion to dismiss except for limited portions of certain state law claims. The court reasoned that (a) plaintiff plausibly alleged substantial foreclosure through exclusive dealing arrangements that prevented effective generic substitution and impeded competition, (b) allegations of monopoly power and anticompetitive effects were sufficient at the pleading stage given near-total market control and supracompetitive pricing, and (c) challenges to standing and state-law pleading deficiencies largely failed because plaintiff adequately alleged nationwide competitive harm and injury, with dismissal warranted only for discrete statutory limitations.

Zoominfo Techs. LLC v. Zenleads Inc. (D. Del. May 6, 2026): In this case alleging a counterclaim based on an anticompetitive scheme involving acquisitions of competitors, weaponizing patents, and a fear campaign in violation of, among others, the Sherman Act, the court denied plaintiff’s motion to dismiss the antitrust counterclaim. The court reasoned that defendant sufficiently alleged (a) monopoly power through indirect evidence, (b) anticompetitive conduct through a combined scheme of acquisitions, patent assertions, and false or misleading statements directed at customers and the marketplace, and (c) antitrust injury through allegations of reduced competition in the market, diversion of sales, loss of prospective business relationships, reputational damage, and increased costs.

FTC v. Zillow Grp., Inc. (E.D. Va. Sept. 30, 2025): In this case alleging that defendants entered into an unlawful agreement and de facto acquisition to eliminate competition in the market for multifamily online rental listing service (“ILS”) advertising, the court denied defendants’ motion to dismiss. In a concise order, the court noted that the claims were fact-intensive in nature and that plaintiffs have alleged facts that make their claims plausible under the Sherman, Clayton, and FTC Acts.

Class Actions and Other Settlements

In re Pork Antitrust Litig. (D. Minn. May 5, 2026): In this class action alleging price-fixing in the pork industry, the court granted preliminary approval of class settlements between consumer indirect purchaser plaintiffs and Triumph Foods and Agri Stats. The court certified a settlement class of consumer indirect purchasers of specified raw pork products from 2014 to 2018 in repealer jurisdictions. The court found the agreements negotiated at arm’s length and within the range of possible approval, with Rule 23 requirements satisfied and common issues predominating. The settlements were deemed fair, reasonable, and adequate at the preliminary stage, with class representatives and co-lead counsel appointed. The court stayed proceedings against the settling defendants and deferred formal notice pending a later motion to maximize recovery to class members.

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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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