Last Week in Antitrust Litigation (#073)

Week of August 10, 2026

Top Takeaways

1. Localized Merger Markets Remain Vulnerable Under Section 7: The CRH matter illustrates continued enforcement against three-to-two combinations in narrowly defined geographic markets, with divestiture relief used to preserve an independent competitive constraint.

2. Labor-Market Pleading Is Driving NCAA Outcomes: Masterson and Larry demonstrate the importance of plausibly defining the relevant labor market and connecting eligibility restrictions to competition-wide effects rather than individualized injury.

3. Product-Specific Evidence Continues to Matter in Cartel Cases: The latest Sandoz ruling reflects courts’ willingness to separate well-supported drug-specific conspiracies from weaker theories, allowing claims supported by direct communications and corroborating evidence to proceed while trimming those based on more ambiguous conduct.

New Cases Filed

United States v. CRH, plc (W.D. Tenn. Aug. 7, 2026): The United States and the State of Tennessee simultaneously filed a complaint and proposed final judgment against CRH plc, APAC-Tennessee, Inc., and Standard Construction Group alleging that APAC’s proposed acquisition of Standard would substantially lessen competition in the market for the manufacture and sale of hot-mix asphalt in Shelby County, Tennessee in violation of Section 7 of the Clayton Act. The complaint alleges that the acquisition would combine two of the three suppliers of TDOT-approved hot-mix asphalt in Shelby County, give APAC control of five of the seven plants serving the area, and eliminate head-to-head competition between APAC and Standard on price, quality, delivery, and customer support. According to the complaint’s anticompetitive effects allegations, the transaction would reduce the number of competitors from three to two, substantially increase concentration, facilitate coordination among remaining producers, and likely increase prices while reducing service and product quality. The proposed final judgment, which the court entered on August 12, 2026, permits the acquisition subject to defendants divesting CRH and APAC’s Tuggle Road hot-mix asphalt plant and Standard’s Millington hot-mix asphalt plant, together with related assets, to Dunn Investment Company or another approved acquirer, and also imposes asset-preservation, prior-notification, no-reacquisition, compliance, and divestiture-trustee provisions.

Hetero Labs Ltd. v. Otsuka Am. Pharms., Inc. (D. Del. Aug. 10, 2026): Hetero Labs and Camber Pharmaceuticals filed suit against Otsuka America and Avanir Pharmaceuticals alleging that defendants enforced a patent allegedly procured through fraud on the USPTO to exclude Hetero’s FDA-approved generic version of NUEDEXTA and maintain monopoly power in the market in the United States for NUEDEXTA and its generic equivalents for the treatment of pseudobulbar affect in violation of Section 2 of the Sherman Act. The complaint alleges that Avanir obtained the ’282 Patent by falsely representing that materially amended low-dose quinidine claims were supported by the original patent disclosure while relying on allegedly later-discovered clinical results to overcome an obviousness rejection, and that defendants subsequently enforced the patent against Hetero and obtained a preliminary injunction preventing its generic launch. According to the complaint, defendants’ enforcement of the allegedly fraudulently procured patent prevented Hetero from entering the market with a lower-priced generic, insulated NUEDEXTA from generic-driven price erosion and other competitive pressure, deprived purchasers of price competition, and caused Hetero to lose sales, revenues, and profits.

The follow-on cases that were filed are:

• City of Grass Valley v. REV Grp. (E.D. Cal. Aug. 7, 2026) (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)); City of Oceanside v. REV Grp. (S.D. Cal. Aug. 10, 2026) (same)

• Evans v. NCAA (E.D.N.C. Aug. 7, 2026) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025)); Campbell v. NCAA (D. Colo. Aug. 10, 2026) (same)

• Golub Corp. v. Keurig Green Mountain, Inc. (E.D.N.Y. Aug. 10, 2026) (alleging Keurig engaged in anticompetitive conduct in the markets for single serve coffee brewers and coffee pods like in 20230930-DK-Butterfly-1, Inc. v. Keurig Green Mountain, Inc. (S.D.N.Y. May 15, 2026))

• Binning v. Tyson Foods, Inc. (D. Minn. Aug. 13, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)

Dispositive Orders and TROs

Connecticut v. Sandoz, Inc. (D. Conn. Aug. 6, 2026): In this case alleging an overarching conspiracy among manufacturers of dermatology generic drugs in violation of antitrust laws, the court granted in part Perrigo’s motion for summary judgment. The court held that (a) the States presented sufficient direct and circumstantial evidence—including cooperating witness testimony, contemporaneous documents, and extensive interfirm communications—to permit a reasonable jury to find that Perrigo participated in conspiracies involving numerous products, including Adapalene cream, Bromocriptine, Ciclopirox shampoo and solution, the 2014 Econazole price increase, Erythromycin solution, Fluocinonide cream, Fluticasone lotion, Halobetasol products, Hydrocortisone acetate suppositories, Imiquimod cream, Methazolamide tablets, Nystatin ointment, Promethazine HCL suppositories, Tacrolimus ointment, Triamcinolone Acetonide products, and Clindamycin solution (as to agreements with Taro and Sandoz); (b) summary judgment was warranted where the evidence failed to permit a reasonable inference that Perrigo joined the alleged conspiracies involving Ammonium Lactate cream and lotion, Ciclopirox cream, the April/May 2013 Desonide cream and ointment price increases, the alleged 2015 Econazole customer-allocation agreement, Hydrocortisone valerate cream, Prochlorperazine suppositories, and Clindamycin solution as to Greenstone; and (c) credibility disputes, competing interpretations of witness testimony, and conflicting inferences from the evidence were for the jury rather than the court to resolve at summary judgment.

Masterson v. NCAA (W.D.N.Y. Aug. 6, 2026): In this case alleging that the NCAA’s eligibility rules are anticompetitive, the court denied defendants’ motion to dismiss, holding that the plaintiffs plausibly alleged constitutional standing, antitrust standing, and a Sherman Act Section 1 claim under the rule of reason. The court concluded that plaintiffs sufficiently alleged that the NCAA and its member schools imposed a horizontal boycott that excluded CHL players from Division I hockey, deprived them of collegiate athletic opportunities and scholarships, and plausibly suppressed competition in the labor market for elite young hockey players by restricting players’ ability to sell their services to competing leagues. The court further held that plaintiffs adequately alleged antitrust injury and were efficient enforcers despite defendants’ arguments that the CHL, rather than the players, was the more appropriate plaintiff, declined to decide at the pleading stage whether the alleged restraint should be analyzed as per se unlawful, and found that plaintiffs plausibly alleged a relevant labor market and adverse competitive effects sufficient to proceed under the rule of reason.

Larry v. NCAA (D. Colo. Aug. 7, 2026): In this case alleging that the NCAA’s eligibility rules unlawfully restrain trade in the market for “elite college football” in violation of Section 1 of the Sherman Act and Colorado law, the court granted the NCAA’s motion to dismiss with leave to amend. As to the antitrust claims, the court reasoned that (a) NCAA eligibility rules limiting which athletes schools may recruit and pay are commercial and therefore subject to antitrust scrutiny, but (b) plaintiff failed to plausibly allege antitrust injury because his conclusory allegations of suppressed compensation, reduced output, barriers to entry, and diminished competition lacked supporting facts, while the concrete competitive disadvantage he identified arose from Navy’s own policies rather than the NCAA’s Five Year Rule, and (c) although the allegations therefore failed to show harm to competition rather than merely individual harm, leave to amend was warranted in light of a recent decision finding the Five Year Rule anticompetitive under circumstances potentially similar to plaintiff’s.

LyricFind, Inc. v. Musixmatch, S.P.A. (N.D. Cal. Aug. 6, 2026): In this case alleging that Musixmatch, backed by TPG, engaged in anticompetitive conduct to monopolize the lyric data services and lyric rights licensing markets in violation of, among other things, the Sherman Act and California’s Cartwright Act, the court granted defendants’ motion to dismiss certain requested remedies while leaving the underlying Sherman Act and Cartwright Act claims intact. The court reasoned that (a) disgorgement of defendants’ past profits is unavailable to a private plaintiff under the Sherman Act because Clayton Act § 16 authorizes only prospective injunctive relief, and (b) nonrestitutionary disgorgement is likewise unavailable under the Cartwright Act because its enumerated remedies of treble damages and injunctive relief are exclusive.

Sabol v. Paypal Holdings, Inc. (N.D. Cal. Aug. 12, 2026): In this case alleging that PayPal’s anti-steering rules for online merchants violated, among others, Section 1 of the Sherman Act and the Cartwright Act, the court granted defendants’ motion to dismiss the second amended complaint with prejudice. The court reasoned that the second amended complaint failed to allege antitrust standing because it (a) did not include allegations of direct and nonspeculative injuries, and (b) did not include facts that explain the significance of pass-on transaction fees relative to other pricing factors for goods or services plaintiffs purchased from PayPal.

Evans v. NCAA (E.D.N.C. Aug. 7, 2026): In this case alleging that the NCAA’s eligibility rules unlawfully restrained competition by preventing a Division I football player from competing for an additional season, the court granted plaintiff’s request for a temporary restraining order and ordered the NCAA to treat him as immediately eligible to participate in Division I football at North Carolina State University for 14 days. The court reasoned that plaintiff faced irreparable injury before the NCAA could be heard because each additional day of ineligibility prevented him from practicing and denied him medical treatment and other program benefits, including meals, while the NCAA was unlikely to suffer damages from the temporary restraint.

Class Actions and Other Settlements

Connecticut v. Sandoz, Inc. (D. Conn. Aug. 6, 2026): In this case alleging an overarching conspiracy among manufacturers of dermatology generic drugs in violation of antitrust laws, the court granted preliminary approval of a settlement between the plaintiff states and Glenmark Pharmaceuticals. The court found the settlement likely to satisfy the standards for final approval, approved the establishment of an escrow account with Huntington Bank as escrow agent, appointed Rust Consulting as notice and claims administrator, and approved notice and claims procedures for consumers and certain corporate entities. The court preliminarily approved allocation of the settlement funds, including a 70% allocation to consumer and state restitution and 30% to notice, administration, and litigation costs, while deferring distribution of certain funds pending a future allocation plan. The court stayed the litigation against Glenmark, established procedures and deadlines for opt-outs and objections, and scheduled a final fairness hearing for November 5, 2026.

In re Diisocyanates Antitrust Litig. (W.D. Pa. Aug. 10, 2026): In this class action alleging that manufacturers conspired to fix the prices of methylene diphenyl diisocyanate and toluene diisocyanate, the court granted preliminary approval of a settlement between plaintiffs and Dow Chemical, Huntsman International, and Huntsman Corporation. The court preliminarily certified a settlement class of direct purchasers, finding the settlement the product of arm’s-length negotiations and fair, reasonable, and adequate for settlement purposes. The court approved the notice and claims process, appointed Hausfeld LLP and Hartley LLP as co-lead counsel for the class, appointed Kroll as settlement administrator and Endeavor Bank as escrow agent, and approved a pro rata allocation and distribution plan for the settlement fund. The court stayed the litigation as to the settling defendants pending final approval and scheduled a final fairness hearing for December 7, 2026.

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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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