Last Week in Antitrust Litigation (#076)
Week of August 31, 2026
Top Takeaways
Google Avoids Ad-Tech Breakup: The court accepted “most” of the proposed behavioral remedies but rejected proposed structural remedies—including divestiture of AdX and potential divestiture of DFP—marking a significant development in the government’s landmark ad-tech monopolization case. What those behavioral remedies are remains to be seen.
Shale Oil Conspiracy Claims Survive: A federal court allowed core claims that major U.S. shale producers coordinated output restrictions to proceed, finding that communications, concentrated market structure, and production decisions contrary to apparent economic incentives plausibly supported an inference of conspiracy.
Sham-Litigation Theories Face a High Bar: Decisions involving Deckers, Elanco, and Kaneka underscore the substantial hurdles to converting IP enforcement into antitrust liability, with courts demanding particularized allegations of objectively baseless litigation or actual fraudulent intent.
New Cases Filed
The follow-on cases that were filed are:
Davis v. Tyson Foods, Inc. (D. Minn. Aug. 28, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)
City of Peoria v. REV Grp. (D. Ariz. Aug. 28, 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)); Moraga-Orinda Fire Prot. Dist. v. REV Grp. (N.D. Cal. Aug. 31, 2026) (same); Citrus Cnty. v. REV Grp. (E.D. Wis. Sept. 2, 2026) (same)
State of Louisiana v. Express Scripts, Inc. (E.D. La. Aug. 31, 2026) (alleging defendant PBMs engaged in price-fixing agreement like in Keaveny Drug v. GoodRx (C.D. Cal. Oct. 30, 2024))
Helms v. NCAA (D. Idaho Sept. 1, 2026) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))
Salazar v. China Int'l Marine Containers (Grp.) Co. (N.D. Cal. Sept. 3, 2026) (alleging shipping container manufacturers conspired to fix prices like in C.A. Spalding Co. v. China Int'l Marine Containers (Grp.) Co. (N.D. Cal. June 2, 2026))
Dispositive Orders and TROs
Last Brand, Inc. v. Deckers Outdoor Corp. (N.D. Cal. Aug. 27, 2026): In this case alleging Deckers engaged in attempted monopolization in violation of Section 2 of the Sherman Act by systematically filing sham trade dress lawsuits to exclude competition in the U.S. market for sheepskin- and shearling-lined casual footwear, the court granted Deckers’ motion to dismiss with leave to amend. The court reasoned that plaintiff failed to plead around Noerr-Pennington immunity because it did not clearly identify which lawsuits comprised the alleged sham-litigation campaign or whether it relied on the PREI single-suit framework or the POSCO series-of-lawsuits framework, preventing the court from determining whether the challenged litigation was objectively baseless or brought without regard to the merits and for an unlawful purpose; the court declined to reach antitrust injury, standing, and the remaining elements of attempted monopolization because those issues overlapped with the deficient sham-litigation allegations and could be addressed after amendment.
Ramirez v. NCAA (D. Idaho Aug. 27, 2026): In this case alleging that the NCAA’s eligibility rules are anticompetitive, the court granted a temporary restraining order barring the NCAA from enforcing the rule against plaintiff pending further briefing and a hearing on his preliminary-injunction request. The court reasoned that (a) plaintiff was likely to succeed because NCAA eligibility rules are subject to antitrust scrutiny and the Five-Year Rule likely has substantial anticompetitive effects by treating former JUCO athletes differently from otherwise comparable athletes who enroll directly at Division I schools, with potentially less restrictive alternatives available, (b) plaintiff faced irreparable harm from losing playing opportunities and a $94,150 financial-aid package supporting his master’s degree, while the NCAA faced little corresponding hardship, and (c) the public interest favored preserving the status quo; the court also temporarily barred enforcement of the NCAA’s Rule of Restitution against Idaho State.
Cruz v. NCAA (D. Nev. Aug. 28, 2026): In this case alleging that the NCAA’s eligibility rules are anticompetitive, the court denied plaintiff’s motion for preliminary injunctive relief. The court reasoned that (a) the challenged eligibility rule is commercial and subject to antitrust scrutiny because eligibility is intertwined with NIL and revenue-sharing opportunities, and plaintiff had Article III standing based on lost scholarship, roster, and other opportunities, but (b) even assuming plaintiff’s proposed market for Division I college baseball-player services, he failed to demonstrate substantial anticompetitive effects because his asserted compensation suppression, lost professional-development opportunities, and “price fixing at zero” largely reflected his individual exclusion rather than harm to competition, while his supply-restriction theory was speculative because roster spots remained fixed and the rule merely declined to add previously ineligible players to the available labor pool rather than removing them from it.
Tu'Akoi v. NCAA (D. Idaho Aug. 28, 2026): In this case alleging that the NCAA’s eligibility rules are anticompetitive, the court granted a temporary restraining order barring the NCAA from enforcing the “Five-Year Rule” against plaintiff pending further briefing and a hearing on his preliminary-injunction request. The court incorporated its reasoning from Ramirez v. NCAA, finding the substantially similar circumstances warranted the same relief, and also temporarily barred the NCAA from enforcing its Rule of Restitution against Idaho State; the court ordered the preliminary-injunction proceedings coordinated with Ramirez.
Elanco Animal Health, Inc. v. Sergeant's Pet Care Prods. LLC (D. Neb. Aug. 28, 2026): In this case asserting a counterclaim alleging that Elanco filed a sham patent-infringement action against lower-priced competitor PetIQ and using that litigation to discourage retailers from selling PetIQ’s competing collars to monopolize and attempt to monopolize the market for long-duration flea-and-tick collars, the court granted Elanco’s motion to dismiss the antitrust counterclaim with prejudice. The court reasoned that PetIQ failed to plausibly plead the sham-litigation exception to Noerr-Pennington immunity because, although Elanco voluntarily dropped its literal-infringement theory and PetIQ raised questions about Elanco’s pre-suit investigation, the allegations did not establish that no reasonable litigant could realistically expect success on Elanco’s remaining doctrine-of-equivalents infringement theory; because the challenged litigation therefore remained protected petitioning activity, the court did not reach Elanco’s remaining grounds for dismissal and denied PetIQ’s informal request for leave to amend.
Ollywan Ltd. v. Meta Platforms, Inc. (N.D. Cal. Aug. 28, 2026): In this case alleging that Meta copied Ollywan’s proprietary business plan, launched Instagram Shopping as a copycat product, tied its dominant social networking platform to its shopping service, and suppressed Ollywan’s competing Winstag app through discriminatory trademark enforcement and advertising restrictions, the court granted Meta’s motion to dismiss with limited leave to amend. The court reasoned that (a) Ollywan’s damages claims were barred by the four-year statute of limitations because the challenged conduct occurred seven to nine years before suit and neither continuing-violation nor government-action tolling applied, while its claims for injunctive relief were barred by laches, (b) the complaint independently failed to plausibly allege exclusionary conduct or antitrust injury because the challenged conduct at most harmed Ollywan rather than competition generally, and (c) although the proposed tag-based-shopping market could not be rejected at the pleading stage, Ollywan failed to plausibly allege Meta’s monopoly power or a dangerous probability of achieving it; the court dismissed the damages claims without leave to amend but permitted amendment of the claims for injunctive relief.
In re Shale Oil Antitrust Litig. (D.N.M. Aug. 31, 2026): In this MDL alleging that major U.S. shale oil producers conspired to restrain domestic production and thereby inflate the prices of crude oil and derivative products, the court granted defendants’ joint and individual motions to dismiss in part, allowing the core federal antitrust conspiracy claim to proceed against all defendants except Expand. The court reasoned that (a) plaintiffs plausibly alleged a domestic conspiracy through parallel reductions in production-growth rates combined with plus factors including market concentration and inelastic demand, extensive interfirm and OPEC-related communications, overlapping ownership, and decisions to restrain production despite rising prices, falling breakeven costs, and excess capacity, (b) the political-question and act-of-state doctrines did not bar the claims because liability turned on whether the domestic defendants conspired with one another, not on adjudicating OPEC or foreign sovereign conduct, and (c) end purchasers adequately alleged antitrust standing because the alleged output restraint predictably increased crude-oil prices and, in turn, prices for gasoline and other petroleum products; the court dismissed various state-law claims and the federal injunctive claim against Expand, while ordering jurisdictional discovery concerning Pioneer and the Hess defendants.
Boyd v. NCAA (M.D. Tenn. Aug. 31, 2026): In this case alleging that NCAA bylaws restricting athletes’ eligibility based on time spent at NAIA institutions constitute an unlawful agreement in restraint of trade under Section 1 of the Sherman Act and the Tennessee Trade Practices Act, the court denied the NCAA’s motion to dismiss. The court reasoned that (a) the eligibility rules constitute commercial restraints subject to antitrust scrutiny because they determine who may compete and therefore negotiate NIL agreements and receive direct payments from schools, (b) plaintiff plausibly alleged a relevant nationwide labor market for Division I college basketball players because professional basketball does not provide the same combination of elite athletic competition and higher education, and (c) plaintiff plausibly alleged market-wide anticompetitive effects—including suppressed wages and NIL compensation, elimination of competitors, and diminished product quality—from excluding an entire subset of otherwise qualified athletes, with more detailed economic and expert analysis unnecessary at the pleading stage.
Socialryse LLC v. YouTube LLC (S.D.N.Y. Sept. 1, 2026): In this case SocialRyse alleging YouTube and Google abused monopoly power and engaged in anticompetitive conduct in the market for automated online video monetization to eliminate SocialRyse from YouTube’s Content ID monetization system, the court granted defendants’ motion to dismiss. The court reasoned that (a) the monopolization claim was barred by the four-year statute of limitations because SocialRyse knew or should have known of YouTube’s involvement in its distributors’ suspension of its assets in 2021, and neither equitable estoppel nor fraudulent concealment applied, and (b) the claim independently failed because SocialRyse competed in the market for music embedded in YouTube videos, not the alleged market for automated monetization services, and the complaint did not plausibly allege exclusionary conduct directed at competitors in that market or explain how excluding independent music labels maintained defendants’ alleged monopoly in monetization services.
Lincoln Mem'l Univ. v. Am. Veterinary Med. Ass'n (E.D. Tenn. Sept. 1, 2026): In this case alleging that American Veterinary Medical Association (“AVMA”), through its accrediting arm, engaged in a conspiracy to suppress competition in the veterinary education market, the court granted the AVMA’s motion to dismiss without prejudice. The court reasoned that the claims were not ripe because (a) LMU’s threatened exclusion from the markets depended on speculative future accreditation decisions, as demonstrated by its Florida program receiving provisional accreditation while the case was pending and its Tennessee program retaining opportunities to cure deficiencies, obtain an extension, and appeal any future terminal-accreditation decision, (b) LMU failed to adequately allege present injury because its current inability to expand enrollment resulted from generally applicable accreditation procedures rather than probation and its asserted lost revenues, recruiting difficulties, and reputational harms were conclusory, and (c) delaying review imposed no sufficiently severe hardship because neither program had yet received an adverse accreditation determination and LMU could pursue the AVMA’s ordinary accreditation and appeal procedures before any loss of accreditation.
Kaneka Corp. v. Cocrystal Tech. (Jiaxing) Co. (E.D.N.Y. Sept. 2, 2026): In this patent-infringement case asserting counterclaims alleging that Kaneka violated the antitrust laws by enforcing a patent allegedly procured through fraud on the PTO, the court granted Kaneka summary judgment on Cocrystal’s Walker Process antitrust counterclaim. The court reasoned that Cocrystal failed to produce evidence from which a reasonable jury could find the actual deceptive intent required for Walker Process fraud because (a) Kaneka disclosed to the PTO that CoQ11 could be present as an impurity, defeating one alleged omission, (b) alleged nondisclosure of prior sales did not establish fraudulent intent without separate evidence of an intent to deceive, and (c) Kaneka’s statement that its inventors had conducted “intensive studies” did not clearly represent that they had specifically tested CoQ11 or otherwise establish a specific intent to obtain an invalid patent.
United States v. Google LLC (E.D. Va. Sept. 2, 2026): In this antitrust action challenging Google’s conduct in the publisher ad-server and ad-exchange markets, the court rejected plaintiffs’ proposed structural remedies—including divestiture of AdX, open-sourcing DFP’s final-auction logic, and contingent divestiture of the remainder of DFP—but accepted “most” of the parties’ proposed behavioral remedies, as modified by the court. The opinion remains temporarily under seal. The court ordered the parties to meet and confer and submit within 30 days a proposed final judgment implementing those remedies and resolving any remaining disputes.
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