Last Week in Antitrust Litigation (#077)
Week of September 7, 2026
Top Takeaways
City-Backed Grocery Discounts Face Predatory-Pricing Claims: Supermarket plaintiffs challenged New York City’s planned grocery program, alleging that mandated discounts supported by public subsidies would exclude private competitors. The suit puts public-private operating arrangements—not just traditional corporate pricing strategies—under antitrust scrutiny.
Capacity Decisions Can Strengthen Price-Fixing Allegations: In Artuso, repeated, closely timed price increases, mill closures, and other supporting facts allowed containerboard price-fixing claims to survive dismissal. The court treated capacity reductions as evidence supporting the pricing conspiracy, while finding no separately pleaded output-restriction conspiracy.
Foreign Collusion Allegations Need a Concrete U.S. Connection: The Concrete & Cement Additives court dismissed claims despite plausible allegations of European coordination, finding insufficient facts establishing a U.S. conspiracy or qualifying domestic effects. The ruling also underscores that corporate affiliations cannot substitute for allegations connecting each defendant to the challenged conduct.
New Cases Filed
Nat'l Supermarket Ass'n v. City of New York (S.D.N.Y. Sept. 9, 2026): National Supermarket Association, R&E Corporation, and The Real Chance filed suit against the City of New York and the New York City Economic Development Corporation alleging that defendants’ tax-financed N.Y.C. Groceries program constitutes predatory pricing designed to attempt to monopolize, and through agreements with selected private operators conspire to monopolize, the market for the retail sale of general consumer groceries at full-service grocery stores inside each Service Radius in violation of Section 2 of the Sherman Act. The complaint alleges that defendants will require privately operated, City-owned grocery stores to sell a Core Basket of everyday groceries at prices averaging 30% below competing retailers while subsidizing the resulting losses through free rent, property-tax exemptions, $70 million in public capital, and ongoing taxpayer-funded Affordability Payments. According to the complaint, the subsidized pricing would prevent private full-service grocers within the Service Radii from matching the mandated discount while recovering their costs, threaten those competitors with elimination or absorption, and reduce independent centers of grocery competition and consumer choice.
The follow-on cases that were filed are:
Kessler v. Verisign, Inc. (C.D. Cal. Sept. 4, 2026) (alleging defendants unlawfully monopolized the market for .com domain registry services like in Mo v. Internet Corp. for Assigned Names & Nos. (C.D. Cal. Sept. 22, 2025))
Davis v. Amazon.com, Inc. (N.D. Cal. Sept. 7, 2026) (alleging Amazon unlawfully wielded monopsony power in the labor market for Amazon delivery service partner drivers like in New Jersey v. Amazon.com, Inc. (D.N.J. Aug. 4, 2026))
Gen. Mills, Inc. v. ASR Grp. Int'l (N.D. Ill. Sept. 4, 2026) (alleging defendants conspired to fix prices for granulated sugar like in Olivares v. ASR Grp. Int'l (D. Minn. Sept. 13, 2024))
Atwood v. Tyson Foods, Inc. (D. Minn. Sept. 4, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)
Macon-Bibb Cnty. v. REV Grp. (E.D. Wis. Sept. 8, 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 Toledo v. REV Grp. (E.D. Wis. Sept. 9, 2026) (same)
Rich Holdings Inc. v. ASR Grp. Int'l (D. Minn. Sept. 8, 2026) (alleging defendants conspired to fix prices for granulated sugar like in Olivares v. ASR Grp. Int'l (D. Minn. Sept. 13, 2024))
Dormdudesbreaks, LLC v. TikTok Inc. (C.D. Cal. Sept. 8, 2026) (alleging conspiracy to monopolize sports memorabilia market like in GFC & Supply Inc. v. TikTok Inc. (C.D. Cal. Oct. 20, 2025)); MVP Breaks PLLC v. TikTok Inc. (C.D. Cal. Sept. 10, 2026) (same)
Dispositive Orders and TROs
Artuso Pastry Foods Corp. v. Packaging Corp. of Am. (N.D. Ill. Sept. 4, 2026): In this case alleging that leading containerboard manufacturers engaged in a per se unlawful conspiracy to fix prices and restrict output for containerboard products, the court denied defendants’ joint motion to dismiss and the individual motions filed by Pratt and PCA. The court reasoned that (a) plaintiff plausibly alleged a price-fixing conspiracy through six rounds of substantially parallel, closely timed price increases and announcements, reinforced by plus factors including abrupt shifts to “value over volume” strategies, risky mill closures and capacity reductions, a highly concentrated market conducive to collusion, and the temporal proximity of a 2023 industry conference to a coordinated price increase, although the allegations did not independently plead a separate output-restriction conspiracy; (b) the complaint adequately tied Pratt and PCA individually to the alleged scheme through their participation in repeated lockstep price increases and opportunities for coordination; and (c) defendants could not obtain dismissal on limitations grounds because the complaint did not establish that plaintiff discovered or reasonably should have discovered the alleged conspiracy more than four years before filing suit.
In re Concrete & Cement Additives Antitrust Litig. (S.D.N.Y. Sept. 2, 2026): In this case alleging that multiple corporate groups conspired to fix prices in the market for concrete admixtures, cement additives, and related products (“CCAs”), the court granted defendants’ motions to dismiss with prejudice. The court reasoned that (a) although the amended complaints plausibly alleged coordinated pricing conduct among French executives in Europe, they did not plausibly allege either direct evidence or parallel U.S. pricing sufficient to infer that the agreement extended to the United States, and the alleged investigations, market structure, trade-association activity, and motive to avoid international price arbitrage did not supply adequate plus factors; (b) plaintiffs separately failed to plead facts tying each U.S. and parent/sponsor defendant to the alleged conspiracy rather than relying on corporate relationships and group pleading; and (c) to the extent plaintiffs alleged only a French conspiracy producing U.S. effects, the claims were barred by the FTAIA because plaintiffs did not plead imports covered by the import exclusion or a sufficiently direct, substantial, and reasonably foreseeable domestic effect, including any mechanism by which French price fixing caused U.S. prices to rise. The court denied further leave to amend as futile because plaintiffs had already amended once with the benefit of the court’s prior ruling and additional cooperation evidence, yet still could not cure the deficiencies.
Trotter v. NCAA (S.D.W. Va. Sept. 9, 2026): In this case alleging that the NCAA’s eligibility rules are anticompetitive, the court denied plaintiffs’ motion for a preliminary injunction. The court reasoned that (a) the challenged eligibility rule is commercial and subject to antitrust scrutiny because it limits athletes’ participation in labor markets where they may earn NIL and revenue-sharing compensation, but (b) plaintiffs failed to present sufficient sport-specific evidence to define the relevant markets or to show actual market-wide anticompetitive effects such as underemployment or wage suppression, particularly because the new rule did not remove previously eligible athletes from the market but merely declined to add athletes who already had exhausted their eligibility; the court therefore found plaintiffs unlikely to succeed on the merits and did not reach the remaining preliminary-injunction factors.
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