Last Week in Antitrust Litigation (#079)
Week of September 21, 2026
Top Takeaways
AI Coordination Claims Target the Pace of Innovation: Buist alleges that leading AI developers used shared safety standards and monitoring mechanisms to coordinate limits on capability advancement. The complaint treats delayed improvements as reduced product quality and higher quality-adjusted subscription prices—putting competition over innovation, not just pricing, at issue.
Benchmarking Platforms Face Exposure Alongside Their Users: The Frozen Potato Products court allowed price-fixing and separate information-exchange claims to proceed, including claims against Circana. The ruling highlights the risks of sharing granular, nonpublic pricing and shipment data among a small group of competitors when that information allegedly enables mutual monitoring and sustained price increases.
Acquisition Challenges Can Protect Competition Before Entry: In P & L Development, the court allowed claims challenging Perrigo’s acquisition of the only allegedly available manufacturing capacity capable of supplying a new store-brand infant-formula competitor. The plaintiff’s concrete preparations to enter supported antitrust standing, highlighting acquisition risk where a deal allegedly blocks future competition rather than eliminates an existing rival.
New Cases Filed
Buist v. Anthropic, PBC (N.D. Cal. Sept. 18, 2026): Four individuals filed a putative class action against Anthropic, OpenAI, SpaceXAI, and Google alleging that defendants agreed to slow the pace at which they develop and improve competing frontier-AI products in the Paid Frontier AI Assistant Subscription Market and, alternatively, an innovation market for the development of general-purpose frontier generative-AI models in violation of the Sherman and Clayton Acts. The complaint alleges that defendants agreed to coordinate limits on the rate of AI capability advancement, including through common safety standards, limits on training compute and training runs, restrictions on the use of AI to improve AI, capability checkpoints, and monitoring mechanisms designed to verify compliance with the alleged pacing agreement. According to the complaint, the agreement reduces defendants’ incentives to invest in and rapidly develop and deploy improved capabilities, delays improvements in reasoning, coding, research, multimodal capability, reliability, agents, speed, context, memory, and other features, reduces product quality and consumer choice, and increases the quality-adjusted price of paid AI subscriptions.
Plasmatica, Ltd. v. Medtronic, Inc. (S.D. Fl. Sept. 18, 2026): Plasmatica and Rostan Medicalfiled suit against Medtronic alleging that Medtronic blocked rival product trials, used exclusionary bundling and portfolio-wide pricing penalties, and imposed de facto exclusive dealing arrangements to monopolize and restrain competition in the market for laparoscopic anti-fog devices in the United States, or alternatively a market that also includes simple anti-fog solutions, in violation of, among others, the Sherman and Clayton Acts. The complaint alleges that Medtronic conditions pricing across multiple surgical-product categories on hospitals purchasing 80% to 90% or more of their requirements from Medtronic, threatens portfolio-wide penalty pricing when hospitals trial or purchase competing products, and enforces multi-year market-share commitments through compliance requirements, audits, and termination rights. According to the complaint, these practices substantially foreclose competition, maintain supracompetitive prices, reduce output and customer choice, raise rivals’ costs, block adoption of allegedly better-performing products, and suppress innovation in laparoscopic anti-fog devices.
The follow-on cases that were filed are:
Bigfoot Sports Breaks LLC v. TikTok Inc. (C.D. Cal. Sept. 11, 2026) (alleging conspiracy to monopolize sports memorabilia market like in GFC & Supply Inc. v. TikTok Inc. (C.D. Cal. Oct. 20, 2025))
City of Johnston v. REV Grp. (S.D. Iowa Sept. 18, 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)); Hillsborough Cnty. v. REV Grp. (E.D. Wis. Sept. 21, 2026) (same); City of Cuyahoga Falls v. REV Grp. (E.D. Wis. Sept. 22, 2026) (same); Shelby Cnty. Tenn. v. REV Grp. (W.D. Tenn. Sept. 23, 2026) (same)
Gant v. Tyson Foods, Inc. (D. Minn. Sept. 18, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)
Mayor & City Council of Balt. v. Bausch Health Cos. (D.R.I. Sept. 22, 2026) (alleging defendants agreed to delay generic competition of a drug to treat IBS like in R.I. Laborers Health & Welfare Fund v. Bausch Health Cos. Inc. (D.R.I. Sept. 22, 2023))
Dispositive Orders and TROs
In re Frozen Potato Prods. Antitrust Litig. (N.D. Ill. Sept. 17, 2026): In this MDL alleging that four producers controlling approximately 98% of the U.S. market for frozen potato products conspired to fix prices and unlawfully exchanged competitively sensitive information through Circana’s PotatoTrack platform, the court denied defendants’ motions to dismiss the federal antitrust claims, denied Circana’s and McCain Foods’ separate motions, and granted the omnibus motion only as to certain state-law claims. The court reasoned that (a) plaintiffs plausibly alleged a price-fixing conspiracy through repeated parallel price increases reinforced by plus factors including weekly exchanges of granular, nonpublic pricing, volume, and shipment data, conduct allegedly contrary to independent economic self-interest, extreme market concentration and barriers to entry, industry relationships and opportunities for coordination, and alleged efforts to conceal competitor-pricing communications, (b) plaintiffs independently stated an unlawful information-exchange claim because PotatoTrack’s detailed data and limited subscriber base plausibly enabled the producers to monitor one another and maintain supracompetitive prices, and Circana plausibly facilitated that exchange, and (c) the allegations sufficiently connected McCain Foods to the conspiracy and established venue and personal jurisdiction, while only discrete indirect-purchaser state claims—including Montana and South Dakota antitrust claims and certain commercial-plaintiff consumer-protection claims—were dismissed.
P & L Dev., LLC v. Gerber Prods. Co. (E.D.N.Y. Sept. 18 2026): In this case alleging that Gerber and Perrigo monopolized the market for the sale of Store-Brand infant formula to U.S. retailers by, among other conduct, having Perrigo acquire Gerber’s Gateway plant and thereby obtain the only available excess domestic manufacturing capacity that could supply a new entrant such as plaintiff, the court denied Gerber’s motion to dismiss the antitrust claims based on that acquisition. The court reasoned that (a) PLD adequately alleged Article III injury because the acquisition heightened barriers to entry and effectively excluded it from the market, with divestiture capable of redressing that injury, (b) plaintiff sufficiently alleged antitrust injury as a prospective entrant by showing its intent and preparedness to enter through its experience selling other store-brand products, manufacturing and distribution capabilities, executed supply MOU with Gerber, retailer outreach, and efforts to secure alternative suppliers, and (c) the acquisition plausibly caused independent anticompetitive harm because Perrigo allegedly already monopolized the downstream market, Gerber possessed the only available upstream capacity capable of supplying a new entrant, and Perrigo’s acquisition of that capacity could permanently entrench its market power; whether Abbott, Mead Johnson, new manufacturing, or imports provided viable alternatives presented factual questions inappropriate for resolution on a motion to dismiss.
Tu'Akoi v. NCAA (D. Idaho Sept. 22, 2026) and Ramirez v. NCAA (D. Idaho Sept. 22, 2026): In these cases alleging that the NCAA’s eligibility rules are anticompetitive, the court denied plaintiffs’ motions for preliminary injunctions. The court reasoned that (a) under the Ninth Circuit’s intervening Blythe decision, the Five-Year Rule is a commercial restraint subject to antitrust scrutiny, and neither the first-to-file rule nor the House settlement warranted denial, but (b) plaintiffs failed to present the substantive, concrete evidence necessary to define the relevant labor market because affidavits from two ISU coaches and two players and generalized NIL data did not establish market dynamics or what alternative employers were reasonable substitutes, leaving the court unable to conduct the rule-of-reason analysis and making plaintiffs unlikely to succeed on the merits; the court therefore did not reach the remaining preliminary-injunction factors.
State of Michigan v. BP, P.L.C. (W.D. Mich. Sept. 22, 2026): In this case alleging that BP, Chevron, Exxon, Shell, and API conspired to suppress renewable-energy competition and preserve supracompetitive prices in Michigan’s transportation-energy and primary-energy markets, the court granted defendants’ motion to dismiss the federal antitrust claim with prejudice and declined supplemental jurisdiction over Michigan’s state-law antitrust claim. The court reasoned that (a) Michigan plausibly alleged only one cognizable antitrust injury—overcharges for energy—while alleged harms such as reduced renewable-energy output, delayed EV infrastructure, higher insurance premiums, depressed home values, and mitigation costs were collateral consequences outside the antitrust laws’ zone of protection, (b) Illinois Brick barred most damages claims because Michigan and its residents generally purchased energy indirectly through retailers, and (c) even for direct purchases and injunctive relief, Michigan failed to plausibly allege proximate causation because the asserted causal chain from a conspiracy allegedly beginning in 1979 to energy overcharges decades later depended on numerous intervening technological and market forces, speculative damages calculations, and more direct potential plaintiffs.
Santos v. Shoffner (W.D. Tex. Sept. 22, 2026): In this case alleging that Mattress By Appointment (“MBA”) and its mattress suppliers, distributor, and financing provider imposed unlawful exclusive supplier and financing arrangements on MBA dealers, the magistrate judge recommended granting defendants’ motions to dismiss, dismissing the federal antitrust claims with prejudice, and declining supplemental jurisdiction over the remaining state-law claims. The magistrate judge reasoned that (a) plaintiff failed to plausibly allege any agreement or concerted action among defendants beyond their ordinary commercial relationships as suppliers, distributors, and financiers, because allegations of parallel or mutually profitable conduct and contractual relationships did not plausibly suggest a meeting of the minds, and (b) separately, the court does not have personal jurisdiction over Shoffner.
Inza v. Apple Inc. (D.D.C. Sept. 23, 2026): In this case alleging that Apple and others engaged in an illegal coordinated scheme to exclude standalone Wi-Fi calling in the United States, the court granted Samsung’s motion to compel arbitration, dismissed VoIP-Pal’s claims against the Platform Defendants as duplicative, and deferred ruling on the remaining antitrust dismissal arguments against Apple, Alphabet, and Google. The court reasoned that (a) the individual plaintiffs adequately alleged Article III standing by claiming that they paid supracompetitive prices for bundled cellular service because competing standalone Wi-Fi-calling providers were denied native-phone functionality, (b) Samsung could enforce the plaintiffs’ carrier arbitration agreements under Florida equitable-estoppel principles because the antitrust claims expressly alleged substantially interdependent and concerted misconduct between Samsung and the carriers and the agreements delegated arbitrability questions to the arbitrator, and (c) VoIP-Pal impermissibly split its claims by asserting substantially the same antitrust theories against the same Platform Defendants in an earlier-filed action; the court did not decide whether the individual plaintiffs had stated viable Sherman Act claims against Apple, Alphabet, or Google.
Class Actions and Other Settlements
Scharpf v. Gen. Dynamics Corp. (E.D. Va. Sept. 17, 2026): In this case alleging a wage-fixing case based on suppression of compensation for naval architects and marine engineers, the court granted preliminary approval of settlements with Gibbs & Cox, Marinette Marine, Serco, CACI International, Thor Solutions, Bollinger Shipyards, and Huntington Ingalls Industries, finding the agreements negotiated at arm’s length and sufficiently fair, reasonable, and adequate to warrant notice. The court certified for settlement purposes a class of naval architects and marine engineers employed by defendants in the United States from January 1, 2000 through December 31, 2025, finding the requirements of Rule 23 satisfied. The court appointed class representatives and settlement class counsel, approved establishment of a qualified settlement fund, stayed the litigation as to the released parties, and directed class counsel to submit a proposed notice plan before seeking final approval.
Spradlin v. Elanco Animal Health, Inc. (S.D. Ind. Sept. 17, 2026): In this case alleging unlawful exclusive-dealing and “no generics” agreements in the topical flea-and-tick medication market in violation of the Sherman Act and multiple state antitrust laws, the court granted preliminary approval of a $9.275 million settlement. The court preliminarily certified a nationwide settlement class of consumers who purchased covered imidacloprid products from pet specialty retailers beginning January 1, 2016, finding Rule 23 satisfied and the settlement fair, reasonable, and adequate following arm’s-length negotiations. The settlement provides cash payments to class members and requires Elanco to discontinue the challenged exclusivity discount for five years, while the settling retailers must refrain from accepting that discount for specified periods and consider offering competing generic products. The court approved the notice and claims process, appointed Angeion Group as settlement administrator, and scheduled a final approval hearing for April 1, 2027.
Dorrell v. Constellation Energy Corp. (D. Md. Sept. 23, 2026): In this case alleging that several nuclear energy companies and two consulting firms conspired to suppress compensation for nuclear power generation workers, the court granted preliminary approval of a settlement with NextEra Energy and Florida Power & Light, finding the agreement negotiated at arm’s length and fair, reasonable, and adequate. The court certified for settlement purposes a class of persons employed in nuclear power generation by the defendants and alleged coconspirators in the United States from May 1, 2003 through the date of preliminary approval, finding the requirements of Rule 23 satisfied. The court appointed class representatives and settlement class counsel, directed counsel to submit a proposed notice plan after defendants produce class-member contact information, approved establishment of a qualified settlement fund, and stayed the litigation against the NextEra defendants while enjoining prosecution of released claims pending implementation of the settlement.
*** *** ***
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 selected 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