Last Week in Antitrust Litigation (#080)
Week of September 28, 2026
Top Takeaways
Google’s Private Cases Turn on Proof of Injury: Key publisher and AdX class claims survived summary judgment in the ad-tech litigation, while search users’ claims failed in Arcell for lack of evidence connecting Google’s conduct to their alleged harm.
Pricing Benchmarks Embedded in Customer Quotes Draw Antitrust Claims: The construction-equipment rental court allowed both price-fixing and separate information-exchange claims to proceed based on allegations that nightly competitor data fed pricing benchmarks incorporated into quoting systems and followed approximately 90% of the time. The ruling highlights the risk when benchmarking becomes a mechanism for aligning actual pricing decisions.
Platform Access Conditions Face Tying Scrutiny: Courts sustained claims that WordPress.org access required users to disclaim affiliation with WP Engine and that Zillow referrals were conditioned on purchasing and using its CRM software. These rulings put affiliation restrictions and cross-product purchase requirements—not just conventional product bundles—at the center of tying challenges.
New Cases Filed
The follow-on cases that were filed are:
Beebe v. JBS USA Food Co. (D. Minn. Sept. 25, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)
City of Newport News v. REV Grp. (E.D. Wis. Sept. 25, 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 Phoenix v. REV Grp. (D. Ariz. Sept. 25, 2026) (same); City of Vacaville v. REV Grp. (E.D. Cal. Sept. 28, 2026) (same); City of Spokane v. REV Grp. (E.D. Wis. Sept. 29, 2026) (same); City of Port Orange v. REV Grp. (E.D. Wis. Sept. 29, 2026) (same); City of Pembroke Pines v. REV Grp. (E.D. Wis. Oct. 1, 2026)
Pizza Standard LLC v. Visa Inc. (E.D.N.Y. Sept. 30, 2026) (alleging defendants conspired to fix interchange fees charged for credit card transactions like in In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig. (E.D.N.Y.))
Dispositive Orders and TROs
Durbal v. Ass'n of Am. Med. Colls. (D.D.C. Sept. 24, 2026): In this case alleging that the Association of American Medical Colleges (“AAMC”) conspired with its member medical schools to fix Primary Application fees and monopolize the market for medical school application platforms, the court granted AAMC’s motion to dismiss in part, while allowing the § 1 claim concerning the medical-doctor education market to proceed. The court reasoned that (a) plaintiff lacked antitrust standing to challenge conduct in the primary-application-platform market because medical schools—not applicants—are the consumers that choose among competing application platforms, so her alleged injury occurred in the separate medical-doctor education market, but (b) she plausibly alleged an unreasonable restraint in that education market because AAMC’s uniform application pricing allegedly eliminated fee competition among member schools and produced substantially higher fees than comparable competitive application systems, sufficient to allege anticompetitive effects under the rule of reason; the court declined to apply the per se rule because AMCAS plausibly constitutes a legitimate joint venture among medical schools.
Value Drug Co. v. Alkermes, Inc. (D. Mass. Sept. 24, 2026): In this case alleging Alkermes engaged in Walker Process fraud and entered into anticompetitive settlements to monopolize the market for injectable naltrexone (Vivitrol), the court granted in part and denied in part Alkermes’ motion to dismiss, allowing the Walker Process monopolization claim to proceed but limiting recoverable damages to purchases made on or after October 2, 2021. The court reasoned that (a) Value Drug plausibly alleged material fraud because Alkermes and the named inventor characterized Vivitrol’s results as “unexpected” while failing to disclose a prior study co-authored by the inventor that produced substantially the same dosage and AUC results and on which the PTO plausibly would have relied, (b) those allegations also supported a plausible inference of specific intent to deceive the PTO, bringing the patent-enforcement conduct within the Walker Process exception to Noerr-Pennington immunity, but (c) fraudulent concealment did not toll the four-year limitations period because the allegedly withheld study had been publicly available since 2001 and Value Drug failed to plausibly allege diligence in discovering it.
WPEngine, Inc. v. Automattic Inc. (N.D. Cal. Sept. 24, 2026): In this case alleging monopolization, attempted monopolization, and unlawful tying in the web content management systems market and three WordPress aftermarkets in violation of, among other things, Sections 1 and 2 of the Sherman Act and the California Cartwright Act, the court denied defendants’ motion to dismiss the antitrust claims. The court reasoned that (a) WP Engine plausibly alleged a web-content-management-systems foremarket and WordPress-specific aftermarkets for hosting, custom-field plugins, and plugin distribution, and sufficiently alleged market power through direct evidence of increased prices and reduced quality, (b) it adequately alleged market-wide antitrust injury and exclusionary conduct based on defendants’ extraction of licensing payments from competitors, exclusion of rivals from the WordPress ecosystem, service disruptions, security vulnerabilities, and other conduct allegedly impairing competition, and (c) it plausibly alleged an unlawful negative tie because users allegedly could not access WordPress.org unless they affirmed that they were not affiliated with WP Engine.
Bryant v. Microsoft Corp. (N.D. Cal. Sept. 28, 2026): In this case alleging that Microsoft entered an anticompetitive agreement with OpenAI to restrain trade in the consumer generative AI market, the court, among other things, granted Microsoft’s motion to dismiss the Sherman Act claim. The court reasoned that the Sherman Act claim failed for lack of antitrust injury because the challenged restraint operated in the upstream compute market, in which plaintiffs did not participate, while their alleged downstream injuries were indirect and speculative and reflected harm to OpenAI rather than broader harm to competition in the CGAI market.
Dupuis v. Zillow Grp. (W.D. Wash. Sept. 28, 2026): In this case alleging that Zillow engaged in anticompetitive conduct in the real estate online search market, the court denied Zillow’s motion to dismiss. The court reasoned that (a) plaintiffs plausibly alleged nationwide markets for online real estate search, real estate referrals, CRM software, and residential mortgage lending, (b) the CRM tying claim adequately alleged coercion and market power because agents allegedly depended on Zillow referrals and could lose access unless they purchased and used FUB, (c) the steering scheme plausibly constituted an unreasonable vertical restraint because Zillow allegedly penalized agents who failed to direct buyers to ZHL, thereby limiting consumer choice and insulating ZHL from competition, and (d) plaintiffs plausibly alleged monopoly power and exclusionary conduct based on Zillow’s dominant search share, supra-competitive referral commissions, network effects, and use of its platform leverage to compel adoption of FUB and ZHL.
In re Constr. Equip. Rental Antitrust Litig. (N.D. Ill. Sept. 28, 2026): In this MDL alleging that leading construction-equipment rental companies conspired to fix, raise, and maintain nationwide rental prices and unlawfully exchange competitively sensitive information, the court denied defendants’ joint motion to dismiss and the individual motions filed by EquipmentShare.com, Home Depot, and Sunstate, but granted RB Global’s motion to dismiss. The court reasoned that (a) plaintiffs plausibly alleged a price-fixing conspiracy through persistent parallel price increases and widespread adoption of RRI, reinforced by plus factors including nightly exchanges of sensitive pricing and utilization data, pricing behavior allegedly contrary to unilateral self-interest, concentrated market structure, and opportunities and motives to coordinate, (b) plaintiffs independently stated an unlawful information-exchange claim because RRI allegedly converted competitors’ nonpublic data into pricing benchmarks that were incorporated into quoting systems and followed approximately 90% of the time, producing higher rental prices in the nationwide market for medium-to-large construction equipment rentals, (c) the claims were timely because plaintiffs sought damages only from April 2021 forward, and (d) plaintiffs sufficiently connected EquipmentShare.com, Home Depot, and Sunstate to the alleged scheme through their agreements to provide data to and use RRI, but failed to plausibly allege that parent company RB Global directly participated in, ratified, or operated as an integrated enterprise with Rouse for purposes of the alleged conspiracy.
Arcell v. Google LLC (N.D. Cal. Sept. 30, 2026): In this case alleging that Google monopolized the general search services market in violation of Sherman Act § 2 through default-search agreements that foreclosed competing search engines and allegedly deprived consumers of higher-quality, more privacy-protective, and ad-free search alternatives, the court dismissed plaintiffs’ claims for lack of Article III standing and denied the parties’ cross-motions for summary judgment as moot. The court reasoned that (a) after discovery, plaintiffs produced no expert testimony or other evidence from which a reasonable jury could find that Google’s default agreements caused the absence of the superior search alternatives on which their injury theory depended, (b) findings in the government’s successful monopolization case against Google did not establish plaintiffs’ injury through collateral estoppel or Clayton Act § 5(a) because consumer injury was neither actually litigated nor necessary to that judgment, and (c) plaintiffs could not rely on their pleadings or obtain additional discovery to cure the evidentiary deficiency.
Chegg, Inc. v. Google LLC (D.D.C. Sept. 30, 2026): In these related cases alleging that Google leveraged its monopoly power in general search services to coerce Chegg and other online publishers into providing content without compensation for search results, AI training, grounding, and republishing, thereby maintaining its search monopoly and attempting to extend monopoly power into online publishing markets, the court granted Google’s motions to dismiss all federal antitrust claims. The court reasoned that (a) the reciprocal-dealing claims failed because publishers’ decision to permit Google to crawl their websites in hopes of receiving search traffic did not plausibly establish any agreement, dealing relationship, or meeting of the minds conditioning search referrals on free content, (b) PMC’s tying claim failed because Google Search and AI Overviews were not plausibly separate products with distinct consumer demand, (c) plaintiffs lacked antitrust standing to challenge Google’s maintenance of its general-search monopoly because their alleged lost publishing and licensing revenues occurred outside the restrained search market and were not an indispensable means of maintaining Google’s monopoly, and (d) the attempted-monopolization and monopoly-leveraging claims failed because PMC’s proposed Online Publishing market was implausibly broad, Chegg’s Online Educational Publishing market was insufficiently defined, and plaintiffs did not plausibly allege a dangerous probability that Google would monopolize either downstream market.
Herzog v. Fluor Fed. Servs., Inc. (S.D. Fl. Sept. 30, 2026): In this case alleging that defendants conspired to fix wages and restrict mobility of that prohibited subcontractors from recruiting one another’s FEMA Technical Assistance Contract (TAC) workers, the court granted defendants’ motion to dismiss. The court reasoned that (a) the alleged no-poach, non-solicitation, and wage-fixing arrangements plausibly constituted horizontal restraints subject to per se treatment despite Fluor’s vertical relationships with the subcontractors, and the ancillary-restraints doctrine presented an affirmative defense not suitable for resolution on the complaint, (b) Herzog adequately alleged antitrust injury and standing because the agreements allegedly directly restricted his employment opportunities and suppressed wages in the labor market in which he participated, and defendants failed to establish implied antitrust immunity or impermissible group pleading, but (c) dismissal was nonetheless warranted because Herzog failed to respond to defendants’ argument that the complaint did not adequately plead an agreement or conspiracy among defendants, which the court treated as a concession while allowing leave to amend.
Sheet Metal Workers' Health Plan of S. Cal. v. Abbvie, Inc. (N.D. Ill. Sept. 30, 2026): In this case alleging that AbbVie monopolized and restrained competition in the U.S. adalimumab market by conditioning rebates for Skyrizi and Rinvoq on pharmacy benefit managers placing Humira at parity with lower-priced biosimilars, the court granted AbbVie’s motion to dismiss in large part but allowed the § 2 monopolization claim for injunctive relief to proceed. The court reasoned that (a) Sheet Metal Workers plausibly alleged monopoly power, anticompetitive conduct, and antitrust injury because AbbVie’s rebate-for-parity strategy could constitute exclusive dealing and tying that substantially foreclosed biosimilars by preventing them from competing through lower patient costs, (b) the § 1 conspiracy claims and § 2 damages claims failed because the complaint did not plausibly allege that the PBMs knowingly joined AbbVie’s alleged scheme, so the conspiracy exception to Illinois Brick did not apply and the health plan remained an indirect purchaser barred from recovering federal damages, and (c) parallel state-law claims for injunctive relief survived to the same extent as the § 2 claim, while the remaining state-law damages claims were dismissed with leave to amend.
In re Zelis Repricing Antitrust Litig. (D. Mass. Sept. 30, 2026): In this case alleging a price-fixing conspiracy in the market for out-of-network healthcare reimbursement services based on defendants’ use of repricing tools to suppress provider payments, the court granted Aetna’s motion to dismiss. The court reasoned that (a) the second amended complaint no longer plausibly alleged that Aetna itself used Zelis’s repricing tools, instead relying on ambiguous collective allegations concerning “one or more” commercial payers and improperly lumping Aetna together with its subsidiary Meritain Health, (b) plaintiffs therefore lacked Article III standing against Aetna because their alleged underpayments were not fairly traceable to any conduct by Aetna merely because it might benefit from its subsidiary’s actions, and (c) plaintiffs likewise failed to plausibly allege Aetna’s participation in either a horizontal or hub-and-spoke conspiracy because information sharing, trade-association membership, and conference participation were insufficient plus factors absent allegations that Aetna engaged in the alleged core parallel conduct of using Zelis’s repricing tools.
In re Google Digit. Advert. Antitrust Litig. (S.D.N.Y. Sept. 30, 2026): In this MDL regarding Google’s digital advertising practices, the court largely denied Google’s motions for summary judgment against Gannett, Daily Mail, the AdX publisher class, and Mikula, but granted summary judgment against The Progressive and Inform. The court reasoned that (a) Gannett and Daily Mail presented sufficient evidence for a jury to find that certain practices harmed competition in the ad-exchange market and caused antitrust injury, and their claims were neither time-barred nor precluded by the FTAIA, (b) the AdX Class could proceed on both alleged tying theories, (c) Mikula presented triable issues concerning whether Google possessed market power in a distinct basic-ad-server market and coercively tied the AdSense ad server to its basic auction platform, but The Progressive lacked evidence that it actually used the allegedly tied AdSense server and therefore could not establish antitrust injury, and (d) Inform’s claims failed because it did not connect its alleged business losses—principally involving video advertising—to Google’s anticompetitive conduct in the open-web display-ad markets, did not present sufficient evidence of Google’s monopoly power in online video advertising, and could not establish the elements of its proposed YouTube/ad-buying-tools tie.
Class Actions and Other Settlements
Affinity Credit Union v. Apple Inc. (N.D. Cal. Sept. 23, 2026): In this class action alleging that Apple unlawfully monopolized the market for tap-and-pay mobile wallets on iOS and charged financial institutions supracompetitive Apple Pay transaction fees, the court granted plaintiffs’ motion for class certification. The court certified a class of all U.S. entities that issued an Apple Pay-enabled payment card and paid Apple a fee for transactions on that card, finding that common questions concerning the relevant market, Apple’s monopoly power, and alleged anticompetitive conduct, classwide impact, and damages predominated and that class treatment was superior.
Copeland v. Energizer Holdings, Inc. (N.D. Cal. Sept. 28, 2026): In this case alleging that Energizer and Walmart conspired to suppress price competition for Energizer batteries by pressuring online and other retailers to maintain higher prices, the court denied without prejudice plaintiffs’ motions for class certification. The court found that plaintiffs satisfied Rule 23(a), but failed to establish predominance because their experts’ difference-in-differences models did not reliably demonstrate classwide antitrust impact, principally because Energizer lighting products were not shown to be a valid comparison group for battery prices. The court declined to rely on alternative before-during regression models because plaintiffs had not presented them as independent bases for certification in their opening motions.
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