Last Week in Antitrust Litigation (#081)
Week of October 5, 2026
Top Takeaways
Pricing Recommendations Face Scrutiny When Backed by Franchise Pressure: The McDonald’s complaint alleges that pooled franchisee data, monitoring, and pressure tied to renewals and expansion turn pricing recommendations into coordinated menu pricing. The case highlights why pricing tools should be reviewed alongside the commercial consequences of declining their recommendations.
Price-Discrimination Relief Reaches Day-to-Day Pricing Practices: Southern Glazer’s consent decree imposes six years of monitoring, training, and pricing-data reporting, with payments to affected independent retailers for qualifying violations. The order makes documentation of price differences and permitted cost and supplier-support allowances a continuing compliance priority.
Self-Funded Health Plans Clear a Direct-Purchaser Hurdle: The NYP court allowed claims challenging restrictive hospital contracts to proceed, treating self-funded plans as direct purchasers because they paid the hospital even though insurers negotiated the contracts. The ruling highlights why payment flows—not just the identity of the negotiator—matter when assessing private antitrust exposure.
New Cases Filed
Thomas v. McDonalds USA, LLC (N.D. Ill. Oct. 2, 2026): Michael Thomas filed a putative class action against McDonald’s alleging that McDonald’s and its independently owned franchisees agreed to fix, raise, maintain, and stabilize prices of menu items sold at McDonald’s restaurants in the United States by using a common pricing algorithm trained on pooled confidential competitor data, in violation of, among others, the Sherman Act and the Illinois Antitrust Act. The complaint alleges that McDonald’s centralized pricing engine uses transaction-level sales and pricing data from franchisees and company-owned restaurants to recommend restaurant- and item-specific prices, including through a “30% rule” conditioning one restaurant’s price increases on whether competing McDonald’s restaurants already raised prices, while McDonald’s pressures franchisees to follow the recommendations, tracks deviations, and considers compliance in franchise renewal and expansion decisions. According to the complaint, the arrangement suppressed independent price competition among McDonald’s restaurants, caused consumers to pay higher and supracompetitive prices, and increased McDonald’s revenues and profits through coordinated menu-price increases.
Nasri v. Mountainside Med. Ctr. (D.N.J. Oct. 2, 2026): Bao-Ngoc Nasri, M.D. filed suit against Mountainside Medical, Hackensack Meridian Health, Montclair Surgical, and New York Bariatric alleging that defendants conspired to exclude independent surgeons from Mountainside’s on-call schedule and that Montclair Surgical Associates monopolized and attempted to monopolize the market for Acute Surgical Services in Northern Essex County, New Jersey in violation of Sections 1 and 2 of the Sherman Act. The complaint alleges that the two dominant surgical groups controlled access to the on-call schedule, coordinated a vote to cap participation, refused cross-coverage to independent surgeons, used credentialing and disciplinary processes to exclude Nasri, granted preferential treatment to affiliated surgeons, and diverted emergency surgical consultations away from independent physicians. According to the complaint, defendants’ conduct reduced competition among surgeons, restricted patient choice, diminished the quality and availability of surgical care, prevented development of viable independent competing practices, and created conditions conducive to artificially elevated prices for Acute Surgical Services.
Andrews v. Expedia Grp. (W.D. Wash. Oct. 2, 2026): Plaintiffs filed a putative class action against Expedia alleging that it used contractual and algorithmic most-favored-nation restraints to suppress price competition and maintain monopoly power in the market for online travel agency (“OTA”) services for hotel accommodations connecting U.S. hotels with U.S. consumers in violation of Sections 1 and 2 of the Sherman Act. The complaint alleges that Expedia prohibits hotels from offering lower prices through their own direct-booking channels and uses search-ranking penalties, automatic rate matching, and its VIP Access program to discourage hotels from offering lower prices through competing OTAs, thereby extending rate parity across hotel distribution channels. According to the complaint, these restraints insulate Expedia’s allegedly supracompetitive commissions, inflate commissions charged by rival OTAs and hotel-room prices paid through rival OTAs and direct-booking channels, raise barriers to entry, foreclose price competition, and reduce output, quality, and innovation in OTA services.
Cal. Reg'l Multiple Listing Serv., Inc. v. Compass, Inc. (S.D.N.Y. Oct. 5, 2026): California Regional Multiple Listing Service (“CRMLS”) filed suit against Compass seeking a declaration that CRMLS’s Cooperation Rules requiring publicly marketed residential listings subject to exclusive commission agreements to be submitted to the MLS do not constitute an unlawful group boycott or otherwise violate Section 1 of the Sherman Act or the California Cartwright Act. The complaint alleges that the rules require brokers who publicly market covered properties to submit them to CRMLS within one business day while permitting sellers to use “No Cooperation Listings” that remain within a single brokerage and other non-exclusive arrangements that do not require MLS submission, and that Compass threatened antitrust litigation unless CRMLS stopped enforcing those rules. According to the complaint, the Cooperation Rules increase the output, completeness, and transparency of MLS listing information, broaden buyer and seller access, prevent free-riding, facilitate competition among brokerages regardless of size, and reduce the risk that large brokerages can withhold inventory to force consumers to use affiliated agents.
Oriakhi v. Nat'l Milk Producers Fed'n (E.D. Va. Oct. 5, 2026): Numerous consumers filed a putative class action against the National Milk Producers Federation and numerous dairy cooperatives alleging that defendants used the Cooperatives Working Together/NEXT Export Assistance Program to coordinate and subsidize exports, restrict domestic dairy supply, and raise prices in for pasteurized milk, American-type cheese, Gouda, butter, whole milk powder, cream cheese, and anhydrous milkfat in violation of, among others, Section 1 of the Sherman Act and state antitrust laws. The complaint alleges that competing dairy cooperatives funded the program through assessments on milk production and used those funds to subsidize one another’s exports of dairy products, diverting milk and processed dairy products from domestic markets without a corresponding increase in overall production. According to the complaint, the coordinated export program reduced domestic supply, raised raw milk and processed dairy prices above competitive levels, and caused those overcharges to be passed through the distribution chain to consumers purchasing milk, cheese, butter, and other dairy products at retail.
Bolyasnyy v. Mass. Thoroughbred Breeders Ass'n (D. Mass. Oct. 6, 2026): Maksim Bolyasnyy and Antar’s Amazing Dream Farm filed suit against the Massachusetts Thoroughbred Breeders Association (“MTBA”) and eight of its directors and officers alleging that defendants selectively disclosed and administered a breeding incentive program, applied undisclosed or shifting eligibility criteria, and directed incentive-supported breeding opportunities toward favored or incumbent interests to restrain competition in the market for thoroughbred stallion breeding services in Massachusetts in violation of, among others, Section 1 of the Sherman Act and Massachusetts antitrust law. The complaint alleges that the MTBA controlled a 2026 program offering up to $25,000 per qualifying stallion and $15,000 per qualifying mare, failed to disclose the program to plaintiffs while discussing their breeding plans, later supplied conflicting terms including a five-stallion cap and September 15 allocation date, restricted promotional access, and allegedly favored director-affiliated breeding interests. According to the complaint, defendants’ conduct denied plaintiffs access to a significant competitive input, increased their effective cost of attracting mares, diverted mare placements and related revenue toward favored participants, reduced mare owners’ choice among competing Massachusetts stallions, and impaired Danzing Candy’s ability to establish itself as a new competitor in the Massachusetts market.
The follow-on cases that were filed are:
Garrett v. Tyson Foods, Inc. (D. Minn. Oct. 2, 2026) (new complaint filed in the In re Cattle & Beef Antitrust Litig. MDL)
Transform SR Holdings v. Keurig Green Mountain, Inc. (E.D.N.Y. Oct. 2, 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))
City of Berkeley v. REV Grp. (N.D. Cal. Oct. 6, 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))
State of Michigan v. Blue Cross Blue Shield (E.D. Mich. Oct. 8, 2026) (alleging market allocation and price-fixing in health insurance industry like in AmeriTeam Servs. v. Blue Cross & Blue Shield of Ala. (N.D. Ill. Mar. 4, 2025))
Simpson v. NCAA (D.R.I. Oct. 8, 2026) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025)); Pinion v. NCAA (D.R.I. Oct. 8, 2026) (same)
Dispositive Orders and TROs
Musharbash v. U.S. Anesthesia Partners, Inc. (S.D. Tex. Sept. 30, 2026): In this case alleging that Welsh Carson conspired with U.S. Anesthesia Partners, Inc. (“USAP”) to monopolize hospital anesthesia services in Texas in violation of the Sherman Act, the court granted defendants’ motion to dismiss in part but allowed the principal hospital-only anesthesia claims to proceed. The court reasoned that (a) plaintiff lacked Article III standing to pursue separate claims concerning the alleged market for ASC-based anesthesia services because she purchased anesthesia only at a hospital, so the ASC-based portions of the acquisition, attempted-monopolization, and market-allocation claims were dismissed without prejudice, (b) the complaint plausibly alleged that both USAP’s parent Holdings and Texas P.A. independently participated in the challenged hospital-market scheme, including through acquisitions and Texas P.A.’s alleged agreement with Baylor to bill a competitor’s anesthesia services at USAP’s higher rates, but (c) the conspiracy-to-monopolize claim was dismissed with prejudice because the complaint alleged that USAP, Holdings, Texas P.A., and Welsh Carson functioned as a single enterprise and therefore could not conspire with one another under Copperweld.
Pospisil v. ATP Tour, Inc. (S.D.N.Y. Sept. 30, 2026): In this putative antitrust class action alleging the defendants engaged in a wide-ranging conspiracy to suppress professional player compensation and exclude rival tennis events, the court denied defendants’ motion to dismiss the antitrust claims. The court reasoned that plaintiffs plausibly alleged a broader conspiracy through ATP’s and WTA’s alleged market-allocation and compensation restrictions, their joint operation of the United Cup, coordinated ranking and scheduling practices, and the Grand Slam defendants’ alleged participation through the Ranking Points Agreement, Grand Slam Rulebook, and Tour rules, which plausibly produced direct anticompetitive effects including suppressed compensation, reduced output, and diminished competition for players’ services.
Sulzer Mixpac AG v. DXM Co. (S.D.N.Y. Sept. 30, 2026): In this case asserting counterclaims alleging that Mixpac’s conduct toward the USPTO regarding a trademark was anticompetitive, the court granted Mixpac’s motion to dismiss DXM’s counterclaims with prejudice and denied leave to amend. The court reasoned that (a) DXM failed to plausibly allege fraud on the USPTO because Mixpac truthfully stated that its marks remained in use, Section 8 imposed no duty to disclose the adverse appellate ruling, and trademark law did not recognize the broader patent-style inequitable-conduct theory DXM proposed, and (b) Mixpac likewise had no duty to withdraw its CBP recordals before the trademark registrations were finally cancelled, so DXM failed to allege any predatory or anticompetitive act necessary for a § 2 claim.
Faust v. Paramount Skydance Corp. (N.D. Cal. Sept. 30, 2026): In this case seeking to block Skydance’s acquisition of Paramount Global and Paramount’s proposed acquisition of Warner Bros. Discovery, the court denied plaintiffs’ motion for a temporary restraining order seeking to prevent consummation of the Warner Bros. Discovery acquisition. The court reasoned that (a) plaintiffs again presented no evidence supporting preliminary relief and could not rely on evidence from a separate antitrust action involving different relevant markets, (b) allegations of antitrust violations and competitive harm alone were insufficient to establish the required likelihood of success and irreparable harm, and (c) serious unresolved questions concerning plaintiffs’ Article III standing further undermined their likelihood of success, so plaintiffs failed to make the clear showing required for preliminary injunctive relief.
FTC v. S. Glazer’s Wine & Spirits, LLC (C.D. Cal. Oct. 2, 2026): In this case alleging that defendant violated the Robinson-Patman and the FTC Act based on discriminatory pricing of wine and spirits between large chains and small independent retailers, the court entered a stipulated consent decree resolving the FTC’s claims without an admission of liability. The decree (a) prohibits discriminatory pricing to covered independent retailers when qualifying price differentials, after specified cost and supplier-support allowances, exceed a $5,000 enforcement threshold, (b) requires Southern Glazer’s to cure identified violations by paying affected retailers 1.5 times the excess payment, with twice the excess payment due if it declines to cure and the FTC prevails in an enforcement action, and (c) imposes a six-year compliance regime including an independent monitor, Robinson-Patman Act training and documentation requirements, semiannual pricing-data reports, and prohibitions on practices designed to circumvent the decree.
UFCW Local 1500 Welfare Fund v. N.Y. & Presbyterian Hosp. (E.D.N.Y. Sept. 8, 2025): In this case alleging that New York and Presbyterian Hospital (“NYP”) engaged in exclusionary anti-steering contracting practices—including “all products” clauses, gag clauses, and single consolidated rate requirements—in the market for general acute care inpatient hospital services, the court denied NYP’s motion to dismiss. The court reasoned that (a) the self-funded health plans adequately alleged antitrust standing and were direct purchasers because, although insurers negotiated NYP’s network contracts, the plans themselves paid NYP for healthcare services and directly bore the alleged supracompetitive prices, (b) plaintiffs plausibly alleged the relevant product and geographic markets and NYP’s market power based on its substantial market shares, high barriers to entry, “must-have” status for health plans, ability to impose restrictive contractual terms, and supracompetitive pricing, and (c) § 1 does not require plaintiffs to plead exclusionary conduct or rival foreclosure, but plaintiffs nevertheless plausibly alleged that NYP’s restraints prevented competitors from competing for preferred network status.
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