Last Week in Antitrust Litigation (#084)
Week of October 26, 2026
Top Takeaways
Loyalty Programs Face Scrutiny Beyond Discounts: The Syngenta court denied summary judgment, analyzing the challenged program as exclusive dealing rather than applying a price-cost test because the evidence extended beyond rebates to product-access conditions, purchasing thresholds, and retaliation. The ruling highlights why compliance reviews must examine how loyalty programs are enforced—not just the discounts they offer.
Merger Challenges Can End Deals Without a Merits Ruling: The FTC voluntarily dismissed its PlayPower case after the parties terminated the Burke acquisition and withdrew their HSR filing. The outcome highlights deal-execution risk even without a final judicial determination that a transaction would harm competition.
Divestitures Require More Than Transferring Plants: The CRH–Arcosa and CalPortland–Vulcan consent judgments pair facility sales with obligations addressing employees, permits, customer relationships, and asset preservation. For deal teams, remedy planning must account for the operational handoff needed to establish a viable competitor—not simply identify assets to sell.
New Cases Filed
The follow-on cases that were filed are:
Printz v. NCAA (N.D. Cal. Oct. 23, 2026) (alleging NCAA’s eligibility rules are anticompetitive like in Elad v. NCAA (D.N.J. Mar. 20, 2025))
City of Santa Rosa v. REV Grp. (N.D. Cal. Oct. 23, 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)); S. Walton Fire Dist. v. REV Grp. (E.D. Wis. Oct. 23, 2026) (same); City of N. Lauderdale v. REV Grp. (E.D. Wis. Oct. 23, 2026) (same)
Arnerich v. China Int'l Marine Containers (Grp.) Co. (N.D. Cal. Oct. 23, 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))
Worthington v. McDonald's USA, LLC (N.D. Ill. Oct. 27, 2026) (alleging McDonald's and its franchises engaged in a price-fixing conspiracy related to menu items like in Thomas v. McDonalds USA, LLC (N.D. Ill. Oct. 2, 2026))
Dispositive Orders and TROs
Davenport v. CRH plc (D.N.J. Oct. 22, 2026): In this case challenging CRH’s proposed acquisition of Arcosa by alleging it would substantially lessen competition in the market for the manufacture and sale of hot-mix asphalt in central New Jersey, the court entered a consent final judgment permitting the transaction subject to divestitures and other remedial conditions, without any admission of liability. The judgment requires defendants to divest within 90 days Arcosa’s Flemington, Hillsborough, and Howell asphalt facilities and CRH’s Pennington and South River facilities, together with the tangible and intangible assets, customer relationships, permits, records, and personnel necessary to operate them as viable competing businesses, to an acquirer approved by the New Jersey Attorney General. The judgment also (a) requires defendants to preserve the divestiture assets and assist the buyer in retaining relevant employees and obtaining necessary licenses and permits, (b) authorizes appointment of a divestiture trustee if defendants fail to complete the divestiture on time, and (c) imposes ongoing compliance, inspection, advance-notice, and no-reacquisition requirements designed to restore the competition allegedly lost through the transaction.
FTC v. Syngenta Crop Prot. AG (M.D.N.C. Oct. 22, 2026): In this case alleging that Syngenta unlawfully maintained monopoly power and restrained competition in markets for certain crop-protection products through its Key AI distributor loyalty-rebate program, the court denied defendants’ motion for summary judgment. The court reasoned that (a) the claims were properly analyzed as exclusive dealing under the rule of reason rather than the price-cost test because plaintiffs presented evidence that Key AI employed exclusionary mechanisms beyond discounts, including conditioning distributors’ access to Syngenta products and other benefits on compliance with greater-than-90% purchasing thresholds, retaliating against distributors that favored generics, and designing the program to preserve market share and higher grower prices after patent expiration, (b) genuine factual disputes existed over plaintiffs’ proposed single-active-ingredient markets because Syngenta itself tracked market share, structured rebates, developed post-patent strategies, and priced products on an AI-by-AI basis, while evidence concerning the AIs’ distinct characteristics and uses and industry recognition could support those narrower markets, and (c) plaintiffs presented sufficient evidence of substantial foreclosure and competitive harm because the participating distributors controlled a majority of the traditional distribution channel, generic manufacturers allegedly lost or delayed access despite lower prices, generic penetration could have been materially greater absent Key AI, and the program allegedly maintained higher grower prices; the court also held that sufficient evidence existed for a jury to find that Syngenta AG and Syngenta Corporation participated in or encouraged the challenged conduct.
FTC v. PlayPower, Inc. (N.D. Cal. Oct. 26, 2026): In this case challenging Platinum Equity and PlayPower’s proposed acquisition of Burke and alleging it would eliminate a close competitor and substantially lessen competition in the market for the manufacture of commercial outdoor playground equipment, the FTC filed a notice of voluntary dismissal. The notice stated that the defendants terminated their agreement and withdrew their HSR notification and report form on October 25, 2026.
United States v. Taiheiyo Cement Corp. (D.D.C. Oct. 28, 2026): In this case alleging that CalPortland’s proposed acquisition of Vulcan’s California ready-mix concrete operations would substantially lessen competition in the production, distribution, and sale of ready-mix concrete in San Diego County, the court entered a consent final judgment permitting the transaction subject to divestitures and other remedial conditions, without any admission of liability. The judgment requires defendants to divest CalPortland’s Escondido and Oceanside ready-mix concrete plants and Vulcan’s leasehold interests and related assets at its Lakeside plant to Holliday Rock or another approved acquirer, together with the contracts, customer relationships, permits, records, intellectual property, and personnel necessary to operate the assets as a viable competing business. The judgment also (a) requires defendants to preserve the divestiture assets, assist the buyer in hiring relevant personnel and obtaining necessary licenses and permits, and, if requested, provide aggregate and transition services, (b) authorizes appointment of a divestiture trustee if the required sale is not completed on time, and (c) imposes ongoing compliance, inspection, advance-notice, and no-reacquisition requirements designed to restore the competition allegedly threatened by the transaction.
Class Actions and Other Settlements
Lincoln Adventures, LLC v. Those Certain Underwriters at Lloyd's (D.N.J. Oct. 23, 2026): In this class action alleging that Lloyd’s insurers engaged in deceptive practices and concealed a lack of competition in the insurance market, the court granted final approval of a partial class settlement with Lloyd’s syndicates. The court finally certified a settlement class of persons and entities in the United States that purchased or renewed covered insurance contracts from January 1, 1997 through the execution date of the settlement agreement, finding the settlement fair, reasonable, and adequate and approving the notice program and plan of allocation. The court awarded plaintiffs’ counsel $1.19 million in attorneys’ fees and $200,000 in expenses and approved broad releases, a permanent injunction barring settlement class members from pursuing released claims, and a bar order governing contribution and indemnification claims. The court dismissed the action against the settling defendants with prejudice and directed entry of judgment under Rule 54(b).
Connecticut v. Sandoz, Inc. (D. Conn. Oct. 26, 2026): In this case alleging an overarching conspiracy among manufacturers of dermatology generic drugs in violation of antitrust laws, the court granted preliminary approval of settlements between the plaintiff states and Ascend Laboratories, Citron Pharma, and Mayne Pharma. The court found the settlements were negotiated at arm’s length and in good faith and were likely to satisfy the standards for final approval, and preliminarily approved allocations directing 70% of the settlement payments to restitution and 30% to notice, administration, and litigation costs. The court approved the notice plan, appointed Rust Consulting as notice and claims administrator and Huntington Bank as escrow agent, and established procedures and deadlines for exclusions and objections. The court stayed proceedings against the settling defendants and scheduled a final fairness hearing for January 27, 2027.
In re Crop Prot. Prods. Loyalty Program Antitrust Litig. (M.D.N.C. Oct. 26, 2026): In this MDL alleging that Corteva used loyalty programs for crop protection products to suppress competition, the court granted preliminary approval of a settlement with Corteva and conditionally certified a settlement class of end users who purchased specified Corteva crop protection products containing acetochlor, rimsulfuron, oxamyl, or methoxyfenozide from October 27, 2018 through May 27, 2026. The court found that the Rule 23 requirements were likely satisfied and that the settlement, reached through arm’s-length negotiations by experienced counsel, fell within the range of fairness, reasonableness, and adequacy. The court appointed class representatives and settlement class counsel, directed plaintiffs to submit proposed allocation and notice plans, approved establishment of a qualified settlement fund, and stayed proceedings against Corteva while preliminarily enjoining settlement class members from pursuing released claims pending final approval.
*** *** ***
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