After a 5-0 vote, on July 2, 2024, the U.S. Federal Trade Commission sought to block mattress manufacturer (the “Manufacturer”) contemplated $4 billion acquisition of a mattress retailer (“Retailer”) by filing both an administrative complaint and a complaint in the U.S. District Court for the Southern District of Texas, the latter with a request for preliminary relief to enjoin the transaction pending the administrative proceeding. According to the FTC, the proposed acquisition would combine the world’s largest mattress supplier with the nation’s largest mattress retailer. Notably, the issuance of this complaint has bipartisan support with Republican Commissioner Holyoak releasing a statement in support of the FTC staff’s thorough investigation.

On June 11, 2024, the United States District Court for the Eastern District of New York granted in part and denied in part Defendants’ (United States Soccer Federation, Inc. (“U.S. Soccer”) and Major League Soccer, LLC (“MLS”)) motions for summary judgment on Plaintiff’s (North American Soccer League, LLC (“NASL”)) claim that Defendants conspired to exclude it from competing in the men’s professional soccer leagues in the U.S. and Canada in violation of Section 1 of the Sherman Act.  The Court reasoned that a reasonable jury could find that Defendants acted in concert or unilaterally in applying the professional soccer league standards in a discriminatory manner and allowed that issue and Plaintiff’s monopolization claims to go forward to trial.

On July 3, 2024, the United States District Court of the Northern District of Texas granted a preliminary injunction barring the Federal Trade Commission from enforcing its rule against non-compete agreements (“Rule”).  Ryan LLC v. FTC, No. 3:24-cv-00986-E, 2024 WL 3297524 (N.D. Tex. July 3, 2024) (“Opinion”).  The Court did not issue a nationwide injunction, extending relief only to plaintiff and plaintiff-intervenors (collectively, “Plaintiffs”).

On June 11, 2024, the United States District Court for the Eastern District of Virginia granted defendant’s motion to dismiss plaintiffs’ damages claim in a lawsuit brought by the Department of Justice and eight states against a technology company alleging illegal monopolization of adtech markets. The Court, in an opinion unsealed on June 17, dismissed the damages claim as moot, finding no claim for relief remained after defendant sent the full amount of potential damages to DOJ’s offices in the form of a cashier’s check. The Court also struck plaintiffs’ demand for a jury trial, which was based solely on the claim for damages. United States of America et al. v. Google, LLC, No. 1:23-cv-108 (E.D. Va. Jun. 19, 2024).

On June 5, 2024, Judge William Griesbach of the United States District Court for the Eastern District of Wisconsin dismissed an action brought by a class of Harley-Davidson purchasers alleging that the motorcycle manufacturer unlawfully tied its motorcycles and the accompanying factory warranty to Harley-Davidson replacement parts. In Re: Harley-Davidson Aftermarket Parts Marketing, Sales Practices, and Antitrust Litigation, No. 23-MD-3064, 2024 WL 2846349 (E.D. Wis. June 5, 2024). The lawsuit stems from a 2022 Federal Trade Commission (FTC) action alleging Harley-Davidson violated the Magnuson-Moss Warranty Act (MMWA) by voiding warranties for repairs made using third-party parts. The MMWA is a consumer protection statute that requires transparency in warranties on consumer products and establishes minimum criteria for different types of warranties and warranty-like products. Unlike the FTC suit, however, here plaintiffs also alleged a Sherman Act Section 1 violation. But finding plaintiffs had failed to properly allege an actionable tying scheme, the Court dismissed the action in its entirety.

On June 5, 2024, the U.S. District Court for the Western District of North Carolina denied the Federal Trade Commission’s request for a preliminary injunction barring Novant Health, Inc.’s $320 million acquisition of two North Carolina hospitals, Lake Norman Regional Medical Center and Davis Regional Psychiatric Hospital, both operated by Community Health Systems, Inc. (“CHS”).

On May 23, 2024, the National Collegiate Athletic Association (“NCAA”) reached an agreement with five of the nation’s collegiate athletic conferences—the Atlantic Coast Conference, the Big Ten, the Big 12, the Pac-12, and the Southeastern Conference—to allow student athletes to receive pay directly from their colleges and universities. The agreement is intended to settle In re: College Athlete NIL Litigation, Case No. 4:20-cv-03919, N.D. Cal., an ongoing antitrust class action in the United States District Court for the Northern District of California involving hundreds of thousands of collegiate athletes. 

On May 13, 2024, the United States Court of Appeals for the Second Circuit upheld the dismissal (with prejudice) of a lawsuit that alleged certain “reverse payments” made by a patent-holding pharmaceutical company to competitor generic manufacturers to settle patent infringement litigation constituted an antitrust violation under Sections 1 and 2 of the Sherman Act (among others). 

On May 8, 2024, Judge Miranda M. Du of the United States District Court for the District of Nevada dismissed with prejudice a putative class action complaint alleging the unlawful restraint of trade via a hub-and-spoke conspiracy between and among an algorithmic pricing software company and multiple operators of hotels on the Las Vegas Strip in violation of Section 1 of the Sherman Antitrust Act. Gibson v. Cendyn Group, LLC, et al, No. 2:23-CV-00140-MMD-DJA, 2024 WL 2060260 (D. Nev. May 8, 2024).

On April 19, 2024, Judge Anthony Trenga of the United States District Court for the Eastern District of Virginia granted a motion to dismiss an antitrust class action against several shipbuilding companies who supply the U.S miliary. The action was brought on behalf of a putative class of persons employed as naval architects or marine engineers by defendants. Plaintiffs alleged that defendants violated Section 1 of the Sherman Act by allegedly entering into an unwritten agreement not to affirmatively recruit one another’s naval engineers or architects. The Court ultimately concluded that the claims were barred by the Sherman Act’s four-year statute of limitations, and accordingly dismissed the action in its entirety. Scharpf, et al. v. General Dynamics Corp. et al., No. 123CV01372AJTWEF, 2024 WL 1704665 (E.D. Va. Apr. 19, 2024).

On April 5, 2024, the United States Court of Appeals for the District of Columbia Circuit reversed the district court’s decision to “set aside” a civil investigative demand (“CID”) issued by the Antitrust Division of the U.S. Department of Justice (“DOJ”) to the National Association of Realtors (“NAR”), a real estate trade association. The majority found that the issuance of the CID was not barred by the parties’ prior settlement agreement regarding different allegations. National Association of Realtors v. United States, No.23-5065, 2024 WL 1471170 (D.C. Cir. Apr. 5, 2024).

On March 28, 2024, Judge Troy L. Nunley of the United States District Court for the Eastern District of California denied a motion to dismiss a lawsuit alleging that California landowners conspired to drive up the price of properties in Solano County. Flannery Assoc. LLC v. Barnes Family Ranch Assoc., LLC et al., No. 2:23-CV-00927 (E.D. Cal. Mar. 28, 2024). The Court held that plaintiff had adequately alleged both direct and circumstantial evidence of a horizontal price-fixing agreement.

On March 20, 2024, the Southern District of New York dismissed DirecTV’s (“Plaintiff”) claims against Nexstar Media Group, Mission Broadcasting, and White Knight Broadcasting (together, “Defendants”) for conspiring to fix prices for retransmission agreements (“RCAs”) and unlawfully sharing information in violation of Section 1 of the Sherman Act. DirecTV LLC v. Nexstar Media Group Inc. et al., Case No. 23-cv-2221, 2024 WL 1195524 (S.D.N.Y. Mar. 20, 2024) (the “Opinion”).

On February 21, 2024, Judge Vince Chhabria of the United States District Court for the Northern District of California granted motions for summary judgment finding that presented evidence did not give rise to a viable refusal-to-deal claim because, even though there was evidence of a motivation to harm a competitor with the refusal, there was also evidence of a valid business justification. This ruling applies to two cases Simon and Simon, PC v. Align Tech., Inc., No. 3:20-cv-03754, 2022 WL 15523532 (N.D. Cal. Jun. 5, 2020), and Misty Snow v. Align Tech., Inc., 586 F. Supp. 3d (N.D. Cal. 2021), where plaintiffs, dental and orthodontic practices and orthodontic customers, asserted that defendant, a global medical device company who makes dental aligners under the Invisalign brand, violated Section 2 of the Sherman Act’s ban on attempts to monopolize a market.

On February 23, 2024, Judge Clifton L. Corker of the Eastern District of Tennessee enjoined the National Collegiate Athletic Association (“NCAA”) from enforcing rules that prohibited third parties from entering into compensation agreements with student-athletes during the recruiting and transfer process as a potential violation of Section 1 of the Sherman Act. State of Tennessee and Commonwealth of Virginia v. National Collegiate Athletic Association, Case No. 3:24-cv-00033, 2024 WL 755528 (E.D. Tenn. Feb. 23, 2024).

On March 11, 2024, the United States Court of Appeals for the Third Circuit denied a mandamus petition from AbbVie Inc. and Besins Healthcare Inc. (collectively “Petitioners”) seeking to overturn a district court order which required the production of documents prepared by in-house counsel pursuant to the crime-fraud exception to the attorney-client privilege. In re Abbott Lab’ys, No. 23-2412, 2024 WL 1040669 (3d Cir. Mar. 11, 2024). In its opinion, the Court cited the high bar for mandamus petitions, the lack of binding precedent with a similar fact pattern, and the alternative remedies that remain available to Petitioners.

On February 1, 2024, the United States Court of Appeals for the Second Circuit affirmed the dismissal of a class action alleging bid-rigging and boycott conspiracies under Section 1 of the Sherman Act. The Second Circuit found that Plaintiffs—eighteen pension funds and other investors in Treasury securities—failed to plausibly allege that Defendants—“primary dealers” in the market for U.S. Treasury securities—engaged in conspiracies to rig Treasury auctions or that a subset of these defendants participated in a group boycott in the secondary Treasuries market, because Plaintiffs failed to demonstrate the existence of an agreement with regard to either allegation.

On January 19, 2024, Judge Patti B. Saris of the United States District Court for the District of Massachusetts held that American National Red Cross (“ARC”) is not a “person” under the Sherman Act and therefore not subject to the Act’s prohibitions. Verax Biomedical Inc. v. American National Red Cross, 2024 WL 208127 (D. Mass. Jan. 19, 2024). Plaintiff, a manufacturer of tests for detecting bacterial growth in blood platelets, alleged that ARC, the largest supplier of blood platelets in the United States, leveraged its power in the market for platelets to monopolize the market for bacterial growth mitigation services. Specifically, plaintiff brought three claims under the Sherman Act: tying, exclusive dealing and attempted monopolization. But, because the Court found that the Sherman Act does not reach ARC, it dismissed all three antirust claims. Notably, the Court reached this conclusion even after the Antitrust Division of the United States Department of Justice (“DOJ”) filed a statement of intertest with the Court, arguing that ARC can indeed be sued under the Sherman Act.

On January 17, 2024, Judge Jeremy C. Daniel of the United States District Court for the Northern District of Illinois (Eastern Division) denied defendants’ motion for judgment on the pleadings brought under Rule 12(c) of the Federal Rules of Civil Procedure that attempted to limit the scope of discovery and recoverable damages of antitrust claims brought by plaintiff. Linet Americas Inc. v. Hill-Rom Holdings Inc. et al., No. 21 CV 6890, (N.D. Ill. Jan. 17, 2024).

On December 15, 2023, a panel of the United States Circuit Court for the Fifth Circuit vacated and remanded the U.S. Federal Trade Commission’s (the “Commission,” when referred to as a judicial body, and “Complaint Counsel” when referred to as a complainant) April 3, 2023 Opinion and Order, which required Illumina, Inc. (the “Company”) to divest Grail, Inc. (the “Acquiree”).  Although the Fifth Circuit substantially agreed with the Commission’s initial Clayton Act Section 7 analysis reversing an Administrative Law Judge’s (“ALJ”) September 2022 dismissal of the complaint, it held that the Commission made a “legal error” when it analyzed the Company’s pre-closing standardized consumer supply contract as a remedy, instead of as rebuttal evidence to the Complaint Counsel’s prima facie case.

On January 11, 2024, Judge Philip S. Gutierrez of the United States District Court for the Central District of California denied defendants’ motion for summary judgment in a case alleging that the National Football League (“NFL”) and its member clubs conspired and entered into unlawful agreements with each other and their broadcast partners to suppress the output of certain kinds of telecasts of professional football games in violation of Sections 1 and 2 of the Sherman Act.  In re Nat’l Football League’s Sunday Ticket Antitrust Litig., No. ML 15-02668 PSG (SK), 2024 WL 168298 (C.D. Cal. Jan. 11, 2024).

On November 30, 2023, Chief Judge Richard Seeborg of the United States District Court for the Northern District of California dismissed a lawsuit alleging that Google illegally ties its mapping applications in violation of U.S. antitrust law. At issue were defendant’s application programing interfaces (“API’s”) “Maps,” “Routes,” and “Places.” Plaintiffs claimed that defendant unlawfully ties these three APIs together, by purportedly refusing to sell one service unless the purchaser also agrees to buy the other mapping services or agrees to refrain from purchasing similar services from any alternative source. According to plaintiffs, because of defendant’s alleged market power, this tying scheme allowed defendant to charge higher prices for its mapping services in violation of the Sherman Act, the Clayton Act, and California’s Unfair Competition Law. Dream Big Media Inc., et al. v. Alphabet Inc., et al., 2023 WL 8285808 (N.D. Cal. Nov. 20, 2023).

On November 21, 2023, the United States Circuit Court for the Fifth Circuit vacated a district court ruling denying a motion to dismiss on the basis of forum non conveniens in a suit brought by an auto parts supplier against a global car company.  The Fifth Circuit panel, responding to a writ of mandamus, found that the lower court had erroneously relied on outdated precedent in its determination that antitrust cases are barred from dismissal on the basis of forum non conveniens.  Prevent U.S.A. Corporation v. Volkswagen AG, et al., No. 23040487 (5th. Cir. Nov. 21, 2023).

On October 30, 2023, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s summary judgment in favor of defendants Ring Power Corporation, Ziegler, Inc., and Thompson Tractor Company, Inc., because plaintiff International Construction Products, LLC (ICP) failed to present sufficient evidence—direct or circumstantial—to establish a conspiracy to boycott under Section 1 of the Sherman Act.  International Construction Products, LLC v. Ring Power Corporation, No. 22-10231, 2023 WL 7127515 (11th Cir. Oct. 30, 2023).

On November 3, 2023, a panel of the United States Court of Appeal for the Ninth Circuit affirmed the dismissal with prejudice of claims brought by app developers (“Plaintiffs”) against a technology company (the “Company”) for alleged violations of Sections 1 and 2 of the Sherman Act.¹  Coronavirus Reporter et. al., v. Apple, Inc. No. 22-15166 (9th Cir. 2023).

On October 4, 2023, the United States District Court for the Northern District of Illinois granted with leave to amend the American Board of Psychiatry and Neurology’s (ABPN) motion to dismiss a class action alleging in part that ABPN’s tying of its professional certification to its maintenance of certification (MOC) program violated Section 1 of the Sherman Act prohibiting illegal restraints of trade or commerce.  Lazarou v. Am. Bd. of Psychiatry & Neurology, No. 19-cv-01614 (N.D. Ill. Oct. 4, 2023).

On August 28, 2023, a panel of the United States Court of Appeals for the Third Circuit affirmed the United States District Court for the Eastern District of Pennsylvania’s application of the rule of reason to evaluate a complex price-fixing conspiracy involving both horizontal and vertical relationships between defendants.  Winn-Dixie Stores, Inc., et al. v. Eastern Mushroom Marketing Cooperative, Inc., et al., Case No. 22-2289, 2023 WL 5521221 (3d. Cir. Aug. 28, 2023).

On August 30, 2023, a panel of the United States Court of Appeals for the Seventh Circuit vacated and remanded back to the district court an award of $57.4 million in attorney fees in one of several private class actions with claims alleging unlawful price-fixing in the broiler chicken industry via exchange of data through a third-party research compiler.  In re: Broiler Chicken Antitrust Litigation, Case No. 22-2889 (7th Cir. Aug. 30, 2023).

On September 12, 2023, the United States Court of Appeals for the Sixth Circuit affirmed the district court’s dismissal of Sherman Act claims by a supplier of wastewater treatment products against two of its competitors and a private standard-setting organization, NSF International, holding that the Noerr-Pennington doctrine protected defendants from Sherman Act liability.  Geomatrix, LLC v. NSF Int’l, No. 22-1947, 2023 WL 5925977 (6^th Cir. Sept. 12, 2023).

On August 17, 2023, the United States District Court for the District of Minnesota dismissed a complaint brought by “cow-calf” ranchers alleging they had been injured by a conspiracy by  defendant meat packers to artificially depress the price they paid for fed cattle.  In re Cattle and Beef Antitrust Litigation, No. 22-3031 (D. Minn. Aug. 17, 2023).  District Judge John R. Tunheim held that the ranchers, who had not sold directly to defendants, had not adequately alleged “traceability” to show that the allegedly depressed prices they received for cows and calves they sold during the alleged conspiracy period were connected to defendants’ conduct, but left the option open for plaintiffs to refile their complaint.

On August 25, 2023, a panel of the United States Court of Appeals for the D.C Circuit affirmed the district court’s dismissal of the FTC’s complaint against Endo Pharmaceuticals Inc. (“Endo”), Impax Laboratories LLC (“Impax”) and their parent companies (collectively “Appellees”) for alleged violations of sections 1 and 2 of the Sherman Act.  FTC v. Endo Pharmaceuticals Inc., et al., Dkt. No. 22-05137 (D.C. Cir. Aug. 25, 2023).  The suit stemmed from a patent litigation settlement agreement in 2017, which the FTC alleged was an impermissible exclusive licensing arrangement.  The D.C. Circuit held that the FTC failed to state a claim because the complaint lacked allegations establishing that the 2017 Agreement extended beyond the rights granted to Impax under settled law and precedent.

On July 27, 2023, Judge Chad Kenney of the United States District Court for the Eastern District of Pennsylvania granted in part and denied in part Merck’s motion for summary judgment in relation to a class action alleging that direct purchasers of Merck’s mumps vaccines were overcharged as a result of Merck’s alleged unlawful monopolization of the mumps vaccine market in violation of Section 2 of the Sherman Act and New Jersey and New York state laws.  In re Merck Mumps Vaccine Litig., No. 12-3555 (E.D. Pa. July 27, 2023).  Plaintiffs allege that Merck’s submissions to the FDA and its labels for its mumps vaccines contained false and misleading information in relation to the amount of live virus in its products.  According to plaintiffs, this led to competitors being forced to comply with unusual standards to receive FDA approval to market their products, and specifically, it precluded GSK from obtaining a license to sell its vaccine for mumps, measles and rubella (MMR vaccine) and caused plaintiffs to be overcharged.

On July 27, 2023, Judge William Shubb of the United States District Court for the Eastern District of California denied the National Collegiate Athletic Association’s (NCAA) motion to dismiss a putative class action alleging in part that the NCAA and its member schools violated Section 1 of the Sherman Act by conspiring not to compensate coaches defined as volunteer coaches under NCAA regulations.  Smart v. NCAA, No. 22-cv-02125 (E.D. Cal. July 27, 2023).

On July 21, 2023, the United States Court of Appeals for the Ninth Circuit reversed an order from the U.S. District Court for the Northern District of California dismissing Flextronics International USA Inc.’s (“Flextronics”) antitrust lawsuit alleging that Panasonic and other Japanese electrical inductor companies conspired to fix and stabilize inductor prices.

On June 30, 2023, U.S. District Judge Thomas Durkin for the Northern District of Illinois partially granted defendants’ motion for summary judgment in a consolidated antitrust case alleging unlawful price-fixing in the broiler chicken industry.  In re Broiler Chicken Antitrust Litig., 1:16-cv-08637 (N.D. Ill. 2023).  Plaintiffs claim defendant broiler chicken producers raised the price of broiler chickens in violation of Section 1 of the Sherman Act by unlawfully agreeing to reduce the supply of chicken between 2008 and 2009 and 2011 and 2012.  The Court granted summary judgment in favor of seven defendants but denied the motions by 11 other defendants and allowed those claims to proceed to trial, citing differences in the amount of evidence expressly involving each defendant.

On June 14, 2023, Judge Virginia M. Kendall of the United States District Court for the Northern District of Illinois dismissed without prejudice consolidated private antitrust actions brought against Information Systems Audit and Control Association, Inc. (“ISACA”).  Riley v. Info. Sys. Audit & Control Assoc., No. 22 C 4465, 2023 WL 3997075 (N.D. Ill. June 14, 2023).  Plaintiffs asserted claims under Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act alleging that defendant monopolized or conspired to monopolize the market for certain business process appraisals using defendant’s proprietary methods.  The Court granted defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.  The Court held that plaintiffs failed to allege a relevant product market because the alleged market only consisted of defendant’s product, and a company’s own product generally “do[es] not comprise a relevant product market.”

On June 21, 2023, the United States District Court for the District of Columbia denied defendant railroads’ motion to dismiss an allegedly time-barred complaint brought by a single plaintiff in a multidistrict litigation alleging a conspiracy to increase the price of rail freight transport.  In re:  Rail Freight Fuel Surcharge Antitrust Litigation (No. II), 20-mc-00008-BAH, ECF No. 916, (D.D.C. June 21, 2023) (the “Opinion”).

On June 5, 2023, the Judicial Panel on Multidistrict Litigation (the “Panel”) held that recent changes to 28 U.S.C. § 1407(g), extending a limitation on multi-district consolidation to state-attorney-general complaints, applied to already pending cases and thus precluded the state-led antitrust actions against Google from proceeding with other cases in a multidistrict litigation.

On May 22, 2023, Judge Caproni of the United States District Court for the Southern District of New York dismissed with prejudice a long-running litigation brought by plaintiff traders who in 2014 accused certain financial institutions of conspiring to periodically suppress a daily silver benchmark price set in London in violation of Section 1 of the Sherman Act.  In re London Silver Fixing, Ltd., Antitrust Litigation, 2023 WL 3582198 (S.D.N.Y. May 22, 2023).  Plaintiffs had accused the financial institutions of manipulating silver prices from 2007 to 2013.

On May 4, 2023, the United States Court of Appeals for the Third Circuit unsealed its April 24, 2023, Opinion upholding the Eastern District of Pennsylvania’s denial of a motion to certify an indirect purchaser class of insurance plans and other end-payors allegedly injured by a “reverse payment” settlement that allegedly delayed the entry of a generic competitor to the brand-name prescription drug, Niaspan.  In Re:  Niaspan Antitrust Litigation, No. 21-2895 (3d Cir. Apr. 24, 2023).

On April 14, 2023, the United States District Court for the Southern District of New York dismissed a suit brought by Garth Drabinsky, an award-winning Broadway producer, against an actors’ union, the Actors’ Equity Association (“AEA”), for allegedly blacklisting him in violation of Sections 1 and 2 of the Sherman Act. The Court dismissed the suit with prejudice, holding that Drabinsky’s federal antitrust claims were barred by the statutory exemption for unions. Drabinsky v. Actors’ Equity Association, No. 22-CV-8933-LGS (S.D.N.Y.).

On April 20, 2023, Judge Ricardo Martinez of the United States District Court for the Western District of Washington dismissed with leave to amend a putative class action alleging that Amazon’s linking of favorable website product placement for third-party sellers with the third-party sellers’ purchases of Amazon’s fulfillment services was an unlawful tying arrangement under Sections 1 and 2 of the Sherman Act. Hogan v. Amazon.com, Inc., No. 21-996 (W.D. Wash. Apr. 20, 2023). Plaintiffs were members of Amazon Prime, an Amazon program offering free or reduced shipping on purchases through Amazon, among other benefits, in exchange for an annual fee. Plaintiffs alleged that third-party sellers who purchase Amazon’s fulfillment services receive a “Prime Badge” and favorable product placement on Amazon’s website in the “Buy Box,” the section of the product page through which plaintiffs claimed 90% of Amazon.com consumer purchases are made.

On March 23, 2023, the United States District Court for the Western District of Washington partially granted and partially denied Amazon’s motion to dismiss a putative consumer class action alleging Amazon’s policies have prevented third-party sellers from offering lower prices on other e-commerce platforms. Frame-Wilson, et al. v. Amazon.com, Inc., No. 2:20-cv-00424-RAJ, 2023 WL 2632513 (W.D. Wash. Mar. 23, 2023).

On April 3, 2023, the United States Federal Trade Commission (the “Commission”) voted unanimously to issue an Opinion and Order requiring Illumina, Inc. (the “Company”), to divest GRAIL, Inc. (together the “Parties”). The Opinion reversed the Administrative Law Judge’s (the “ALJ”) Initial Decision of September 1, 2022, which had dismissed the complaint brought by Commission staff alleging that the acquisition would reduce innovation and would likely harm competition.

On April 5, 2023, Judge Mark C. Scarsi of the Central District of California dismissed with prejudice a streaming service’s antitrust counterclaims alleging that various well-known comedians and their licensing agents conspired to fix prices and attempted to monopolize the market for spoken-word comedic audio content for failure to allege facts showing either an agreement in restraint of trade in violation of Section 1 of the Sherman Act or the market power necessary to state a claim under Section 2. Yellow Rose Productions Inc. v. Pandora Media LLC, No. 2:22-cv-00809 (C.D. Cal, Apr. 5, 2023).

On March 8, 2023, Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California granted a motion to dismiss a proposed antitrust class action lawsuit alleging that social networking company (the “Company”) has a monopoly in the professional social networking market, which it protects through a barrier to entry comprising the Company’s “data centralization and aggregation, its machine learning and AI infrastructure, and the inferred data it produce[s].” Crowder et al. v. LinkedIn Corporation, No. 22-cv-00237-HSG (N.D. Cal., Mar. 8, 2023). Plaintiffs alleged the Company violated Sections 1 and 2 of the Sherman Act by engaging in a “monopoly broth” of anticompetitive conduct, ranging from exclusive data sharing agreements to an alleged agreement with Facebook to divide markets. Granting the motion to dismiss, the Court ruled that none of the alleged activities amounted to anticompetitive conduct, either individually or on aggregate.

Following previous Clayton Act enforcement efforts prohibiting interlocking directorates, the Department of Justice (“DOJ”) announced on Thursday, March 9, 2023, that five directors have resigned from overlapping board positions, and one company declined to exercise its board appointment rights. This marks the second wave of resignations since DOJ increased its scrutiny of interlocking directorates, bringing the total number of unwound or prevented interlocks to at least 13 directors across ten boards in less than six months.

On February 27, 2023, the United States Court of Appeals for the Second Circuit reversed and remanded the Southern District of New York’s dismissal of antitrust claims alleging that defendants conspired to manipulate the market value of platinum and palladium. In re Platinum and Palladium Antitrust Litigation, No. 20-1458 (2d Cir. Feb. 27, 2023). The Second Circuit ruled that certain plaintiffs who traded futures contracts on an exchange were efficient enforcers with standing to sue under Section 1 of the Sherman Act, while traders in the physical markets for these metals were not efficient enforcers and lacked antitrust standing.

On March 7, 2023, the United States Court of Appeals for the Second Circuit vacated and remanded the lower court’s dismissal of Relevant Sports, LLC’s (“Plaintiff”) claim that United States Soccer Federation, Inc. (USSF) and Fédération Internationale de Football Association (FIFA) (“Defendants”) violated Section 1 of the Sherman Act’s prohibition on unreasonable restraints of trade. Relevant Sports, LLC v. United States Soccer Federation, Inc., 2023 WL 2375884 (2d Cir. Mar. 7, 2023). The Second Circuit held that where an association rule itself is the alleged anticompetitive agreement challenged, the existence of a binding association rule is sufficient direct evidence of concerted action to survive a motion to dismiss for failure to state a claim under Section 1 of the Sherman Act. Plaintiff “need not allege an antecedent agreement to agree” to move forward on its antitrust claim.

On February 9, 2023, Judge Virginia Kendall of the United States District Court for the Northern District of Illinois denied a motion to compel discovery in a long-running dispute between major broadcasters and ad buyers who allege that the broadcasters conspired to fix the prices of local TV ads.  In re Local TV Advertising Antitrust Litigation, No. 18-6785 (N.D. Ill. Feb. 9, 2023).  In their discovery motion, defendant broadcasters had sought to compel production of material that the broadcasters claimed was necessary to challenge both the antitrust standing of two advertising agency plaintiffs and plaintiffs’ proposed definition of the relevant antitrust market.  Denying the motion to compel, the Court ruled that the information sought by the broadcasters was not sufficiently relevant to either issue.