On November 12, 2024, Judge Michael P. Shea of the United States District Court for the District of Connecticut granted in part and denied in part a joint motion to dismiss submitted by thirty-six defendant drug manufacturers facing “sprawling” antitrust claims brought by the Attorneys General of almost all U.S. states and territories. State of Conn. et al. v. Sandoz, Inc. et al., 20-cv-820 (D. Conn. Nov. 12, 2024). Ruling on the “unusual” 12(b)(6) motion to dismiss that asked the Court to preclude specific types of relief, the Court determined that the majority of plaintiffs’ challenged claims could proceed.

On November 8, 2024, United States District Judge Frank D. Whitney of the Western District of North Carolina denied without prejudice a motion for preliminary injunction sought by two stock car teams against the National Association for Stock Car Auto Racing (“NASCAR”). 2311 Racing LLC, et al. v. National Association for Stock Car Auto Racing, LLC, et al., No. 3:24-CV-00886-FDW-SCR, 2024 WL 4729485 (W.D.N.C. Nov. 8, 2024). The injunction would have prevented NASCAR from enforcing a legal release provision in its 2025 NASCAR Cup Series Charter Member Agreements (“Charter Agreement” or “Agreement”) and allowed plaintiffs to compete as de facto charter teams without abandoning antitrust claims that are pending before the district court. The Court denied the injunction, finding that plaintiffs failed to establish irreparable harm necessary to warrant relief.

On October 24, 2024, Judge Jennifer L. Rochon of the United States District Court for the Southern District of New York granted the Federal Trade Commission’s (“FTC”) motion for a preliminary injunction, thereby preliminarily enjoining the proposed merger of two luxury fashion companies (the “Defendants”).

On October 16, 2024, Judge David Barlow of the United States District Court for the District of Utah granted defendants’ motion to dismiss plaintiff’s claims that nine defendants (specifically, sellers, distributors, and manufacturers in the domestic mattress market, as well as a trade association for sleep-related products) conspired to undermine plaintiff’s attempt to compete to sell mattresses in violation of federal and state antitrust laws. CVB, Inc. v. Corsicana Mattress Co., et al., No. 1:20-cv-00144-DBB (D. Utah Oct. 16, 2024).

On October 3, 2024, United States District Judge Arun Subramanian refused to transfer the DOJ’s monopolization case against two companies in the live entertainment industry (“Defendants”) from the Southern District of New York to the District of Columbia. United States, et al. v. Live Nation Entertainment, Inc., and Ticketmaster L.L.C., No. 24-CV-3937 (AS) (S.D.N.Y. Oct. 3, 2024). According to the decision, the case, which alleges violations of the state and federal antitrust laws, is insufficiently related to the consent decree governing Defendants’ 2010 merger to fall within its retention-of-jurisdiction provision. In his ruling, Judge Subramanian drew a distinction between the consent decree, which “resolved a single claim arising under Section 7 of the Clayton Act,” and DOJ’s present allegations that defendants “have violated separate legal duties” under the Sherman Act and analogous state laws.

On September 30, 2024, Judge Karen M. Williams of the United States District Court for the District of New Jersey dismissed with prejudice a complaint, lodged by a putative class of consumers, that alleged various casino-hotels conspired to inflate and fix the price of their hotel rooms by means of pricing software used by each defendant. The Court held that plaintiffs failed to establish a plausible price-fixing conspiracy in violation of antitrust law because plaintiffs: (i) failed to demonstrate parallel conduct; and (ii) did not allege that the algorithm pricing was based on pooled proprietary data. Cornish-Adebiyi, et al. v. Caesars Entertainment, Inc., et al., No. 1:23-CV-02536-KMW-EAP, 2024 WL 4356188 (D.N.J. Sept. 30, 2024).

On September 17, 2024, a unanimous panel of the Ninth Circuit Court of Appeals granted an appeal from a group of professional swimmers and the International Swimming League (“ISL”) (together, “Plaintiffs”) in their ongoing litigation against World Aquatics, formerly known as Fédération Internationale de Natation, the governing body for international and Olympic aquatic sports (“FINA” or “Defendant”). Shields, et al. v. World Aquatics, No. 23-15092 (9th Cir. Sept. 17, 2024). Plaintiffs’ primary allegation in the litigation is that Defendant engaged in a group boycott of ISL, an upstart competitor to Defendant.  

On September 13, 2024, in a multidistrict litigation, the United States District Court for the Eastern District of Missouri granted defendants’ motion to dismiss plaintiffs’ class action claim of a conspiracy to artificially inflate prices in the United States for seed and crop protection chemicals (“Crop Inputs”), such as fungicides, herbicides, and insecticides. In re Crop Inputs Antitrust Litigation, 21-md-02993-SEP (E.D. Mo. Sept. 13, 2024). Central to plaintiffs’ claim is an alleged scheme by defendants, including the largest wholesalers and retailers of Crop Inputs in the United States, to impede pricing transparency by boycotting electronic sales platforms for Crop Inputs in violation of Section 1 of the Sherman Act. Plaintiffs were direct and indirect purchasers of Crop Inputs, like farmers, who also brought claims for violation of state antitrust and consumer protection statutes.

On August 15, 2024, Judge Stephen A. Higginson of the United States Court of Appeals for the Fifth Circuit, writing for a panel, dismissed an appeal from U.S. Anesthesia Partners (“USAP”) in its ongoing litigation against the Federal Trade Commission (“FTC”).

On August 22, 2024, Judge Harvey Bartle III of the United States District Court for the Eastern District of Pennsylvania denied a motion to compel defendants to provide information concerning the “subjective beliefs” of their decisionmakers concerning allegedly meritless patent litigation.  King Drug Co. of Florence v. Abbott Lab’ys, No. CV 19-3565, 2024 WL 3904045 (E.D. Pa. Aug. 22, 2024).

On August 29, 2024, the Fourth Circuit affirmed a district court’s decision granting summary judgment and dismissing antitrust claims by CSX Transportation, Inc. (“CSX” or “Plaintiff”)  against Norfolk Southern Railway Company (“Norfolk Southern”) and Norfolk & Portsmouth Belt Line Railroad Company (“Belt Line”) (collectively, “Defendants”) for alleged exclusionary fees, finding that CSX’s claims were untimely and could not be saved by the “continuing violation” doctrine.  CSX Transp., Inc. v. Norfolk S. Ry. Co., et al., No. 23-1537 (4th Cir. 2024).

On September 5, 2024, the United States District Court for the Middle District of Florida denied Health First, Inc.’s motion to dismiss plaintiffs’ amended complaint in a class action lawsuit alleging monopolization and anticompetitive practices in the healthcare market in Brevard County, Florida.  Powers, et al. v. Health First, Inc., No. 6:23-cv-375-JSS-RMN (M. D. Fla. Sept. 5, 2024).

On August 15, 2024, Judge Stephen A. Higginson of the United States Court of Appeals for the Fifth Circuit, writing for a panel, dismissed an appeal from U.S. Anesthesia Partners (“USAP”) in its ongoing litigation against the Federal Trade Commission (“FTC”).

On August 5, 2024, the United States Department of Justice filed a rare gun jumping civil lawsuit and proposed settlement in the United States District Court for the Southern District of New York against a global sports and entertainment venue services company (the “acquiror”) in connection with its acquisition of a venue services/management company (the “acquiree”). United States v. Legends Hosp. Parent Holdings, LLC, No. 1:24-cv-5927 (S.D.N.Y. Aug. 5, 2024).

On August 1, 2024, a unanimous jury in the United States District Court for the Northern District of California found plaintiff, a veterinary drug manufacturer, failed to allege a relevant antitrust market under Sherman Act, Section 2 and Clayton Act, Section 3 to support its claims against a rival company for allegedly restraining trade in the flea and tick treatment industry.  Because plaintiff failed on this threshold question, the jury did not need to consider any other elements of plaintiff’s claims, and the court entered a verdict in favor of defendant.  Tevra Brands LLC v. Bayer HealthCare LLC, No. 5:19-cv-04312 (N.D. Cal. July 26, 2019).

On July 23, 2024, Judge Kelley Brisbon Hodge of the United States District Court for the Eastern District of Pennsylvania denied plaintiff’s motion for a preliminary injunction seeking to enjoin the Federal Trade Commission (FTC)’s Non-Compete Clause Rule (the “Rule”), which bans the use of most non-compete clauses in employment contracts and is set to go into effect on September 4, 2024. ATS Tree Services, LLC v. Federal Trade Commission, No. 2:24-CV-01743, ECF No. 80 (E.D. Pa. July 23, 2024). A diverging opinion out of the Northern District of Texas granting plaintiffs’ motion for a preliminary injunction in that case, and a pending case in the Middle District of Florida, sets up a likely challenge of the Rule up to the Supreme Court. SeeRyan v. Federal Trade Commission, No. 3:24-CV-00986, ECF No. 153 (N.D. Tex. July 3, 2024); Properties of the Villages, Inc. v. Federal Trade Commission, No. 5:24-CV-00316 (M.D. Fla.).

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.