The Antitrust Attorney Blog

The Tether Class Certification Is a Warning Label for Crypto Defendants in Antitrust Cases

July 27, 2026 | Luis Blanquez

A federal judge in New York recently certified two classes of cryptocurrency buyers against Tether and Bitfinex. If you issue a stablecoin, run an exchange, or make markets in digital assets, that sentence should get your attention. The case, In re Tether and Bitfinex Crypto Asset Litigation, has been running since 2019, and the plaintiffs say the defendants inflated crypto prices by hundreds of billions of dollars. In February 2026, the court said those buyers can sue as a class. In July, the Second Circuit upheld that ruling.

Class certification is the moment a manageable lawsuit becomes an existential one. Before certification, a defendant faces a handful of named plaintiffs and their individual losses. After it, the defendant faces the aggregated claims of everyone who bought in the market during the class period. The dollars change by orders of magnitude, and so does the pressure to settle. That asymmetry is the whole game in class litigation, and it is why the certification order is often the fight that decides the value of the case.

Here, the certification order is actually more useful to defendants than the headline suggests. The plaintiffs got their class, but the court excluded a key piece of their expert analysis, cut both classes down, and set aside the central causation question for a later summary judgment fight.

Before we discuss this in more detail, you should download our Antitrust Guidelines for Companies Using Blockchain Technology.

The Complaint: A Manipulation Theory Built on a Stablecoin

The operative pleading is the Amended Consolidated Class Action Complaint, filed in June 2020.

Tether issues USDT, a stablecoin it marketed as backed one-to-one by U.S. dollars held in reserve and redeemable on demand. The plaintiffs allege that was a lie—that Tether created USDT out of thin air, without the dollars to back it, and moved the unbacked coins to its affiliated exchange, Bitfinex, without paying for them.

Through an anonymous trader, the defendants allegedly used the debased USDT to make large, well-timed purchases of Bitcoin and other crypto commodities precisely when prices were falling. The market read those purchases as real demand and stopped the slide, which let the defendants convert coins they had created for free into assets with genuine value. The complaint ties the scheme to the 2017 run-up—Bitcoin climbing from roughly $800 to $20,000 in a year—and to the roughly $450 billion in value that evaporated when the bubble burst in 2018. Plaintiffs pleaded claims under the Sherman Act, the Commodity Exchange Act, RICO, common law fraud, and New York’s consumer protection statute.

The lesson in the complaint is that the plaintiffs anchored an ambitious economic theory to concrete, provable conduct: specific issuances of USDT, specific representations about reserves, and specific trades. Regulators had already questioned Tether’s reserve claims. All that together provided the complaint with teeth, which is exactly what most crypto complaints lack and exactly what let this one survive.

The Motion to Dismiss: The Theory Narrows to Antitrust and Commodities

In September 2021, the court granted the motion to dismiss in part and denied it in part.

The court threw out the RICO claims, holding that the causal chain between the alleged racketeering and the plaintiffs’ losses was too indirect to satisfy proximate cause. It dismissed the conspiracy to monopolize count and the New York General Business Law claim.

What survived was the core: monopolization and attempted monopolization under Section 2 of the Sherman Act, the restraint of trade claim under Section 1, and market manipulation and aiding and abetting under the Commodity Exchange Act.

For defendants, the motion to dismiss ruling hides a warning: The claims that fell were the ones that depended on long, attenuated causal chains or strained standing theories. The claims that stuck were the ones tied most directly to the alleged conduct and its market effect. Defendants who treat the motion to dismiss as their last, best chance to end the case tend to be disappointed—the leverage often arrives later, at certification and summary judgment.

Class certification: Only a Partial Win for Plaintiffs

For certification, the plaintiffs relied on an economic expert who offered three analyses: (i) an event study meant to show that USDT issuance caused Bitcoin’s price to rise; (ii) a regression model linking changes in the outstanding volume of USDT to Bitcoin prices; and (iii) an overcharge model quantifying the inflation. The defendants moved to exclude the expert and opposed certification only on adequacy and predominance.

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Antitrust HSR Update: What the 55 Comments Tell Us About the Next Form

July 1, 2026 | Steve Cernak, Luis Blanquez and Kristen Harris

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

The comment period on the FTC and DOJ’s request for information on the HSR premerger notification form closed May 26, 2026, with 55 comments on the docket (FTC-2026-0298). That’s a small number for a rule that governs every reportable deal in the country, but many of the filers are the ones who matter: state enforcers, a trade association that sued and won, industry groups with something concrete to lose, and the practitioners who fill out these forms for a living.

For the back story — the February 12 vacatur in the Eastern District of Texas, the Fifth Circuit’s denial of a stay, and the order holding the appeal in abeyance through December 31 — see our earlier posts, HSR in Turmoil and Old, Shorter Form Likely in Use Through At Least 2026. The agencies aim to issue a notice of proposed rulemaking by year-end. Here are our highlights of what the comments say.

The baseline fight: the Chamber’s procedural objection

The U.S. Chamber of Commerce — which sued to block the 2025 form and won — filed a comment making one sharp, narrow point: the agencies keep calling the 2025 version the “Updated Form” and treating it as the starting point for the new rulemaking, and that gets the baseline backwards. In the Chamber’s words, the 2025 form “is no longer an ‘Updated Form’ . . . instead, it is a vacated form that has been found to violate federal law. The only legally valid form is the current form, or as the district court described it, ‘the old Form — used for forty-six years.’”

This isn’t a stylistic quibble. If the 2025 form is the baseline, the agencies can frame the rulemaking as trimming an existing rule. If the pre-2025 form is the baseline, every new requirement has to justify itself from zero — a much higher bar under the Administrative Procedure Act. The Chamber seems to be laying groundwork for the next round of litigation if the agencies pick the wrong posture.

The recurring theme: cut the items that cost the most and return the least

The single most common thread across the docket — from the merger bar, the bar association, and industry trade groups alike — is a request to right-size specific, identifiable line items on the 2025 form rather than a wholesale fight over the form’s existence.

Dechert’s comment is the most granular practitioner-level guide to what actually costs filers time. It splits the 2025 requirements into keep, cut, and clarify:

Cut or fix: the move away from a bright-line standard for draft transaction documents toward a subjective “two hats” test that forces lawyers to assess whether a board member reviewed a draft “in their capacity as such”; supply-relationship disclosures reaching third parties a filer would never investigate in the ordinary course; officer-and-director listings duplicated across every subsidiary in the ownership chain; and a top-10-customer breakdown layered on top of the existing product-overlap breakdown.
Keep: the single supervisory deal-team lead, the overlap narrative that lets filers explain why two businesses don’t really compete, and streamlined NAICS reporting that dropped the older NAPCS codes.

Dechert also flagged a separate idea floating in the RFI — automatic supplemental filings triggered when parties propose a divestiture or other remedy — and argued a new waiting period with an uncertain outcome would chill timely remedies and push some filers toward litigation instead.

The ABA’s Antitrust Law Section filed the longest and most technical comment and its through-line tracks Dechert’s: keep what’s cheap and useful, cut what costs more than it returns. On the keep side: NAICS revenue reporting, short business descriptions, and the streamlined “Item 4(d)” designation for passive deals. On the cut side: the same pressure points Dechert named — officer-and-director listings, supply-relationship disclosures, and a “Plans and Reports” demand that 2025 informal guidance stretched to cover things as trivial as a news article forwarded to a board. The officer-and-director critique is the sharpest: that disclosure exists to police Section 8 of the Clayton Act, but the 2025 form swept in board service across commonly controlled entities that cannot, as a matter of law, conspire with one another.

The Section also asked the agencies to streamline four categories that rarely raise concerns — passive investment-only deals, executive-compensation grants, “backside” filings from rollovers and earn-outs, and fund-to-fund transfers — backed by the agencies’ own data showing second-request rates near zero for those deals.

The second most common theme: don’t expand reportability to new deal types

A near-equally common position across the bar and industry comments is resistance to the RFI’s invitation to extend HSR reporting into new territory — acquihires, non-exclusive IP licenses, CFIUS-adjacent disclosures, and AI/sovereign-wealth-fund questions the RFI specifically raised.

The ABA Antitrust Section made the clearest legal argument against reaching acquihires through the form: employees are not a statutory “asset” under Section 6 of the Clayton Act (“the labor of a human being is not a commodity or article of commerce”), and the agencies already have civil investigative demands and Rule 801.90 to pursue any deal structured to dodge a filing.

The Computer & Communications Industry Association (CCIA) and NetChoice — both technology trade associations — made overlapping arguments that the form should stay a screen rather than become a dragnet. CCIA’s specific concern is scope creep: sweeping in otherwise non-reportable “hire-and-license-out” deals or requiring duplicative filings during a second request. NetChoice’s comment leaned on the district court’s own finding that the FTC had not shown the 2025 form’s benefits “reasonably outweigh” its costs, and cited the Commission’s own pre-vacatur estimate that the Updated Form roughly tripled average preparation time — from about 37 hours to 105 hours, with the highest-burden filings (those involving competitive overlaps or supply relationships) running 120-plus hours.

The Small Business & Entrepreneurship Council struck a similar note for startups, tying expanded reporting to slower exits and weaker venture formation.

Industry carve-out requests

Two sector-specific comments stand out for asking to be left alone entirely, on largely empirical grounds.

The American Hospital Association wants hospital mergers excluded from any revised form, leaning on the district court’s finding that the FTC could not identify a single anticompetitive merger that escaped the prior form but would have been caught by the 2025 version. The AHA also cites Chairman Ferguson’s prior comment that a transaction-rationale requirement benefits “high-priced law firms,” not the agencies, and his stated preference for a deeper cut than the 2025 rule made.

CCIA and the Small Business & Entrepreneurship Council make the technology and startup versions of the same point (see above), arguing that friction costs are especially high right now given competitive pressure in AI.

The outlier: state attorneys general want more, not less

Five state attorneys general — California, Connecticut, Rhode Island, Washington, and the District of Columbia — filed jointly, and their position is the opposite of nearly every other comment on the docket. They want the 2025 form’s requirements reinstated and then expanded: narrowing the “solely for the purpose of investment” exemption, eliminating the REIT exemption outright, and requiring upfront disclosures on acquihires and serial acquisitions, with consolidation in healthcare, technology, and housing as the stated targets. This reads as much as a roadmap for state-level enforcement as a comment on a federal form, consistent with states’ own expanding merger-notification regimes (Washington’s and California’s new premerger filing laws among them).

What it signals

Strip away the labels and the comments sort into two camps, heavily lopsided. The state AGs want the 2025 form back and expanded. Nearly everyone else who filed — the Chamber, the merger bar, the ABA Section, hospitals, tech trade groups, and small-business advocates — wants the pre-2025 form treated as the floor, with the 2025 additions justified item by item, if at all.

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How to Run the Antitrust HSR Process When Your CEO is Impatient

June 22, 2026 | Steve Cernak

Author: Steven Cernak

Say you are the in-house lawyer at a big company — call it Grand Motors — and you are responsible for making sure Hart-Scott-Rodino filings are made. With some variations, this hypothetical also works if you are in-house at, say, Wolverine Investments, a private equity firm. One day, one of your corporate colleagues stops by to inform you a big deal is about to be signed. She asks how quickly you can get the HSR in.

To make the hypo a little easier, imagine she at least informed you about the deal a few weeks ago and, at that time, you convinced yourself that a filing was necessary but there were no substantive antitrust issues. Maybe that is why she did not feel a need to keep you up to date on the deal’s progress. Even so, if you have taken the steps below, you can answer your colleague’s question with a timeframe that should make her, and your CEO, happy.

Gather Information, Identify Sources

While some parts of the form and the documentary attachments are specific to each deal, many parts do not vary for deals by the same parent entity. Long before your colleague asks you about this HSR, you should have gathered a lot of the necessary information and documents and identified potential sources for some of the rest.

For example, Item 5 of the current form requires you to list the U.S. revenues of your appropriate entity for the most recent fiscal year broken down by North American Industry Classification System codes. Depending on how large and diverse Grand Motors is, that process can take some time. As soon as Grand issues its annual report shortly after the end of its fiscal year, you should obtain a copy or a link to it (you will probably need to include it in the filing) and meet with the finance folks who developed it. Some of them might understand NAICS codes and already have a helpful report for non-HSR purposes. If not, you should work with the finance folks at Grand’s HQ and at its subsidiaries to classify those revenues into NAICS codes that make sense. Then, you can drop that report into your HSR filings for the next year.

Item 6(a) requires a list of all the entities controlled by Grand Motors or the appropriate entity. It also requires a list of the minority shareholders of Grand Motors or the appropriate entity. While both of those lists can change periodically, you can still gather them now from your corporate secretary’s office. Asking for updates when you have a filing to make will be easier than creating it anew.

Obviously, the information responsive to Item 7’s overlap questions cannot be finalized until you compare NAICS codes with the other party; however, as you gather the information for Items 5 and 6 above, you can determine which subsidiaries earned U.S. revenues in which NAICS codes. That information can help you complete Item 7(b)(i). If you are really ambitious, you can even work with the right people at each subsidiary to determine in which state, or more specific geographic area, such revenues were earned so you can respond to Item 7(c), if necessary.

Documents responsive to Items 4(c) and (d) necessarily vary by transaction. Remember, these documents, very roughly, are those seen by an officer or director that discuss sales, competition, and similar topics related to this particular transaction. While you cannot collect them before knowing a filing is necessary, you can identify potential sources for some of those documents. Depending on Grand’s organization and its document habits, those sources could be someone in the board secretary’s office; the regular M&A team; administrative assistants for the top brass; and the deal lawyers like your colleague. Knowing where to look internally, before turning to third parties like bankers and the other party, will save time.

All HSR filings require someone at Grand to sign the Certification and Affidavit/Declaration. Who has the authority, and is willing, to attest to the necessary statements, often at a moment’s notice? Identify that person — and if that person is a busy officer often on the road, identify his or her assistant who can help obtain the necessary signatures.

If Grand Motors is the Acquiring Person, it will be responsible for the filing fee of between $35K and $2.46M. What level(s) of approvals are necessary for such a wire transfer and who can provide them? How long do those approvals take? Which bank will process the transfer and is the name on the bank account Grand Motors Co. or something else? Again, tracking down that information well before your colleague drops news of the signing will decrease the time to filing.

Caveats and Implicit Advice

In this hypothetical, I assumed away two large issues — even for those issues, however, there are steps you can take to speed up and improve the process. First, before you make any HSR filing, you should have some understanding of any substantive antitrust issues the transaction might create. While you cannot anticipate and evaluate every potential deal, you can and should be well aware of Grand’s products, strengths and weaknesses, and competitors. Second, the question of whether a filing is necessary varies by transaction. To be prepared for that analysis, you should have a good understanding of HSR’s various thresholds and the identity and size of Grand’s Ultimate Parent Entity.

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Seven Lesser-Known Antitrust Exemptions and Immunities

June 18, 2026 | Aaron Gott

Author: Aaron Gott

There are a number of exemptions to and immunities from the federal antitrust laws. Some are well known, and we have written about many of them before. Jarod Bona catalogued the big ones—state-action immunity, the filed-rate doctrine, the insurance exemption under the McCarran-Ferguson Act, the baseball exemption, the Capper-Volstead Act for agricultural cooperatives, Noerr-Pennington, the statutory and non-statutory labor exemptions, implied immunity, export trade exemptions, foreign sovereign doctrines, the FTAIA, and primary jurisdiction.

Maybe you knew about the baseball exemption. But did you know about the Coca-Cola exemption? How about the Sports Broadcasting exemption? As you might expect, Congress has carved out various immunities and exemptions—often to serve a particularly powerful constituency—and Coca-Cola (and its bottlers) and the National Football League top the list for firms that hold enough cultural sway and political capital to obtain an antitrust golden ticket.

I’m an antitrust lawyer, and even I didn’t know about the Coca-Cola exemption—until I listened to the Coca-Cola episode of Acquired. And that wasn’t even the first time Acquired had taught me about antitrust: it also taught me about the Sports Broadcasting exemption. I decided enough was enough and catalogued some more of these lesser-known antitrust exemptions so that this doesn’t happen to you, too. Some of these exemptions are narrow, some are surprisingly broad. All of them are at least interesting.

The Fishermen’s Collective Marketing Act

Passed in 1934, the Fishermen’s Collective Marketing Act is essentially a Capper-Volstead Act for the fishing industry. It permits associations of fishermen to collectively catch, prepare, handle, and market fish and fish products without triggering antitrust liability. Like the Capper-Valstead Act, the fishermen’s exemption covers the cooperative’s core marketing activities but does not immunize predatory conduct—using the cooperative as a vehicle to harm processors, distributors, or other non-member competitors falls outside its protection. The Act is rarely litigated, which is part of why it flies under the radar, but for commercial fishing operations structured as cooperatives, it is the primary statutory basis for coordinating output and pricing that would otherwise look like textbook horizontal price-fixing. If you advise fishing cooperatives or process antitrust complaints in that industry, it’s worth understanding the ins and outs of this exemption. If don’t deal in the fish industry, you are now well on your way to crushing your next trivia question about obscure antitrust exemptions.

The Soft Drink Interbrand Competition Act

Did you know that Coca-Cola doesn’t actually make the product you know and love? Instead, it makes syrup, and it sells that syrup to independent bottlers through a licensing agreement. The bottlers mix that syrup with carbonated water and put it in a can or bottle, and then deliver it to the store where you buy it. Make no mistake, Coca-Cola tightly controls the process and this distribution model benefits Coca-Cola in myriad ways. But to make it work, Coca-Cola had to give these independents exclusive territories. And even though Coca-Cola’s distribution model had existed for decades, the FTC decided in the 1970s that it did not like it. (The agency also targeted Pepsi and its bottler network.) The FTC argued that the exclusive territorial arrangements that soft drink manufacturers used for bottler distribution violated Section 1 of the Sherman Act because they were unlawful market allocation agreements between competitors.

Congress passed the Soft Drink Interbrand Competition Act in 1980 to preempt that debate by statute, expressly authorizing exclusive territorial grants in carbonated soft drink distribution—so long as the manufacturer faces substantial and effective interbrand competition from other brands. That “interbrand competition” requirement is the meaningful limitation on the exemption: if a brand faces robust competition from other soft drink brands, its exclusive territories are immunized. If the market has become so concentrated that a brand faces no real interbrand pressure, the immunity is more fragile. The Act is a notable example of Congress legislating a specific safe harbor for a single industry’s distribution structure—conduct that, in most other contexts, could be unlawful depending on the specifics of the distribution structure.

The Newspaper Preservation Act

The Newspaper Preservation Act of 1970 authorizes joint operating agreements—JOAs—between competing newspapers in markets where one paper is at serious risk of financial failure. Under a JOA, two separately owned papers can merge their printing, distribution, advertising, and business operations while maintaining separate and independent editorial staffs. In antitrust terms, this is an explicit congressional authorization for competing publishers to share costs, coordinate pricing, and allocate markets in their commercial operations—conduct that would otherwise be per se illegal under the Sherman Act—so long as they seek preclearance to do so. The rationale is that two editorially independent papers sharing a back office serve the public better than one monopoly survivor. The Act requires the Attorney General to approve new JOAs, and the “probable danger of financial failure” standard is supposed to function as a real gatekeeping requirement—not a rubber stamp. The number of newspapers operating under JOAs has declined sharply as the industry has contracted, but as Pat Pascarella and I once argued, the JOA framework could still be relevant. And local news markets continue to consolidate as more and more papers go under.

The National Cooperative Research and Production Act

The National Cooperative Research and Production Act—the NCRPA—was originally enacted in 1984 as the National Cooperative Research Act and expanded in 1993 to cover production joint ventures. It does two distinct things. First, it requires that R&D and production joint ventures that file notification with the DOJ and FTC be evaluated under the rule of reason rather than the per se standard—a significant benefit given that horizontal coordination between competitors can attract fights over the application of the ancillary-restraints doctrine and possibly per se treatment. Second, and perhaps more importantly, it limits antitrust damages for qualifying ventures to actual damages rather than treble damages, even if the venture is ultimately found to have violated the antitrust laws. The notification process is not burdensome: the parties file with both agencies describing the venture’s scope and membership, and publish a summary in the Federal Register. The liability exposure drops substantially as soon as notification is filed. For technology consortia, standard-setting bodies, and any group of competitors considering pooled R&D or joint manufacturing, the NCRPA is a meaningful but often overlooked risk-reduction tool.

The Local Government Antitrust Act

The Local Government Antitrust Act of 1984—the LGAA—is distinct from, and more narrow than, state-action immunity under Parker v. Brown. State-action immunity is a complete defense: qualifying governmental conduct is simply not subject to antitrust liability. The LGAA operates differently. It does not immunize the underlying conduct; it eliminates only damages, and only for local governments and their officials. Under the LGAA, local governments and their officials acting in official capacities cannot be held liable for damages under the federal antitrust laws, even if their conduct is ultimately found to be anticompetitive. Injunctive and declaratory relief remain fully available. The practical consequence for plaintiffs is significant: before investing in antitrust litigation against a municipality or local agency, you need to assess whether injunctive relief alone justifies the cost, because treble damages—the usual engine driving private antitrust enforcement—are off the table. The LGAA damages bar can apply even when Parker immunity fails, so you want to consider both defenses in the case from the beginning.

The Shipping Act

The Shipping Act of 1984—updated by the Ocean Shipping Reform Act of 1998 and amended again by OSRA 2022—creates a regime of supervised antitrust immunity for ocean carrier agreements. Under the Act, common carriers can enter into agreements fixing rates, pooling revenues, allocating cargo, and coordinating vessel capacity, provided they file those agreements with the Federal Maritime Commission. Once filed, the agreements receive antitrust immunity unless the FMC acts to reject or modify them. The immunity is not unconditional: the FMC retains authority to prohibit agreement terms that are unjustly discriminatory or unreasonably harmful to shippers, and OSRA 2022 added new requirements around transparency and service contract compliance. But the core structure—FMC-supervised horizontal coordination among ocean carriers—remains intact and immunizes conduct that would be per se illegal under the Sherman Act in virtually any other context. For shippers challenging rate coordination or capacity management practices by ocean carriers, this means the FMC regulatory process, not an antitrust lawsuit, is generally the primary available remedy.

The Sports Broadcasting Act

The baseball exemption gets most of the attention in sports-and-antitrust discussions. Baseball’s exemption is judge-made, rooted in a 1922 Supreme Court decision holding that baseball was not interstate commerce—a conclusion the Court has since acknowledged was likely wrong but kept alive on stare decisis grounds. But there is another sports exemption that applies beyond baseball: the Sports Broadcasting Act.

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When Loyalty Programs Become Antitrust Problems: DOJ’s Bayer Seed Investigation

June 6, 2026 | Aaron Gott

Author: Aaron Gott

Last week, the Department of Justice announced that Bayer CropScience LLC has removed two sets of potentially anticompetitive provisions from its “Premier Performance Program”—a loyalty program for independent seed companies that sell Bayer’s corn and soybean seed. The announcement came not as the result of a consent decree or court order, but as a voluntary commitment Bayer made during the course of a still-ongoing DOJ investigation.

This is an example of a company taking a hard look at the antitrust risks of its sales initiatives and deciding that the benefit was outweighed by those risks.

Ideally, companies take a hard look at their antitrust risks before they face an investigation. So let’s talk about what those antitrust risks were for Bayer.

Bayer’s Loyalty Program

The Premier Performance Program gave independent seed companies discounts in exchange for meeting sales performance targets. Two features of the program drew DOJ scrutiny.

The first problem with Bayer’s loyalty program was that it imposed a tie. To qualify for discounts, seed companies had to hit targets for *both* corn seed *and* soybean seed. That is a textbook tying arrangement: access to favorable pricing on Product A (corn) conditioned on meeting volume targets for Product B (soybeans).

The antitrust laws treat tying with real suspicion. Tying is suspicious enough, in fact, that Congress has provided the government and private plaintiffs with three different ways under which they can plead a tying claim: as an anticompetitive agreement (between supplier and customer) that violates Sherman Act Section 1; as a unilateral anticompetitive act by a supplier with monopoly power under Sherman Act Section 2; and as a conditional sales arrangement for goods under Clayton Act Section 3. While the requirements of the three different tying claims vary, a seller has antitrust risk for tying where the seller has, at a minimum, appreciable economic power in the tying product.

In a competitive, open market, buyers are free to buy the products they want from the sellers they want. With tying, a seller usurps that choice, using its power in the tying market (where it sells a product customers want) to force buyers to also buy from seller in the tied market (where it sells a product customers don’t want, or at least don’t necessarily want it from seller). As a result, competition in the second (the “tied”) market suffers—alternatives go unpurchased, rivals lose distribution, and that market concentrates around the seller. The result is that seller wins in the “tied” market for reasons other than the merits of seller’s participation in that market. And one largely unspoken principle of antitrust law is that winning for reasons other than the merits is always suspicious.

That was the DOJ’s concern with Bayer’s loyalty program. The DOJ’s announcement notes that Bayer is “the primary source for traited corn seed sold by independent seed companies.” So Bayer is a dominant supplier of traited corn seed, and its loyalty program gave discounts only if the seed company buyers also bought soybean seed from Bayer. In other words, Bayer required customers to take a second product to get favorable terms on the first. In effect, Bayer imposed a toll on corn seed buyers who did not also buy its soybean seeds.

The second problem with Bayer’s loyalty program was that it incentivized exclusivity. The program included provisions that could reduce independent seed companies’ willingness to license seed technology from Bayer’s competitors. The DOJ viewed these incentives as potentially anticompetitive because, it suspected, Bayer was using its loyalty program to foreclose rival seed technology from the distribution channel.

Exclusive dealing and its “cousins”—loyalty discounts, bundled rebates, and incentive programs that effectively limit customers’ ability to patronize competitors—are analyzed under the rule of reason. The question is whether the program forecloses a substantial share of the distribution channel to rivals. A loyalty program that financially penalizes seed companies for licensing competitors’ genetics does exactly that.

Taking a step back from these specific doctrines, the DOJ looked at Bayer’s loyalty program and saw a set of complementary, unilaterally imposed contract terms and incentive structures that functioned to foreclose competition in markets Bayer participated in by using its already substantial power rather than by competing on the merits day by day, product by product. At its core, that is what Section 2 of the Sherman Act seeks to prevent.

Lessons for Investigative Targets

Bayer eliminated both aspects of its loyalty program and has committed not to reinstate them for seven years.

It’s worth noting what Bayer’s commitment does and does not do. DOJ announced that Bayer made its commitment as a result of an “ongoing investigation” and made the changes “during the course of” that investigation. But Bayer did this voluntarily, not because it reached a consent agreement with DOJ. While DOJ will likely consider Bayer’s voluntary cessation of the conduct as a mitigating factor as it proceeds, it does not end the investigation and DOJ remains free to continue its investigation, pursue enforcement, and demand further remedies.

Still, this kind of resolution—behavioral commitments extracted through investigation pressure before DOJ undertakes formal litigation—is common in DOJ enforcement. The Division announces publicly that the conduct has changed, creates a deterrent effect across the industry, and reserves the right to continue its investigation. For Bayer, the alternative was presumably a filed case or a consent decree with more constraining terms. For the DOJ, it is an efficient way to change conduct quickly without committing the resources required for litigation while maintaining full flexibility and discretion going forward —not to mention the ever-present, implicit threat of exercising that discretion to maximum effect.

Also trending in DOJ enforcement? Agribusiness. Bayer is not the first agribusiness to draw this kind of DOJ scrutiny in recent years, and it is unlikely to be the last. Agricultural input markets—seeds, chemicals, equipment—are concentrated and have been under increased enforcement attention since the DOJ and USDA signed their 2025 memorandum of understanding on agricultural competition. Acting Assistant Attorney General Omeed Assefi said it plainly: “Enforcement in agriculture is a top priority for the Antitrust Division.” And that’s to say nothing of state antitrust enforcers, some of whom have also made conduct and concentration in agriculture a chief priority.

Lessons for Loyalty Programs

Ideally, your company will not become an investigative target because of its loyalty programs in the first place. Loyalty programs create risks that can be managed—and assessed against their benefits. A few questions are worth asking to start:

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How Phhhoto v. Meta Turned the Nascent Competitor Theory into a Weapon Against Big Tech

June 4, 2026 | Luis Blanquez

Author: Luis Blanquez

A federal court recently handed antitrust plaintiffs something they have lacked for two decades: a monopolization theory against a dominant platform that survives a motion to dismiss. On March 30, 2026, the Eastern District of New York allowed Phhhoto’s monopoly maintenance claim against Meta to move into discovery. Most coverage filed it under routine platform conduct, but the court in this case built its ruling on a nascent competitor framework that private plaintiffs have almost never gotten past the pleadings since Trinko—and the reasoning reaches far beyond Meta. Phhhoto Inc. v. Meta Platforms Inc., No. 1:21-cv-06159 (E.D.N.Y. Mar. 30, 2026).

The Facts Behind the Ruling

Phhhoto launched its looping-photo app in July 2014 and reached 10 million users within two years. That growth depended on plugging into Instagram—Find Friends API access, hashtag integration, and organic sharing. In February 2015, a Meta strategic partnerships manager reached out about a Facebook newsfeed integration. Phhhoto signed a nondisclosure agreement and handed over operational detail.

Then suddenly the door closed. On March 31, 2015, with integration talks still open, Meta cut off the Find Friends API, partnered with GIPHY, launched Boomerang on the very day Phhhoto planned to announce its Android release, and in March 2016 rolled out an Instagram feed algorithm that—Phhhoto alleges—buried third-party content instead of personalizing the feed.

If you want the full background on the Phhhoto Inc. v. Meta Platforms Inc. case, here is an article we recently published on the ABA antitrust Section site.

Why the Court Refused to Apply Trinko

Meta’s lead defense was Trinko, the US Supreme Court decision that protects a monopolist’s right to choose its business partners. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). The D.C. Circuit had already tossed a parallel state case on that exact basis. New York v. Meta Platforms, Inc., 66 F.4th 288 (D.C. Cir. 2023).

But Judge Matsumoto declined to follow that path. The states had attacked a general policy of cutting API access to potential rivals. Phhhoto attacked something narrower and uglier: Meta targeting one specific competitor after using an NDA to study how it worked. Meta took in confidential information during the NDA window, shut the API, and cloned the product. On those facts—the court reasoned—this is a nascent competitor case, not a refusal-to-deal case.

That line is the whole ball game because refusal to deal claims rarely clear Trinko. Nascent competitor claims are very much alive—central to the FTC’s case against Amazon, briefed in the Google Search litigation, and now applied at the pleading stage against Meta. Courting a rival, learning its business, and then locking it out is treated differently than simply turning a stranger away at the front door.

What the Nascent Competitor Theory Actually Targets

The theory addresses a gap that classic monopolization doctrine handles poorly. A dominant firm rarely fears the competitor it already faces. It fears the small, fast-growing one that could mature into a real threat. Buying that company outright draws merger scrutiny. So, the dominant firm uses alternative tools—pulling interoperability, timing a copycat product, or tuning an algorithm to suppress the upstart’s reach. Phhhoto pleaded all three, and each survived.

The Find Friends cutoff survived because Meta’s own statement—that it disliked how Phhhoto was growing through Instagram—pointed to an anticompetitive motive rather than a legitimate one. The Boomerang launch survived because Phhhoto alleged Meta learned the product through the integration process and then shipped a clone on the day of Phhhoto’s biggest announcement. And the algorithmic suppression claim survived because Phhhoto alleged the 2016 feed was tuned to cut rival visibility, with registrations falling sharply once it went live.

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HSR Update: Old, Shorter Form Likely in Use Through At Least 2026

May 19, 2026 | Steve Cernak, Luis Blanquez and Kristen Harris

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

On May 18, 2026, the FTC and DOJ filed an unopposed motion asking the Fifth Circuit to hold their appeal in abeyance through December 31, 2026. The agencies say they are weighing revisions to the vacated 2024 HSR rule, building on the March 25, 2026 request for information (comments close May 26). They aim to issue a notice of proposed rulemaking by the end of the year and will report to the court every 60 days. The plaintiffs—the U.S. Chamber of Commerce and three other trade associations—do not oppose.

For the back story—the February 12 vacatur in the Eastern District of Texas, the short administrative stay, and the March 19 denial of the FTC’s stay motion—see our earlier post, HSR in Turmoil: Back to the Old Form, at Least For Now.

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Apple’s Gemini-Siri Deal Is the Next Microsoft Antitrust Case, Not the Next App Store Fight

May 14, 2026 | Luis Blanquez

The Gate to the Kingdom May Be Closing for Good: Apple Puts Google Inside Siri

Author: Luis Blanquez

On January 12, 2026, Apple and Google announced a multi-year deal—reported at roughly $1 billion a year—under which a custom Google Gemini model will run as the backend “brain” of the rebuilt Siri and the next generation of Apple Intelligence. Apple plans to unveil the new assistant at WWDC on June 8, 2026, and ship it with iOS 27 in September. Apple’s own on-device Foundation Models will handle simpler, privacy-sensitive tasks. Heavier queries will route to Gemini on Apple’s private cloud. Siri’s cognitive core will no longer be Apple’s. It will be Google’s.

Meanwhile, ChatGPT—the model Apple spent 18 months positioning as the future of iPhone AI, and the one still at the center of the xAI antitrust lawsuit pending in the Northern District of Texas—continues to sit where it has always sat: in a separate, opt-in, off-by-default layer that users have to turn on themselves. In iOS 27, Apple will expand that layer into an “Extensions” framework that lets users pick from Claude, Grok, Copilot, Perplexity, and a user-selectable Gemini chatbot app alongside ChatGPT.

On the surface, the Gemini deal looks like Apple conceding ground—admitting it cannot build a frontier AI model of its own and paying Google to fill the gap. It is not. Apple does not fear a better chatbot. It fears losing the user to one. By routing Siri’s cognition through a supplier Apple controls contractually, it keeps the interface, the invocation, the defaults, the billing, and the brand—everything that makes an operating system a platform—while outsourcing the only layer it never wanted to own: the AI model. It is classic Apple, but this time with Google as an ally instead of a threat.

Where The xAI Case Stands

Elon Musk’s X Corp. and xAI sued Apple and OpenAI on August 25, 2025, in the Northern District of Texas.

The theory of harm has two layers. First, ChatGPT’s integration into iOS, iPadOS, and macOS—announced in June 2024—delivers billions of iPhone-originated prompts to a single model. Second, the complaint alleges that Apple deprioritized rival chatbots in App Store rankings, making it harder for Grok and others to reach users even outside the system layer.

In late September 2025, Apple and OpenAI moved to dismiss. Apple argued the deal is “expressly not exclusive.” OpenAI called the suit part of a “lawfare” campaign. Judge Mark T. Pittman denied both motions on November 13, 2025, in a one-page order signaling the case is “more well-suited for adjudication through a motion(s) for summary judgment.” Discovery opened on October 10, 2025, and closes on May 22, 2026.

Two rulings tell us the real story.

The source-code ruling: Courts don’t want to become engineers, they just want evidence of platform foreclosure

On January 22, 2026, Magistrate Judge Hal R. Ray Jr. denied X’s motion to compel OpenAI to produce ChatGPT’s source code. X argued it needed the code to rebut any defense of lack of feasibility, to establish whether Apple could integrate Grok into the Apple iOS, and whether it would be feasible to integrate multiple AI products from various providers on the iPhone. The court disagreed on both relevance and proportionality.

On relevance, the order is blunt: “At this stage, it is unclear how the source code is relevant to whether Apple unlawfully excluded Grok from its products and conspired with the other defendants to create a monopoly.” On proportionality, the court noted that OpenAI had already produced API documentation and offered to stipulate that neither side would rely on proprietary source code. X refused the compromise. The court refused the production.

For a platform-exclusion case, that ruling is not a setback. It is a roadmap. Courts do not want plaintiffs dissecting competitor IP to infer what could have happened. They want direct evidence of platform misconduct—integration terms, routing logic, default settings, App Store treatment. That is where antitrust liability lives in a case like this. The court said so in plain terms, and future plaintiffs should take the hint.

The April 2026 motion to compel: Valuation and training data

X filed a second motion to compel on April 10, 2026, this one aimed squarely at OpenAI’s document production. The motion accuses OpenAI of having “persistently evaded its discovery obligations,” noting that OpenAI had produced 7,475 documents compared with X’s 32,116. The requested materials include valuation studies, financial projections through 2030, ChatGPT usage by country, and documents about OpenAI’s use of X data to train its models.

The valuation request is the one to watch. X tells the court that OpenAI’s valuation grew by more than $500 billion in the past year—from $300 billion at the end of March 2025. X argues the jump “does not make sense unless OpenAI and its investors understand that ChatGPT’s exclusive deal with Apple is cementing OpenAI’s dominance.” That is a causation theory built on investor behavior, not technology.

The training-data request matters for a different reason. OpenAI has defended the case in part by arguing that Grok’s foreclosure from iPhone-originated prompts is insubstantial because xAI has asymmetrical access to X data. X’s response is direct: if OpenAI also trains on X data, the asymmetry disappears. That question—who gets to learn from where—sits at the center of every theory of harm in generative AI.

Both motions, taken together, ask the court to analyze platform foreclosure through evidence: deal terms, integration architecture, valuation impact, data flows. None of it is specific to OpenAI nor depends on getting inside OpenAI’s code.

That same framework applies to Gemini.

Gemini Isn’t Apple’s Competitor. It’s Apple’s Supplier.

Apple’s decision to build Siri on Gemini at the backend, while offering third-party chatbots through Extensions on top, reshapes the competitive picture more than any filing in Texas has.

Apple did not retreat from AI. It relocated AI. Every layer a platform needs—distribution, defaults, billing, invocation, user interface, identity—remains Apple’s. When a user says, “Hey Siri” and Gemini answers, Apple delivers the answer. The supplier is invisible. Apple owns the user relationship.

That is the Google Search playbook applied one floor up in the stack. The existing Apple–Google deal to make Google the default search engine in Safari has existed for over a decade, with payments roughly reaching $18–$20 billion a year in the early 2020s. Google delivered the search results. Apple kept the browser, the UI, the defaults, and the customer. Nobody ever thought of Safari as “the Google browser.” That deal survived the U.S. v. Google antitrust trial not because it was invisible, but because it proved how much Apple gained by making a dominant rival pay for access instead of competing on equal terms.

The Gemini arrangement reuses the same design. At the foundational layer, Gemini is Siri’s cognitive backend—contractual, invisible, and not subject to user choice. At the visible layer, the iOS 27 Extensions framework lets users swap among ChatGPT, Claude, Grok, Perplexity, and a Gemini chatbot app for certain requests. Apple will point to that second layer as evidence of openness. But the first layer is where platform control actually lives. Whatever model a user picks through Extensions runs on top of an infrastructure Apple has already built around Gemini. Apple does not compete with Gemini. Apple neutralizes it by absorbing it. History doesn’t repeat itself, but it often rhymes.

Forget the App Store. This is Microsoft All Over Again

The App Store line of cases is a distraction here. The real analogue is the Microsoft browser and search monopolization litigation, both in the United States and the EU.

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What the Fire Apparatus MDL Teaches Every Acquisition-Driven Company About Section 2 Risk

May 7, 2026 | Aaron Gott

Author: Aaron Gott

Seven U.S. cities have filed antitrust suits in five weeks against two manufacturers of “fire apparatus”—and the lawsuits are consolidating into a federal multidistrict litigation in the Eastern District of Wisconsin.

The case is about fire trucks. If you have ever been the parent of a five-year-old, you probably have heard about just how awesome fire trucks can be. But you probably don’t make fire trucks or use them in your business.

You should still take note of this litigation. Especially if you’re in private equity, at an acquisition-driven company, or serve markets involving specialized products or institutions like municipalities.

The defendants—REV Group and Oshkosh Corporation’s Pierce Manufacturing subsidiary, along with several entities connected to private equity investor American Industrial Partners—are accused of violating Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act. The theory is straightforward: through a series of acquisitions, two players came to dominate the fire apparatus market, and the alleged result is what antitrust lawyers call an “acquisition monopoly.”

This is not a new legal theory, but it is a legal theory that, just a few years ago, was unlikely to turn into a major MDL. A plaintiff’s burden on a monopolization claim under Section 2 is historically much more difficult to meet than a price-fixing claim under Section 1 because the latter is per se illegal, requiring no proof of anticompetitive effect, and face fewer doctrinal hurdles. So the antitrust class plaintiffs’ bar rarely brought them.

That’s changing, and acquisition-based monopolization claims could be a driving factor. The fire apparatus MDL is an example: just look at the pace at which top plaintiffs’ firms are filing cases, the involvement of municipalities as plaintiffs, and the rapid MDL consolidation. This could be a new era of sprawling antitrust blockbusters not centered on allegations of a price-fixing cartel.

Here is what you need to understand about acquisition monopolies.

What “Acquisition Monopoly” Actually Means

Section 2 of the Sherman Act prohibits monopolization—defined as (1) the possession of monopoly power in a relevant market, and (2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of superior product, business acumen, or historical accident.

The word “willful” is where acquisitions get complicated. Courts have long recognized that a company can violate Section 2 not by outcompeting rivals, but by buying them. Where each acquisition is a deliberate step in a strategy to eliminate competition and entrench market dominance, the cumulative pattern can satisfy Section 2’s willfulness requirement even if any individual deal was commercially rational on its face.

The Clayton Act adds another layer. Section 7 prohibits any acquisition—of stock or assets—where the effect “may be substantially to lessen competition, or to tend to create a monopoly” in any line of commerce or any section of the country. Note the word “may.” Section 7 is forward-looking: it catches transactions at the point where competition might be substantially harmed, not only after the damage is done. When a series of acquisitions is alleged, plaintiffs can argue both that individual deals violated Section 7 as they occurred and that the pattern of acquisitions collectively violates Section 2.

That is the double-barrel structure: Clayton Act Section 7 targets the deals as they happened; Sherman Act Section 2 targets the market power that resulted. Both claims are in the fire apparatus complaints.

The Specialized Market Problem

Antitrust liability under Section 2 depends critically on how the relevant market is defined. Market concentration and power can more easily be established where product specifications are highly customized, procurement cycles are long, and the number of qualified suppliers is small by nature.

Fire apparatus is that kind of market. Municipal fire departments operate under precise technical specifications—apparatus must meet NFPA standards, comply with state fire codes, and satisfy local procurement requirements. Fire trucks are not commodity equipment. The design, engineering, and production timelines make this a market with high barriers to entry, long customer relationships, and limited competitive alternatives.

Plaintiffs in specialized-equipment cases have an easier time with market definition because the product’s own characteristics draw the boundary. When you make the only commercially viable product for a specific application—or one of two—that fact does much of the plaintiffs’ work and makes it harder for defendants to argue a broader market such that monopoly power disappears.

How Courts Evaluate Roll-Up Claims

Plaintiffs’ antitrust lawyers have learned how to structure acquisition-monopoly cases, and the template is worth understanding.

The theory typically runs like this: defendant or its PE sponsor conducted a buy-and-build strategy, acquiring companies A, B, C, and D over a period of years; each acquisition eliminated a meaningful competitor; post-acquisition, defendant raised prices, reduced product quality, or restricted output; and the cities or businesses that purchased the product paid more than they would have in a competitive market.

Courts do not require plaintiffs to prove that every individual acquisition was anticompetitive. The question is whether the acquisitions, viewed as a course of conduct, reflect a willful strategy to acquire monopoly power. Internal communications—board materials, deal memos, strategic plans—that discuss market consolidation, competitor elimination, or pricing power post-acquisition are among the most damaging documents defendants face in discovery.

Private equity creates a particular documentation problem here. PE sponsors routinely model acquisitions in terms of EBITDA multiples, synergies, and market positioning. Investor presentations may explicitly reference competitor acquisition as a strategy for pricing power. That framing, which is entirely normal in PE deal documents, can look incriminating in an antitrust complaint. The plaintiffs in fire apparatus cases almost certainly obtained public filings, investor presentations, and press releases in which the defendants’ market consolidation strategy was described in terms that plaintiffs’ counsel will characterize as an admission.

Private Plaintiffs, Treble Damages, and the Municipal Angle

What makes the fire apparatus MDL structurally significant is the identity of the plaintiffs: cities. Municipal governments purchase specialized equipment through formal procurement processes, maintain records of every competitive bid, and have institutional incentives to pursue antitrust damages aggressively. Unlike a private commercial buyer who might want to preserve a supplier relationship, a city has no such constraint. Seven cities have filed antitrust lawsuits in five weeks. Others almost certainly will.

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Beyond the DOJ Complaint: Potential Exclusionary Conduct Theories in the Apple Ecosystem

May 4, 2026 | Pat Pascarella and Luke Hasskamp

Authors: Pat Pascarella & Luke Hasskamp

Recent proceedings involving Apple Inc.—including the U.S. Department of Justice case and Epic Games v. Apple—together with developments in AI markets, suggest an evolving framework for platform-focused antitrust analysis. This article considers how those threads may fit together.

I. The DOJ Has Done Substantial Groundwork

Begin with market power. In U.S. v. Apple, the district court accepted as plausible a U.S. smartphone market in which Apple holds roughly 65%—now closer to 70%—reinforced by barriers to entry, network effects, and switching costs.

The DOJ also presents an alleged pattern of exclusionary conduct: the repeated neutralization of technologies that reduce platform dependence, including middleware, super apps, cloud streaming, smartwatches, messaging, and digital wallets. According to the complaint, each time a product threatened to make device choice less consequential, Apple constrained or neutralized it. If this allegation is supportable, such a pattern could address concerns about improperly “punishing success.”

II. The Markets Apple Controls at 99 Percent

If a higher market share is needed, the more compelling market is not some smartphone submarket. Rather, it will be markets Apple controls at 99 percent: the iOS functionalities and apps themselves. While not every function is a separate product, some may well be—particularly those Apple allegedly targets.

Epic v. Apple is instructive on this point, and not fatal. The court did not hold that iOS-tethered markets are inherently non-cognizable—only that Epic failed to establish that consumers lacked awareness of iOS restrictions and could not factor them into purchasing decisions. But those gaps seem addressable.

The full scope of any restraints—and their costs—is obscured in a dense web of contractual and technical restrictions. No reasonable consumer could anticipate the extent to which app review, API access, and distribution control could be wielded against rivals. Nor should antitrust liability turn on whether consumers anticipated unlawful conduct.

Even if consumers had advance knowledge of such restraints, a single-brand market is not foreclosed. Apple’s own counsel acknowledged in Epic that consumers entering the iOS ecosystem cannot predict downstream costs related to app distribution, in-app payments, or aftermarkets. If the costs of any restraints are unknowable at the time of purchase, foremarket competition cannot discipline aftermarket conduct. The remaining elements of a single-brand iOS functionality or app market also appear to be present, including allegations of intentional degradation of interoperability to maintain switching costs—without corresponding loss of share or margin.

III. CoStar, Exclusive Dealing, and the End User License Agreement

Some claims may not require pleading a single-brand market. For example, under the Ninth Circuit’s decision in CoStar v. CREXi, “substantial foreclosure” is sufficient to plead an exclusive dealing agreement.

The agreement? The EULA itself. While a web of contractual and technical restrictions might enable foreclosure, the enforceable agreement between Apple and the user is embodied in the EULA. In that sense, Apple may have supplied potential plaintiffs with the central instrument of its own potential liability.

IV. The EULA as a Negative Tie

The EULA may also provide a foundation for tying claims. Courts often resist tying theories in platform cases, frequently reasoning that coercion must be directed at consumers rather than suppliers. That argument, though contestable, is predictable.

A potential response may be that it is the EULA that effectively conditions use of the platform on the consumer’s agreement not to obtain competing products, services, or apps outside Apple’s approval.

V. Attempted Monopolization and Dangerous Probability of Success

Tying allegations also expand the analytical framework, though courts ultimately may analyze them as attempted monopolization. On the “dangerous probability of success,” a defendant such as Apple likely would invoke concerns about outdated leveraging theories. But this would not be a classic leveraging case.

Any company that demonstrates both the ability and the willingness to neutralize technologies or rivals that threaten its market position may struggle to characterize that conduct as competing on the merits. Such a pattern should reduce concerns about punishing a company simply for being successful. Where a company has demonstrated a pattern of exclusion and retains the ability to repeat it, the “dangerous probability” standard should be satisfied.

VI. Inextricably Intertwined—and Antitrust Standing

A direct monopolization claim targeting the U.S. smartphone market faces a threshold question: standing. Developers and rivals operating at the functionality level are neither customers nor competitors in the smartphone market.

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