Author: Steven Madoff
As an avid runner, I am always looking for the perfect protein bar. A great protein bar must find the balance between taste and texture on the one hand and nutritional value and low-caloric content on the other. Usually, a certain amount of fat is needed for a savory taste and smooth texture, but that also often increases the bar’s calorie count.
So, it was interesting to discover an antitrust case involving this particular dilemma. The case was Own Your Hunger LLC, Lighten Up Foods, and Defiant Foods LLC vs. Linus Technology, Inc., Epogee LLC, and Peter Rahal. The lawsuit was filed in the United States District Court for the Southern District of New York in June 2025 by three low-calorie food producers that use esterified propoxylated glycerol (“EPG”), a patented fat replacement vegetable-based ingredient that that reduces calories by 92% compared to an equal amount of ordinary animal fat ingredients. EPG is produced only by a company named Epogee, because it holds the exclusive patent for EPG. The three food-producer plaintiffs make and distribute nut butter spreads, sauces and chocolates, respectively.
The defendant is Linus Technology operating under the name David Protein, which produces and distributes protein bars, marketed under the name David Bars, which also contain EPG. On May 29, 2025, David Protein acquired Epogee. After being acquired, Epogee (now part of David Protein) notified the three plaintiffs that it would no longer accept new orders for EPG.
The plaintiffs sued under the Sherman Act, Clayton Act and New York State’s antitrust statute, The Donnelly Act, and sought a temporary restraining order and a preliminary injunction. They claimed the defendants violated those statutes by arranging for the acquisition of Epogee and using their control over EPG to create an artificial monopoly. Specifically, they claimed that Epogee maintained a reliable EPG supply for all qualified food manufacturers before the corporate transition, and that after David Protein acquired it, Epogee advised the plaintiffs that it would no longer fulfill new orders for EPG. Moreover, plaintiffs alleged that Epogee stockpiled EPG to ensure that plaintiffs had no access to EPG. Defendants argued that plaintiffs are solely responsible for their predicament because they failed to secure long-term supply contracts, unlike other Epogee customers who still receive supply.
Plaintiffs asked for a temporary restraining order and a preliminary injunction to stop the defendants from, among other things, limiting EPG access to its pre-existing customers, maintaining artificial supply shortages, creating artificial scarcity of EPG through inventory manipulation and concealing information about EPG availability.
The applicable antitrust statutes typically require the plaintiffs to define the relevant product and geographic markets in which the products compete, along with the alleged restraint of trade.
Courts generally define the relevant market as all products reasonably interchangeable by consumers for the same purposes. Interchangeability is the cross-elasticity of demand between the product itself and substitutes for it. Two products are reasonably interchangeable where there is cross-elasticity of demand – where consumers would respond to a slight increase in in the price of one product by substituting for the other.
In this case, to prevail on a preliminary injunction motion, the plaintiffs must identify the relevant market that is being restrained. Here, this is a threshold matter necessary to overcome the hurdle of likelihood of success on the merits required for equitable relief.
The plaintiffs seemed unsure how best to define the relevant market. In their motion, plaintiffs defined the market as the U.S. market for EPG supply. But at oral argument they defined the relevant market as the one for low-calorie indulgence foods. It was obvious from his Order denying plaintiffs’ motion that the judge was not impressed with either market definition. First, he said plaintiffs have not shown that there are no interchangeable substitutes for EPG. Indeed, he added, plaintiffs’ submission references a non-party ice cream company that once used EPG in its products but then reformulated using something other than EPG. Second, he said plaintiffs have not shown why a customer would respond to an increase in the prices of their nut butter spreads, sauces or chocolates by switching to David’s Bars. (See 25-CV-4544 Decision and Order.)
The judge went no further to address any other merits of the case and denied the plaintiffs’ motion for equitable relief because, he said, plaintiffs failed to satisfy the prerequisite standard to entitle them to injunctive relief under the Sherman, Clayton and Donnelly Acts. He cited language from Daniel vs. American Board of Emergency Medicine, 802 F. Supp. 912, 926 (W.D.N.Y., 1982), to deny the motion for injunctive relief in this case: “The determination of the relevant market is a threshold requirement in determining the merits of an antitrust claim.”
In summary, when litigating claims for restraint of trade or monopolization, both parties must carefully consider and analyze market definition. In this David Protein case, the plaintiffs appeared to struggle with a definition of the relevant market, and their inability to identify the market being restrained or monopolized was fatal to their motion for injunctive relief. It will be interesting to see whether the plaintiffs in the full trial on the merits will be able to identify the market being restrained or monopolized, or if they will focus on other possible claims, such as breach of contract or unfair competition.
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