Articles Posted in Antitrust News

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HSR-Fifth-Circuit-300x204

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

On March 19, 2026, the Fifth Circuit denied the FTC’s motion to stay a lower court’s February decision vacating the new HSR form and rules.

As a result, the FTC immediately said it would be accepting the old, less burdensome, form going forward, while recognizing that the agencies continue to wield significant investigatory tools beyond the filing itself At least for the time being, the new form will continue to be accepted too. The FTC will be updating its website with the old form and rules shortly.

The Agency has not announced if it will continue to appeal the lower court’s ruling or re-start the process to develop a different new form. So, the merits appeal remains pending at the Fifth Circuit, meaning the litigation is far from over. A future appellate decision could reinstate the expanded form, require further rulemaking, or affirm the vacatur. For now, however, the legal baseline has reverted to the pre‑2025 HSR regime.

  1. A Sweeping Rulemaking Meets Strong Opposition

In early 2025, the Federal Trade Commission undertook the most ambitious redesign of the Hart‑Scott‑Rodino premerger notification form since the statute was passed in 1976. The dramatically expanded filing framework required parties to submit far more information at the outset of the merger‑review process. The revised form demanded narrative descriptions of competitive dynamics, deeper maps of ownership and governance, detailed horizontal and vertical overlap disclosures, and, often, the submission of certain ordinary‑course business documents never previously required. The stated goal was to help the FTC and the Department of Justice identify problematic deals earlier and reduce friction later in investigations.

The business community was not persuaded. Trade associations, led by the U.S. Chamber of Commerce, argued that the new rule imposed crushing burdens on companies, with compliance costs soaring and preparation time roughly tripling. Many pointed out that the vast majority of HSR filings do not trigger substantial investigations, yet all filers would bear the heightened costs regardless of competitive risk. Even before the rule took effect in February 2025, these groups filed suit in the Eastern District of Texas, claiming the agency had exceeded its statutory authority and failed to justify the new demands.

Their challenge succeeded—at least initially. On February 12, 2026, Judge Jeremy D. Kernodle vacated the rule in its entirety. He found that the agency had not shown the new requirements were “necessary and appropriate” under the HSR Act and had failed to meaningfully weigh costs and benefits as required by the Administrative Procedure Act. The court also found the rule arbitrary and capricious—the FTC failed to show that the rule’s benefits “bear a rational relationship” to its costs. The ruling emphasized that the FTC could not identify even one past transaction that the expanded form would have flagged but the old form would have missed, while acknowledging the enormous cost imposed on every filer. For the court, the disconnect between burden and proven benefit was fatal.

  1. Procedural Whiplash: From Vacatur to Revival

Though the district court vacated the rule, it paused its own order for seven days to allow the FTC to seek appellate relief. The agency scrambled to preserve the status quo. It asked the district court for a stay pending appeal; that request was denied. It then immediately appealed to the Fifth Circuit, filing both an emergency motion for a stay and a separate, narrower request for a short administrative pause.

The Fifth Circuit moved faster than many anticipated. On February 19, 2026—one day before the district court’s stay was set to expire—the appellate court issued an administrative stay of the vacatur “until further order.” The effect was simple but consequential: the 2025 HSR form, despite the district court’s ruling, remained in force. The FTC’s own Premerger Notification Office quickly announced that filers must continue to use the new form while the appeal proceeds.

The court simultaneously set an expedited briefing schedule, requiring the appellees’ response by February 23 and the FTC’s reply by February 26.  On March 19, the court issued a brief per curiam opinion denying the stay. Within hours, the FTC announced on its website that the pre-February 2025 form would be accepted immediately, although filers could also continue using the new form. The FTC expects to further update its website with the old form and rules very soon.

  1. A Landscape of Uncertainty for Dealmakers

Even under the old form, the FTC and DOJ retain broad discretion to request voluntary information during the waiting period.

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Paramount-Warner-Brothers-merger-antitrust-300x225

Author: Sabri Siraj

In February 2026, Paramount Global signed a $110 billion agreement to acquire Warner Bros. Discovery, setting the stage for one of the largest media combinations in recent memory. The transaction follows a competitive process that included a proposal from Netflix late last year to merge with Warner Bros. Discovery. Netflix ultimately withdrew its bid, citing financial considerations.

While much of the public conversation has centered on personalities and politics, the more meaningful takeaway for businesses lies elsewhere. This transaction offers a clear window into how regulators, both state and federal, are approaching major mergers in industries that are consolidating after years of rapid growth.

For companies contemplating transformative deals in their own sectors, the Paramount–Warner transaction signals an important shift in merger review: agencies are looking beyond simple market share metrics and focusing more closely on how consolidation reshapes long-term competitive dynamics.

Transaction Background

Under the reported agreement, Paramount would acquire Warner Bros. Discovery in a transaction valued at approximately $110 billion, including assumed debt. The combined company would control a substantial portfolio of film studios, premium cable brands, broadcast networks, and direct-to-consumer platforms.

The deal emerges at a time when the media industry is recalibrating. Subscriber growth has slowed, content production costs remain high, and companies are under pressure to improve profitability. In December, Netflix explored strategic transactions involving studio and streaming assets, underscoring the broader industry push toward scale and operational efficiency.

If completed, the merger would reduce the number of diversified, large-scale competitors operating across film production, content licensing, advertising, and subscription services. As a result, the transaction is likely to receive scrutiny from U.S. federal and state and international enforcers.

The Legal Framework Governing the Review

Section 7 of the Clayton Act prohibits acquisitions whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” The inquiry is forward-looking and predictive. Regulators assess whether a transaction is likely to reduce output, raise prices, diminish innovation, or otherwise weaken competitive rivalry.

In a conventional horizontal merger analysis, agencies examine relevant product and geographic markets, the degree of overlap between the merging firms, and changes in market concentration. Structural indicators often provide the starting point for the analysis.

Modern merger review, however, does not end there. Particularly in capital-intensive industries with relatively few major competitors, agencies increasingly evaluate how consolidation affects incentives and industry structure over time. That broader structural focus is likely to shape review of the Paramount–Warner transaction.

State antitrust enforcers have been increasingly active in reviewing mergers that affect the citizens and consumers of their states. For example, multiple state attorneys-general challenged the Kroger-Albertsons merger. Here, the California Attorney General, at least, has signaled that he plans to investigate the merger.

The Key Signal: Structural Scrutiny in Consolidating Industries

The most instructive aspect of this deal is not simply that two competitors are combining. Rather, it is how enforcement agencies are likely to assess consolidation in a mature, high-fixed-cost industry.

Media production and distribution share structural features common to many other sectors: significant upfront investment, repeated interaction among a limited number of firms, and publicly observable pricing and strategic behavior. When markets exhibit these characteristics, regulators may evaluate not only whether the merged firm could raise prices unilaterally, but also whether reducing the number of independent competitors makes coordinated outcomes more likely.

This coordinated-effects lens focuses on market structure. Agencies may ask whether having fewer major decision-makers increases the risk of parallel pricing behavior, output discipline, or softened rivalry over time—even in the absence of explicit agreement.

That analytical approach has implications far beyond media. Healthcare systems, aerospace and defense contractors, energy infrastructure providers, and industrial manufacturers all operate in industries with high fixed costs and limited numbers of national competitors. In those sectors, consolidation may attract scrutiny not solely because of market share thresholds, but because of how it alters competitive incentives across the industry.

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Homebuilders-DOJ-Antitrust-300x166

Author: Ruth E. Glaeser

Federal officials are reportedly considering an antitrust review of major U.S. homebuilders, particularly around how competitors share information through groups like the Leading Builders of America. The Department of Justice has not yet confirmed a formal investigation, but the discussion highlights risks that extend well beyond the largest national builders.

The size and visibility of large builders make them more likely to attract regulatory attention, particularly when housing affordability has become a major political issue. Policymakers are under pressure to examine whether industry practices, or market structure more broadly, are contributing to supply constraints that make housing less affordable.

But for developers of all sizes, this is a reminder that ordinary industry practices can end up under a microscope. Even conduct that seems routine and well-intentioned can become the focus of a costly and disruptive investigation.

The Issue of Trade Associations

At the center of the concern is information sharing among competitors. Trade associations, like Leading Builders of America, serve legitimate and important purposes. They serve as industry advocates, promote best practices, and provide a forum for discussing common challenges among builders. But regulators have long viewed trade associations as environments where competitors may be tempted to share sensitive information.

United States antitrust law does not prohibit companies from participating in trade associations or gathering market intelligence. What it does require is that each company make its own independent decisions about pricing, production, and strategy and not all information sharing is inherently anticompetitive.

Indeed, the DOJ and FTC have long provided guidance on competitor information sharing to help companies understand how antitrust laws apply to things like collaborations, benchmarking, and exchanging data. For many years, the Antitrust Guidelines for Collaborations Among Competitors, issued jointly by the agencies, offered a framework for assessing when information‑sharing and other activities among competitors might raise antitrust concerns. Although the original 2000 Collaboration Guidelines were withdrawn in December 2024, the agencies have recently requested public comment to develop updated guidance that would cover collaborations and information exchanges for today’s economic and technological landscape.

In practice, problems can arise when communications, including informal ones, suggest that competitors are aligning their behavior. Regulators are especially focused on exchanges involving non-public information about future business plans, because that kind of information is more likely to influence how competitors behave and ultimately affect prices, supply, or quality. Emails, text messages, and meeting notes discussing pricing, future plans, or competitors’ actions can appear more nefarious when viewed in hindsight by regulators.

It’s Not Just the Government

Government investigations are only part of the risk. Antitrust scrutiny often leads to follow-on lawsuits by private parties like homebuyers and investors—an antitrust blizzard of sorts—who have an easier time prosecuting their claims by copying the arguments and evidence from the government’s case. Even when defendant companies believe they’ve done nothing wrong, responding to investigations and defending lawsuits can be expensive, time-consuming, and disruptive.

Economic and Market Forces Can Complicate the Picture

Homebuilders also face challenges unique to the industry. Builders operating in the same markets often respond to the same economic pressures at the same time. Interest rates, material costs, labor availability, and local regulations all affect how many homes are built and how they are priced. When mortgage rates rise, demand slows. Builders may respond by adjusting pricing, slowing production, or delaying projects. Similarly, when lumber prices increase or labor becomes scarce, builders may raise prices or build fewer homes. Local regulation can have the same effect—zoning restrictions, permitting delays, and approval timelines often affect every builder in a given area. Supply chain disruptions can create similar patterns. And if materials are delayed or unavailable, multiple builders may pause or reschedule construction.

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Labor-Exemption-to-Antitrust-300x300

Author: Steven Cernak

U.S. antitrust laws make exceptions for certain actions by employees and employers in the collective bargaining context. The limits of those exemptions are not perfectly clear. Earlier this month, a district court seemed to clarify and expand the so-called nonstatutory exemption for activities by employers.

Labor Exemption Basics

Between 1890 and 1914, courts generally viewed as illegal under the Sherman Act concerted activities by employees to obtain union recognition. To change that situation, beginning with the Clayton Act in 1914, Congress created what became known as the “statutory labor exemption,” which states in part:

Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor … organizations, … or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof

Later, the Supreme Court developed a corresponding “nonstatutory labor exemption” to allow employers, within certain limits, to reach agreement among themselves as they jointly bargained with the unionized employees. Generally, courts have restricted the nonstatutory exemption to agreements 1) related to a mandatory subject of bargaining such as wages, hours, and working conditions; 2) not having a potential for restraining competition in the business market in which the employers compete; and 3) that arise in the collective bargaining context and, often, when the employers have explicitly created a multiemployer bargaining unit.

For example, the Ninth Circuit in California v. Safeway in 2011found an anticompetitive agreement among four grocery stores who agreed to share profits during a union strike against any one of them. Because only three of the stores created a multiemployer bargaining unit while the union contract with the fourth did not expire for several months, the court was concerned that the profit-sharing agreement was “not anchored in the collective bargaining process.” Also, the court found the agreement did not concern a core mandatory subject of bargaining and could affect the business, rather than the labor, markets in which the companies competed.

Morgan v. The Kroger Co.

On February 6, 2026, the district court in Colorado granted defendants’ motion to dismiss in Morgan v. The Kroger Co. Grocery stores owned by Kroger and Albertsons, respectively, were separately bargaining with the same union over agreements that ended at the same time. The two employers discussed but never reached a mutual strike assistance agreement. Albertsons briefly extended its agreement, Kroger did not, the union struck Kroger before shortly thereafter reaching an agreement, and Albertsons largely agreed to those same terms.

Just before the strike, the union publicly encouraged Kroger employees to move their pharmacy purchases to and seek employment at the Albertsons stores in the event of a strike. A high-ranking Kroger labor executive emailed his Albertsons counterpart to ask how that company planned to react to such union tactics. The Albertsons executive responded:

  1. We don’t intend to hire any [Kroger] employees and we have

already advised the Safeway division of our position and the

division agrees.

  1. With regards to Rx, we don’t intend to solicit or publicly

communicate that [Kroger] employees should transfer their scripts

to us. However, when a customer brings in a new or transferred

script, we don’t inquire as to why the customer is transferring or

where they work, nor do we make it a practice to turn away

customers.

Others within Albertsons described this exchange as an “agreement” not to hire Kroger employees and not to solicit Kroger pharmacy customers. Originally, plaintiff alleged this agreement violated Colorado state antitrust law but planned to amend to add federal claims. All parties and the court used federal antitrust precedent.

While finding it a close question, the court dismissed the state law claim (and said it would have dismissed any similar federal antitrust law claims) under the nonstatutory labor exemption. While defendants could not cite a case that applied the exemption outside of a multiemployer bargaining unit, the court found it more telling that the plaintiff could not cite a case holding that the exemption could not apply to a case of employers engaged in parallel, bilateral negotiations with the same union.

The court distinguished Safeway on two grounds. First, here both collective bargaining agreements ended at nearly the same time while in Safeway the agreement of the non-member of the multiemployer unit ended several months later. Second, unlike the profit-sharing agreement in Safeway, here any agreement that Albertsons would not hire Kroger employees operated only in the labor market, not the product market where the two employers compete. The court characterized the pharmacy discussion as, at most, communication by Albertsons “that it would not start to actively solicit Kroger employees’ prescriptions, thereby maintaining the status quo.”

Takeaways

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Base-by-Coinbase-Antitrust-and-Competition-300x203

Author: Luis Blanquez

Congress didn’t set out to redesign money with the Digital Asset Market Clarity Act. Yet that is where the debate has now landed. The bill—intended to end regulation‑by‑enforcement and draw a workable line between SEC and CFTC authority—has stalled because stablecoins force a choice the status quo would rather avoid. Are digital dollars going to be corralled into a bank‑shaped box, or will they remain programmable cash that pressures incumbents to compete on yield, speed, and service? Everything else is downstream of that decision.

Banks, Stablecoins and the Need for Real Competition

Stablecoins have become the functional rails of crypto today—payment instruments, settlement media, and trading collateral—sometimes accompanied by yields from lending, reserve income, or activity‑based rewards. Banks see this as deposit‑like remuneration without bank‑level prudential rules. And they warn of deposit flight and regulatory arbitrage.

Senate negotiators have responded with draft provisions that limit “interest for simply holding a stablecoin,” while permitting some incentives tied to real activity (e.g., payments volume). Crypto firms counter that this approach smuggles the legacy model back in: if a fully reserved, transparent stablecoin can’t share its economics with users or experiment with market incentives, what exactly is the innovation? And if tokenized assets are pushed back into broker‑dealer rails, how meaningful is on‑chain finance?

This is not a sterile policy scuffle. It’s a market‑structure fork. Treat stablecoins like quasi‑deposits with minimal yield and centralized chokepoints, and you’ll get the same existing incumbent-protection and innovation-fenced banking channels. Treat them as programmable, interoperable dollars with risk‑appropriate guardrails, and you’ll get competition—on rates, UX, interoperability, and transparency.

Base—Coinbase’s Layer‑2 Network

Meanwhile, the market is already revealing the tradeoffs. Consider Base—Coinbase’s Layer‑2 on Ethereum’s OP Stack. It solves real problems: cheaper transactions, faster confirmation, and effortless ramps. It is the rare bridge from Web2 familiarity to Web3 innovation, powered by the distribution of an innovative public company. A very successful project so far indeed.

But Base also shows how “Web3‑branded” platforms can quietly recreate Web2 chokepoints. Today, a single sequencer—run by Coinbase—controls transaction ordering, inclusion, and liveness. Users can self‑custody, yet the network’s heartbeat depends on one operator.

At the asset layer, USDC, a stablecoin co‑created by Coinbase and Circle, is the default settlement currency. This is unsurprising given reserve‑yield economics and compliance benefits. While other tokens can technically be used on Base, the user experience strongly privileges USDC, shaping behavior through design rather than choice. None of this makes Base malign; it makes Base effective. But it also makes it an ecosystem managed by corporate incentives rather than a neutral public protocol.

The Bitcoin and Nostr Lesson: Protocols as Antidotes to Chokepoints

Here’s where Bitcoin and Nostr matter as living proof that open protocols can scale human coordination without reintroducing gatekeepers.

Bitcoin is bearer money with credible neutrality. There is no issuer to lean on, no off‑chain promise to redeem, no corporate switch to flip. With Lightning, small payments settle in native BTC without bridges or custodial wrapping. That architecture prevents a single firm from deciding who transacts, in what order, or at what fee. It’s not frictionless; liquidity management and UX remain hard. But Bitcoin/Lightning delivers something corporate L2s cannot promise: a censorship‑resistant exit option. When “Web3‑branded” stacks drift toward walled gardens, the mere availability of a neutral settlement layer disciplines behavior—users and developers can route around control points.

Nostr offers the same lesson for communications. It is a simple, open event protocol for publishing and relaying messages. There are no accounts to seize, no central servers to pressure, and no mandatory app store chokepoints. Anyone can run a relay, anyone can build a client, and identities travel with the user, not the platform. Like Bitcoin, Nostr isn’t perfect: spam resistance, moderation norms, and discovery are hard. But its permissionless interoperability and portable identity prevent the quiet re‑centralization that Web2 perfected and “Web3‑branded” platforms sometimes emulate. In practice, Nostr and Lightning together show how value and speech can move across a network where the rules are baked into open code rather than corporate policy.

The point isn’t to crown Bitcoin and Nostr as universal solutions (although we think highly of them): It’s to recognize their governance properties—credible neutrality, forkability, non‑discriminatory access—as the antidote to the chokepoints corporate platforms tend to recreate nowadays.

How Corporate L2s Can Earn Trust—and Avoid Antitrust Trouble

The solution isn’t to reject polished, easy‑to‑use platforms. It’s to make sure that as these networks grow, they don’t quietly become new chokepoints. Base—and any corporate‑run Layer‑2—could earn long‑term trust by committing to three simple principles:

Decentralize the Infrastructure

Right now, Base relies on a single sequencer. To avoid becoming a gatekeeper, it should eventually open this role to many independent operators. That means multiple entities helping order transactions, clear rules preventing any one party from dominating, and technical safeguards so users can always get their transactions included—or withdraw to Ethereum—if something goes wrong.

Neutralize the Asset Layer

If the network defaults to USDC everywhere, people will naturally end up using it—even if they’d prefer something else. Base could avoid that by offering a neutral asset picker and allowing different stablecoins, ETH, and even non‑custodial Bitcoin payment paths, to truly compete on equal footing. It should also separate any reserve income from network decisions and make switching between assets or providers easy and low‑cost.

Build Fair, Transparent Governance

To avoid ever looking like a walled garden, Base could give more groups a seat at the table, such as developers, users, and independent voices. Clear rules against self‑preferencing, public audits, transparent fee policies, and easy data portability, all would make the ecosystem more antitrust friendly.

These three steps aren’t just good crypto hygiene. They are antitrust risk reducers. The legal vulnerability for a dominant exchange‑wallet‑L2 bundle is the appearance of leveraging distribution power to foreclose rivals—by steering order flow, setting biased defaults, or discriminating in access. Open sequencers, neutral defaults, and documented non‑discrimination would make Base look less like a vertically integrated gatekeeper and more like neutral infrastructure.

What Congress Should Do

Policy should reflect the same principles.

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Amazon-Germany-300x134

Author: Luis Blanquez

On 5 February 2026, Germany’s competition authority, the Bundeskartellamt, announced a landmark ruling prohibiting Amazon from continuing practices that influenced how independent sellers priced their products on the German Amazon Marketplace. The authority also ordered Amazon to disgorge €59 million in economic benefits that it determined were gained through these anticompetitive practices.

At the center of the ruling lies Amazon’s dual role in Germany’s online retail ecosystem. As in the United States, the company not only sells products through its own retail arm, Amazon Retail, but also operates the Amazon Marketplace, a platform where independent third‑party sellers list and sell goods directly to consumers. About 60% of all items sold on Amazon.de come from these independent sellers, who bear full responsibility for setting prices and managing the financial risks of their businesses.

The Bundeskartellamt concluded that Amazon used a variety of “price control mechanisms” to review whether sellers’ prices were “too high.” When Amazon’s systems flagged a price as unacceptable, the company responded by either fully removing the listing from the platform or excluding the offer from the Buy Box—the prominent purchasing option that strongly influences sales volume. These measures can severely limit a seller’s visibility and revenue.

According to the authority, this system created a significant competitive imbalance. President Andreas Mundt emphasized that Amazon directly competes with the very sellers who rely on its platform. When a dominant marketplace operator can restrict or manipulate competitor pricing—even indirectly through algorithmic controls—it risks shaping the entire price landscape according to its own commercial interests. Mundt warned that such interference could prevent sellers from covering their costs, potentially pushing them off the marketplace entirely.

The Bundeskartellamt made clear that it does not object to Amazon’s ambition to offer low prices to consumers. Instead, the issue lies in how Amazon has attempted to achieve that goal. Regulators argue that Amazon can provide competitive prices without directly constraining the pricing choices of independent sellers. To address the issue, the authority has restricted Amazon from using price control tools except under narrowly defined circumstances—particularly cases of excessive or exploitative pricing—and only in compliance with detailed requirements that the Bundeskartellamt has now established.

The regulator highlighted the implications of Amazon’s market position. Amazon accounts for roughly 60% of Germany’s online goods retail market, making it an undeniably influential digital gatekeeper. Because independent sellers depend heavily on Amazon’s infrastructure and visibility, any internal policy that affects pricing can have sweeping economic impact. The authority asserts that Amazon’s previous practices allowed it to act as both a competitor and an arbiter of acceptable pricing behaviors, creating a structural conflict of interest.

By limiting Amazon’s ability to use these mechanisms, the Bundeskartellamt aims to restore pricing freedom to third‑party sellers and safeguard the competitive process. The decision stresses the need to prevent dominant digital platforms from exploiting their market position by embedding competitive advantages into the algorithms and systems that govern visibility, listing status, and price acceptability. According to the authority, this type of intervention is crucial to ensuring that Amazon cannot extend its competitive power on the marketplace into the broader retail economy.

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Protein-bars-antitrust-300x225

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 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.

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HSR-FTC-2026-200x300

Authors: Steven Cernak, Luis Blanquez and Kristen Harris.

On January 14, 2026, the Federal Trade Commission (FTC) issued its usual annual announcement to increase the Hart-Scott-Rodino (HSR) Act thresholds. The 2026 thresholds will take effect 30 days after publication in the Federal Register.

HSR requires the parties to submit certain information and documents and then wait for approval before closing a transaction. The FTC and DOJ then have 30 days to determine if they will allow the merger to proceed or seek much more detail through a “second request” for information. The parties may also ask for “Early Termination” to shorten the 30-day waiting period, although for nearly two years this option has been––and continues to be––suspended.

The HSR Act notification requirements apply to transactions that satisfy the specified “size of transaction” and “size of person” thresholds. The FTC adjusts these thresholds annually to reflect changes in the U.S. gross national product.

Three thresholds determine the applicability of HSR filing requirements.

First, one of the parties to the transaction must be in commerce in the United States or otherwise affect U.S. commerce.

Second, the acquiring party must be acquiring securities, non-corporate interest, or assets of the target in excess of $133.9 million––the “size of transaction” threshold. A notification is thus not required when the value of the voting securities and assets is below this threshold.

Third, if the transaction exceeds $133.9 million but does not exceed $535.5 million—the “size of the persons” threshold––then at least one party involved in the transaction must have annual net sales or total assets of at least $267.8 million, and the other party must have annual net sales or total assets of at least $26.8 million.

Parties with transactions valued at more than $535.5 million must report them regardless of the size of the parties, unless an HSR Act exemption applies.

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Algorithmic-pricing-update-October-2025-297x300

Author: Luis Blanquez

The first part of this article discussed the Dai v. SAS Inst. Inc case, where plaintiffs alleged the inference of a horizontal agreement by the group of Hotel Operators using IDeaS’s software. There, the Northern District of California again confirmed the difficult standard for algorithmic pricing at the motion to dismiss stage. More specifically, the Court highlights (1) how important it is to provide enough facts about the nature of the information shared with the software provider, (2) the way defendants share such information, and (3) to what extent that same information was later commingled and integrated into final pricing recommendations.

In this second article, we dive into the first appellate decision in the US dealing with algorithmic pricing, and the recent Greystar Settlement, where the company agreed to stop using algorithmic pricing tools that rely on non-public data from competitors and to avoid participating in RealPage-hosted meetings with other landlords.

I. Gibson v. Cendyn Group, LLC, 148 F.4th 1069 (9th Cir. Aug. 15, 2025)

In Gibson v. Cendyn Group, LLC et al. plaintiffs alleged two Sherman Act, Section 1 violations:

  • First, defendants engaged in a “hub-and-spoke” antitrust conspiracy by agreeing among themselves to purchase the license to the same revenue management software products from Cendyn and to abide by Cendyn’s pricing algorithms recommendations.
  • Second, the hotels’ individual licensing agreements with Cendyn—”in the aggregate”—had anticompetitive effects in the form of artificially inflated prices for hotel rooms on the Las Vegas Strip.

The District of Nevada dismissed both claims. On appeal, plaintiffs abandoned the hub-and-spoke claim.

On August 15, 2025, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal.

The Ninth Circuit held that plaintiffs failed to state a claim under Section 1 of the Sherman Act by alleging that competing hotels independently purchased licenses for software that provided pricing recommendations. The Court explained that alleging that several competitors contract with the same software service provider, followed by higher prices, was insufficient to state an antitrust claim under the rule of reason.

In addition, the Court highlighted the fact that Section 1 of the Sherman Act requires a causal link between the agreement and an anticompetitive restraint of trade in the relevant market, which is something plaintiffs could not show. This is similar to the case in Cornish-Adebiyi v. Caesars Entertainment, Inc., currently on appeal before the Third Circuit, where according to the district court, plaintiffs failed to show that the algorithmic software used competitors’ nonpublic, proprietary data to provide pricing recommendations.

The Ninth Circuit focused its analysis on the allegations that the individual license agreements between each hotel and Cendyn restrained competition “in the aggregate” and led to higher room rates on the Las Vegas Strip.

The Court addressed the nature of the licensing agreements between Cendyn and individual competing hotels:

  • The Court distinguished between parallel conduct and concerted action, highlighting how competitors may independently adopt similar technologies without getting involved in a conspiracy. So, an agreement among hotel defendants to follow Cendyn’s pricing recommendations would have harmed competition. But here, the agreements only imposed obligations on Cendyn and each specific hotel as to each other (not the hotels together). And allegations of mere parallel conduct—competitors independently adopting similar policies around the same time in response to similar market conditions—or even involving consciously parallel conduct, are insufficient to state a claim under Section 1 of the Sherman Act, without more. In addition, the licensing agreements did not require the competing hotels to follow Cendyn’s pricing recommendations, nor imposed any restrictions on their ability to use alternative pricing tools.
  • Even if hotel defendants had been aware of their competitors’ use of Cendyn’s software products, their independent adoption of Cendyn’s software products—absent evidence of an agreement among hotel defendants to do so—would have been insufficient under the abandoned hub-and-spoke claim. The Ninth Circuit also clarified that this analysis might have changed if plaintiffs had shown that Cendyn shared confidential information from each competing hotel among the licensees. But plaintiffs did not allege that Cendyn pooled, shared, or used the confidential information provided by any of the competitor hotels into the pricing recommendations it generated for any other hotel defendant. Rather, plaintiffs just alleged that each user provided Cendyn with non-public pricing and occupancy data, which the software product then used in their algorithms to generate recommendations.
  • Absent a horizontal conspiracy, alleging the existence of several licensing agreements resulting in higher prices was insufficient to have a collective restraint of trade under Section 1 of the Sherman Act. Antitrust law provides no mechanism by which courts can evaluate the independent agreements between Cendyn and each hotel competitor “in the aggregate,” for the purposes of determining whether together they acted as an unreasonable restraint of trade.
  • In addition, according to the Court, those independent agreements between Cendyn and each hotel competitor were also not vertical agreements. Cendyn operated in the same industry (the hotel industry) but not in the same market (the market for hotel-room rentals on the Las Vegas Strip). While hotels had the ability to use Cendyn’s software, the software was not an input going into the production of hotel rooms for rentals. Cendyn’s services did not render Cendyn “up the supply chain” from Hotel Defendants in the market for hotel room rentals on the Las Vegas Strip. Like a tax adviser the Court analogized, Cendyn’s revenue-management software products merely served a “back-office” function.
  • The Court therefore held that such agreements were just ordinary sales contracts that did not restrain trade in the relevant market. They imposed obligations on Cendyn and on each hotel defendant as to each other for the provision of and payment for the software products. But they didn’t limit competition among hotel defendants in the relevant market, nor their abilities or incentives to compete.

II. Realpage, Inc. Software Antitrust Litigation – First Settlements

In August 2024, the DOJ alleged that RealPage violated Section 1 and Section 2 of the Sherman Act.

Under Section 1, the DOJ alleged that RealPage’s revenue management software was collecting competitively sensitive data from landlords, while generating rental pricing recommendations. At the same time, those same landlords agreed to share such information with the understanding that their competitors would do same thing and receive pricing recommendations.

Under section 2, the DOJ alleged that RealPage leveraged landlords’ data to maintain a monopoly in the commercial revenue management software market by using exclusionary conduct.

Continue reading →

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California-Cartel-Antitrust-300x300

Author: Aaron Gott

In my last post, I discussed how California’s newly enacted AB 1340—which allows independent contractor gig drivers to form a “union” and engage in sectoral bargaining against rideshare companies such as Uber and Lyft—likely does not provide the federal antitrust immunity that it purports to provide. This week, I’d like to discuss the other problem with AB 1340: it is likely unconstitutional.

In 2018, the Ninth Circuit decided Chamber of Commerce v. City of Seattle, striking down a Seattle ordinance that authorized rideshare drivers to engage in collective bargaining with Uber and Lyft.

So why did California just enact essentially the same law? AB 1340 revives nearly the same structure—and the same constitutional defect—under a new label, in a different locale.

Now, there is a key factual difference between the Seattle ordinance and AB 1340. Can you spot it?

The difference is that California is a state, and Seattle is a mere political subdivision. And that difference matters, because we have a dual federalist system: states on the one hand, and the federal government on the other. Cities? They are not sovereign and are irrelevant for federalism purposes. (But don’t shed any tears for municipalities: they get an ill-reasoned exemption from the active supervision prong set forth in Town of Hallie v. City of Eau Claire, plus the Local Government Antitrust Act of 1984, which immunizes them from antitrust damages and fees, thus freeing them to pursue all sorts of anticompetitive schemes with reckless abandon.)

Still, this factual difference does not save AB 1340 from the same fate as Seattle’s ordinance.

The problem is that California’s AB 1340 is not a genuine act of state regulation, but merely an attempt to declare private coordination immune from federal law.

Under Supreme Court precedent, naked attempts to immunize anticompetitive conduct are foreclosed not only by the state-action immunity doctrine. They are also subject to federal preemption.

From Seattle to Sacramento

Seattle’s ordinance authorized “qualified representatives” of for-hire drivers—eventually, the Teamsters—to bargain collectively with companies such as Uber and Lyft. Everyone agreed the ordinance facilitated private price-fixing, and the city defended it on state-action grounds. The Ninth Circuit rejected that defense.

The court held that Washington’s general authorization to regulate for-hire transportation did not clearly articulate a policy to displace competition in the ride-referral market, and that a statutory declaration purporting to exempt local regulation from the Sherman Act was not a policy to displace competition—it was an impermissible attempt to exempt municipal conduct from federal law altogether. Finally, the court confirmed that the “municipal exception” to active supervision is narrow: when private actors participate in the restraint, active state supervision is required, and cities are not “the state itself.”

The Ninth Circuit emphasized that “authority to regulate a market is not the same as authority to authorize anticompetitive conduct.” That observation speaks directly to the structure of AB 1340, even if California, unlike Seattle, acts here as the sovereign rather than its subdivision.

What the Ninth Circuit Actually Held

Two features of Chamber v. Seattle are particularly relevant.

First, the Ninth Circuit drew a sharp line between a policy to regulate and a policy to displace competition. The state statute there authorized municipalities to regulate for-hire transportation for safety and reliability reasons, but said nothing about replacing market competition with collective bargaining. The resulting ordinance therefore lacked the “clear articulation” required by Midcal.

Second, the court rejected the notion that the legislature could “immunize” municipalities from the Sherman Act by fiat. Citing Parker v. Brown, it reiterated that “states cannot give immunity to those who violate the Sherman Act by authorizing them to violate it.” A declaration of exemption, even one framed as explicit legislative intent, is not a substitute for a true regulatory program.

And in footnote 9, the court made a related and important point:

“The City’s argument that the presumption against preemption applies here is misplaced. State-action immunity is a defense to preemption.”

That is, the doctrines are not separate. If state-action immunity fails, federal law preempts.

AB 1340 and the Limits of State Sovereignty

California’s position differs from Seattle’s in one respect: a state itself has enacted the challenged framework. That distinction matters under Parker, which recognizes that the Sherman Act does not bar a state acting as sovereign from imposing market restraints “as an act of government.” But AB 1340’s flaw is not that it delegates authority to a city; it’s that it authorizes private competitors to collude and then declares their collusion immune from federal scrutiny.

That structure is inconsistent with Parker and a number of subsequent Supreme Court cases. The statute’s declaration that the “state-action antitrust exemption shall apply” does not transform private collusion into sovereign regulation. It is simply a legislative announcement that California intends to exempt certain conduct from federal law—something it cannot do. The Constitution allows states to regulate, but not to negate federal statutes.

The Federal Boundary

The Ninth Circuit’s footnote in Seattle captured the relationship succinctly: state-action immunity is a defense to preemption. When the defense fails, federal supremacy governs. The result is not a close call. AB 1340 does not replace competition with regulation; it replaces it with private collusion, then declares that collusion lawful. That is precisely the type of state-created conflict the Supreme Court’s preemption jurisprudence forbids.

A facial challenge to AB 1340 before implementation would thus rest on solid ground. The statute’s structure and purpose conflict directly with the Sherman Act and the Supremacy Clause. As Chamber v. Seattle illustrates, courts remain willing to enforce that boundary when governments—state or local—attempt to erase it.

From Seattle to Sacramento

The Seattle ordinance was straightforward. It allowed independent drivers to “collectively bargain” against app-based “driver coordinators” such as Uber and Lyft. The City appointed the Teamsters as the designated representative to negotiate rates and terms. Everyone agreed that this amounted to private price-fixing—a per se violation of the Sherman Act—but the City argued it was immune because Washington law allowed municipalities to regulate for-hire transportation services.

The Ninth Circuit rejected that argument on every front. The court held that:

  1. Washington’s general authorization to regulate for-hire transportation did not clearly articulate a policy to displace competition in the ride-referral market.
  2. A statutory declaration purporting to exempt local regulation from federal antitrust law was not a policy to displace competition—it was an invalid attempt to exempt state and local conduct from federal law.
  3. The “municipal exception” to the active-supervision requirement is narrow: when private actors participate in the restraint, state supervision is required.

As the court put it, state law authority “to regulate a market is not the same as authority to authorize anticompetitive conduct.”

That reasoning applies squarely to AB 1340. California’s statute authorizes the same kind of horizontal coordination and then declares the result immune. It is, in substance, Seattle 2.0—a legislative replay of a theory the Ninth Circuit has already rejected.

Why AB 1340 Raises the Same (and Worse) Problems

Like Seattle’s ordinance, AB 1340 authorizes private competitors—rideshare drivers—to coordinate on pricing and output decisions. And, just as Seattle did, California attempts to pre-emptively declare that conduct exempt from federal scrutiny: “the state-action antitrust exemption shall apply.”

Continue reading →

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