Developments in U.S. Antitrust Litigation — 2023 Year in Review

2023 was an eventful year for antitrust litigation, with 250 new antitrust complaints filed. The U.S. District Court for the Northern District of California continued to be the most popular jurisdiction for antitrust plaintiffs, with 42 cases filed in 2023. Northern California was followed by the District of New Jersey, with 30 cases; the Northern District of Illinois, with 19 cases; and the Southern District of New York, with 16 cases.

Both the antitrust authorities and private plaintiffs were focused on aggressive enforcement and sought to apply the antitrust laws to new technologies and existing theories of harm in new ways. Indeed, plaintiffs targeted a wide range of industries with antitrust actions in 2023, from tech to real estate and from sports to pharmaceuticals. This trend is unlikely to slow down in 2024.

Continued Focus on Tech

The tech sector continued to be a target of antitrust litigation in 2023. The Federal Trade Commission’s (FTC) lawsuit against Meta (formerly Facebook) and challenges by the states and Department of Justice, Antitrust Division (DOJ) to Google’s conduct are ongoing. Two important developments, however, helped to shape antitrust litigation in the tech space: the FTC’s lawsuit against Amazon and a focus on algorithms as a mechanism for allegedly unlawful coordination among competitors.

On September 26, 2023, the FTC and 17 state Attorneys General sued Amazon in the U.S. District Court for the Western District of Washington for its alleged anticompetitive practices. The complaint focuses on two purportedly anticompetitive strategies by Amazon to monopolize the online retail market, alleging that Amazon’s conduct violated Section 2 of the Sherman Act, Section 5(a) of the FTC Act, and several state antitrust statutes.¹ First, the FTC and Attorneys General allege that Amazon artificially inflated its prices by both punishing Amazon’s own marketplace sellers for offering discounts and by deterring other online retailers from undercutting Amazon’s prices. For example, the complaint asserts that Amazon disadvantages discount sellers in Amazon’s search results such that they become functionally invisible. Second, the complaint alleges that Amazon conditions sellers’ ability to sell their products using Prime on their use of Amazon’s fulfillment service. According to the plaintiffs, the cost of Amazon’s fulfillment service renders it prohibitive for sellers to offer their products on other platforms. Amazon has responded to those allegations by arguing that the action will lead to higher prices and slower deliveries for customers. Amazon asserts that its “tools and education” help its retailers increase sales by trying to “match other retailers’ low prices,” and do not prevent its retailers from choosing to “set prices that aren’t competitive.”²

In addition, the complaint against Amazon also alleges that the company used a pricing algorithm, termed “Project Nessie,” to set prices so that competitors would follow.³ The FTC complaint alleges that “Amazon created a secret algorithm … to identify specific products for which it predicts other online stores will follow Amazon’s price increases” which “[w]hen activated, … raises prices for those products, and when other stores follow suit, keeps the now-higher price in place.”⁴

The FTC and states’ allegations related to “Project Nessie” are just one example of recent cases involving antitrust challenges to algorithmic pricing software. For example, on November 1, 2023, the Attorney General’s Office for the District of Columbia filed a suit against RealPage, Inc. and multiple residential property companies alleging violations of the District of Columbia’s antitrust statute.⁵ The complaint alleges that these companies entered into an illegal agreement to collectively raise rents on tenants in Washington, D.C. rental units by agreeing to delegate pricing decisions to RealPage’s “Revenue Management” pricing software.⁶ The complaint also alleges that defendant rental companies “agreed, in writing, to share competitively sensitive data for RealPage to feed into its rent-setting [Revenue Management] Software.”⁷ The Attorney General for the District of Columbia alleges that RealPage’s Revenue Management software uses data to estimate supply and demand for housing specific to particular geographic areas and unit types and then generates a suggested rental price for a given rental unit.⁸

The District of Columbia case is only the most recent antitrust case brought against RealPage and residential property companies related to the Revenue Management software. An ongoing multi-district litigation against RealPage and multiple rental property companies pending in the Middle District of Tennessee involves allegations of an illegal price-fixing conspiracy impacting student housing and multifamily housing rentals. Following consolidation of the action, the defendants moved to dismiss both the student housing complaint and the multifamily housing complaint. On December 28, 2023, the court denied the defendants’ motion to dismiss the multifamily housing complaint and granted the motion to dismiss the student housing complaint.⁹ The court dismissed the student complaint for failing to plausibly allege market power and having insufficient direct evidence of anticompetitive effects.¹⁰ Despite denying defendants’ motion to dismiss the multifamily housing complaint, the court concluded that they had not alleged facts sufficient to state a claim under a per se standard.¹¹ The court, however, allowed the multifamily action to proceed as a rule of reason case.

Private plaintiffs have also challenged the alleged use of pricing algorithms in the hotel industry. Four ongoing cases involve allegations that multiple hotel and casino operators in Las Vegas and Atlantic City used software from the Rainmaker Group purportedly to coordinate their hotel room pricing.¹² In one case, Gibson v. MGM Resorts International, the U.S. District Court for the District of Nevada dismissed the plaintiffs’ complaint on October 24, 2023 for failure to plead sufficient details of the alleged conspiracy.¹³ The court found that plaintiffs failed to provide details as to the exact nature of the alleged agreement, which hotels were alleged to be involved, and when the agreement started.¹⁴ Plaintiffs filed an amended complaint on November 27, 2023.¹⁵

Outside of the real estate industry, the DOJ filed a complaint on September 28, 2023 in the U.S. District Court for the District of Minnesota against Agri Stats, a company that aggregates and disseminates information on the production, costs, and sales of processors of meats including chicken, turkey, and pork.¹⁶ The DOJ alleges that Agri Stats’ information exchange services leads to weakened competition and higher prices for purchasers by “providing [meat] processors with unique insights about their competitors’ production, costs, and pricing — and refusing to sell the same information to processors’ customers, farmers, workers, or consumers.”¹⁷ The complaint asserts that Agri Stats’ reports allow processors to “forecast what competitors will do” without needing to communicate directly, and thus allow processors to “confidently restrain production when it is profitable to do so.”¹⁸ The DOJ argues that Agri Stats’ facilitation of the improper exchange of information is in violation of Section 1 of the Sherman Act.¹⁹ In response, Agri Stats has filed a motion to dismiss the DOJ’s complaint in which it argues that the only live case or controversy concerns Agri Stats’ chicken reports, which a Northern District of Illinois court previously held,²⁰ based on the same facts as alleged here, do not violate the antitrust laws.²¹ Therefore, Agri Stats asserts the DOJ’s complaint should be dismissed under principles of stare decisis, since the same allegations were previously litigated.

PBMs Under Scrutiny

The pharmaceutical industry continues to be a priority area for antitrust enforcers. Recent litigation has focused on pharmacy benefit managers (PBMs), which act as intermediaries in the pharmaceutical supply chain between manufacturers, retail pharmacies, and end-payers for prescription drugs, often insurance companies or health plan sponsors.

In March 2023, the Ohio Attorney General filed suit under the state’s antitrust law against PBMs Express Scripts, Prime Therapeutics, and Humana Pharmacy Solutions, and related companies Ascent Health Services, Cigna Group, and Evernorth Health.²² The lawsuit alleges that the defendants’ actions forced manufacturers to increase prices while lowering reimbursement to retail pharmacies. The attorney general’s lawsuit alleges violations of Ohio’s Valentine Act, which, according to the attorney general, “is broader than its federal corollary, the Sherman Act, in that the Ohio law prohibits market harms, in addition to consumer harms.”²³ The case was originally filed in Ohio state court, and while defendants initially were able to remove the case to federal court, a U.S. District Court for the Southern District of Ohio remanded the case back to Ohio state court on January 2, 2024. The court rejected the removal from state court under federal officer removal, as the suit did not involve the operation or administration of federal health benefits programs and judicial economy, comity, and fairness support remand.²⁴

In October 2023, the Hawaii Attorney General filed its own litigation in Hawaii state court against PBMs Caremark, Express Scripts, and OptumRx alleging violations of the state’s unfair competition and deceptive business practices statute based on similar conduct as alleged in Ohio’s complaint.²⁵

Also, in October 2023, a group of pharmacies filed a purported class action in the U.S. District Court for the Eastern District of Wisconsin against PBMs alleging that ESI and Prime violated the antitrust laws through their 2020 agreement that allows Prime to take advantage of ESI’s lower reimbursement rate and higher fees for pharmacies. The case, Elk River Pharmacy et al. v. Express Scripts, Inc.,²⁶ was voluntarily dismissed in early January 2024, but another group of plaintiffs filed a nearly identical complaint in the U.S. District Court for the Western District of Washington shortly thereafter.

Robinson-Patman Act Enforcement

While the last FTC enforcement action under the Robinson-Patman Act (RPA), which outlaws price discrimination in commodities markets, was in 2000,²⁷ there is renewed interest in RPA enforcement at the FTC. Normally, FTC conduct investigations are non-public, but the FTC’s RPA investigation into Southern Glazer’s Wine & Spirits (Southern Glazer), an alcohol distributor, has already been the subject of litigation, with the FTC filing a petition in the U.S. District Court for the Eastern District of Virginia to enforce a civil investigative demand against Total Wine & More, an alcohol retailer, in October 2023.²⁸ The FTC and Total Wine & More resolved the enforcement action in December 2023, but the FTC’s investigation into Southern Glazer appears to continue. Specifically, in its petition to enforce the CID against Total Wine & More, the FTC describes its investigation as exploring whether Southern Glazer “is violating Sections 2(a) and 2(e) of the Robinson-Patman Act by giving preferential pricing and services to certain favored, large chain retailers — such as Total Wine — that it does not provide to small independent retailers.”²⁹

Despite the lack of recent government enforcement actions, private plaintiffs have continued to file RPA cases. In December 2023, the U.S. Court of Appeals for the Ninth Circuit issued a decision in U.S. Wholesale Outlet and Distribution, Inc. v. Innovation Ventures, LLC, in which wholesaler plaintiffs alleged that Innovation Ventures, maker of energy drink 5-Hour Energy, violated the RPA by allegedly offering Costco more favorable pricing than wholesalers, such as the plaintiff, were offered. Plaintiff alleged violations of both RPA Section 2(a), which prohibits price discrimination in certain instances, as well as Section 2(d), which prohibits discrimination in the provision of promotion services in certain instances. The Ninth Circuit reversed and remanded a district court decision that held in favor of defendants on the Section 2(d) claim after a jury found no competitive injury sufficient for a Section 2(a) claim.³⁰ The Ninth Circuit concluded that the lack of competitive injury for a Section 2(a) claim was not sufficient for the district court to determine that there was no competition between the plaintiff and Costco and that they operated at different functional levels.

No Wins in No-Poach Enforcement

In recent years, a key area of focus for DOJ has been criminal antitrust enforcement to combat alleged no-poach agreements, where companies purportedly agree not to hire each other’s workers. However, DOJ’s attempts to prosecute these cases has led to few successes, and in 2023 the government lost or withdrew three no-poach enforcement cases.

In March of 2023, after a two-week trial, a Maine federal jury in United States v. Manahe acquitted four home health agency defendants of conspiring to fix wages and of illegally entering into no-poach agreements.³¹ A month later, in April 2023, the U.S. District Court for the District of Connecticut in U.S. v. Patel dismissed charges against defendants accused of entering into illegal no-poach agreements. The Patel court found that because the defendants’ hiring and recruiting agreements “had so many exceptions,” the agreements did not qualify as a per se conspiracy to restrict competition.³² Finally, the DOJ moved in December 2023 to voluntarily dismiss with prejudice its 2021 indictment for alleged no-poach agreements with competitors against Surgical Care Affiliates, LLC. DOJ did not provide any explanation for its decision.³³

Despite the government’s failures in 2023, the Department of Justice does not appear to be planning on slowing down when it comes to no-poach enforcement actions. In a September 2023 speech at the Fordham Competition Law Institute’s International Law and Policy Conference, Assistant Attorney General Jonathan Kanter warned of continued government investment in no-poach enforcement agreements.³⁴

Juries Demonstrate Skepticism of Antitrust Claims

In two significant antitrust cases, juries returned defense verdicts. While the two cases, one involving the same allegations in the DOJ’s complaint against Agri Stats and the other involving an alleged reverse-payment patent settlement agreement, relate to different antitrust theories, these decisions show the challenges private plaintiffs can face when they reach trial.

First, in a case originally filed in 2016 in the Northern District of Illinois, direct and indirect purchasers of broiler chickens alleged that processing companies fixed prices. A number of large producers settled, but the case proceeded to trial against one defendant, Sanderson. Following a six-week trial, the jury rejected all claims and rendered a verdict in favor of Sanderson.³⁵

Second, a case in the Northern District of California alleging an unlawful reverse-payment patent settlement agreement between Gilead and Teva concerning generic versions of the HIV drugs Truvada and Atripla proceeded to trial in June 2023. Plaintiff indirect purchasers alleged that Teva agreed to delay the entry of generic versions of the drugs in exchange for a so-called “acceleration clause,” a commitment from Gilead that if it licensed any other generic to enter the market, it would advance Teva’s entry date to 180 days before the other generic. The jury rejected the claim on two independent grounds: it found that Gilead lacked market power (presumably due to the many other HIV drugs on the market and the intensive innovation in the field) and that Gilead had not made a payment to Teva in exchange for delay.³⁶ Notably, the verdict was the third consecutive defeat for plaintiffs in reverse-payment cases and means that plaintiffs have lost all federal reverse payment cases to go to trial since the Supreme Court’s decision in FTC v. Actavis³⁷ in 2013.³⁸

Competition On and Off the Field

In 1922, the Supreme Court ruled that Major League Baseball (MLB) was not engaged in interstate commerce and was thus not subject to the federal antitrust laws.³⁹ The Supreme Court recognized in 1972, in Flood v. Kuhn, that “baseball is a business, and it is engaged in interstate commerce,” and that while baseball’s judicially-created exemption from the antitrust laws was an “aberration” not applied to other professional sports, principles of stare decisis required continuing to recognize the exemption.⁴⁰ While there has been much debate about baseball’s antitrust exemption in the last 50 years, the U.S. Court of Appeals for the Second Circuit recently upheld the exemption. In Nostalgic Partners v. Office of the Commissioner of Baseball, the plaintiff minor league baseball teams alleged that the MLB’s decision to eliminate 40 minor league team affiliations with major-league teams violated the Sherman Act. The case attracted the attention of DOJ, which filed an amicus brief opposing the application of the exemption.⁴¹ Despite DOJ’s efforts, the Second Circuit preserved the exemption in its June 2023 decision, finding that the court “must continue to apply Supreme Court precedent unless and until it is overruled by the Supreme Court.”⁴²

Amateur sports also saw antitrust litigation in 2023. In Chuba Hubbard and Keira McCarrell v. NCAA, a putative class of college athletes sued the National Collegiate Athletic Association (NCAA), along with several college athletic conferences. The plaintiffs seek to recover damages on behalf of Division I athletes whom they allege were prevented from receiving education-related compensation by the athletic association defendants.⁴³ The plaintiffs rely on NCAA v. Alston, the 2021 Supreme Court decision in which plaintiff athletes secured a victory based on the Supreme Court holding that athletic association policies that prohibited student athletes from receiving education-related compensation violated the Sherman Act.⁴⁴ The McCarrell plaintiffs argue that Alston “did not rectify the harm suffered by thousands of Division I athletes who were unlawfully prevented from receiving education-related compensation before the injunction was issued,”⁴⁵ and so seek to recover hundreds of millions of dollars in damages dating back to 2016.

In Bewely et al. v. NCAA, another student athlete compensation case brought in 2023, plaintiffs claim they were prevented from playing basketball at their school for violating their college’s rules against student athlete compensation, in violation of the Sherman Act. The plaintiff students claim they lawfully received compensation “in exchange for the use of their name, image, and likeness” prior to enrolling at Chicago State University. Citing the Alston decision, plaintiffs allege that the NCAA and Chicago State University engaged in an unreasonable restraint of trade, a group boycott, and a refusal to deal. Though plaintiffs were denied a preliminary injunction, their lawsuit demonstrates that debate over compensation for student athletes is still ongoing.⁴⁶

Agency-Litigated Challenges to Mergers and Acquisitions Continue

Both the FTC and DOJ continued an aggressive merger enforcement agenda in 2023.⁴⁷ Three litigated merger challenges by the FTC were particularly notable.

In Federal Trade Commission v. Meta Platforms, the FTC challenged Meta’s acquisition of Within, a virtual reality app developer. In January 2023, the court denied the FTC’s request to enjoin the transaction. While the court accepted the FTC’s market definition and held that the FTC’s theories of potential competition could be viable, the court found that the FTC had not met its burden. Instead, the court held that FTC did not adequately show there was a “reasonable probability” that Meta would have otherwise entered the market and competed against Within.⁴⁸

In Federal Trade Commission v. Microsoft, the FTC lost another challenge to a tech merger. Here, the FTC alleged that Microsoft’s proposed acquisition of Activision Blizzard would allow Microsoft to foreclose competition in certain video game markets. The court held that FTC failed to show the transaction would substantially lessen competition, noting commitments that Microsoft had made to ensure availability of certain Activision Blizzard gaming titles on competitor gaming consoles.⁴⁹ The FTC has appealed the decision to the Ninth Circuit while returning the matter to administrative adjudication, despite the parties closing their transaction.⁵⁰

In In the Matter of Illumina and Grail, an FTC administrative decision received support from the Fifth Circuit Court of Appeals. The FTC originally brought suit in March of 2021 to block Illumina, a DNA sequencing company, from acquiring Grail, a biotechnology company that develops cancer screening tests using DNA sequencing. The FTC alleged that the merger would foreclose or disadvantage Grail’s rival in creating multi-cancer early detection tests.⁵¹ FTC Chief Administrative Law Judge D. Michael Chappell dismissed the FTC’s complaint in an initial decision, but in April 2023, the FTC reversed Judge Chappell’s dismissal and ordered Illumina to divest Grail.⁵² On appeal, the Fifth Circuit vacated and remanded the order. The court held that the FTC did not adequately evaluate Illumina’s promise to make its products available to Grail’s competitors.⁵³ However, the Fifth Circuit also found substantial evidence supporting FTC’s market definition and factual finding that the merger was likely to lessen competition, and rejected the parties’ constitutional arguments.⁵⁴ The Fifth Circuit agreed with FTC’s definition of a relevant market based on research and development efforts rather than existing commercialized products.⁵⁵ With regard to the merger’s impact on competition, the Fifth Circuit agreed that evidence supported that the merged entity would have the ability and incentive to foreclose rivals from competing in the relevant market. Illumina had argued that as it “was already established as the monopoly supplier of a key input,” the FTC could not “show that the merger would increase Illumina’s ability to foreclose.” The Fifth Circuit concluded, however, that FTC did not need to find that the merger would increase the party’s ability to foreclose in order to find anticompetitive effect.⁵⁶ The Fifth Circuit also cited Illumina’s internal documents as substantial evidence in support of its incentive to foreclose.⁵⁷ Two days later, Illumina announced it would divest Grail.⁵⁸

Looking Ahead

While new antitrust litigations were down in 2023, it is not the case that plaintiffs and government enforcers are reducing their efforts to aggressively enforce the antitrust laws. Recent developments suggest that plaintiffs may face some challenges winning cases, but the trends in 2023 are likely to continue in 2024 as both plaintiffs and government enforcers seek out new ways to advance both novel and traditional antitrust theories of harm. 

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.