Bona Law was well represented at the annual largest antitrust conference, the 2026 American Bar Association Antitrust Law Section Spring Meeting in Washington, D.C. Steve Cernak spoke at a panel discussing Robinson-Patman and other issues with big companies; Cansu Gunel attended the Section’s inaugural Trial Skills Academy; and Luis Blanquez and Sabri Siraj attended many panels and led our Bona Law meetings with clients and other firms. With dozens of panels and countless opportunities to meet with friends old and new from nearly 70 different countries, each of us could write an entire post on what we learned last week; however, to keep the length manageable, we each limited ourselves to just the key takeaways for our readers.

Steve Cernak

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.

2. 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.

3. 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.

In practice, the reversion to the legacy form could accelerate back‑end inquiries, replacing formal up‑front requirements with more piecemeal requests. Some of the same burdens—though more targeted—may reappear through this alternate channel. Filers should not assume a lighter overall enforcement posture. Even under the legacy form, the FTC and DOJ retain broad authority to issue voluntary access letters, requests for additional information during the waiting period, and—where warranted—second requests. Some of the information previously required up front may now be sought on a more targeted, transaction‑specific basis.

Most transactions can once again be filed without extensive narratives and expanded document production. Ordinary‑course documents and detailed competitive analyses are no longer categorically required at filing. And parties that have already invested substantial effort in preparing a 2025‑form filing may elect to submit it voluntarily, particularly if they anticipate close agency scrutiny.

Meanwhile, the litigation has no bearing on HSR thresholds, reportability tests, or statutory waiting periods. Those components of the regime remain intact regardless of how the Fifth Circuit ultimately rules.

Notably, several commentators have observed that even within the Commission there were early signs of discomfort with aspects of the overhaul. That opens the possibility that, regardless of how the litigation unfolds, the agency might revisit the form, adjusting or abandoning the most contentious requirements while preserving elements it views as essential; however, doing so would take some time to ensure that any other new form would not meet the same fate as the prior one

In the world of merger control, the only certainty right now is that nothing is settled—and the finish line may move again before anyone reaches it.

Image by jacqueline macou from Pixabay

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.

The Paramount–Warner deal therefore serves as a useful case study in how agencies are examining the broader competitive environment—not just arithmetic concentration metrics.

Practical Guidance for Companies and Practitioners

For businesses evaluating major transactions in consolidating industries, several lessons emerge.

First, assess industry structure as carefully as market overlap. Companies should evaluate how many meaningful competitors will remain after a transaction and how those firms interact across product lines and business segments. A merger that appears moderate in terms of market share may still draw scrutiny if it materially reduces the number of independent players or otherwise increases the possibility of coordination.

Second, develop and document procompetitive justifications with precision. Efficiencies tied to scale, innovation, or consumer benefits should be supported with data and internal analysis. Vague assertions that a merger is necessary to “compete more effectively” are unlikely to carry weight in a structural review.

Third, align internal communications with the anticipated regulatory narrative. Strategic discussions referencing pricing discipline, market rationalization, or reduced competitive pressure can become focal points in an investigation. Clear and disciplined internal messaging is essential.

Early engagement with antitrust counsel can help identify coordinated-effects risks, refine transaction structure, and shape advocacy strategies before agencies frame the competitive story themselves.

Conclusion

The Paramount–Warner Bros. transaction underscores a broader reality in 2026 and beyond: merger review in consolidating industries increasingly centers on how a deal reshapes competitive structure, not merely on whether it creates dominance in a narrowly defined market.

For companies pursuing transformative mergers, the key takeaway is straightforward. In industries characterized by high fixed costs and a limited number of significant competitors, regulators are likely to scrutinize how consolidation affects long-term rivalry and competitive incentives. Careful planning, rigorous economic analysis, and strategic internal discipline are critical to navigating that review successfully.

As consolidation continues across multiple sectors, the signals from this deal will resonate far beyond Hollywood.

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.

It is not unusual that, when faced with similar prevailing market conditions and constraints, similarly situated competitors would independently respond in similar ways. But from the outside, those similar responses can sometimes raise questions of independence if competitors make similar decisions at roughly the same time. Antitrust law recognizes that competitors often react similarly to the same market conditions. But regulators may still look closely at whether those decisions were truly independent, or whether information sharing played a role.

The Key Takeaway

Liability is not inevitable, but preparation matters. Builders who understand how antitrust law applies to their business are better positioned to avoid problems and respond appropriately if they occur. That includes being thoughtful about communications, particularly in group settings where competitors are present, and ensuring employees understand appropriate versus inappropriate contacts. Early involvement of experienced antitrust counsel can also help companies evaluate their practices and respond effectively if regulators come calling.

Right now, there is no confirmed investigation, no specific allegations of wrongdoing, and no clear indication that any laws were violated. But the fact that federal officials are reportedly looking at the industry is a reminder that antitrust enforcement remains active.

Homebuilders operate in a challenging environment shaped by economic pressures, regulatory constraints, and political attention. That environment isn’t likely to get easier. But builders who stay informed and prepared will be in the best position to manage risk and continue contributing to America’s much-needed housing supply.

Image by Eglantine Shala from Pixabay

Authors: Steven Cernak and Cansu Gunel

In May 2024, this blog discussed a rare plaintiff victory in a Robinson-Patman case. In February 2026, the Ninth Circuit affirmed that victory in L.A. International Corp. v. Prestige Brands Holdings, Inc. In doing so, the court confirmed our key takeaways from 2024 — a successful Robinson-Patman case, while possible, will be expensive and lengthy and will only get easier if more plaintiff-friendly opinions, like this one from the Ninth Circuit, are written. In crafting that opinion, however, the court might have created a split with at least the Second Circuit that the Supreme Court could find interesting.

Robinson-Patman and Case History

This blog has recounted the elements and history of Robinson-Patman in prior posts. In summary, RP is a Depression-era amendment of the Clayton Act that makes certain manufacturer discounts to some (usually large) resellers but not to other (usually small) resellers illegal if there is the requisite harm to competition.

For decades, the FTC and private plaintiffs brought numerous cases that generated many opinions, including from the Supreme Court. As antitrust law evolved to focus nearly exclusively on benefits to consumers, especially lower prices, the FTC stopped bringing cases and private cases dwindled. The few cases brought often resulted in plaintiff losses and defendant-friendly precedent. Still, the non-zero risk of RP enforcement meant that most manufacturers and retailers paid at least some attention to RP. Because the FTC has become more interested in RP enforcement, including bringing two cases recently, RP clearly is not “gone” and now might not even be “forgotten.”

L.A. International Corp. v. Prestige Consumer Healthcare, Inc., is one of those rare private RP suits and even rarer plaintiff wins. As we detailed in 2024, Defendants manufacture and distribute Clear Eyes eye drops. The suit alleged that Defendants sold Clear Eyes at a lower price and with greater promotional allowances to Costco (specifically, Costco Business Centers that resell to retailers) than to Plaintiffs. Plaintiffs are several distributors that also buy and resell such products to retailers like local convenience stores.

After years of litigation, the case was tried to a jury, which found for Plaintiffs and allocated around $700,000 in damages among the several distributors. The lower court rejected various objections to its jury instructions by Defendants, which formed the basis of Ninth Circuit appeal.

Competitive Injury Standards: A Circuit Split

The Ninth Circuit’s “Geographic Proximity” Approach

The Ninth Circuit affirmed, applying what it characterized as the traditional “chain-store paradigm,” where wholesalers and large retailers like Costco both “carried and resold an inventory of [a product] to all comers.” The court found that “to establish that two customers are in general competition, it is sufficient to prove that:

• one customer has outlets in geographical proximity to those of the other;
• the two customers purchased goods of the same grade and quality from the seller within approximately the same period of time; and
• the two customers are operating on a particular functional level such as wholesaling or retailing.”

Critically, the Ninth Circuit rejected any requirement that competitive injury be “substantial,” holding that “Congress strung together the clauses in Section 2(a) with the disjunctive ‘or,’ which requires that we treat the clauses separately.” Section 2(a), in relevant part, states:

. . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition . . .

Thus, in rejecting the Defendants’ claim that the instructions should have included the “substantial” requirement because “the word ‘substantially’ … modifies the phrase ‘to injure, destroy, or prevent competition,” the court concluded that “[w]holesalers needed to show only that the effects of Prestige’s discriminatory actions ‘may be … to injure, destroy, or prevent competition’” and that “the district court did not err when it instructed the jury that the plaintiff was required to establish ‘a reasonable possibility of harm to competition.’”

The Ninth Circuit rejected Defendants’ argument for three reasons:

• the ABA Model Jury Instructions only requires plaintiffs to show “a reasonable possibility of harm to competition;”
• standard canons of construction would not have “substantially” in the first element of the list modify the third element; and
• Ninth Circuit precedent never addressed the issue explicitly but did describe the element as “a reasonable possibility that a price differential may harm competition.”

The Ninth Circuit buttressed this finding with a reference to the Supreme Court’s most recent RP opinion, Volvo v. Reeder-Simco, noting that the Court “omitted the word ‘substantially’ when recounting the elements for secondary-line injury, requiring that a plaintiff need only show that ‘the effect of [the price] discrimination may be to injure, destroy, or prevent competition.’”

Importantly, and consistent with its rejection of any “substantial” harm requirement, the Ninth Circuit also clarified that the Morton Salt inference—which permits courts to presume competitive injury from substantial price differences sustained over time—operates as an affirmative presumption once such a sustained price disparity is shown. As the court explained, this presumption generally suffices to establish a reasonable possibility of injury to competition without requiring proof of substantiality or significant direct lost sales. This approach aligns with the foundation laid by the Supreme Court in Federal Trade Commission v. Morton Salt Co. which held that a factfinder may infer injury to competition from a sustained, substantial price differential because such disparities can impair the competitive opportunities of individual merchants and thereby create a “reasonable possibility” that competition itself may be harmed.

The Second Circuit’s “Substantial Harm” Requirement

This Ninth Circuit language seems inconsistent with the Second Circuit’s opinion in 2015’s Cash & Henderson’s Drugs, Inc. v. Johnson & Johnson. There, the Second Circuit affirmed a summary judgment for Defendants because Plaintiffs’ showing of a loss of approximately .25% of customers to the favored purchasers was de minimis, thus inadequate to show the requisite harm to competition. In doing so, the court found that plaintiffs “failed to raise a question of material fact as to whether they suffered competitive injury” because they “could not generate evidence tending to show that they lost more than a de minimis number of customers to the favored purchasers, indicating that competition was not substantially harmed or threatened by the price difference in question.” [emphasis added]

The Second Circuit referenced a different portion of the Volvo opinion, explaining that “[t]he [Supreme] Court also made clear that any ‘price discrimination’ must ‘affect substantially’ competition between the favored purchaser and the plaintiff. …15 U.S.C. § 13(a) (prohibiting price discrimination where the effect ‘may be substantially to lessen competition’).” As a result, the Second Circuit found “that if the loss attributable to impaired competition is de minimis, then the challenged practice cannot be said to have had a ‘substantial’ affect [sic] on competition.” The Second Circuit also found support in cases from the Fifth, Seventh, and D.C. Circuits in holding that “[RP’s statutory language] itself thus requires at least the potential for substantial harm to competition.” [emphasis added]

The Ninth Circuit’s approach to the Morton Salt inference is also inconsistent with the Second Circuit’s approach in Cash & Henderson. Specifically, where the Ninth Circuit held that the Morton Salt inference is an operative presumption, the Second Circuit treated it as a rebuttable presumption, establishing a framework that allows defendants to rebut the Morton Salt inference “by evidence that favored purchasers were diverting only a de minimis number of customers.” The Second Circuit’s approach is more stringent, requiring that the Morton Salt inference be supported by more than minimal diverted sales to be actionable and imposes a substantial effect threshold.

Takeaways

Ultimately, Volvo, Cash & Henderson, and L.A. International Corp. reveal significant variations in how courts analyze RP secondary‑line price discrimination claims, particularly regarding competitive‑injury standards. The Ninth Circuit in L.A. International Corp. applied a more plaintiff‑friendly approach, rejecting any requirement of “substantial” competitive injury and permitting geographic proximity to establish competition, a stance that contrasts sharply with the Supreme Court’s restrictive framework in Volvo and the Second Circuit’s in Cash & Henderson, both of which emphasized substantial competitive harm.

At the same time, the differing outcomes may be reconcilable: de minimis lost sales would be insufficient to show “harm to competition” just as they would be insufficient to show “substantial harm to competition,” and the apparent conflict may reflect which part of the RP language the moving party argued “substantially” should modify. And even if there is a circuit split, it is not clear that the Supreme Court would find it interesting enough to weigh in. Still, the interpretation of RP’s language—and the Supreme Court’s gloss on it in Volvo—diverges meaningfully in these two appellate opinions.

What is more certain is that this 2018 case, even after the Ninth Circuit opinion, might not be over and damages and attorney fees might not be collected soon. So, the key takeaways now remain the same as we listed in 2024: RP litigation is time-consuming and fact-intensive for all participants; more plaintiff-friendly opinions like this Ninth Circuit one will be necessary to overcome decades of defendant-friendly precedent if RP is to be truly revived; but, yes, even now, it is possible to win an RP case.

Image by Agata from Pixabay

AI will weaponize antitrust. AI markets have high fixed costs, winner-take-all dynamics, platform leverage, bundling power, and data lock-in.  These dynamics predict concentration.  And market concentration is an accelerant for antitrust litigation—both private and government. We saw it with IBM, Microsoft, and the telecom wars.

Private actions will move faster than government enforcers—not because they are necessarily stronger on the merits, but because they are less constrained by politics and bandwidth. A well-timed complaint can slow a rival’s rollout, trigger regulatory scrutiny, and create settlement leverage.  When markets tip quickly, the losers litigate.

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.

2. 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

Multiemployer bargaining requires the consent of all the parties, both employers and the union. Even if a union agrees, an individual employer might not want to form such a unit because it would lose the flexibility to bargain for an agreement it finds in its own best interest. If upheld on appeal, this case will give employers bargaining in parallel with the same union greater confidence that coordination of bargaining outside a multiemployer bargaining unit but otherwise within the exemption’s limits would still enjoy antitrust immunity. Of course, the antitrust lawyers for such individual employers surely would advise their clients to coordinate more carefully than did the employers here. For example, the communication about the pharmacy purchases, like the profit-sharing agreement in Safeway, probably should be avoided. Still, this court’s hesitancy to treat as an antitrust issue what it perceived as tactics in hard-nosed labor negotiations should provide additional assurance to future employers looking to coordinate in collective bargaining.

Image by ilham arief from Pixabay

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.

Draw a bright line around non‑custodial software so developers who never touch funds aren’t saddled with bank‑style KYC. Define stablecoin standards that are about safety—transparent reserves, segregation, bankruptcy‑remoteness, attestation—rather than protecting incumbents from competition. Allow activity‑based rewards within guardrails instead of banning all consumer remuneration.

And where issuers or networks become essential facilities, require interoperability and non‑discriminatory access.

Conclusion

The promise of open protocols should not merely be cheap speculation. It should be economic freedom: the ability to speak, coordinate, and transact without asking a platform—or a bank—for permission. If digital dollars are forced into bank‑shaped containers and “Web3” retrenches into corporate chokepoints, we will have built a shinier version of what we already had— Web2 gatekeeping in a Web3 wrapper. Useful? Maybe. Transformative? Absolutely not.

The better path is competition. Let banks compete on product, not privilege. Let corporate L2s win users on UX, not defaults. And let Bitcoin and Nostr set the baseline—credible neutrality, portability, and forkability—that keeps competition open in the market. If one company can stop it, it’s an app. If no one can, it’s a protocol. We should build and legislate accordingly.

Here is also an article I published on this same issue on the ABA Antitrust Section website

Banks v Stablecoins and the Need for More Open-Source Protocols

Image by Sergei Tokmakov, Esq. https://Terms.Law from Pixabay

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.

The ruling also reflects Germany’s broader regulatory framework for “market‑heavyweight” companies—a designation Amazon has held since 2022 under national competition law. This status subjects Amazon to stricter oversight and facilitates earlier and more decisive intervention when its practices risk impeding competition. The €59 million disgorgement order underscores the seriousness with which the Bundeskartellamt views Amazon’s pricing influences and signals an intent to hold dominant platforms accountable for competitive distortions arising from automated systems and internal policies.

This case illustrates how European antitrust enforcement seeks to preserve the competitive process, prevent gatekeepers from leveraging structural advantages to shape pricing behavior, and protect the competitive autonomy of smaller businesses operating within powerful digital ecosystems.

Full disclosure: Bona Law represents Zulily against Amazon in the United States. Zulily LLC et al. v. Amazon.com Inc., case number 2:23-cv-01900, in the U.S. District Court for the Western District of Washington.

Image by Gerd Altmann from Pixabay

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.

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.

Image by Clker-Free-Vector-Images from Pixabay