Developments In US Antitrust Litigation—2021 Year In Review – Anti-trust/Competition Law


The pace of antitrust case filings showed little sign of slowing
in 2021. According to Westlaw Analytics, 340 antitrust cases were
filed in federal district courts in 2021. While this was roughly a
20% decline from 2020, when federal courts saw the most antitrust
cases filed (426) in a given year since 2007, 2021 was still the
third highest antitrust filing year during that fourteen-year span.
And the Northern District of California continued to be the most
active antitrust court with nearly 25% of all federal antitrust
cases filed in 2021. The Northern District of California has been
the most active antitrust court every year since 2009.


Tech Cases Highlight Potential Challenges in Pleading Relevant
Markets & Market Power

Facebook. The FTC and several state
attorneys general filed lawsuits against Facebook in December 2020,
alleging unlawful maintenance of a monopoly, including through the
acquisitions of Instagram and WhatsApp and the imposition of
certain platform policies that allegedly prevented potential
competitors from integrating with Facebook’s

In June 2021, a court in the District Court for the District of
Columbia dismissed the states’ case, ruling that the doctrine
of laches, while it did not apply to federal agency plaintiffs,
barred the states from challenging Facebook’s acquisitions from
2012 and 2014. The court found that “the States’ long
delays were unreasonable and unjustified as a matter of law.”
2 The states have appealed the dismissal, arguing that
laches does not apply when a sovereign state pursues an action in
the public interest.3

The same court dismissed the FTC’s complaint without
prejudice in June 2021, finding that the FTC had failed to
sufficiently allege that Facebook had market power in the market
for Personal Social Networking (PSN) services-which the complaint
had defined as the market for “online services that enable and
are used by people to maintain personal relationships and share
experiences with friends family and other personal connections in a
shared social space.”4 Judge James E. Boasberg
noted the burden of pleading market power in “an unusual,
nonintuitive product market,”5 and criticized the
FTC’s reliance on conclusory allegations that Facebook has
“somewhere over 60% share” of the PSN services market,
“the confines of which are only somewhat fleshed out and the
players within which remain almost entirely

The court also analyzed the FTC’s refusal to deal theory,
concluding that Facebook’s general policy of refusing to
provide competitors access to its application programming
interfaces (APIs) did not itself violate Section 2 of the Sherman
Act. Even if specific instances of Facebook revoking a
competitor’s API permissions (after previously providing
access) might violate Section 2, the FTC lacked statutory authority
under Section 13(b) of the FTC Act to seek an injunction because it
failed to allege that a Section 2 violation “is ongoing or
about to occur”-as the last alleged instance of refusal
occurred in 2013.7

The FTC amended its complaint in August 2021, and Facebook again
moved to dismiss. On January 11, 2022, Judge Boasberg largely
denied Facebook’s motion to dismiss, finding that the FTC
sufficiently alleged that Facebook maintained a monopoly in the PSN
services market through its acquisitions of Instagram and WhatsApp.
The court found that the FTC had “add[ed] substantial new
allegations about the contours of Facebook’s market share . . .
includ[ing] allegations regarding Facebook’s market share of
daily average users (DAUs) and monthly average users (MAUs) of PSN
services in the United States, as well as its share of users’
average time spent on PSN services.”8 Satisfied
that “the FTC [did] its homework this time around” to
support its market power allegations, the court continued its
Section 2 analysis, concluding that the FTC “sufficiently
alleged that Facebook acquired Instagram and WhatsApp in order to
neutralize actual and likely future competitors.”9
Importantly, the court held that the HSR review process provides no
insulation from future challenges.10 However, the court
narrowed the scope of the FTC’s case, reaffirming its previous
holding that the FTC lacked the statutory authority to seek an
injunction addressing Facebook’s platform-related conduct that
last occurred in 2013. The court did not dismiss the FTC’s
claim, but noted it would be sliced out at summary judgment and
that the FTC would not be permitted to seek discovery of
Facebook’s platform policies.

Epic v. Apple. Private antitrust
challenges to major technology platforms also made headlines in
2021. Epic Games’ challenge to Apple Inc.’s App Store
policies went to trial in 2021. A court in the Northern District of
California issued a lengthy decision in September
2021.11 Noting that, “[s]uccess is not
illegal,” the court held that the plaintiff “failed in
its burden to demonstrate Apple is an illegal monopolist”
because the trial record ultimately reflected a market share of
only 55% in digital mobile gaming transactions, and reflected no
evidence of barriers to entry, reductions in output, or decreasing
innovation.12 With this holding, the court sided with
Apple on the federal and state antitrust allegations. However, the
court found for plaintiffs under the California unfair competition
law and enjoined Apple from enforcing its prohibition on in-app
payments that bypass the App Store and Apple’s commission
rate.13 Both Apple and Epic have appealed the
decision,14 and in late November 2021 Apple won a bid to
stay the district court’s injunction pending

Sports Cases Continue to Generate Significant Attention

NCAA v. Alston. On June 21, 2021, the
Supreme Court unanimously held that the NCAA’s cap on
educational benefits to athletes (e.g., funds for school supplies
and postgraduate scholarships) violated Section 1 of the Sherman
Act.16 In so doing the Court upheld in its entirety a
detailed injunction entered by Judge Claudia Wilken of the District
Court for the Northern District of California that applied the rule
of reason and upheld certain NCAA restrictions relating to athletic
scholarships while striking down others.

After outlining the different degrees of scrutiny that may apply
in Section 1 cases, the Court concluded that the “rule of
reason in its usual form” should apply.17 It then
provided important commentary on the application of the rule,
including rejecting the idea that businesses must use the least
restrictive means to achieve procompetitive benefits.18
Importantly, the Court did not accept NCAA’s purported
justification that the preservation of amateurism itself (i.e., the
agreement not to compete in compensation provided to student
athletes) was important to the NCAA’s ability to offer a unique
product that is valued by consumers who desire an alternative to
professional sports. By rejecting that argument, the Court rejected
the concept that a defendant, by attempting to define its product
as one involving less competition, could avoid the application of
the antitrust laws.19

Justice Kavanaugh wrote separately to express his view that many
other NCAA compensation rules might also not survive antitrust
scrutiny, stating that the NCAA’s business model “would be
flatly illegal in almost any other industry in
America.”20 The NCAA is in the process of revising
many of its rules. Student athletes are now free to license their
names and images, as well as in some circumstances to receive
income from sponsors.21 It appears likely that some
restrictions on student-athlete compensation will now become a
conference-level issue rather than a NCAA-level issue and that
different conferences (which individually lack market power) will
adopt different approaches, offering a wider range of options both
for consumers of college sports and student-athletes.

City of Oakland v. Oakland Raiders. On
December 2, 2021 the Ninth Circuit affirmed the district
court’s dismissal of the City of Oakland’s antitrust claims
against the Raiders and the NFL regarding the relocation of the
Raiders from Oakland to Las Vegas.22

Under the NFL’s Constitution, the relocation of a member
club and/or admission of a new club requires the approval of 75% of
the members. The City of Oakland claimed that the NFL enjoyed
monopoly power over a relevant market in professional football and
that it had limited the number of teams, thereby increasing the
bargaining power of each team in its negotiations with cities and
stadium authorities. With regard to the Raiders, the City contended
that this increased bargaining power allowed the Raiders to demand
unduly generous public subsidies towards a new stadium in Oakland,
and when those subsidies were not forthcoming, to secure a more
lucrative arrangement in Las Vegas. The City also contended that
the vote of the NFL member clubs permitting the Raiders to move
constituted a group boycott.23

The Ninth Circuit unanimously rejected these claims. With regard
to the boycott claim, the court found that only one club-the
Raiders-had ceased doing business with Oakland; there was no
“group” in the purported “group
boycott.”24 The court explained, “[c]ollective
action in support of an individual boycott is not the same as a
group boycott,”25 With regard to the claim based on
an allegedly depressed number of clubs, the court found that the
City lacked statutory antitrust standing. In particular, because
the City had not paid the allegedly inflated price to host the
Raiders-rather it had refused to pay it-the City was less directly
affected by the alleged conduct than someone who had actually paid
the allegedly inflated price.26 On an issue of first
impression in the circuit, the Ninth Circuit followed a decision by
the Tenth Circuit, Montreal Trading Ltd. V. Amax Inc., 661
F.2d 864 (10th Cir. 1981), in holding that non-purchasers generally
lack standing to complain of the inflated prices alleged caused by
an antitrust violation.27

Judge Patrick Bumatay concurred to explain he would have found
that Oakland’s output restriction claim was “too
speculative to satisfy the threshold of constitutional standing and
so must be benched even before kickoff.”28 Judge
Bumatay explained that Oakland’s claim rested on a series of
speculative steps: that a new rule would replace the 3/4 rule for
admission of new clubs, that there would be new applicants, that
the NFL would admit one or more such applicants, that one of those
new applicants would move to Las Vegas, and that the Raiders would
then not be able to find a better host city and would have no
option but to continue to play in the dilapidated 50-year old
Oakland Coliseum.29

Fusion Elite All Stars v. Varsity
Also in 2021, Defendant Varsity Brands,
founder of US All-Star Federation, the host of the annual
Cheerleading Worlds competition, lost its motion to dismiss a
complaint accusing it of anticompetitive conduct by allegedly
monopolizing cheer competitions.30 Notably, a court in
the Western District of Tennessee accepted, at least for pleading
purposes, plaintiffs’ allegation of narrowly-defined
single-brand relevant markets-“All-Star Cheer
competitions” and “All-Star Apparel.” The court
found that a product market excluding other cheerleading
competitions from the relevant market was reasonable because of the
cost of All-Star Cheer competitions and those competitions’
role in selecting participants in the annual Cheerleading Worlds
competition.31 Similarly, based on USASF rules and
customer demand (i.e., the “strong culture in the cheer
market”), the court concluded that All-Star Apparel is an
appropriate single-brand market of cheer-related sports gear that
excludes other cheer-related apparel and other sports apparel

Pharmaceutical Patent Settlement Cases Proceed Past Summary

Multiple litigations alleging the parties entered into unlawful
reverse patent settlements (so-called “pay-for-delay”
cases) survived summary judgment in 2021. In In re Glumetza
Antitrust Litigation
,33 a court in the Northern
District of California rejected defendants’ motion for summary
judgment, which was premised in large part on unrebutted evidence
(resulting from a waiver of privilege) that the generic company
expected to lose the underlying patent litigation. The court
nonetheless found triable issues of fact because (a) the record did
not contain evidence of the subjective beliefs of the brand
company, (b) the patent settlement permitted the generic to enter
prior to patent expiration and contained a reverse payment, and (c)
plaintiffs presented evidence of noninfringement from the
underlying trial record. A number of defendants settled shortly

In another case, In re Namenda Indirect Purchaser Antitrust
,34 a court in the Southern District of
New York denied defendants’ motion for summary judgment,
finding that there were factual issues relating to the value
associated with a distribution and supply agreement negotiated at
the time of the parties’ patent settlement. However, that court
also rejected plaintiffs’ proposed “generic inducement
test” in which the jury would be allowed to “consider
only the generic’s perspective” on whether the payoff was
greater than profits expected from litigation.35
Finally, in In re EpiPen, the District of Kansas denied in
part Mylan’s motion for summary judgment, finding sufficient
evidence from which a reasonable jury could infer that Mylan
“made an unlawful reverse payment in the EpiPen settlement in
the form of overpaying Teva for its settlement of the Nuvigil
litigation.”36 However, the Court granted
Mylan’s motion for summary judgment with respect to
plaintiffs’ theory that Mylan’s rebate agreements with its
PBMs were unlawful exclusive dealing arrangements. Trial is
scheduled to begin in February 2022.

Antitrust Remedies Clarified

FTC Remedies. In April 2021, the
Supreme Court held, in AMG Capital Management LLC, et al v.
Federal Trade Commission
, that “Section 13(b) of the
Federal Trade Commission Act does not authorize the commission to
seek, or a court to award, equitable monetary relief such as
restitution or disgorgement.”37 In many cases, the
FTC proceeds through its administrative trial process for decisions
on the merits, culminating in judicial review by a circuit
court.38 Section 13(b) provides a shortcut for the FTC
to file directly in federal district court to seek a temporary
restraining order, preliminary injunction, or permanent
injunction.39 In AMG Capital Management, the
FTC filed an action under Section 13(b) against a payday lender and
requested the court order a permanent injunction as well
restitution and disgorgement.40 The district
court imposed the requested remedies, and Ninth Circuit affirmed on
the basis that Section 13(b) had been interpreted to empower courts
to “grant any ancillary relief necessary to accomplish
complete justice, including restitution,” although some
circuit judges acknowledged that the precedent was mixed on this
point.41 Ultimately, the Supreme Court granted AMG
Capital Management’s petition for certiorari and declined to
read Section 13(b) so broadly. The Court held that the FTC may not
seek equitable monetary relief directly in federal court, but must
first proceed through its administrative process.42

Private Remedies. The Fourth Circuit
validated a district court’s use of divestiture as a remedy for
anticompetitive acquisitions in private litigation when it upheld a
divestiture order by for a court in the Eastern District of
Virginia in a private challenge to a consummated
acquisition.43 After Plaintiff Steves & Sons, Inc.
prevailed in a 2018 jury trial, the court ordered a divestiture to
resolve concerns about the loss of head-to-head competition for
molded interior doors and doorskins arising from the 2012 merger of
JELD-WEN and Craftmaster International.44 Calling the
underlying transaction “a poster child for
divestiture,”45 the Fourth Circuit held that
district courts are empowered to craft remedies that serve the
broader public purpose of protecting competition, including by
requiring divestiture.46 The Fourth Circuit declined to
rehear the petition en banc in March

Procedural Standards Clarified

2021 saw important developments in class certification
jurisprudence as well.

  • In April 2021, the Ninth Circuit vacated class certification in
    Olean Wholesale Grocery Cooperative v. Bumble Bee Foods,
    holding that, under Rule 23(b)(3)’s predominance requirement, a
    district court must find that the proposed class contains no more
    than a “de minimis” number of uninjured class
    members.48 The three-judge panel ruled that the district
    court abused its discretion when it “gloss[ed] over the number
    of uninjured class members,” ordering the lower court on
    remand to determine the number of uninjured members.49
    The court did not define a threshold for “de minimis,”
    but cited recent precedents for the proposition that “5% to 6%
    constitutes the outer limits of a de minimis
    number,”50 and instructed that under “any
    rubric, if Plaintiffs’ model is unable to show impact for more
    than one-fourth of the class members, predominance has not been
    met.”51 This decision, however, was vacated in
    August when the Ninth Circuit granted a rehearing en
    .52 An en banc decision is now
  • In September 2021, the Ninth Circuit vacated another class
    certification order in Stromberg v. Qualcomm, the consumer
    class action follow on to FTC v. Qualcomm, concluding that
    common issues of law did not predominate over the proposed class of
    250 million indirect purchasers alleging that Qualcomm’s
    anticompetitive licensing practices caused them to overpay for
    cellphones.53 The Ninth Circuit held that the district
    court misapplied California’s choice of law rules, which
    required the district court to determine whether non-Illinois
    repealer states had a strong interest in applying their
    own law to consumers purchasing cellphones within their
    borders-“[b]y applying California law to the nationwide class
    of indirect purchasers, the district court improperly impaired
    non-repealer state policy by allowing California to set antitrust
    enforcement policy for the entire country.”54
    Because the application of varying state laws would undermine
    predominance for purposes of Rule 23(b)(3), the Ninth Circuit
    vacated the district court’s order, instructing the district
    court on remand to (1) determine whether the Ninth Circuit’s
    conclusion in FTC v. Qualcomm that Qualcomm’s
    licensing practices are not anticompetitive defeats the class on
    Rule 23(a) grounds, and (2) if Rule 23(a)’s requirements are
    met, then to reconduct the choice of law
  • In August 2021, the Fourth Circuit, in In re Zetia
    (Ezetimibe) Antirust Litigation
    , vacated an order certifying a
    direct purchaser class consisting of only thirty-five
    purchasers.56 The appellate court held that this class
    did not satisfy Rule 23’s requirement that “a class be
    ‘so numerous that joinder of all members is
    impracticable.'”57 Notably, the circuit
    explained that practicality should not be measured against the
    practicality of individual trials for each class member; rather the
    efficiency of proceeding as a class should be analyzed in
    comparison to what would occur under traditional
    joinder,58 which allows plaintiffs to join actions when
    they share common questions of law or fact arising out of the same
    set series of occurrences without regard to their

In addition, in TransUnion v. Ramirez, a class action
alleging that TransUnion failed to use reasonable procedures to
ensure the accuracy of credit files in violations of the Fair
Credit Reporting Act, the Supreme Court returned to the doctrine of
standing to reaffirm the principle, “No concrete harm, no
standing.”60 Whereas the Ninth Circuit had held
that all members of the purported class were harmed when their
privacy, reputational, and informational interests were put at
risk, the Supreme Court held that only those plaintiffs who
actually provided credit reports to businesses could claim concrete
harm.61 Further, the Court noted that “[w]e do not
here address the distinct question whether every class member must
demonstrate standing before a court certifies a
class.”62 Circuits are split on this question, but
this precedent may lend support to class-specific arguments that
individualized issues of standing may predominate over common
questions. The Supreme Court may well take up this issue up in a
future case.


More Sports Cases on the Horizon

Antitrust litigation in the sports world will remain in the
headlines next year. Following its victory over the City of
Oakland, the National Football League faces a new antitrust
challenge in Casey’s Distributing v NFL and
Hastings v. NFL.63 Plaintiffs, one merchant and
one consumer, filed separate complaints alleging that the NFL, each
NFL team, and the merchandise retailer Fanatics conspired to
restrain other retailers from selling NFL merchandise on Amazon
marketplace.64 According to Plaintiffs, NFL and Fanatics
have forced merchandise licensees to boycott non-licensed retailers
that re-sell NFL merchandise on e-commerce platforms like Amazon
Marketplace.65 These cases implicate the power of
legitimate joint ventures to control downstream distribution of
their products. They will also create interesting questions about
relevant markets (like those in Fusion Elite All Stars v.
Varsity Brands
) as plaintiffs have alleged narrow relevant
markets: (1) “The relevant product market is the Amazon-based
third-party online retail market for Products bearing the
Intellectual Property of the NFL or any NFL team”66
and (2) “online retail market for NFL Licensed Products in the
United States.”67

The NFL will not be the only professional sports league in the
headlines. At the end of 2021, four minor league clubs challenged a
Major League Baseball decision to reduce the number of affiliated
minor league teams.68 The complaint is aimed directly at
the 1922 Supreme Court precedent69 that exempted
baseball from antitrust scrutiny.70 Although the
challenge raises issues of stare decisis, the Court’s
decision in NCAA v. Alston might signal an openness to
overturning the earlier precedent. Also, early in January 2022, a
former minor league baseball player filed a class action suit
against the MLB alleging that MLB and its constituent teams
“openly collude to restrict and depress, at below market
rates, the wages and compensation they pay their minor league

More Tech Sector Challenges Unfolding

Beyond the FTC’s renewed challenge to Facebook’s past
acquisitions, antitrust observers have much to watch in 2022. These
cases have the potential for broader implications beyond the tech
sector on issues like antitrust standing, statute of limitations,
platform competition, monopolization, most favored nation clauses,
and the intersection between competition and privacy.

  • Various federal and state enforcers have pending litigations
    against Google including (1) a October 2020 challenge by DOJ
    related to Google search and Google ads,72 (2) a
    December 2020 lawsuit by Texas AG related to digital advertising
    tools,73 (3) a case brought by multiple attorneys
    general related to Google search in December 2020,74 (4)
    and a July 2021 complaint by various attorney general related to
    the Google Store.75
  • The DC attorney general filed a case against Amazon in May
    2021, alleging that most favored nation clauses imposed by Amazon
    on third party sellers violate the DC Antitrust
  • Epic Games is pursuing a challenge against Google.77
    Similar to its challenge against Apple discussed above, Epic Games
    also filed suit against Google relating to the Google Play
  • In re Apple iPhone Antitrust Litigation produced a
    notable Supreme Court decision applying the Illinois Brick doctrine
    in 2019.79 In the underlying action, in which iPhone
    owners alleged Apple unlawfully monopolized the aftermarket for
    iPhone apps, a hearing on class certification was held on November
    16, 2021.80
  • Private lawsuits against Facebook continue as well. In
    Reveal Chat v. Facebook, app developers appealed the
    Northern District of California’s January 2022 dismissal of
    monopolization claims against Facebook on statute of limitations
    grounds.81 In Klein v. Facebook, consumers and
    advertisers are proceeding with their monopolization claims after
    defeating a motion to dismiss in January 2022.82

More Labor Cases Anticipated

Back in 2016, DOJ and FTC issued joint guidance asserting that
DOJ would seek criminal enforcement against so-called
“naked” (i.e., not reasonably necessary to a legitimate
collaboration) wage-fixing or no-poaching agreements.83
In April 2018, DOJ stated that it would decline to pursue criminal
enforcement for no-poach agreements terminated before the 2016
guidance.84 At the end of 2020, DOJ filed a criminal
indictment against a therapist staffing company owner and the
clinical director of a client company for a conspiracy to fix
prices.85 As our colleagues have discussed in a previous Advisory, the defendants raised
three arguments in their motion to dismiss: (1) the wage-fixing is
not a per se violation, (2) defendants did not have
“fair warning” that their conduct could lead to criminal
prosecution, and (3) the per se standard itself violates
the Sixth Amendment right to a jury because it precludes the jury
from deciding the defendants’ intent. However, a court in the
Eastern District of Texas ruled against defendants on each
argument.86 This result validates the DOJ’s approach
and may lead to further criminal enforcement proceedings regarding
agreements that restrain competition for labor. Meanwhile civil
litigation over labor competition is also ongoing, including three
class actions filed in the District of Connecticut against Raytheon
in response to reports of a DOJ criminal investigation into the
defense contractor’s hiring practices.87 As labor
market competition has become a point of focus for the Biden
administration, these cases may inform future enforcement and
future compliance programs.

Merger Litigation Decisions

FTC has two pending challenges against vertical mergers, which
have been another hot topic for antitrust practitioners in recent
years. Both are proceeding in the FTC’s administrative process.
In the Matter of Illumina Inc. went to trial in August
2021 and a decision from the FTC administrative law judge is
pending. In the Matter of Nvidia Corporation is scheduled
for trial in August 2022. DOJ also has pending challenges to
horizontal mergers involving Penguin Random House/Simon &
Shuster, and US Sugar/Imperial Sugar, as well as an alliance
agreement between American Airlines and Jet Blue.

Remedies Available to State Attorneys General in Question

In the wake of AMG Capital Management v. FTC,
defendants in In re Generics Pharmaceuticals Pricing Antitrust
(MDL No. 2724) filed a notice of supplemental
authority in support of their motion to dismiss. Defendants argued
that disgorgement is not an available remedy to state attorneys
general in light of the Supreme Court’s limitation on FTC
remedies in AMG Capital Management LLC, et al v. Federal Trade
.88 Plaintiff state attorneys general
responded with an emphasis on the specificity of the Supreme
Court’s decision and the inapplicability of any FTC Act
statutory interpretation to the interpretation of remedies
available under state statutes.89 In December 2021, a
court in the Eastern District of Pennsylvania granted the parties
permission to brief the question.90 Defendants’
motion to dismiss remains pending at the time of publication.

Federal Trade Commission Administrative Trials

In January 2022, the Supreme Court partially granted certiorari
in Axon Enterprises v. Federal Trade
.91 Faced with an FTC challenge to its
acquisition of fellow bodycam manufacturer Vievu,92 Axon
filed an action in district court to challenge the
constitutionality of FTC’s administrative trial venue. Axon
argued that the FTC’s combined role of prosecutor and
adjudicator violates due process, that disparate forums between DOJ
and FTC enforcement violates equal protection, and that
Administrative Law Judges are protected by “an impermissible
dual-layer of insulation.”93 The district court
granted FTC’s motion to dismiss in April 2020.94 In
January 2021, the Ninth Circuit affirmed, holding that the district
court jurisdiction over constitutional claims against the FTC
administrative process was implicitly precluded by Congress when
meaningful judicial review will be available when the
administrative process is complete.95 The Supreme Court
agreed to hear this jurisdictional question-whether Congress
implicitly precluded judicial review over these constitutional
claims-but not the constitutional challenge itself.96
This case follows on AMG Capital Management and may
provide additional clarity on the bounds of FTC enforcement

*Dylan Young contributed to this Advisory. Mr. Young is a
graduate of The George Washington University School of Law and is
employed at Arnold & Porter’s New York office. Mr. Young is
admitted only in Washington, DC. He is not admitted to the practice
of law in New York.


1. FTC v. Facebook, Inc., No. 20-3590 (D.D.C.);
New York v. Facebook, Inc., No. 20-3589

2. New York v. Facebook, Inc., No. CV 20-3589
(JEB), 2021 WL 2643724, *18 (D.D.C. June 28, 2021).

3. FTC v. Facebook, Inc., No. CV 20-3590 (JEB),
2021 WL 2643627, at *10 (D.D.C. June 28, 2021).

4. Brief for Appellants at 18, New York v. Facebook,
., No. 21-7078 (D.C. Cir. Jan. 14, 2022).

5. Fed. Trade Comm’n v. Facebook, Inc., No.
CV 20-3590 (JEB), 2021 WL 2643627, at *13-14 (D.D.C. June 28,

6. Id. at *14

7. Id. at *18.

8. FTC v. Facebook, Inc., 2022 WL 103308, *6
(D.D.C. Jan. 11, 2022).

9. Id. at *12.

10. Id. at *14-15.

11. Rule 52 Order After Trial on the Merits, Epic
Games, Inc. v. Apple Inc.
, No. 4:20-cv-05640-YGR (N.D. Cal.
Sep. 10, 2021).

12. Id.

13. Id.

14. Dkt. 816 (Notice of Appeal, Epic Games) & Dkt 817
(Notice of Appeal, Apple), Epic Games, Inc. v. Apple Inc.,
4:20-cv-05640 (N.D. Cal.).

15. Dkt 841, Epic Games, Inc. v. Apple Inc.,
4:20-cv-05640 (N.D. Cal.).

16. Nat’l Collegiate Athletic Ass’n v.
, 141 S. Ct. 2141 (2021).

17. Id. at 2160.

18. Id. at 2166.

19. Id. at 2158-60.

20. Id. at 2167-2169.

21. Press Release, NCAA, NCAA adopts interim name, image and likeness
(June 30, 2021).

22. City of Oakland v. Oakland Raiders, 20 F.4th
441 (9th Cir. 2021). Arnold & Porter represented the Raiders
and Partner Daniel Asimow argued the case in the Ninth

23. Id. at 448-51.

24. Id. at 453-55.

25. Id.

26. Id. at 455-461.

27. Id. at 458-59 & n.11; id. at 465 & n. 1
(Bumatay, J., concurring).

28. Id. at 461 (Bumatay, J., concurring).

29. Id. at 462-63 (Bumatay, J., concurring).

30. Decision, Fusion Elite All Stars v. Varsity
s, No. 2:20-cv-02600-SHL-cgc (W.D. Ten. Aug. 26, 2021),
ECF 141

31. Decision at 11-12, Fusion Elite All Stars v.
Varsity Brand
s, No. 2:20-cv-02600-SHL-cgc (W.D. Ten. Aug. 26,
2021), ECF 141.

32. Decision at 12-13, Fusion Elite All Stars v.
Varsity Brands
, No. 2:20-cv-02600-SHL-cgc (W.D. Ten. Aug. 26,
2021), ECF 141.

33. No. 19-05822, 2021 WL 1817092 {2021 US Dist LEXIS
87085} at *9 (ND Cal 6 May 2021)

34. No. 1:15-cv-6549, 2021 WL 2403727 {2021 US Dist LEXIS
110081} (SDNY 11 June 2021).

35. In re Namenda Indirect Purchaser Antitrust
, No. 1:15-CV-6549-CMR-WL, 2021 WL 2403727, at *24
(S.D.N.Y. June 11, 2021)

36. In re EpiPen (Epinephrine Injection, USP) Mktg.,
Sales Pracs. & Antitrust Litig.
, No. 17-MD-2785-DDC-TJJ,
2021 WL 2585065, *58 (D. Kan. June 23, 2021).

37. AMG Capital Management LLC et al v. F.T.C., slip op.
at 6, No 19-508 (S. Ct. April 22, 2021).

38. Id. at 3-4.

39. Id. at 8-9 (citing sections 5 and 19 of the FTC

40. Id. at 3.

41. Id. at 4.

42. Id. at 6.

43. Steves and Sons v. Jeld-Win, Inc., No. 19-1397 (4th
Cir. Feb, 18, 2021), ECF. 92.

44. Steves & Sons, Inc.,. v. JELD-WEN, Inc., 345 F.
Supp. 3d 614 (E.D. Va. 2018).

45. Id. at 54.

46. Id. at 46-47.

47. Order, Steves and Sons v. JELD-WEN, Inc.,
No. 19-1397 (4th Cir. Mar. 22, 2021).

48. 2021 WL 1257845 at *10.

49. Id.

50. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee
Foods LLC
, 993 F.3d 774, 792 (9th Cir.) (citing In re Rail
Freight Fuel Surcharge Antitrust Litig.
, 934 F.3d 619, 624-25
(D.C. Cir. 2019)).

51. 993 F.3d at 793.

52. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee
Foods LLC
, 5 F.4th 950 (9th Cir. 2021).

53. No. 19-15159 (9th Cir. Sep. 29, 2021)

54. Id. at 31.

55. Id. at 18-20.

56. In re Zetia (Ezetimibe) Antirust Litigation, No.
20-2184, slip op. (4th Cir. Aug. 4, 2021).

57. Id. at 7 (quoting Fed. R. Civ. P.

58. Id. at 8-11.

59. Fed. R. Civ. Pro. 20.

60. TransUnion v. Ramirez, slip op. at 27, No.
20-297 (S. Ct. June 25, 2021).

61. TransUnion v. Ramirez, slip op. at 27, No.
20-297 (S. Ct. June 25, 2021).

62. Id. at 15, n.4.

63. Complaint, Casey’s Distributing Inc. v NFL
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21, 2021); Complaint,
Hastings v. NFL Inc., No. 3:221-cv-09908 (N.D. Cal. Dec.
21, 2021).

64. Complaint, Casey’s Distributing Inc. v NFL
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21, 2021); Complaint,
Hastings v. NFL Inc., No. 3:221-cv-09908 (N.D. Cal. Dec.
21, 2021).

65. Complaint ¶ 93, Casey’s Distributing
Inc. v NFL Inc.
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21,

66. Complaint ¶ 131, Casey’s Distributing
Inc. v NFL Inc.
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21,

67. Complaint ¶ 133, Hastings v. NFL Inc.,
No. 3:221-cv-09908 (N.D. Cal. Dec. 21, 2021).

68. Complaint, Nostalgic Partners et al v. Office of
the Comm’ner of Baseball
, No. 1:21-cv-10876 (S.D.N.Y. Dec.
20, 2021).

69. Fed. Baseball Club of Baltimore v. Nat’l
League of Pro. Base Ball Clubs
, 259 U.S. 200

70. Complaint ¶ 4, Casey’s Distributing Inc.
v NFL Inc.
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21, 2021)
(“The time is at hand to cast the baseball exemption into the
dustbin of antitrust history.”).

71. Complaint ¶ 2, Casey’s Distributing Inc.
v NFL Inc.
, No. 3:21-cv-09905 (N.D. Cal. Dec. 21,

72. US et al v. Google LLC, No. 1:20-cv-03010
(D.D.C. Oct. 20, 2020).

73. Texas et al v. Google LLC, No. 4:20-cv-00957
(E.D. Tex. Dec. 16, 2020).

74. Colorado et al v. Google LLC, No.
1:20-cv-03715 (Dec. 17, 2020).

75. Utah et al v. Google LLC, No. 3:21-cv-05227
(N.D. Cal. July 7, 2021).

76. D.C. v. Amazon, No. 2021-CA-001775-B (D.C.
Sup. Ct.).

77. Epic Games, Inc. v. Google LLC et al, No.
3:20-cv-05671 (N.D. Cal.).

78. Epic Games, Inc. v. Google LLC et al, No.
3:20-cv-05671 (N.D. Cal.).

79. Apple Inc. v. Pepper, 139 S. Ct. 1514

80. Minute Entry for Proceedings, In re Apple iPhone
Antitrust Litigation
, No. 4:11-cv-06714 (Nov. 16, 2021), ECF.
Nos. 589, 594.

81. Plaintiff-Appellants’ Opening Brief, Reveal
Chat Holdco LLC v. Facebook, Inc.
, No. 21-15863 (9th Cir. Aug.
23, 2021); Order, Reveal Chat Holdco LLC et al v. Facebook,
, No. 20-cv-00363-BLF (N.D. Cal. April 26,

82. Order, Klein, et al v. Facebook, Inc., No.
20-CV-08570-LHK (N.D. Cal. Jan. 14, 2022).

83. DOJ & FTC, Antitrust Guidance for Human Guidance
(Oct. 2016).

84. Stipulation and Consent, US v.
Knorr-Bremse AG
, No. 1:18-cv-00747 (D.D.C. Apr. 3,

85. Memorandum Opinion and Order, US v. Jindal,
No: 4:20-cr-00358 (E.D. Tex. Nov. 29, 2021).

86. Memorandum Opinion and Order, US v. Jindal,
No: 4:20-cr-00358 (E.D. Tex. Nov. 29, 2021).

87. Granata v. Pratt & Whitney, et al, No.
3:21-cv-01657 (D. Conn. Dec. 14, 2021); Conroy et al v. Agilis
et al
, No. 3:21-cv-01659 (D. Conn. Dec. 14, 2021);
Lancaster et al v. Agilis et al, No. 3:22-cv-00051 (D.
Conn. Jan. 11, 2022).

88. Defendants Notice of Supplemental Authority in
Support of Defendants Joint Motions to Dismiss, In re Generic
Pharmaceuticals Pricing Antitrust Litigation
, MDL No. 2724,
No. 17-3768 (E.D. Pa.), 2:17-cv-03768-CMR, ECF Nos. 231, 238,

89. States Responses to Defendants Notice of Supplemental
Authority in Support of Defendants Joint Motions to Dismiss, In
re Generic Pharmaceuticals Pricing Antitrust Litigation
No. 2724, No. 17-3768 (E.D. Pa.), No. 2:17-cv-03768-CMR, ECF Nos.
237, 259, 261.

90. Order, In In re Generic Pharmaceuticals Pricing
Antitrust Litigation
, No. 17-3768 (E.D. Pa. Dec. 2, 2021),
ECF. No. 256.

91. Supreme Court Order List at 3 (Jan. 24, 2022);
Petition for Writ of Certiorari, Axon
Enterprises v FTC
(S. Ct., July 20, 2021), ; Axon v. FTC, No.
2:20-cv-00014 (D. Ariz. Jan. 3, 2020).

92. Complaint, In the Matter of Axon, No.
D-9389 (FTC Jan. 3, 2020).

93. Complaint, Axon v. FTC, No. 2:20-cv-00014 (D. Ariz.
Jan. 3, 2020); Plaintiff’s Motion for Preliminary Injunction,
Axon v. FTC, No. 2:20-cv-00014 (Jan. 9, 2020).

94. Order, Axon v. FTC, No. 2:20-cv-00014 (D Ariz.
Apr. 8, 2020).

95. Axon Enter., Inc. v. Fed. Trade Comm’n,
986 F.3d 1173 (9th Cir. 2021).

96. Supreme Court Order List at 3 (Jan. 24, 2022);
Petition for Writ of Certiorari, Axon
Enterprises v FTC
(S. Ct., July 20, 2021).

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