Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS—S.D.N.Y.: Epogee acquisition challenge dismissed with prejudice for market definition and harm to competition implausibilities, (Nov 3, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Third Amended Complaint was an unsuccessful reprise of "repeated failure to cure deficiencies by amendments previously allowed” and warranted dismissal with prejudice.

The federal district court in New York City has dismissed the Third Amended Complaint in a challenge to the acquisition of a protein manufacturer by a food manufacturer. The complaint did not plausibly plead a relevant product market or harm to competition, thereby foreclosing the Sherman Act and Clayton Act allegations. For the same reasons, the New York state antitrust allegations also failed. Finding that giving the plaintiffs leave to file yet another amended complaint would be futile, the entire complaint was dismissed with prejudice and the case was closed (Own Your Hunger LLC v. Linus Technology, Inc., No. 1:25-cv-04544-VM-GWG (S.D.N.Y. Nov. 2, 2026)).

Background. Esterified propoxylated glycerol (EPG) is a plant-based fat substitute from which the human body's enzymatic digestive processes derive fewer calories than from other types of fats. Epogee LLC (Epogee) holds patents on the manufacture of EPG, and is its sole producer. Linus Technology, Inc., d/b/a David Protein (David Protein), manufactures health food products containing EPG. In May 2025, David Protein acquired Epogee.

OWN Your Hunger LLC (OWN) and Defiant Foods, LLC (Defiant Foods) are manufacturers of food products that contain EPG as an ingredient. A few weeks after Epogee was acquired by David Protein, Epogee, purportedly experiencing uncertainties in delivery of raw materials for its manufacture of EPG, ceased filling supply orders from OWN and Defiant Foods, and other customers as well. On June 2, 2025, OWN and Defiant Foods brought suit against David Protein and Epogee, alleging Sherman Act and Clayton Act violations, and also alleging violation of New York State's antitrust statute, the Donnelly Act [N.Y. Gen. Bus. Law § 340]; a temporary restraining order (TRO) was also sought. The TRO was denied, and the plaintiffs filed an amended complaint addressing the court's concerns in its denial of the TRO.

A Second Amended Complaint was filed on July 17, 2025; it was dismissed on February 4, 2026, along with another motion for preliminary injunction. On March 17, 2026, over the objections of OWN and Defiant Foods, the court granted Epogee and David Protein leave to file a Third Amended Complaint in order to better address the deficiencies in defining the relevant product market that led to the dismissal of the Second Amended Complaint. The Third Amended Complaint was filed on April 1, 2026.

Relevant Market. There being no cavil that the relevant geographic market was the United States, the judge ruled that the Third Amended Complaint's definition of a relevant product market was implausible. Here, the product market was defined as "High-CFP Protein Bars, defined as protein bars that exceed the physical CFP (Calories from Protein) ceiling achievable with traditional fats and fall within the physical CFP ceiling achievable with EPG". By that definition, the only product in the market was protein bars that contained EPG, of which David Protein is the only manufacturer. EPG is the defining ingredient in the product.

Additionally, there was no inclusion of reasonably interchangeable products. On this issue, the complaint implicitly stated that consumers might purchase substitute protein bar food items containing protein from sources other than EPG, but the complaint failed to explain why such products would not be included in the relevant market. The complaint thus defined the relevant product market from the perspective of the manufacturer, and not from the standpoint of the consumers.

Harm allegations. The court found that the Third Amended Complaint (TAC) failed to plausibly allege harm to give OWN and Defiant Foods antitrust standing. By the TAC itself, the supply of EPG by Epogee to David Protein was not an exclusive dealing arrangement because other customers' orders continued to be delivered even after the acquisition of Epogee by David Protein. Epogee's raw materials procurement issues acknowledged in the TAC were not exacerbated by the acquisition.

Furthermore, the TAC acknowledged that the prices of David Protein's products remained steady after the acquisition; the Complaint's assertions that David Protein would have decreased its price had the acquisition never occurred was unsubstantiated speculation. Although David Protein remained the only market participant following the acquisition after Epogee ceased filling the EPG orders of other protein bar manufacturers, "a reduction in the number of alleged market participants is not the same as a reduction in output in the high-CFP protein bar market." Additionally, there was evidence that the production of high-CFP protein bars may actually have increased following the acquisition.

Moreover, the transaction was a vertical merger, and therefore did not in and of itself eliminate any competitors from the market or impose any restrictions upon market supply over and above those that previously pertained. Epogee's favoring of David Protein in filling EPG orders was an allocation of Epogee's limited supply of its product, and did not constitute an illegal monopolization under Section 2 of the Sherman Act. No harm to competition was plausibly alleged in the TAC.

The Case is No. 1:25-cv-04544-VM-GWG.

Judge: Marrero, V.

Attorneys: Brittany Meyer (Brittany Meyer, Attorney at Law)for OWN Your Hunger LLC. Peter L. Simmons (Fried, Frank, Harris, Shriver & Jacobson LLP) for Peter Rahal.

Companies: OWN Your Hunger LLC

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