Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Intervention motion granted in closed FTC case against Pepsico, (Aug 6, 2025)

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

After the case was closed by the FTC's voluntary dismissal, there remained an extensively sanitized version of the complaint which a public interest activist group sought to unseal.

The federal district court in New York City has granted a motion by a public interest group to intervene in a closed case for the purpose of unsealing a heavily edited-out complaint. The public interest group's motion, detailed in the supporting memorandum of law, argued that its intervention was appropriate, and would promote the public policy of transparency in judicial records. The court granted the motion to intervene, and gave all parties a deadline to file any opposition to granting the motion (FTC v. PepsiCo Inc., No. 1:25-cv-00664-JMF (S.D.N.Y. Aug. 5, 2025)).

Background. On January 17, 2025, the FTC announced that it was filing a lawsuit against Pepsi, alleging that Pepsi is violating the Robinson-Patman Act and the FTC Act by giving illegal pricing advantages to a large national retailer, and seeking a permanent injunction and related relief against Pepsi. The FTC commissioners' vote to commence the lawsuit was deeply divided on political party lines, with the Republican commissioners then in the minority expressing vehement disagreement over the validity of the action and the strength of the FTC's case. Three days after the FTC's announcement, Donald Trump was inaugurated for his second term as President. The complaint was filed in the Southern District of New York on January 23, 2025 in a heavily redacted form; 20 of the 24 pages had some of the text blacked out, and the blackouts also included the three graphic illustrations in the complaint. On January 24, 2025, Pepsi was ordered to submit a written justification for the complaint to remain under seal, if Pepsi so desired, on or before its deadline to file an answer to the complaint.

Pepsi's deadline to file an answer was extended to May 23, 2025. On May 22, 2025, the day before Pepsi was required to answer the complaint, the FTC, by then composed solely of Republican commissioners, voluntarily dismissed the complaint and the case was ordered closed.

The Institute for Local Self-Reliance (ILSR) is a tax-exempt organization that "advocates for policies that recognize the importance of local, independent businesses to the vitality and well-being of communities, including by broadening opportunity, enhancing economic growth, increasing innovation, and fostering civic engagement and social cohesion." ILSR's recent activities have notably included strong advocacy for stronger enforcement the Robinson-Patman Act. On August 4, 2025, the ILSR moved to intervene in the closed case in order to have the complaint unsealed.

Permissive intervention. In its accompanying memorandum of law, the ILSR asserted that its intervention motion was timely. Because the case had been closed, there was no risk of prejudice to either Pepsi or the FTC.

Additionally, the ILSR notes that it "has devoted decades to advancing policies that protect the interests of small businesses and consumers like those that appear to be the victims of the price discrimination described in the FTC’s Complaint," and accordingly "has a significant interest in understanding the full scope and nature of the alleged scheme, the identity of the participants, and how ILSR’s stakeholders were impacted by the conduct of those participants." These interests, which are also shared by the public at large, are not adequately represented by any other party that is or has been involved in the case. Permissive intervention by ILSR is accordingly warranted.

Access to judicial records. The ILSR's brief highlights the salience of public access to judicial records. There is no question that the complaint is a judicial record, and there is a strong presumption that judicial records should be accessible to the public. The brief notes that at the time the case was closed, Pepsi had yet to comply with the court's order to explain why the blackouts in the complaint document are "consistent with the presumption in favor of public access to judicial documents." The ILSR insists that "Pepsi Bears the Onus of Justifying Every Redaction in the Complaint."

The Case is No. 1:25-cv-00664-JMF.

Judge: Furman, J.

Attorneys: Nicolas Arnold Stebinger for the FTC. Aha In Lee (Gibson, Dunn & Crutcher, LLP) for PepsiCo, Inc.

Companies: PepsiCo, Inc.

News: Antitrust FederalTradeCommissionNews NewYorkNews