Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: D.E. Shaw’s Geneva antitrust claims dismissed as time-barred and protected by Noerr-Pennington immunity, (Jul 27, 2026)

By Martin A. Steinberg, J.D.

D.E. Shaw’s counterclaims alleged that SS&C used restrictive Geneva software licensing, hosting and maintenance arrangements to monopolize portfolio-accounting markets.

The federal district court in New York City dismissed D.E. Shaw & Co.’s counterclaims accusing SS&C Technologies Holdings and its Advent Software subsidiary of using restrictive Geneva portfolio-accounting software agreements to monopolize or attempt to monopolize markets for portfolio-accounting software, Geneva hosting and Geneva maintenance. The court held that the claims based on licensing, hosting, and maintenance provisions accrued when the parties entered the challenged contracts in 2003 and 2014 and were therefore barred by the four-year antitrust statute of limitations. It rejected D.E. Shaw’s argument that SS&C’s 2020 refusal to renew a reseller agreement and its 2023 termination of maintenance services constituted new overt acts that restarted the limitations period, and found that the alleged damages were calculable when the contracts were executed. The court also held that D.E. Shaw’s remaining de facto exclusive-dealing theory, which rested on SS&C’s assertion of trade-secret claims in litigation, was barred by Noerr-Pennington immunity. After dismissing the federal antitrust claims, the court declined to exercise supplemental jurisdiction over the remaining breach-of-contract and California unfair-competition claims and dismissed them without prejudice (SS&C Technologies Holdings, Inc. v. D.E. Shaw & Co., L.P., No. 1:23-cv-09158-TMR-OTW (S.D.N.Y. Jul. 24, 2026)).

Background. D.E. Shaw & Co. is a global asset manager, while SS&C Technologies Holdings provides financial-services software and owns Advent Software. Through Advent, SS&C develops and licenses Geneva, portfolio-accounting software that D.E. Shaw has used since 2003 under a fully paid-up, perpetual license. Geneva may be operated internally or through a third-party hosting provider.

In 2014, the parties amended the license to permit third-party hosting, but barred D.E. Shaw from using a provider that competed with an SS&C portfolio-accounting product. D.E. Shaw later selected Arcesium as its host. Although SS&C separately authorized Arcesium to resell Geneva in 2015, D.E. Shaw continued to rely on its own 2003 license. SS&C declined to renew Arcesium’s reseller agreement in 2020.

That year, Arcesium introduced competing portfolio-accounting software called UBOR. D.E. Shaw continued using Arcesium to host Geneva until SS&C prohibited the arrangement, prompting D.E. Shaw to change providers between late 2021 and late 2022.

SS&C also provides Geneva maintenance, including updates, bug fixes and technical support. D.E. Shaw alleged that only SS&C could supply essential updates and fixes. After paying annual maintenance fees from 2003 through 2023, D.E. Shaw lost access to those services in October 2023 and continued operating what it described as an outdated, unsupported version of Geneva.

Procedural history. The dispute arose from D.E. Shaw’s license to use SS&C’s Geneva portfolio-accounting software. SS&C filed suit in October 2023, asserting claims under the Defend Trade Secrets Act, common-law trade-secret misappropriation, and breach of contract. In June 2025, the court granted in part and denied in part D.E. Shaw’s motion to dismiss. D.E. Shaw then answered and asserted five counterclaims.

In February 2026, the court granted D.E. Shaw judgment on the pleadings and dismissed SS&C’s amended complaint. D.E. Shaw amended its counterclaims twice, with the second amended counterclaims becoming the operative pleading. SS&C moved to dismiss those counterclaims, which alleged monopolization, attempted monopolization, unlawful tying, breach of contract, and violation of California’s Unfair Competition Law.

Antitrust counterclaims. D.E. Shaw asserted monopolization, attempted-monopolization, and tying claims under Section 2 of the Sherman Act, alleging anticompetitive conduct in markets for portfolio-accounting software, Geneva hosting, and Geneva maintenance.

It defined “complex funds” as investment funds with more than $5 billion in assets under management and substantial multi-asset trading activity, which allegedly require more sophisticated accounting software. D.E. Shaw claimed that SS&C’s Geneva competed in this market and that SS&C used exclusive and de facto exclusive dealing to obtain or maintain monopoly power.

Geneva hosting aftermarket. D.E. Shaw alleged a distinct aftermarket for the infrastructure and services required to operate Geneva. Geneva could be hosted internally or by a third party. D.E. Shaw initially hosted Geneva on its own premises and later selected Arcesium as its third-party hosting provider. D.E. Shaw alleged that Arcesium competed with SS&C in the Geneva hosting aftermarket because both offered services for operating Geneva. It claimed that SS&C used restrictions on approved hosting providers to control that aftermarket.

Geneva maintenance aftermarket. D.E. Shaw also alleged a separate aftermarket for Geneva maintenance services. According to D.E. Shaw, only SS&C could provide essential services such as critical software updates and bug fixes, while third parties could provide only general technical support. D.E. Shaw claimed that SS&C used its control over essential maintenance to obtain monopoly power in that aftermarket.

Statute of limitations. Private antitrust claims must be brought within four years after they accrue. Because D.E. Shaw’s counterclaims were compulsory and arose from the same agreements and conduct as SS&C’s original claims, the court measured timeliness from October 18, 2019, four years before SS&C filed suit. Claims accrued earlier were barred unless an exception applied.

The court explained that a contract-based antitrust claim ordinarily accrues when the challenged agreement is executed. Later conduct restarts the limitations period only if it is a new and independent overt act causing new injury, while delayed accrual is available only when damages were too speculative to calculate. D.E. Shaw argued that both exceptions applied.

Injury to competition. D.E. Shaw alleged exclusive and de facto exclusive dealing in the portfolio-accounting software market and tying in the Geneva hosting and maintenance aftermarkets. The court held that the exclusive-dealing and hosting-tying claims arose from the 2014 amended license, while the maintenance-tying claim arose from the 2003 agreement, placing all three outside the limitations period unless an exception applied. The de facto exclusive-dealing theory was also untimely to the extent it relied on the 2003 data-ownership provisions, although the court separately considered whether its litigation-based component was barred by Noerr-Pennington immunity.

Overt acts. D.E. Shaw argued that two later events constituted new overt acts that restarted the limitations period: SS&C’s 2020 refusal to renew its hosted reseller agreement with Arcesium and SS&C’s 2023 termination of D.E. Shaw’s maintenance services. The court held that SS&C’s refusal to renew the reseller agreement with Arcesium did not restart the limitations period. D.E. Shaw licensed Geneva under its own 2003 agreement, not under the reseller agreement between SS&C and Arcesium. Accordingly, nonrenewal of the reseller agreement did not alter D.E. Shaw’s Geneva license.

The court also found that D.E. Shaw had not plausibly connected the nonrenewal to any new injury involving its access to hosting services. The reseller agreement governed Arcesium’s rights, while D.E. Shaw’s right to use third-party hosting arose under the 2014 amended license. D.E. Shaw therefore failed to show that the 2020 nonrenewal caused the later costs associated with changing hosting providers.

Termination of Geneva maintenance services. The court similarly held that the 2023 termination of maintenance services was not a new overt act supporting the maintenance tying claim. The alleged tying occurred in 2003, when essential and optional maintenance services were bundled together. The 2023 termination did not reimpose or restructure that bundle. Instead, it ended D.E. Shaw’s access to both categories of maintenance services. D.E. Shaw’s annual payments under the existing agreement were merely continuing effects of the original contractual arrangement and did not restart the limitations period.

Speculative damages. The court rejected D.E. Shaw’s argument that its damages were too speculative to calculate when the challenged contracts were executed. For the portfolio-accounting and hosting claims, D.E. Shaw alleged that its damages became concrete in 2022, when it incurred more than $1 million to move its Geneva hosting away from Arcesium. The court concluded, however, that potential migration and switching costs were calculable when D.E. Shaw accepted the 2014 restriction. D.E. Shaw had previously hosted Geneva internally and possessed information from which such costs could have been estimated.

For the maintenance claim, D.E. Shaw argued that damages became concrete only when SS&C terminated maintenance in 2023, leaving it to operate outdated software. The court found that D.E. Shaw had not explained why those potential costs and operational risks could not have been estimated earlier. Nor had it adequately linked those later harms to the alleged tying of optional and essential maintenance services. The speculative-damages exception therefore did not preserve any of the otherwise untimely claims.

Noerr-Pennington immunity. The court held that Noerr-Pennington immunity barred D.E. Shaw’s remaining de facto exclusive-dealing theory to the extent it rested on SS&C’s litigation conduct. The Noerr-Pennington doctrine protects efforts to petition the government, including litigation, from antitrust liability regardless of alleged anticompetitive intent. The protection extends to filing lawsuits, threatening litigation, and related settlement activity.

The only potentially viable example of de facto exclusive dealing was SS&C’s assertion of trade-secret rights in litigation against D.E. Shaw. Because that conduct constituted protected petitioning activity, and D.E. Shaw did not invoke any exception to Noerr-Pennington, the court held that SS&C was immune from antitrust liability on that theory. The court therefore dismissed all of D.E. Shaw’s federal antitrust counterclaims.

Remaining state law claims. After dismissing the federal antitrust claims, the court declined supplemental jurisdiction over D.E. Shaw’s breach-of-contract and California unfair-competition claims and dismissed them without prejudice.

The Case is No. 1:23-cv-09158-TMR-OTW.

Judge: Reif, T.

Attorneys: Benjamin Klebanoff (Allen Overy Shearman Sterling US LLP) for SS&C Technologies Holdings, Inc. Justin Patrick Wilcox (Desmarais LLP) for D.E. Shaw & Co., L.P.

Companies: SS&C Technologies Holdings, Inc.; D.E. Shaw & Co., LP

Cases: Antitrust NewYorkNews