Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Two DPP classes, one IPP class emerge in consolidated antitrust actions against PepsiCo, Walmart, (Mar 24, 2026)

By Justin Marcus Smith, J.D.

Work already done in a structurally similar case about a Walmart battery supplier informed the court’s decision to appoint interim IPP counsel.

The federal district court in White Plains, New York appointed interim class counsel for three classes emerging from three distinct theories of harm in the growing number of consolidated antitrust actions brought against PepsiCo, Inc. (PepsiCo) and Walmart, Inc. (Walmart) after the FTC dropped a complaint last year. For the two classes of direct purchaser plaintiffs (DPPs), the court appointed Wolf Haldenstein Adler Freeman & Herz LLP and Schneider Wallace Cottrell & Kim LLP as Co-Interim Class Counsel; Bursor & Fisher P.A. as interim DPP Liaison Counsel; and Berger Montague P.C., Cera LLP, and Gustafson Gluek PLLC as members of the DPP Executive Committee. Those appointments were uncontested, but the court weighed work already performed in a contested motion for appointment of interim counsel for the indirect purchaser plaintiffs (IPPs). The court also granted the DPPs leave to file separate consolidated amended complaints for the consumer and reseller DPP classes and similarly granted the IPPs leave to file a consolidated amended complaint for their class. The court also ordered a case caption and specified various filing requirements with reference to a scheduling order (In Re Branded Beverage Antitrust Litigation, No. 7:25-cv-06440-CS (S.D.N.Y. Mar. 18, 2026)).

Background. On January 17, 2025, the FTC announced it was suing PepsiCo for alleged violations of the Robinson-Patman Act and the FTC Act. The FTC said PepsiCo gave illegal pricing advantages to a large national retailer. In May 2025, after the change in presidential administration, the Republican-led FTC voluntarily dismissed the FTC complaint. Pepsi never filed an answer, but in August 2025, the nonprofit Institute for Local Self-Reliance (ILSR) moved to intervene in the closed case to unseal the heavily redacted FTC complaint. The court granted the motion to intervene and invited “any party” opposed to unsealing to file opposition. Pepsi opposed, and the Chamber of Commerce filed an amicus brief in support of Pepsi, but the court resolved that the public interest justified unsealing the complaint with minimal redactions to protect PepsiCo.

Just a few days later, on December 15, 2025, three individual consumers filed a class action complaint against PepsiCo and Walmart, Inc. in the United States District Court for the Southern District of New York. The complaint alleged the companies operated a vertical price-fixing scheme for over a decade that artificially raised Pepsi soft drink prices across the United States at every retailer except Walmart.

By February 2026, the court consolidated, for pretrial purposes only, ten related cases that alleged essentially the same anticompetitive scheme as described in Gelbspan under the caption Giannasca v. PepsiCo, Inc., et al., 25-cv-6440.

The court said it perceived three theories of harm emerging across the consolidated actions that suggested three tracks of potential classes: (1) direct consumer purchaser plaintiffs (C-DPPs); (2) direct reseller purchaser plaintiffs (R-DPPs); and (3) indirect purchaser plaintiffs (IPPs).

Uncontested DPP appointment. Counsel in both DPP tracks reached a consensus on class leadership structure and filed an unopposed motion to appoint interim class counsel consisting of Wolf Haldenstein Adler Freeman & Herz LLP and Schneider Wallace Cottrell Kim LLP as co-lead counsel; Bursor & Fisher PA as liaison counsel; and an Executive Committee consisting of Berger & Montague PC, Cera LLP, and Gustafson Gluek PLLC. The DPP motion also sought to modify consolidation with leave to file separate consolidated complaints in each track.

Contested IPP appointment. Counsel for the IPP track, meanwhile, filed contested leadership motions. Counsel for plaintiffs in Donovan, et al. v. PepsiCo, Inc., et al., 25-cv-10571, moved to appoint Cohen Milstein Sellers & Toll PLLC (Cohen Milstein) as IPP interim lead counsel. Counsel for plaintiffs in Arbit, et al. v. PepsiCo, Inc., et al., 26-cv-01455, moved to appoint Miller Law LLC (Miller Law) as IPP interim lead counsel.

Based on the submissions, the court said it was persuaded that all counsel seeking interim leadership of their respective tracks of classes were adequately experienced, had sufficient knowledge of the law, and would apply the needed resources to represent their respective classes.

As to the contested IPP track, the court found Cohen Milsten was better positioned to serve as interim lead counsel for the IPP class. The court noted, first, that Cohen Milstein and Miller Law both appeared to satisfy the experience, knowledge, and resourcing factors of Fed. R. Civ. P. 23(g)(1)(A)(ii)-(iv).

Cohen Milstein argued it had an edge on work it had already done, pertinent to the R. 23(g)(1)(A)(i) element, in developing the legal theory underpinning Copeland v. Energizer Holdings, Inc., 716 F. Supp. 3d 749, 758-61 (N.D. Cal. 2024). Copeland was a structurally similar case about Walmart and a battery supplier.

Miller Law argued it had the edge in connection with work already done insofar as all consolidated claims piggybacked off the FTC investigation, and Miller Law said it had already brought claims in more Illinois repealer jurisdictions than counsel in any of the related IPP actions.

The court ultimately found that the R. 23(g)(1)(A)(i) work already done factor weighed in favor of Cohen Milstein. The FTC complaint, although it formed much of the factual basis for all consolidated complaints, was not a Sherman Act case. The court reasoned that Cohen Milstein’s work in the Copeland matter had developed the instant IPP legal theory, and the instant Cohen Milstein Donovan complaint was the template for the “great majority” of the other IPP complaints already filed.

The court continued that Miller Law arguments about the standing of named plaintiffs under differing state laws to represent absent class members was an issue pertinent to the class certification stage. The court said it did not believe that representing a plaintiff from one or two additional jurisdictions showed great additional investigative effort at this stage, nor would it be dispositive, later, about ability to represent the class. Miller Law also did not describe how one of its experts had already contributed to its work or how that contribution would distinguish its work from the Cohen Milstein or FTC investigations. Last, most other IPP counsel supported Cohen Milstein.

Motion disposition. The court ordered the following appointments:

1. Wolf Haldenstein Adler Freeman & Herz LLP and Schneider Wallace Cottrell & Kim LLP as Co-Interim Class Counsel for the DPPs;

2. Bursor & Fisher P.A. as Liaison Counsel for the Direct Purchaser Plaintiffs;

3. Berger Montague P.C., Cera LLP, and Gustafson Gluek PLLC as members of the Executive Committee for the Direct Purchaser Plaintiffs;

4. Cohen Milstein Sellers & Toll PLLC as Interim Class Counsel for the Indirect Purchaser Plaintiffs.

The court granted the DPPs leave to file separate consolidated amended complaints for the consumer and reseller DPP classes. The court granted the IPPs leave to file a consolidated amended complaint for their class.

The court ordered the case to be captioned “IN RE: BRANDED BEVERAGE ANTITRUST LITIGATION” with automatic consolidation for later determination. Consolidated amended complaints and any pre-motion letters and motions to dismiss must follow the briefing schedule. The court specified relational effects on other actions in the consolidated litigation. The court further provided for the admission of attorneys pro hac vice pursuant to court instructions.

The Case is No. 7:25-cv-06440-CS.

Judge: Seibel, C.

Attorneys: Carl Malmstrom (Wolf Haldenstein Adler Freeman & Herz LLC) for Michael Giannasca. Laura Kathryn O'Boyle (Gibson, Dunn & Crutcher, LLP) for PepsiCo, Inc. and PepsiCo Beverage Sales, LLC. Belinda S. Lee (Latham & Watkins LLP) for Walmart, Inc.

Companies: PepsiCo, Inc.; PepsiCo Beverage Sales, LLC; Walmart, Inc.

Cases: Antitrust NewYorkNews