Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (May 2, 2025)

By WK Editorial Staff

A periodic roundup of other items of interest to the Antitrust and Trade Regulation community.

ANTITRUST NEWS: McDonald’s and Cargill announced that they have reached a settlement over claims that meatpackers Cargill, JBS, Swift Beef Co., National Beef Packing Co. and Tyson Foods conspired to fix beef prices by limiting beef supplies in violation of the Sherman Act. “Cargill has been a partner to McDonald’s for more than 45 years, and we value that partnership,” explained Cesar Piña, Senior Vice President, Chief Supply Chain Officer for McDonald’s USA. This settlement results in a dismissal of McDonald’s claims only as to Cargill as the case continues against the other defendants. Pete Richter, Chief Customer Officer of Cargill, commented, “We are pleased to put this matter behind us on terms that strengthen and grow our partnership with McDonald’s. McDonald’s is a valued customer, and we look forward to continuing to work together to nourish the world.” As for the remaining lawsuits against Cargill brought by others, “we stand by our conduct and we will continue to aggressively defend against those claims,” said Richter.

ANTITRUST NEWS: The House Judiciary Committee has removed a proposal to strip the FTC of the power to enforce antitrust law. Just days earlier, the Republican leadership had included the proposal in the proposed budget package. The proposal would have consolidated antitrust enforcement power with the Justice Department.

ANTITRUST NEWS: The European General Court on April 30 upheld a decision of the European Commission ordering an unannounced inspection—a so-called dawn raid—at Symrise AG of Germany, finding that the inspection decision was neither arbitrary nor disproportionate. The investigation was related to the company’s possible participation in a cartel. There were allegations that the purported cartel conduct involved large fragrance manufacturers and the International Fragrance Association. Symrise was ordered to pay costs (Symrise AG v. European Commission, Case T-263/23).

ANTITRUST—E.D. Cal.: In an action brought by Guardian Alliance Technologies, Inc. against defendants Miller Mendel, Inc. and Tyler Miller (collectively, “Miller Mendel”), seeking declarations that two of defendants’ background investigation management software patents are invalid and asserting claims under the Sherman Antitrust Act, a motion to dismiss the Sherman Act claims was denied. Guardian’s Sherman Act claims alleged attempted monopolization of the relevant market via sham litigation and attempted monopolization of the relevant market via fraud on the U.S. Patent and Trademark Office. Miller Mendel’s argument that both Sherman Act claims fail on the ground of issue preclusion was rejected because issue preclusion was not applicable based on an attorney fees decision in another lawsuit brought by Miller Mendel against a customer of Guardian’s software in a Texas court. The Texas court merely made the factual determination that the case was not exceptional such that fees were warranted. This issue is obviously not identical to the questions of whether Miller Mendel acted fraudulently in acquiring the patents or pursued sham patent litigation in violation of the Sherman Act. As for the second argument, Miller Mendel’s argument that Guardian failed to plead with particularity that Miller Mendel “intended to defraud” the Patent and Trademark Office was entirely meritless, according to the court. Here, the complaint adequately set out the “who, what, when, where, and how” of the alleged fraud. Guardian alleged that in the course of obtaining the ‘098 and ‘188 patents, Miller Mendel “deliberately and purposefully withheld material information” from the Patent and Trademark Office, including “information about third-party prior art systems of which Defendants were aware” (Guardian Alliance Technologies, Inc. v. Miller Mendel, Inc., No. 2:22-cv-01390-WBS-AC (E.D. Cal. Apr. 30, 2025)).

ACQUISITIONS & MERGERS NEWS: Top Democrats on the Senate Banking Committee and House Financial Service Committee called on the Federal Reserve Board of Governors to stay and reconsider approval of Capital One Financial Corporation’s acquisition of Discover Financial Services. In a May 1 letter, Senator Elizabeth Warren (D., Mass.), Ranking Member of the Senate Banking, Housing, and Urban Affairs Committee, and Representative Maxine Waters (D., Cal.), Ranking Member of the House Financial Service Committee, raised a number of concerns with the Fed's decision, including assertions that it “did not include an appropriate assessment of the competitive effects on the credit card market or impact on U.S. financial stability” and “did not appear to have considered relevant information provided by... the Department of Justice.” The lawmakers invoked their right under the Fed’s Rules of Procedure, as commenters on the merger application, to request a formal reconsideration, which will require a response from the Fed.

ADVERTISING—9th Cir.: In consumer Glen Morgan’s putative class action against Twitter for violation of a Washington law prohibiting the deceptive procurement and sale of telephone records, a federal district court properly denied Morgan’s first motion for remand based on untimeliness, the U.S. Court of Appeals in San Francisco has held. The thirty-day time limit did not begin even though Twitter could have estimated the class size using its own customer data or information from an identical lawsuit. The district court also did not abuse its discretion in denying leave to file a second amended complaint. Morgan had already filed an amended complaint and second, amendment would have been futile because Morgan did not state what additional facts he would plead if given leave to amend. Further, even if the district court had granted Morgan leave to file a second amended complaint, the remaining allegations provided Article III standing, so the district court correctly rejected Morgan’s second remand motion. Finally, four independent reasons each provided a sufficient basis for the district court to dismiss Morgan’s complaint for failure to state a claim (Morgan v. Twitter Inc., No. 23-3764 (9th Cir. Apr. 30, 2025)).

AGENCY NEWS: Department of Justice Antitrust Division Assistant Attorney General Gail Slater appointed Dina Kallay to serve as Deputy Assistant Attorney General for International, Policy and Appellate. Kallay joins the division’s leadership team including Principal Deputy Assistant Attorney General, four Deputy Assistant Attorneys General and Chief of Staff.

CONSUMER PROTECTION NEWS: The National Grocers Association (NGA) is urging the FTC to closely monitor and respond to the competitive dynamics unfolding in the grocery sector as a result of new and proposed tariffs on imported goods. The pressure from the imposition of tariffs has the potential to cause significant disruption to the food supply chain—through increased costs and product shortages—which may, in turn, exacerbate already concerning imbalances in buyer power. The NGA asked the FTC to: (1) Issue a statement to market participants to remind suppliers of their obligations under the Robinson-Patman Act that prices, promotions, and services must be provided to large and small purchasers on proportionately equal terms; (2) Monitor how tariff-related disruptions affect supplier pricing and product allocation across retail channels; (3) Investigate whether dominant grocery chains are using their buyer power to extract anticompetitive concessions or impose the cost of tariffs on smaller competitors; and (4) Enforce existing antitrust laws, including the Robinson-Patman Act, to prevent the use of buyer power to distort fair competition in the food supply chain.

Attorneys: Joel Ard (Ard Law Group PLLC) for Glen Morgan. Thomas King-Sun Fu (Orrick, Herrington & Sutcliffe, LLP) for Twitter, Inc. Daniel S. Stouder (Boutin Jones, Inc.) for Guardian Alliance Technologies, Inc. Jarrett S. Osborne-Revis (Buchalter, A Professional Corporation) for Miller Mendel, Inc.

Companies: Twitter, Inc.; Guardian Alliance Technologies, Inc.; Miller Mendel, Inc.; Capital One Financial Corp.; Discover Financial Services; International Fragrance Assn.; Symrise AG; McDonald’s Corp.; Cargill, Inc.

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