Antitrust Law Daily Wrap Up, WORTH NOTING: Other Antitrust and Trade Regulation developments, (Aug 28, 2026)

By WK Editorial Staff

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

ANTITRUST—E.D.N.Y.: The federal district court in Brooklyn ruled that Ethan Overton Edwards (“Plaintiff”), a 23-year-old Division III collegiate basketball player, was not entitled to a temporary restraining order and a preliminary injunction against the against the National Collegiate Athletic Association (“NCAA”). The request was based on the allegation that the “NCAA’s refusal to recognize eligibility for 2022 enrollees who competed in Division III” under a new rule that grants five, rather than four, years of eligibility, “constitutes an arbitrary horizontal restraint” on trade in violation of the Sherman Act. Until recently, at the Division I level, the NCAA had determined eligibility based on a rule that had “permitted student-athletes to compete in up to four seasons of intercollegiate athletic competition over a five-year period beginning from their initial full-time enrollment at a collegiate institution.” On June 24, 2026, however, the “NCAA Division I Cabinet adopted a new age-based eligibility model” that provides that, beginning in 2026-27,2 “NCAA Division I student-athletes will receive a five-year eligibility period beginning at the start of the academic year following their 19th birthday or upon full-time enrollment at a collegiate institution, whichever comes sooner, and student-athletes may compete during that five-year period of eligibility without restriction, provided they meet all other eligibility requirements.” Division III has not yet adopted a similar provision, but after playing four years of Division III men’s basketball Plaintiff alleges that “[o]n April 7, 2026,” he “timely entered the NCAA Transfer Portal,” with the intent of transferring to a Division I school and was unlawfully excluded from a fifth year of eligibility by the NCAA. Plaintiff’s Emergency Motion failed at the first step of the rule-of-reason analysis. From Plaintiff’s bare assertions that (1) the relevant market is the “nationwide... market for elite collegiate athletic labor and competition in NCAA’s Men’s Basketball” and the market “for student-athlete [NIL] licensing opportunities; ” and (2) the challenged restraint has a substantial anticompetitive effect, the court was unable to adequately define the relevant market nor ascertain how, why, or whether the challenged restraint has a substantial anticompetitive effect that harms consumers in that market (Edwards v. National Collegiate Athletic Association, No. 1:26-cv-05047-OEM-TAM (E.D.N.Y. Aug. 26, 2026)).

ANTITRUST—E.D. Pa.: Antitrust counterclaims for monopolization and attempted monopolization under section 2 of the Sherman Act brought by LaserOptek (“LOA”) against Strata Skin Sciences, Inc. (“Strata”), a marketer of dermatological lasers, were dismissed by the federal district court in Philadelphia. Strata initiated the litigation, contending that LOA made false and misleading statements about both Strata’s lasers, as well as their own competing dermatological lasers. LOA’s counterclaims alleged monopolization and attempted monopolization of the national market for UVB medical lasers with FDA clearance to treat inflammatory skin conditions including psoriasis. The court found that Strata was immune from antitrust liability under the Noerr-Pennington doctrine, an immunity grounded in the First Amendment’s right to petition courts. LOA failed to show that the sham litigation exception to Noerr-Pennington immunity applied here because a reasonable litigant could believe that there existed a realistic chance that Strata’s false advertising claim could succeed. Because Strata prevailed as to Noerr-Pennington immunity, the court declined to address antitrust standing (Strata Skin Sciences, Inc. v. LaserOptek America Corp., No. 2:24-cv-04138-GAM (E.D. Pa. Aug. 19, 2026)).

ANTITRUST—N.D. Tex.: A Texas federal district court denied The Washington Free Beacon’s motion for leave to intervene and unseal records in Elon Musk’s antitrust suit against Apple Inc. and OpenAI entities alleging an illegal conspiracy to maintain monopolies in both the generative AI chatbot and smartphone markets. In April, the court ordered sealed limited portions of documents submitted by the parties in this case. The Beacon sought to intervene “for the limited purpose of contesting” the court’s two orders “sealing … certain judicial records.” The court and the parties have already fully considered the issue of whether to seal the information the proposed intervenor wishes to unseal. The court held that the Beacon was seeking to relitigate prior rulings, and that permitting intervention would delay the adjudication of the case (X Corp. v. Apple Inc., No. 4:25-cv-00914-P (N.D. Tex. Aug. 26, 2026)).

ANTITRUST—D. Idaho: The federal district court in Pocatello, Idaho granted an Idaho State University football player a temporary injunction barring the NCAA from enforcing its Five-Year Rule against him. ISU submitted an eligibility waiver application for the player citing the player’s years at a Junior College (JUCO) program (including an additional year due to erroneous recruiter advice) and his incapacitating injury in 2024. The player challenged the JUCO eligibility limitation in the Five-Year Rule as a violation of Section 1 of the Sherman Act. The court held that the player was likely to succeed on the merits that the Five-Year Rule has a substantial anticompetitive effect on the labor market for NCAA Division I football players because it treats former JUCO student-athletes, who are otherwise capable of providing Division I football services, different than student-athletes who enroll directly to NCAA Division I schools. Even if there is a procompetitive rationale for the Five-Year Rule, there are likely other less-anticompetitive means that can achieve similar procompetitive effects. The court also temporarily enjoined the NCAA from enforcing its “Rule of Restitution” against ISU if Ramirez is ultimately unsuccessful on his request for a preliminary injunction (Ramirez v. National Collegiate Athletic Association, No. 4:26-cv-00542-DCN (D. Idaho. Aug. 27, 2026)).

ANTITRUST—J.P.M.L.: The U.S. Judicial Panel on Multidistrict Litigation has transferred two cases against CoStar Group, Inc. to the Eastern District of Virginia. In 2020, CoStar sued competitor Commercial Real Estate Exchange Inc. (CREXi) alleging copyright infringement and other claims. CREXi filed counterclaims alleging that CoStar had monopolized the markets for Internet commercial real estate listing, information, and auction services in metropolitan areas across the U.S. CREXi’s antitrust claims were dismissed but, on appeal, the Ninth Circuit reversed the ruling in 2025. Following this ruling, commercial real estate broker plaintiffs filed the two remaining actions on the motion and the potential tag-along action. Each is brought on behalf of a putative nationwide class of CoStar customers alleging antitrust violations. The class actions share questions of fact arising from allegations that CoStar acquired and maintained monopoly power over the markets for commercial real estate information and listing services through a scheme that includes: (1) imposing de facto exclusivity provisions on commercial real estate brokers; (2) deterring brokers from participating in competing platforms by affixing proprietary watermarks to photographs and “fingerprinting” listings by deliberately embedding inaccurate data; and (3) deploying technological barriers that prevent brokers and competitors from accessing publicly available listing data.

ACQUISITIONS & MERGERS NEWS: Congressman Jerrold Nadler (NY-12) and Congressman Maxwell Alejandro Frost (FL-10) are calling on the Department of Justice and the FTC to closely scrutinize Sysco's proposed $29.1 billion acquisition of Restaurant Depot and investigate its potential anticompetitive effects. The Congressmen warn that the deal could reduce competition, drive up costs for independent restaurants, and ultimately make dining out more expensive for consumers. The proposed acquisition would eliminate a major competitor to Sysco, the nation’s largest food distributor, and could give the company greater leverage over the prices restaurants pay for ingredients and supplies. For independent restaurants operating on already-thin margins, even modest increases in food costs can have significant consequences, including higher prices for customers. Nadler and Frost warned that the impact of the merger could extend beyond restaurant owners to consumers and workers. If restaurants face higher costs, they may have little choice but to pass those costs on to customers at a time when families are already cutting back on dining out because of rising prices.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved the acquisition of joint control of Anwim S.A. of Poland by Energy Equation Partners Limited (‘EEP') of Jersey, Ara Partners Group LLC and Stonepeak Partners LP (together with its affiliates, ‘Stonepeak'), both of the US. The transaction relates primarily to the supply of motor fuels, specifically the supply of fuel via B2B fleet cards in various EU Member States. The Commission concluded that the notified transaction would not raise competition concerns, given the companies' limited combined market position resulting from the proposed transaction. The notified transaction was examined under the simplified merger review procedure.

ACQUISITIONS & MERGERS NEWS: The European Commission has informed UPM-Kymmene Corporation and Sappi Limited of its preliminary view that its proposed joint venture may restrict competition in the markets for different types of communication paper, which is used for printed materials, such as magazines or books. UPM and Sappi are the two largest manufacturers of communication paper products in the European Economic Area. The joint venture would create the EEA market leader, by combining UPM's communication paper business in Europe and the US, with Sappi's communication paper business in Europe, as well as part of Sappi's specialty paper business and other ancillary activities. The Commission is concerned that the joint venture between UPM and Sappi would acquire market power allowing it to increase prices and decrease quality to the detriment of its customers for coated mechanical paper, a type of magazine paper, and for coated wood free paper. The Commission is currently unconvinced that integrating the relevant activities in the joint venture would bring enough benefits – in terms of cost savings or environmental or resilience improvements– to offset the potential harm.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved the acquisition of joint control of Eurowind Energy A/S by Norlys a.m.b.a. and EWE Holding ApS, all of Denmark, and Blackstone Inc. of the US. The transaction relates primarily to the development, construction, and operation of wind and solar farms in Europe, the wholesale of electricity, the provision of electricity balancing and ancillary services, as well as the development of renewable energy solutions. The Commission concluded that the notified transaction would not raise competition concerns, given the companies' limited market positions resulting from the proposed transaction. The notified transaction was examined under the simplified merger review procedure.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved the creation of a joint venture by INEOS AG of Switzerland and China Petroleum & Chemical Corporation (‘Sinopec') of China. The transaction relates primarily to the high-density polyethylene sector. The Commission concluded that the notified transaction would not raise competition concerns, given the limited impact on the European Economic Area. The notified transaction was examined under the simplified merger review procedure.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved the acquisition of sole control of Leggett & Platt, Incorporated by Somnigroup International Inc., both of the US. The transaction relates primarily to the design, manufacturing and distribution of bedding products, furniture, flooring, and textile products. The Commission concluded that the notified transaction would not raise competition concerns, given the companies' limited individual and combined market positions resulting from the proposed transaction. The notified transaction was examined under the simplified merger review procedure.

ACQUISITIONS & MERGERS NEWS: The European Commission has approved the acquisition of joint control of timberland assets in Chile (‘Hancock Assets'), currently part of Hancock Chilean Plantations SpA of Chile, by British Columbia Investment Management Corporation of Canada, APG Asset Management N.V. of the Netherlands, and BTG Pactual Timberland Investment Group, LLC of the US. The transaction relates primarily to timberland and forestry. The Commission concluded that the notified transaction would not raise competition concerns, given the limited impact on the European Economic Area. The notified transaction was examined under the simplified merger review procedure.

ACQUISITION & MERGERS NEWS: The Competition and Markets Authority announced it is opening an investigation into The Brink’s Company anticipated acquisition of NCR Atleos Corporation. The deadline for the CMA to announce its decision whether to refer the Merger for a phase 2 investigation is October 22.

AGENCY NEWS: John Thornburgh reported that his last day at the Department of Justice Antitrust Division was August 28. He most recently served as an Assistant Chief in the Chicago Field Office.

CONSUMER PROTECTION NEWS: The annual fee for accessing the National Do Not Call Registry will increase from $82 to $85 per area code, effective Oct. 1, the Federal Trade Commission announced today in a notice in the Federal Register. The maximum annual fee per entity will increase from $22,626 to $23,425, it added. The fee for each area code added for the second six months of the annual subscription period will increase from $41 to $43. The increases are indexed to inflation.

Attorneys: Duvol Maurice Thompson (Holland & Knight LLP) for National Collegiate Athletic Assoc. Christopher A. McDonald (Stevens & Lee) for Strata Skin Sciences, Inc. Adam R. Tarosky (Nixon Peabody LLP) for LaserOptek America Corp. Andrew Jenkins (Henderson Jenkins, PLLC) for Alejandro Ramirez. Aaron Robert Bell (Dorsey & Whitney LLP) for National Collegiate Athletic Association. Christopher D. Hilton (Stone Hilton PLLC) for X Corp. Dee J. Kelly, Jr (Kelly Hart & Hallman) for Apple Inc.

Companies: National Collegiate Athletic Assoc.; Strata Skin Sciences, Inc.; LaserOptek America Corp.; Sysco; Restaurant Depot; Anwim S.A.; Energy Equation Partners Limited; Ara Partners Group LLC; Stonepeak Partners LP; UPM-Kymmene Corporation; Sappi Limited; Eurowind Energy A/S; Norlys a.m.b.a.; EWE Holding ApS; Blackstone Inc.; INEOS AG; China Petroleum & Chemical Corporation; Leggett & Platt, Incorporated; Somnigroup International Inc.; Hancock Chilean Plantations SpA; British Columbia Investment Management Corporation; APG Asset Management N.V.; BTG Pactual Timberland Investment Group, LLC; The Brink’s Company; NCR Atleos Corporation; CoStar Group, Inc.; Commercial Real Estate Exchange Inc.; X Corp.; Apple Inc.; National Collegiate Athletic Association

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