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Author: Bennett Rawicki and Carl Miller

Although the landmark Google and Meta antitrust cases have dominated the legal headlines,[1] there are many other notable Section 2 cases from the past year. We examine them below so that companies can see what kinds of conduct courts have recently deemed anticompetitive.

Monopolizing with non-exclusive agreements that are de facto exclusive

In June, the Ninth Circuit recognized for its first time “a de facto exclusive dealing theory.”[2] The complaint alleged that CoStar, a dominant online platform that provides listing services for commercial real estate brokers, violated Section 2 by entering exclusive agreements with its broker customers. CoStar attempted to dodge liability by pointing to the contracts themselves, which expressly state that CoStar’s right to use the brokers’ data is “non-exclusive.” But the Ninth Circuit reversed a dismissal of the complaint, holding that it “plausibly alleges that specific provisions of each contract contradict the express promise of non-exclusivity.” For example, the contracts bar brokers from using materials “contained on or provided through” CoStar’s platform “in connection with any other . . . listing service.” And the complaint alleged specific examples of brokers who understood those terms to prohibit them from working with competing listing services. The court held that those allegations of de facto exclusivity created a plausible monopolization claim.

The Ninth Circuit observed that other circuits have recognized de facto exclusivity claims, citing a Third Circuit case and an Eleventh Circuit case where voluntary rebate arrangements induced customers to deal exclusively with the defendant.[3] Indeed, the Google search case itself is another recent example. Judge Mehta held that “[e]xclusivity need be neither express nor complete to render an agreement ‘exclusive’ for Section 2 purposes: De facto and partial exclusivity may suffice depending on the circumstances.”[4]

Monopolizing now by leveraging future exclusivity

A future monopoly can yield present market power. Upstart-firm Fanatics is new to the pro-sports trading card market, but a lawsuit alleges that Fanatics already exercises market power through future exclusivity. Panini, a chief competitor, claims that Fanatics has secured future exclusive license agreements that will cement Fanatics’ position as the sole licensed producer of all NFL, NBA, and MLB trading cards for at least a decade beginning in 2026.[5]

The court declined to dismiss Panini’s monopolization claim—even though Fanatics currently has exclusivity in only 33% of the relevant market.  The court held the complaint plausibly alleges that Fanatics already exercises monopoly power by leveraging its future market dominance to set prices and exclude competitors. For example, Panini claims that Fanatics has threatened future exclusion of retailers from the market in order to set minimum price requirements, extract higher margins from retailers, and coerce retailers into selling only Fanatics cards. The court held that leveraging a future monopoly to impose coercive vertical restraints can invite a present monopolization claim.

Monopolizing by tying product sales, even to different buyers

A tying arrangement occurs when a seller coercively conditions the sale of one product—the “tying” product—on the same buyer’s purchase of another product—the “tied” product. That “single-buyer” requirement is foundational to a Sherman Act tying claim. But courts have recently found an illegal tie where the buyers were nominally different but de facto identical.

Enter Live Nation Entertainment, the leading concert promoter for major concert venues and the owner of Ticketmaster, a ticketing services company. Consumer plaintiffs allege that Live Nation violated Section 2 by conditioning the sale of its concert promotion services on venues’ use of its ticketing services.[6] Live Nation moved to dismiss for lack of a single buyer, reasoning that artists buy concert promotion services whereas venues buy ticketing services. A California district court ruled that the complaint plausibly alleged that the venues are a single buyer: Even if artists are the nominal consumer of concert promotion services, there is “intertwinement between Live Nation and venues during concert promotion” in the form of contracts, rental payments, and downstream benefits to the venues (such as concessions revenue).

In a separate public-enforcer case against Live Nation, a New York district court arrayed similar reasoning, albeit in the Section 1 context.[7] The court held that a complaint plausibly alleged an illegal tie where the buyer purchases the tied product directly but buys the tying product through an intermediary.

Monopolizing with low prices

Last September, a federal court held that low prices can violate Section 2 even where the allegation does not satisfy the test for a predatory pricing claims.[8] Predatory pricing claims require a plaintiff to show that the defendant has (1) priced below cost and (2) there is a dangerous probability that the defendant will recoup that below-cost investment.[9] This complaint alleged that Amazon surveils the internet to find the lowest price for each of its items, immediately copying that price (but not undercutting it). Although there was not traditional predatory pricing, the court declined to dismiss the FTC’s claim that Amazon blocks competition by price matching. The court rejected Amazon’s argument to analyze the price-matching claim under the predatory pricing framework. Instead, the court held that the complaint sufficiently alleged Amazon’s price-matching scheme blocks competition by preventing rivals from winning customers and gaining scale by lowering their prices.

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These cases signal (1) a judicial appetite to deem more types of conduct problematic under Section 2; (2) more creativity by antitrust enforcers (governmental and private) to advance arguments that extend traditional antitrust labels; and (3) more need for companies, especially leading companies, to assess whether their conduct is competing on the merits, excluding competition, or coming close to what courts have recently deemed monopolization.

For further analysis or questions, the antitrust specialists at Hilgers are well-versed in defending and pursuing claims under the antitrust laws.

About the Authors

Bennett Rawicki,
Partner

Bennett specializes in creative solutions for complex business litigation, using his successful experience on the nation’s most complicated cases to conceive legal arguments and discovery strategies that resolve cases before trial. Follow him on LinkedIn here.

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Carl Miller,
Associate

Carl is a litigation associate who graduated with honors from the University of Chicago Law School in 2024. Follow him on LinkedIn here.

[1] See Matthew Perlman, “4 Takeaways From Landmark Google Search Ruling,” Law360 (Aug. 6, 2024); Bryan Koenig, “Meta Trial Rooted In Decade-Old WhatsApp, Instagram Buys,” Law360 (Apr. 10, 2025).

[2] CoStar Grp., Inc. v. Com. Real Est. Exch., Inc., No. 23-55662, 2025 U.S. App. LEXIS 23002 (9th Cir. Sept. 5, 2025) (amended opinion).

[3] Id. (citing ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3rd Cir. 2012); McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015)).

[4] United States v. Google LLC, 747 F. Supp. 3d 1, 146 (D.D.C. 2024).

[5] Panini Am., Inc. v. Fanatics, Inc., No. 23-CV-9714-LTS-VF, 2025 U.S. Dist. LEXIS 42143 (S.D.N.Y. Mar. 10, 2025).

[6] Heckman v. Live Nation Ent., Inc., No. CV 22-0047-GW-GJSx, 2025 U.S. Dist. LEXIS 69885 (C.D. Cal. Apr. 11, 2025).

[7] United States v. Live Nation Ent., Inc., No. 24-cv-3973 (AS), 2025 U.S. Dist. LEXIS 47262 (S.D.N.Y. Mar. 14, 2025).

[8] FTC v. Amazon.com, Inc., No. 2:23-cv-01495-JHC, Dkt. 289 (W.D. Wash. Sept. 30, 2024).

[9] See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222–24 (1993).