HOW LOW DO ANTITRUST LAWS LET YOU GO? RECENT DECISIONS REGARDING DISCRIMINATORY, PREDATORY, AND BELOW-COST PRICING

By Ryan Sandrock and Kevin Burke¹

Most antitrust cases are about allegations of high prices: competitors who agree not to discount, monopolists who exclude price-cutting competitors, and acquisitions where an incumbent wants to grab market share to lessen competition and raise prices. And so most antitrust defenses are about low prices: the alleged price-fixers are sharp-elbowed discounters, the alleged monopolist is winning through better and competitively priced products, and the challenged acquisition would result in efficiencies and lower prices. These cases roughly equate harm to competition with harm to consumers in the form of higher prices, and both sides fight over the price charged at checkout to an end-user consumer.

Claims based on the opposite theory—that low prices have harmed competition in some way—are far less common.² The checklist for antitrust counselors on (too) low prices used to be pretty simple. First, to guard against Robinson-Patman claims of unlawful pricing discrimination,³ only charge different prices for commodities where there is a justification for the variance—different costs (volume discounts) or an attempt to meet a competitor’s price. In practice, Robinson-Patman claims were antitrust unicorns, lawyers liked to sketch them in their treatises but no one had seen one in real life. There were even calls to abandon Robinson-Patman completely. Second, to prevent a monopolization claim based on predatory pricing, do not adopt a strategy of pricing so low that competitors exit the market, allowing the company to recoup its losses by charging exorbitant prices when it is the only seller left standing. Again, in real markets, this situation was almost an impossibility. Third, to defend against below-cost pricing laws in California, do not price low with the goal of destroying competition. As described in a prior article in this publication, while California below-cost pricing law appears more lenient than federal law,

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that leniency is probably just at the pleading stage—with most California claims eventually failing for the same reasons as federal claims.⁴

This article provides an update on where antitrust law stands in 2025 regarding claims challenging low prices. The impetus for this article is that the antitrust revolution of recent years has forced enforcers and litigants to think in new ways about the proper goals of antitrust law, including whether a focus on low prices can go too far. The first part of this article outlines the theory of competitive flourishing motivating these challenges. The short version is that there are questions about whether the simple equation of low prices and competition is legally and philosophically correct. Lina Khan’s Amazon’s Antitrust Paradox spread the idea that low prices to end-user purchasers are not always good because they could come packaged with unacceptable damage to mom-and-pop sellers, upstart competitors, and environmental/labor/other social interests.⁵ Pricing actions—particularly in the Robinson-Patman context—are now litmus tests for antitrust ideology, "whose side are you on" accusations,⁶ and competing versions of American exceptionalism.

The second part of this article turns from theory to practice and explains how, despite the antitrust revolution, it remains difficult to prevail on claims challenging prices as too low. The simple "low prices are good" counter still works. The section discusses the uncertain status of the FTC’s new Robinson-Patman enforcement challenges, continued plaintiff-side wariness about framing their claims in a classic Brooke Group/predatory pricing framework, and California decisions emphasizing the high hurdle for pleading competitor costs in California below-cost pricing claims.⁷

The third part of this article looks ahead to what might change to give more energy to cases challenging lower prices, focusing on potential legislation specifically intended to take away long-standing defenses against pricing claims.

NEW QUESTIONS ABOUT CONSUMER WELFARE STANDARD AND WHAT LOW PRICES ARE GOOD

Three Rehnquist Court antitrust decisions emphasize the limited viability of antitrust claims based on low prices. In Atlantic Richfield Co. v. USA Petroleum Co., the court stated that "Low prices benefit consumers regardless of how those prices are set, and so long as

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they are above predatory levels, they do not threaten competition."⁸ Then, in Matsushita Electric Industrial Co. v. Zenith Radio Corp, the court explained that "predatory pricing schemes are rarely tried, and even more rarely successful."⁹ Finally, in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., the court established a clear, extremely difficult to meet, test for predatory pricing claims.¹⁰ In Brooke Group, the court held that predatory pricing requires a showing that (1) a competitor’s low prices were below an appropriate measure of costs and (2) the competitor could later recoup its investment in below-cost prices.¹¹ Brooke Group was a Robinson-Patman case but the court made clear that its recoupment requirement also applies to Section Two claims.¹²

A steep decline in Robinson-Patman enforcement roughly paralleled the Supreme Court’s restrictive predatory pricing decisions. The Department ofJustice in 1977 issued a report encouraging consideration of a Robinson-Patman repeal.¹³ This Robinson-Patman skepticism persisted, with the Antitrust Modernization Commission in 2007 advocating for repeal.¹⁴ FTC Commissioner Melissa Holyoak provides a detailed history of the decline of Robinson-Patman enforcement in her blistering dissent regarding the first of the FTC’s recent Robinson-Patman cases (Southern Glazer’s, discussed below).¹⁵

Low prices as the ultimate antitrust goal is part of the "consumer welfare" standard. And this standard was not very controversial outside of some very wonky circles. At some point the Chicago School had become the foundation of modern antitrust law.¹⁶ That all changed in the past decade. In a story that is now legend, a law student, Lina Khan, emerged to challenge Robert Bork’s Antitrust Paradox with her piece Amazon’s Antitrust Paradox. One of her key arguments was that predatory pricing law was insufficient to confront anti-competitive conduct in markets dominated by tech platforms. More broadly, she questioned whether antitrust law should focus on consumer welfare.

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The power of this new antitrust generation then expanded. Lina Khan became the chair of the FTC. And, along with Jonathan Kanter at DOJ and Timothy Wu at the White House, became leaders of a "Neo-Brandeisian" antitrust movement.¹⁷ Then, as Donald Trump’s election put Republican enforcers back into power, many Republicans embraced parts of the new antitrust. Vice-President Vance and antitrust chief Gail Slater talked of "hillbilly antitrust."¹⁸ Mark Meador, who had previously advocated for increased Robinson-Patman enforcement, became an FTC commissioner.

There will be scores of books and articles about this messy and exciting time in antitrust history. What matters for this article is that—since the 2017 piece in this publication on below-cost pricing—there has been a willingness to reconsider Chicago School views on the goals of antitrust. No longer do antitrust lawyers, judges, or the antitrust press assume that low prices are the only antitrust value. This shift should have sparked a wave of Robinson-Patman, Brooke Group, and Section 17043 claims. But, as described in detail below, any wave has been of low magnitude.

STILL CHALLENGES TO LOW PRICES ARE DIFFICULT TO PLEAD AND PROVE (PRACTICALLY AND POLITICALLY)

Robinson-Patman Claims and Defenses

Robinson-Patman Section 2(a) bars price discrimination in sales of commodities. Sections 2(d) and (e) bar discriminatory promotional allowances. Price discrimination can injure competitors (primary-line discrimination) or customers (second-line discrimination) or customer’s customers (third-line discrimination). Section 2(a) provides:

It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

The elements of a Section 2(a) claim are that: (1) the relevant sales were made in interstate commerce; (2) the product sold to the competing purchasers was of the same grade and quality; (3) the seller discriminated in price between the two purchasers; and (4) the effect of the price discrimination injured competition in a manner that advantages the favored purchaser (or competitor).¹⁹

The FTC filed two high-profile Robinson-Patman cases at the end of President Biden’s term: one against Southern Glazer’s Wine and Spirits and one against Pepsi. The

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first case alleged that Southern Glazer’s "violated the Robinson-Patman Act by selling wine and spirits to small, independent ‘mom and pop’ businesses at prices that are drastically higher than the prices Southern charges large national and regional chains."²⁰ The FTC asserted claims under Section 2(a) of the Robinson-Patman Act. That provision makes it illegal to discriminate in price between two or more competing buyers, where "the effect of the discrimination may be substantially to lessen competition."²¹ The FTC asserted a "secondary line" harm theory—meaning the conduct harmed competition between purchasers (whereas a "primary line" case would involve harm to competition between sellers—similar to the harm in a predatory pricing case). Judge Slaughter of the Central District of California denied Southern Glazer’s motion to dismiss in April 2025 and the case is pending.

The fact that the case survived a motion to dismiss could support an argument that there is growing support for cases attacking low prices. But the weight of the evidence going the other way is substantial. Not only does the case have a long way to go but the process of filing the complaint was remarkably contention, with Commissioner Melissa Holyoak filing an 88-page dissenting statement, outlining all the reasons why the FTC’s complaint should fail. This dissent began with a defense of price competition:

The goal of antitrust can be stated in one word: competition. Competition promotes rivalrous markets, facilitates the allocation of resources to their best and most highly valued use, spurs innovation, and maximizes consumer welfare. It also stimulates growth and expands economic opportunity. But effective competition depends upon the freedom of firms to choose prices that reflect the information and knowledge available to them. Indeed, price competition is the electric cord that links today’s ideas with tomorrow’s economic prosperity.²²

The dissent continued by saying that Southern Glazer’s pricing was "plainly innocuous or even procompetitive" and that "it manifestly defies logic to suggest that the mere presence of discounting is dispositive proof that there has been harm to competition."²³ The dissent then cited the Atlantic Richfield decision’s endorsement of low prices.²⁴

The Pepsi case provides even stronger support for skepticism about Robinson-Patman claims. The FTC filed the case against Pepsi in the Southern District of New York, a few days before the start of the second Trump administration. The complaint alleged violations of Sections 2(d) and 2(e) of the Robinson Patman Act, sections barring firms from evading the price discrimination bar of Section 2(a) by giving side discounts to favored customers. But then, just four months later, the FTC dismissed the complaint. And, again, the energy in the FTC’s statements regarding the decision to file was remarkable given the rather staid

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recent history of Robinson-Patman. Commissioner Ferguson said that the January filing was "an insult to the Commission’s credibility, its hardworking and talented staff who care deeply about their significant work, and the American people."

The substantive deficiencies in the complaint, according to the commissioners issuing statements in May 2025, were that it treated a Section 2(e) claim like a Section 2(a) claim and also did not allege Pepsi actually refusing to offer comparable terms to different buyers:

In the prior administration’s rush to file a complaint, it betrayed a basic understanding of the structure and text of the RPA. Its approach treated distinct statutory provisions as if they are malleable and interchangeable—collapsing the different pleading requirements required for bringing Section 2(a), 2(d), and 2(e) claims into a series of generalized grievances untethered from the RPA’s statutory framework. A key element of any RPA claim is proving discrimination between competing buyers. Yet the complaint does not mention even a single example of Pepsi refusing to offer comparable terms to other buyers. Nor does it offer any meaningful context regarding how purported disfavored "competing retailers" were identified.

The commissioners nevertheless emphasized that the Robinson-Patman is good law and that the Commission would bring Robinson-Patman cases in appropriate circumstances. Still, there is little question that there will be no wave of price discrimination cases any time soon.

Brooke Group and Section Two Predatory Pricing Claims

Brooke Group is the most important predatory pricing case. It states a clear Chicago School/consumer welfare standard view that low prices are almost always good. And it establishes two—very difficult to meet—elements: (1) "a plaintiff seeking to establish competitive injury resulting from a rival’s low prices must prove that the prices complained of are below an appropriate measure of its rival’s costs" and (2) recoupment. The second element means that the "below-cost pricing must be capable, as a threshold matter, of producing the intended effects on the firm’s rivals, whether driving them from the market, or, as was alleged to be the goal here, causing them to raise their prices to supracompetitive levels within a disciplined oligopoly."

It is difficult to imagine many markets where pricing below cost could be sustained for so long as to allow the losses to be recouped later. That said, it is possible to get past a motion to dismiss on a Section Two predatory pricing claim. In Hurst Int’l, LLC v. Sinclair Sys. Int’l, LLC, the complaint alleged that a seller of produce labeling machines, with a 70-80% market share, was monopolizing a the market for produce labeling machines through multiple acts, including "offering free or below-cost labeling machines and labels." The court found that plaintiff sufficiently alleged that the prices were below cost (free is below-cost) and a dangerous probability of recoupment (because there were allegations of competitors having to exit the market). However, the case was dismissed before further substantive proceedings, making it unclear whether these allegations would have held up.

The most recent predatory pricing decision shows that recoupment remains a high hurdle and the Chicago School lives. The Seventh Circuit recently considered claims

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that Archer Daniels Midland sold ethanol at below-cost prices. The court upheld the dismissal of these claims on several grounds, including that the amended complaint did not allege that "ADM completed its predatory pricing scheme by charging monopoly prices to recoup its losses from below-cost prices." The decision emphasized how low prices are generally good for consumers:

The recoupment requirement ensures that any antitrust claim based on low prices involves harm to consumers through eventual high prices. And when low prices today do not precede high prices tomorrow, consumers receive the "boon" of lower prices (even if competitors must brave the curse of the same). Under United Wisconsin Grain’s theory, the low prices ADM set in motion will remain low because ADM profits from financial tools it purchased in the investment market. This is a benefit, not a burden, for consumers.²⁵

Again, the common sense point that low prices benefit consumers still has power. For this reason, as discussed in more detail below, plaintiffs often try to frame claims about low prices as something other than pure predatory pricing claims. Alleging a Section 2 predatory pricing claim invites Brooke Group briefing and plaintiffs would rather fight on different fronts.

California Section 17043 Claims

Section 17043 of the California Unfair Practices Act provides: "It is unlawful for any person engaged in business within this State to sell any article or product at less than the cost thereof to such vendor, or to give away any article or product, for the purpose of injuring competitors or destroying competition." The elements of a Section 17043 claim are (1) a below-cost sale; (2) undertaken for the purpose of injuring competitors or destroying competition that; (3) causes a competitive injury.²⁶

A Section 17043 claim does not require that a plaintiff prove: (1) that defendant had a dangerous probability of recouping its investment in below-cost prices or (2) that prices were below an appropriate measure of defendant’s costs—average variable costs—in the short term.²⁷ But, in practice, Section 17043 claims frequently fail. So, at first glance, a Section 17043 claim appears to be far easier to prove than a Section 2 predatory pricing claim. But in practice UPA claims are hard to prove, in large part because of the "purpose" requirement. That requirement in many cases ends up defeating Section 17043 claims because the defendant may be able to prevail by showing the purpose was to lower competition.

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Several recent cases have confirmed the difficulty of even pleading Section 17043 claims, with the below-cost element tripping up plaintiffs even before purpose comes into play. In Little v. Pacific Seafood Procurement, plaintiff alleged that a competitor had priced live prices "below cost" in violation of California law. The Court dismissed this claim because plaintiff had not alleged the competitor’s "cost of doing business," including the cost of cooking and shipping crab.

In Pacific Steel Group v. CMC Steel Fabricators, plaintiff alleged that competitors sold a type of steel installation below cost with the purpose of injuring and destroying competition. The court denied the motion to dismiss, after going through an extensive discussion of the standard for pleading a competitor’s costs. The court in the end found that plaintiff had met this standard but the decision nevertheless emphasizes the difficulty of even pleading a 17043 violation

It is common for plaintiffs to be unable to plead the necessary information to allege plausibly that a defendant has priced below cost. For example, in Ohio House LLC v. City of Costa Mesa, the court rejected a plaintiff’s claim that a competing group home had priced below cost.

COMPLICATIONS AND POTENTIAL CHANGES

But companies must remember that there are market and state specific complications to the general rules regarding predatory pricing. In the pharmaceutical context, for instance, brand drug manufacturers cannot necessarily rely on the absence of predatory pricing to immunize conduct that is part of a larger anticompetitive scheme. Mylan Pharmaceuticals Inc., v. Teva Pharmaceuticals Industries Ltd. is illustrative in this regard.²⁸

In Mylan v. Teva, Mylan alleged that Teva engaged in anticompetitive conduct designed to delay FDA approval of generic Copaxone products, and to prevent Mylan’s lower priced generic Copaxone products from gaining significant market share once they were approved.²⁹ Teva attempted to carve up the case with a motion to dismiss that attacked different aspects of the pre- and post- approval activities. One target was Mylan’s claim that Teva improperly entered exclusionary agreements with Pharmaceutical Benefit

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Managers ("PBMs")³⁰ (i.e., the gatekeepers of the formularies that decide which drugs healthcare plans reimburse) in exchange for price discounts and rebates.³¹

Teva argued that Mylan’s formulary exclusion theory should be dismissed under the "Price-Cost Test" because there were no allegations that Teva charged prices for Copaxone that were below its marginal cost.³² The Special Master appointed to provide recommendations on the motion concluded that the factual allegations in Mylan’s complaint were inappropriate for analysis under the "Price-Cost Test," as applied in the Third Circuit, because mechanisms of exclusionary conduct beyond pricing discounts were plausibly alleged.³³ To support this conclusion, the Special Master relied on allegations that a Rebate Agreement conditioned the payment of rebates on the complete exclusion of generic Copaxone from formularies, and allegations that Switching Agreements incentivized PBM-owned specialty pharmacies to replace generic Copaxone with the brand (i.e., the opposite of what is supposed to happen under state automatic substitution laws). Teva’s alternative argument that Mylan’s formulary exclusion theory should be dismissed under the "Rule of Reason Test" was also rejected,³⁴ and the Special Master noted that "the issue of which test applies may be undertaken anew" after the completion of discovery.³⁵

The ultimate disposition of Teva’s price-cost defense will be interesting to watch going forward because the defense sits at the crossroads between the price-focused, Chicago School paradigm of antitrust law, and the more wholistic new view of antitrust law. On the one hand, it could be argued that application of the "Price-Cost Test" to Mylan’s formulary exclusion theory is consistent with the purpose of antitrust law because Teva’s restrictive contracts saved healthcare plans money and put branded Copaxone in the hands of the insured. On the other hand, it could be argued that application of the "Price-Cost Test" to Mylan’s formulation exclusion theory is inconsistent with the purpose of antitrust law because Teva’s restrictive contracts kept low cost generic Copaxone off the market and the endorsement of restrictive agreements like this would harm competition

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over time. The fact that PBMs are the counterparties to Teva’s exclusionary agreements (and beneficiaries of Teva’s rebates) could be a factor that weighs against application of the "Price-Cost Test" because PBMs have been recognized as middlemen in the distribution chain that inflate drug costs, which undercuts the rationale for looking to price as a measure of efficiency and consumer benefit.³⁶ Perhaps Mylan v. Teva will provide further support for setting aside the "Price-Cost Test" in situations where markets are imperfect.

The law could also change. For example, in California, the California Law Review Commission has proposed two changes that could allow for more below-cost pricing claims under both the Cartwright Act and the Unfair Practices Act. First, the Commission proposed an amendment providing that Cartwright Act liability would not require a finding that "in a claim of predatory pricing, the defendant is likely to recoup the losses it sustains from below-cost pricing of the products or services at issue." Second, the Commission also explained that "The Legislature should be aware that the requirement for a plaintiff in a UPA case to prove that the defendant had the ‘purpose’ to destroy a competitor can be a difficult hurdle for the plaintiff to overcome, because the defendant can argue that its purpose was to lower prices for legitimate business reasons. The Legislature might consider altering this standard."

But the Commission in the end backed off from this recommendation, concluding that "the Legislature should recognize that removing this intent requirement from the UPA might stifle procompetitive price competition that benefits consumers. The goal of promoting competition would be undermined if the UPA were to protect less efficient firms from facing competition on the merits from their more efficient rivals."

There have been similar proposals to amend federal law to make predatory pricing claims easier. For example, the Competition and Antitrust Law Enforcement Reform Act (CALERA), by Senator Amy Klobuchar, would moot Brooke Group. The proposed law says that "exclusionary conduct" need not include a showing that "any price of the defendant for a product or service was below any measure of the costs to the defendant of providing the product or service or that a defendant with significant market power in a relevant market has recouped or is likely to recoup the losses it incurred or incurs from below cost pricing for products or services in the relevant market.

CONCLUSION

So, despite increasing antitrust energy, antitrust claims based on lower prices still require particularly strong facts. Harm from lower prices can be counterintuitive, contrary to common sense, and raise complex questions about the purposes of antitrust law. Current concerns about inflation might raise the bar even higher, at least for a while. That said, there always will be the possibility of some coherent case of low prices harming competition, depending on the particular market and conduct. Individual market characteristics always matter in antitrust.

The three checklist points from the opening paragraphs therefore remain good law and good advice: have a legitimate justification for pricing variance, do not price with the goal of clearing the market now and gouging later, and do not price to destroy competition. Or

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simplified into one point: compete vigorously on price. But there probably now is another checklist point: think about the larger competitive context. Could low pricing be fairly or unfairly lumped together with other allegedly exclusionary conduct? The circumstances in which low pricing really will harm competition should always be limited but the demise of pure Chicago School and Brooke Group thinking increases antitrust risk at least a little.

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Notes:

^1. Ryan Sandrock is the co-chair of the antitrust practice at Shook, Hardy, & Bacon. He previously worked at the Antitrust Division of the United States Department of Justice. Kevin Burke is an intellectual property and antitrust lawyer at Shook, Hardy, & Bacon. This article does not reflect the views of any client or any current or former employers.

^2. Robinson-Patman, predatory pricing, below-cost pricing, and the other potential claims discussed in this article are all different claims, with different elements of proof. They do share a common thread: a narrative that prices are too low, not too high. And our grouping of these claims reflects the practitioner’s reality that the same conduct can sometimes drive multiple, overlapping claims or defenses. There are not many one count antitrust complaints or one affirmative defense antitrust answers.

^3. Price "discrimination" in the Robinson-Patman context means charging similarly situated customers different prices. It is distinct from the anti-discrimination pricing concerns of laws like the Fair Housing Act, which promote charging the same price to consumers without consideration of inappropriate factors.

^4. Ryan Sandrock and Stephen Chang, Below-Cost Pricing: Recent Defense-Friendly Decisions, Competition, 26(1) (Spring 2017). ("A below-cost pricing claim under California’s Unfair Practices Act (UPA) appears at first blush to be easier to plead and prove than a predatory pricing claim under the Sherman Act. . . . Several recent cases, however, show that despite the California law’s seemingly easier standard, plaintiffs have had problems prevailing on Section 17043 claims.")

^5. Lina Khan, Amazon’s Antitrust Paradox, 126 Yale L. J. 710 (2017) ("We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.")

^6. See, e.g., Dissenting Statement of Commissioner Mellisa Holyoak in the Matter of Southern Glazer’s, File No. 21100155 (December 12, 2024) ("Those who do not learn from history too often repeat it. Equally true—and relevant to today’s Complaint—is that those who are wrong about history refuse to be disabused. The mistaken views of the history of the Robinson-Patman Act (the Act) illustrate this point well.")

^7. Because this is a California Lawyers Association publication, and because of the uniqueness of California’s Unfair Practices Act, this article focuses on California law regarding below-cost prices.

^8. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340, 109 L. Ed. 2d 333, 110 S. Ct. 1884 (1990).

^9. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588-590, 89 L. Ed. 2d 538, 106 S. Ct. 1348,

^10. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 226, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993).

^11. Id. at 222-224.

^12. Id.

^13. See Department of Justice Report on the Robinson-Patman Act, available at https://www.justice.gov/atr/media/1378486/dl?inline

^14. Antitrust Modernization Commission, Report and Recommendations (April 2007), available at https://govinfo.library.unt.edu/amc/report_recommendation/toc.htm

^15. Dissenting Statement of Commissioner Mellisa Holyoak in the Matter of Southern Glazer’s, File No. 21100155 (December 12, 2024)

^16. Skepticism about Robinson-Patman and predatory pricing is unquestionably "Chicago School." But by the late 1990s and early 2000s, it felt like the entire antitrust world believed in some Chicago School points. Even President Barack Obama, thought by his detractors to be far left on many issues, had a relatively modest antitrust agenda (coincidentally or not, President Obama taught at the literal University of Chicago Law School in the 1990s and early 2000s alongside many Chicago School proponents and a few Chicago School critics).

^17. There were even "Wu & Khan & Kanter" coffee cups.

^18. https://www.politico.com/news/magazine/2025/05/09/gail-slater-donald-trump-antitrust-00277348

^19. Volvo Trucks N. Am. Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 177, 126 S. Ct. 860, 163 L. Ed. 2d 663 (2006).

^20. FTC v. S. Glazer’s Wine & Spirits, LLC, No. 8:24-cv-02684-FWS-ADS, 2025 U.S. Dist. LEXIS 94533, at *1 (C.D. Cal. April 17, 2025) (quoting complaint).

^21. 15 U.S.C. § 13(a).

^22. Dissenting Statement of Comm’r Melissa Holyoak, In the Matter of Southern Glazer’s, Matter No. 2110155, at 2-6 (Dec. 12, 2024).

^23. Id.

^24. Id.

^25. United Wis. Grain Producers LLC v. Archer Daniels Midland Co., No. 22-2993, 2025 U.S. App. LEXIS 17890 at *11-12 (7^th Cir. July 18, 2025) (cleaned up)

^26. Bay Guardian Co. v. New Times Media LLC, 187 Cal. App. 4^th 438, 453 (2010)

^27. See Bay Guardian, 187 Cal. App. 4^th at 459 (declining to find an implied recoupment requirement within Section 17043); Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 226 (U.S. 1993) (defining recoupment under federal law); Int’l Travel Arrangers v. NWA, Inc., 991 F.2d 1389, 1394 (8^th Cir. 1993) (describing federal average variable cost requirement).

^28. Mylan Pharms. Inc. v. Teva Pharms. Indus. Ltd., No. CV 21-13087 (JXN) (JSA), 2025 WL 756793 (D.N.J. Feb. 27, 2025) ("Mylan v. Teva").

^29. Id. at *1.

^30. PBMs manage prescription drug benefits for their clients (e.g., health insurance companies, large companies, government entities, etc.) and negotiate with drug manufacturers for better prices and rebates in connection with the drug formulary design services that they provide. See Fed. Trade Comm’n, Office of Policy Planning, Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies, Interim Staff Report at 9-10 (July 2024) ("PBMs and their health plan clients often specify the brand, generic, and specialty drugs that will be included on drug formularies (and therefore covered by payers for their beneficiaries) and the associated patient cost-sharing requirements. . . . PBM and health plan decisions about formulary designs influence whether insured Americans can access the drugs their doctors prescribe, and at what cost."), available at https://www.ftc.gov/reports/pharmacy-benefit-managers-report.

^31. Mylan further alleged that Teva’s anticompetitive conduct also included serial petitioning of the FDA to delay the approval and launch of generic Copaxone products, a marketing campaign designed to get medical professionals to write "Dispense as Written" prescriptions to override state substitution laws that automatically switch prescriptions to low priced generics, and a product "hop"/soft switch program aimed at shifting demand towards a new dose of Copaxone that did not face generic competition. See Mylan, 2025 WL 756793 at *4-7.

^32. See id. at *5.

^33. See id. at *19.

^34. See id. at *19-22.

^35. Id. at *19.

^36. See fn. 30.