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AAI Tells Third Circuit to Be Practical About Substantial Foreclosure in Exclusive Dealing Cases (Reading Hospital v. Hill-Rom Holdings)

On February 5, 2026, the American Antitrust Institute (AAI) filed an amicus brief in Reading Hospital v. Hill-Rom Holdings, Inc., No. 25-2969, asking the Third Circuit to reverse a district court’s dismissal of an exclusive dealing claim for failure to adequately allege substantial foreclosure.

The plaintiff, a Pennsylvania hospital, alleged that the defendant, Hill-Rom, which is a dominant supplier of hospital beds, monopolized national markets for standard hospital beds, ICU beds, and birthing beds by leveraging its large market share to force exclusivity arrangements on major hospital systems, known as Integrated Delivery Networks (IDNs), throughout the United States. Although the plaintiff alleged hundreds of contracts covering the full scope of Hill-Rom’s large market share, which allegedly exceeded 70% in each market, the district court dismissed the complaint because it identified specific exclusivity provisions in only two contracts with major IDNs, which together accounted for only as much as 20% of the relevant markets—well below the 40% foreclosure share that other courts have treated as a guidepost for substantial foreclosure in exclusive dealing cases.

AAI’s brief argues that the district court committed at least three reversible errors. First, it failed to consider the complaint allegations holistically, which led it to demand specificity in fact pleading that goes far beyond what Rule 8 requires. Second, it focused unduly narrowly on the known foreclosure percentage from the two agreements, ignoring accompanying allegations of many other agreements and about the long duration of the agreements relative to industry norms and their imposition by fiat rather than pursuant to competitive bidding. Third, it departed from well established pleading law by penalizing the plaintiff for failing to allege specific contract language, effectively treating factual allegations that were not pled with specificity as though they were not pled at all. Among other things, AAI’s brief emphasizes that precedent requires trial courts to focus on the “practical effect” of challenged exclusive dealing agreements and that plaintiffs cannot be required to ferret out and plead the specific terms of confidential contract provisions prior to discovery.

AAI thanks Fairmark Partners, LLP for serving as pro bono counsel. The brief was written by Fairmark’s Co-Founding Partner Jamie Crooks and Associate Mike Goldberg, with assistance from AAI President Randy Stutz and AAI General Counsel Mark S. Hegedus.

Read the full amicus brief: AAI Amicus Brief (Reading Hospital v. Hill-Rom Holdings, Inc.)

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Commentary by Fisher: Closing Costs: A Critical Examination of the DOJ’s Proposed RealPage Settlement

The American Antitrust Institute’s (AAI) Senior Counsel David O. Fisher has published a commentary critically examining the DOJ’s proposed agreement settling its antitrust suit against algorithmic software provider RealPage, United States v. RealPage, No. 1:24-cv-00710-WLO-JLW (M.D.N.C.). In the commentary, Fisher examines the theoretical purpose of the agreement and what its terms mean in practice, raising important questions regarding the settlement’s ability to achieve its goals.

Fisher explains that RealPage serves as an algorithmic cartel manager, allowing multifamily housing landlords to coordinate pricing decisions by collecting each competitors’ pricing information and setting common pricing rules. Although the proposed settlement appears aimed at preventing RealPage from carrying out these functions, Fisher notes that the actual terms of the agreement may allow RealPage to continue to serve this role in practice. In particular, there is some ambiguity about whether RealPage may continue to use the real-time data of all of its software licensees as an input to make price recommendations to any one licensee. In addition, the scope and quantity of competitor data that property owners can collect and use to request price recommendations remains unclear. It is also unclear whether, notwithstanding the agreement’s data use restrictions, RealPage may continue to recommend higher prices to competing landlords in a way that raises market prices above the competitive level.  Fisher concludes that the settlement is likely to influence future agreements and business models, and that DOJ must address these questions so that renters and the public can properly evaluate the settlement’s efficacy.

Read the full commentary: Closing Costs: A Critical Examination of the DOJ’s Proposed RealPage Settlement

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AAI Files Comments with DOJ on Proposed RealPage Settlement

The American Antitrust Institute (AAI) has filed Tunney Act comments with the Department of Justice (DOJ) regarding the proposed settlement agreement in its antitrust suit against algorithmic software provider RealPage, United States v. RealPage, No. 1:24-cv-00710-WLO-JLW (M.D.N.C.).

As part of its submission, AAI appended a commentary by AAI Senior Counsel David O. Fisher. The commentary provides critical analysis of specific terms of the proposed settlement. It raises important questions regarding the settlement’s ability to prevent RealPage from continuing to serve as an algorithmic cartel manager in multifamily housing markets, and it urges the DOJ to address those questions so that renters and the public can properly assess the proposed settlement.

Read AAI’s letter: United States v. RealPage, Inc., No. 1:24-cv-00710-WLO-JLW

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AAI Asks D.C. Circuit to Stop the “Bleeding” of Plus Factors in Section 1 Cases (In re Rail Freight Fuel Surcharge Antitrust Litig.)

On December 19, 2025, the American Antitrust Institute (AAI) filed an amicus brief in In re Rail Freight Fuel Surcharge Antitrust Litigation (No. I), MDL No. 1869, asking the D.C. Circuit to faithfully apply the Supreme Court’s framework for assessing whether a cartel agreement can be inferred from circumstantial evidence.

Because most price-fixing is done in secret, plaintiffs in Section 1 cases under the Sherman Act rarely can adduce direct evidence of a cartel agreement. When they must rely instead on an inference of agreement from circumstantial evidence, the Supreme Court has created a two-part framework for assessing whether such an inference is permissible. The plaintiffs must plead and prove (1) parallel conduct and (2) so-called “plus factors,” which can be any additional evidence that is suggestive of a meeting of the minds in an unlawful arrangement.

In Rail Freight, the plaintiffs are railroad shippers who allege that the nation’s four largest railroad companies—BNSF, CSX, Norfolk Southern, and Union Pacific, which together control about 90% of the U.S. freight railroad market—conspired to raise prices for rail freight shipments by imposing aggressive universal fuel surcharges on customers. The district court granted summary judgment for the defendants, holding that the plaintiffs failed to make a threshold showing that the defendants even acted in a parallel fashion, let alone the requisite showing of both parallel conduct and plus factors. The court reasoned that in an oligopoly market, where “conscious parallelism” sometimes can explain parallel price increases that are also consistent with an unlawful agreement, the plaintiffs must plead and prove “unusual parallel conduct,” meaning conduct that could not be explained by the phenomenon of oligopolistic interdependence.

The court believed that, in this sense, plus-factor analysis can “bleed into” the parallel conduct inquiry. Here, the court held, the plaintiffs failed to offer evidence that accounted for differences in the defendants’ specific fuel surcharge formulas and the timing in which they adopted them. Accordingly, the plaintiffs did not satisfy the threshold parallel conduct requirement.

In its brief, AAI explains that the district court’s approach alters and distorts the Supreme Court’s framework by conflating its two parts. Instead of requiring parallel conduct and plus factors, the district court required parallel conduct that is “unusual” in its parallelism. Such an approach smuggles a narrow subset of timing and simultaneity plus factors into the threshold requirement, raising the plaintiffs’ burden, and invites courts to ignore all other plus factors that fall outside the subset. The effect is to convert certain plus factors into elements, which  prevents plus-factor analysis from serving as the flexible, holistic, and context-dependent indicator of collusion that the Supreme Court intended it to be.

AAI also explains that the district court’s approach is flawed economically and as a matter of competition policy because it wrongly assumes that supracompetitive prices in an oligopoly can always be explained by oligopolistic interdependence. Such an assumption tips the scale against a finding of collusion in the very markets in which collusion is most likely to occur and in which the cost of overdeterrence is comparatively low.

The brief was written by AAI President Randy Stutz, AAI Vice President and Director of Legal Advocacy Kathleen Bradish, and AAI Senior Counsel David O. Fisher.

Read the full brief: AAI Amicus Brief (In re Rail Freight Fuel Surcharge Antitrust Litig.)

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Taking an “Extra” Look at Addressing Monopolization: A Conversation with Jennifer Sturiale

In this episode of Ruled by Reason, the American Antitrust Institute’s (AAI) Vice President and Director of Legal Advocacy Kathleen Bradish speaks with Professor Jennifer Sturiale about how her recent work attempts to address the persistent gap between public concern over monopolies and the limits of current Section 2 enforcement.

Sturiale notes at the outset that her work originates in a fundamental, ongoing issue: while antitrust law is, by its nature, deliberately narrow—designed not to punish firms that acquire monopoly power through “superior business acumen” or historic accident—this leaves significant harms unaddressed. In her view, monopoly power is harmful regardless of how it is acquired, not only because of price, output, or quality effects, but also because monopolists amass outsized resources that can distort politics, media, litigation, and democratic processes more broadly. (2:37)

Sturiale then describes how her recent scholarship explores an unconventional alternative: using federal or state eminent domain powers—what she calls an “extra-antitrust” approach—to address market concentration. (5:49) Drawing on Supreme Court takings jurisprudence, particularly Hawaii Housing Authority v. Midkiff, she explains that the Court has interpreted “public use” broadly to include correcting economic distortions such as oligopoly. (9:12) She argues that this precedent suggests governments could, in principle, condemn property to break up monopolized or highly concentrated markets, provided just compensation is paid. Her illustrative example involves the highly concentrated dialysis market, where states could use eminent domain to enable new entry and competition without proving exclusionary conduct under traditional antitrust standards. (13:45)

A central advantage of this approach, Sturiale argues, is that it bypasses many of the evidentiary burdens that make Section 2 cases slow, costly, and uncertain—such as market definition and proof of anticompetitive conduct. (29:35) Legislatures, rather than courts alone, could determine that a market is excessively concentrated based on hearings, expert testimony, and consumer experience. Compensation requirements would serve as an important limiting principle, both restraining overuse of eminent domain and preserving incentives to innovate, since firms could be compensated for lost profits rather than punished through treble damages. (23:55)

At the same time, Sturiale is clear that her proposal is both a serious thought experiment and a critique. Political will, lobbying by powerful firms, valuation difficulties, and constitutional constraints—especially in national or IP-driven markets—pose real obstacles. (32:66) Still, she suggests that state-level experimentation in local markets could demonstrate feasibility and help democratize responses to market power. (46:35) Ultimately, the discussion reframes monopolization remedies not as solely an antitrust problem, but as part of a broader set of tools available to democratic governments confronting durable concentration in modern markets.

GUEST

Jennifer Sturiale teaches Civil Procedure and Property as an Associate Professor of Law at Widener University Delaware School of Law. Her scholarship focuses on issues of civil procedure, complex litigation, intellectual property, antitrust, and issues at the intersection of these disciplines. Her scholarship has been published in the Alabama Law Review, the Utah Law Review, and the University of Illinois Law Review, among others.

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AAI’s Fisher Publishes Article on Algorithmic Pricing in ABA Antitrust Magazine

AAI Senior Counsel David O. Fisher authored an article titled “Tacit Agreements to Collude: Enforcing Section 1 of the Sherman Act in the Age of Algorithms,” that was featured in the Fall 2025 issue of the ABA’s Antitrust Magazine.

In the article, Fisher argues that, in the Age of Algorithms, tacit and express collusion will proliferate unless we adopt our application of  antitrust law accordingly. Specifically, Fisher argues for a holistic and flexible application of plus factors that reflects the ways in which pricing algorithms allow for stable tacit agreements. He also argues that algorithmic pricing should prompt us to rehabilitate tacit agreement as a theory of Section 1 liability and to consider expressly prohibiting algorithmic tacit collusion.

Read the article: Tacit Agreements to Collude: Enforcing Section 1 of the Sherman Act in the Age of Algorithms

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AAI Warns Third Circuit About the Dangers of Entertaining Meritless Class Certification Challenges that Undermine Anti-Cartel Enforcement (In re Generic Pharmaceuticals Pricing Antitrust Litig.)

On November 21, 2025, the American Antitrust Institute (AAI) submitted an amicus brief to the Third Circuit in In re Generic Pharmaceuticals Pricing Antitrust Litigation, No. 25-2220, urging the court to affirm the district court’s order certifying a class of end-payers. The case is one of the bellwether actions in a sprawling MDL involving sweeping price-fixing allegations affecting a large number of generic drugs during the early 2010s. Classes were certified by the district court, after which some defendants settled. The remaining defendants challenged class certification in the Third Circuit, arguing that the complexity of pharmaceutical payment systems raised questions of predominance, ascertainability and superiority that made certification of end-payer classes inappropriate.

AAI’s brief warns the Third Circuit against strategic class certification challenges that allow antitrust defendants to avoid compensating victims of criminal, per se illegal conduct. AAI points out that such challenges, if successful in blocking the only viable pathway to civil relief, can have damaging effects across the interconnected U.S. antitrust enforcement system. Public and private enforcement depend on one another, both as a matter of historical design and current policy, which relies on private damage actions to provide victims of criminal antitrust violations with restitution.

AAI’s brief argues that private enforcement cannot fulfill its role if overly difficult proceedings make it too burdensome for plaintiffs to bring class actions, as expense and diffuse damages mean many private antitrust cases would never be brought without the class device. In the case of end-payers, AAI notes that artificially limiting class actions has the perverse effect of denying compensation to the only victims in a conspiracy who assuredly cannot pass on their injury. Moreover, it threatens to undermine the core purposes of the so-called Illinois Brick repealer statutes that most states have passed to ensure their end-purchaser citizens are compensated for antitrust violations.

AAI warns that defendants’ effort to overturn class certification is a strategic attempt to shield ill-gotten gains obtained through criminal conduct by exploiting the very complexity they relied on to conceal the conspiracy in the first place. The importance of avoiding a deterrence gap for such conduct, the brief explains, is underscored in this case by the undeniable harms felt at the end of the pharmaceutical supply chain. AAI cites examples in which patients dependent on the price-fixed drugs faced massive price spikes—sometimes exceeding 1,200%—forcing them to delay treatment, switch to inferior alternatives, or forego medication altogether.

The brief was written by AAI Vice President and Director of Legal Advocacy Kathleen Bradish.

Read the full brief: AAI Amicus Brief (In re Generic Pharmaceuticals Pricing Antitrust Litigation)

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The Three-Legged Stool of U.S. Antitrust Enforcement: A Conversation with Michael Kades

In this episode of Ruled by Reason, AAI President Randy Stutz talks with antitrust thought leader Michael Kades about the latest developments at the intersection of federal, state and private antitrust enforcement.

The conversation begins with a discussion of the strengths and weaknesses of federal, state and private enforcers in the current enforcement climate (5:11). It then moves to the promise of “public entity litigation,” in which private counsel represent federal, state or local government entities in bringing enforcement actions they lack the resources to bring on their own (8:45).

Stutz and Kades then discuss strategic complexities and possible “force multipliers” when private counsel represent a governmental agency (11:31), including with respect to bringing cases where the agency’s main priority is to develop antitrust doctrine or to shift risk when high-reward cases require large upfront resource commitments (13:33). They also discuss federal claims under Section 4A of the Clayton Act—which allows the government to recover treble damages in its capacity as an injured purchaser—and why such claims may be under-utilized (16:10).   

The conversation then shifts to merger enforcement, with a focus on the role of states and private plaintiffs (20:22). Among other things, Kades identifies categories of mergers where states may have an added advantage in merger enforcement (25:14). He also discusses how policy preferences and subject-matter emphases at the federal level can spur state and private enforcers to fill gaps in federal attention, though he cautions against trying to deduce policy preferences and attention levels solely from counting statistics (29:48).

The conversation concludes with a discussion of allegations that federal enforcement has become “politicized” during the Biden and Trump administrations, and the role of the states in diffusing certain criticisms (33:13).

GUEST

Michael Kades is a Partner at Nachawati Law Group, where he recently launched a private antitrust practice focused on Public Entity Litigation. He previously served as Deputy Assistant Attorney General for Civil Enforcement at the Antitrust Division of the Department of Justice, as Director of Markets and Competition Policy at the Washington Center for Equitable Growth, and as antitrust counsel to Sen. Amy Klobuchar on detail from the Federal Trade Commission, where he spent 20 years as an attorney investigating and litigating antitrust actions.

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AAI Urges Ninth Circuit to Apply Sherman Act to Transnational Market Division Agreements (WAIPU v. NHL)

On November 19, 2025, the American Antitrust Institute (AAI) filed an amicus brief supporting plaintiffs before the Ninth Circuit in World Association of Icehockey Players Unions North America Division (“WAIPU”) v. National Hockey League (“NHL”), No. 25-3929.

The case arises out of the NHL’s agreement with the Canadian Hockey League (“CHL”) and its member leagues to divide up the North American market for junior hockey players into three exclusive geographic territories, each spanning portions of both the United States and Canada. The plaintiffs, junior major hockey players and the labor organizations that represent them, alleged that the agreement violates Section 1 of the Sherman Act. After dismissing some defendants for lack of personal jurisdiction, the U.S. District Court for the Western District of Washington dismissed the claims of players recruited in Canada to play for Canadian teams as barred by the Foreign Trade Antitrust Improvements Act (“FTAIA”). It then dismissed all of the remaining claims—those of players who were either recruited in the United States or played for teams in the United States—on the basis of international comity.

In its amicus brief supporting plaintiffs and reversal, AAI argues that transnational market allocation agreements in markets that include U.S. territory necessarily fall under the FTAIA’s domestic-effects exception, which applies the Sherman Act to foreign conduct that has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce if that effect “gives rise to” a foreign injury. Under Ninth Circuit precedent, a foreign plaintiff must show a proximate—and not merely but-for—causal connection between its injury and the domestic effects of defendants’ conduct. Here, the direct effect of defendants’ market allocation agreement was to prevent U.S. teams from recruiting North American junior hockey players outside of their allocated territory, and the Canadian players’ injuries were proximately caused by that effect, which left them unable to market their services to many U.S. teams.

AAI also argued that the principles of international comity support exercising jurisdiction when failing to do so would leave U.S. antitrust victims without legal recourse for violations of U.S. antitrust law. Pointing to a Canadian court opinion dismissing parallel claims on the merits, the plaintiffs argued that Canadian law does not provide them any relief. If that is true, AAI argued, then declining to exercise jurisdiction over the U.S. players’ claims on the basis of comity would leave those players without any recourse for a violation of U.S. antitrust law. Considering the U.S.’s strong interest in deterring anticompetitive conduct which harms U.S. markets, the principles of comity support exercising jurisdiction in such a case.

The brief was written by AAI Senior Counsel David O. Fisher, with assistance from AAI President Randy Stutz.

Read the full brief: AAI Amicus Brief in WAIPU v. NHL

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Commentary by Stutz: Competition, Market Failure, and Doublethink in News Markets

In this essay, American Antitrust Institute (AAI) President Randy Stutz argues that the Trump administration’s competition advocacy and enforcement to promote viewpoint diversity in digital news markets conflict with its regulatory interventions that mandate unilateral increases in the supply of viewpoint diversity in the same markets. Even if the administration’s actions pass muster under the First Amendment, it is unlikely to achieve any of its goals because it has failed to formulate a coherent policy.

The essay is reprinted with permission from Concurrences. It originally appeared in Concurrences’ November On-Topic series, Content Moderation and Antitrust. View the Original Source.

Abstract:

Viewpoint diversity in news publishing is either a public good—non-excludable and non-rivalrous and thus underproduced absent regulatory intervention—or a private good—such that publishers’ reputations, advertising, or other factors enable competitive market forces to meet consumer demand. Depending on which view is adopted as accurate, the proper approach to ensuring sufficient viewpoint diversity will differ. In its zeal to address a perceived imbalance of viewpoints in news markets, the Trump Administration has not paused to choose one view or the other. It has deployed both market-based and regulatory approaches in the same news markets simultaneously, all but ensuring that neither will work. Incoherent policy has led to self-defeating actions that work at cross-purposes with one another. Thus, the administration’s rhetorical support for greater viewpoint diversity is unlikely to lead to any meaningful benefits.

Read the full essay: Competition, Market Failure, and Doublethink in News Markets