On June 18, 2026, the American Antitrust Institute (AAI) filed an amicus brief in Uddin, et al. v. Elsevier, B.V., No. 26-457, asking the Second Circuit to reverse a district court’s dismissal of plaintiffs’ antitrust complaint for failing to allege an agreement in restraint of trade under Section 1 of the Sherman Act. The complaint alleged an unlawful price-fixing and market-allocation conspiracy on the part of for-profit publishers of peer-reviewed scholarly journals.
Plaintiffs are four scholar-scientists who seek to represent a class of similarly situated scholar-scientists. Defendants are the world’s six-largest for-profit publishers of peer-reviewed scholarly journals. The complaint alleges that the publisher-defendants, working through a trade association, adopted “ethical principles for scholarly publishing” that, among other things, require authors to submit their manuscripts to only one journal at a time and that deny scholar-scientists any compensation for their peer review services. The publisher-defendants, as a condition of membership in the trade association, explicitly agreed to abide by the principles.
In dismissing the complaint, the district court looked only at allegations setting forth the text of the ethical principles themselves, while ignoring many other factual allegations showing that the publisher-defendants’ agreement to adhere to them and their written policies and other conduct enforcing them. The district court reasoned that, under the Second Circuit’s 2023 decision in Relevent Sports, LLC v. U.S. Soccer Federation, it could only consider the principles themselves and could not consider what it deemed to be other circumstantial evidence of agreement. Further, the district court said the principles were merely non-binding, best-practices guidelines.
AAI’s brief argues that the district court misread Relevent Sports, where the Second Circuit held that a FIFA rule, characterized as a “sporting principle,” represented direct evidence of a Section 1 agreement where soccer leagues and teams had agreed to be bound by FIFA rules. The scholar-scientists’ allegations exactly track those held sufficient to allege an agreement in Relevent Sports. AAI also argues that, even if the other allegations are deemed to be circumstantial evidence, they are as probative as directive evidence of a Section 1 agreement. That is especially so given the illusive distinction between direct and strong circumstantial evidence. And when the scholar-scientists’ allegations are considered in their entirety, they show the publisher-defendants’ commitment to and enforcement of the principles.
AAI also notes that the Supreme Court and courts of appeals have repeatedly found that ethical principles characterized in normative terms nevertheless are binding agreements under Section 1.
The brief was written by AAI General Counsel Mark Hegedus.
Read the full brief: AAI Amicus Brief in Uddin, et al. v. Elsevier, B.V.
