USA – WASHINGTON, DC Trends and Developments Contributed by: Ashley Eickhof, Mark Weiss, Timothy Finley and Andrew Black, Baker McKenzie
transaction. ( United States v Bertelsmann SE & Co. KGAA (D.D.C. 2021) .) MDL updates in private litigation On the private litigation side, three large-scale antitrust multi-district litigations (MDL) (see 28 USC, Section 1407) are ongoing in DC. Two of these are part of the long-running In re Rail Freight Fuel Surcharge Antitrust Litigation (D.D.C. 2007) . On 24 June 2025, the defend - ants in these two MDLs were granted summary judg - ment. The decision extinguishes all the price-fixing claims in the nearly two-decade-long case that has seen multiple appeals to the DC Circuit. In the unsealed opinion, published on 27 June 2025, Chief Judge Howell concluded that follow-the-leader conscious parallelism, without more, is insufficient to establish a conspiracy. That conclusion, while seem - ingly uncontroversial, may affect numerous ongoing and future litigations. The other ongoing MDL in DC, In re Domestic Airline Travel Antitrust Litigation (D.D.C. 2021) , may be one of the affected cases. After denial of summary judg - ment in 2023, non-settling defendants are moving toward trial but also sought an interlocutory appeal. Specifically, they contend that the district court erred in determining that parallel conduct alone suffices to survive summary judgment. In addition, the defend - ants also sought an interlocutory appeal regarding whether their forward-looking statements to investors about capacity plans may serve as evidence to infer a conspiracy. On 9 July 2025, the defendants submitted a notice of supplemental authority, asserting that the decision in Rail Freight Fuel Surcharge supports their position that summary judgment should have been granted. If the interlocutory appeal is granted, the DC Circuit could address the requirements of a case based on parallel conduct and whether public statements to investors on topics like capacity can be seen as inappropriate signals that suggest companies are not acting inde - pendently. In summary, DC is an important venue not just for the federal agencies, but also for private plaintiffs. The outcomes of these cases will not only shape the legal
landscape within DC but also have far-reaching impli - cations for antitrust enforcement across the United States. Aggressive enforcement from DC’s Attorney General State antitrust enforcers have played a prominent role in recent antitrust enforcement and litigation, with the DC Attorney General at the forefront. The office of the DC Attorney General has partnered with the DOJ on many recent antitrust cases and has also initiated antitrust cases on its own, seeking to enforce the anti - trust laws in novel ways. The office of the DC Attor - ney General was aggressive on antitrust enforcement under former DC Attorney General Karl Racine and is continuing that posture under the current DC Attor - ney General Brian Schwalb. The cases brought by the DC Attorney General in recent years are consistent with increased state antitrust enforcement across the United States. United States et al. v Live Nation Entertainment, Inc. and Ticketmaster L.L.C. (S.D.N.Y. 2024) The DC Attorney General joined the DOJ and 39 oth - er attorneys general in alleging that Live Nation and Ticketmaster maintain monopolies in ticketing, con - cert promotion, and amphitheater access. The court denied the defendants’ motion to dismiss in March 2025. FTC et al. v Kroger Co. and Albertsons Companies, Inc. (D. Ore. 2024) The DC Attorney General joined the FTC and eight states in challenging the proposed merger. In Decem - ber 2024, the court granted a preliminary injunction under Section 7 of the Clayton Act, finding the merger would likely lessen competition. The companies sub - sequently abandoned the deal. In a statement following the ruling, Attorney General Brian Schwalb emphasised the local impact: “This is a huge win for District residents.... The proposed merger threatened to completely erase all competition between the Kroger-owned Harris Teeter and Albert - sons-owned Safeway stores in the District.” W.C. Smith settlement (2025)
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