Insights

The FTC notched a recent win in federal court, securing a permanent injunction halting the combination of the two dominant brands of construction adhesives, Loctite and Liquid Nails.  In the recently unsealed decision, the court focused on the extensive head-to-head competition between the parties and the importance of brand equity in siding with the FTC, offering important lessons for merging parties.   

On 3 September 2026, the European Commission adopted new Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. The Guidelines follow a public consultation on a draft published in August 2024 and reflect substantial stakeholder feedback. They replace the Commission's 2008 Guidance on enforcement priorities (which ceases to apply 30 days after publication of the new guidelines in the Official Journal) and represent the most significant reset of the Commission's Article 102 enforcement framework in nearly two decades. The Commission's stated aim is to set out principles and operational guidance, enhance legal certainty, and help companies self-assess their exclusionary-abuse risk.

Enbrel (etanercept) is one of the best-selling biologic drugs in the United States, approved to treat rheumatoid arthritis and other serious inflammatory conditions. Etanercept was launched as Enbrel in 1998 as a treatment for moderate to severe rheumatoid arthritis, and was later approved to treat additional inflammatory diseases including plaque psoriasis, psoriatic arthritis, ankylosing spondylitis, and polyarticular juvenile idiopathic arthritis.  

Algorithmic pricing tools commonly used by businesses to increase efficiency and profits are under increasing antitrust scrutiny. This summer, federal regulators, state attorneys general, and state legislatures grappled with competing businesses providing nonpublic, competitively sensitive data to common algorithmic platforms. The Third Circuit deepened an emerging circuit split with the Ninth Circuit on algorithmic pricing liability, reviving antitrust claims against Atlantic City casino-hotels in a decision with direct implications for any company that uses a common pricing platform. See Crowell’s recent client alert. And New Jersey enacted two landmark laws—the FAIR Act and the Fair Price Protection Act—directly regulating algorithmic rent-setting and surveillance pricing. See Crowell’s recent client alert.

On July 23, 2026, the U.S. Department of Justice’s Antitrust Division announced that it will again use targeted Second Request investigations and released a revised Model Timing Agreement, another signal that this Antitrust Division continues to take a more business friendly approach toward merger review. The model introduces an optional “Expedited Consideration” process that gives merging parties the option to address discrete competitive concerns identified by the DOJ before undertaking full Second Request compliance.

Two federal appellate courts have now looked at analogous allegations of price fixing using AI-driven pricing software and reached opposite conclusions—creating an arguable circuit split and providing additional guidance to companies using algorithmic pricing tools.

On July 13, 2026, the U.S. Court of Appeals for the 2nd Circuit affirmed a preliminary injunction against Nielsen, handing Cumulus Media a significant win in a constructive tying case with implications beyond the radio ratings industry. Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC, No. 26-88 (2d Cir. Jul. 13, 2026).

A recently filed class action lawsuit against Gymshark, a prominent athletic apparel company, highlights the escalating legal risks associated with influencer marketing. The complaint, brought in the U.S. District Court for the Southern District of New York on June 16, 2026, alleges that Gymshark systematically paid social media influencers to promote its products without ensuring that the influencers were providing clear and conspicuous disclosures about such payment, in violation of Federal Trade Commission (FTC) guidance and New York state law.

In the underlying litigation, Epic Games alleged that Apple violated antitrust and unfair competition laws by engaging in anti-steering behavior related to purchases on Apple’s in-app payment system. Apple received a percentage of payments made through this system, and Epic Games argued that Apple prohibited app developers from informing users about alternative payment options.  

Two significant recent developments illustrate the Trump administration’s increasing focus on policing of hospital contracting practices that limit health plan network design flexibility. On June 16, 2026, the U.S. Department of Justice (DOJ) Antitrust Division and Ohio attorney general filed a proposed consent decree resolving their civil antitrust suit against OhioHealth. (Prior Alert) Two days later, the White House Council of Economic Advisers (CEA) released a memorandum quantifying the potential economic effects of a broader ban on the types of contracting restrictions at issue in the OhioHealth case and the DOJ's parallel suit against NewYork-Presbyterian. This alert updates our prior coverage of the OhioHealth complaint and summarizes both developments.

On June 8, 2026, a new EU regulation was adopted to replace the 2019 Foreign Direct Investment (FDI) Screening Regulation. The new regulation requires all Member States to establish a screening mechanism for inbound FDI. It also defines a mandatory minimum sectoral scope, expands coverage to investments by foreign investors’ EU subsidiaries, and improves coordination between Member States and the Commission.

In a judgment that will have direct and immediate consequences, the Court of Justice of the European Union (CJEU) has clarified that for all competition damages actions brought after 26 December 2014, interest runs from the date on which the harm occurred. The ruling addressed two important questions: (1) whether national provisions implementing Article 3(2) of the EU Damages Directive — which requires interest to run from the date harm occurred —apply to cases in which the harm preceded the adoption of those provisions; and (2) how the date of harm should be determined in cartel cases involving the purchase of goods at inflated prices.

California’s COMPETE Act (AB 1776) narrowly passed the California State Assembly by three votes on Wednesday and now moves to the California State Senate. The bill — introduced in March by Assembly Majority Leader Cecilia Aguiar-Curry — is modeled closely on draft legislation recommended by the California Law Revision Commission in September. AB 1776 would not only significantly expand potential liability for single-firm conduct and monopolization but, based on recent amendments, would also explicitly decouple California antitrust analysis from certain federal standards. Crowell & Moring is representing the California Chamber of Commerce (CalChamber) in monitoring, analyzing, and responding to AB 1776. 

Last week, the U.S. Department of Justice (DOJ) Antitrust Division (the Division) revealed criminal charges against China International Marine Containers (Group) Co., Ltd. (CIMC) and several other major Chinese companies and executives involved in the manufacture and sale of standard dry shipping containers, which are used for shipping dry, unrefrigerated cargo on ships around the world. One of the executives was arrested at an airport in France and is awaiting extradition to the U.S. The indictment charged these defendants with violating Section 1 of the Sherman Act by conspiring to restrict output and fix prices of standard dry containers, including in the U.S. market, from 2019 to 2024.

On 30 April 2026, the European Commission published draft merger guidelines that will replace both the 2004 Horizontal Merger Guidelines and the 2008 Non-Horizontal Merger Guidelines, consolidating them into a single analytical framework.

On 29 April 2026, the European Commission adopted the Middle East Crisis Temporary State Aid Framework (METSAF), a temporary framework relaxing the conditions under which EU Member States can support companies in sectors particularly affected by fuel, fertilizer, and electricity price surges driven by the Middle East crisis.

On April 15, 2026, a federal jury found Live Nation and its subsidiary Ticketmaster liable on every antitrust count submitted, including monopolization of primary ticketing markets and illegal bundling of its promotions and venue business lines. The jury found the defendants liable for $1.72 for each primary concert ticket sold pursuant to the anticompetitive conduct.[1] The trial opened March 2, 2026, before Judge Arun Subramanian in the Southern District of New York, as a case brought by the federal government and a coalition of states. The case, however, was rocked by an early-trial settlement between the Department of Justice (DOJ) and the defendants. Although the DOJ and six of the plaintiff states (Arkansas, Iowa, Mississippi, Nebraska, Oklahoma, South Dakota) exited the trial, 33 states and the District of Columbia rejected the settlement, brought in a law firm, and moved forward with the trial. Next up for the case: (1) a statutorily required Tunney Act review of the DOJ’s settlement; (2) defendants’ Rule 50 and Rule 59 motions; (3) determination by the Court of how many tickets are subject to the $1.72 damage award (before trebling as per the Clayton Act); and (4) a remedy phase where the Court will consider plaintiffs’ likely proposal to sever Ticketmaster from Live Nation.

On March 4, 2026, the European Commission proposed the Industrial Accelerator Act (IAA), a draft regulation that aims to reverse the decline of the EU’s manufacturing sector while supporting the adoption of cleaner technologies. This client alert is the third in a three-part series dedicated to the IAA. In our first alert, we provided an overview of the draft regulation. In a second alert, we took a closer look at the new foreign direct investment (FDI) review framework that the IAA would establish for certain strategic sectors. In this third and final instalment of the series, we focus on the implications of the proposal for the automotive industry.

On March 18, 2026, the Antitrust Division (Division) of the U.S. Department of Justice (DOJ) entered into a Non-Prosecution Agreement (“NPA”) with Broadway Across America (“BAA”), resolving a criminal antitrust investigation into agreements between BAA and another entertainment company (“Company A”) that included non-compete restrictions on Company A’s ability to offer potentially competing programming. Notably, the restrictions were contained in a vertical agreement by which BAA presented touring shows at theaters owned by Company A. The announcement is a reminder that the agencies continue to scrutinize non-compete agreements contained in business contracts, and all non-compete provisions, even those included between vertical partners, should be reviewed by antitrust counsel.

Legislative efforts to significantly expand California’s antitrust laws are working their way through the state legislature. The most comprehensive overhaul is Assembly Bill 1776 — the Competition and Opportunity in Markets for a Prosperous, Equitable and Transparent Economy (COMPETE) Act, introduced by Assembly Majority Leader Cecilia Aguiar-Curry, on March 23, 2026. AB 1776 is modeled closely after draft legislation recommended by the California Law Revision Commission (CLRC) in December. AB 1776 would not only significantly expand potential liability for single-firm conduct and monopolization but would also explicitly decouple California antitrust analysis from certain federal standards. Companies doing business in California should pay close attention to AB 1776 because of its potentially dramatic impact, including increased exposure to antitrust litigation and increased compliance costs.