North Carolina courts have contributed significantly to the development of modern antitrust law. North Carolina’s role as the epicenter of American tobacco manufacturing made its federal courts a natural venue for exclusive-dealing and loyalty-programme disputes among competing manufacturers. North Carolina’s federal courts served as the trial venue for two landmark cases that reached the United States Supreme Court: United States v Container Corp. of America, 393 U.S. 333 (1969), which established the rule against anticompetitive price information exchanges in oligopolistic markets, and Brooke Group Ltd. v Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), which set the modern two-part test for predatory pricing claims. Also, a Federal Trade Commission enforcement action targeting a North Carolina licensing board gave rise to the Supreme Court’s landmark decision in North Carolina Board of Dental Examiners v FTC, 574 U.S. 494 (2015), which established that a licensing board controlled by active market participants must show active supervision by the state to claim state-action immunity.

North Carolina’s state and federal courts continue to hear complex antitrust disputes across diverse sectors: agriculture, professional sports, health care, energy, and criminal enforcement. The five recent cases discussed below illustrate North Carolina courts’ continued role in shaping antitrust law.

Further, the North Carolina Attorney General has emerged as an increasingly active enforcer. This trend is consistent with the nationwide rise in state-level antitrust enforcement as federal agency resources are constrained. In addition to his role in the North Carolina-based litigation discussed below, the North Carolina Attorney General has participated in a variety of recent antitrust enforcement matters. These include (i) litigation with 33 other attorneys general against Live Nation and Ticketmaster that resulted in a jury verdict of liability for monopolising ticketing and large, live entertainment event markets, see Verdict Form, United States v Live Nation Ent., Inc., No 1:24-cv-03973 (S.D.N.Y. 15 Apr. 2026), ECF No 1417; (ii) litigation brought by eight attorneys general to block the proposed USD6.2 billion merger of television broadcast companies Nexstar Media Group, Inc. and TEGNA Inc. under Section 7 of the Clayton Act, In re Nexstar-Tegna Merger Litig., No 2:26-CV-00976-TLN-CKD, 2026 WL 2273005 (E.D. Cal. 6 Aug. 2026); and (iii) a settlement among the United States, 17 states, and three national egg producers over alleged wholesale price manipulation in violation of the Sherman Act, see Proposed Order Stipulations, United States v Cal-Maine Foods, Inc., No 5:26-cv-04060 (N.D. Iowa 29 June 2026), ECF Nos 2-1, 2-2, & 2-3.

Loyalty Programmes and Exclusive Dealing: FTC v Syngenta Crop Protection AG and In re Crop Protection Products Loyalty Program Antitrust Litigation

Manufacturer-loyalty programmes offering a rebate or discount have come under scrutiny as allegedly illegal exclusive-dealing arrangements in related cases in the United States District Court for the Middle District of North Carolina.

In Federal Trade Commission v Syngenta Crop Protection AG, 711 F. Supp. 3d 545 (M.D.N.C. 2024), the Federal Trade Commission and twelve states sued two major manufacturers of crop-protection products, alleging that the manufacturers used anticompetitive loyalty programmes to foreclose generic competition after relevant patents and other statutory protections expired. The plaintiffs allege that the manufacturers’ loyalty programmes each condition substantial end-of-year lump-sum payments – sometimes millions of dollars – on distributors sourcing 85-99% of specified post-patent active ingredients from the branded manufacturer. With roughly seven distributors controlling approximately 90% of the traditional distribution channel (and about 80% of all U.S. crop-protection-product sales), the plaintiffs allege foreclosure of approximately 70% of each relevant market. They also allege that the defendant manufacturers monitored compliance and retaliated against non-compliant distributors by canceling contracts, delaying access to new products, and withholding allocation during shortages. According to the plaintiffs, the two manufacturers also agreed that one manufacturer would supply certain active ingredients to the other manufacturer, so the latter could avoid purchasing generic alternatives. In exchange, the supplying manufacturer did not penalise distributors in its loyalty programme for buying those active ingredients from the latter manufacturer.

In denying the defendants’ motion to dismiss, the court addressed the doctrinal question of which legal test governs loyalty-discount programmes: the plaintiff-friendly rule of reason (traditionally applied to exclusive dealing) or the defendant-friendly price-cost test (under which pricing conduct is lawful so long as price exceeds cost). Following the reasoning of ZF Meritor, LLC v Eaton Corp., 696 F.3d 254 (3d Cir. 2012), the court explained that the price-cost test applies only where a pricing practice is the clearly predominant exclusionary tool. Because the plaintiffs plausibly alleged non-price mechanisms of exclusion – leveraging monopolist status, high entry barriers, threatened and actual supply cutoffs, de facto long-term lock-in via yearly renewals, and bundling-type features linking multiple active ingredients – the court declined to apply the price-cost test at the motion to dismiss stage. Analysing the complaint under the rule of reason, the court concluded that the plaintiffs stated claims for violation of the Sherman Act, the Clayton Act, and the FTC Act.

After discovery, the plaintiffs reached a settlement with Corteva. Syngenta’s motion for summary judgment is pending, and the case has not yet been set for trial.

A companion private multidistrict litigation, In re Crop Protection Products Loyalty Program Antitrust Litigation, 779 F. Supp. 3d 624 (M.D.N.C. 2025), consolidates putative class actions brought by farmers under the Sherman Act, the Clayton Act, and the laws of 38 states and the District of Columbia, arising from the Syngenta and Corteva loyalty programmes. On the defendants’ motion to dismiss, the court held that the Illinois Brick indirect-purchaser rule barred farmers’ federal damages claims because farmers purchase through distributors rather than directly from manufacturers. The court further concluded that plaintiffs did not plausibly allege a price-fixing conspiracy that would fit any exception to Illinois Brick. The court concluded that the farmers had statutory standing to pursue federal injunctive relief, and that the farmers plausibly alleged various state-law antitrust and consumer-protection claims. The farmers later reached a settlement with Corteva, and a motion to approve the settlement is pending. The farmers’ motion to certify a class against Syngenta is pending.

Monopsony Power in Professional Sports: 2311 Racing LLC v NASCAR

An antitrust challenge to NASCAR’s charter agreement was recently litigated in the Western District of North Carolina.

In 2311 Racing LLC v National Association for Stock Car Auto Racing, LLC, No 3:24-CV-00886 (W.D.N.C.), two NASCAR Cup Series racing teams brought claims under Sections 1 and 2 of the Sherman Act alleging that NASCAR unlawfully monopolised and monopsonised premier stock car racing in the United States. To be guaranteed participation in the NASCAR Cup Series, which includes the Daytona 500, racing teams must sign a charter agreement containing the rules of competition, fees, division of income, and other terms. The plaintiffs refused to sign the 2025 NASCAR charter agreement because it contained mutual release provisions covering the parties’ past conduct.

The district court issued a mandatory preliminary injunction requiring NASCAR to allow the plaintiffs to race without signing a release, finding that the plaintiffs were likely to succeed on the merits because NASCAR was a monopolist and requiring a release was anticompetitive conduct that NASCAR used to maintain market power. NASCAR appealed, and the Fourth Circuit vacated the injunction in 2311 Racing LLC v NASCAR, 139 F.4th 404 (4th Cir. 2025). The Fourth Circuit ruled that the teams failed to make the showing required for a mandatory injunction and that no case supports the proposition that a monopolist’s requirement of a general release as a condition of doing business is itself anticompetitive conduct under Section 2. As the Fourth Circuit explained, a release eliminates lawsuits, not competition.

On remand, both parties moved for summary judgment on various issues. In 2311 Racing LLC v NASCAR, 809 F. Supp. 3d 371 (W.D.N.C. 4 Nov. 2025), the court denied NASCAR’s motion for summary judgment and granted the teams’ motion for partial summary judgment on two elements of their claim: (i) that the relevant market was the “input market for premier stock car racing teams” in the United States, and (ii) that NASCAR possessed monopsony power in that market. The first of these elements turned on a judicial admission made by NASCAR. In its own counterclaim, NASCAR alleged effectively the same relevant market that the teams alleged. The court held NASCAR to that allegation, reasoning that “NASCAR can’t play the same hand twice in different ways”. The case proceeded to a jury trial. On the ninth day of trial, the parties reached a settlement, and the plaintiffs dismissed their claims.

Hospital Monopolisation and Post-COPA Enforcement: In re Mission Health Antitrust Litigation, Davis v HCA Healthcare, Inc., and Jackson ex rel. Dogwood Health Trust v MH Master Holdings

Western North Carolina has become a focal point for health care antitrust enforcement through three related proceedings challenging the conduct of HCA Healthcare following its 2019 acquisition of Mission Health System.

North Carolina enacted a Certificate of Public Advantage (COPA) law in 1993 that permits hospitals to operate with monopoly power in exchange for state oversight and price regulation. Under this framework, Mission Health consolidated its dominant position, eventually holding approximately 93% of the general acute care market in two large western North Carolina counties. When the COPA was repealed effective 1 January 2018, state oversight ended. HCA acquired Mission Health’s assets in January 2019. Although Mission Health’s original acquisition of monopoly power was COPA-protected, HCA’s post-COPA actions triggered antitrust actions in state and federal court. Collectively, the plaintiffs in these cases alleged that, after the COPA expired, HCA maintained and enhanced monopoly power in inpatient general acute care and outpatient care markets across western North Carolina by using anticompetitive contracting practices. According to the plaintiffs, when negotiating with health insurance plans, HCA required “all-or-nothing” provisions, meaning that insurance plans had to include all of HCA’s general acute care and outpatient care services or none at all. HCA also required health plans to accept “anti-steering” and “anti-tiering” provisions, thus prohibiting health plans from encouraging their members to use lower-cost or higher-quality health care services. HCA allegedly held approximately 75–90% of the relevant markets.

A group of western North Carolina residents insured under commercial health insurance plans litigated their claims in the North Carolina Business Court, a special division of state superior court, in Davis v HCA Healthcare, Inc., No 21 CVS 3276 (N.C. Bus. Ct.). Based on HCA’s post-COPAbusiness practices, they asserted claims for monopolisation, attempted monopolisation, and unlawful restraint of trade in violation of state laws. The Business Court denied the defendants’ motion to dismiss to the extent that the defendants argued lack of standing and failure to state a claim for unlawful restraint of trade. Davis v HCA Healthcare, Inc., No 21 CVS 3276, 2022 WL 4354142 (N.C. Bus. Ct. 19 Sept. 2022). The court otherwise dismissed various monopolisation and attempted monopolisation theories. After the plaintiffs filed an amended complaint, the court allowed monopoly-maintenance and monopoly-leveraging claims to move forward. Davis v HCA Healthcare, Inc., No 21 CVS 3276, 2023 WL 3120813 (N.C. Bus. Ct. 27 Apr. 2023). Discovery and class certification efforts are ongoing.

In the federal action, In re Mission Health Antitrust Litigation, No 1:22-CV-00114, 2024 WL 759308 (W.D.N.C. 21 Feb. 2024), two cities and two counties brought a putative class action arising from the same allegedly anticompetitive contracting practices. The district court denied the defendants’ motions to dismiss, allowing the plaintiffs to proceed on claims under Sherman Act Sections 1 and 2. The parties reached a settlement during the discovery period.

The North Carolina Attorney General has also entered the fray. In Jackson ex rel. Dogwood Health Trust v MH Master Holdings LLLP, No 23CVS005013-100, 2026 WL 2150343 (N.C. Super. Ct. Bus. Ct. 27 July 2026), the Attorney General attempts to enforce a provision in HCA’s contract to acquire Mission Health. In an acquisition agreement approved by the Attorney General, HCA agreed that, for ten years, it would not “discontinue the provision of” certain services, including trauma emergency services and oncology services. The Attorney General alleges that HCA breached that provision by discontinuing a variety of services. In a recent order, the court concluded that fact issues precluded summary judgment on whether HCA breached its contractual obligations.

Holistic Analysis of Complex Exclusionary Schemes: Duke Energy Carolinas, LLC v NTE Carolinas II, LLC

Litigation involving NorthCarolina’s primary power supplier generated new guidance from the Fourth Circuit on the analysis of complex exclusionary schemes in Duke Energy Carolinas, LLC v NTE Carolinas II, LLC, 111 F.4th 337 (4th Cir. 2024).

NTE Carolinas II, an independent power producer, alleged that Duke Energy willfully maintained monopoly power, holding approximately 90% of the wholesale power market in the Carolinas through a multi-pronged exclusionary campaign. For example, Duke Energy offered the City of Fayetteville, North Carolina, a long-standing wholesale customer generating approximately USD100 million in annual revenue, a “blend-and-extend” pricing strategy amounting to roughly USD325 million in aggregate discounts – discounts that Duke Energy internally projected would generate a USD100 million loss that it planned to recoup through rate increases to other customers. When Duke Energy learned of NTE’s plans to compete with Duke Energy for the City of Fayetteville’s business, Duke Energy allegedly manufactured a breach of an interconnection agreement with NTE to have an excuse to terminate the agreement and delay NTE’s efforts to provide a competing power source.

The district court granted summary judgment to Duke Energy on NTE’s claim for violation of Section 2 of the Sherman Act by analysing each alleged act in isolation and reasoning that no single act was independently unlawful. The Fourth Circuit vacated and remanded, explaining that alleged anticompetitive conduct must be considered as a whole and not compartmentalised. Although the Fourth Circuit later denied Duke Energy’s petition for rehearing en banc, Duke Energy Carolinas, LLC v NTE Carolinas II, LLC, 122 F.4th 120 (4th Cir. 2024), two dissenting judges warned that the panel’s “monopoly broth” approach permits recharacterising and aggregating Section 2 claims that independently fail Supreme Court doctrinal tests. The case settled on remand.

Limits of the Per Se Rule in Criminal Antitrust Enforcement: United States v Brewbaker

A criminal prosecution originating from the Eastern District of North Carolina reinforced the narrow reach of the per se rule.

In United States v Brewbaker, 87 F.4th 563 (4th Cir. 2023), the Fourth Circuit reversed a criminal Sherman Act conviction in a bid-rigging prosecution arising from North Carolina Department of Transportation (NCDOT) projects, establishing that the per se rule’s narrow confines extend only to purely horizontal restraints and that hybrid or dual-distribution arrangements require rule-of-reason analysis.

The defendant, a sales manager for Contech Engineering Solutions, was placed in charge of bids on NCDOT aluminum-structure projects. Contech’s exclusive North Carolina distributor, Pomona Pipe Products, also bid on the same projects. Beginning in 2009, the defendant obtained Pomona’s total bid price and intentionally submitted a higher Contech bid, ensuring that Pomona would win. Because Pomona used Contech’s aluminum when it won, and Contech used Pomona’s services when Contech won, both entities profited regardless of which prevailed. The defendant concealed his conduct and submitted certifications that bids were “submitted competitively and without collusion”. The defendant was indicted and convicted of violation of the Sherman Act and mail and wire fraud.

On appeal, the Fourth Circuit vacated the Sherman Act conviction on the ground that the indictment failed to state an offense. The indictment alleged that the defendant committed a per se Sherman Act violation, but the detailed factual allegations in the indictment did not support that offense. The Fourth Circuit reasoned that the alleged restraint was “hybrid”, with both horizontal aspects (Contech and Pomona both bid, making them competitors) and vertical aspects (Contech was the manufacturer and Pomona its dealer, a “dual distribution” arrangement). The per se rule applies only to purely horizontal restraints; the Supreme Court has never held hybrid or dual-distribution restraints per se unlawful. Before extending the per se rule to a new category, courts must consult economic evidence and may condemn conduct per se only where the restraint “always or almost always” produces manifestly anticompetitive effects and “lacks any redeeming virtue”. The district court erred by excluding economic analysis showing that the category of restraint alleged in the indictment did not have solely anticompetitive effects. Because the indictment did not allege either a restraint previously held subject to the per se rule or one that economics would show always leads to anticompetitive effects, the indictment did not state a per se antitrust violation, and the district court erred by failing to dismiss the Sherman Act charge. The Fourth Circuit otherwise upheld the defendant’s convictions and remanded for resentencing.