# UNITED STATES DISTRICT COURT > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A87e559c20c7ac3e7 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA WINSTON-SALEM DIVISION FEDERAL TRADE COMMISSION, STATE OF CALIFORNIA, STATE OF COLORADO, STATE OF ILLINOIS, STATE OF INDIANA, STATE OF IOWA, STATE OF MINNESOTA, STATE OF NEBRASKA, STATE OF OREGON, STATE OF TENNESSEE, STATE OF TEXAS, STATE OF WASHINGTON, and STATE OF WISCONSIN, Plaintiffs, v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION, SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Case No. 1:22-cv-00828-TDS-JEP PLAINTIFFS’ CONSOLIDATED BRIEF IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [FILED UNDER SEAL] Defendants. Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 1 of 203 TABLE OF CONTENTS Page --- TABLE OF AUTHORITIES ............................................................................................... v I. NATURE OF THE MATTER ................................................................................. 1 II. STATEMENT OF FACTS ....................................................................................... 7 A. Legal Exclusivity: Patents and FIFRA .......................................................... 7 B. The Six AIs .................................................................................................... 8 C. Defendants Fear a Genericized Market with Lower Grower Prices ............................................................................................................. 9 D. 1. Generics Threatened Defendants’ Profits and Market Shares ................................................................................................. 9 2. Defendants Track and Monitor Generic Competition by AI ...................................................................................................... 15 Defendants Use Loyalty Programs to “Erect Barriers to Entry” that “Keep the Channel Locked Up” ........................................................... 18 1. 2. The Traditional Distribution Channel Is the Most Efficient Path to Market .................................................................................. 21 a. The Traditional Channel Influences Grower Product Selection .................................................................. 22 b. The Traditional Channel Provides Unique Benefits to Manufacturers ................................................................... 23 c. Syngenta and Corteva Implement Their Loyalty Programs with Substantially All of the Traditional Channel ................................................................................. 24 Defendants’ Loyalty Programs Are Structured to Exclude Generics ............................................................................................ 26 a. High Loyalty Thresholds ...................................................... 26 b. First-Dollar Payments ........................................................... 29 c. “Sticky Money”: Defendants Share Monopoly Profits with Distributors in Exchange for Exclusion ............ 30 d. Program and Payment Structure: “Complex and Risky” .................................................................................... 34 e. Retaliation and Credible Penalties: Leaving Loyalty “Would Be Suicide” ................................................ 40 i Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 2 of 203 f. Defendants Offer—and Take Away—Additional Profit Opportunities Based On Loyalty ................................ 48 E. Defendants’ Mesotrione and Metolachlor Supply Agreements .................. 50 F. Defendants’ Loyalty Programs Have Foreclosed Generic Competition For the AIs Included In Loyalty Programs ............................ 52 G. Defendants’ Loyalty Programs Have Resulted in Higher Prices ................ 59 III. QUESTIONS PRESENTED .................................................................................. 62 IV. ARGUMENT ......................................................................................................... 63 A. Summary Judgment Standard...................................................................... 63 B. Elements of Plaintiffs’ Claims .................................................................... 64 C. 1. Federal Claims.................................................................................. 64 2. State Claims...................................................................................... 66 Defendants’ Conduct Should Be Analyzed Under the Rule of Reason, Not Predatory Pricing Law ............................................................ 67 1. 2. 3. The Rule of Reason Applies to Loyalty Rebate Programs When Price Is Not the Predominant Mechanism of Exclusion .......................................................................................... 68 a. The Overwhelming Weight Of Authority, Including New Fourth Circuit Precedent, Supports Applying the Rule of Reason ................................................ 68 b. Defendants Cite Inapposite Cases ......................................... 73 The Evidence Establishes that Price Is Not the Predominant Mechanism of Exclusion ............................................ 75 a. Defendants’ Exclusion of Generics Is Not Achieved By Offering Lower Prices ..................................... 76 b. The Loyalty Programs Have Structural Non-Price Mechanisms of Exclusion ..................................................... 79 Each of the Five Non-Price Mechanisms of Exclusion Identified by the Court at the Pleading Stage Is Amply Supported by the Record .................................................................. 83 a. Defendants’ Loyalty Programs Extend and Increase Significant Barriers to Entry and Expansion......................... 84 b. Distributors Are Also Incentivized to Comply with Loyalty Programs Because They Fear Loss of Supply ................................................................................... 92 ii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 3 of 203 D. Threats and Deferred Payments Have Long-Term Effects ................................................................................... 95 d. Corteva’s Program Shares Features with Bundling .............. 97 e. Syngenta and Corteva’s Exclusive Supply Agreements Enhance the Exclusionary Effect ...................... 99 Disputed Fact Issues Preclude Summary Judgment on the Relevant Product Markets ......................................................................... 101 1. The Existence of Broader Markets Is Immaterial To Whether Single-AI Markets Are the Relevant Markets Here ................................................................................................ 103 2. Defendants Anticipated That Unfettered Generic Entry Would Crater Prices, and Structured Their Loyalty Programs to Address that Competition .......................................... 107 3. Professor Hemphill’s Implementation of the HMT Supports Plaintiffs’ Proposed Markets........................................... 112 4. 5. E. c. a. Professor Hemphill’s HMT is Reliable and Robustly Supported ............................................................. 112 b. Defendants’ Criticisms Fail ................................................ 116 The Brown Shoe Factors Confirm That Summary Judgment Is Inappropriate Here ..................................................... 123 a. Industry and Public Recognition ......................................... 124 b. Peculiar Characteristics and Uses ....................................... 126 c. Distinct Prices and Sensitivity to Price Changes ................ 131 d. Other Brown Shoe Factors .................................................. 133 Defendants’ Switching Arguments At Most Raise Disputed Issues of Fact That Must Be Tested At Trial .................. 134 Defendants’ Programs Have Probable Anticompetitive Effects ............... 138 1. Defendants’ Loyalty Programs Have Resulted in Substantial Foreclosure .................................................................. 140 a. Defendants’ Loyalty Programs Cause Foreclosure Far Above Thresholds Required by Case Law ................... 140 b. Defendants Cannot Rebut Plaintiffs’ Prima Facie Showing of Substantial Foreclosure ................................... 143 iii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 4 of 203 c. 2. Plaintiffs Have Robust Direct Evidence that Defendants’ Loyalty Arrangements Caused Anticompetitive Harm .................. 156 a. Defendants’ Conduct Foreclosed Rivals and Resulted in Higher Prices and Reduced Innovation ........... 157 b. Defendants’ Loyalty Programs Caused Rival Generic Manufacturers to Exit or Decline to Enter AI Markets .......................................................................... 164 c. Defendants’ Anticompetitive Intent Supports a Finding of Competitive Harm ............................................. 167 d. Defendants Misstate the Legal Standards Governing Anticompetitive Effects .................................... 168 F. Defendants Do Not Challenge the FTC’s Standalone Section 5 Claim ......................................................................................................... 171 G. Defendants Do Not Address, and Are Thus Not Entitled to Summary Judgment on, Plaintiffs’ Section 1 Claim as it Relates to Defendants’ Mesotrione and Metolachlor Supply Agreements ............ 172 H. Defendants Are Not Entitled to Summary Judgment on State Claims ........................................................................................................ 174 I. V. Defendants’ Mesotrione Agreements Demonstrate the Loyalty Programs’ Power to Foreclose Generic Rivals................................................................................... 155 1. Defendants Are Not Entitled to Summary Judgment on California’s State Law Claims ....................................................... 174 2. Defendants Are Not Entitled to Summary Judgment on Indiana’s IDCSA Claims................................................................ 175 3. Defendants Are Not Entitled to Summary Judgment on Iowa’s Consumer Fraud Act Claims .............................................. 176 The Claims Against Syngenta Crop Protection AG and Syngenta Corporation Must Proceed To Trial .......................................................... 177 CONCLUSION .................................................................................................... 182 iv Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 5 of 203 TABLE OF AUTHORITIES Page(s) Cases Advanced Health-Care Servs. v. Radford Cmty. Hosp., 910 F.2d 139 (4th Cir. 1990) .................................................................................. 65 Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171 (9th Cir. 2016) ...................................................................... 150, 171 Alaska Elec. Pension Fund v. Bank of Am. Corp., 306 F. Supp. 3d 610 (S.D.N.Y. 2018) .................................................................. 123 Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991 (9th Cir. 2010) ................................................................................ 149 American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230 (3d Cir. 1975) ............................................................................... 143 Ansell Inc. v. Schmid Lab’ys, Inc., 757 F. Supp. 467 (D.N.J. 1991)............................................................................ 124 Arandell Corp. v. Centerpoint Energy Servs., Inc., 900 F.3d 623 (9th Cir. 2018) ........................................................................ 177, 178 Arkansas ex rel. Griffin v. Syngenta Crop Prot. AG, 2025 WL 551660 (E.D. Ark. Feb. 19, 2025)................................................ 4, 71, 72 Aventis Env’t Sci. USA LP v. Scotts Co., 383 F. Supp. 2d 488 (S.D.N.Y. 2005) .................................................................. 140 B & R Supermarket, Inc. v. Visa, Inc., 2024 WL 4252031 (E.D.N.Y. Sept. 20, 2024) ..................................................... 118 Bank v. Huizar, 178 N.E.3d 326 (Ind. Ct. App. 2021) ................................................................... 176 Barr Labs., Inc. v. Abbott Labs., 978 F.2d 98 (3d Cir. 1992) ..................................................................................... 91 Bepco, Inc. v. Allied-Signal, Inc., 106 F. Supp. 2d 814 (M.D.N.C. 2000) ................................................................. 150 v Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 6 of 203 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) ................................................................................................. 7 Bradburn Parent/Tchr. Store, Inc. v. 3M (Minnesota Mining & Mfg. Co.), 2000 WL 34003597 (E.D. Pa. July 25, 2003) ...................................................... 168 Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) ................................................................................... 67, 69, 70 Brown Shoe Co. v. United States, 370 U.S. 294 (1962) ........................................................................................ passim Caruso Mgmt. Co. v. Int’l Council of Shopping Centers, 403 F. Supp. 3d 191 (S.D.N.Y. 2019) .................................................. 117, 121, 142 Chavez v. Whirlpool Corp., 93 Cal.App.4th 363 (2001) ................................................................................... 174 Chuck's Feed & Seed Co. v. Ralston Purina Co., 810 F.2d 1289 (4th Cir. 1987) .............................................................. 142, 171, 172 Concord Boat v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000) .......................................................................... 74, 91 Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002) ........................................................................ 156, 168 DeSoto Cab Co., Inc. v. Uber Techs., Inc., 2020 WL 10575294 (N.D. Cal. Mar. 25, 2020) ..................................................... 91 Dickson v. Microsoft Corp., 309 F.3d 193 (4th Cir. 2002) ........................................................................ 172, 173 Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337 (4th Cir. 2024) .......................................................................... passim E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435 (4th Cir. 2011) ................................................................................ 107 Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (1992) ..................................................................... 104, 109, 119, 136 Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394 (3d Cir. 2016) ............................................................................ passim vi Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 7 of 203 Epic Games, Inc. v. Apple, Inc., 67 F.4th 946 (9th Cir. 2023) ......................................................................... 119, 175 Epic Games, Inc. v. Apple, Inc., 161 F.4th 1162 (9th Cir. 2025) ............................................................................. 174 FTC v. Brown Shoe Co., 384 U.S. 316 (1966) ............................................................................................. 171 FTC v. IQVIA Holdings Inc., 710 F. Supp. 3d 329 (S.D.N.Y. 2024) .................................................................. 105 FTC v. Meta Platforms, Inc., 775 F. Supp. 3d 16 (D.D.C. 2024) ............................................................... 133, 136 FTC v. Meta Platforms, Inc., 2025 WL 3458822 (D.D.C. Dec. 2, 2025) ........................................................... 136 FTC v. Motion Picture Advert. Serv. Co., 344 U.S. 392 (1953) ..................................................................................... 153, 171 FTC v. Peabody Energy Corp., 492 F. Supp. 3d 865 (E.D. Mo. 2020) .................................................................. 102 FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327 (3d Cir. 2016) ......................................................................... 116, 118 FTC v. RAG-Stiftung, 436 F. Supp. 3d 278 (D.D.C. 2020) ..................................................................... 117 FTC v. Sanford Health, 926 F.3d 959 (8th Cir. 2019) ........................................................................ 116, 118 FTC v. Shkreli, 581 F. Supp. 3d 579 (S.D.N.Y. 2022) .................................................................. 106 FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972) ............................................................................................. 176 FTC v. Staples, Inc., 190 F. Supp. 3d 100 (D.D.C. 2016) ............................................................. 118, 120 FTC v. Surescripts, LLC, 665 F. Supp. 3d 14 (D.D.C. 2023) ................................................................. 84, 169 vii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 8 of 203 FTC v. Syngenta Crop Protection AG, No. 22-cv-828, Doc. 160 (M.D.N.C. 2024) .................................................... passim FTC v. Tapestry, Inc., 755 F. Supp. 3d 386 (S.D.N.Y. 2024) .......................................... 101, 103, 124, 126 FTC v. Tempur Sealy Int’l, Inc., 768 F. Supp. 3d 787 (S.D. Tex. 2025).......................................................... 120, 133 Gasbi, LLC v. Sanders, 120 N.E.3d 614 (Ind. Ct. App. 2019) ........................................................... 175, 176 Geneva v. Barr Labs, 386 F.3d 485 (2d Cir. 2004) ......................................................................... 103, 134 Illumina, Inc. v. FTC, 88 F.4th 1036 (5th Cir. 2023) ............................................................................... 134 Impax Labs. v. FTC, 994 F.3d 484 (5th Cir. 2021) ................................................................................ 156 In re Aggrenox Antitrust Litig., 199 F. Supp. 3d 662 (D. Conn. 2016) ................................................. 106, 109, 136 In re Cipro Cases I & II, 61 Cal.4th 116 (2015) ........................................................................................... 174 In re EpiPen Mktg., Sales Pracs. & Antitrust Litig., 44 F4th 959 (10th Cir. 2022) .................................................................... 73, 74, 166 In re Google Play Store Antitrust Litig., 147 F.4th 917 (9th Cir. 2025) ....................................................................... 109, 174 In re Loestrin 24 Fe Antitrust Litig., 433 F. Supp. 3d 274 (D.R.I. 2019) ............................................................... 117, 142 In re Lorazepam & Clorazepate Antitrust Litig., 467 F. Supp. 2d 74 (D.D.C. 2006) ....................................................................... 164 In re Nexium Antitrust Litig., 968 F. Supp. 2d 367 (D. Mass. 2013)........................................................... 105, 106 In re Packaged Seafood Prods. Antitrust Litig., 2022 WL 836951 (S.D. Cal. Mar. 21, 2022) ........................................................ 178 viii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 9 of 203 In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 714 F. Supp. 3d 65 (E.D.N.Y. 2024) ............................................................ 156, 170 In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 753 F. Supp. 3d 849 (N.D. Cal. 2024).................................................................. 176 In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 622 F. Supp. 3d 22 (E.D. Pa. 2022).................................................................. 72, 98 In re Surescripts Antitrust Litigation, 608 F.Supp.3d 629 (N.D. Ill. 2022)............................................................ 69, 72, 89 In re Zetia (Ezetimibe) Antitrust Litig., 2021 WL 6689718 (E.D. Va. Nov. 1, 2021) ................................................... passim Insignia Sys., Inc. v. News Am. Mktg. In-Store, Inc., 661 F. Supp. 2d 1039 (D. Minn. 2009) ................................................................ 119 Int’l Distribution Centers, Inc. v. Walsh Trucking Co., 812 F.2d 786 (2d Cir. 1987) ................................................................................... 91 Intell. Ventures I LLC v. Cap. One Fin. Corp., 2016 WL 160263 (D. Md. Jan. 14, 2016) ............................................................ 177 Intercollegiate Women’s Lacrosse Coaches Ass’n v. Corrigan Sports Enters., Inc., 694 F. Supp. 3d 625 (M.D.N.C. 2023) ................................................................... 63 It’s My Party, Inc. v. Live Nation, Inc., 811 F. 3d 676 (4th Cir. 2016) ............................................................................... 110 Kolon Industries Inc. v. E.I. DuPont de Nemours & Co., 748 F. 32 160 (4th Cir. 2014) ....................................................................... 150, 151 Kolon Industries Inc. v. E.I. DuPont de Nemours & Co., 2012 WL 1155218 (E.D. Va. Apr. 5, 2012) ......................................................... 151 L. G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971) ............................................................................ 171, 172 Laumann v. Nat’l Hockey League, 56 F. Supp. 3d 280 (S.D.N.Y. 2014) .................................................................... 139 ix Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 10 of 203 Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114 (10th Cir. 2014) .................................................................... 169, 177 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................... 78 McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015) ......................................................................... passim Meijer, Inc. v. Barr Pharms., Inc., 572 F. Supp. 2d 38 (D.D.C. 2008) ....................................................................... 104 Menasha Corp. v. News America Marketing In-Store, Inc., 354 F.3d 661 (7th Cir. 2004) ............................................................................... 119 Meredith Corp. v. Sesac, LLC, 1 F. Supp. 3d 180 (S.D.N.Y. 2014) ...................................................................... 102 Microbix Biosystems, Inc. v. Biowhittaker, Inc., 172 F. Supp. 2d 680 (D. Md. 2000) ..................................................................... 173 Minn. Mining & Mfg. Co. v. Appleton Papers, Inc., 35 F. Supp. 2d 1138 (D. Minn. 1999) ......................................................... 149, 154 Mylan Pharms. Inc. v. Sanofi-Aventis LLC, 2026 WL 201152 (W.D. Pa. Jan. 27, 2026) ........................................................... 67 New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) ................................................................................. 143 NicSand Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) .................................................................................. 73 Nobel Sci. Indus., Inc. v. Beckman Instruments, Inc., 670 F. Supp. 1313 (D. Md. 1986) ........................................................................ 110 Ohio v. Am. Express Co., 585 U.S. 529 (2018) ............................................................................. 138, 156, 170 Omega Env’t, Inc. v. Gilbarco, Inc., 127 F.3d 1157 (9th Cir. 1997) .............................................................................. 146 Pepsico, Inc. v. Coca-Cola Co., 315 F.3d 101 (2nd Cir. 2002) ............................................................................... 110 x Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 11 of 203 Pfaff v. Wells Elecs., Inc., 525 U.S. 55 (1998) ................................................................................................... 7 Reading International, Inc. v. Oaktree Capital Management, LLC, 317 F. Supp. 2d 301 (S.D.N.Y. 2003) .................................................................. 178 Rebel Oil Co., Inc., v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir. 1995) ............................................................................ 89, 90 Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362 (M.D.N.C. 2002) ................................................................... 91 Rightline, LLC v. FMC Corp., 2025 WL 1550234 (E.D. Pa. 2025) ........................................................................ 72 Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984) ........................................................................ 153, 154 Roxul USA, Inc. v. Armstrong World Indus., Inc., 2019 WL 1109868 (D. Del. Mar. 8, 2019) ........................................................... 145 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ................................................................................................. 8 Sandoz, Inc. v. United Therapeutics, Corp., 2020 WL 697137 (D.N.J. Feb. 4, 2020) ............................................................... 120 Standard Oil Co. of California v. United States, 337 U.S. 293 (1949) ............................................................................................. 153 State ex rel. Miller v. Cutty’s Des Moines Camping Club, Inc., 694 N.W.2d 518 (Iowa 2005) ............................................................................... 176 State v. TikTok, Inc., 245 N.E.3d 681 (Ind. Ct. App. 2024) ................................................................... 175 Stiles v. Walmart, Inc., 639 F. Supp. 3d 1029 (E.D. Cal. 2022) ................................................................ 119 Syngenta Crop Prot., LLC v. Willowood Azoxystrobin, LLC, 267 F. Supp. 3d 649 (M.D.N.C. 2017) ..................................................... 86, 90, 121 Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961) ........................................................................................ passim xi Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 12 of 203 Times-Picayune Pub. Co. v. United States, 345 U.S. 594 (1953) ............................................................................................. 104 Todd v. Exxon Corp., 275 F.3d 191 (2d Cir. 2001) ................................................................................. 124 United States v. Aetna Inc., 240 F. Supp. 3d 1 (D.D.C. 2017) ......................................................................... 105 United States v. Alum. Co. of Am., 377 U.S. 271 (1964) ............................................................................................. 105 United States v. Am. Express Co., 838 F.3d 179 (2d Cir. 2016) ................................................................................. 115 United States v. Bazaarvoice, Inc., 2014 WL 203966 (N.D. Cal. Jan. 8, 2014) .......................................................... 118 United States v. Bertelsmann SE & Co., 646 F. Supp. 3d 1 (D.D.C. 2022) ......................................................................... 105 United States v. Black & Decker Mfg. Co., 430 F. Supp. 729 (D. Md. 1976) ............................................................................ 87 United States v. Dentsply Intern. Inc., 399 F.3d 181 (3d Cir. 2005) ............................................................................ passim United States v. Google LLC, 747 F. Supp. 3d 1 (D.D.C. 2024) ................................................... 87, 150, 152, 170 United States v. Google LLC, 778 F. Supp. 3d 797 (E.D. Va. 2025) ............................................................. 84, 169 United States v. Google LLC, 687 F. Supp. 3d 48 (D.D.C. 2023) ....................................................................... 170 United States v. H & R Block, Inc., 833 F. Supp. 2d 36 (D.D.C. 2011) ............................................................... 102, 118 United States v. Leavis, 853 F.2d 215 (4th Cir. 1988) ................................................................................ 177 United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) .......................................................................... passim xii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 13 of 203 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) ............................................................................................. 173 United States v. United States Sugar Corp., 73 F. 4th 197 (3d Cir. 2023) ......................................................................... 117, 134 United States v. Visa, Inc., 788 F. Supp. 3d 585 (S.D.N.Y. 2025) .................................................................. 123 Valuepest.com of Charlotte, Inc. v. Bayer Corp., 561 F.3d 282 (4th Cir. 2009) .................................................................................. 65 Virgin Atl. Airways Ltd. v. Brit. Airways PLC, 257 F.3d 256 (2d Cir. 2001) ................................................................................... 74 White v. City of Greensboro, 608 F. Supp. 3d 248 (M.D.N.C. 2022) ............................................................. 63, 64 ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) ............................................................................ passim Zinner v. Olenych, 108 F. Supp. 3d 369 (E.D. Va. 2015) ................................................................... 172 Statutes 15 U.S.C. § 1 .............................................................................................................. passim 15 U.S.C. § 2 .............................................................................................................. passim 15 U.S.C. § 14 ............................................................................................................ passim 15 U.S.C. § 45 ............................................................................................................ passim 35 U.S.C. § 154(a)(2) .......................................................................................................... 7 7 U.S.C. § 136a(c)(1)(F)(i) .................................................................................................. 7 7 U.S.C. § 136a(c)(1)(F)(ii) ................................................................................................. 7 7 U.S.C. § 136a(c)(1)(F)(iii).............................................................................................. 86 California’s Cartwright Act ............................................................................................. 174 California’s Unfair Competition Law ..................................................................... 174, 175 xiii Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 14 of 203 Ind. Code § 24-5-0.5-1(a) ................................................................................................ 175 Ind. Code § 24-5-0.5-3 ...................................................................................................... 66 Iowa Code § 714.16 ................................................................................................... 66, 176 Rules Fed. R. Civ. P. 56........................................................................................................... 3, 63 Other Authorities Areeda & Hovenkamp, ANTITRUST LAW (2025) ................................................ 64, 69, 171 Areeda & Hovenkamp, ANTITRUST LAW (2011) ................................................ 68, 88, 157 Areeda & Hovenkamp, ANTITRUST LAW (1996) ............................................................ 170 Carl Shapiro, The 2010 Horizontal Merger Guidelines: From Hedgehog to Fox in Forty Years, 77 ANTITRUST L.J. 49 (2010)............................................... 119 Restatement (Third) of Agency § 7.03(1)(a) ................................................................... 178 xiv Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 15 of 203 I. NATURE OF THE MATTER Millions of farmers (or “growers,” as they are frequently called in the industry) rely on crop protection products like insecticides, herbicides, and fungicides to costeffectively protect America’s food supply from pests. Defendants Syngenta and Corteva are two of the largest crop protection product (or agricultural “pesticide”) manufacturers in the United States, each selling billions of dollars of these products every year. But growers pay far more than they should because Defendants have each engaged in a scheme to exclude lower-price generic competitors from the market. Congress created a system to govern the development, manufacture, and sale of crop protection products. This regime combines patent protection and “exclusive use” provisions that richly reward companies like Defendants—“branded” manufacturers that innovate and develop new Active Ingredients (“AIs”)—with 20 years or more of protection from generic AI competition. But that lawful monopoly does not last forever. After the exclusivity period expires, Congress encourages other companies to produce and sell generic versions of those AIs, introducing price competition and consumer choice. As Defendants repeatedly concede in their documents, growers choose the cheaper generic products when they are available; “[o]nce the market starts to see an increase in generics, it is almost impossible to stop”; and generic entry leads “to a vicious cycle of downward price pressure” for all products containing that AI—generic and branded alike. Defendants have no desire to compete on the merits with generic manufacturers because lowering price would mean losing margin, revenue, and profits. Instead, they 1 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 16 of 203 developed loyalty programs designed to “make it difficult for [generics] to enter” the market, “keep the channel locked up,” and “block[] generic[s]” in the post-patent period. Defendants designed their loyalty programs to most effectively achieve their mission to “keep generics below critical volumes” and “Maintain price premium.” Defendants admit internally that, without these loyalty programs, their “margins would likely drop precipitously.” Understanding the critical importance of the traditional distribution channel, Defendants “handcuff” nearly every distributor with their market-wide exclusive dealing arrangements. Distributors must strictly limit their yearly sourcing of generic product (sometimes to as low as 1%) which “keep[s] generics below critical volumes.” Compliant distributors benefit from favorable supply terms and year-end, large lump-sum payments that they retain in significant part. Non-compliant distributors risk loss of access to Defendants’ dominant products on competitive terms, or even loss of supply altogether, which one distributor described as “suicide.” As a result, distributors overwhelmingly comply with Defendants’ loyalty programs, forcing generic manufacturers to compete only in the narrow band of “open space” permitted under the programs or via alternative, less efficient routes to market. The effect is to suppress and delay generic entry and expansion, sustain supracompetitive prices, and harm growers nationwide. An extensive evidentiary record bears out the facts of this case. It includes documents, data, and testimony from Defendants, distributors, and generic 2 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 17 of 203 manufacturers, as well as rigorous expert analysis grounded in the factual record and sound economic theory. Faced with this evidentiary record, at summary judgment Defendants retreat to formalistic legal arguments and import their own facts and their own spin into the actual record. But recycling the same rejected theories they advanced at the motion-to-dismiss stage is no more successful at summary judgment than it was before. And Defendants’ attempts to whitewash their own conduct and rewrite their own documents simply injects pages-upon-pages of disputed facts into the record. None of this meets the Rule 56 standard. First, Defendants renew their argument that the price-cost test, and not the rule of reason, should apply to Plaintiffs’ exclusive dealing claims. But no matter how Defendants try to recast their programs, the evidence is clear that these programs are not simply winning business by offering a low price to distributors. Even accounting for Defendants’ loyalty payments, generics remain cheaper. Rather, the evidence in the record establishes that the structure of the loyalty program, and in particular the sharebased exclusivity condition linked to loyalty payments and product access, is the mechanism of exclusion of generics, not low prices. There is compelling evidence of all of the “non-price” mechanisms of exclusion identified by this Court at the pleading stage, including coercion and retaliation of distributors that Defendants claim never happened. That factual record must be viewed in light of the Fourth Circuit’s recent and binding decision in Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, which 3 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 18 of 203 reversed a grant of summary judgment and held that the trial court improperly applied the price-cost test at summary judgment in light of evidence that the structure of the defendant’s scheme (and not its pricing component) was the predominant means of exclusion. 111 F.4th 337 (4th Cir. 2024), cert. denied, 2026 WL 79821 (U.S. Jan. 12, 2026). Defendants also do not mention that since this Court issued its order denying their motions to dismiss, the district court in Arkansas hearing the state of Arkansas’s challenge to these very programs held that the claims should be assessed under the rule of reason, not the price-cost test, because the plaintiff “does not allege that low pricing was the means defendants used to exclude competition.” Arkansas ex rel. Griffin v. Syngenta Crop Prot. AG, 2025 WL 551660, at *9–10 (E.D. Ark. Feb. 19, 2025). The weight of the case law already overwhelmingly supported the application of the rule of reason to assess Defendants’ loyalty programs; these latest cases should put the question to rest. Next, Defendants charge that Plaintiffs’ market definition is too narrow and “gerrymandered” also fails. These single-AI markets come directly from Defendants’ own business plans. Their post-patent (“generic defense”) strategies are built on the premise that their branded products compete most closely with generic equivalents. Defendants’ documents show that they fear the downward price impact of generic entry, and that even the limited generic entry they permit results in observable price effects. The stated objective of their loyalty programs in essence describes the hypothetical monopolist test that defines an antitrust market: they aim to exclude same-AI competition and thereby sustain high prices and profits for their products that contain that AI. And 4 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 19 of 203 Defendants’ internal documents confirm the distinctive uses and characteristics of the individual AIs in question. Defendants largely ignore this evidence and instead claim that there exist larger markets consisting of multiple AIs that broadly substitute for each other. Even if such markets exist (Defendants and their experts have not formally defined them), that does not negate the existence of narrower single-AI markets consisting of closer substitutes. And Defendants’ error is compounded by the fact that the supposed substitutability between AIs is distorted by the very loyalty programs Plaintiffs challenge. Where, as here, anticompetitive conduct in a market elevates prices and excludes lower-priced alternatives, the observed levels of substitution to products outside the market will be artificially inflated. Market definition is a question of fact, and Plaintiffs have marshalled extensive factual evidence showing that branded products compete more closely with their generic equivalents than with products containing other AIs. Defendants cannot possibly show on this record that, despite extensive record evidence of Defendants’ extraordinary efforts to shield themselves from same-AI competition, there is no sufficient basis on which a trier of fact could adopt Plaintiffs’ single-AI market definitions. Finally, Plaintiffs have shown harm to competition because Defendants’ programs substantially foreclose generics and result in higher prices, reduced output and reduced innovation in each market. Defendants claim that generic rivals are not completely excluded by the loyalty programs and have entered, causing some price declines. But the 5 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 20 of 203 antitrust laws do not require total exclusion; competitive harm arises when rival entry or expansion into a monopolized market is lessened or slowed and/or the rivals are forced into less efficient distribution. Here, the record shows that Defendants’ loyalty programs foreclose generics from the most efficient distribution channel and have harmed competition relative to a but-for world without Defendants’ loyalty programs. Defendants designed their programs to impede their generics rivals—inducing the most efficient distributors to significantly limit their purchases—and these programs have been extraordinarily successful. Defendants’ programs function in just this manner, permitting limited generic entry and tolerating some price declines while preventing the robust entry, expansion, and price competition that would occur absent these restraints. Again, Defendants have at best identified a material dispute over whether Defendants have harmed competition relative to the but-for world—a question for trial. Defendants have used their “loyalty” programs to subvert competition and innovation for crop protection products for long enough. American growers are entitled to a choice of products and to the benefits of generic competition. This Court should deny Defendants’ motions for summary judgment and proceed to trial. 6 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 21 of 203 II. STATEMENT OF FACTS1 A. Legal Exclusivity: Patents and FIFRA Congress has designed a statutory scheme that provides crop protection product manufacturers robust incentives to innovate while also carefully protecting lower-priced generic companies’ ability to enter and compete. Manufacturers who develop “new and useful” AIs can obtain patents granting the AI developer exclusive rights to use that AI for twenty years. 35 U.S.C. § 154(a)(2). Additionally, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), provides applicants that register pesticides with new AIs “exclusive use” of data used to support registration. FIFRA § 3(c)(1)(F)(i), 7 U.S.C. § 136a(c)(1)(F)(i). FIFRA’s exclusive-use protection lasts ten years and can be extended. FIFRA § 3(c)(1)(F)(ii), 7 U.S.C. § 136a(c)(1)(F)(ii). Ultimately, however, patent and FIFRA rights expire so that generic manufacturers can copy new AIs. The limited exclusivity period granted under patent law reflects Congress’s intentional decision to “careful[ly] balance the need to promote innovation and the recognition that imitation . . . [is] necessary to invention itself and the very lifeblood of a competitive economy.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); see also Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 63 (1998) (similar). Exhibit citations are typically to the last three digits of the Bates number or, if it does not contain a page-specific Bates number, to a relevant pin-cite, such as “slide,” “tab,” or deposition page-and-line range. 1 7 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 22 of 203 FIFRA recognizes the same tradeoff. Congress intended to “eliminate costly duplication of research and streamline the registration process,” to “mak[e] new end-use products available to consumers more quickly” and “eliminate a significant barrier to entry into the pesticide market, thereby allowing greater competition among producers of end-use products” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014–15 (1984) (citation omitted). B. The Six AIs Defendants patented the six AIs that are directly at issue in this case: azoxystrobin, mesotrione, and metolachlor (Syngenta); and rimsulfuron, oxamyl, and acetochlor (Corteva). Legal exclusivity for each of the AIs expired in 2014 or earlier.2 As of 2023, Corteva holds for oxamyl; and I % market share for rimsulfuron; I % market share I % market share for acetochlor. 3 2 Ex. 1 (Hemphill Initial Rep.) Fig. 5. 3 Ex. 1 Fig. 19. 8 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 23 of 203 As of 2023, Syngenta holds over . market share for azoxyst:robin,. market share for mesotrione, and. mru·ket share for metolachlor. 4 C. Defendants Fear a Genericized Market with Lower Grower Prices 1. Generics Threatened Defendants' Profits and Market Shares Defendants long ago recognized that their AI portfolio faced serious threats from potential generic entry. In 2001 , Syngenta wained of an Syngenta was 6 Among the most vulnerable: metolachlor, with over in net sales, mesot:rione (roughly ~ (neru-Iy 4 net sales), and azoxystrobin sales).7 Syngenta looked to past examples of genericized Als like Ex. 1 Fig. 18. s Ex. 25 at slide 2. Ex. 26 at slides.5 11. That prop01tion has since increased. Ex. 27 at slide 2 (off-patent sales growing to in 2013). 6 7 Ex. 26 at slides 5, 11 . 9 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 24 of 203 as cautionary tales.8 Syngenta later learned that after came off patent in 2007, 9 A top concern for Syngenta’s was that, as AIs came off patent, generics would drive the same for azoxystrobin, mesotrione, and metolachlor.10 Syngenta sought to avoid a world where generics competed robustly, because a “genericised market” would lead to - 11 Its 2002 sought to maintain monopoly shares, with a stated objective 12 Maintaining share was important because—according to the Syngenta executive responsible for the 2002 presentation—“ 13 This theme persists over time; in 2015, Syngenta asked its employees to . 8 Ex. 28 at slide 60. 9 Ex. 29 at -333; see also Ex. 28 at Slide 30. Ex. 30 at slide 5 & notes (azoxystrobin and mesotrione); see Ex. 227 at slide 6 (similar re: metolachlor). 10 11 Ex. 28 at slide 59. 12 Ex. 26 at CX2835-016. 13 Ex. 32 at 162:17–165:8. 10 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 25 of 203 14 To defeat generic competition, Syngenta needed to secure the cooperation and , with the loyalty of distributors of crop protection products 15 Put differently: it needed to answer 16 Syngenta recognized that there was "greater opportunity" in the U.S. than elsewhere to 17 Syngenta viewed 18 The "Distribution Strategy" that Syngenta decided on: 14 Ex. 33 at-357, -359; Ex. 34 at CX2100-080; see also Ex. 305 at slide 17 15 Ex. 28 at slide 55. 16 Ex. 34 at CX2 100-086. 11 Ex. 35 at slide 14. 18 Ex. 35 at slide 15. "Farmgate price" is an industry term meaning the price a grower pays. 11 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 26 of 203 - 19 Syngenta presented its plan to distributors . . . Syngenta wain ed against price wars: Corteva was similarly concerned about generic pressure. As a former Corteva president testified, with patent-protected Al s, Corteva is "typically the only one selling that product and [] can determine the pricing. As products are off patent, there's a lot more competition in the market, and there's downward pressure on pricing."24 A 2010 presentation by Corteva' s predecessor Dow warned: 19 Ex. 36 at slide 17. 20 Ex. 37 at slide 2. 21 Ex. 37 at slide 3. 22 Ex. 37 at slide 5. 23 Ex. 37 at slide 6. 24 Ex. 38 at 35:4-12; see also Ex. 40 (Van Vooren (Corteva)) at 185:23-186:7 ("In my experience over 42 and a half years, pretty much every time a generic would come into a market, price would erode, go down call it, go down, and the brand's volume would go down, both."). 12 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 27 of 203 25 Corteva’s internal documents show specific concern about generics pressuring acetochlor, rimsulfuron, and oxamyl prices.26 As one Corteva employee lamented, referring to selling post-patent AIs: “It isn’t fun to manage a slowly sinking ship.”27 Corteva employees explained their goal: 28 - 29 By limiting generic volume, Corteva could During the formation of Corteva, the company stated its loyalty program in the face of generic objective: competition.30 Each Defendant adopted a strategy that would, in Syngenta’s words, 31 25 - The strategy would Ex. 41 at slide 16. Ex. 42 at slide 41 (acetochlor); Ex. 43 at slide 3 (rimsulfuron); Ex. 44 at slide 23 (oxamyl). 26 27 Ex. 45 at -058. 28 Ex. 46 at -899–900. 29 Ex. 46 at -899–900. 30 Ex. 294 at slide 82. 31 Ex. 34 at CX2100-086. 13 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 28 of 203 34· As C01t eva put it, the "[g]oal" of "[g]eneric defense" is to ' 35 · 32 Ex. 78 (Cecil (Syngenta)) at 15: 17-17:4 - ). 33 Ex. 47 at CX2034-003. 34 Ex. 48 at slide 7. Leitker (C01t eva)) at 172: 16-174:1 9 ' • see also Ex. 60 at-316 14 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 29 of 203 2. Defendants Track and Monitor Generic Competition by AI Recognizing generics’ unique competitive threat, Defendants track generic competition and market share by individual AI. For example, a 2020 Syngenta management presentation reported an for certain azoxystrobin product chemistries.36 In 2023, Syngenta reported its import mesotrione molecular market share as • .37 And Syngenta’s SMOC [S-metolachlor] Post-Patent Strategy Update compared 38 Syngenta’s 2014 strategy for azoxystrobin and mesotrione refers to 36 Ex. 51 at slide 5. 37 Ex. 52 at -106. 38 Ex. 24 at -662. 15 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 30 of 203 39 Syngenta documents reflect “post-patent” strategies specific to the individual AIs and their particular market conditions. In strategy documents, Syngenta highlights sameAI generic competition as a particularly potent threat. For example, in an azoxystrobin post-patent strategy presentation, Syngenta reports an 40 Syngenta’s “Mesotrione Post Patent Workshop” included mesotrione and notes that with 41 Syngenta’s “SMOC Post-Patent Strategy Update” identifies 42 At the very least, this creates an issue of disputed fact regarding industry recognition of AI-specific markets. Contrary to Corteva’s claims (Corteva Memo. ISO Summary Judgment (hereinafter “Cor. Br.”) at 10, 13),43 Corteva also monitors its market share on an AI-byAI basis. For instance, a DowDuPont presentation discusses its 39 Ex. 53 at slides 2, 24. 40 Ex. 54 at slide 2. 41 Ex. 34 at CX2100-017. 42 Ex. 24 at slide 2. 43 Corteva does not claim that it calculates oxamyl market share by reference to other AIs. 16 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 31 of 203 44 Other C01t eva documents refer to "Rimsulfuron market shares."45 C01teva does the same with acetochlor- and oxamylbased products, specifically calculating its market share for each AI in comparison to generic suppliers of the same AI.46 Corteva's internal documents reveal that its competitive strategy focuses on generic competition as a principal threat. Corteva monitors generic AI imports for rimsulfuron, acetochlor, and oxamyl.47 C01t eva's "generic defense strategies" target competition from generic equivalents.48 C01t eva evaluates and sets prices and desired profit margins with generic competition in mind. In one instance, Corteva recognized that introducing lower-priced offerings for rimsulfuron in a market with generics "49 and C01t eva should instead: Corteva's own documents contradict its claim that plaintiffs "adduced no evidence" that industry pa1ticipants recognize the existence of AI-specific markets. Cor. Br. at 52. 44 Ex. 55 at CX 1609-003. 45 Ex. 56 at slides 10-11 . 46 Ex. 57 at -052- 53 (acetochlor and rimsulfuron); Ex. 59 at slides 6, 8 (acetochlor); Ex. 60 at (oxamyl); Ex. 18 at slide 21 (oxamyl). 47 Ex. 61 at slide 11 (rimsulfuron); Ex. 62 at-1 98 (acetochlor); Ex. 63 at-522 (oxamyl). 48 Ex. 64 at slide 6. 49 Ex. 65 at -019. 50 Ex. 65 at -019. 17 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 32 of 203 D. Defendants Use Loyalty Programs to “Erect Barriers to Entry” that “Keep the Channel Locked Up” Defendants were unwilling to compete with generics on the merits after patent and FIFRA protection expired. Instead, they sought to minimize generic entry to maintain elevated prices for their branded products for as long as possible. Defendants developed “loyalty” programs to limit potential generic competitors’ access to key distributors. As described more fully below, each Defendant agrees to make distributors large, end-ofyear payments if they strictly limit their purchases of generic products for a given AI by meeting “loyalty” thresholds calculated as a specific share of the distributors’ total needs of that AI. Syngenta understands its lifecycle management strategy as a series of hurdles for generics, 51 51 Ex. 69 at slide 1. 18 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 33 of 203 Syngenta spends dollars annually on payments to major distributors under its “Key AI” loyalty program.52 Key AI has covered the Syngenta AIs azoxystrobin (since 2013); mesotrione (since 2014); and metolachlor (since 2002).53 As far back as 2010, Corteva (then Dow) used its loyalty program to 54 Corteva executive described, 52 - In other words, and as a 55 Like Ex. 1 ¶ 322 & Fig. 23. Ex. 70 at -671–72 (azoxystrobin); Ex. 71 at -294 (mesotrione); Ex. 25 at slide 9 (metolachlor). 53 54 Ex. 66 at -225; Ex. 67 at -949. 55 Ex. 68 at CX1305-054, row 9. 19 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 34 of 203 Syngenta, Corteva spends tens of millions of dollars annually on loyalty related payments.56 Corteva Account Manager Douglas Van Vooren described of Corteva's loyalty program: 57 Corteva's loyalty program has covered the Corteva Als rimsulfuron, oxamyl, and acetochlor since 58 60 As described below, Defendants' loyalty programs target the traditional distribution channel and are structured to limit and exclude generic manufacturers' access to that channel. 61 57 Ex. 73 at -214. 59 See Ex. 75 at 133:18-134:1; e.g. , Ex. 76 at CXl 105-008, row 26 (acetochlor). 60 Infra Section II.D.2.d. 61 See infra Sections II.D.1.-D.2. 20 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 35 of 203 1. The Traditional Distribution Channel Is the Most Efficient Path to Market The traditional channel is largely comprised of five national distributors: Nut:rien AG Solutions ("Nutrien"), Tenkoz,62 WinField United, Helena, and J.R. Simplot. These distributors handle 81% of crop protection sales made through distributors.63 As Defendants acknowledge, by limiting generic manufacturers' access to this channel, Defendants effectively limit their opportunities to compete with Defendants ' branded products.64 Access to the traditional channel is crucial for efficient distribution because the traditional channel provides numerous important services to manufacturers that alternative routes to market cannot replicate. As Syngenta observed in 2003 when it was first rolling out its loyalty programs, 62 Tenkoz is a buying group comprising 12 regional distributors. See Ex. 4 at 24:10-25:7. 63 Ex. 1186 & Fig. 9. Neither Corteva nor Syngenta dispute this fact for purposes of summary judgment. Cor. Br. at 2324.• Syn. Br. at 13 (just the subset of distributors that are integrated with retail comprise of sales). . Ex. 77 at slide 2 6s Ex. 80 at CX2836-150. 21 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 36 of 203 a. The Traditional Channel Influences Grower Product Selection Defendants recognize the power of the traditional channel to steer growers toward their branded products, and away from generics. Syngenta identifies the traditional channel as having 66 Corteva’s expert Dr. Grey details that growers commonly delegate product selection to “crop advisors” employed by the channel.67 One grower cited by Dr. Grey testified that .68 As one Syngenta document explained, 69 A former Corteva Vice President of National Accounts admitted that Corteva found the traditional channel ”70 66 Ex. 80 at CX2836-150. See also Ex. 81 at slide 3 ( ); Ex. 50 at 38:16–40:16. 67 Ex. 82 ¶ 35. Ex. 82 ¶ 35 n.51 (citing Kirven (MDL Plaintiff) 88:14–24, 92:2–10; Ott (MDL Plaintiff) 59:8–60:10). 68 69 Ex. 84 at slide 12. 70 Ex. 85 at 37:4–24. 22 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 37 of 203 b. The Traditional Channel Provides Unique Benefits to Manufacturers The traditional channel provides several unique benefits to crop protection product manufacturers. First, by selling through a relatively small number of distributors, a manufacturer can reach thousands of retailers, and in tum, hundreds of thousands of farms. As Corteva's Distribution Strategy Channel Leader testified: "[t]here is no possible way for our sales reps to sell to millions of end users. " 71 The distribution channel eliminates the need to manage countless direct relationships and provides scale efficiencies that manufacturers cannot cost-effectively replicate on their own.72 Second, multiple market participants testified that distributors provide core logistics-cost-efficient warnhousing and transportation services- at scale.73 This allows manufacturers, including generics, to distribute their products across the country, reduces manufacturers' freight and warehousing burdens, and gets product closer to customers. 71 Ex. 86 at 68:1 6-69:6 11 ' . (Corteva)) at 68: 16-69:6 (Corteva "would not be financially able to sustain a business • :25 at 37:13-24; Ex. 92 (Vance (Albaugh)) at 108: 10' 51:15- 22; Ex. 94 (Ripato) at 331:5- 24. 23 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 38 of 203 Finally, numerous generic manufacturers testified that the traditional channel provides critical protection from credit risk. One generic manufacturer explained: “[T]hey are 100 percent responsible for what they sell to a retailer, that if the retailer doesn’t pay them . . . that doesn’t affect us. So there is a significant benefit of not having to try to manage credit with either very large growers or hundreds of dealers, retailers, across the country.”74 Generic manufacturers cannot efficiently manage these risks outside of the traditional channel.75 c. Syngenta and Corteva Implement Their Loyalty Programs with Substantially All of the Traditional Channel Rather than partner with one or two individual distributors to achieve the marketing and logistics efficiencies of the traditional channel, Defendants have generally implemented their loyalty programs across all of the major distributors, as well as midsize distributors CNI and Growmark.76 Defendants acknowledge that loyalty programs require broad participation by major distributors. For example, a January 2014 Syngenta post-patent strategy document about azoxystrobin describes Syngenta’s “Through and With the Channel” approach to the market, noting that Syngenta has loyalty programs in • 74 Ex. 92 (Vance (Albaugh)) at 109:20–110:9; see also ; Ex. 95 (Schumacher (Helm)) at 67:3–15, 66:9–18. 75 See Ex. 96 (Vance (Albaugh)) at 106:17–107:14; . - Syn. Br. Ex. 30 (Orszag Report) Fig. 1 (summarizing Key AI payments to all major distributors plus CNI and Growmark); Ex. 74 (Kaehler (Corteva)) at 33:4–25 76 24 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 39 of 203 place with a of the traditional channel.77 Corteva also recognized that substantial generic sales by major distributors threatened to impose pricing pressure and erode inflated prices sustained by the loyalty program.78 Corteva regularly reminded distributors that everyone needed to “stay together” because “[a]nything else will create a ‘race to the bottom.’”79 Distributors understand this: Tenkoz emphasized to Syngenta that having a - 80 And asked Corteva to confirm that its loyalty payments would be high - enough to “keep everyone from ‘jumping ship.’”81 Corteva “assured [ ] the .”82 As the regional Loyalty value would be significant distributor CNI explained, if “a major channel player [] chooses not to participate,” it can “prey on the loyalty participants,” leading to “lower[] prices[.]”83 “The result is the loyalty program ceases to function as intended.”84 And a former Syngenta employee—a 77 Ex. 53 at slide 27. See Ex. 99 at -431 (worrying that “a hot head customer” will “switch[] to generic” “and in turn break our loyalty program”). 78 Ex. 100 at -191–93; see also Ex. 101 at -519 (“if [Helena] break[s], we would likely all suffer as prices fall further”). 79 80 Ex. 102 at slide 16. 81 Ex. 103 at -176. 82 Ex. 103 at -176. 83 Ex. 104 at slide 4. 84 Ex. 104 at slide 4. 25 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 40 of 203 2002 “architect” of Syngenta’s original loyalty program—testified that if generic market penetration were to expand to somewhere 2. - 30% and 40%, 85 Defendants’ Loyalty Programs Are Structured to Exclude Generics a. High Loyalty Thresholds Defendants condition their loyalty payments on a distributor meeting high loyalty thresholds, thereby strictly limiting its purchases of generic products. To qualify in a given year, a distributor must source a high percentage of its yearly total of a given AI from Syngenta or Corteva, as applicable, as opposed to any generic manufacturer.86 The set percentage share usually leaves 15% or less available for generics—and sometimes as little as 1%.87 In practice, loyalty thresholds are often close to 100%. In 2021, for example, Syngenta’s thresholds were • • • • for azoxystrobin, • • for mesotrione, and for metolachlor.88 In 2016, Syngenta’s prevailing thresholds were azoxystrobin, for mesotrione, and for for metolachlor.89 85 Ex. 32 (Ripato) at 90:20–91:22, 183:11–20. 86 Ex. 105 (Hawkins (Syngenta)) at 255:5–12; Cor. Br. at 26. 87 See Ex. 108 at -226. 88 Ex. 109 at CX2534-015; see also Ex. 1 ¶ 300 & Fig. 20. 89 Ex. 110 at CX2528-178. 26 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 41 of 203 And in 2020, Corteva’s loyalty thresholds were and 90 I % for rimsulfuron, I % for oxamyl, I % for acetochlor. 90 Ex. 1 ¶ 312 & Fig. 22. 27 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 42 of 203 Defendants' high loyalty thresholds leave the distributors minimal "open space" or "headroom" within which to sell generic versions of that AI.91 The purpose and effect of setting- and maintaining-high thresholds is to slow generic entty and avoid downward pricing pressure for as long as possible. As a Corteva executive explained internally, 92 Defendants' repeatedly discussed internally the need to keep thresholds high to avoid Corteva's Van Vooren described Corteva's "Matrix [rimsulfuron] strategy" as ,. " 94 Syngenta acknowledges that - 95 Syngenta also recognizes that 96 So Syngenta needs to 91 Ex. 106 (Hawkins (Syngenta)) at 333 :11-334:21; Ex. 107 (Urbanowski (Corteva)) at 126:22-127:8. 92 Ex. 111 at -007. 93 Ex. 112 at -861 • see also Ex. 113 at-427 94 Ex. 114 at-310. 95 Ex. 11 5 at -824. 96 Ex. 11 6 at -954. 28 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 43 of 203 97 As a Corteva presentation explained, Consistent with this, Defendants recognize that once products become commoditized and the channel is no longer able to hold value, there is no reason to retain loyalty requirements. 99 b. First-Dollar Payments Defendants pay for loyalty on a "first-dollar" basis, which provides powerful incentives for distributors to meet or exceed loyalty thresholds. As Corteva admits (Cor. Br. at 24), if-and only if-the distributor crosses the required share-purchase threshold, then the distributor is eligible for payment. The payment is "first dolhu" because it is calculated not just on purchases beyond the threshold, but also earlier purchases.100 This structure confers a large one-time benefit (or one-time penalty) for meeting loyalty requirements (or missing them). With this stru cture, buying even modest amounts from 97 Ex. 116 at -954. 98 Ex. 117 at CX1361-012 see also Ex. 118 at -613 ). enta)) at 197:8-199:21 • Ex. 120 at slide 11 100 See Ex. ,r,r 261-62. 29 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 44 of 203 generic suppliers can cause distributors to risk falling below thresholds and losing payments on all purchases.101 c. "Sticky Money": Defendants Share Monopoly Profits with Distributors in Exchange for Exclusion of Generics Defendants' loyalty payments are intended for distributors to keep the payments they receive, not pass them onto growers, as Defendants claim. Cor. Br. at 5; Syngenta Memo. ISO Summruy Judgment (hereinafter "Syn. Br.") at 29. Loyalty payments ru·e intended to be "sticky money": Defendants want distributors to keep the payments as additional profit margin, not use the payments to subsidize price discounts down the channel.1°2 In Corteva's words: - "103 Or as Syngenta put it: 104 and , 103 Ex. 124 at slide 4. 104 Ex. 125 at slide 10 & notes· see also Ex. 91 30 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 45 of 203 105 Complete pass-through of payments to farmgate prices is inimical to Defendants’ goal of ensuring they can maintain the elevated prices and margins of their branded products. Defendants use loyalty payments to share their monopoly profits with distributors in exchange for the distributors restricting generic distribution. Syngenta told the channel 106 Syngenta wanted 107 Internally, Syngenta referred to loyalty - 108 Syngenta Head of Marketing Jeff Cecil testified that .109 Corteva testimony and documents similarly confirm that loyalty payments are intended as profit-sharing mechanisms, and not to subsidize channel discounts. Corteva’s 105 Ex. 53 at slide 28; see also Ex. 125 at slides 2, 10 ( . 106 Ex. 126 at slide 6. 107 Ex. 126 at slide 4. 108 Ex. 127 at slide 28. 109 Ex. 91 at 155:19–156:8. 31 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 46 of 203 f01m er President of Global Crop Protection admitted that loyalty programs provide distributors with uo A Corteva document explains: - 112 Corteva considered 113 Distributors likewise understand that loyalty payments are intended to insulate their profit margins from generic pressure. 114 The distributor CNI candidly acknowledged that "the channel like[s]" loyalty programs because they "maintain market values and associated margins" and "keep margins and market share at pre generic levels"llS: ;E . orteva' s loyalty program is ' ). m Ex. 65 at-019. u 2 Ex. 65 at-019. m Ex. 122 at Slide 2. 11s Ex. 104 at slide 2. 32 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 47 of 203 Distributors treat loyalty payments as profit reward, not price discount. 116 118 . 119 Defendants recognize this feature of their programs. As a Corteva National Account Manager explained when describing one distributor's 119 Ex. 133 (Card (WinField Pinnacle)) at 181:16-19; er Simplot & Ex. 1 ,i,i 347- 50. 33 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 48 of 203 120 Program complexity— including intricate qualification and calculation requirements—further diminishes the likelihood of pass-through by making it more difficult for distributors to factor loyalty payments into per-unit costs, minimizing the use of payments to reduce grower prices.121 Distributors’ internal documents reflect this reality: distributors repeatedly acknowledge that they benefit from the elevated prices resulting from the loyalty programs. As one distributor put it: “We live on the rebates – and the Basics [branded manufacturers] live on us.”122 Distributors view .123 ■ - 124 d. Program and Payment Structure: “Complex and Risky” Defendants add more complexity to the loyalty programs through payment calculation and structuring. Syngenta varies payments by product, applying different Ex. 135 at -194. Corteva amplifies this uncertainty by deferring payments across multiple years. See infra Section II.D.2.d.; Ex. 1 ¶¶ 351–53. 120 Ex. 1 ¶¶ 343–46; Ex. 32 (Ripato (former Syngenta, Tenkoz)) at 36:16–37:17, 38:18– 39:21, 69:23–70:16, 71:8–73:9 (describing loyalty program features that are designed to allow distributors to retain payment instead of being passed through). 121 122 Ex. 136 at -352. 123 Ex. 137 at -427. 124 Ex. 137 at -427. 34 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 49 of 203 percentage payments to different products,125 and the total product payment is often the sum of multiple components reflecting varying percentages tied to specific requirements.126 For example, 127 For premixes (products containing multiple Ais), Syngenta calculates Key AI payments as a percentage of the full product price, including the other Ais, some of which may remain under patent or regulat01y protection. 128 And in some cases distributors must meet Key AI thresholds on multiple Ais to qualify for certain bonuses.129 These features amplify the penalties for missing loyalty and increase the uncertainty of payment, while increasing distributors' incentive to comply and decreasing the likelihood distributors will pass through the payments to reduce fatmgate prices. Tenkoz described Syngenta's "dual qualifier with both indexing and loyalty" as 125 See Ex. 1 ,r 344. 126 See Ex. 1 ,r 343. 121 See Ex. 1 ,r 343. Ex. 1 at App. C ,r 18; id. at App. E ,r,r 3- 5. Acuron contains bicyclopyrone (which still has FIFRA exclusivity protection), mesotrione, metolachlor, and atrazine. See id. at App. C ,r 18. Distributors must meet mesotrione loyalty thresholds, but the amount at risk is calculated as a percentage of the full purchase price covering all four Ais. See id. at App. E ,r 5 & Fig. 40. 128 See ); Ex. 132 (Cole (Tenkoz)) at 225: 18- 226:11 (explaining that payment "hinges" on "[Tenkoz's] index" and "loyalty"). 35 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 50 of 203 “punitive” and asked Syngenta to “unlink” the requirements to “put a little bit more certainty in outcome and income stream.”130 Internally, Corteva describes its own program 131 Corteva has carefully designed its payment structure to amplify the penalties for missing loyalty on one AI through (1) bundling, (2) deferred payments, and (3) tying incentives to the lucrative “Corporate Offer” incentives. These features further discourage distributors from either buying generics or using loyalty payments to reduce grower prices. Corteva attempts to whitewash its program by omitting critical aspects that impact the function and effect of the program and those facts are disputed. Cor. Br. at 25–31. First, .132 Corteva understands that this AI bundling amplifies the penalty for noncompliance. As a Corteva employee wrote, Corteva 130 Ex. 132 (Cole (Tenkoz)) at 226:12–17; Ex. 140 at -052. 131 Ex. 117 at CX1361-011. Ex. 142 (Arens (Corteva)) at 151:18–153:4; see also id. 32:4–11 (listing different offers). 132 36 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 51 of 203 specific products. Second, Corteva defers a portion of payments the distributor has ea1ned to later years. . 134 The share of 135 This is not offering "earlier payment for higher-tier performance" (Cor. Br. at 31), but is instead deferring eained payments to increase the anticipated penalties of missing future loyalty thresholds. Corteva's risks forfeiture of payments by magnifying the penalty for disloyalty and-as Corteva witnesses admitted-is intended to "incentivize" "continued participation" in loyalty.136 As Corteva documents and testimony show, also limits the likelihood that they ai·e passed through to growers in the form of lower prices. 137 In one instance, a Corteva National 133 Ex. 143 at -309-11 ; see also Ex. 144 at -925 134 Ex. 10 (Messner (Corteva)) at 104:5-105:3; Ex. 142 at 157:22-1 58:5. 135 See, e.g. , 136 Ex. 145 at -001 , -004. Ex. 10 at 103:19-104:4; Ex. 85 at 97:9-20. Ex. 146 at -092 ("Deferment further kee (Wasson (Corteva)) at 164:2- 20 137 See 37 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 52 of 203 Account Manager "encouraged" Nutrien - " 138 The distributor IAP equates loyalty to "handcuffs," calling Corteva's program "too complex and too RISKY" because distributors "cannot count on a cost, and they can' t mn their business without understanding exact cost." 139 Contrary to Corteva's assertion (Cor. Br. at 31), 140 Finally, . 142 Corteva tries to argue that the Corporate Offer allows (Cor. Br. at 27), but this is wrong. In reality, 143 Corteva regular·ly reminded distributors of this risk. When Helena considered "break[ing]" loyalty on the AI oxyfluorfen, Corteva's Van Vooren 138 Ex. 147 at -542. 139 Ex. 148 at -796. 140 See, e.g., Ex. 183 at 137:14-17. 141 Ex. 149 at slides 16, 19. 142 Ex. 150 at -213; see also Ex. 142 at 40:6-8. 143 Ex. 142 (Arens (Corteva)) at 218: 10-24. 38 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 53 of 203 .”144 In another instance, 145 Corteva’s documents also reveal this tying strategy. Corteva predecessor Dow explained that ”146 Corteva’s Channel Lead for Distribution Strategy confirmed that ”147 He went on to explain that 148 In a presentation to its customers, :149 144 Ex. 101 at -519. 145 Ex. 156 at -493, -496. 146 Ex. 153 at slide 70. 147 Ex. 154 at -261. 148 Ex. 154 at -261 (emphasis added). 149 Ex. 155 at -675, -691. 39 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 54 of 203 In short, Corteva designed its program to ensure that disloyalty on even a single AI would trigger penalties far exceeding any short-term benefit a distributor might gain, effectively locking distributors into compliance across Corteva’s entire product line. e. Retaliation and Credible Penalties: Leaving Loyalty “Would Be Suicide” Defendants emphatically dispute that they retaliate or threaten penalties on distributors who fail to participate in their loyalty programs. See, e.g., Cor. Br. at 33–34, Syn. Br. at 50–53. The record disagrees: both Defendants retaliated against numerous distributors for daring to defy them. 40 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 55 of 203 150 One of Pinnacle’s product lines was Innvictis, which Pinnacle sold to growers through Pinnacle retailers.151 .152 153 154 155 - 156 150 Ex. 134 at 22:4–10, 25:14–26:6. 151 Ex. 134 at 27:2–9. 152 Ex. 157 at -977; Ex. 158 at -818. 153 Ex. 105 (Hawkins (Syngenta)) at 283:4–284:4; Ex. 159 at -651–52. 154 Ex. 134 at 161:15–22, 177:14–178:5; Ex. 50 at 60:4–23. 155 Ex. 89 at 261:24-262:8; see also Ex. 160 (Semadeni (Simplot)) at 35:4–20; Ex. 161 at 300:2–25. 156 Ex. 162 at CX2360-007. 41 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 56 of 203 When Pinnacle needed Syngenta products, it was forced to purchase from another distributor or broker, which is generally more expensive, less predictable, or both. 157 ■ 158 _ _159 Simplot eventually broke from Syngenta in 2024. 160 Both Defendants retaliated against IAP, a buying group for independent retailers, for failing to follow their respective loyalty programs. ); Ex. 161 (Baioni (Nuu-ien)) at 299:3-6. 159 Ex. 89 (Langkamp (Syngenta)) at 296: 12- 302:6; Ex. 160 at 40:7-41:22, 80:22- 81:1 8. 160 Ex. 165 at slide 2. 161 Ex. 89 (Langkamp (Syngenta)) at 166:19-1 67:22. 42 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 57 of 203 162 As a former IAP executive described, this forced some IAP members to buy from other distributors at higher prices; 163 other IAP members were able to purchase directly from Syngenta, but at a higher price than they had received through IAP. 164 And in 2018, Corteva canceled its loyalty program and dissolved its distribution agreement with IAP because "IAP [was] not acting as 'one"' or "meeting loyalty."16s That was hardly the only time Corteva retaliated against distributors for disloyalty. In 2019, C01teva limited product supply to three distributors - ) because of Corteva's belief they were supp01ting generics. Van Vooren explained: 166 Corteva also targeted Gar Bennett, a California distributor-retailer, for lack of loyalty. In 2018, Gar Bennett agreed to limit purchases of generic rimsulfuron and instead purchase Corteva's Matrix in exchange for loyalty payments. 167 As pa1t of this 163 Ex. 87 at 202:4-23; Ex. 166 at-552-53. 164 Ex. 87 at 203:16-205:16; Ex. 166 at-552. 165 Ex. 167 at -920; Ex. 129 (Corteva's Responses to Plaintiffs' First Set of Inten-ogatories) at 3. 166 Ex. 168 at-235. 161 Ex. 169 at -875; Ex. 170 at -423. 43 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 58 of 203 process, Corteva threatened that “Lack of Support = Change in B2B”—an end to their direct (business-to-business) relationship.168 Over the next two years, Gar Bennett acquiesced and sharply limited its generic rimsulfuron sales to comply with Corteva’s conditions.169 In 2021, Corteva responded to reports that Gar Bennett might be “go[ing] generic” by sending it “ ,” .170 A Corteva employee explained: “My opinion is that if they go a different way, we evaluate the whole relationship. We don’t need them on our patented products. I would not let them [c]herry pick us.”171 In 2023, Corteva threatened to end the benefits of the Gar Bennett “partnership” if it did not “stay loyal to branded products.”172 In response, Gar Bennett “promised” “they will stay with Corteva.”173 Later that same year, Corteva told Gar Bennett it was cancelling multiple payments because it lacked a “firm commitment . . . going forward” on Corteva’s “entire” portfolio, including Matrix in particular.174 Gar Bennett responded to Corteva the next day about “get[ting] us back on track together.”175 168 Ex. 171 at -183. Ex. 172 (Bodily (Corteva)) at 123:15–124:18; Ex. 173 at -572; Ex. 174 at -883; Ex. 1 ¶ 386 n.497; Ex. 175 at -633. 169 170 Ex. 169 at -875 (Van Vooren (Corteva)). 171 Ex. 169 at -875. 172 Ex. 176 at -591. 173 Ex. 177 at -104; Ex. 178 (Bodily (Corteva)) at 248:22–249:10. 174 Ex. 179 at -696. 175 Ex. 179 at -695. 44 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 59 of 203 Corteva repeatedly discussed punishing disloyal distributors by cutting their supply allocations. For example, when Simplot pursued generic alternatives, an internal Corteva presentation set out a proposed threat: 176 A Corteva sales leader similarly proposed in 2018 that Corteva “lower[]” two distributors’ ( ) allocations “due to their lack of support” for Corteva’s branded products.177 He elaborated: “[W]e would just pull back a small amount of the allocation (enough that they realized support of Matrix and other generic brands is noticed) . . . and that those who have been loyal feel that are making a good decision in remaining 100% loyal across all of Corteva.”178 The goal? To “signal” “our desire for customers to remain loyal across the entire Corteva portfolio.”179 Consistent with this, Corteva executive Nate Feauto testified that Corteva generally .180 As he also put it in a favors compliant distributors as text message to his colleagues: “I’m a firm believer in not giving the best deal to ones that are not loyal to us and have left us.”181 176 Ex. 303 at slide 18. 177 Ex. 180 (Bodily) at -101. 178 Ex. 180 at -099. 179 Ex. 180 at -099. 180 Ex. 181 at 397:7–25. 181 Ex. 182 at -880. 45 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 60 of 203 Distributors believe that Defendants’ threats are credible and act accordingly. As Tenkoz’s President testified: If the distributor “kick[s the basic manufacturer] in the shins on those products that have loyalty programs,” it is “naïve” to expect the manufacturer “to treat you like a trusted value partner on the rest of their portfolio.”182 According to another, “if we fight with a branded company on the stuff that is really important to them [and] in late life cycle products . . . [we] are not going to be able to put programs [or] private labels or other types of . . . mechanisms for us to make money in place.”183 .184 .185 A Tenkoz executive similarly viewed , discussed above, as a cautionary tale. Responding to a proposal for Tenkoz to sell more generics, he wrote: What you are proposing is an IAP strategy of a few years ago, which failed….they pursued the cheapest options and subsequently took too much share to generics and lost their credibility, support and distribution contracts with key R&D 182 Ex. 132 at 146:5–147:10. 183 Ex. 32 (Ripato (Tenkoz)) at 42:8–21. 184 Ex. 183 at 119:25–121:6. 185 Ex. 3 at 63:25–66:25. 46 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 61 of 203 suppliers. Today, they are a small fraction of who they were 10 years ago.186 Distributors believe disloyalty will lead to being cut off from Defendants' products- even those umelated to loyalty. 187 ■ 188 Growmark's President similarly testified that if Growmark were to stop participating in Defendants' loyalty programs, it risks "los[ing] our ability to be an authorized distributor of these companies and not hav[ing] access to the portfolio." 189 Tenkoz's President agreed that "there's a concern on Tenkoz's pa1t that pa1ticipation in loyalty is imp01tant to help it keep access to supplier products that are not in the loyalty programs."190 Distributors also fear losing access to Defendants ' products on competitive terms if they are disloyal. 186 Ex. 184 at-391. 181 Ex. 3 at 270:3-11. 188 Ex. 3 at 62:9-19. 189 Ex. 185 at 117:20-11 9:1. 190 Ex. 132 at 147:6-10; see also Ex. 186 at slide 2 (listing "retain distribution contract" as a reason to paiticipate in loyalty). Distributors' fears of bein cut off extend to new roducts. See Ex. 187 Bernard Drexel at 283:24-284:1 9 47 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 62 of 203 191 193 f. Defendants Offer-and Take Away-Additional Profit Opportunities Based On Loyalty Defendants' allocation of private-label products is another tactic Defendants use to reward distributors who are loyal and punish those who are not. Private-label products are sold by manufacturers to distributors for distributors to sell under their own name. 194 These products are generally priced just below the branded product's price, but well above the generic price. 195 Because Defendants charge distributors less for private-label products than for branded, distributors' margin on private labels is often even higher than the margin on branded products. 196 191 Ex. 183 at 119:14-120:14. 192 Ex. 3 at 88:23- 90:3; see also Ex. 4 194 Ex. 78 (Cecil (Syngenta)) at 37:1-3. ; Ex. 188 at CX2474-019. 48 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 63 of 203 Defendants' internal documents confirm that they consider private-label products _191 Access to private-label to be opportunities is conditioned on loyalty, with private-label products reserved f o r or According to Syngenta, private labels are an 199 Corteva documents likewise 200 Distributors, too, understand that private-label products are intended to offer more profit-sharing opportunities conditioned on loyalty.201 Internal Tenkoz documents describe private labels as "margin opportunity to serve as loyalty incentive for the channel,"202 and _ _203 197 Ex. 189 at -610; Ex. 190 at slide 7; Ex. 191 at slide 18; Ex. 193 at slide 4. 198 Ex. 34 at CX2100-064· see also Ex. 194 at slide 16· Ex. 192 at slide 2 - ). 199 Ex. 196 at-133. 200 Ex. 197 at slides 3-4. 2 (' "). 202 Ex. 102 at CX2838-023. 203 Ex. 195 at-769. 49 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 64 of 203 E. Defendants' Mesotrione and Metolachlor Supply Agreements Syngenta-C01t eva supply agreements enhance and exemplify the exclusionary effects of Defendants' loyalty programs. In particuhu , Syngenta's loyalty program deten-ed C01teva from purchasing lower-cost generic mesotrione for a popular crop protection product, which resulted in Corteva and Syngenta entering into an explicitly exclusive mesotrione supply agreement. 204 After Syngenta' s mesotrione patent expired, C01t eva developed a pesticide product (Resicore) containing mesotrione.205 Syngenta recognized that if C01t eva- 206 Syngenta used its loyalty program to respond to this competitive threat. A C01t eva executive testified that, absent loyalty, Corteva could have sourced mesotrione from a low-cost generic supplier. 207 But Syngenta's loyalty program was a "sticking point" because the thresholds would have prevented distributors from 20s Ex. 199 at 61:24-62:6. 206 Ex. 200 at-519. 201 Ex. 201 at 130:4-131:4, 143:18- 21; Ex. 202 at -785. 50 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 65 of 203 purchasing Corteva mesotrione products in significant amounts.208 Internally, Corteva acknowledged that 209 Syngenta agreed .210 .211 Ultimately, Defendants saw Resicore’s inclusion in Syngenta’s loyalty program as a way for them to 212 Corteva acknowledged that its favorable treatment under Syngenta’s loyalty program demonstrated to the market that it was “aligned” with Syngenta and expressed that it was “committed to . . . supporting the post patent strategy for Mesotrione.”213 208 Ex. 203 at -834. 209 Ex. 204 at -233. 210 Ex. 202 at -785 ; Ex. 9 at 265:7–15; Ex. 198 at -069. 211 Ex. 9 (Messner (Corteva)) at 256:12–257:24. 212 Ex. 205 at -873. Ex. 204 at -233. Syngenta repeated this pattern in negotiations with other basic manufacturers, including Bayer. Bayer initially pursued opportunities with lower costs generics (Ex. 206 at -002–003) but abandoned its efforts after calculating that having its products count against Syngenta’s loyalty program would cost Bayer . Ex. 207 at -001–002. Ultimately, Bayer chose to retain favorable loyalty treatment, despite ” Id. at -003. 213 - 51 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 66 of 203 F. Defendants' Loyalty Programs Have Foreclosed Generic Competition For the Als Included In Loyalty Programs Defendants' tactics have worked. Defendants have extensively documented how their loyalty programs have prevented, delayed, and diminished generic ently and expansion. In 2014, as Syngenta was planning and implementing post-patent strategies for mesotrione and azoxystrobin, Syngenta highlighted the success of its "Post Patent Management," explaining that 214 Syngenta touted its status as ' 215 The reason for this success? "Syngenta's post-patent strategies," including Key AI, which Syngenta deemed a216 Later Syngenta documents acknowledged that Syngenta believed that its loyalty program was , and believed that without it, 214 Ex. 47 at CX2034-003 · see also Ex. 53 at slides 9-10 215 Ex. 27 at slide 2. 216 Ex. 27 at slide 2; Ex. 47 at CX2034-03 1. 52 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 67 of 203 When Syngenta executives analyzed ■ Syngenta would have , they expressed grave concern about the .219 Syngenta predicted that the resulting generic competition would cause Syngenta's 221 Corteva has repeatedly touted the success of its loyalty programs. In 2010, Corteva's predecessor Dow described itself as - · " 222 Internally, Corteva employees regularly reported that loyalty programs were successfully preventing distributors from stocking generics. In 2018, Corteva reported on the distributor- feeling that 219 Ex. 209 at-712-13. 220 Ex. 212 at-997. 222 Ex. 41 at CX1540-01 5. 53 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 68 of 203 223 Corteva also descr i b e d - as explaining that Corteva specifically highlighted its successes in excluding generics from the markets for oxamyl and rimsulfuron. In 2019, when discussing whether to give Nutrien a "break" on oxamyl loyalty requirements, Corteva' s Channel Lead wrote: "I would hate to lower loyalty levels to let generics get back in the game, when we potentially could be so close to pushing them out completely."225 A few months later, a Corteva Product Manager praised Corteva's success with oxamyl loyalty: On the generic side our team truly has done an A+ job blocking generics. I am very proud of the coordinated, team effort and understand the desire to thwart future enerics. A Also in 2019, a C01teva executive highlighted its successful exclusion of generic rimsulfuron in the period since the Dow-DuPont merger: 223 Ex. 216 at -945-46. Corteva noted that 224 Ex. 79 at slide 4. 22s Ex. 217 at-914 (emphasis added). 226 Ex. 60 at -317 (emphasis added). 221 Ex. 218 at -566. 54 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 69 of 203 Referring to Corteva’s threats to Gar Bennett, he continued: 228 Professor Hemphill’s expert analysis confirms Defendants’ judgment that loyalty programs have minimized generic entry, resulting in substantial foreclosure.229 In every year for which Professor Hemphill calculated foreclosure (since 2018), the share of sales foreclosed is 61% or more—and in some instances as high as 95%.230 The high levels of foreclosure calculated by Professor Hemphill are consistent with , the traditional channel’s general Defendants’ high loyalty thresholds adherence to loyalty requirements, and the importance of the traditional channel.231 228 Ex. 218 at -566; see also supra Section II.D.2.e. 229 Ex. 1 § 4.7. 230 Ex. 1 Fig. 28. See supra Sections II.D.1., II.D.2.a.; Ex. 1 Figs. 26–27; see also infra Section IV.E.1.b.iv. 231 55 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 70 of 203 Distributors acknowledge that Defendants' loyalty agreements have caused generic exclusion. _233 - Generic manufacturers repeatedly testified, and evidence in the record shows, that because of loyalty programs, they did not enter the six relevant AI markets, have limited 232 Ex. 3 at 45:20-48:24· see also Ex. 219 at CX4442-007- CX4442-0009 ). See also Ex. 220 at 81:24- 84:16 (if Van Diest was not subj ect to loyalty program, it would have purchased generic metolachlor for customer). 234 Ex. 220 (Van Diest (Van Diest)) at 81:24-84:16; Ex. 183 (Fowler (CNI)) at 114:2- 11 5: 1; Ex. 161 (Baioni (Nutrien)) at 271:25- 272:3 ("Q. Has Nutrien ever declined to fulfill a requested purchase for generic product because of open space considerations? A. Yes."); Ex. 133 (Card (WinField)) at 119:21-120:11 ("[W]e could not meet [generic] demand because [we had] made the decision to meet the loyalty program."). 23s Ex. 88 (Bernard (Drexel)) at 88:16-89:6; 115:22-116:12. 56 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 71 of 203 their product offerings in those markets, or have been unable to gain the necessa1y foothold to meaningfully compete with Defendants: • Azoxystrobin: exited the U.S. market236 ; Rotam did not enter because of a lack of market access caused by Syngenta's loyalty programs, despite selling azoxystrobin products worldwide237 ; Helm registered product that it abandoned due to loya1ty238 ; Summit Agro opted against introducing a premix of azoxystrobin and a proprietary AI partly due to loyalty.239 Helm decided to stop offering a mesotrione/metolachlor premix because of Syngenta loyalty.241 • Metolachlor: ;242 Helm decided to stop offering a mesotrione/metolachlor premix because of Syngenta loyalty.243 • Rimsulfuron: Albaugh did not enter the market due to DuPont's loyalty program;244 Helm did not pursue sales because of limited selling 236 Ex. 222 at 195:12-196:7. 231 Ex. 98 (Chavez (Rotam)) at 195:9-196:10. 238 Ex. 95 (Schumacher (Helm)) at 38:3-39: 17. 239 Ex. 223 at-757. 240 Ex. 222 at 251:6-252:20. 241 Ex. 95 (Schumacher (Helm)) at 160:4-1 5. 242 Ex. 222 at257: 17-258:13. 243 Ex. 95 (Schumacher (Helm)) at 160:4-1 5. 244 Ex. 96 (Vance (Albaugh)) at 139:3-140:15. DuPont (a Corteva predecessor) owned rimsulfuron brand (Matrix) and included it in a loyalty program ("SU Partnership"). Ex. 294 at slides 82-83. 57 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 72 of 203 opportunity under loyalty; 245 Rotam delayed entty for at least six years due to Corteva loyalty programs.246 • Oxamyl: AMVAC and Atticus suspended their generic operations after Corteva implemented its loyalty program.247 Rotam delayed entry into the market because of loyalty.24s Generic manufacturers' lack of domestic success contrasts with other geographies where Defendants do not use loyalty programs, and generics have achieved greater mai-ket penetration. 251 But in the United States, generic manufacturers have resorted to selling products thrnugh the alternative channel because traditional distt·ibutors were unwilling to sell their products due to limited headspace.252 As an executive from generic 245 Ex. 95 (Schumacher (Helm)) at 184:1 5-1 85: 13. 246 Ex. 98 (Chavez (Rotam)) at 153 :20-155:23. 247 Ex 60 at -317. 24s Ex 98 (Chavez (Rotam)) at 241 :5- 20. 249 Ex. 224 (Lewis (SummitAgro)) at 11 6:5-18. 250 Ex. 222 at 241:7- 243:1 8. 251 Ex. 225 (Schumacher (Helm)) at 187: 14-1 89:6 (in other geographies, generic "sales are higher when there's • 252 Ex. 225 (Schumacher (Helm)) at 101:1 9-1 02:4. 58 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 73 of 203 manufacturer Albaugh explained: "We'd prefer not to [sell through the alternative channel], but we can't get the sustainable levels of volumes we need on some of those products selling through traditional distribution because of the loyalty programs. " 253 G. Defendants' Loyalty Programs Have Resulted in Higher Prices There is ample evidence that Defendants' loyalty programs have resulted in higher prices compared to a world without the loyalty program-i.e., with unconstrained generic competition. Defendants themselves have repeatedly acknowledged in internal documents that loyalty thresholds are designed to keep branded products' prices elevated and have successfully done so. Syngenta's internal documents repeatedly confirm its understanding that absent loyalty programs, it would face significant generic competition, resulting in lower prices. 253 Ex. 96 at 104:9-24. 254 Ex. 226 at slide 33. 255 Ex. 212 at-997. 256 Ex. 212 at-997. 59 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 74 of 203 Corteva has similarly acknowledged in internal documents and testimony that loyalty thresholds have successfully kept the prices and sales volume of their products artificially elevated, and that in the event of generic competition prices would drop. As Van Vooren emphasized to his colleague 259 Additionally: • In 2014, Corteva employees explained "why our generic defense strategy works so well. Answer: We maintain market value. We maintain value for everyone. Without our approach, market value oes to zero. " 260 " T he mru· in colla se would onl be worst sic 251 Ex. 227 at slide 6. 25s Ex. 228 at-788. 259 Ex. 229 at -967. 260 Ex. 230 at -827-28 (emphasis added). 261 Ex. 230 at -826 (emphasis added). 262 Ex. 68 at CX1305-057. 60 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 75 of 203 • In 201 • Van Vooren testified that, without the loyalty program, Corteva would not have "the same support" "of our channel prutners[.]" 264 It is not just Defendants who predicted lower prices and greater generic output absent loyalty programs-their customers did as well. For example, in 2 0 1 0 - "265 The forecast's author-who helped create Syngenta's loyalty program in 2002 and later worked for Tenkoz-stands by that forecast as of 2025.266 Similru·ly, when a Nut:rien employee was asked what he thought would happen if a competing distributor stopped participating in a Defendant's loyalty program, he testified that the competitor "would likely come to market with a cheaper alternative," which "would drive price down in the market. ''267 As Professor Hemphill explains, "given defendants' substantial market power within each AI mru·ket, basic economic the01y and examples of generic penetration as to 263 Ex. 231 at -263. 264 Ex. 40 at 151:2-19. 265 Ex. 232 at -027-28. 266 Ex. 32 at 104:23-105:3 - management position in 2010 and Ripato's position in 2025 ru·e "the same"); id. at 183:11-20. 261 Ex. 21 at 137:19-138:6. 61 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 76 of 203 other AIs support the expectation that unfettered generic competition results in lower prices, compared to a world without such competition.”268 In addition, the Plaintiff States’ expert Dr. Loren Smith concludes that Defendants’ loyalty programs “increased Syngenta’s and Corteva’s profits above what they would have realized in the absence of those programs” and “caused prices paid by end-use growers in Illinois and Nebraska to be higher than they would have been absent those programs.”269 As this robust evidentiary record amply demonstrates, Defendants’ loyalty programs have excluded generic manufacturers and raised prices for growers. More importantly, at this stage of the case, there are myriad disputes of material fact that can only be resolved at trial. III. QUESTIONS PRESENTED A. Have Defendants clearly demonstrated that low price is Defendants’ predominant method of excluding generic competition such that that no reasonable factfinder could find otherwise and the Court should depart from the default exclusive dealing rule-of-reason standard? B. Have Defendants clearly demonstrated that no reasonable factfinder could accept Plaintiffs’ proposed market definition? C. Have Defendants clearly demonstrated that no reasonable factfinder could find that Defendants’ conduct harmed competition? 268 Ex. 1 ¶ 447. 269 Ex. 233 ¶ 14. 62 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 77 of 203 D. Have Defendants clearly demonstrated that no reasonable factfinder could conclude that Syngenta Crop Protection AG or Syngenta Corporation controlled, dictated, encouraged, or participated in anticompetitive conduct? IV. ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate only where the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The court’s role at summary judgment “is not to assess the truth of any fact alleged or to weigh facts, as would a jury in finding facts, but only to determine whether facts are disputed and whether the disputed facts are material.” Duke Energy, 111 F.4th at 353 (emphasis in original; citation omitted). Courts should therefore “only enter summary judgment in favor of the moving party when the record shows a right to judgment with such clarity as to leave no room for controversy and clearly demonstrates that the non-moving party cannot prevail under any circumstances.” White v. City of Greensboro, 608 F. Supp. 3d 248, 256 (M.D.N.C. 2022) (Schroeder, J.) (cleaned up; citation omitted). In determining whether there is a genuine dispute of material fact, “the court views the evidence in the light most favorable to the non-moving party, according that party the benefit of all reasonable inferences.” Intercollegiate Women’s Lacrosse Coaches Ass’n v. Corrigan Sports Enters., Inc., 694 F. Supp. 3d 625, 656 (M.D.N.C. 2023) (Schroeder, J.) (quotation omitted). The moving party bears the burden to show there is no genuine 63 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 78 of 203 dispute of material fact for each challenged claim. City of Greensboro, 608 F. Supp. 3d at 256. B. Elements of Plaintiffs’ Claims Plaintiffs claim that Syngenta and Corteva are each violating federal and state antitrust laws through a course of unlawful exclusive dealing conduct. Doc. 81 (Amended Complaint) ¶¶ 203–11. Exclusive dealing takes various forms, but is in essence an agreement between a buyer and a seller that prevents the buyer from purchasing from another seller or requires the buyer to purchase from that seller. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1800a (5th ed. 2025) (“Areeda & Hovenkamp”). Exclusive dealing may be unlawful whether express or de facto and whether it requires complete exclusivity or not. See Doc. 160 (Memo. Op. & Order Denying Defendants’ Mot. Dismiss) at 60–61. 1. Federal Claims Each Defendant’s unlawful exclusive dealing conduct violates Sections 1 and 2 of the Sherman Act, Section 3 of the Clayton Act, and Section 5 of the FTC Act. See Doc. 149 (Amended Complaint) ¶¶ 203–11. Each of these statutes, at a minimum,270 supports a violation where plaintiffs prove by a preponderance of evidence the following elements: “(1) the relevant product market; (2) the geographical area of competition for the product market; and (3) that the arrangement at issue extends to a ‘substantial share of the Defendants have not challenged the FTC’s standalone Section 5 claim, which is discussed further in Section IV.F below. 270 64 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 79 of 203 relevant market.’” Doc. 160 at 36–37 (citation omitted). These factors allow the court to assess the “probable effect” that the exclusive deal has on competition. Id. (citations omitted). The two Sherman Act claims have additional elements not required by Clayton Act Section 3 and FTC Act Section 5. Section 1 requires that plaintiffs show an agreement and the possession of market power, and Section 2 requires that plaintiffs show that the defendant possesses monopoly power. See, e.g., Advanced Health-Care Servs. v. Radford Cmty. Hosp., 910 F.2d 139, 144–49 (4th Cir. 1990); see also Duke Energy, 111 F.4th at 352–53; Valuepest.com of Charlotte, Inc. v. Bayer Corp., 561 F.3d 282, 286 (4th Cir. 2009). Both Sherman Act statutes generally require a showing of likely harm to competition, but in the exclusive dealing context, the substantial-foreclosure requirement provides a “useful screening function” for the challenged conduct’s probable effect. United States v. Microsoft Corp., 253 F.3d 34, 69–71 (D.C. Cir. 2001) (analyzing a Section 2 exclusive dealing claim and finding harm to competition due to substantial foreclosure). Defendants admit that their loyalty programs constitute agreements, and they do not move for summary judgment as to geographic market definition—these elements are not disputed for purposes of these motions. Further, neither Defendant moves for summary judgment as to the elements of market and monopoly power in the markets as alleged by Plaintiffs. Instead they claim that, should they prevail regarding market definition, Plaintiffs’ allegations regarding market and monopoly power necessarily fail. 65 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 80 of 203 Syn. Br. at 90-91; Cor. Br. at 80. However, Defendants make no attempt to establish that there is insufficient evidence to find market and monopoly power in Plaintiffs’ proposed markets. Corteva only notes that, under Plaintiffs’ proposed markets, Plaintiffs have not shown monopoly power for acetochlor. Cor. Br. at 80. This is immaterial given that Plaintiffs have alleged that Corteva possesses market power in the acetochlor market. Therefore, the only bases for Defendants’ motions relate to (1) the definitions of relevant product markets and (2) the probable effect of the challenged conduct on competition, including substantial foreclosure. Plaintiffs amply show that issues of disputed material fact dominate these elements. Each of Plaintiffs’ federal claims should be set for trial. 2. State Claims Most Plaintiffs States’ state law claims in this case rise and fall with the Sherman Act claims.271 Defendants are not entitled to summary judgment on the former for the same reason they are not entitled to summary judgment on the latter. As discussed below (Section IV.H.), Defendants also are not entitled to summary judgment on California’s state-law claims, Indiana’s Deceptive Consumer Sales Act (“IDCSA”) claims, or Iowa’s Consumer Fraud Act claims because Defendants ignore the distinctions between California law and the Sherman Act and misconstrue what is needed to establish claims under Indiana’s IDCSA and Iowa’s Consumer Fraud Act. Washington is no longer seeking proprietary damages. See Ex. 238 (Plaintiffs’ Initial Objections to Syngenta Defendants’ First Set of Interrogatories) at 54. 271 66 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 81 of 203 C. Defendants’ Conduct Should Be Analyzed Under the Rule of Reason, Not Predatory Pricing Law Plaintiffs bring exclusive dealing claims, which are properly analyzed under the effects-based, burden-shifting framework of the rule of reason. See Mylan Pharms. Inc. v. Sanofi-Aventis LLC, 2026 WL 201152, at *20 (W.D. Pa. Jan. 27, 2026) (“The default antitrust test for exclusive dealing arrangements is the rule of reason test.”). At summary judgment, Defendants seek to recast Plaintiffs’ exclusive dealing claims as “predatorypricing” claims to trigger the defendant-friendly price-cost test that applies only to predatory pricing. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222 (1993) (“[A] plaintiff seeking to establish competitive injury resulting from a rival’s low prices must prove that the prices complained of are below an appropriate measure of its rival’s costs.”) (emphasis added). That effort fails both as a matter of law and in light of the factual record. The Court may reject use of the price-cost test at the outset based on the nature of Plaintiffs’ claims. Plaintiffs challenge not a low price (nor a payment, nor a rebate), but an exclusivity arrangement between Defendants and distributors that excludes lower-priced rivals. Plaintiffs’ claims are directed at the exclusionary effect of structural features of Defendants’ loyalty program (the share-based exclusivity conditions and Defendants’ tools for implementing those restrictions). Plaintiffs do not claim any exclusionary effect caused by “low price”—in fact, Defendants’ prices are higher than generic prices. The great weight of the case law confirms that when price is not the clearly predominant mechanism of exclusion the rule of reason should apply rather than the price-cost test. 67 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 82 of 203 In addition, the Court should reject Defendants’ invocation of the price-cost test because Plaintiffs have assembled substantial evidence establishing each of the five nonprice mechanisms of exclusion referenced in this Court’s motion-to-dismiss decision. Doc. 160 at 49–51. Defendants may dispute these facts, but summary judgment is inappropriate because a reasonable fact finder could determine that price is not the predominant means of exclusion. See Duke Energy, 111 F.4th at 359 (reversing application of price-cost test at summary judgment because “factual dispute[s] preclude summary judgment”). 1. The Rule of Reason Applies to Loyalty Rebate Programs When Price Is Not the Predominant Mechanism of Exclusion a. The Overwhelming Weight Of Authority, Including New Fourth Circuit Precedent, Supports Applying the Rule of Reason Exclusive dealing arrangements raise antitrust concerns because they “may be used by a monopolist to strengthen its position, which may ultimately harm competition.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012). They do so by restricting competitors’ access to the market, excluding potential rivals and enabling the incumbent to maintain supracompetitive prices. Id. at 271; see also McWane, Inc. v. FTC, 783 F.3d 814, 827–28 (11th Cir. 2015) (exclusive dealing can violate the antitrust laws when a dominant firm “impose[s] exclusive deals on downstream dealers to ‘strengthen or prolong its market position’” (quoting Antitrust Law ¶ 760b7)). As this Court has recognized, exclusive dealing is assessed under a form of the rule of reason that considers the probable competitive effects of the conduct, including the degree of foreclosure of 68 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 83 of 203 rivals, and balances those harmful effects against any cognizable procompetitive benefits. Doc. 160 at 35–37. Defendants want to avoid that fact-specific inquiry into their loyalty programs and therefore urge the Court to apply the bright-line “price-cost” test, which is applicable to evaluating a different type of conduct. Cor. Br. at 62; Syn. Br. at 35. The Supreme Court adopted the price-cost test in Brooke Group, 509 U.S. at 222, to assess competitor complaints that a firm is engaged in “predatory pricing”— anticompetitively lowering its prices but otherwise leaving customers free to determine whether and how much product to buy from the defendants and their rivals. Under this test, a defendant will not be held liable for low pricing unless it is pricing below its own cost. Id. Predatory pricing claims are analyzed under the demanding price-cost test because they challenge price cutting. Id. But adding a “payment” or “pricing” element to an exclusive dealing program to induce customers to accept the exclusivity requirement does not allow the program to escape scrutiny under the rule of reason. “A discount conditioned on exclusivity should generally be treated as no different from an orthodox exclusive-dealing arrangement.” Areeda & Hovenkamp, ¶ 1807b1 (2025); see also In re Surescripts Antitrust Litigation, 608 F. Supp. 3d 629, 643 (N.D. Ill. 2022) (“Predatory pricing concerns below-market prices, not pricing disparities a monopolist creates among its own customers.”). Thus, to determine whether the rule of reason or the price-cost test applies, courts focus on the predominant mechanism of exclusion (i.e., the reason that competitors face difficulty achieving sales). The rule of reason applies “where there are mechanisms 69 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 84 of 203 beyond price-cutting that exclude competition,” and the price-cost test applies when low price “clearly predominates over other alleged non-price mechanisms of exclusion.” Doc. 160 at 45, 55. As posed by this Court, a relevant question is whether “the loyalty programs leverage the Defendants’ monopolist status and the market’s substantial barriers to entry to exclude competition for the AIs.” Doc. 160 at 49. Courts in this Circuit and elsewhere have rejected antitrust defendants’ efforts to extend the price-cost test beyond cases where a rival’s inability to match a low price is the alleged mechanism of exclusion. Most recently, and following this Court’s decision on Defendants’ motions to dismiss, three highly relevant decisions have been issued rejecting use of the price-cost test in monopolization cases. The Fourth Circuit addressed the issue in August 2025, rejecting application of the price-cost test to a Duke Energy scheme designed to purchase exclusivity, cautioning that “Brooke Group does not provide a one-size-fits-all analytic framework for assessing exclusionary pricing allegations.” Duke Energy, 111 F.4th at 359. Defendant Duke Energy offered a key customer discounts and payments on existing contracts in exchange for the customer signing a new exclusive long-term contract at rates higher than the excluded rival was offering. Duke Energy characterized the discounts and payments as price reductions and argued that the price-cost test should apply. But the Fourth Circuit concluded that, because there was a factual dispute as to whether Duke Energy’s conditional discount was structured in such a manner as to exclude lower-priced rivals at consumers’ expense, the district court should not have applied the price-cost test and 70 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 85 of 203 granted summary judgment. The Fourth Circuit found the transaction structure at issue in Duke Energy to be potentially exclusionary for three reasons: first, it “hindered a new entrant’s ability to compete on the basis of efficiency”; second, it was designed by an incumbent monopolist “with the intent of foreclosing” new entrants from competing on the merits; and third, it was designed to charge elevated prices to end user customers. 111 F.4th at 357–58. Here, too, Defendants do not seek to exclude generics by pricing below them; rather they have laden their offers to customers with conditions that limit low-priced generics’ market access at growers’ expense. Corteva mentions Duke Energy only for a different point (about its cross-AI bundling), and Syngenta does not address it at all. But Duke Energy is controlling authority that is directly relevant to whether, at summary judgment, Defendants can use the price-cost test to avoid rule-of-reason analysis of their loyalty programs. They cannot. Two other recent cases (each a district court decision on a motion to dismiss) address the price-cost-test question in the context of pesticide loyalty programs. In February 2025, a federal district court in Arkansas rejected these same Defendants’ argument that the price-cost test applies to these very same loyalty programs. Arkansas, 2025 WL 551660, at *9–*10 . Recognizing that Arkansas “does not allege that low pricing was the means defendants used to exclude competition,” the court held that the rule of reason would be appropriate where, as alleged there (and here), “competition has been significantly foreclosed in the relevant markets and . . . it has been difficult for any 71 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 86 of 203 generic competitor to enter the market successfully, due to defendants’ loyalty programs.” Id. Similarly, in Rightline, LLC v. FMC Corp. the court evaluated complaint allegations that FMC, a monopolist in the pesticide AI sulfentrazone, “effectively block[ed] generic manufacturer Rightline’s access to the primary method of distribution” via high loyalty program share thresholds. 2025 WL 1550234, at *4 (E.D. Pa. 2025). The Court held that the price-cost test does not apply to such allegations, which “plainly set forth a plausible non-price-based exclusionary program.” Id. (noting also that Rightline was “not alleging that it is excluded from the market because of the price of FMC’s sulfentrazone”). In Rightline, as here, the mechanism of exclusion is not price but the condition required of distributors to obtain a payment. These three decisions join a long string of cases rejecting application of the pricecost test to exclusionary conduct that—like Defendants’ loyalty programs—does not use low price to exclude. See, e.g., ZF Meritor, 696 F.3d at 277 (holding that “price-cost test cases are inapposite” when “price itself was not the clearly predominant mechanism of exclusion”); In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 622 F. Supp. 3d 22, 65 (E.D. Pa. 2022) (“Where, however, price is not clearly the predominant mechanism of exclusion, the price-cost test does not apply.”); In re Surescripts, 608 F. Supp. 3d at 642 (rejecting price-cost test because plaintiffs did not allege that defendants’ “prices are now, or ever were, too low”). 72 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 87 of 203 b. Defendants Cite Inapposite Cases Defendants’ cited cases do not change the result. Both Syngenta (at 39) and Corteva (at 67) cite NicSand to suggest that the antitrust laws do not prohibit paid-for exclusivity. NicSand Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) (en banc). Yet neither take on—as this Court did in its motion to dismiss decision—the peculiarities of the market at issue in that case. In NicSand, “exclusivity was an essential feature of this specific retail market because the retailers (i.e., the buyers) required exclusivity.” Doc. 160 at 39. Thus, the main source of competition was dueling exclusive dealing arrangements. In that context, “When one exclusive dealer is replaced by another exclusive dealer, the victim of the competition does not state an antitrust injury.” NicSand, 507 F.3d at 456. That is wholly unlike the markets here, where distributors can and do sell both the named brand and their generic equivalent, except as limited by Defendants’ loyalty thresholds. Corteva cites In re EpiPen for the proposition that “courts have recognized that price rebates . . . should be ‘strenuously protect[ed]’ from antitrust attack, absent evidence they cross the line into the rare case of predatory below-cost pricing.” Cor. Br. at 64 (quoting In re EpiPen Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959, 1000 (10th Cir. 2022)) (Corteva’s modifications). That is an inaccurate description. The EpiPen court “appl[ied] the full rule of reason analysis to Mylan’s exclusive rebate agreements.” In re EpiPen, 44 F.4th at 984 n.7. In considering a different issue––whether to “infer substantial foreclosure because Sanofi was only able to overcome exclusion by paying a $36 million access tax” on the insulin drug Lantus––the court stated the basic 73 Case 1:22-cv-00828-TDS-JEP Document 461 Filed 04/27/26 Page 88 of 203 rule that it “cannot and should not infer any exclusionary conduct on the part of Mylan simply because Sanofi had to slash its prices to compete with Mylan.” Id. at 999–1000. Those price cuts “exemplified vigorous price competition” that courts should “strenuously protect.” Id. at 1000. Here, Plaintiffs do not complain that generic suppliers must lower their prices to compete. Generic products are already priced below Defendants’ products. Generic manufacturers are excluded by the restrictive share conditions Defendants impose upon distributors.272 Finally, Defendants urge this Court to apply a different test, one that focuses on the distributors’ motivation for agreeing to exclusivity, rather than evaluating the mechanism of exclusion. See, e.g., Syn. Br. at 38 (addressing why distributors agree to the loyalty payments, rather than why competitors are excluded from the market); Cor. Br. at 62–63 (same). Defendants argue that distributors are induced by payments to accept exclusivity, and that therefore the price-cost test should apply. But, even if the distributors’ motivation for agreeing to exclusivity were the determinative factor, the rule of reason would still be appropriately applied here. What appeals to distributors is not Defendants’ low price vis-à-vis generics (Defendants’ prices are higher), but that In Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000), the court did not apply the price-cost test for either claim. Instead, for one clai [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A87e559c20c7ac3e7. Public record. Not legal advice.