A Sept. 17 decision in In re: Frozen Potato Products Antitrust litigation highlights the antitrust risks that can arise when participants in a concentrated industry share market data through a benchmarking platform, even when the data are aggregated, anonymized and historical rather than current.
Under the right circumstances, the U.S. District Court for the Northern District of Illinois held, allegations that competitors shared such data may be sufficient to state a claim under the Sherman Act and defeat a motion to dismiss.[1]
This ruling highlights an antitrust risk that may become more prominent as technology makes it ever easier for competitors to share and gain visibility into one another’s businesses.
Overview of the Litigation
The litigation involves the $68 billion U.S. market for frozen potato products, where four leading producers — Lamb Weston Holdings Inc., McCain Foods, J.R. Simplot Co. and Cavendish Farms Ltd. — allegedly control roughly 98% of sales.
Filed in November 2024, the lawsuits assert that the defendant producers violated Section 1 of the Sherman Act through a price-fixing conspiracy and an unlawful information exchange, in addition to violating multiple states’ antitrust and consumer protection laws.
The consolidated class action complaints filed by direct and indirect purchasers describe inflexible demand for potatoes — called “the most popular vegetable among U.S. consumers” in the Jan. 10 complaint — and a market in which competition among producers turns largely on price.
The plaintiffs further allege significant relational ties within the industry, including executive movement among rival firms and co-packing relationships among producers.
At the center of the plaintiffs’ claims is a platform that is often called PotatoTrac, but is spelled in court filings as “PotatoTrack,” and run by a third-party data provider, Circana, which is alleged to have enabled the producer defendants to monitor one another’s positions and coordinate pricing.
The platform operated as a subscription service through which each producer defendant regularly submitted its own sales and volume data, and, in return, received comparative reports showing how it stacked up against the other producers.
The plaintiffs allege that the reports reflected product categories and geographic regions, allowing users to determine whether their prices were above or below aggregate price-per-pound levels.
In the plaintiffs’ telling, those features gave the producer defendants a detailed and ongoing view of their relative competitive positions. This information sharing was the basis of the plaintiffs’ claims against both the producer defendants and Circana.
The Court’s Decision on the Defendants’ Information Exchange
On Sept. 17, U.S. District Judge Jeffrey Cummings largely denied the defendants’ motions to dismiss the lawsuit.
With respect to the plaintiffs’ Section 1 conspiracy claim, the court found that the plaintiffs plausibly alleged a conspiracy to fix prices, citing allegations of parallel price increases and certain plus factors suggesting the existence of an agreement, including the exchange of competitively sensitive information.
The court also denied the motions to dismiss the plaintiffs’ independent claim that the information exchange itself — separate from the alleged price-fixing conspiracy — had the effect of unreasonably restraining trade under the antitrust rule of reason.
The court’s conclusion that exchanging competitively sensitive information can be a plus factor supporting an inference of conspiracy is unremarkable and consistent with settled case law.
More significant is the court’s refusal to dismiss the plaintiffs’ stand-alone information exchange claim. The court’s decision was based on allegations that the producer defendants exchanged “non-public, competitively sensitive data,” including stock-keeping unit, or SKU, level shipment, as well as “pricing and volume data” each week through the PotatoTrack platform.
The defendants argued that because the PotatoTrack data are “anonymous, aggregated, historical and industry-level,” the information sharing could not cause anticompetitive effects.
That argument is broadly consistent with a long line of cases and agency guidance treating exchanges of anonymous, aggregated and historical data as lower risk.
Until they were withdrawn in 2023, for example, the U.S. Department of Justice and the Federal Trade Commission‘s 1996 Statements of Antitrust Enforcement Policy in Health Care provided an “antitrust safety zone” for certain exchanges of price and cost information, including those that were:
- Conducted through third parties if the information was more than three months old;
- Drawn from five or more sources; and
- Aggregated so that no single source accounted for more than 25% of any statistic.
In the 2001 decision in Todd v. Exxon Corp., the U.S. Court of Appeals for the Second Circuit observed that the “exchange of past price data is greatly preferred” to current data, as is information “aggregated in the form of industry averages.”[2]
Judge Cummings nonetheless declined to fit PotatoTrack within this framework. Instead, the court held that the plaintiffs plausibly alleged that the data were “sufficiently granular and up to date to allow the Producer Defendants to evaluate their relative positions in the market at a given point in time.”[3]
The court focused in particular on the small number of participants. PotatoTrack’s data included only the four producer defendants, which together accounted for nearly the entire market.
In that concentrated setting, information that was nominally aggregated still let each producer measure itself against its three rivals, especially because the aggregated information could be sliced by product category and region.
The court further held that the plaintiffs did not need to specifically allege that the data had been
“deanonymized,” because the limited number of contributors meant that producers could “decipher [their] competitors’ business plans.”[4]
The court also relied on allegations that PotatoTrack included company projections, which the court said “would constitute exactly the kind of ‘current’ or ‘future’ price information that defendants argue is key to allege anticompetitive effects.”
Implications of the Court’s Decision for Antitrust Claims Based on Information Exchanges
Several practical lessons follow from the court’s decision and analysis. First, even facially anonymous and aggregated data can potentially be problematic for antitrust purposes when the pool of contributors is small and concentrated.
The court reasoned that sophisticated market participants can deduce details about specific competitors from such general information.
This is particularly true where — as here — the companies can supplement their formal information sharing through on-the-ground monitoring of each other’s activities, such as tracking each other’s production and supply at nearby plants and shared storage vendors.
Second, mostly historical data may not insulate an exchange if it also includes forward-looking information, such as price projections, which the court held is the kind of current or future price information that is key to alleging anticompetitive effects.
The court did not assign a specific weight of historical versus current or future information that tips the scale in favor of a plaintiff or a defendant.
Third, although much recent antitrust attention has focused on algorithmic pricing tools that generate pricing recommendations, the decision shows that traditional benchmarking services can create exposure even for the information-sharing platform itself.
In denying Circana’s motion to dismiss, the court called Circana’s “discussion of algorithmic pricing … a red herring.” Instead, the court held, the plaintiffs did not need to allege that PotatoTrack “dictated or … suggested pricing decisions” to state a claim against Circana.[5]
The court also held that it was reasonable to infer that a “sophisticated industry reporter” like Circana would be “aware of the sensitivity of the data shared” and the other market factors making collusion more likely.[6] This, the court held, was sufficient to allege Circana’s facilitation of the purported conspiracy.
Fourth, to state an antitrust claim, plaintiffs need not allege that competitors agreed directly with one another. Relying on earlier decisions, the court held that allegations of exchanging information through a third party are sufficient to allege an agreement to exchange information, at least when read with the rest of the plaintiffs’ allegations.[7]
Although direct evidence of an agreement is not necessary to prove an antitrust conspiracy, it is noteworthy that the court did not require even an allegation of a direct agreement. This increases the antitrust risk for subscribers to benchmarking services, whose mere knowledge that information will be exchanged with competitors may be deemed sufficient to infer an agreement among them.
Finally, the long and previously uneventful use of a benchmarking service may not be a satisfactory defense to antitrust liability.
PotatoTrack has existed since at least 2008, but the court reasoned that “the fact that the Producer Defendants did not start coordinating earlier does not make it implausible that they used PotatoTrack reports to inform their price increases at a later point in time.”[8]
Because PotatoTrack was alleged to be a means of communication and monitoring rather than the mechanism for setting current or future prices, its longevity did not defeat the plaintiffs’ claims.
Despite these cautions for users and providers of benchmarking services, Frozen Potato Products is
hardly a run-of-the-mill information exchange case.
Beyond PotatoTrack, the plaintiffs alleged nearly simultaneous price-increase letters that circulated among competitors, employees moving between rival producers, and real-time monitoring of rivals’ inventory at shared storage vendors and nearby plants.
The court found this conduct could plausibly have provided “more real-time information” than PotatoTrack itself. The plaintiffs also alleged efforts to avoid creating a paper trail about competitor pricing.
Whether the plaintiffs can prove any of this remains to be seen, but the allegations, taken as true on a motion to dismiss, paint an uncommonly detailed picture of the defendants’ purported conspiracy.
Still, the decision should give companies pause before participating in and developing information-sharing services, even when the data are nominally aggregated, anonymous and historical.
Frozen Potato Products demonstrates that merely applying those labels to an information exchange may not be enough to defeat a complaint, and it further shows that courts will look behind those labels to assess whether the data functionally allowed competitors to assess their relative positions and monitor one another.
The risk to companies that use benchmarking services in this way is only likely to grow as increasingly sophisticated technologies, like artificial intelligence, give firms greater insight into their competitors’ business.
To the extent that third-party developers of such AI tools know that their tools are facilitating the exchange of sensitive or proprietary information among competitors, the developers face the same risk of liability as Circana did.
Given the potential antitrust exposure arising from exchanging information through industry benchmarking services, companies should carefully consider their exposure before joining, using or developing such services.
- In re: Frozen Potato Products Antitrust Litigation, No. 24-cv-11801 (N.D. Ill.) (Sept. 17, 2026).
- Todd v. Exxon Corp., 275 F.3d 191, 211-12 (2d Cir. 2001).
- In re: Frozen Potato Products Antitrust Litigation, p. 32.
This article was originally published in Law360 on October 23, 2026, and is republished here with permission.
