Plaintiffs in a high-profile antitrust lawsuit* filed by three small food brands against David Protein have filed an amended complaint after experiencing a setback in court last week.
The legal dispute began shortly after David announced the acquisition of Epogee, when three firms that could no longer access Epogee’s novel fat (EPG) accused David of acquiring Epogee to “exclude competitors and create an artificial monopoly.”
David hit back by arguing that it was under no obligation to keep selling EPG to the plaintiffs, which it claimed were not direct competitors, had not signed long-term supply contracts, and could choose from an “abundance” of fats and fat substitutes with which to replace EPG.
The judge handling the case appeared to agree with David on several points and refused to grant a temporary restraining order forcing it to maintain supplies of EPG to Epogee’s previous customers until the litigation is resolved.
‘No ingredient is reasonably interchangeable with EPG’
In an amended complaint filed Monday, however, the three plaintiffs—OWN Your Hunger, Lighten Up Foods, and Defiant Foods—address several of the concerns raised by the judge.
Critically, the relevant market they allege David is attempting to monopolize is not the protein bar market or the low-calorie foods market, but the “global market for EPG supply.”
And EPG, a modified fat containing just 0.7 calories per gram, cannot be easily replaced in brands that have been built around it, they claim.
“No ingredient is reasonably interchangeable with EPG… EPG is the only alternative fat that is made from fat and functions like fat. Considering just the low-calorie attribute of EPG, substituting traditional fats [which contain 9 kcals/g] for EPG would force manufacturers to abandon their entire business model of producing low-calorie foods, as they could no longer make low-calorie claims under FDA regulations.”
Indeed, David’s decision to “pay millions” to secure continued access to EPG proves that EPG cannot easily be substituted, they add.
“When facing the choice between purchasing more of readily available traditional fats averaging $2/lb or paying millions to acquire Epogee for exclusive EPG access at approximately $6/lb, defendants chose the dramatically more expensive option, behavior that is economically irrational unless no substitution is possible.”
‘Irreparable reputational harm’
As for David’s claim that the plaintiffs had not suffered irreparable harm as a result of its actions, they add, “Each plaintiff built its entire business model around EPG as the secret sauce that enabled them to offer unique low-calorie products that maintained the sensory experience of full-calorie alternatives – a commercial proposition impossible with any other ingredient.”
Since March 25, when Epogee told them plaintiffs that EPG was unavailable due to “raw material lead times,” the plaintiffs claim to have suffered “catastrophic business disruption.”
OWN Your Hunger, for example, “breached binding delivery commitments to major retail customers due to EPG unavailability, causing irreparable reputational harm and triggering penalty clauses that compound its damages,” allege the plaintiffs.
“Plaintiffs have collectively suffered over $449,000 in sunk R&D investments specific to EPG-based products that cannot be recovered or repurposed for products using other ingredients. Plaintiffs have lost over $107,000 in confirmed sales due to inability to fulfill customer orders… Plaintiffs have been forced to write off over $85,000 in specialized inventory, including packaging that prominently features EPG-based calorie claims that would be illegal if used with any other ingredient.
“Plaintiffs suffer ongoing operational losses exceeding $15,000 per month from idle manufacturing capacity, lease obligations, and fixed costs without corresponding revenue to support operations.”
*The case is OWN Your Hunger, Lighten Up Foods, and Defiant Foods vs Linus Technology (which operates under the trade name David Protein), Epogee, and Peter Rahal, filed in the Southern District of New York on June 2, 2025. Case: 1:25-cv-04544
Further reading:
Peter Rahal, David Protein, sued over ‘bait & switch’ scheme to monopolize Epogee’s fat replacer
