The court handling a high-profile lawsuit alleging David Proteinacquired alt-fat makerEpogee to “exclude competitors and create an artificial monopoly” has refused a request to force David to temporarily resume supplying Epogee’s novel fat to all of its previous customers.
The legal dispute began days after Davidannounced the acquisitionofEpogeewhen three small food companies that could no longer access Epogee’s novel fat (EPG) filed an antitrust suit vs David Protein in New York.
According to their complaint,OWN Your HungerLighten Up Foods, andDefiant Foods “and numerous other food manufacturers invested hundreds of thousands of dollars” in building products around EPG (which behaves like fat but contains a fraction of its calories), but were suddenly unable to secure supplies when David Protein acquired Epogee.
The firms asked the court to grant a temporary restraining order preventing David from “restricting, limiting, or denying access to EPG to existing customers and qualified food manufacturers who previously had access.”
Judge: Plaintiffs are not direct competitors to David Protein
In a 12-page order filed with the court on Tuesday, however, Judge Victor Marrero said the plaintiffs had “not demonstrated a likelihood of success or serious questions on the merits” of their antitrust or monopoly claims.
Moreover, plaintiffs “do not grapple with the fact that EPG is patented” and are not direct competitors with David Protein, which makes protein bars, whereas the plaintiffs make low-calorie sauces, nut spreads, and chocolates, he added.
In their original complaint, meanwhile, the plaintiffs defined the relevant market as the United States market for EPG supply, said Judge Marrero. “But at oral argument, plaintiffs defined the relevant product market as that for low-calorie indulgence foods. If the relevant market is the United States market for EPG, plaintiffs have not satisfactorily shown that there are no effective interchangeable substitutes that do not infringe the patent for EPG.
“Indeed, plaintiffs’ submission references a non-party protein-forward ice cream company that once used EPG in its products but reformulated and defendants’ opposition lists competing protein bar manufacturers that do not use EPG.
“For the above reasons, plaintiffs have not demonstrated a likelihood of success on the merits, and their motion for a temporary restraining order is therefore denied.”
David Protein: ‘Under no obligation’ to sell EPG to plaintiffs
In court documents filed last weekDavid Protein said it was “under no obligation” to sell EPG to the plaintiffs: “Epogee has four patents that cover the process for making EPG. It is black letter law that patent holders are not obligated to sell their product to third parties or to license third parties to practice the patent.”
Meanwhile, there is an “abundance” of fats and fat substitutes on the market, added the defendants. “While the plaintiffs claim that they designed their product formulations and manufacturing processes around EPG as a central ingredient, they did not do what most businesses do, particularly when faced with a sole source of supply for a supposedly important ingredient or component – sign a contract.”
Before it bought Epogee, said David Protein, it too was a customer of Epogee. “But, unlike plaintiffs, David Protein negotiated a long-term supply agreement to ensure that EPG would be available to it for use in its David protein bars for many years to come. Other Epogee customers did the same thing. These plaintiffs did not.
“Now they want the court to rescue them from a predicament they created for themselves.”
‘Systematic supply denial and market manipulation’
According to the plaintiffs, Epogee first started reporting shortages of EPG in March, but told customers that supplies would be available in May. Responses to subsequent inquiries, they claim, were “vague” until May 29, when Epogee said it would no longer accept new orders and was winding down accounts following itsacquisition by David.
By effectively stringing them along for a couple of months “during the concealed acquisition period” so that they did not start making alternative arrangements, David and Epogee “created artificial market conditions favorable to monopolization through systematic supply denial and market manipulation,” they allege.
What is EPG?
To make EPG (esterified propoxylated glycerol), which can be listed on food labels as “EPG (modified plant-based oil),” Epogee splits plant-based oils such as canola into glycerin and fatty acids, inserts a food-grade link, and reconnects them.
As EPG is resistant to lipase, an enzyme that breaks down fat in the body, hardly any of its calories are released. For context, 1g of fat contains 9 calories, while 1g of EPG contains just 0.7 calories.
This proved highly appealing to David, which seeks to reduce the percentage of energy coming from fats and carbohydrates in its protein-fueled bars.
Unlike Olestra, which had a lower melting point (and messy side effects) or fat replacers made from sugars, gums, starches or fibers, EPG functions like fat because it’s made from fat.
*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
