The plaintiffs argued that Section 232 of the Trade Expansion Act of 1962, as amended, did not properly delegate authority to the Executive Branch because there is no “intelligible principle” under which Section 232 authorizes presidential action.

CIT determined that Section 232 did, in fact, meet the “intelligible principle” standard to uphold Section 232’s constitutionality.  In reaching its decision, the CIT relied on a 1976 case, Fed. Energy Admin. v. Algonquin SNG Inc., 426 U.S. 548 (1976), where the Supreme Court upheld a similar challenge against Section 232, finding that Section 232 “establishes clear preconditions to Presidential action. . . .”

Plaintiffs attempted to distinguish the 1976 case from the one before it, but ultimately failed to convince the three-judge panel that the Algonquinwas not binding on the CIT.

Despite the outcome, there are avenues for appeal.  The case can be appealed to the Supreme Court, where the Highest Court can revisit its earlier rulings and revise the law.  Despite the difficulty in overruling an earlier Supreme Court decision, one judge on the CIT panel expressed “grave doubts” about the 1976 decision that was binding on the CIT.  Judge Katzmann did not dissent from the opinion, and maintained that he was bound by earlier precedent, but maintained skepticism that the earlier decision was right.  Judge Katzmann expressed concern that Section 232 violates the spirit of Separation of Powers embedded in the Constitution because it:

“provides virtually unbridled discretion to the President with respect to the power over trade that is reserved by the Constitution to Congress. Nor does the statute require congressional approval of any presidential actions that fall within its scope. In short, it is difficult to escape the conclusion that the statute has permitted the transfer of power to the President in violation of the separation of powers.”

AIIS already announced its decision to appeal the decision, so time will tell whether the Supreme Court will revisit its earlier precedent.

Key Themes: Antitrust and the Free Market

Slater highlighted the intersection of antitrust remedies and AI innovation, framing the current moment as an “inflection point” for both antitrust enforcement and technology policy. She argued that monopolization remedies should foster competition by opening markets to smaller tech firms while incentivizing large tech companies to innovate rather than exclude competitors. Drawing parallels between the advent of large language models (LLMs) and the internal combustion engine, she stressed that AI’s transformative potential depends on entrepreneurs having the freedom to innovate without monopolistic barriers.

“The antitrust laws are the free market laws,” Slater said, citing the Supreme Court’s ruling in N. Carolina State Bd. of Dental Examiners v. F.T.C. (2015), which underscores antitrust as a safeguard for economic freedom ([1]).

Historical Lessons in Antitrust Enforcement

Slater provided three historical examples to illustrate how antitrust remedies have spurred innovation:

1. Standard Oil Breakup (1911): President Theodore Roosevelt’s lawsuit against Standard Oil dismantled its monopoly, reducing oil prices and enabling industries like automotive and aviation to thrive. This case demonstrated that curbing monopolistic control fosters economic dynamism ([2], [3]).
2. AT&T Consent Decree (1956): The DOJ’s 1949 lawsuit against AT&T led to a settlement that opened access to transistor technology, catalyzing the growth of Silicon Valley firms like Intel and Fairchild. Gordon Moore, Intel’s co-founder, credited this decree for enabling the semiconductor industry’s rise ([4], [5]).
3. AT&T Breakup (1984): Under President Reagan, the DOJ broke up AT&T’s telephone monopoly, fostering competition in long-distance and wireless markets. This enabled innovations like the Carterfone and, later, the iPhone, showing how antitrust remedies can unlock adjacent markets ([6], [8], [10]).
4. Microsoft Decree (2001): The Bush-era settlement with Microsoft prevented the company from stifling competition in the Windows ecosystem, allowing companies like Google and Apple to grow. This case highlighted the importance of protecting “leapfrog competition” for transformative innovations ([11], [12], [13]).

Antitrust in the AI Era

Slater emphasized that today’s AI-driven technological race requires similar antitrust vigilance. Monopolists who hoard data, users, or platforms can stifle innovation, much like AT&T and Microsoft did in the past. She advocated for remedies that restructure access to these resources without picking winners, trusting the competitive process to drive growth. This approach, she argued, counters centralized models like China’s, which rely on state-backed monopolies ([1]).

Benefits for All Stakeholders

Slater concluded that antitrust enforcement benefits not only innovators but also monopolists and consumers. Post-breakup, Standard Oil’s successors (ExxonMobil, Chevron) and AT&T’s descendants (Verizon, AT&T) thrived, as did Microsoft after its decree. By fostering competition, antitrust remedies expand economic opportunities, lower prices, and drive innovation, ensuring America’s leadership in AI and beyond ([14], [15]).

Why This Matters for Antitrust and AI

Slater’s speech underscores the DOJ’s commitment to using antitrust enforcement to promote free market competition in the AI era. As LLMs and other AI technologies reshape industries, her insights highlight the need for policies that prevent monopolistic exclusion and empower entrepreneurs. For businesses, policymakers, and tech enthusiasts, her message is clear: robust antitrust remedies are essential for unleashing America’s innovation potential.

Andre Barlow

abarlow@dbmlawgroup.com

Citations:

1. N. Carolina State Bd. of Dental Examiners v. F.T.C., 574 U.S. 494 (2015).
2. Roosevelt, T., Special Message to the Senate and House (1906).
3. Standard Oil Co. v. United States, 221 U.S. 1 (1911).
4. Watzinger et al., How Antitrust Enforcement Can Spur Innovation (2020).
5. Wessner, C.W. (ed.), Capitalizing on New Needs and New Opportunities (2001).
6. Watzinger & Schnitzer, The Breakup of the Bell System (2022).
7. In re Use of the Carterfone Device, 13 F.C.C.2d 420 (1968).
8. Carstensen, P.C., Remedies for Monopolization (2012).
9. Heiner, D.A., Microsoft: A Remedial Success? (2012).
10. Hesse, R.B., Section 2 Remedies and U.S. v. Microsoft (2009).
11. United States v. Microsoft, 253 F.3d 34 (2001).
12. Comanor, W.S., Break ‘Em Up for Their Own Good (1992).
13. Id.

The long-awaited remedy phase of United States v. Google concluded on September 2, 2025, when U.S. District Judge Amit P. Mehta delivered a carefully calibrated ruling following his August 2024 finding that Google illegally monopolized search. The decision stops short of breaking up the company yet aims to curtail anti-competitive behavior via behavioral constraints.

Key Remedies Imposed

Despite Google’s resounding defeat last year in the U.S. Department of Justice’s case targeting its search monopoly, Judge Mehta only handed down a mixed bag of remedies aimed at propping up search engine rivals and limiting the exclusive nature of its distribution contracts Judge Mehta’s decision imposes several targeted limitations while allowing Google and its partners like Apple to retain significant benefits:

1. Ban on Exclusive Deals
   GOOGLE may no longer enter or maintain exclusive contracts for distributing Google Search, Chrome, Google Assistant, or the Gemini app.
   This curtails Google’s ability to lock competitors out through tied default arrangements.
2. Conditional Revenue-Share Restrictions
   Agreements conditioning revenue-share benefits on distribution or placement of Google’s apps beyond one year are barred. This means Apple and Google can enter annual contracts and maintain the same relationship.
3. No Divestiture of Chrome or Android
   The court rejected calls to mandate a sale of Chrome or Android, finding such remedies too disruptive and poorly tailored to the offending conduct.
4. Allowed Payments Remain in Place
   Google can still pay partners for preloading and default placement, avoiding what the court saw as potentially harmful disruptions to the broader ecosystem.
5. Data Sharing Mandate
   Google must share certain search index and user-interaction data with “qualified competitors,” though not advertising data.
6. Syndication Services for Rivals
   Competitors can buy search and text-ads syndication from Google on commercial terms, though scope and duration are narrower than DOJ sought.
7. No Choice Screens Required
   The court ruled against mandating user-facing choice screens, citing poor precedent and lack of proven pro-competitive effect.
8. No Keyword Bidding or Granular Ads Data Required
   Google won’t be forced to restore exact-match bidding or share granular ad data with advertisers.
9. Transparency in Auctions Required
   Google must publicly disclose material changes to its ad auction systems, enhancing visibility into pricing practices.
10. Rule-Out of Public Education or Publisher Policy Remedies
    Proposals such as nationwide campaigns or forced changes to publisher policies were rejected as unrelated to monopolistic acts.
11. No Anti-Retaliation or Self-Preferencing Clauses
    The judge found these provisions vague or unsupported in evidentiary record.
12. Technical Committee and Timeline
    A six-year remedy term will take effect 60 days after the final judgment, with a Technical Committee appointed immediately to oversee enforcement.

At-a-Glance Table

Analysis

1. “Slap on the Wrist”?

Google avoids structural break-ups and retains flexibility to pay for placement—meaning its dominance in search is likely to persist.

2. But Not Toothless

The restrictions on exclusive contracts and the mandated data sharing add meaningful friction to entrenched practices. These could empower startups and AI-based rivals to gain footholds.

3. Generative AI Changes the Equation

Judge Mehta explicitly noted that the rise of generative AI—such as ChatGPT and Perplexity—factors into the calculus, making overly drastic remedies more dangerous and unnecessary.

4. DOJ and Advocates Push Back

Though the DOJ hailed the ruling as a critical step toward reigniting competition, advocates like DuckDuckGo CEO Gabriel Weinberg critiqued it as inadequate, warning consumers will still “suffer.”

Meanwhile, groups like the American Economic Liberties Project lambasted the court’s approach as a failure of enforcement.

5. Echoes of Microsoft Case

The ruling evokes the 2001 Microsoft settlement: no breakup, but behavioral constraints plus a compliance committee.

Conclusion

Judge Mehta’s remedies against Google represent a measured middle ground — disrupting key anti-competitive behaviors while preserving existing infrastructure. Whether this balance suffices to revive competition in search hinges on how well rivals can leverage access to Google’s data and syndication offerings—and whether antitrust enforcers and Congress step in if results disappoint.

Google and the DOJ may appeal, but the decision allows both sides to claim a victory. It could be years before the remedies take full effect. And, as an aside, Apple, who benefits from sharing revenue with Google can also claim victory.

Andre Barlow

abarlow@dbmlawgroup.com

202-589-1838

Background on the 2021 Executive Order

Executive Order 14036, titled “Promoting Competition in the American Economy,” was signed by President Joe Biden on July 9, 2021. Its core purpose was to launch a “whole-of-government effort” to combat what the administration saw as excessive market concentration and anti-competitive practices that harmed consumers, workers, and small businesses. The order contained 72 specific provisions designed to address these issues across various sectors.

Key goals included:

• Strengthening antitrust enforcement to challenge monopolistic behaviors and prior mergers that had consolidated power.
• Promoting worker rights by limiting non-compete agreements and enhancing labor market competition.
• Supporting consumer access to affordable goods and services, such as over-the-counter hearing aids and broadband “nutrition labels” for transparency.

The order directed over a dozen federal agencies to take action. For instance:

• The Federal Trade Commission (FTC) and Department of Justice (DOJ) were instructed to vigorously enforce antitrust laws, including reviewing and challenging past mergers in high-concentration sectors like technology, healthcare, and labor markets.
• The Department of Agriculture (USDA) was tasked with bolstering rules under the Packers and Stockyards Act to protect farmers and enable easier equipment repairs (advancing the “right to repair” movement).
• The Federal Communications Commission (FCC) was encouraged to reinstate net neutrality rules to prevent internet service providers from stifling competition.

Specific industries targeted included:

• Technology: Scrutiny of Big Tech mergers and practices that limited innovation.
• Agriculture: Protections against exploitative practices by large agribusinesses.
• Pharmaceuticals and Healthcare: Efforts to curb drug price hikes through merger reviews and competition in medical markets.
• Labor and Broadband: Bans on excessive non-competes and promotion of open internet access.

The order also established the White House Competition Council, a 15-member body to coordinate these efforts across agencies. Critics at the time argued it represented overreach, while supporters viewed it as a necessary response to rising corporate power, which they claimed led to higher prices and fewer choices for Americans.

Under the Biden-Harris administration, this framework led to stricter merger guidelines in 2023, increased FTC and DOJ challenges to deals, and initiatives that blocked or modified high-profile mergers in sectors like tech and groceries.

The Revocation: What Happened?

President Trump’s revocation was straightforward and immediate. The new executive order, issued on August 13, 2025, simply states: “Executive Order 14036 of July 9, 2021 (Promoting Competition in the American Economy), is hereby revoked.” It includes standard general provisions ensuring no impairment of existing agency authorities or creation of new legal rights.

The White House framed this as part of a broader agenda to dismantle “burdensome” regulations from the previous administration. The Justice Department quickly endorsed the move, announcing an “America First Antitrust” approach that prioritizes free markets over what it called the “overly prescriptive and burdensome” policies of the Biden era. This includes streamlining merger reviews and reinstating practices like early terminations for uncontroversial deals.

The revocation aligns with other recent Trump actions, such as targeted executive orders on lowering drug prices and reducing regulatory barriers, rather than a sweeping, multi-agency mandate.

What Does the Revocation Mean?

The revocation marks a philosophical pivot in U.S. competition policy. The Biden-Harris order was criticized by some as encouraging “top-down” regulations that picked winners and losers, fostering hostility toward mergers and acquisitions (M&A). By withdrawing it, the Trump administration aims to let markets operate more freely, with the government focusing on enforcing existing antitrust laws passed by Congress rather than expanding regulatory oversight.

Key implications include:

• End of the White House Competition Council: This inter-agency body, which coordinated efforts on issues like credit card fees and app store practices, is dissolved, potentially reducing holistic government scrutiny of anti-competitive behaviors.
• Shift Away from Strict Merger Scrutiny: The Biden-era guidelines made it harder for large deals to pass muster, leading to blocked mergers (e.g., in airlines and tech). Trump’s approach emphasizes “tailored action” to protect consumers without blanket opposition to consolidation.
• Broader Economic Focus: Proponents argue this will promote growth, innovation, and lower costs by reducing regulatory burdens. Critics, however, warn it could lead to higher prices, fewer choices, and greater corporate power, as seen in statements from figures like Sen. Amy Klobuchar, who called it a “step backward” for consumers and workers.

On social media, reactions vary: Some users celebrate it as a win for innovation and against bureaucratic overreach, while others decry it as favoring big business at the expense of everyday Americans, potentially costing billions in fees and losses.

FTC Chairman’s Statement

FTC Chairman Andrew N. Ferguson issued a strong endorsement of the revocation, stating:

“America’s markets are the most dynamic on Earth, responsible for enriching the entire world through technological innovations, lifting countless people out of poverty, and inspiring other countries to emulate our economic system. Our markets thrive when they operate freely and when the Federal government does not pick winners and losers but allows businesses to grow and innovate.

Today’s withdrawal of the Biden-Harris Executive Order on competition marks another break between the last Administration’s failed policies and the Trump-Vance Administration’s focus on protecting everyday Americans from anticompetitive practices through tailored action, promoting economic growth, and ensuring that American workers benefit from competition for their labor.

The now-withdrawn Executive Order encouraged top-down competition regulations, and established a flawed philosophical underpinning for the Biden-Harris Administration’s undue hostility toward mergers and acquisitions. Consistent with President Trump’s recent Executive Orders, the Trump-Vance FTC is devoting its resources to enforcing the antitrust laws passed by Congress, for the benefit of all American consumers and workers—lowering the cost of living, improving the quality of goods and services, fostering new innovations, and leading to ever-greater prosperity for our Nation.”

This statement underscores the administration’s view that the prior order stifled growth, positioning the FTC to prioritize consumer benefits through targeted enforcement.

What Should Businesses Expect from Trump Administration Competition Policy on Mergers?

For businesses, particularly those in merger-heavy sectors like tech, healthcare, and agriculture, the revocation heralds a more permissive environment. Here’s what to anticipate:

Overall, businesses should prepare for a pro-growth stance that favors innovation and efficiency. The U.S. Chamber of Commerce applauded the move, noting it entrusts consumers to “pick winners” in a competitive landscape. That said, not all views are positive—some analysts predict risks like reduced innovation from unchecked consolidation and higher prices for essentials. Companies should monitor DOJ and FTC actions closely, as enforcement will now be more case-by-case.

Conclusion

Trump’s revocation of EO 14036 resets the competition landscape, moving away from aggressive regulatory intervention toward market-driven policies. While this could unleash economic dynamism and ease M&A for businesses, it raises questions about long-term consumer protections. As the administration implements its vision, stakeholders from Wall Street to Main Street will be watching—and debating—the outcomes. Stay tuned for updates as this policy shift unfolds.

Andre Barlow

abarlow@dbmlawgroup.com

202-589-1838

On August 8, 2025, the U.S. Department of Justice (DOJ) announced a landmark proposed settlement with Greystar Management Services LLC, the largest landlord in the United States, to address allegations of anticompetitive practices in the rental housing market. This settlement targets Greystar’s use of algorithmic pricing schemes that allegedly stifled competition and drove up rents for millions of American renters. This blog post explores the background of the lawsuit, the details of the settlement, and the key lessons learned from this significant enforcement action.

Background on the Lawsuit

Greystar, headquartered in Charleston, South Carolina, manages nearly 950,000 rental units across the country, making it the largest residential property manager in the U.S. The DOJ’s Antitrust Division, alongside several state attorneys general, filed a lawsuit accusing Greystar and five other major landlords of engaging in algorithmic price-fixing through the use of RealPage’s revenue management software. The complaint alleged that these landlords shared competitively sensitive data, such as pricing strategies and rental rates, to generate pricing recommendations that aligned competitors’ rents, effectively reducing competition.

The lawsuit highlighted how RealPage’s algorithms incorporated anticompetitive features, enabling landlords to coordinate pricing strategies and avoid lowering rents, even in softening markets. This practice, according to federal prosecutors, led to artificially inflated rents, with one apartment complex reportedly boasting a 25% rent increase in a single year by using RealPage’s system. The DOJ argued that such coordination, whether through direct communication or algorithms, violated antitrust laws by harming consumers through higher rental costs.

The Settlement

The proposed consent decree, filed on August 8, 2025, in the U.S. District Court for the Middle District of North Carolina, outlines several key requirements for Greystar to restore competitive practices in the rental market. If approved, Greystar must:

• Cease Using Anticompetitive Algorithms: Greystar is prohibited from using any pricing algorithms that rely on competitors’ sensitive data or incorporate anticompetitive features.
• Stop Sharing Sensitive Information: The settlement bans Greystar from exchanging competitively sensitive information with other landlords.
• Accept Monitoring for Third-Party Algorithms: If Greystar uses a third-party pricing algorithm, it must be certified as compliant with the settlement terms, and a court-appointed monitor will oversee its use.
• Avoid RealPage-Hosted Competitor Meetings: Greystar is barred from participating in RealPage-hosted meetings with competing landlords to prevent further coordination.
• Cooperate with DOJ’s Case Against RealPage: Greystar is required to assist the DOJ in its ongoing monopolization claims against RealPage, the software provider central to the alleged scheme.

The settlement, pending court approval following a 60-day public comment period as required by the Tunney Act, also aligns with a separate class-action lawsuit settlement Greystar reached with renters, which includes “significant” monetary damages to be presented for court approval as early as October 2025. Greystar has denied wrongdoing but agreed to the settlements to clarify legal standards and focus on its business operations.

Lessons Learned

This settlement marks a pivotal moment in addressing the impact of technology on market competition, particularly in the housing sector. Several key lessons emerge:

1. Algorithmic Accountability: The case underscores the growing scrutiny of algorithms in business practices. While technology can optimize operations, its misuse to coordinate pricing or suppress competition can lead to significant legal and financial consequences.
2. Consumer Protection in Housing: The DOJ’s action reflects a broader commitment to protecting working-class Americans from practices that inflate essential costs like rent. As Attorney General Pamela Bondi emphasized, free-market competition is critical to making housing affordable.
3. Collaboration Between Regulators and Industry: Greystar’s cooperation with the DOJ’s case against RealPage highlights the importance of industry players working with regulators to address systemic issues, potentially leading to broader reforms in rental pricing practices.
4. Transparency and Oversight: The requirement for a court-appointed monitor for third-party algorithms signals the need for robust oversight to ensure compliance with antitrust laws, particularly as technology becomes more embedded in business operations.
5. Impact on Renters: While the settlement does not quantify the direct relief for renters, the class-action settlement’s promise of monetary damages suggests that affected tenants may see some financial recourse, emphasizing the role of collective action in addressing widespread harm.

Conclusion

The DOJ’s proposed settlement with Greystar is a significant step toward curbing anticompetitive practices in the U.S. rental market. By targeting algorithmic price-fixing, the settlement aims to restore competition and protect renters from inflated costs. As the case against RealPage and other landlords continues, this action sets a precedent for how regulators will address the intersection of technology and market fairness. For renters, industry stakeholders, and policymakers, this settlement serves as a reminder that competition, not coordination, should drive affordability in housing.

Andre Barlow

202-589-1838

abarlow@dbmlawgroup.com

Settlement Details

To resolve the DOJ’s challenge, joined by the Attorneys General of Maryland, Illinois, New Jersey, and New York, Amedisys agreed to pay a $1.1 million civil penalty and implement antitrust compliance training for key executives and employees. The DOJ alleged that Amedisys violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) by falsely certifying compliance with a Second Request while aware of significant gaps in its document production. The settlement also mandates divestitures of 164 home health and hospice locations across 19 states, which the DOJ hailed as “the largest divestiture of outpatient healthcare services to resolve a merger challenge.”

HSR Act Merger Review Process

Under the HSR Act, parties to mergers meeting specific thresholds must file a pre-merger notification with the DOJ and Federal Trade Commission (FTC) and observe a 30-day waiting period before closing. If further scrutiny is needed, the reviewing agency may issue a Second Request, requiring extensive documents and data about the companies, transaction, and industry. This pauses the waiting period until the parties certify “substantial compliance,” attesting that their submissions are “true, correct, and complete.” If documents are unavailable, parties must provide a statement explaining noncompliance. Failure to comply risks a civil penalty of up to $53,088 per day.

The Complaint

Announced on June 5, 2023, UnitedHealth’s proposed acquisition of Amedisys aimed to combine two major players in home health and hospice care. UnitedHealth, through its Optum subsidiary, and Amedisys, a provider of home hospice and high-acuity care, faced scrutiny for potential harm to competition in numerous local markets. On November 12, 2024, the DOJ and state co-plaintiffs filed a complaint in the U.S. District Court for the District of Maryland to block the deal, alleging it would stifle competition in home health, hospice, and nurse labor markets.

The complaint also charged Amedisys with violating the HSR Act by falsely certifying substantial compliance despite known deficiencies, including:

• Missing Emails: Amedisys failed to disclose that a 30-day email archive gap coincided with key acquisition negotiations, omitting a required statement of noncompliance.
• Unproduced Hard Copy Documents: Amedisys neglected to provide any hard copy documents, including “copious handwritten notes” from its former CEO, publicly referenced in a 2023 book.
• Omitted Text Messages: Text messages from over half of Amedisys’s custodians were not produced.

After DOJ confrontation, Amedisys produced over 2.5 million additional documents, including critical materials like an email from its CEO assessing transaction risks and a text message discussing UnitedHealth’s market consolidation. The DOJ alleged Amedisys was noncompliant for at least 252 days, risking over $13 million in penalties.

Settlement

The settlement requires Amedisys to pay a $1.1 million civil penalty and train its corporate and field leadership on antitrust compliance for falsely certifying that the company had truthfully, correctly, and completely responded to the DOJ’s requests for documents. Amedisys must train its CEO, CFO, COO, chief legal officer, and field leadership on antitrust compliance, with the DOJ approving the training content.

Key Takeaways

This settlement highlights critical lessons for companies in merger reviews:

• “Substantial Compliance” Is Serious: Agencies may reject incomplete certifications, delaying mergers and imposing hefty penalties. Close coordination with antitrust counsel is essential to ensure compliance with Second Request demands.
• Thorough Document Collection: The case emphasizes the need for comprehensive collection of hard copy and text message documents, aligning with recent DOJ and FTC guidance on preserving data from collaboration tools and ephemeral messaging platforms.

This case serves as a stark reminder: cutting corners on compliance can lead to costly consequences.

Andre Barlow

abarlow@dbmlawgroup.com

On August 7, 2025, the U.S. Department of Justice (DOJ) Antitrust Division, along with state co-plaintiffs from Maryland, Illinois, New Jersey, and New York, announced a proposed settlement to resolve their challenge to UnitedHealth Group Incorporated’s $3.3 billion acquisition of Amedisys Inc. This settlement, which requires the divestiture of 164 home health and hospice facilities across 19 states, marks a significant step in addressing antitrust concerns in the healthcare sector. This post explores the background of the lawsuit, the rejected remedies, the details of the divestiture, and the lessons learned about the DOJ’s preference for structural remedies.

Background of the Lawsuit

In June 2023, UnitedHealth’s subsidiary Optum agreed to acquire Amedisys, a leading home health and hospice provider based in Baton Rouge, Louisiana, for $3.3 billion. UnitedHealth, headquartered in Eden Prairie, Minnesota, is a vertically integrated healthcare giant, operating as an insurer, provider, pharmacy benefit manager, and healthcare software vendor. The acquisition raised red flags for the DOJ, particularly because UnitedHealth had acquired Amedisys’s primary competitor, LHC Group, in 2023 for $5.4 billion. The DOJ, joined by four states, filed a lawsuit in November 2024 in the U.S. District Court for the District of Maryland to block the merger, arguing it would significantly reduce competition in the home health and hospice markets.

The DOJ’s concerns centered on the potential for UnitedHealth to dominate the market, controlling 30% or more of home health or hospice services in eight states and expanding into five additional states for the first time. The lawsuit claimed the merger would harm hundreds of thousands of vulnerable patients by limiting access to affordable, high-quality care and reducing wage competition for thousands of nurses. The DOJ labeled the deal “presumptively anticompetitive and illegal,” citing its potential to consolidate nearly 800 local home health and hospice markets.

In addition, the DOJ forced UnitedHealth to abandon acquisitions plans for other providers.

Rejected Remedies

To address the DOJ’s concerns, UnitedHealth and Amedisys proposed multiple divestiture plans, but at least two were publicly rejected. The first, proposed in the summer of 2024, involved selling assets to VCG Luna, a subsidiary of Texas-based VitalCaring Group. The DOJ rejected this plan, deeming VCG Luna an unreliable buyer to maintain competition in the affected markets. The second attempt, in spring 2025, involved divestitures to BrightSpring Health Services and The Pennant Group. This proposal was also rejected, as it failed to fully address the DOJ’s concerns about market consolidation. These rejections underscored the DOJ’s rigorous standards for ensuring that divestitures restore competition effectively.

The Approved Divestiture and Remedy

The proposed settlement, filed on August 7, 2025, resolves the DOJ’s concerns by requiring UnitedHealth and Amedisys to divest 164 home health and hospice locations, including one palliative care facility, across 19 states. These facilities generate approximately $528 million in annual revenue, making this the largest divestiture of outpatient healthcare services to resolve a merger challenge. The divested assets will be sold to BrightSpring Health Services and The Pennant Group, with BrightSpring acquiring 115 sites and Pennant acquiring 49, primarily home health facilities.

The settlement includes several key provisions to ensure competitive balance:

• Additional Divestitures: UnitedHealth must divest eight additional locations if regulatory approval for the initial 164 facilities is not obtained.
• Oversight: A monitor will supervise the divestiture process and ensure compliance with the consent decree.
• Support for Buyers: The agreement provides buyers with the assets, personnel, and relationships needed to compete effectively against UnitedHealth in overlapping markets.
• Antitrust Compliance: Amedisys will pay a $1.1 million civil penalty for falsely certifying compliance with the Hart-Scott-Rodino Act and must train its leadership on antitrust compliance.

The divestitures, concentrated in the Southeast where UnitedHealth’s LHC Group has a strong presence, aim to preserve competition for patients and nurses. The settlement also requires UnitedHealth to divest stakes in 10 joint ventures and includes protections to prevent interference with the buyers’ ability to compete. The proposal is subject to a 60-day public comment period under the Tunney Act, after which a Maryland district judge will determine if it serves the public interest.

Lessons Learned: The DOJ’s Preference for Structural Remedies

The UnitedHealth-Amedisys settlement highlights the DOJ Antitrust Division’s strong preference for structural remedies over behavioral ones in merger cases. Structural remedies, such as divestitures, physically alter the market by transferring assets to new competitors, ensuring long-term competition without ongoing oversight. In this case, the DOJ rejected earlier proposals that did not sufficiently restore competition, opting instead for a robust divestiture of 164 facilities to established players like BrightSpring and Pennant. The DOJ’s insistence on structural remedies reflects its belief that competition in healthcare is critical to protecting vulnerable patients and workers. By requiring divestitures across 19 states, the DOJ ensures that the home health and hospice markets remain competitive.

Andre Barlow

202-589-1838

abarlow@dbmlawgroup.com

Allegations in the Biden DOJ’s Complaint

The DOJ’s lawsuit, filed in the U.S. District Court for the Southern District of New York, alleged that the proposed acquisition would harm competition in the market for business travel management services, particularly for global and multinational companies in the United States. Key points from the complaint include:

1. Market Concentration and Oligopolistic Structure:
   • The DOJ claimed that the merger would combine Amex GBT, the largest business travel management company globally (with $28.2 billion in transaction volume in 2023), and CWT, the third-largest (with $14 billion in transaction volume), significantly reducing competition in an already concentrated market. The complaint described the market as “oligopolistic,” with Amex GBT, CWT, and BCD Travel (the second-largest player) controlling at least 70% of the market for travel management services for global companies with annual travel budgets of at least $30 million.
   • The DOJ argued that the merger would reduce the number of major players from three to two in this segment, giving the combined firm a dominant share and limiting competitive options for large businesses.
2. Harm to Competition:
   • The complaint highlighted that Amex GBT and CWT were fierce competitors, particularly for large businesses with complex travel needs. CWT had recently pursued innovative strategies to improve service and reduce prices, winning significant bids against Amex GBT. The DOJ alleged that the merger would eliminate this head-to-head competition, leading to higher prices, reduced choices, and stifled innovation for U.S. businesses.
   • The DOJ emphasized that few other companies could provide travel management services at the scale required by global and multinational firms, making the loss of CWT as an independent competitor particularly harmful.
3. History of Consolidation:
   • The lawsuit noted that this would be Amex GBT’s fifth acquisition of a travel management company since 2018, further consolidating an already concentrated market. The DOJ argued that this pattern of acquisitions exacerbated anticompetitive effects.
4. Narrow Market Definition:
   • The DOJ defined the relevant market narrowly, focusing on travel management services for global and multinational companies with significant travel budgets (e.g., over $30 million annually). This definition excluded smaller travel management companies and online tools, which the DOJ argued were not viable substitutes for the specialized services provided by Amex GBT and CWT. Amex GBT criticized this as a “gerrymandered” and “contrived” market definition, arguing it failed to account for broader competition in the evolving travel industry.

Context of the Case

• Timing and Political Context: The lawsuit was filed on January 10, 2025, just 10 days before the transition from the Biden administration to the Trump administration on January 20, 2025. Amex GBT described the filing as a “politically motivated” move by the Biden DOJ to push one final anti-merger challenge, noting that the transaction was not set to close until March 2025, giving the incoming Trump administration time to review it. Interestingly enough, the Biden DOJ did not challenge Capital One/Discover or HPE/Juniper even though the waiting period for HPE/Juniper was set to expire in January of 2025.
• Amex GBT’s Defense: Amex GBT argued that the DOJ’s complaint relied on outdated market views, ignoring post-pandemic changes in the travel industry, such as the rise of online tools and competitors like BCD Travel and Navan Inc. The company asserted that the merger would enhance innovation, create synergies, and provide greater value to customers, suppliers, and employees.
• International Scrutiny: The UK’s Competition and Markets Authority (CMA) also reviewed the merger, initially raising concerns about competition for multinational clients with travel budgets over $25 million. However, by February 2025, the CMA provisionally concluded that the deal posed no significant competition concerns, reinforcing Amex GBT’s position that the DOJ’s case was flawed.

Dismissal of the Case

On July 29, 2025, the DOJ moved to dismiss the lawsuit, exercising its “prosecutorial discretion” in a court filing before Judge Jed Rakoff in New York. The trial, scheduled for September 2025, was thus avoided, and the merger was allowed to proceed. Several factors contributed to the dismissal:

1. Change in Administration:
   • The case transitioned to the Trump administration, with Gail Slater appointed as head of the DOJ’s Antitrust Division. The Trump administration is perceived as more business-friendly and less aggressive on antitrust enforcement compared to the Biden administration. The dismissal aligned with a potential shift in priorities, as the Trump DOJ viewed the merger as less harmful or prioritized other enforcement activities. “The Antitrust Division, alone, made the decision to dismiss the case after a robust investigation,” Assistant Attorney General Gail Slater said in a statement. “The Division must also consider the enforcement trade-offs inherent to thoughtful and effective use of its limited taxpayer-funded resources.”
   • DOJ’s antitrust lawyers reviewed the transaction after Slater joined the agency in March. That review determined that new technologies are emerging to challenge travel suppliers like Amex GBT and CWT, making the merger less likely to harm competition.
2. Prosecutorial Discretion and Resource Allocation:
   • The DOJ cited “prosecutorial discretion” in its filing, with Antitrust Division head Gail Slater stating that the decision followed a “robust investigation” and considered “enforcement trade-offs” due to limited taxpayer-funded resources. This suggests the DOJ may have determined that pursuing the case was not the best use of resources, especially if the evidence of anticompetitive harm was less compelling under further review.
3. Weakness of the Case:
   • Arguably, the DOJ’s case was “flimsy” due to its narrow market definition. The market for travel management services has evolved, with online tools and new competitors like Navan Inc. increasing competition. Amex GBT’s claim that at least six travel management companies could serve large customers as effectively as CWT may have undermined the DOJ’s argument that the market was being reduced from three to two players. Indeed, the DOJ’s complaint indicates that the top three players only have 70% or the market so clearly other competition exists.
   • The UK CMA’s provisional clearance of the merger in February 2025 likely bolstered Amex GBT’s argument that the deal did not significantly harm competition, putting pressure on the DOJ to reconsider its stance.

Conclusion

The Biden DOJ’s lawsuit against the Amex GBT-CWT merger centered on allegations that it would reduce competition in a concentrated market for global business travel management, risking higher prices and less innovation, which could have impacted large global corporation customers. Large global enterprise customers with over $30 million travel budgets, however, have numerous options and can typically take care of themselves. The case was dismissed in July 2025 by the Trump DOJ, citing prosecutorial discretion and resource considerations. The dismissal was likely influenced by a combination of a weaker case upon further review by Slater’s team, which was supported by the UK CMA’s findings and a shift in administration priorities.

Andre Barlow

202-589-1838

abarlow@dbmlawgroup.com

Washington Premerger Notification Law

As of July 27, 2025, federal Hart-Scott-Rodino (HSR) Act filings will need to be submitted to the Washington Attorney General (WA OAG) under Washington State’s Antitrust Premerger Notification Act (APNA) if the parties have a certain minimum geographic nexus to the state of Washington. 

Under APNA, parties will need to submit a copy of their HSR filing to the WA OAG at the same time as their submission to the US Federal Trade Commission (FTC) and US Department of Justice (DOJ) if they: (1) have a principal place of business in Washington; (2) generated in-state net revenues in the prior year from the type of goods or services involved in the transaction of at least 20% of the minimum size of the HSR filing threshold (i.e., local annual net sales of at least $25.28 million in 2025); or (3) provide healthcare services within the state. While APNA imposes civil penalties for failure to file, the new law does not require a filing fee and does not impose a waiting period that prevents the transaction from closing.

Filing parties with their principal place of business in Washington must provide a complete copy of the federal HSR filing, including all exhibits and attachments submitted to federal agencies. Otherwise, the filing party need only include all exhibits and attachments at the request of the Attorney General.

Exhibits and attachments to the HSR filing include Transaction Information and Business Documents (formerly referred to as 4(c) and 4(d) documents), which often contain internal analyses of competition, market share, and strategic rationale. The law requires that submissions be made contemporaneously with the federal HSR filing, with no separate state waiting period imposed.

To preserve confidentiality, Washington’s statute expressly exempts submitted materials from public disclosure under the state’s public records laws. Disclosure is allowed only in the context of official proceedings and subject to protective orders. The statute also authorizes — but does not require — the Washington Attorney General to share filings with the Federal Trade Commission, the Department of Justice, or Attorneys General in other states with substantially similar premerger laws. This discretionary sharing mechanism is designed to support coordinated multi-jurisdictional enforcement efforts while maintaining strict confidentiality protections.

To promote compliance, the law includes an enforcement mechanism that allows for civil penalties of up to $10,000 per day for failure to file. This underscores the need for deal teams to incorporate Washington’s requirements into their closing checklists, particularly where either party has significant operations or revenue within the state.

Colorado’s Pre-Merger Notification law

Colorado’s Uniform Antitrust Pre-Merger Notification Act becomes effective on August 6, 2025.

Colorado’s Act applies across all industries, but only to transactions that are already subject to federal HSR reporting.

Under the statute, a qualifying party must provide a copy of its HSR filings to the Colorado Attorney General contemporaneously with its federal submissions, if the transaction in question meets one of the state’s nexus triggers.

Like in Washington, a party must provide a copy of its HSR filing to the Colorado Attorney General if: (1) a party to the transaction maintains its primary business headquarters within Colorado; or (2) a party to the transaction — or any entity it directly or indirectly controls — has annual net sales in Colorado related to the proposed transaction equal to or greater than 20 percent of the current HSR size-of-transaction threshold. As of 2025, with HSR thresholds at $126.4 million, the Colorado revenue trigger would equal $25.28 million in in-state sales.

Filing parties are generally required to submit an electronic copy of the complete HSR filing, including all exhibits and attachments. This ensures the Attorney General has access to the same substantive materials being reviewed by federal regulators.

Recognizing the commercially sensitive nature of merger filings, Colorado’s Pre-Merger Notification Act includes confidentiality protections. All materials submitted to the Colorado Attorney General under this law are confidential and exempt from public disclosure under the Colorado Open Records Act. Disclosure is permitted only in connection with administrative or judicial proceedings and then only under appropriate protective orders.

Colorado’s Pre-Merger Notification Act also authorizes — but does not require — the Attorney General to share information with the Federal Trade Commission, the U.S. Department of Justice Antitrust Division, and Attorneys General in other states that have adopted substantially similar legislation. It also authorizes the Colorado Attorney General to seek civil penalties of up to $10,000 for each day a party remains out of compliance.

Broader Trend of State Oversight

More states are following Washington and Colorado’s example. California, Hawaii, West Virginia, and the District of Columbia have introduced legislation that would apply to HSR-reportable transactions where a party has either its principal place of business in the state or derives at least 20 percent of its U.S. revenue from in-state operations. Notably, California’s proposed legislation includes a separate filing fee of $1,000 where a party has its principal place of business in California or $500 where the party meets the revenue threshold.

Utah and Nevada similarly introduced legislation largely mirroring Washington, Colorado, and the Uniform Antitrust Pre-Merger Notification Act. However, both bills failed to pass in the most recent legislative sessions.

New York recently proposed legislation requires any party conducting business in the state that is required to submit an HSR filing to contemporaneously provide the same notice and documentation, in its entirety, to the Attorney General.

The states are becoming more aggressive in terms of antitrust enforcement. Last year, the Colorado AG filed its own merger challenge to the Kroger/Albertsons merger separate and apart from the FTC’s challenge and litigated the case in CO state court. Notably, the Washington AG (which also has a state-level prenotification act) also challenged the merger and litigated the case in state court. 

Considerations for Businesses

For companies involved in M&A activity, these new laws introduce both strategic and operational considerations. First, dealmakers need to identify merger notification obligations early and consider incorporating potentially applicable state-law filing obligations into the due diligence process alongside HSR and other regulatory assessments, such as international merger control and foreign direct investment rules. State-level filing requirements could also be reflected in transaction timelines and closing conditions to help avoid last-minute compliance risks.

Second, filing parties also should account for the potential resource implications of the new law, including legal review, administrative processing, and possible engagement with State Attorneys General. Although the state laws do not impose waiting periods or clearance requirements, parties should anticipate increased scrutiny of transaction rationales, competitive effects, and state-specific market dynamics.

Third, companies may also want to revisit their internal document generation practices and carefully evaluate whether ordinary-course business materials contain language discussing competitive effects, market strategy, or industry dynamics — especially where such documents may be included in HSR filings and thus disclosed to state authorities.

Lessons Learned

There is a shift in how states are approaching merger oversight, signaling that state attorneys general intend to play a more active and earlier role in antitrust enforcement. While the laws impose relatively modest procedural obligations, they reflect a growing trend of decentralized regulatory scrutiny that may add complexity to deal execution. Fund managers, strategic acquirers, and other deal participants should plan ahead by evaluating both federal and state merger notification requirements early in the transaction lifecycle and consulting with counsel.

Andre Barlow

202-589-1838

The settlement aimed to restore competition by ensuring that key assets, such as HPE’s Instant On business and Juniper’s AI Ops for Mist source code, remained available to competitors. The divestiture of the Instant On business to a DOJ-approved buyer within 180 days and the licensing of Mist AI software were designed to maintain competitive dynamics in the wireless local area network (WLAN) market, preventing the merged entity from dominating over 70% of the market alongside Cisco Systems. Industry perspectives, including comments from solution providers, suggest that these measures were seen as minor concessions that preserved the deal’s benefits while fostering competition, particularly against Cisco, by enabling a stronger, AI-driven networking portfolio for HPE.

To be sure, the effectiveness of these measures in fully restoring competition depends on the execution of the divestitures and licensing, as smaller competitors may still face challenges matching the scale of the merged HPE-Juniper or Cisco. That said, the licensing Juniper’s Mist AI software source code to independent competitors is a notable concession in the DOJ’s settlement with HPE and Juniper. This move was designed to facilitate new entry and maintain competition in the wireless local area network (WLAN) market.

The Mist AI software is a key component of Juniper’s portfolio, powering its cloud-managed, AI-driven networking solutions that optimize wireless performance and user experience. By requiring HPE to license this source code to competitors, the DOJ aimed to lower barriers for new or smaller players to develop competitive WLAN solutions, potentially fostering innovation and preventing the merged HPE-Juniper entity (with over 70% market share alongside Cisco) from stifling competition. This licensing could theoretically enable entrants to build or enhance AI-driven networking products without the need to develop comparable technology from scratch—a significant hurdle given the complexity and cost of AI-driven network management systems.

The effectiveness hinges on how accessible and affordable the licensing terms are in the future so the DOJ’s oversight will be very important. New entrants will likely need more that just access to the source code, they will need the technical expertise, infrastructure, and market reach to capitalize on the code. The settlement also required HPE to divest its Instant On wireless business to a DOJ-approved buyer within 180 days. This divestiture ensures that a standalone competitor retains a foothold in the market, potentially amplifying the competitive impact of the Mist AI licensing by giving an existing player immediate market presence. Fortunately, many of the competitors in the WLAN enterprise grade are actually significant competitors already.

This is clearly a strategic compromise that preserves HPE’s ability to compete with Cisco and globally while addressing DOJ concerns in the domestic market. The licensing of Mist AI could indeed spur innovation by enabling competitors to offer AI-driven solutions, potentially leading to new entrants or strengthening existing ones like Extreme Networks, Arista, Fortinet, or Ruckus. In short, giving up the Mist AI source code is a significant concession in that it creates an opportunity for new entry by lowering a key technological barrier. Whether it truly restores competition depends on how competitors leverage this access and navigate the broader market challenges. It’s a step toward leveling the playing field, but not a guaranteed win for new entrants against the industry’s heavyweights.

Lessons Learned

The recent settlement in the HPE-Juniper merger case offers insights into the DOJ’s approach to antitrust enforcement. Although the allegations in the complaint lacked a clear resolution, the settlement reflects a pragmatic decision by the DOJ to accept an imperfect remedy for a case with weak grounds for a full challenge.  The DOJ hailed the settlement as a victory, describing it as a novel approach to addressing unique challenges in merger cases. Notably, the DOJ considered the procompetitive benefits of the merger, particularly in the context of global competition. The agreed-upon remedy includes HPE’s divestiture of its global Instant On campus and branch WLAN business and at least one perpetual, non-exclusive license to Juniper’s Mist source code. This remedy modestly reduces market share in the enterprise-grade WLAN solutions market, but allows for new entrants to expand their enterprise grade WLAN offerings.  In addition, the divestiture and licensing must be completed within 180 days, with the possibility of 60-day extensions if needed, indicating the DOJ’s flexibility in finalizing the agreement.  This is also a departure from recent practice.  

Assistant Attorney General Slater’s stance against accepting inadequate remedies may still hold when a challenge is strongly supported by evidence. However, in this case, she demonstrated willingness to negotiate a less-than-ideal remedy for a merger that likely did not warrant being blocked. This decision aligns with the investigating staff’s view that the deal should not have been challenged initially.  The decision to settle rather than litigate, despite a weak legal case due to Juniper’s modest 6.5% market share, reflects a strategic choice to preserve agency credibility while enabling the merger and also aligns with the Trump administration’s “America First” agenda.

The key takeaways are that the DOJ is open to settling weaker cases with tailored remedies; the DOJ will consider procompetitive benefits, such as global market competitiveness so that can influence outcomes in future deals; and the DOJ is willing to use flexible timelines and pragmatic remedies reflecting a balanced approach to antitrust enforcement.    

Andre Barlow

202-589-1838

Under the Biden administration, U.S. antitrust agencies, particularly the Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC), took a hardline stance against negotiated merger remedies. Instead of settling, they often challenged mergers outright or allowed deals to close without formal conditions, expressing doubts about the effectiveness of remedies like structural divestments.

The Trump administration, however, signals a return to a more business-friendly approach, favoring settlement agreements with divestiture remedies to resolve anticompetitive concerns without litigation. Recent weeks have seen the clearance of five major transactions, each with tailored remedies, highlighting this shift.

Recent Examples of Merger Remedies

1. HPE/Juniper: Rather than litigate, the DOJ entered into a settlement agreement with HPE that required it to divest its Instant On wireless networking business and license Juniper’s Mist AI software.
2. Synopsys/Ansys: The FTC required Synopsys and Ansys to divest assets to Keysight Technologies to address concerns in software tools markets critical for semiconductor design and light simulation devices. This “mix-and-match” remedy involves assets from both parties.
3. Keysight/Spirent: The DOJ mandated Keysight to divest Spirent’s high-speed ethernet testing, network security testing, and RF channel emulation businesses to Viavi, addressing competition concerns in specialized communications test equipment markets.
4. Safran/Collins: To resolve DOJ concerns, Safran must sell its North American actuation business to Woodward, preventing higher prices, reduced quality, and stifled innovation in actuation and flight control markets.
5. Alimentation Couche-Tard (ACT)/Giant Eagle: The FTC required ACT to divest 35 gas stations to Majors Management to mitigate higher fuel costs in certain U.S. states. ACT must also notify the FTC before acquiring “competitively significant” stations in affected areas for ten years.
6. Omnicom/IPG: Unlike the structural divestments above, this global advertising deal involved behavioral remedies. The FTC imposed provisions to prevent Omnicom from directing advertising away from media publishers based on political or ideological viewpoints, a rare but market-specific solution.

Common Themes in Recent Remedies

• Upfront Buyers: In most of the structural divestiture cases, the parties were required to produce an upfront buyer to ensure remedy effectiveness, a standard U.S. agency practice.
• Innovation Concerns: In Synopsys/Ansys, Keysight/Spirent, and Safran/Collins, agencies cited potential reductions in innovation alongside price increases, reflecting a growing focus on innovation as a competition parameter.
• Global Coordination: These cases involved cooperation with international authorities (e.g., EU, UK, Japan, South Korea), aligning remedies and timing. For instance, the UK’s Competition and Markets Authority approved remedies in Safran/Collins on the same day as the DOJ.

FTC Leadership on Remedies

FTC head Andrew Ferguson has championed negotiated settlements, arguing they preserve procompetitive merger benefits while addressing anticompetitive concerns. Settlements are cost-effective, leveraging agencies’ limited resources and avoiding complex litigation where parties might propose remedies in court (“litigating the fix”). However, Ferguson cautions against inadequate or unworkable settlements, particularly behavioral remedies, and emphasizes the need for rigorous standards. The FTC plans to release a detailed policy statement on merger remedies soon.

Lessons Learned

The Trump administration’s antitrust agencies are now open to negotiating settlement agreements that fully resolve anticompetitive concerns, a practice welcomed by businesses and enforcement agencies alike. Companies pursuing mergers should proactively propose robust remedies early, clearly articulating procompetitive benefits like innovation, growth, and investment to align with this more collaborative enforcement approach.

Andre Barlow

The decision followed a bench trial that began in September 2024 and lasted 15 days, with closing arguments in November 2024. It marks the second major antitrust loss for Google in less than a year, following a separate ruling on its search monopoly.

Remedy Trial Timeline

The remedies phase, which will determine how to address Google’s anticompetitive behavior, is scheduled to begin as a bench trial on September 22, 2025, in the same court before Judge Brinkema. Both parties proposed this date shortly after the liability ruling, and it was confirmed by the court in early May 2025. The trial is expected to focus on evidence and arguments for specific remedies, with a decision potentially following in the months after.

Proposed Remedies to Resolve the Judge’s Concerns

The remedies aim to dismantle Google’s integrated ad tech monopoly, restore competition, and prevent future anticompetitive practices as outlined in the ruling (e.g., tying, exclusive deals, auction manipulation, and data advantages). Proposals from the U.S. Department of Justice (DOJ) and plaintiff states are more aggressive, emphasizing structural changes, while Google’s counterproposals focus on behavioral adjustments. Key proposals include:

• DOJ and States’ Proposals (Structural and Behavioral Remedies):
  • Divestiture of Key Assets: Force Google to sell off significant portions of its ad tech business, such as Google Ad Manager (which includes the DFP ad server and AdX exchange). This would break up the “walled garden” that gives Google end-to-end control over ad transactions.
  • Data and Bidding Restrictions: Ban Google from using first-party data from its own products (e.g., YouTube, Search, or Android) to gain unfair advantages in ad bidding or pricing. This addresses concerns about Google’s ability to leverage its ecosystem for preferential treatment.
  • Auction and Pricing Reforms: Prohibit manipulative practices like “last look” advantages in auctions (where Google could adjust bids after seeing competitors’) and require fair, non-discriminatory auction rules to prevent rigging.
  • Interoperability and Non-Exclusivity: Mandate that Google’s tools be compatible with rivals’ products, end exclusive contracts with publishers and advertisers, and allow easier switching to competitors.
  • Oversight and Compliance: Implement monitoring by a court-appointed trustee for up to 10 years, with potential fines for violations.
• Google’s Counterproposals (Primarily Behavioral):
  • Avoid divestitures, arguing they exceed the scope of the ruling and could harm innovation and users. Instead, propose tweaks to auction mechanics (e.g., “rigging ad auctions a little less”) and limited changes to product tying without breaking up assets.
  • Focus on transparency enhancements, such as better data sharing with competitors or minor adjustments to fee structures, to mitigate monopoly effects without structural separation.

The DOJ argues that behavioral remedies alone have proven insufficient in past cases (e.g., Microsoft’s antitrust settlement), necessitating divestitures to fully resolve the integration that fueled Google’s monopoly. The court will weigh these during the September trial, with potential appeals likely regardless of the outcome.

Facing a tight deadline before Slater’s confirmation, the DOJ filed suit to block the deal arguing it would harm competition in the enterprise-grade wireless local area network (WLAN) market.  While the DOJ’s intent to protect customers is a worthy goal, its case rests on a flawed premise, resting on a narrow view of the market that ignores robust competition and the broader strategic imperatives at play. Far from stifling innovation or choice, this acquisition would strengthen a key American player to rival Cisco domestically and, critically, counter Huawei globally.  For those reasons, DOJ’s litigation stance should be reconsidered.

Flawed Antitrust Concerns

The DOJ’s claim that the merger would overly concentrate the enterprise-grade WLAN market misreads the competitive landscape. The complaint paints HPE and Juniper as the second- and third-largest players behind market leader, Cisco, alleging their combination would leave just two firms controlling over 70% of enterprise-grade WLAN solutions. This analysis oversimplifies the competitive dynamics of the industry.

First, the European Commission and the UK’s Competition and Markets Authority, which both cleared the merger in 2024 after determining it posed no realistic threat to competition, confirm that the transaction does not raise competition concerns. In addition, the Biden Administration could have sued to block the merger but chose not to do so.

Second, the product market definition alleged by the DOJ is much too narrow.  Even the UK’s CMA did not find any functional or technical differences between WLAN products sold to large or smaller enterprises.

Third, the WLAN market is not a cozy oligopoly but a battleground where multiple players are vying for share. Cisco is more than twice as large as a combined HPE-Juniper with over 50% share for the past ten years.  Indeed, Juniper’s share is in the single digits and the combined firm’s share is less than 25%.  Companies like Extreme Networks, Arista, Fortinet, CommScope, and Ubiquiti, which make up approximately 25-30% of the DOJ’s narrowly defined market, have the technological muscle to reposition themselves, scale, expand, and rapidly grow share. Extreme Networks, for instance, powers WLAN for major enterprises like Kroger and universities, delivering secure, high-performance networks that rival those of HPE and Juniper. These firms are well-capitalized with proven deployments and R&D pipelines poised to exploit any opportunity. If HPE-Juniper raises prices or slacks on innovation, these competitors are ready to provide real choice to large enterprises including hospitals, campuses, and retailers.

Fourth, the DOJ’s focus on market share also ignores how enterprise WLAN works in practice. Large customers routinely solicit bids from multiple vendors, pitting solutions against one another in competitive request for proposals. This process keeps pricing in check and forces innovation, regardless of who merges with whom.  Juniper’s Mist platform and HPE’s Aruba have indeed competed head-to-head, but so have they with Cisco, Extreme, and others.

Fifth, the DOJ’s complaint includes a litany of inflammatory quotes from HPE’s executives’ documents, but not one deal document was cited. Notwithstanding their provocative nature, these statements have little grounding in the reality of competition.  Documents only matter if they are reliably predictive and relevant. The selective quoting of internal documents may suggest head-to-head competition, but any suggestion that the documents demonstrate that the merger would harm competition contradicts reality.  In reality, customers of HPE and Juniper may choose between the two companies as well as an entire host of alternatives including Cisco, Extreme Networks, Fortinet, and Arista.  The idea that merging HPE and Juniper would suddenly let them dictate terms overlooks the technological strength of the competitors and the bidding process. If anything, combining HPE’s scale with Juniper’s AI-driven tools could drive sharper pricing and faster feature rollouts to fend off these hungry rivals.

Finally, the DOJ is challenging this acquisition in the same district court where it lost its challenge to Oracle’s acquisition of Peoplesoft in 2014 because evidence that Oracle and PeopleSoft competed aggressively against each other was not enough to prove anticompetitive effects and that they competed in a three firm market was too narrow.

National Security and Global Competitiveness

The DOJ’s case overlooks the significant national security stakes involved in this merger. Huawei, the Chinese tech giant banned in the United States over espionage concerns since 2019, continues to dominate global telecom infrastructure markets with state-backed pricing strategies. HPE CEO Antonio Neri has framed this acquisition as essential to creating a robust U.S.-based alternative to Huawei.  A stronger HPE-Juniper would create a number-two player with the muscle to challenge Cisco at home while taking the fight to Huawei in global markets. The deal would create a “full stack” U.S. alternative to Huawei, combining HPE’s servers, storage, and Aruba networking with Juniper’s AI-native routing and telco expertise.  Integrating AI, security, and networking is a procompetitive move that bolsters national security by offering a robust Western option for global telcos and enterprises in AI driven and 6G markets. Without this deal, the U.S. risks ceding ground to Huawei, especially in emerging markets where 6G and IoT are reshaping connectivity.  Moreover, HPE and Juniper power critical U.S. infrastructure by supporting the Department of Defense and Department of Energy making the combination a matter of “core tech” that strengthens America’s technological sovereignty.

Unlocking Innovation

HPE and Juniper bring complementary strengths that could unlock significant efficiencies post-merger. HPE’s expertise in cloud computing and hybrid IT solutions pairs seamlessly with Juniper’s AI-native networking tools. Together, they could deliver unified platforms that simplify IT management for enterprises while accelerating advancements in AI-driven infrastructure. These aren’t abstract savings; they’re the kind of edge U.S. firms need to outpace Huawei’s one-stop-shop model.

A Call for Reevaluation

Blocking this merger risks weakening a U.S.-based champion at a time when global tech leadership and national security are at stake.  Slater should use her fresh perspective to reevaluate this litigation with an eye toward getting the antitrust analysis right and balancing competition policy with broader strategic imperatives. Blocking HPE’s acquisition of Juniper Networks is counterproductive because it risks reinforcing Cisco’s dominance, undermining U.S. competitiveness against global rivals, and stifling innovation. Slater should reconsider the DOJ’s litigation decision to ensure that antitrust enforcement facilitates not hinders the ingenuity of American companies.  Importantly, the acquisition does not substantially lessen competition because Extreme Networks and others are ready to fill any void for those customers looking for another source of enterprise grade WLAN products.  In conclusion, the DOJ should let this deal proceed for the sake of innovation, competition, and national security.

Andre Barlow

202-589-1838

As part of CAPP’s Future of Work initiative, the discussion was moderated by Matthew Rooney, Managing Director of the Bush Institute-SMU Economic Growth Initiative, and featured Marcos Andrés Antil, CEO and Founder of XumaK; Mey Hung, Walmart Corporate Affairs Leader for Honduras and Guatemala; and Kathia Yacaman, Executive Vice President at Grupo Karim.

The discussion centered on ways Northern Triangle and Central American countries can promote investment and encourage companies and workers to get involved in the region. Transparency, licensing regulations, and workforce training were identified by the panelists as some of the more pressing issues and opportunities for growth for governments and industry leaders.

Marcos Andres explained that the issue is not a lack of talent in the region. He pointed out that, at least in his experience in Guatemala, there are many skilled people who are willing and able to learn. The fact that half of Guatemala is bilingual, while many others in the country are even trilingual, proves to Andres that the workforce is intelligent and capable, but in need of better training and direction for those wishing to enter the workforce.

Yacaman echoed this sentiment, spending much of her time discussing the failure of governments and organizations in the Northern Triangle countries to provide adequate, useful training. While Yacaman said there were often training programs in these countries, they were usually small and unfocused, and therefore often resulted in only wasted resources and unprepared workers. The need for focused, in-depth programs that teach skills that will be useful in the future is greater than ever, especially with movement towards a digital world, something COVID-19 proved as inevitable, according to Yacaman.

Mey Hung agreed that the move to a digital society and workforce is something Latin American countries do not want to get left behind on. She pointed out that digitalization means transparency, something the region struggles with and is currently lacking. Hung said more transparency means better understanding and increased trust, therefore, more competition and investment.

Though each panelist had a different background and involvement in Latin America, they all agreed that digitalization is a powerful opportunity for governments and businesses in the region. A shift to a digital world would be a shift towards increased transparency but would also need to be accompanied by investments in training and education so the talented, but undertrained population, could take advantage of the opportunities of the digital world.

Programs like the Bush Institute’s Future of Work Initiative should continue to investigate possibilities for economic growth in countries across the world. Additionally, by bringing persons that are familiar with and involved in the region to the table, such programs can effectively identify the most pressing issues and most effective solutions available in these countries. The willingness to work is there, but now Latin America must effectively ride the digitalization wave and ensure no talent is left behind.

By Rachel Sims

The parties negotiated a divestiture of approximately 300 stores with the FTC staff to remedy the antitrust concerns.  The staff advised the four sitting commissioners to accept the negotiated settlement agreement.  A settlement, however, requires a majority vote of the four sitting FTC Commissioners.  Two Democratic members of the Commission were not comfortable with the proposed divestiture remedy, creating a deadlock with the two Republican Commissioners that followed the staff’s recommendation.  The deadlock allowed 7-Eleven to close its acquisition without any remedy at all.   

The two Democratic Commissioners, Acting Chairwoman Rebecca Kelly Slaughter and Commissioner Rohit Chopra, together issued a statement stating there is “reason to believe that this transaction is illegal under Section 7 of the Clayton Act and Section 5 of the Federal Trade Commission Act, raising significant competitive concerns in hundreds of local retail gasoline and diesel fuel markets across the country.”  Expressing concern that the transaction presents a “merger-to-monopoly” or at least reduces the number of competitors from three to two in many local markets, the Democratic Commissioners warned the parties that the agency’s investigation would continue and that they were closing the harmful merger “at their own risk.” 

In a separate statement, Republican Commissioners Noah Joshua Phillips and Christine S. Wilson took issue with the lack of action by the FTC in this case: “Rather than resolve the issues and order divestitures (or sue to block the transaction), the Acting Chairwoman and Commissioner Chopra have issued a strongly worded statement” which does not bind the parties.  Commissioners Phillips and Wilson declared that “[t]here is no good reason for the Commission to be in this mess.”  According to the Republican Commissioners, the FTC had plenty of time to negotiate a resolution to resolve competitive concerns, and failure to do so has left consumers completely unprotected and created uncertainty for business.

 7-Eleven issued a statement defending its decision to close the transaction, explaining that the parties negotiated a settlement agreement with FTC staff at the end of April involving the divestiture of 293 stores that purportedly resolved all competitive concerns raised by the FTC.  According to 7-Eleven, the FTC staff, including leaders in the Bureau of Competition, recommended to the FTC Commissioners that they approve that settlement.  7-Eleven had also entered into a timing agreement with the FTC staff that was extended four times to provide additional time to negotiate a mutually acceptable divestiture package, with the final extension on April 9, 2021 allowing for the merger parties to close on May 14.

According to 7-Eleven’s statement, “[d]espite FTC staff’s recommendation that the Commission approve the negotiated settlement, on May 11, 2021—less than three days before close—Acting Chairwoman Slaughter and Commissioner Chopra indicated that they wanted more time to review the settlement agreement.  7‑Eleven took the request very seriously, but such a last-minute delay would have created enormous disruption to the lives of our new colleagues at Speedway and to the business.  Given that there was no legal basis for such a delay and given that 7‑Eleven was abiding by the negotiated settlement agreement, we closed today on schedule.”

Notably, 7-Eleven applauded the FTC staff “for their hard work and commitment in reviewing the Speedway transaction” and stated that it intends to abide by the negotiated settlement and complete the agreed-upon divestitures.

Lessons Learned:

This case serves as a reminder that when the FTC is operating with a 2 Republicans and 2 Democrats, the FTC cannot take action unless the FTC votes to do so.  If the FTC has a party-line split vote whereas they did here 2-2, no action will be taken by the Commission.  This allowed the parties to close the transaction without a formal consent decree.  Fortunately, 7 Eleven is abiding by the agreement that it entered with staff.

Merging parties with transactions that may raise competitive issues should take note that there is potential for continued stalemates at the FTC, at least in the near future. 

The complaint alleges that Amazon “fair pricing policy” requires third-party sellers who sell products through Amazon to agree to what is really a most-favored-nation (“MFN”) provision. According to the complaint, this fair pricing policy restrains third-party sellers, which wish to sell on Amazon’s platform, from selling their products on other websites, including their own websites, at prices lower, or on better terms, than offered through Amazon. This fair pricing policy replaced Amazon’s price parity provision, but the claim is that this new policy has the same effect as Amazon’s old policy.  It is considered a platform most-favored nation agreement and allows for Amazon to penalize third parties found in violation of these policies. Allegedly, the provisions have the effect of creating a price floor with Amazon’s prices being the lowest. Because these third-party sellers incorporate Amazon’s fees – which can be up to 40% of the product’s price – into their prices, they are forced to inflate their product prices on other platforms since they must account for the fees in their sale price. The claim of the Office of the Attorney General is that this policy suppresses competition and unnaturally inflates prices for consumers across all online retail platforms. The complaint asserts that these unreasonably high fees are built into prices market wide, due to the alleged price floor caused by the most-favored nation provisions.

According to the complaint, Amazon allegedly violates D.C. antitrust law in a variety of ways. First, Amazon is alleged to be engaged in unlawful horizontal agreements because Amazon horizontally competes with many third-party sellers (i) as online retailers, and (ii) in particular products. Second, Amazon is alleged to be engaged in unlawful vertical agreements because the most-favored-nation provisions eliminate competition in online retail. Third, Amazon, accounting for 50-70% of all online retail sales and benefiting from network effects, is alleged to monopolize and attempt to monopolize the online retail sales market.

D.C. Attorney General Karl Racine has stated that the lawsuit is an attempt to end Amazon’s illegal use of price agreements which destroy competition and harm the company’s two million third-party sellers. The complaint states that these pricing agreements “are facially anticompetitive and allow Amazon to illegally build and maintain monopoly power in the online retail market in violation of the District of Columbia’s Antitrust Act.”

In 2019, Amazon faced scrutiny from the U.S. Congress and regulatory agencies regarding a clause in their contracts with third party sellers that was known as a price parity provision. Though the company removed this provision, it was then replaced with the similar fair pricing policy that is under scrutiny today.

Amazon has responded to the lawsuit stating that “the D.C. Attorney General has it exactly backwards – sellers set their own prices for the products they offer in our store.” While the complaint seeks to enjoin Amazon from engaging in this allegedly anticompetitive behavior, Amazon has stated that such relief “would force Amazon to feature higher prices to customers, oddly going against core objectives of antitrust law.”

This case is noteworthy because there is not much litigation that has examined the anticompetitive effects of MFNs.  Without precedent indicating that price parity provisions or MFNs are anticompetitive, the DC AG, as the plaintiff, will have a difficult time showing how Amazon’s pricing policies result in anticompetitive effects.  Amazon will likely argue that the company’s pricing practices are pro-competitive or have no competitive effect.  MFN clauses are common in business. MFN clauses can be advantageous to a purchaser in that they eliminate the purchaser’s risk in negotiating a bad deal under unstable pricing conditions and are generally benign when the purchaser does not have market power.  But, Amazon’s MFN has been under scrutiny in the European Union so the DC AG is not on its own in scrutinizing the policy.  Indeed, when a monopolist or a firm with market power uses MFN clauses in its contracts, they can be illegal if they result in anticompetitive effects that harms the competitive process and results in increased prices overall.  For these reasons and more, MFN clauses alone are subject to the rule of reason—a lenient standard that requires a rigorous market analysis.  The difficulty in DC’s case is proving that Amazon has market power.  Market analysis or evidence needs to show that Amazon controls more than 50% of ecommerce.  Many third-party sellers are increasingly using other online platforms run by Etsy, Shopify, Facebook, Walmart Inc., eBay Inc., Target Corp., and others to reach new consumers in the wake of the pandemic.

Moreover, the lawsuit adds to increasing scrutiny over Amazon’s relationship with its third-party sellers, including a probe launched by the FTC in concert with the attorneys general around the country.  It is unclear why the District of Columbia’s lawsuit was filed before the other antitrust enforcers have completed their investigations other than politics.  In fact, D.C. Attorney General Racine is rumored to be in the running to be nominated to chair the Federal Trade Commission.  Even though this case currently involves only the D.C. AG, it still has important implications for the legal future of big tech companies and platforms. Facebook, Google, Apple, and Amazon have been under increased antitrust scrutiny in the United States for the past few years, indicating that federal and state antitrust enforcers will continue to scrutinize their conduct, actions and policies.

By Rachel Sims

For opening remarks, Rebecca Kelly Slaughter, the Acting Chair of the FTC, declared: “Aggressive enforcement using the FTC’s existing authority can and should be complemented by this committee’s work to sharpen antitrust laws and to impose broader market-wide restrictions that address pervasive anticompetitive conduct and conditions. I believe the FTC must push antitrust law forward through bold agency action.” Slaughter said, we must lay the groundwork for success for new theories and more aggressive enforcement.  Here, she touted the FTC’s recently announced working group to build a new approach to pharmaceutical mergers.  She suggested the FTC should consider bringing standalone Section 5 claims more frequently and called on more resources for the agency.

Slaughter conveyed her disappointment in the FTC’s decisions and actions on not suing Google back in 2013. “It’s incumbent on the FTC to bring hard cases in all areas, not just in tech, not just in platforms,” Slaughter stated. After her comments on harsher punishments for big companies that seem to weasel their ways out of antitrust laws, Slaughter called for higher tolerance for litigation risk, more specifically, declining a settlement that doesn’t entirely correct harm. She also communicated how we all must construct the basis for success in new models and more aggressive enforcement to be enacted.

The second witness, Judge Diane P. Wood stressed three crucial points in her argument. First, antitrust laws have always been concerned with intense economic power that congests flourishing competition and innovations. Second, exclusionary practices must be enforced. Third, it’s time to consider legislative changes in the remedies area of the statutes. Colorado Attorney General Phillip Weiser shared his thoughts on how courts have been hesitant in enforcing antitrust laws as well as enforcers showing an unwillingness to bring cases forward due to the Chicago school of antitrust, which only focuses on over-enforcement. This mindset is incorrect, according to Weiser, and he recommends having more enforcement cases and legislative action.

Commissioner Phillips underlined that today the antitrust agencies are engaged in vigorous enforcement and highlighted the number of enforcement actions in 2020, the highest number in decades. Today’s discussion concerns whether the law suffices.  Phillips stressed that antitrust laws protect competition.  They are not designed to address every problem large companies create.  “As you consider reform,” he told the subcommittee, “…I urge you to consider the impact on all business.”  And Phillips warned of unintended consequences.  He said government intervention is sometimes necessary but it can also get in the way.  “We can and do stop the bad ones [mergers], but over-regulating will also stop the good ones.”

After hearing from the witnesses and their remarks, the hearing went into a question and answer session for both sides of the hearing. The question and answer began with Representative David Cicilline speaking about a recent Politico report on the FTC’s choice to desert the Google case in 2013. He asked if we shouldn’t allow this to happen again, which Acting Chairwoman Slaughter retaliated that she asks for a complaint to be filed. Slaughter’s focus is further on the dangers of under-enforcement and inaction. With Slaughter as acting Chairwoman, the concern is that she will make some questionable enforcement decisions that push the envelope.

Representative David Cicilline fired at Commissioner Noah Phillips’s vote against FTC’s Facebook complaint. “My quibble with this case begins with the fact that these are transactions (Instagram and WhatsApp) that were brought to the attention of the FTC before I was there. No argument of fraud or anything like that. And for years the company was allowed to make decisions. So, a big part of this comes back to the integrity of the process,” Phillips retaliated.  He suggested that for the government to come back in, years later – and the longer you wait, the more investments the companies make – that presents a real issue.  “I can’t undo the fact that the agencies did what it did,” he said.  Phillips went further saying “I also think on the merits there are some questions to do with market definition and effects under Section 2 but I do think this broader framing is really important.  I wasn’t there when this happened – but it did happen.”

Neguse (D-CO) asked Commissioner Phillips whether he believes that the FTC’s approach to pharmaceutical mergers is working. Phillips was measured in his reply: “Some have suggested that it isn’t.  What I am interested in hearing is, what are the harms that folks think we’re missing?  Because I think if they exist, we should figure out what they are, figure out how to bring a case on them, and bring those cases.  That’s why I support the Chairwoman’s effort to convene a group of enforcers to think about what those additional harms may be.”  Neguse was less than thrilled with this answer.  He expressed his own view that the FTC’s approach to pharma deals is not working, which is why he shares Phillips’ enthusiasm about the working group convened recently by the FTC.  Asked to expound on that matter, Slaughter said she intends to look at innovation broadly and not just at pipeline products, for example.  Another area of concern is conduct: when two large companies that engage in anticompetitive conduct merge, what happens?  Slaughter is excited about the opportunity to partner with sister enforcers.

The key takeaways from this hearing are:

Acting Chairwoman is all about more aggressive antitrust enforcement. She spoke about her desire for the FTC to “go all in on litigation, even risky and costly litigation.”  She said that more cases should be brought under Section 5 of the FTC Act.  Moreover, Slaughter also believes that this aggressive enforcement can and should be complemented by Congress’s work to “sharpen antitrust laws and to impose broader market-wide restrictions that address pervasive anticompetitive conduct and conditions.”

Commissioner Phillips, meanwhile, is much more measured about his views on current enforcement. He urged the use of a scalpel in reforming the antitrust laws and warned against unintended consequences.  Phillips also cautioned that antitrust is not the appropriate tool to cure all ills such as concerns about content moderation, for example.

Given bipartisan concerns about gigantic tech firms and Democratic control of both chambers of Congress, a middle path may prove ultimately unnecessary if broader reform gets the requisite support.  However, the law ultimately shakes out, the next four years should see a renewed emphasis in challenging mergers.

By Lizzy Bensend, Spring Intern at Doyle, Barlow & Mazard PLLC.

The discussion began with revisiting the tragic siege of the United States capitol that took place on January 6, 2021. Before the siege, on many different platforms (Twitter, Facebook, etc.) President Donald Trump continued to post disputes about the presidential election, specifically mentioning voter fraud. With there being no evidence to verify these disputes, Trump’s campaign for president for a second term was over. Yet it took a violent storming of our nation’s capital to make the world realize that the words on social media and the internet do, in fact, have an effect and insight riots and violence. Any different social media platforms suspended or banned Donald Trump’s account from their sites including Twitter, Facebook, and Instagram. Thus began the great deplatforming.

Why this deplatforming is legal for big tech companies like Google and Apple is because these companies are not in affiliation with the government. This means that the First Amendment is not valid if not stated in their terms of service. If the said company feels that their terms of services have been broken by an individual or feels that said individual is a threat to others, companies have the right to deplatform them. When first signing up on the platforms, every user must agree to the companies terms of services, many just seem to not read them beforehand.

Using Twitter as an example, after being questioned about if it was legal to permanently suspend Donald Trump’s account, Twitter explains their terms of services and the reasoning behind these actions. After analyzing the tweets that Donald Trump was posting and how others were receiving them, they came to the conclusion that they would permanently suspend his account due to the risk of further violence that could be invoked.

With the first Amendment, it becomes very difficult to regulate the dissemination of information in the United States, especially since the government has not created regulations for tech. The only privacy regulator in the United States is the Federal Trade Commission, yet it does not have any real privacy authority. It focuses mainly on deception and unfair business practices.

Section 230 was created to allow internet platforms to grow and to protect platforms from lawsuits if a user posts something illegal with exceptions for copyright violations, etc. This section has also allowed for disinformation campaigns to be spread around the internet and push society apart. With the increased spread of disinformation, creating a privacy statute, revisions of antitrust laws, and reconsidering section 230 need to be on the table to help our society move forward in a positive light.

The question of what the future of technology and democracy will be like since the great deplatforming is still a mystery. Since the capital siege as well as President Joe Biden taking office, Congress has brought forward the idea of reevaluating section 230 to help avoid the further spread of disinformation.

Link to Facebook Live: https://www.facebook.com/georgetownlaw/videos/117256850273091

Lizzy Bensend

Doyle Barlow & Mazard PLLC

Apple’s 30% commission has attracted criticism from app developers claiming that the commission is unfair and a product of anticompetitive practices.  Developers must create apps for a particular operating system (“OS”), and in the case of iPhones and iPads, that includes the iPhone OS (“iOS”).  Apps developed for the iOS must be specifically programmed and, as such, cannot be used for Android OS, Windows OS, or even Mac OS.  Once the app is developed for the iOS, the app is solely distributed through Apple’s App Store, where apps compete against each other for consumer selection.

Epic Games described in their complaint that there are two markets in which Apple has engaged in anticompetitive conduct.  The first is in the app-distribution market, where Apple’s App Store is the only method by which developers can sell their products to consumers.  Second, Apple has engaged in anticompetitive conduct in the in-app payment processing market by not allowing other methods of payment processing.

Companies including Facebook, Spotify, and Microsoft have complained about Apple’s policy of prohibiting alternative methods of app distribution.  Microsoft, for example, announced a cloud-based gaming service powered by its popular Xbox Game Pass service which would allow consumers to play Xbox games across multiple devices and platforms.  Microsoft, however, will not provide this offering for iOS users because Apple maintains that Microsoft’s offering is, in effect, a rival “store” in which consumers can download games that is separate from Apple’s App Store.  Facebook, too, had to withdraw their plans for releasing their Gaming App on iOS because it was an app that allowed consumers to download games from Facebook rather than from the Apple’s App Store.

In the in-app payment processing market which Epic Games alleges exists, Apple controls the means by which consumers pay for certain in-app purchases so that Apple can receive its 30 % commission.  Epic Games is not the only company to challenge this conduct.  Spotify also sought relief from Apple as they claimed that Apple’s 30 % commission caused Spotify to increase its monthly subscription price on the App store from $10 to $13, causing them to abandon in-app payments altogether and requiring subscribers to pay on Spotify’s website.

The lawsuit seeking injunctive relief, in particular, claims that Apple’s practices in these two markets are anticompetitive; however, a court will have to determine whether to accept Epic Games’ market definitions.  The complaint defines the markets narrowly, arguing the relevant market for examination is iOS in-app payment processing and iOS app distribution.  Epic Games offers many justifications for why these markets should be the relevant markets for antitrust examination.  Apple has previously fended off such lawsuits by arguing the relevant market for analysis is the global smartphone market.  Indeed, devices with iOS have significantly less global market share than Android and Windows devices.  If iOS users are unhappy or unsatisfied with Apple’s App Store offering, Apple reasons, consumers can simply switch to a product with a different OS.

Epic responds to the Apple’s point by arguing that Apple’s ecosystem creates network effects for its iOS, thereby reducing the incentive for developers and consumers to simply opt-out of iOS products or to switch to a different OS.  Once a consumer purchases an Apple product with iOS, it is effectively “locked in” to Apple’s products.  Apple has cultivated an ecosystem consisting of products, apps, ancillary hardware, and more, which allow Apple consumers to coordinate and harmonize their Apple experience across multiple devices.  Given these investments into Apple’s ecosystems, consumers are unlikely to simply switch OS because an app is unavailable on the Apple’s App Store, and developers are unlikely to forfeit billions of iOS users.

There is no question that Epic Games is capitalizing on a moment where Apple is under intense scrutiny regarding alleged anticompetitive conduct.  The EU announced that it was launching an antitrust investigation into Apple’s App store after a complaint initiated by Spotify; the Supreme Court last year ruled that plaintiffs may bring an antitrust lawsuit against Apple for its App Store practices; and, the Congressional Hearing on Big Tech last month demonstrated reservations about Apple’s App Store conduct.

[1] After being removed from Apple’s App Store, Epic Games was then removed from the Google Play Store, which serves devices operating Google’s Android OS.  Epic Games is also seeking an injunction against Google; however, Fortnite can still be downloaded on Android devices from sources that are outside the Google Play Store.

In 1938, the Department of Justice brought an antitrust action against several companies involved in the production and distribution of motion pictures—including Paramount, after which the decrees are named—alleging that their conduct of led to monopoly power in the distribution market for first-run motion pictures and conspiracies to fix licensing practices, including admission prices, run categories, and “clearances” for substantially all theaters located in the United States.

The consent decrees aimed at preventing film producers and distributors from using their positions to engage in anticompetitive conduct such as granting exclusive licenses based on geography or by tying multiple films into one theatrical license.  The DOJ announced their decision terminate the ParamountDecrees in November 2019.

Despite the fact that the DOJ prevailed, it was not without a fight.  The Independent Cinema Alliance (“ICA”) and the National Association of Theater Owners (“NATO”) opposed the DOJ’s efforts to eliminate the Paramount Decrees.   Among the issues they had with eliminating the consent decree, they argued why restrictions on “block booking” and “circuit dealing” should not be lifted.

Block booking refers to the practice of tying films into one theatrical license, ensuring that a distributor gets multiple movies of its own shown at a theater.  This mattered more when cinemas had only one-screen, and the practice could effectively block other distributors from having the opportunity to distribute their movies to a particular cinema.

Circuit dealing refers to a distributor’s practice of licensing films to movie theaters under common ownership all at once, rather than licensing on a theater-by-theater basis.

According to the government, the industry has undergone substantial transformation in the intervening 70 years to warrant termination of the Paramount Decrees.   Among the changes:

• Today’s films are mostly released in single theater runs; second and third run theaters do not have any appreciable presence in today’s market;
• Television broadcasts, streaming services, and DVDs have all made film distributors less reliant on theater distribution;
• Some of the largest players in the distribution space are not parties to the original consent decrees;
• Changes in antitrust law will protect the type of anticompetitive harm the DOJ initially sought to avoid; for example, the HSR Act requires parties in significant mergers to notify and permit the federal government to investigate any proposed merger.

Based on comments received from the public, the DOJ plans to add a sunset period of two years to the Paramount decrees’ block booking and circuit dealing provisions so that they may stay in place for a short period while the rest of the consent decrees are eliminated.