|
Apple-Siri-Google-Antitrust-300x198

The Gate to the Kingdom May Be Closing for Good: Apple Puts Google Inside Siri

Author: Luis Blanquez

On January 12, 2026, Apple and Google announced a multi-year deal—reported at roughly $1 billion a year—under which a custom Google Gemini model will run as the backend “brain” of the rebuilt Siri and the next generation of Apple Intelligence. Apple plans to unveil the new assistant at WWDC on June 8, 2026, and ship it with iOS 27 in September. Apple’s own on-device Foundation Models will handle simpler, privacy-sensitive tasks. Heavier queries will route to Gemini on Apple’s private cloud. Siri’s cognitive core will no longer be Apple’s. It will be Google’s.

Meanwhile, ChatGPT—the model Apple spent 18 months positioning as the future of iPhone AI, and the one still at the center of the xAI antitrust lawsuit pending in the Northern District of Texas—continues to sit where it has always sat: in a separate, opt-in, off-by-default layer that users have to turn on themselves. In iOS 27, Apple will expand that layer into an “Extensions” framework that lets users pick from Claude, Grok, Copilot, Perplexity, and a user-selectable Gemini chatbot app alongside ChatGPT.

On the surface, the Gemini deal looks like Apple conceding ground—admitting it cannot build a frontier AI model of its own and paying Google to fill the gap. It is not. Apple does not fear a better chatbot. It fears losing the user to one. By routing Siri’s cognition through a supplier Apple controls contractually, it keeps the interface, the invocation, the defaults, the billing, and the brand—everything that makes an operating system a platform—while outsourcing the only layer it never wanted to own: the AI model. It is classic Apple, but this time with Google as an ally instead of a threat.

Where The xAI Case Stands

Elon Musk’s X Corp. and xAI sued Apple and OpenAI on August 25, 2025, in the Northern District of Texas.

The theory of harm has two layers. First, ChatGPT’s integration into iOS, iPadOS, and macOS—announced in June 2024—delivers billions of iPhone-originated prompts to a single model. Second, the complaint alleges that Apple deprioritized rival chatbots in App Store rankings, making it harder for Grok and others to reach users even outside the system layer.

In late September 2025, Apple and OpenAI moved to dismiss. Apple argued the deal is “expressly not exclusive.” OpenAI called the suit part of a “lawfare” campaign. Judge Mark T. Pittman denied both motions on November 13, 2025, in a one-page order signaling the case is “more well-suited for adjudication through a motion(s) for summary judgment.” Discovery opened on October 10, 2025, and closes on May 22, 2026.

Two rulings tell us the real story.

The source-code ruling: Courts don’t want to become engineers, they just want evidence of platform foreclosure

On January 22, 2026, Magistrate Judge Hal R. Ray Jr. denied X’s motion to compel OpenAI to produce ChatGPT’s source code. X argued it needed the code to rebut any defense of lack of feasibility, to establish whether Apple could integrate Grok into the Apple iOS, and whether it would be feasible to integrate multiple AI products from various providers on the iPhone. The court disagreed on both relevance and proportionality.

On relevance, the order is blunt: “At this stage, it is unclear how the source code is relevant to whether Apple unlawfully excluded Grok from its products and conspired with the other defendants to create a monopoly.” On proportionality, the court noted that OpenAI had already produced API documentation and offered to stipulate that neither side would rely on proprietary source code. X refused the compromise. The court refused the production.

For a platform-exclusion case, that ruling is not a setback. It is a roadmap. Courts do not want plaintiffs dissecting competitor IP to infer what could have happened. They want direct evidence of platform misconduct—integration terms, routing logic, default settings, App Store treatment. That is where antitrust liability lives in a case like this. The court said so in plain terms, and future plaintiffs should take the hint.

The April 2026 motion to compel: Valuation and training data

X filed a second motion to compel on April 10, 2026, this one aimed squarely at OpenAI’s document production. The motion accuses OpenAI of having “persistently evaded its discovery obligations,” noting that OpenAI had produced 7,475 documents compared with X’s 32,116. The requested materials include valuation studies, financial projections through 2030, ChatGPT usage by country, and documents about OpenAI’s use of X data to train its models.

The valuation request is the one to watch. X tells the court that OpenAI’s valuation grew by more than $500 billion in the past year—from $300 billion at the end of March 2025. X argues the jump “does not make sense unless OpenAI and its investors understand that ChatGPT’s exclusive deal with Apple is cementing OpenAI’s dominance.” That is a causation theory built on investor behavior, not technology.

The training-data request matters for a different reason. OpenAI has defended the case in part by arguing that Grok’s foreclosure from iPhone-originated prompts is insubstantial because xAI has asymmetrical access to X data. X’s response is direct: if OpenAI also trains on X data, the asymmetry disappears. That question—who gets to learn from where—sits at the center of every theory of harm in generative AI.

Both motions, taken together, ask the court to analyze platform foreclosure through evidence: deal terms, integration architecture, valuation impact, data flows. None of it is specific to OpenAI nor depends on getting inside OpenAI’s code.

That same framework applies to Gemini.

Gemini Isn’t Apple’s Competitor. It’s Apple’s Supplier.

Apple’s decision to build Siri on Gemini at the backend, while offering third-party chatbots through Extensions on top, reshapes the competitive picture more than any filing in Texas has.

Apple did not retreat from AI. It relocated AI. Every layer a platform needs—distribution, defaults, billing, invocation, user interface, identity—remains Apple’s. When a user says, “Hey Siri” and Gemini answers, Apple delivers the answer. The supplier is invisible. Apple owns the user relationship.

That is the Google Search playbook applied one floor up in the stack. The existing Apple–Google deal to make Google the default search engine in Safari has existed for over a decade, with payments roughly reaching $18–$20 billion a year in the early 2020s. Google delivered the search results. Apple kept the browser, the UI, the defaults, and the customer. Nobody ever thought of Safari as “the Google browser.” That deal survived the U.S. v. Google antitrust trial not because it was invisible, but because it proved how much Apple gained by making a dominant rival pay for access instead of competing on equal terms.

The Gemini arrangement reuses the same design. At the foundational layer, Gemini is Siri’s cognitive backend—contractual, invisible, and not subject to user choice. At the visible layer, the iOS 27 Extensions framework lets users swap among ChatGPT, Claude, Grok, Perplexity, and a Gemini chatbot app for certain requests. Apple will point to that second layer as evidence of openness. But the first layer is where platform control actually lives. Whatever model a user picks through Extensions runs on top of an infrastructure Apple has already built around Gemini. Apple does not compete with Gemini. Apple neutralizes it by absorbing it. History doesn’t repeat itself, but it often rhymes.

Forget the App Store. This is Microsoft All Over Again

The App Store line of cases is a distraction here. The real analogue is the Microsoft browser and search monopolization litigation, both in the United States and the EU.

Continue reading →

|

Acquisition-Monopoly-Firetruck-300x170

Author: Aaron Gott

Seven U.S. cities have filed antitrust suits in five weeks against two manufacturers of “fire apparatus”—and the lawsuits are consolidating into a federal multidistrict litigation in the Eastern District of Wisconsin.

The case is about fire trucks. If you have ever been the parent of a five-year-old, you probably have heard about just how awesome fire trucks can be. But you probably don’t make fire trucks or use them in your business.

You should still take note of this litigation. Especially if you’re in private equity, at an acquisition-driven company, or serve markets involving specialized products or institutions like municipalities.

The defendants—REV Group and Oshkosh Corporation’s Pierce Manufacturing subsidiary, along with several entities connected to private equity investor American Industrial Partners—are accused of violating Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act. The theory is straightforward: through a series of acquisitions, two players came to dominate the fire apparatus market, and the alleged result is what antitrust lawyers call an “acquisition monopoly.”

This is not a new legal theory, but it is a legal theory that, just a few years ago, was unlikely to turn into a major MDL. A plaintiff’s burden on a monopolization claim under Section 2 is historically much more difficult to meet than a price-fixing claim under Section 1 because the latter is per se illegal, requiring no proof of anticompetitive effect, and face fewer doctrinal hurdles. So the antitrust class plaintiffs’ bar rarely brought them.

That’s changing, and acquisition-based monopolization claims could be a driving factor. The fire apparatus MDL is an example: just look at the pace at which top plaintiffs’ firms are filing cases, the involvement of municipalities as plaintiffs, and the rapid MDL consolidation. This could be a new era of sprawling antitrust blockbusters not centered on allegations of a price-fixing cartel.

Here is what you need to understand about acquisition monopolies.

What “Acquisition Monopoly” Actually Means

Section 2 of the Sherman Act prohibits monopolization—defined as (1) the possession of monopoly power in a relevant market, and (2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of superior product, business acumen, or historical accident.

The word “willful” is where acquisitions get complicated. Courts have long recognized that a company can violate Section 2 not by outcompeting rivals, but by buying them. Where each acquisition is a deliberate step in a strategy to eliminate competition and entrench market dominance, the cumulative pattern can satisfy Section 2’s willfulness requirement even if any individual deal was commercially rational on its face.

The Clayton Act adds another layer. Section 7 prohibits any acquisition—of stock or assets—where the effect “may be substantially to lessen competition, or to tend to create a monopoly” in any line of commerce or any section of the country. Note the word “may.” Section 7 is forward-looking: it catches transactions at the point where competition might be substantially harmed, not only after the damage is done. When a series of acquisitions is alleged, plaintiffs can argue both that individual deals violated Section 7 as they occurred and that the pattern of acquisitions collectively violates Section 2.

That is the double-barrel structure: Clayton Act Section 7 targets the deals as they happened; Sherman Act Section 2 targets the market power that resulted. Both claims are in the fire apparatus complaints.

The Specialized Market Problem

Antitrust liability under Section 2 depends critically on how the relevant market is defined. Market concentration and power can more easily be established where product specifications are highly customized, procurement cycles are long, and the number of qualified suppliers is small by nature.

Fire apparatus is that kind of market. Municipal fire departments operate under precise technical specifications—apparatus must meet NFPA standards, comply with state fire codes, and satisfy local procurement requirements. Fire trucks are not commodity equipment. The design, engineering, and production timelines make this a market with high barriers to entry, long customer relationships, and limited competitive alternatives.

Plaintiffs in specialized-equipment cases have an easier time with market definition because the product’s own characteristics draw the boundary. When you make the only commercially viable product for a specific application—or one of two—that fact does much of the plaintiffs’ work and makes it harder for defendants to argue a broader market such that monopoly power disappears.

How Courts Evaluate Roll-Up Claims

Plaintiffs’ antitrust lawyers have learned how to structure acquisition-monopoly cases, and the template is worth understanding.

The theory typically runs like this: defendant or its PE sponsor conducted a buy-and-build strategy, acquiring companies A, B, C, and D over a period of years; each acquisition eliminated a meaningful competitor; post-acquisition, defendant raised prices, reduced product quality, or restricted output; and the cities or businesses that purchased the product paid more than they would have in a competitive market.

Courts do not require plaintiffs to prove that every individual acquisition was anticompetitive. The question is whether the acquisitions, viewed as a course of conduct, reflect a willful strategy to acquire monopoly power. Internal communications—board materials, deal memos, strategic plans—that discuss market consolidation, competitor elimination, or pricing power post-acquisition are among the most damaging documents defendants face in discovery.

Private equity creates a particular documentation problem here. PE sponsors routinely model acquisitions in terms of EBITDA multiples, synergies, and market positioning. Investor presentations may explicitly reference competitor acquisition as a strategy for pricing power. That framing, which is entirely normal in PE deal documents, can look incriminating in an antitrust complaint. The plaintiffs in fire apparatus cases almost certainly obtained public filings, investor presentations, and press releases in which the defendants’ market consolidation strategy was described in terms that plaintiffs’ counsel will characterize as an admission.

Private Plaintiffs, Treble Damages, and the Municipal Angle

What makes the fire apparatus MDL structurally significant is the identity of the plaintiffs: cities. Municipal governments purchase specialized equipment through formal procurement processes, maintain records of every competitive bid, and have institutional incentives to pursue antitrust damages aggressively. Unlike a private commercial buyer who might want to preserve a supplier relationship, a city has no such constraint. Seven cities have filed antitrust lawsuits in five weeks. Others almost certainly will.

Continue reading →

|

Microsoft-Antitrust-Picture-300x232

Authors: Pat Pascarella & Luke Hasskamp

Recent proceedings involving Apple Inc.—including the U.S. Department of Justice case and Epic Games v. Apple—together with developments in AI markets, suggest an evolving framework for platform-focused antitrust analysis. This article considers how those threads may fit together. 

I. The DOJ Has Done Substantial Groundwork

Begin with market power. In U.S. v. Apple, the district court accepted as plausible a U.S. smartphone market in which Apple holds roughly 65%—now closer to 70%—reinforced by barriers to entry, network effects, and switching costs.

The DOJ also presents an alleged pattern of exclusionary conduct: the repeated neutralization of technologies that reduce platform dependence, including middleware, super apps, cloud streaming, smartwatches, messaging, and digital wallets. According to the complaint, each time a product threatened to make device choice less consequential, Apple constrained or neutralized it. If this allegation is supportable, such a pattern could address concerns about improperly “punishing success.”

II. The Markets Apple Controls at 99 Percent

If a higher market share is needed, the more compelling market is not some smartphone submarket. Rather, it will be markets Apple controls at 99 percent: the iOS functionalities and apps themselves. While not every function is a separate product, some may well  be—particularly those Apple allegedly targets.

Epic v. Apple is instructive on this point, and not fatal. The court did not hold that iOS-tethered markets are inherently non-cognizable—only that Epic failed to establish that consumers lacked awareness of iOS restrictions and could not factor them into purchasing decisions. But those gaps seem addressable.

The full scope of any restraints—and their costs—is obscured in a dense web of contractual and technical restrictions. No reasonable consumer could anticipate the extent to which app review, API access, and distribution control could be wielded against rivals. Nor should antitrust liability turn on whether consumers anticipated unlawful conduct.

Even if consumers had advance knowledge of such restraints, a single-brand market is not foreclosed. Apple’s own counsel acknowledged in Epic that consumers entering the iOS ecosystem cannot predict downstream costs related to app distribution, in-app payments, or aftermarkets. If the costs of any restraints are unknowable at the time of purchase, foremarket competition cannot discipline aftermarket conduct. The remaining elements of a single-brand iOS functionality or app market also appear to be present, including allegations of intentional degradation of interoperability to maintain switching costs—without corresponding loss of share or margin.

III. CoStar, Exclusive Dealing, and the End User License Agreement

Some claims may not require pleading a single-brand market. For example, under the Ninth Circuit’s decision in CoStar v. CREXi, “substantial foreclosure” is sufficient to plead an exclusive dealing agreement.

The agreement? The EULA itself. While a web of contractual and technical restrictions might enable foreclosure, the enforceable agreement between Apple and the user is embodied in the EULA. In that sense, Apple may have supplied potential plaintiffs with the central instrument of its own potential liability.

IV. The EULA as a Negative Tie

The EULA may also provide a foundation for tying claims. Courts often resist tying theories in platform cases, frequently reasoning that coercion must be directed at consumers rather than suppliers. That argument, though contestable, is predictable.

A potential response may be that it is the EULA that effectively conditions use of the platform on the consumer’s agreement not to obtain competing products, services, or apps outside Apple’s approval.

V. Attempted Monopolization and Dangerous Probability of Success

Tying allegations also expand the analytical framework, though courts ultimately may analyze them as attempted monopolization. On the “dangerous probability of success,” a defendant such as Apple likely would invoke concerns about outdated leveraging theories. But this would not be a classic leveraging case.

Any company that demonstrates both the ability and the willingness to neutralize technologies or rivals that threaten its market position may struggle to characterize that conduct as competing on the merits. Such a pattern should reduce concerns about punishing a company simply for being successful. Where a company has demonstrated a pattern of exclusion and retains the ability to repeat it, the “dangerous probability” standard should be satisfied.

VI. Inextricably Intertwined—and Antitrust Standing

A direct monopolization claim targeting the U.S. smartphone market faces a threshold question: standing. Developers and rivals operating at the functionality level are neither customers nor competitors in the smartphone market.

Continue reading →

|

Hockey-and-Antitrust-300x200

Author: Aaron Gott

The 2026 Stanley Cup Playoffs are underway. For an antitrust lawyer and hockey fan, it is a fitting moment to take stock of professional hockey’s rich antitrust history.

Professional sports leagues create unusual market dynamics. Their products are produced jointly by competitors—teams that need each other to put on games, sell tickets, and negotiate broadcast deals—but those same competitors must hold themselves apart enough to compete for talent, fans, and championships. That tension between cooperation and competition is a recipe for antitrust scrutiny, and hockey has produced some instructive case law in the field. The lessons are not just for sports lawyers; the same dynamics increasingly play out in technology platforms, healthcare networks, and other ecosystems where rivals must coordinate to deliver a product.

Below is a tour of professional hockey’s antitrust story, from the reserve clause to the modern lockout, with stops along the way at relocation fights, the single-entity defense, and the league’s nine-figure expansion fees.

Player Mobility and the Reserve Clause

For most of the twentieth century, professional hockey players could not freely move between teams. The reserve clause, written into nearly every standard player contract, gave the team perpetual rights to renew the contract on its own terms. The practical effect was that NHL teams collectively suppressed labor competition: a player drafted by Toronto stayed in Toronto unless Toronto chose to trade him, and the league’s structure ensured no other employer could compete for his services.

That arrangement looked exactly like what it was—an agreement among competitors to control the labor market. When the World Hockey Association launched in 1972 and began signing NHL players, federal courts examined the reserve clause and found Sherman Act problems. The leading decision is Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., in which the Eastern District of Pennsylvania issued a preliminary injunction against the NHL’s enforcement of the reserve clause and held that the league’s restrictive practices likely violated the antitrust laws.

Labor markets are markets, and agreements among horizontal competitors to suppress wages or restrict labor mobility receive scrutiny under the Sherman Act. The Justice Department and the FTC have in recent years returned to that principle in the form of no-poach and wage-fixing prosecutions across industries, from fast food to nursing to engineering. Hockey just got there first.

Rival Leagues and Group Boycotts: The NHL v. WHA

The reserve clause was only one piece of the NHL’s response to the WHA. The league also coordinated with arena operators to restrict the WHA’s access to facilities, leaned on broadcasters and equipment suppliers, and otherwise marshaled the resources of incumbents against an entrant.

That is classic group boycott territory. When dominant firms join forces to deny a rival the inputs it needs to compete—facilities, supplies, distribution—the conduct sits at the heart of Section 1 concern. The legal pressure on the NHL, combined with the WHA’s financial difficulties, ultimately produced a partial merger: four WHA teams (the Edmonton Oilers, Hartford Whalers, Quebec Nordiques, and Winnipeg Jets) joined the NHL in 1979, and the rival league dissolved.

The pattern repeats in technology, healthcare, finance, and transportation. Dominant platforms do not just compete with entrants; they shape the rules of competition, and they often do so collectively with other incumbents who depend on those rules. Hockey just happens to have litigated it earlier (and on skates!).

Drafts, Salary Caps, and the Non-Statutory Labor Exemption

Sports drafts and salary caps look like textbook Sherman Act problems. A draft is an agreement among competitors not to compete for entry-level talent. A salary cap is an agreement among competitors to fix the price of labor. In any other industry, both would be candidates for per se antitrust condemnation.

In professional sports, they usually survive because of the non-statutory labor exemption, a judicially crafted doctrine that immunizes certain restraints adopted through collective bargaining. The Court’s decision in Brown v. Pro Football, Inc. set out the contours: a restraint is exempt if it concerns a mandatory subject of bargaining, primarily affects the parties to the collective bargaining relationship, and is reached through bona fide arm’s-length bargaining.

Hockey has worn the exemption well. Drafts, entry-level contract restrictions, restricted free agency, and the salary cap all flow from collectively bargained agreements between the NHL and the National Hockey League Players’ Association. They have not been seriously vulnerable to antitrust challenge so long as the bargaining relationship holds.

The takeaway is not that drafts and salary caps are competitively benign. It is that how a restraint is adopted can matter as much as what the restraint does. That distinction has implications well beyond sports—particularly in industries where standard-setting bodies, joint ventures, and trade associations make rules that look a great deal like restraints on competition.

Territories, Relocation, and Market Allocation

NHL teams do not move freely. League rules grant existing teams territorial rights and condition relocation and expansion on supermajority votes of the other owners. The result is a system in which incumbents collectively decide who can enter their markets and on what terms.

Geographic market allocation among horizontal competitors is normally per se illegal under Section 1. Yet the NHL has largely avoided antitrust liability in this area. Part of the explanation is doctrinal: courts have moved away from the per se rule for sports league rules, applying the rule of reason instead in light of the joint-venture features of professional sports. Part of it is pragmatic. The NHL has historically resolved territorial disputes through indemnity payments rather than through litigation. When the Disney-owned Mighty Ducks of Anaheim entered the league in 1993, Disney was required to make a substantial payment to the Los Angeles Kings, whose territorial rights covered the Anaheim market.

The NFL has not been as fortunate. In Los Angeles Memorial Coliseum Commission v. National Football League, the Ninth Circuit affirmed a treble-damages verdict against the NFL for blocking the Oakland Raiders’ relocation to Los Angeles. Applying the rule of reason, the court found that the NFL’s three-quarters approval requirement for franchise relocation was not justified by procompetitive benefits—particularly given that the league had invoked the rule to protect the L.A. Rams, who had themselves moved from Los Angeles to Anaheim.

More recently, the NHL itself flirted with similar trouble. The 2009 bankruptcy of the Phoenix Coyotes produced a high-profile dispute over Jim Balsillie’s bid to buy the team and move it to Hamilton, Ontario. The NHL invoked its relocation rules to block the move, and Balsillie pressed antitrust counterclaims accusing the league of conspiring to allocate the southern Ontario market to the Toronto Maple Leafs and Buffalo Sabres. The bankruptcy court ultimately rejected Balsillie’s bid on other grounds, and as a result the antitrust questions were not resolved. They will likely arise again in the next dispute spurred by the relocation rules.

When they do, courts will likely apply the rule of reason, but even with the special treatment of professional sports, an agreement among competitors to divide the market is dangerous territory.

Lockouts and Concerted Refusals to Deal

The NHL has locked its players out three times since 1994, costing the league a half-season in 1994–95, all of 2004–05, and another half-season in 2012–13. From the players’ side, a lockout looks like a concerted refusal to deal, or group boycott: the team employers, acting through the league, jointly impose terms after a bargaining impasse and jointly refuse to hire players except on those terms.

Continue reading →

|

2026-ABA-Antitrust-Spring-Meeting-300x225
Authors: Steven Cernak, Luis Blanquez, Cansu Gunel, Sabri Siraj

Bona Law was well represented at the annual largest antitrust conference, the 2026 American Bar Association Antitrust Law Section Spring Meeting in Washington, D.C. Steve Cernak spoke at a panel discussing Robinson-Patman and other issues with big companies; Cansu Gunel attended the Section’s inaugural Trial Skills Academy; and Luis Blanquez and Sabri Siraj attended many panels and led our Bona Law meetings with clients and other firms. With dozens of panels and countless opportunities to meet with friends old and new from nearly 70 different countries, each of us could write an entire post on what we learned last week; however, to keep the length manageable, we each limited ourselves to just the key takeaways for our readers.

Steve Cernak

Continue reading →

|

HSR-Fifth-Circuit-300x204

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

On March 19, 2026, the Fifth Circuit denied the FTC’s motion to stay a lower court’s February decision vacating the new HSR form and rules.

As a result, the FTC immediately said it would be accepting the old, less burdensome, form going forward, while recognizing that the agencies continue to wield significant investigatory tools beyond the filing itself At least for the time being, the new form will continue to be accepted too. The FTC will be updating its website with the old form and rules shortly.

The Agency has not announced if it will continue to appeal the lower court’s ruling or re-start the process to develop a different new form. So, the merits appeal remains pending at the Fifth Circuit, meaning the litigation is far from over. A future appellate decision could reinstate the expanded form, require further rulemaking, or affirm the vacatur. For now, however, the legal baseline has reverted to the pre‑2025 HSR regime.

  1. A Sweeping Rulemaking Meets Strong Opposition

In early 2025, the Federal Trade Commission undertook the most ambitious redesign of the Hart‑Scott‑Rodino premerger notification form since the statute was passed in 1976. The dramatically expanded filing framework required parties to submit far more information at the outset of the merger‑review process. The revised form demanded narrative descriptions of competitive dynamics, deeper maps of ownership and governance, detailed horizontal and vertical overlap disclosures, and, often, the submission of certain ordinary‑course business documents never previously required. The stated goal was to help the FTC and the Department of Justice identify problematic deals earlier and reduce friction later in investigations.

The business community was not persuaded. Trade associations, led by the U.S. Chamber of Commerce, argued that the new rule imposed crushing burdens on companies, with compliance costs soaring and preparation time roughly tripling. Many pointed out that the vast majority of HSR filings do not trigger substantial investigations, yet all filers would bear the heightened costs regardless of competitive risk. Even before the rule took effect in February 2025, these groups filed suit in the Eastern District of Texas, claiming the agency had exceeded its statutory authority and failed to justify the new demands.

Their challenge succeeded—at least initially. On February 12, 2026, Judge Jeremy D. Kernodle vacated the rule in its entirety. He found that the agency had not shown the new requirements were “necessary and appropriate” under the HSR Act and had failed to meaningfully weigh costs and benefits as required by the Administrative Procedure Act. The court also found the rule arbitrary and capricious—the FTC failed to show that the rule’s benefits “bear a rational relationship” to its costs. The ruling emphasized that the FTC could not identify even one past transaction that the expanded form would have flagged but the old form would have missed, while acknowledging the enormous cost imposed on every filer. For the court, the disconnect between burden and proven benefit was fatal.

  1. Procedural Whiplash: From Vacatur to Revival

Though the district court vacated the rule, it paused its own order for seven days to allow the FTC to seek appellate relief. The agency scrambled to preserve the status quo. It asked the district court for a stay pending appeal; that request was denied. It then immediately appealed to the Fifth Circuit, filing both an emergency motion for a stay and a separate, narrower request for a short administrative pause.

The Fifth Circuit moved faster than many anticipated. On February 19, 2026—one day before the district court’s stay was set to expire—the appellate court issued an administrative stay of the vacatur “until further order.” The effect was simple but consequential: the 2025 HSR form, despite the district court’s ruling, remained in force. The FTC’s own Premerger Notification Office quickly announced that filers must continue to use the new form while the appeal proceeds.

The court simultaneously set an expedited briefing schedule, requiring the appellees’ response by February 23 and the FTC’s reply by February 26.  On March 19, the court issued a brief per curiam opinion denying the stay. Within hours, the FTC announced on its website that the pre-February 2025 form would be accepted immediately, although filers could also continue using the new form. The FTC expects to further update its website with the old form and rules very soon.

  1. A Landscape of Uncertainty for Dealmakers

Even under the old form, the FTC and DOJ retain broad discretion to request voluntary information during the waiting period.

Continue reading →

|

Paramount-Warner-Brothers-merger-antitrust-300x225

Author: Sabri Siraj

In February 2026, Paramount Global signed a $110 billion agreement to acquire Warner Bros. Discovery, setting the stage for one of the largest media combinations in recent memory. The transaction follows a competitive process that included a proposal from Netflix late last year to merge with Warner Bros. Discovery. Netflix ultimately withdrew its bid, citing financial considerations.

While much of the public conversation has centered on personalities and politics, the more meaningful takeaway for businesses lies elsewhere. This transaction offers a clear window into how regulators, both state and federal, are approaching major mergers in industries that are consolidating after years of rapid growth.

For companies contemplating transformative deals in their own sectors, the Paramount–Warner transaction signals an important shift in merger review: agencies are looking beyond simple market share metrics and focusing more closely on how consolidation reshapes long-term competitive dynamics.

Transaction Background

Under the reported agreement, Paramount would acquire Warner Bros. Discovery in a transaction valued at approximately $110 billion, including assumed debt. The combined company would control a substantial portfolio of film studios, premium cable brands, broadcast networks, and direct-to-consumer platforms.

The deal emerges at a time when the media industry is recalibrating. Subscriber growth has slowed, content production costs remain high, and companies are under pressure to improve profitability. In December, Netflix explored strategic transactions involving studio and streaming assets, underscoring the broader industry push toward scale and operational efficiency.

If completed, the merger would reduce the number of diversified, large-scale competitors operating across film production, content licensing, advertising, and subscription services. As a result, the transaction is likely to receive scrutiny from U.S. federal and state and international enforcers.

The Legal Framework Governing the Review

Section 7 of the Clayton Act prohibits acquisitions whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” The inquiry is forward-looking and predictive. Regulators assess whether a transaction is likely to reduce output, raise prices, diminish innovation, or otherwise weaken competitive rivalry.

In a conventional horizontal merger analysis, agencies examine relevant product and geographic markets, the degree of overlap between the merging firms, and changes in market concentration. Structural indicators often provide the starting point for the analysis.

Modern merger review, however, does not end there. Particularly in capital-intensive industries with relatively few major competitors, agencies increasingly evaluate how consolidation affects incentives and industry structure over time. That broader structural focus is likely to shape review of the Paramount–Warner transaction.

State antitrust enforcers have been increasingly active in reviewing mergers that affect the citizens and consumers of their states. For example, multiple state attorneys-general challenged the Kroger-Albertsons merger. Here, the California Attorney General, at least, has signaled that he plans to investigate the merger.

The Key Signal: Structural Scrutiny in Consolidating Industries

The most instructive aspect of this deal is not simply that two competitors are combining. Rather, it is how enforcement agencies are likely to assess consolidation in a mature, high-fixed-cost industry.

Media production and distribution share structural features common to many other sectors: significant upfront investment, repeated interaction among a limited number of firms, and publicly observable pricing and strategic behavior. When markets exhibit these characteristics, regulators may evaluate not only whether the merged firm could raise prices unilaterally, but also whether reducing the number of independent competitors makes coordinated outcomes more likely.

This coordinated-effects lens focuses on market structure. Agencies may ask whether having fewer major decision-makers increases the risk of parallel pricing behavior, output discipline, or softened rivalry over time—even in the absence of explicit agreement.

That analytical approach has implications far beyond media. Healthcare systems, aerospace and defense contractors, energy infrastructure providers, and industrial manufacturers all operate in industries with high fixed costs and limited numbers of national competitors. In those sectors, consolidation may attract scrutiny not solely because of market share thresholds, but because of how it alters competitive incentives across the industry.

Continue reading →

|

Homebuilders-DOJ-Antitrust-300x166

Author: Ruth E. Glaeser

Federal officials are reportedly considering an antitrust review of major U.S. homebuilders, particularly around how competitors share information through groups like the Leading Builders of America. The Department of Justice has not yet confirmed a formal investigation, but the discussion highlights risks that extend well beyond the largest national builders.

The size and visibility of large builders make them more likely to attract regulatory attention, particularly when housing affordability has become a major political issue. Policymakers are under pressure to examine whether industry practices, or market structure more broadly, are contributing to supply constraints that make housing less affordable.

But for developers of all sizes, this is a reminder that ordinary industry practices can end up under a microscope. Even conduct that seems routine and well-intentioned can become the focus of a costly and disruptive investigation.

The Issue of Trade Associations

At the center of the concern is information sharing among competitors. Trade associations, like Leading Builders of America, serve legitimate and important purposes. They serve as industry advocates, promote best practices, and provide a forum for discussing common challenges among builders. But regulators have long viewed trade associations as environments where competitors may be tempted to share sensitive information.

United States antitrust law does not prohibit companies from participating in trade associations or gathering market intelligence. What it does require is that each company make its own independent decisions about pricing, production, and strategy and not all information sharing is inherently anticompetitive.

Indeed, the DOJ and FTC have long provided guidance on competitor information sharing to help companies understand how antitrust laws apply to things like collaborations, benchmarking, and exchanging data. For many years, the Antitrust Guidelines for Collaborations Among Competitors, issued jointly by the agencies, offered a framework for assessing when information‑sharing and other activities among competitors might raise antitrust concerns. Although the original 2000 Collaboration Guidelines were withdrawn in December 2024, the agencies have recently requested public comment to develop updated guidance that would cover collaborations and information exchanges for today’s economic and technological landscape.

In practice, problems can arise when communications, including informal ones, suggest that competitors are aligning their behavior. Regulators are especially focused on exchanges involving non-public information about future business plans, because that kind of information is more likely to influence how competitors behave and ultimately affect prices, supply, or quality. Emails, text messages, and meeting notes discussing pricing, future plans, or competitors’ actions can appear more nefarious when viewed in hindsight by regulators.

It’s Not Just the Government

Government investigations are only part of the risk. Antitrust scrutiny often leads to follow-on lawsuits by private parties like homebuyers and investors—an antitrust blizzard of sorts—who have an easier time prosecuting their claims by copying the arguments and evidence from the government’s case. Even when defendant companies believe they’ve done nothing wrong, responding to investigations and defending lawsuits can be expensive, time-consuming, and disruptive.

Economic and Market Forces Can Complicate the Picture

Homebuilders also face challenges unique to the industry. Builders operating in the same markets often respond to the same economic pressures at the same time. Interest rates, material costs, labor availability, and local regulations all affect how many homes are built and how they are priced. When mortgage rates rise, demand slows. Builders may respond by adjusting pricing, slowing production, or delaying projects. Similarly, when lumber prices increase or labor becomes scarce, builders may raise prices or build fewer homes. Local regulation can have the same effect—zoning restrictions, permitting delays, and approval timelines often affect every builder in a given area. Supply chain disruptions can create similar patterns. And if materials are delayed or unavailable, multiple builders may pause or reschedule construction.

Continue reading →

|

Robinson-Patman-Ninth-Circuit-300x288

Authors: Steven Cernak and Cansu Gunel

In May 2024, this blog discussed a rare plaintiff victory in a Robinson-Patman case. In February 2026, the Ninth Circuit affirmed that victory in L.A. International Corp. v. Prestige Brands Holdings, Inc. In doing so, the court confirmed our key takeaways from 2024 — a successful Robinson-Patman case, while possible, will be expensive and lengthy and will only get easier if more plaintiff-friendly opinions, like this one from the Ninth Circuit, are written. In crafting that opinion, however, the court might have created a split with at least the Second Circuit that the Supreme Court could find interesting.

Robinson-Patman and Case History

This blog has recounted the elements and history of Robinson-Patman in prior posts. In summary, RP is a Depression-era amendment of the Clayton Act that makes certain manufacturer discounts to some (usually large) resellers but not to other (usually small) resellers illegal if there is the requisite harm to competition.

For decades, the FTC and private plaintiffs brought numerous cases that generated many opinions, including from the Supreme Court. As antitrust law evolved to focus nearly exclusively on benefits to consumers, especially lower prices, the FTC stopped bringing cases and private cases dwindled. The few cases brought often resulted in plaintiff losses and defendant-friendly precedent. Still, the non-zero risk of RP enforcement meant that most manufacturers and retailers paid at least some attention to RP. Because the FTC has become more interested in RP enforcement, including bringing two cases recently, RP clearly is not “gone” and now might not even be “forgotten.”

L.A. International Corp. v. Prestige Consumer Healthcare, Inc., is one of those rare private RP suits and even rarer plaintiff wins. As we detailed in 2024, Defendants manufacture and distribute Clear Eyes eye drops. The suit alleged that Defendants sold Clear Eyes at a lower price and with greater promotional allowances to Costco (specifically, Costco Business Centers that resell to retailers) than to Plaintiffs. Plaintiffs are several distributors that also buy and resell such products to retailers like local convenience stores.

After years of litigation, the case was tried to a jury, which found for Plaintiffs and allocated around $700,000 in damages among the several distributors. The lower court rejected various objections to its jury instructions by Defendants, which formed the basis of Ninth Circuit appeal.

Competitive Injury Standards: A Circuit Split

The Ninth Circuit’s “Geographic Proximity” Approach

The Ninth Circuit affirmed, applying what it characterized as the traditional “chain-store paradigm,” where wholesalers and large retailers like Costco both “carried and resold an inventory of [a product] to all comers.” The court found that “to establish that two customers are in general competition, it is sufficient to prove that:

  • one customer has outlets in geographical proximity to those of the other;
  • the two customers purchased goods of the same grade and quality from the seller within approximately the same period of time; and
  • the two customers are operating on a particular functional level such as wholesaling or retailing.”

Critically, the Ninth Circuit rejected any requirement that competitive injury be “substantial,” holding that “Congress strung together the clauses in Section 2(a) with the disjunctive ‘or,’ which requires that we treat the clauses separately.” Section 2(a), in relevant part, states:

. . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition . . .

Thus, in rejecting the Defendants’ claim that the instructions should have included the “substantial” requirement because “the word ‘substantially’ … modifies the phrase ‘to injure, destroy, or prevent competition,” the court concluded that “[w]holesalers needed to show only that the effects of Prestige’s discriminatory actions ‘may be … to injure, destroy, or prevent competition’” and that “the district court did not err when it instructed the jury that the plaintiff was required to establish ‘a reasonable possibility of harm to competition.’”

The Ninth Circuit rejected Defendants’ argument for three reasons:

  • the ABA Model Jury Instructions only requires plaintiffs to show “a reasonable possibility of harm to competition;”
  • standard canons of construction would not have “substantially” in the first element of the list modify the third element; and
  • Ninth Circuit precedent never addressed the issue explicitly but did describe the element as “a reasonable possibility that a price differential may harm competition.”

The Ninth Circuit buttressed this finding with a reference to the Supreme Court’s most recent RP opinion, Volvo v. Reeder-Simco, noting that the Court “omitted the word ‘substantially’ when recounting the elements for secondary-line injury, requiring that a plaintiff need only show that ‘the effect of [the price] discrimination may be to injure, destroy, or prevent competition.’”

Importantly, and consistent with its rejection of any “substantial” harm requirement, the Ninth Circuit also clarified that the Morton Salt inference—which permits courts to presume competitive injury from substantial price differences sustained over time—operates as an affirmative presumption once such a sustained price disparity is shown. As the court explained, this presumption generally suffices to establish a reasonable possibility of injury to competition without requiring proof of substantiality or significant direct lost sales. This approach aligns with the foundation laid by the Supreme Court in Federal Trade Commission v. Morton Salt Co. which held that a factfinder may infer injury to competition from a sustained, substantial price differential because such disparities can impair the competitive opportunities of individual merchants and thereby create a “reasonable possibility” that competition itself may be harmed.

The Second Circuit’s “Substantial Harm” Requirement

This Ninth Circuit language seems inconsistent with the Second Circuit’s opinion in 2015’s Cash & Henderson’s Drugs, Inc. v. Johnson & Johnson. There, the Second Circuit affirmed a summary judgment for Defendants because Plaintiffs’ showing of a loss of approximately .25% of customers to the favored purchasers was de minimis, thus inadequate to show the requisite harm to competition. In doing so, the court found that plaintiffs “failed to raise a question of material fact as to whether they suffered competitive injury” because they “could not generate evidence tending to show that they lost more than a de minimis number of customers to the favored purchasers, indicating that competition was not substantially harmed or threatened by the price difference in question.” [emphasis added]

Continue reading →

|

Author: Pat Pascarella

AI will weaponize antitrust. AI markets have high fixed costs, winner-take-all dynamics, platform leverage, bundling power, and data lock-in.  These dynamics predict concentration.  And market concentration is an accelerant for antitrust litigation—both private and government. We saw it with IBM, Microsoft, and the telecom wars.

Private actions will move faster than government enforcers—not because they are necessarily stronger on the merits, but because they are less constrained by politics and bandwidth. A well-timed complaint can slow a rival’s rollout, trigger regulatory scrutiny, and create settlement leverage.  When markets tip quickly, the losers litigate.

Continue reading →
Contact Information
Dallas
100 Crescent Ct #700 - 3425
Dallas, TX 75201
Phone: 469-296-7716
Detroit
28175 Haggerty Rd
Novi, MI 48377
Phone: 248-994-2221
Minneapolis
331 2nd Avenue S. #420
Minneapolis, MN 55401
Phone: 612-284-5001
New York
16 Madison Ave 9th Floor
New York, NY 10010
Phone: 212-634-6861
San Diego
4275 Executive Square
UNIT 200
La Jolla, CA 92037
Phone: 858-964-4589

ATTORNEY ADVERTISING

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2026, Bona Law PC
JUSTIA Law Firm Blog Design