Articles Posted in Monopoly and Dominance

Articles that discuss antitrust and competition issues involving monopolists, dominant companies, monopoly power, and dominance.

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Bayer-Antitrust-Loyalty-Discounts-300x200

Author: Aaron Gott

Last week, the Department of Justice announced that Bayer CropScience LLC has removed two sets of potentially anticompetitive provisions from its “Premier Performance Program”—a loyalty program for independent seed companies that sell Bayer’s corn and soybean seed. The announcement came not as the result of a consent decree or court order, but as a voluntary commitment Bayer made during the course of a still-ongoing DOJ investigation.

This is an example of a company taking a hard look at the antitrust risks of its sales initiatives and deciding that the benefit was outweighed by those risks.

Ideally, companies take a hard look at their antitrust risks before they face an investigation. So let’s talk about what those antitrust risks were for Bayer.

Bayer’s Loyalty Program

The Premier Performance Program gave independent seed companies discounts in exchange for meeting sales performance targets. Two features of the program drew DOJ scrutiny.

The first problem with Bayer’s loyalty program was that it imposed a tie. To qualify for discounts, seed companies had to hit targets for *both* corn seed *and* soybean seed. That is a textbook tying arrangement: access to favorable pricing on Product A (corn) conditioned on meeting volume targets for Product B (soybeans).

The antitrust laws treat tying with real suspicion. Tying is suspicious enough, in fact, that Congress has provided the government and private plaintiffs with three different ways under which they can plead a tying claim: as an anticompetitive agreement (between supplier and customer) that violates Sherman Act Section 1; as a unilateral anticompetitive act by a supplier with monopoly power under Sherman Act Section 2; and as a conditional sales arrangement for goods under Clayton Act Section 3. While the requirements of the three different tying claims vary, a seller has antitrust risk for tying where the seller has, at a minimum, appreciable economic power in the tying product.

In a competitive, open market, buyers are free to buy the products they want from the sellers they want. With tying, a seller usurps that choice, using its power in the tying market (where it sells a product customers want) to force buyers to also buy from seller in the tied market (where it sells a product customers don’t want, or at least don’t necessarily want it from seller). As a result, competition in the second (the “tied”) market suffers—alternatives go unpurchased, rivals lose distribution, and that market concentrates around the seller. The result is that seller wins in the “tied” market for reasons other than the merits of seller’s participation in that market. And one largely unspoken principle of antitrust law is that winning for reasons other than the merits is always suspicious.

That was the DOJ’s concern with Bayer’s loyalty program. The DOJ’s announcement notes that Bayer is “the primary source for traited corn seed sold by independent seed companies.” So Bayer is a dominant supplier of traited corn seed, and its loyalty program gave discounts only if the seed company buyers also bought soybean seed from Bayer. In other words, Bayer required customers to take a second product to get favorable terms on the first. In effect, Bayer imposed a toll on corn seed buyers who did not also buy its soybean seeds.

The second problem with Bayer’s loyalty program was that it incentivized exclusivity. The program included provisions that could reduce independent seed companies’ willingness to license seed technology from Bayer’s competitors. The DOJ viewed these incentives as potentially anticompetitive because, it suspected, Bayer was using its loyalty program to foreclose rival seed technology from the distribution channel.

Exclusive dealing and its “cousins”—loyalty discounts, bundled rebates, and incentive programs that effectively limit customers’ ability to patronize competitors—are analyzed under the rule of reason. The question is whether the program forecloses a substantial share of the distribution channel to rivals. A loyalty program that financially penalizes seed companies for licensing competitors’ genetics does exactly that.

Taking a step back from these specific doctrines, the DOJ looked at Bayer’s loyalty program and saw a set of complementary, unilaterally imposed contract terms and incentive structures that functioned to foreclose competition in markets Bayer participated in by using its already substantial power rather than by competing on the merits day by day, product by product. At its core, that is what Section 2 of the Sherman Act seeks to prevent.

Lessons for Investigative Targets

Bayer eliminated both aspects of its loyalty program and has committed not to reinstate them for seven years.

It’s worth noting what Bayer’s commitment does and does not do. DOJ announced that Bayer made its commitment as a result of an “ongoing investigation” and made the changes “during the course of” that investigation. But Bayer did this voluntarily, not because it reached a consent agreement with DOJ. While DOJ will likely consider Bayer’s voluntary cessation of the conduct as a mitigating factor as it proceeds, it does not end the investigation and DOJ remains free to continue its investigation, pursue enforcement, and demand further remedies.

Still, this kind of resolution—behavioral commitments extracted through investigation pressure before DOJ undertakes formal litigation—is common in DOJ enforcement. The Division announces publicly that the conduct has changed, creates a deterrent effect across the industry, and reserves the right to continue its investigation. For Bayer, the alternative was presumably a filed case or a consent decree with more constraining terms. For the DOJ, it is an efficient way to change conduct quickly without committing the resources required for litigation while maintaining full flexibility and discretion going forward —not to mention the ever-present, implicit threat of exercising that discretion to maximum effect.

Also trending in DOJ enforcement? Agribusiness. Bayer is not the first agribusiness to draw this kind of DOJ scrutiny in recent years, and it is unlikely to be the last. Agricultural input markets—seeds, chemicals, equipment—are concentrated and have been under increased enforcement attention since the DOJ and USDA signed their 2025 memorandum of understanding on agricultural competition. Acting Assistant Attorney General Omeed Assefi said it plainly: “Enforcement in agriculture is a top priority for the Antitrust Division.” And that’s to say nothing of state antitrust enforcers, some of whom have also made conduct and concentration in agriculture a chief priority.

Lessons for Loyalty Programs

Ideally, your company will not become an investigative target because of its loyalty programs in the first place. Loyalty programs create risks that can be managed—and assessed against their benefits. A few questions are worth asking to start:

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Meta-antitrust-lawsuit-300x212

Author: Luis Blanquez

A federal court recently handed antitrust plaintiffs something they have lacked for two decades: a monopolization theory against a dominant platform that survives a motion to dismiss. On March 30, 2026, the Eastern District of New York allowed Phhhoto’s monopoly maintenance claim against Meta to move into discovery. Most coverage filed it under routine platform conduct, but the court in this case built its ruling on a nascent competitor framework that private plaintiffs have almost never gotten past the pleadings since Trinko—and the reasoning reaches far beyond Meta. Phhhoto Inc. v. Meta Platforms Inc., No. 1:21-cv-06159 (E.D.N.Y. Mar. 30, 2026).

The Facts Behind the Ruling

Phhhoto launched its looping-photo app in July 2014 and reached 10 million users within two years. That growth depended on plugging into Instagram—Find Friends API access, hashtag integration, and organic sharing. In February 2015, a Meta strategic partnerships manager reached out about a Facebook newsfeed integration. Phhhoto signed a nondisclosure agreement and handed over operational detail.

Then suddenly the door closed. On March 31, 2015, with integration talks still open, Meta cut off the Find Friends API, partnered with GIPHY, launched Boomerang on the very day Phhhoto planned to announce its Android release, and in March 2016 rolled out an Instagram feed algorithm that—Phhhoto alleges—buried third-party content instead of personalizing the feed.

If you want the full background on the Phhhoto Inc. v. Meta Platforms Inc. case, here is an article we recently published on the ABA antitrust Section site.

Why the Court Refused to Apply Trinko

Meta’s lead defense was Trinko, the US Supreme Court decision that protects a monopolist’s right to choose its business partners. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). The D.C. Circuit had already tossed a parallel state case on that exact basis. New York v. Meta Platforms, Inc., 66 F.4th 288 (D.C. Cir. 2023).

But Judge Matsumoto declined to follow that path. The states had attacked a general policy of cutting API access to potential rivals. Phhhoto attacked something narrower and uglier: Meta targeting one specific competitor after using an NDA to study how it worked. Meta took in confidential information during the NDA window, shut the API, and cloned the product. On those facts—the court reasoned—this is a nascent competitor case, not a refusal-to-deal case.

That line is the whole ball game because refusal to deal claims rarely clear Trinko. Nascent competitor claims are very much alive—central to the FTC’s case against Amazon, briefed in the Google Search litigation, and now applied at the pleading stage against Meta. Courting a rival, learning its business, and then locking it out is treated differently than simply turning a stranger away at the front door.

What the Nascent Competitor Theory Actually Targets

The theory addresses a gap that classic monopolization doctrine handles poorly. A dominant firm rarely fears the competitor it already faces. It fears the small, fast-growing one that could mature into a real threat. Buying that company outright draws merger scrutiny. So, the dominant firm uses alternative tools—pulling interoperability, timing a copycat product, or tuning an algorithm to suppress the upstart’s reach. Phhhoto pleaded all three, and each survived.

The Find Friends cutoff survived because Meta’s own statement—that it disliked how Phhhoto was growing through Instagram—pointed to an anticompetitive motive rather than a legitimate one. The Boomerang launch survived because Phhhoto alleged Meta learned the product through the integration process and then shipped a clone on the day of Phhhoto’s biggest announcement. And the algorithmic suppression claim survived because Phhhoto alleged the 2016 feed was tuned to cut rival visibility, with registrations falling sharply once it went live.

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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.

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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.

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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.

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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.

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Author: Luis Blanquez

On 5 February 2026, Germany’s competition authority, the Bundeskartellamt, announced a landmark ruling prohibiting Amazon from continuing practices that influenced how independent sellers priced their products on the German Amazon Marketplace. The authority also ordered Amazon to disgorge €59 million in economic benefits that it determined were gained through these anticompetitive practices.

At the center of the ruling lies Amazon’s dual role in Germany’s online retail ecosystem. As in the United States, the company not only sells products through its own retail arm, Amazon Retail, but also operates the Amazon Marketplace, a platform where independent third‑party sellers list and sell goods directly to consumers. About 60% of all items sold on Amazon.de come from these independent sellers, who bear full responsibility for setting prices and managing the financial risks of their businesses.

The Bundeskartellamt concluded that Amazon used a variety of “price control mechanisms” to review whether sellers’ prices were “too high.” When Amazon’s systems flagged a price as unacceptable, the company responded by either fully removing the listing from the platform or excluding the offer from the Buy Box—the prominent purchasing option that strongly influences sales volume. These measures can severely limit a seller’s visibility and revenue.

According to the authority, this system created a significant competitive imbalance. President Andreas Mundt emphasized that Amazon directly competes with the very sellers who rely on its platform. When a dominant marketplace operator can restrict or manipulate competitor pricing—even indirectly through algorithmic controls—it risks shaping the entire price landscape according to its own commercial interests. Mundt warned that such interference could prevent sellers from covering their costs, potentially pushing them off the marketplace entirely.

The Bundeskartellamt made clear that it does not object to Amazon’s ambition to offer low prices to consumers. Instead, the issue lies in how Amazon has attempted to achieve that goal. Regulators argue that Amazon can provide competitive prices without directly constraining the pricing choices of independent sellers. To address the issue, the authority has restricted Amazon from using price control tools except under narrowly defined circumstances—particularly cases of excessive or exploitative pricing—and only in compliance with detailed requirements that the Bundeskartellamt has now established.

The regulator highlighted the implications of Amazon’s market position. Amazon accounts for roughly 60% of Germany’s online goods retail market, making it an undeniably influential digital gatekeeper. Because independent sellers depend heavily on Amazon’s infrastructure and visibility, any internal policy that affects pricing can have sweeping economic impact. The authority asserts that Amazon’s previous practices allowed it to act as both a competitor and an arbiter of acceptable pricing behaviors, creating a structural conflict of interest.

By limiting Amazon’s ability to use these mechanisms, the Bundeskartellamt aims to restore pricing freedom to third‑party sellers and safeguard the competitive process. The decision stresses the need to prevent dominant digital platforms from exploiting their market position by embedding competitive advantages into the algorithms and systems that govern visibility, listing status, and price acceptability. According to the authority, this type of intervention is crucial to ensuring that Amazon cannot extend its competitive power on the marketplace into the broader retail economy.

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Oligopoly-Competition-Antitrust-300x193

Author: Ruth Glaeser

Recent news highlights a growing focus on government antitrust enforcement cases against companies accused of monopolizing markets and abusing their power. But let’s consider another question: if a company lacks sufficient market power to qualify as a monopolist, but competes with only one or a handful of other companies, how does that affect consumer welfare?

American antitrust law seems to champion consumer choice untainted by anticompetitive practices. But it does not prohibit the market dynamic known as an oligopoly, which is a structure prevalent in numerous industries across the United States and the world. In an oligopoly, a small number of firms effectively control the quality, pricing, and supply of a particular market. This departure from perfect competition typically leads to some combination of higher prices and lower quality, and possibly less innovation and fewer consumer choices.

Consider the air-travel industry, where major players like Delta, American Airlines, United, and Southwest hold substantial influence over consumers. Similarly, when purchasing technology devices, most consumers find themselves choosing among a limited array of manufacturers, such as Apple, Samsung, and others. While no single entity monopolizes the market, collectively these firms exert significant control, raising concerns about the implications for consumer choice and pricing.

As the landscape of market power continues to evolve, understanding the dynamics of oligopolies becomes increasingly crucial for consumer welfare.

What is an Oligopoly?

An oligopoly is a market structure characterized by a small number of firms, usually fewer than five, that collectively account for a substantial share of the market. These firms are generally interdependent and the decisions of one firm often directly influence the behavior and profitability of the others. Their interdependence can lead to anticompetitive behaviors, including aggressive pricing to tacit collusion. These practices may harm  competition and consumers.

One of the largest threats to competition from oligopolistic behavior is conscious parallelism. Conscious parallelism occurs when firms in a competitive market make aligned decisions without direct communication or collusion. Instead, each firm observes the actions of its competitors, and reacts accordingly, often leading to similar pricing strategies, product offerings, or marketing tactics. Sometimes, there is one company, often the largest, that will start the merry-go-round, and smaller companies will follow the leader.  Importantly, conscious parallelism is not itself illegal under the antitrust laws, but its effects can mimic the anticompetitive results of monopolies.

There are several ways in which a market can become an oligopoly. The most common are high barriers to entering a market and the need for economies of scale. Many industries, such as the airline industry, require significant financial investment, which can deter new entrants. Relatedly, established firms often benefit from economies of scale, which allow them to produce at lower costs than new entrants, making it hard for smaller firms to compete on price. Sometimes companies may merge or acquire competitors to facilitate this, which reduces market competitors and increases a firm’s market share.

Moreover, it is common for government regulations to create or sustain oligopolies, such as in the utility industry, where governments may grant exclusive rights to certain firms to operate in specific regions, limiting competition, and controlling pricing. And government regulation itself tends to increase economies of scale, which tends to move markets from competitive toward oligopolistic. Indeed, if the federal government truly cared about increasing competition, it would take a long-hard look at excessive, unnecessary regulations that increase market-entry barriers.

Risk of Anticompetitive Behavior

An oligopoly presents a risk for several types of anticompetitive behavior:

  • High Potential for Price Fixing

Price fixing occurs when a small number of firms in the oligopoly agree to set prices at a certain level, rather than allowing competition to determine them. A notable example is the case of In re Domestic Drywall Antitrust Litigation, which involved seven defendant drywall manufacturers, four of which were responsible for approximately 70% of the market share. Plaintiffs alleged that these drywall manufacturers engaged in collusion to raise prices by 35%, announcing the increase to customers well in advance. This move came at a time when the industry was facing a surplus of product alongside a decline in demand. While the case was settled before reaching trial, the court’s findings suggested that the price hike was free from illegal collusion among Defendants.

  • High Potential for Conscious Parallelism

Conscious Parallelism poses a significant challenge to competition. This phenomenon occurs when firms coordinate their behavior without any explicit communication or agreement, often leading to artificially inflated prices. A prime example is Holiday Wholesale Grocery Co. v. Phillip Morris Inc, where Phillip Morris, a dominant player in the cigarette market, announced a substantial price reduction on its premium products. Its three main competitors quickly followed suit, controlling approximately 95% of the market.

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Author: Jarod Bona

Do you or your competitor have a monopoly in a particular market? If so, your conduct or their conduct might enter Sherman Act, Section 2 territory, which we call monopolization.

If you are in Europe or other jurisdictions outside of the United States, instead of monopoly, people might label the company with extreme market power as “dominant.”

Of course, it isn’t illegal itself to be a monopolist or dominant (and monopoly is profitable). But if you utilize your monopoly power or obtain or enhance your market power improperly, you might breach US, EU, or other antitrust and competition laws.

In the United States, Section 2 of the Sherman Act makes it illegal for anyone (person or entity) to “monopolize any part of the trade or commerce among the several states, or with foreign nations.” But monopoly, by itself, is not illegal. Nor is it illegal for a monopolist to engage in competition on the merits.

If you are interested in learning more about abuse of dominance in the EU, read this article.

In the United States, monopolists have more flexibility than in the EU, but they are still under significant pressure and could face lawsuits or government investigations at any time, even when they don’t intend to violate the antitrust laws. There can be a fine line between strong competition on the merits and exclusionary conduct by a monopolist.

Here are the elements of a claim for monopolization under Section 2 of the Sherman Act:

  • The possession of monopoly power in the relevant market.
  • The willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

These two basic elements look simple, but you could write books about them.

The Possession of Monopoly Power in the Relevant Market

To determine whether an entity has monopoly power, courts and agencies usually first define the relevant market, then analyze whether the firm has “monopoly” power within that market.

But because the purpose of that analysis is to figure out whether certain conduct or an arrangement harms competition or has the potential to do so, evidence of the actual detrimental effects on competition might obviate the need for a full market analysis. If you want to learn more about this point, read FTC v. Indiana Federation of Dentists (and subsequent case law and commentary). You can show monopoly power directly.

Sometimes this element leads to difficult questions about the line between monopoly power in a relevant market and something slightly less than that. Other times, the monopoly-power element comes down to how the court will define the relevant market. A broader market definition may create a finding of no monopoly power, while a more narrow definition means the powerful company has monopoly power.

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Author: Luis Blanquez

Apple is currently feeling the heat from antitrust authorities all over the world. Probably more than ever. Below is an article we recently published in the Daily Journal discussing in some detail the last developments in the Epic Games saga, both in the EU and the US.

Epic Games Has Returned to the Apple Store. Will Apple Throw a Hail Mary?

If you are a developer in the Web3 space trying to access the Apple Store, you should also review this article:

Antitrust, Web3 and Blockchain Technology: A Quick Look into the Refusal to Deal Theory as Exclusionary Conduct

So, what’s on Apple’s plate in the antitrust world on both sides of the pond?

In the European Union, the European Commission has fined Apple over €1.8 billion for abusing its dominant position on the market for the distribution of music streaming apps to iPhone and iPad users (‘iOS users’) through its App Store. The Commission found that Apple applied restrictions on app developers preventing them from informing iOS users about alternative and cheaper music subscription services available outside of the app. Such anti-steering provisions ban app developers from the following:

  • Informing iOS users within their apps about the prices of subscription offers available on the internet outside of the app.
  • Informing iOS users within their apps about the price differences between in-app subscriptions sold through Apple’s in-app purchase mechanism and those available elsewhere.
  • Including links in their apps leading iOS users to the app developer’s website on which alternative subscriptions can be bought. App developers were also prevented from contacting their own newly acquired users, for instance by email, to inform them about alternative pricing options after they set up an account.

At the same time, the European Commission has just opened a non-compliance investigation under the new Digital Markets Act about Apple’s rules on (i) steering in the App Store; (ii) its new fee structure for alternative app stores; and (iii) Apple’s compliance with user choice obligations––to easily uninstall any software applications on iOS, change default settings on iOS and prompt users with choice screens which must effectively and easily allow them to select an alternative default service.

Meanwhile, antitrust enforcement is also heating up for the Cupertino company in the United States.

Besides several private litigation actions, Epic Games recently filed a motion accusing Apple of violating an order issued last year under California law barring anti-steering rules in the App Store.

And just few days ago, the Justice Department, joined by 16 other state and district attorneys general, filed a civil antitrust lawsuit against Apple for monopolization or attempted monopolization of smartphone markets in violation of Section 2 of the Sherman Act. According to the complaint, Apple has monopoly power in the smartphone and performance smartphones markets, and it uses its control over the iPhone to engage in a broad, sustained, and illegal course of conduct. The complaint alleges that Apple’s anticompetitive course of conduct has taken several forms, many of which continue to evolve today, including:

  • Blocking Innovative Super Apps.Apple has disrupted the growth of apps with broad functionality that would make it easier for consumers to switch between competing smartphone platforms.
  • Suppressing Mobile Cloud Streaming Services. Apple has blocked the development of cloud-streaming apps and services that would allow consumers to enjoy high-quality video games and other cloud-based applications without having to pay for expensive smartphone hardware.
  • Excluding Cross-Platform Messaging Apps. Apple has made the quality of cross-platform messaging worse, less innovative, and less secure for users so that its customers have to keep buying iPhones.
  • Diminishing the Functionality of Non-Apple Smartwatches. Apple has limited the functionality of third-party smartwatches so that users who purchase the Apple Watch face substantial out-of-pocket costs if they do not keep buying iPhones.
  • Limiting Third Party Digital Wallets. Apple has prevented third-party apps from offering tap-to-pay functionality, inhibiting the creation of cross-platform third-party digital wallets.

The complaint also alleges that Apple’s conduct extends beyond these examples, affecting web browsers, video communication, news subscriptions, entertainment, automotive services, advertising, location services, and more.

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