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January 03, 2024 Feature

II. Antitrust

James F. Herbison, Chair

Antitrust enforcement and regulation remained a top priority across all federal and state levels this past year. From Congress’s legislative agenda to new and active judicial proceedings, antitrust continues with vigor to be at the forefront of agency action and regulatory change. The most significant antitrust developments occurred with key decisions in the technology and public utility industries, as well as new pressure exerted on the transportation sector. We examine these current trends and developments, and other noteworthy decisions in the areas of telecommunications, cable, and the Internet; utilities, electrical power, nuclear, and renewable energy; transportation; and oil and gas.

A. Developments in Telecommunications, Cable, and the Internet

1. D.C. Attorney General Attempts to Revive Suit Against Amazon

The Washington, D.C., Attorney General’s Office requested that the D.C. Court of Appeals breathe new life into its lawsuit against Amazon.1 In May 2021, the D.C. Attorney General filed a complaint accusing Amazon of restricting competition by requiring that third-party sellers on its platform abide by restrictive contracts that inflate prices and reduce competition.2 The D.C. Superior Court twice dismissed the complaint in 2022, and now the D.C. Attorney General argues that the Superior Court judge erred by ignoring the complaint’s well-pleaded allegations and by misconstruing existing law.3 Specifically, the D.C. Attorney General is arguing that the Superior Court’s holding that “written agreements to restrain trade cannot be anticompetitive if economically rational for those involved” is not supported by the court’s antitrust precedent.4 The Attorney General further contends that the alleged agreements “entrench and maintain Amazon’s monopoly over online marketplaces, enabling Amazon to charge higher fees and commissions than it would in a truly competitive environment” and that the alleged agreements “reduce the incentive for competing online marketplaces to attract sellers through lower fees or greater innovation.”5 The issue on appeal is whether the Superior Court improperly dismissed the case based on insufficient pleading and wrongly refused to permit the D.C. Attorney General to amend his complaint following a dismissal with prejudice.6

2. Google’s Ad and Search Businesses Continue to Face Legal Challenges

In December 2022, the Ninth Circuit Court of Appeals held that a federal district court was correct in dismissing photo-sharing company Dreamstime’s lawsuit against Google.7 In its complaint, which alleged violations of Section 2 of the Sherman Act, Dreamstime claimed that Google improperly exercised its market power to shut out Dreamstime from the stock-image-photography market.8 Specifically, Dreamstime claimed that Google rigged its ad-bidding process, demoted Dreamstime’s ranking in search results, and favored the appearance of competitor stock-photo companies, such as Shutterfly, in search results.9

In upholding the dismissal of the case, the Ninth Circuit reasoned that Dreamstime’s Sherman Act claim failed in part because the company did not “allege anti-competitive conduct in the market it defined: the online search advertising market.”10 In oral arguments before the Ninth Circuit, Dreamstime characterized the relevant market as including not only the market for online-search advertising but also the organic-search market.11 However, the Ninth Circuit viewed this argument as improper because Dreamstime had continually characterized the relevant market as the online-search-advertising market during the district court proceedings, which, in the Ninth Circuit’s view, amounted to a waiver of the right to argue that the relevant market included the organic-search market.12 This ruling exemplifies the importance of litigants’ carefully defining the relevant market before pursuing a Section 2 Sherman Act claim.

The favorable ruling in the Dreamstime case does not mark the end of Google’s defense of lawsuits filed by private entities. Google continues to face cases filed by “developers, advertisers, and consumers” that accuse Google of monopolistic behavior with respect to the market for display advertising, the Google Play Store, and YouTube.13 Google is also dealing with challenges from federal and state governments. The United States Department of Justice (DOJ) filed a lawsuit against Google requesting that a Virginia federal court break up Google’s illegal monopoly on digital-advertising technology.14 The DOJ’s action joins several others launched against Google by state attorneys general who claim that Google’s advertising business “has corrupted legitimate competition in the ad tech industry.”15 The complaint filed by the DOJ points to Google executives’ statements and Google’s corporate strategy and analogized that “Google’s owning so many different facets of the industry” would be akin “to Goldman Sachs or Citibank owning the New York Stock Exchange.”16 Additionally, the DOJ contends that Google employs a general strategy to prevent publishers from using any non-Google advertising exchange, resulting in a noncompetitive market in which Google benefits at other businesses’ detriment.17 According to the DOJ, a digital-advertising market with “unfettered competitive pressure” would better control prices and bolster innovation, ultimately resulting in fewer transaction costs for market participants and a higher-quality product.18

3. Apple Successfully Defends Favorable Ruling on Appeal

Late last year, the U.S. Federal Circuit Court of Appeals summarily affirmed a district court’s dismissal of a suit that accused Apple of partaking in anticompetitive behavior.19 The plaintiff, a messaging platform called Blix Inc., alleged that Apple’s rules governing third-party applications’ implementation of single sign-on features were monopolistic and harmed consumers. But during oral argument before the Federal Circuit, the company’s attorney was apparently unable to clearly articulate a mechanism through which that harm occurs.20

Apple requires that third-party applications that desire to offer single-sign-on functionality within Apple’s iOS operating system permit Apple login credentials to be used, in addition to any other credentials the third-party developer chooses to allow.21 Apple contended that such a requirement did not restrict competition but “actually expands consumer choice.”22 But the Federal Circuit’s ruling did not address this argument—or the argument advanced by Blix’s counsel that Apple had stolen, or “sherlocked,” its client’s technology—and instead “offered no thoughts or conclusions beyond affirming” the district court’s dismissal of Blix’s claims.23

4. Technology Sector Recipient of Funding, but Also Subject of Regulation

Within the past year, the tech sector benefited immensely from public funding, but also shouldered substantial regulation from policymakers.24 For example, in August 2022, a bipartisan Congress enacted the $280 billion CHIPS and Science Act in hopes of boosting America’s influence in the critical-and-emerging-technologies sector.25 The law is designed to bolster private and public-sector investment in technology and includes a tax credit for U.S. manufacturers of chips and other similar component parts.26 The law also authorizes the National Science Foundation to initiate new programs that will encourage and incentivize research and development in the technology sector.27

At the same time, other congressional action enhanced the regulatory regime governing the tech sector.28 For example, a number of antitrust bills were introduced in Congress with bipartisan support which would “prohibit discriminatory conduct by dominant platforms,” “prohibit[] acquisitions of competitive threats by dominant platforms,” “eliminate[] the ability of dominant platforms to leverage their control . . . across multiple business lines to self-preference and disadvantage competitors,” and “promote[] competition online by lowering barriers to entry and switching costs.”29 In addition, Democratic and Republican lawmakers alike have “hauled in top tech executives to testify and defend their practices.”30

B. Developments in Utilities, Electrical Power, Nuclear, and Renewable Energy

1. Texas Asks U.S. Supreme Court to Allow It to Maintain a Monopolistic Power Grid

On December 28, 2022, the Office of the Attorney General for the State of Texas petitioned the U.S. Supreme Court on behalf of the State of Texas to review a Fifth Circuit ruling that a Texas “law giving incumbent transmission companies the first chance to build new power lines is unconstitutional.”31 The Fifth Circuit held that the law at issue discriminates against out-of-state utility companies in violation of the dormant-commerce clause, reasoning that the law effectively prohibits any new entrants to the Texas energy market.32

Texas argued that the Fifth Circuit’s ruling “could undermine state regulation of electric utilities” and will “impact[] the provision of electricity to millions in Texas.”33 The State also argued that the Fifth Circuit erred by ignoring the implications of General Motors Corp. v. Tracy, a 1997 U.S. Supreme Court decision that rejected a commerce clause–based constitutional challenge to an Ohio tax-law exemption that had been carved out for in-state utility companies.34

2. Antitrust Suit Against Arizona Utility Company Settles

The United States District Court for the District of Arizona approved the dismissal with prejudice of a case alleging the unlawful imposition of surcharges on customers with rooftop solar-energy panels.35 The dismissal was made pursuant to a joint stipulation submitted by the parties after reaching a settlement.36 This long-running litigation involved allegations that Salt River Project Agricultural Improvement and Power District (SRP), an Arizona public-utility company, imposed surcharges on customers who used their own solar panels instead of only consuming supplied electricity in order to ward off competition in the electricity market from producers of solar-energy systems.37 The suing consumers claimed that they were charged up to $600 more annually than their non-solar-panel-owning counterparts.38 The consumers who shouldered the surcharges brought various claims, including antitrust, Federal Equal Protection Clause, and various state statutes.39 However, in January 2022, the district court dismissed all causes of action except the antitrust claim.40

SRP has commented that “[t]here will be no change to [its] board-approved rates as a result” of the settlement it reached with the customers.41 There is concern in the industry that similar actions involving other public-utility providers will result in delays and setbacks for greener alternative-energy companies, such as those that distribute solar panels to households.42

C. Developments in Transportation

1. Airline Merger Takeoff Aborted

In May 2023, the United States District Court for the District of Massachusetts ruled that American Airlines and JetBlue Airways must abandon their partnership, known as the “Northeast Alliance,” for “substantially diminish[ing] competition.43 Despite the Department of Transportation’s approving a strategic alliance between the two airlines—which the airlines claimed would provide greater flight options at lower costs to travelers in the Northeast—the DOJ then moved to block the partnership, which it characterized as a de facto merger.44 The commitments the airlines made in early 2021 when the Department of Transportation approved the alliance—that is, “giving up certain routes and slots at other airports in exchange for” the “arrangement combining their operations in Boston and metro New York”—did not appease the DOJ.45 American and JetBlue contended their partnership did not cause “a single higher price, any reduction in quality or the slightest reduction in output.” The airlines further claimed the alliance is “an efficiency-enhancing integration of economic activity,” considered pro-competitive under established antitrust law.46 Instead, the court held that the partnership replaced “full-throated competition with broad cooperation.”47 The airlines declined to appeal in July 2023.48

2. Significant Regulatory and Enforcement Action on Ocean-Shipping Reform

In recent months, Congress and the Biden administration have taken significant legislative, regulatory, and enforcement action in the ocean-carrier shipping industry in response to COVID-induced supply-chain problems. On March 31, 2022, the Senate unanimously passed the Ocean Shipping Reform Act (OSRA), which grants the Federal Maritime Commission (FMC) enhanced rulemaking and enforcement authority to confront purportedly unfair business practices by ocean container carriers.49 Such practices include “ditching smaller U.S. exporters in favor of larger retail customers who can pay higher ‘spot’ rates that climb with demand,” and charging “detention” or “demurrage” fees when cargo is left sitting on a vessel or on the docks for too long.50 Legal commentators have praised OSRA for growing the FMC’s regulatory capacity and providing “manufacturers, suppliers, retailers and other companies seeking to ship their goods a broader avenue to bring disputes against the mostly foreign-owned ocean container carriers that transport the goods.”51 The ultimate impact of OSRA will only be felt once the FMC has completed the pending rulemaking process.52

The above legislative effort coincides with greater DOJ scrutiny of foreign shipping companies’ compliance with competition laws.53 A fact sheet issued in advance of President Biden’s State of the Union address noted that “spot rates for freight shipping between the U.S. and Asia have jumped 1000% percent since January 2020, while the container shipping industry pulled in $190 billion in profits last year, a seven-fold increase from 2020.”54 Following President Biden’s promise to “‘crack down’ on rising ocean freight shipping costs,” in March 2022 the DOJ subpoenaed Danish shipping company A.P. Møller – Mærsk, seeking information about predatory business practices during the pandemic.55 Then, in August, China International Marine Containers Group Co. Ltd. terminated its intended acquisition of Mærsk following a DOJ antitrust investigation.56 The DOJ expressed concern that the acquisition “would have consolidated over 90 percent of the insulated container box and refrigerated shipping container production in Chinese state-owned or state-controlled entities” and “would have substantially increased the risk of coordination among the remaining suppliers in the marketplace.”57

D. Developments in Oil and Gas

1. Senate Judiciary Committee Advances Antitrust Bill Targeting OPEC

On May 5, 2022, the Senate Judiciary Committee advanced bipartisan legislation that would give the DOJ authority to file antitrust lawsuits against OPEC in federal district court.58 The No Oil Producing and Exporting Cartels Act (NOPEC), sponsored by Senator Chuck Grassley, seeks to hold OPEC member countries accountable for anti-competitive activity in the energy market.59 The legislative push to advance NOPEC was driven by rising gas prices.60 Senator Amy Klobuchar, a co-sponsor of the bill, stressed that it “will help make gas prices fair and affordable here at home by ensuring the market is protected by robust competition.”61 A few Republican senators raised concerns that antitrust lawsuits were not the best way to curb rising gas prices and that NOPEC could lead to retaliatory litigation against the U.S. in foreign courts.62


1. Kelly Lienhard, DC Attorney General Wants Amazon Antitrust Suit Resurrected, Law360 (Jan. 24, 2023),

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7., LLC v. Google, 54 F.4th 1130 (9th Cir. 2022); see also Hailey Konnath, 9th Circ. Won’t Revive Ad Antitrust Suit Against Google, Law360 (Dec. 6, 2022),

8. Id.

9. Id.

10. Id.

11. Id.

12. Id.

13. Matthew Perlman, Google’s Antitrust Trouble Is Piling Up, Law360 (Feb. 3, 2023),

14. Bryan Koenig, DOJ Files 2nd Google Suit in Latest Ad Tech Challenge, Law360 (Jan. 24, 2023),

15. Id.

16. Id.

17. Id.

18. Id.

19. Craig Clough, Fed. Circ. Affirms Apple Antitrust Win 1 Day After Arguments, Law360 (Dec. 6, 2022),

20. Id.

21. Id.

22. Id.

23. Id.

24. Lexology, Congress and the Biden Administration to Continue Public Support and Scrutiny of Tech Sector (Dec. 1, 2022),

25. Id.

26. Id.

27. Id.

28. Id.

29. Press Release, U.S. Congressman David N. Cicilline, House Lawmakers Release Anti-Monopoly Agenda for “A Stronger Online Economy: Opportunity, Innovation, Choice” (June 11, 2021),

30. Lexicology, Congress and the Biden Administration to Continue Public Support and Scrutiny of Tech Sector,

31. Keith Goldberg, Texas Takes Grid Project Law Fight to High Court, Law 360 (Jan. 3, 2023),

32. Id.

33. Id.

34. Id.

35. Keith Goldberg, Sun Sets on Antitrust Suit over Ariz. Utility’s Solar Rates, Law 360 (Feb. 3, 2023),

36. Id.

37. Id.

38. Id.

39. Id.

40. Id.

41. Id.

42. Id.

43. United States v. Am. Airlines Grp., Inc.,No. 1:21-cv-11558, 2023 WL 3560430, at *44 (D. Mass. May 19, 2023).

44. Linda Chiem, JetBlue Exits American Pact, Won’t Appeal Antitrust Ruling, Law360 (July 5, 2023)., (discussing United States v. Am. Airlines Grp. Inc.).

45. Id.

46. Id.

47. Am. Airlines Grp., 2023 WL 3560430, at 44.

48. Linda Chiem, JetBlue Exits American Pact, Won’t Appeal Antitrust Ruling, Law360 (July 5, 2023).

49. Linda Chiem, Ocean Shipping Policy Developments to Watch, Law360 (Apr. 15, 2022),

50. Id.

51. Linda Chiem, New Ocean Shipping Regs on Deck, but Inland Woes Persist, Law360 (June 14, 2022),

52. Id.

53. See Grace Dixon, DOJ Subpoenas Shipping Giant Maersk amid Antitrust Focus, Law360 (Mar. 17, 2022),

54. Id.; see also White House, FACT SHEET: Lowering Prices and Leveling the Playing Field in Ocean Shipping (Feb. 28, 2022),

55. Dixon, supra note 53.

56. Bernard A. Nigro Jr., Shipping Companies Terminate Merger Following DOJ Antitrust Investigation, Lexology (Aug. 25, 2022),

57. Id.

58. James Arkin, Senate Committee Advances OPEC Antitrust Bill, Law360 (May 5, 2022),

59. Id.

60. Id.

61. Id.

62. Id.

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James F. Herbison, Chair

James F. Herbison is a Partner at Winston & Strawn LLP in its Chicago office. He is chair of the Antitrust Committee.