Competition Corner

In another example of heightened antitrust enforcement by the Department of Justice (DOJ) under the Biden administration, on January 24, 2023, DOJ and eight states filed a civil antitrust lawsuit accusing Google of monopolizing multiple digital advertising technology (“ad tech”) products. The lawsuit reflects the continued antitrust focus at both the state and federal levels on Google.

Last year, we previewed the Department of Justice’s antitrust lawsuit seeking to block Penguin Random House’s purchase of its competitor, Simon & Schuster, as a prominent example of the DOJ’s recent increased focus on monopsony theories of competitive harm.  After a year of litigation, the case reached resolution in November, when U.S. District Court for the District of Columbia (now D.C. Circuit) Judge Florence Pan issued a decision enjoining the merger, determining it would lessen competition in the market to acquire publishing rights and therefore violated Section 7 of the Clayton Act.  

“Most Favored Nation” provisions have increasingly drawn the attention of both government enforcement agencies and the business community. Notably, recent litigation involving the use of MFN provisions by Valve Corporation in connection with its popular PC-gaming platform, Steam, has spotlighted this increased government scrutiny. Additionally, a number of lawsuits targeting the use of MFN provisions by technology giants like Amazon and Apple indicate that the government is taking a closer look at the use of these provisions. While most businesses have nothing to fear from contracts containing MFN provisions, companies should be aware that there are certain circumstances that may give rise to antitrust scrutiny.

On November 2, the U.S. Department of Justice (DOJ) filed a civil antitrust lawsuit in the U.S. District Court for the District of Columbia, seeking to halt the world’s largest book publisher, Penguin Random House, from acquiring its competitor, Simon & Schuster. The case represents the most recent and high-profile example of the DOJ’s focus on monopsony theories of competitive harm.

When conducting civil antitrust investigations, the Antitrust Division of the Department of Justice (DOJ) issues Civil Investigation Demands (CIDs) for relevant documents, information, and sworn testimony from parties and non-parties to the investigation.