US Department of Justice Antitrust Division Archives

US Department of Justice Antitrust Division

Google Moves to Dismiss Third Complaint Alleging Tying of Google Maps API Services

by Gregory E. Heltzer, Lisa P. Rumin and Glenna Siegel | Feb 28, 2024 | DOJ Developments, Monopolization/Abuse of Dominance, Private Litigation

BACKGROUND Google LLC and Alphabet Inc. (Google) moved to dismiss a third successive complaint that alleged it tied the sales of Maps, Routes and Places application programming interface (API) services to one another. A basic tying claim involves a seller leveraging its market power in one product (the “tying” product) to force sales and gain market share over a different product (the “tied” product). Following the dismissal of an initial complaint filed in 2022, the plaintiffs filed an amended complaint alleging Google created a “three-way” tying arrangement by conditioning the sale of one API service (e.g., Maps) on the required purchase of the two other services (e.g., Routes and Places) through its contractual terms of service. The plaintiffs alleged that the tying product could be any of the three APIs and that Google had market power in all three. Whichever plaintiffs bought first was the tying product, and the other two were tied products – allegedly locked in by forced sale or prohibition on use of competitor APIs as a condition of the first sale. The court granted Google’s motion to dismiss because the plaintiffs did not explain how a product could be both a tying product (requiring market power) and the tied product (lacking market power) depending simply on the order of the sales. In their second amended complaint, the plaintiffs abandoned the three-way tying claim, instead bringing a basic tying claim with Maps as the tying product and Routes and Places as the tied products. Google has again moved to dismiss the complaint. THE DETAILS

Maps, Routes and Places APIs are interrelated but separately licensed services that appear alongside each other in mapping applications like Google Maps.
In response to the first amended complaint, Google argued that the plaintiffs did not explain how a product could be both a tying and a tied product depending on the order of sale, given the inherent conflicts in market power required of each.
Google also argued that it had broad rights to dictate the terms of use and display of its mapping services, including a right to protect and control user experience through restricting use of its mapping API services in conjunction with or in proximity to non-Google mapping API services, relying in part on a case called Sambreel. 906 F. Supp. 2d at 1073 (S.D. Cal. 2012).
The US Department of Justice Antitrust Division (DOJ) intervened, filing a Statement of Interest urging the court to reject Google’s interpretation of Sambreel as establishing an “unqualified right” over the use and display of its services. The DOJ did not take a position on whether the claim should survive otherwise.
The court agreed with the DOJ, holding that Google’s interpretation of “control” is too broad and could justify any tying arrangement as an exercise of a supplier’s right to determine or dictate the terms on which its product or service was used.
The court also found that the plaintiffs failed to explain how a product could be either a tying [...]

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Year in Review: Criminal Enforcement by the DOJ Antitrust Division in 2023

by Nicole Castle, Lisa P. Rumin, Paul M. Thompson and Glenna Siegel | Feb 8, 2024 | Cartel Enforcement, DOJ Developments, Mergers & Acquisitions

When it comes to antitrust criminal enforcement, 2023 will be remembered as the year when the US Department of Justice’s (DOJ) Antitrust Division redefined and tested the outer boundaries of its authority. This report looks back at the key events from the DOJ’s year in criminal antitrust enforcement.

Here’s a glimpse of what’s inside:

Despite four straight losses and a voluntary dismissal in labor market cases, the DOJ remains undeterred in bringing additional criminal wage-fixing and no-poach suits.
DOJ’s Procurement Collusion Strike Force secured several guilty pleas and stiff penalties in 2023 and will most likely continue pursuing aggressive investigative and litigation strategies moving forward.
The nearly decade-long investigation of the generic drug industry appears to be ending after the DOJ recently resolved and dismissed the remaining cases.
Deputy Attorney General Lisa Monaco highlighted cybersecurity, tech and national security as areas of heightened risk and thus heightened scrutiny, so corporations in these markets should take heed of the DOJ’s emphasis on corporate compliance in 2024.

Read full report.

DOJ Prosecutes Attempted Collusion among Business Competitors for First Time in Decades

by Justin P. Murphy, Andrew Lee and Paul M. Thompson | Nov 1, 2022 | DOJ Developments, Monopolization/Abuse of Dominance

On October 31, 2022, the US Department of Justice’s (DOJ) Antitrust Division (Division) made good on its intention earlier this year to revitalize efforts surrounding criminal enforcement of Section 2 of the Sherman Act when the president of a paving and asphalt contractor in Montana pleaded guilty to one count of attempting to monopolize the market for certain construction services in Montana and Wyoming. This is the Division’s first criminal prosecution of a Section 2 case in approximately 50 years. While criminal enforcement of antitrust laws has traditionally focused on per se anticompetitive agreements between two or more horizontal competitors, Section 2 primarily focuses on conduct by one firm or company with significant market power. This announcement—and subsequent criminal resolution—marks a significant departure from long-standing DOJ antitrust enforcement of monopolization claims and is a landmark result for the Division’s continued expansion of its criminal enforcement efforts.

Most notably, seemingly unilateral conduct that “attempts” to collude is now subject to criminal prosecution under Section 2, even if such an attempt did not result in any agreement. In contrast, there is no “attempt” component of a Sherman Act Section 1 charge, where the Division has traditionally investigated and prosecuted per se criminal price fixing, bid rigging and market allocation conduct requiring an agreement or “meeting of the minds” between horizontal competitors.

According to court documents, the DOJ alleged that Nathan Nephi Zito attempted to monopolize the markets for highway crack sealing services administered by Montana and Wyoming by proposing that his company and its competitor allocate regional markets. Zito approached a competitor about a “strategic partnership” and proposed that his company would stop competing for projects administered by South Dakota and Nebraska and the competitor would stop competing for projects administered by Montana and Wyoming. Zito allegedly offered a $100,000 payment as additional compensation for lost business in Montana and Wyoming and proposed that they enter into a transaction to “disguise their collusion.” The competitor company then approached the government and cooperated in its investigation, including by recording phone calls with Zito.

This case, the first Section 2 criminal resolution in decades, was prosecuted in coordination with the Procurement Collusion Strike Force (PCSF), which remains a top priority for the DOJ. The PCSF has been quite active in recent months, obtaining several convictions and bringing new indictments.

Although Section 2 is regularly associated with unilateral monopolist conduct, it also makes it a crime to attempt to monopolize or to conspire to monopolize. The “attempt” provision is what the Division relied on to obtain a conviction in this case, which is essentially an attempted but unconsummated Section 1 market allocation case where one of the potential conspirators cooperated with the government rather than entering into a potentially collusive agreement.

Key takeaways from this case include the following:

Now companies need to consider potentially collusive agreements with competitors—or attempts to do the same—that may exclude other competitors from a market in their antitrust risk evaluations. In practice, this could significantly broaden the scope of any compliance [...]

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Cartel Corner | August 2022

by Justin P. Murphy, Paul M. Thompson, Han Cui, Alexandra Lewis and Reese Poncia | Aug 31, 2022 | Agriculture, Cartel Enforcement, Consumer Protection/Privacy, DOJ Developments, FTC Developments, Monopolization/Abuse of Dominance

Without question, 2022 has been a remarkably busy time for the US Department of Justice’s (DOJ’s) Antitrust Division (Division). Over just a few months, the Division rolled out meaningful revisions to its leniency policy aimed at encouraging prompt reporting of criminal violations, announced that it will (for the first time in nearly 50 years) bring criminal monopolization cases under Section 2 of the Sherman Act, continued to increase enforcement resources, and brought a number of new cases and obtained multiple guilty pleas.

However, activity does not always mean success. If there is any theme that defines the Division’s efforts over the last quarter, it is this: If at first you don’t succeed, try, try again. That is exactly what the Division has done. It tried two labor markets cases, ultimately losing both on a new and untested legal theory. And, over strong objections from a district court, the Division pursued an unprecedented third trial against those in the broiler chicken industry, resulting in a full acquittal for all defendants. None of this, however, has deterred the Division from continuing to pursue new investigations and bring new cases under novel legal theories.

In this installment of Cartel Corner, we examine recent and significant developments in antitrust criminal enforcement and profile what the Division has highlighted as its key enforcement priorities. If the past is prologue, we are bound to see more aggressive antitrust enforcement in the months to come, testing the boundaries of current antitrust law. Whether the Division can ultimately shift those boundaries, however, remains to be seen.

Access the full report.

DOJ Issues Antitrust Guidance on Competitor Collaboration to Combat COVID-19

by Ashley Fischer, Jon B. Dubrow and Katharine M. O'Connor | Apr 13, 2020 | Healthcare Antitrust, Joint Ventures/Competitor Collaboration

The US Department of Justice (DOJ) Antitrust Division issued a business review letter that underscores the flexibility of the US antitrust regulators towards competitor collaborations aimed at increasing the supply and distribution of medical equipment needed to fight the Coronavirus (COVID-19) pandemic. This letter can provide guidance to other companies considering collaborations to assist in the response to COVID-19.

Access full article.

THE LATEST: AAG Delrahim Withdraws Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments, Elaborates Views on SSOs

by Jonathan Ende and Will Diaz | Dec 19, 2018 | DOJ Developments, IP Antitrust

In a December 7 speech before the Berkeley-Stanford Advanced Patent Law Institute, the US Department of Justice Antitrust Division (DOJ) Assistant Attorney General Makan Delrahim (AAG Delrahim) announced that the DOJ will withdraw its assent to the 2013 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments (the Policy Statement) and elaborated upon the DOJ’s enforcement approach to standard setting organizations (SSOs).

WHAT HAPPENED:

AAG Delrahim voiced support for the right of patent holders to seek injunctions against misuses of their technologies. According to AAG Delrahim, the appropriate test for injunctive relief in patent cases is the one articulated by the US Supreme Court in eBay v. MercExchange. Under the eBay standard, to obtain an injunction, a patent holder must demonstrate that:
- It has suffered an irreparable injury;
- Remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
- Considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
- The public interest would not be disserved by a permanent injunction.
AAG Delrahim expressed concern that the Policy Statement, which in his view suggests that injunctions may not serve the public interest, may bias courts applying the eBay test against issuing injunctions. Because AAG Delrahim’s stance is that injunctions frequently do serve the public interest, he is worried that the Policy Statement will cause confusion. Based on this worry and AAG Delrahim’s disagreement with the Policy Statement’s position, the DOJ will withdraw its assent to the Policy Statement.
AAG Delrahim also elaborated upon his concerns with SSOs. He explained that an SSO can act anti-competitively in carrying out two tasks. First, an SSO can act anti-competitively while carrying out the standard setting process (g., by refusing to license a new and innovative technology by a maverick firm that the members of the SSO view as threatening). Second, an SSO can act anti-competitively in adopting and implementing patent policies (e.g., by adopting licensing terms that favor implementers over patent holders).

WHAT THIS MEANS:

Though the DOJ is withdrawing its assent to the Policy Statement, it will attempt to replace it with a new one. AAG Delrahim said that the DOJ will engage the Patent Office to initiate this process. The DOJ is likely to push for language more favorable to standard essential patent holders seeking injunctions.
The withdrawal of the Policy Statement may affect patent cases not only before federal district courts, but also before the International Trade Commission (ITC). The Policy Statement was designed to inform the ITC, as well as federal courts, on the appropriateness of issuing an exclusion order in patent cases.
Delrahim announced two policies the DOJ will adopt with respect to SSOs. First, the DOJ will investigate and bring enforcement actions against standard setting practices that are anticompetitive. Second, the DOJ will embrace a policy of encouraging competition between SSOs. As part of the policy, the DOJ may, for example, scrutinize competitors for [...]

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Aerospace & Defense Series: Behavioral Remedies Remain a Viable Solution for Vertical Mergers in the Defense Industry

by Jon B. Dubrow | Jun 18, 2018 | DOJ Developments, FTC Developments, Mergers & Acquisitions

The recent FTC decision in the Northrop Grumman / Orbital ATK matter has shed light on the agency’s vertical merger enforcement policy and outlined a path to antitrust merger clearance for the Aerospace and Defense industry. The FTC’s June 5 consent decree shows behavioral remedies remain a viable solution if the parties can prove both that the DoD would benefit from the transaction and that those benefits would be lost if the agency required a divestiture.

THE LATEST: DOJ Continues Its Intense Focus on Decree Compliance

by Mary Strimel | May 17, 2018 | DOJ Developments, FTC Developments

WHAT HAPPENED

In March, we discussed the US Department of Justice (DOJ) Antitrust Division’s move to update its standard consent decree language to enhance decree enforceability. Among other things, the changes:

Reduced the burden of proof for DOJ to demonstrate a decree violation in court, and
Shifted DOJ’s attorney’s fees to the losing party in the event that a decree enforcement action became necessary.

Now, DOJ Antitrust Division Assistant Attorney General Makan Delrahim has further intensified the Division’s compliance focus by announcing the creation of an Office of Decree Enforcement at the Division (Office). The Office would have “the sole goal to ensure compliance with, and enforcement of, [Antitrust Division] decrees.” (more…)

Individual Accountability Likely to Continue for Cartel Enforcement

by Mary Strimel | Jun 5, 2017 | Cartel Enforcement, DOJ Developments

To date, the US Department of Justice Antitrust Division (DOJ) has obtained six corporate guilty pleas, three individual indictments and one individual guilty plea in its long-running investigation into price fixing of capacitors by primarily Japanese manufacturers. Capacitors are small electronic components that are found in nearly every device that is plugged in or powered by a battery.

WHAT HAPPENED

In a May 24 sentencing hearing, the DOJ took sharp criticism from Judge James Donato (NDCA) for what he called a “sweetheart deal” by DOJ in its plea agreement with Matsuo Electric Co. The plea called for payment of a $4.17 million fine to be paid over five years.
The deal, reached at the same time as an individual plea of Matsuo’s former sales manager Satoshi Okubo, was one that DOJ had touted, arguing that “[t]he simultaneous acceptance of responsibility by a company and the executive who supervised its involvement in the cartel demonstrates in a concrete way their future commitment to lawful conduct and an improved business culture.”
Judge Donato saw it another way, arguing that he “didn’t like the idea of corporations holding individuals out to dry in return for leniency.” This comment came in reference to the assertion that Okubo had been asked to serve a one-year prison term so the company would get a lesser sentence.
The court did not throw out Matsuo’s sentence altogether, but requested further details about the company’s financial resources so that it could decide whether to accept the corporate plea agreement, in particular the extended payment term. Okubo was sentenced in February.
In previous sentencings, Judge Donato had imposed terms of probation on the corporations exceeding those requested by DOJ.

(more…)

THE LATEST: Acting AAG Clarifies Scope of Amnesty for Executives

by Mary Strimel | Apr 5, 2017 | Cartel Enforcement, DOJ Developments

The US Department of Justice (DOJ) Antitrust Division (the Division) offers leniency to the first company to contact the Division and acknowledge participation in an antitrust conspiracy such as price-fixing, bid-rigging or market allocation. The Division’s leniency program requires the applicant to fully cooperate with the government’s investigation and to candidly acknowledge its wrongdoing, among other requirements. In return, the successful applicant receives a pass from corporate criminal exposure and also receives immunity for its officers, directors and executives.

The leniency program is the crown jewel of the Division’s enforcement regime because of its demonstrated success generating new cases. The program’s ability to attract applicants is based on its transparency and predictability. The level of trust required for companies to air their criminal wrongdoing to prosecuting authorities is not automatic. It has been earned over the years by a program that keeps its promises and works as designed. Therefore, changes to the program are closely watched by the defense bar for any perceived lessening of immunity coverage. (more…)

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