Big Tech Scoreboard

It’s that time of the year:  in the United States, the regular baseball season is in its final weeks as Major League Baseball pennant races come to a head, the NFL and NCAA football seasons have started, and at the same time, the NHL and NBA pre-seasons are just about to commence. And meanwhile in Europe, the football and basketball seasons are getting underway at the same time. There’s so much action that the casual fan needs a scorecard to keep track.

The same can be said for all of the action around the world in government antitrust/competition enforcement in the big tech arena.  Here’s a scorecard to assist those trying to keep track of all the governmental action; note that tracking all the private actions might require a whole separate Jumbotron:

Google

United States

U.S. v. Google LLC (Google Search), 1:20-cv-03010-APM (D. D.C.)

• October 20, 2020: The DOJ and Attorneys General of 11 states filed a civil antitrust lawsuit under Section 2 of the Sherman Act to restrain Google from unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the U.S. through anticompetitive and exclusionary practices.
• August 5, 2024: District Court (Hon. Amit P. Mehta) issued its opinion, finding that (1) Google is a monopolist in markets for general search and general search text ads; and (2) Google unlawfully maintained its monopoly power via exclusionary browser and OEM agreements, among other things.
• September 6, 2024: Status Conference to set schedule for remedy proceedings. Expect discovery and a hearing over the next several months.

U.S. v. Google LLC (Google AdTech), 1:23-cv-00108 (E.D. Va.)

• January 24, 2023: DOJ and eight states filed a civil antitrust suit against Google for unlawfully monopolizing multiple digital advertising technology markets in violation of Sections 1 and 2 of the Sherman Act
• September 9, 2024: Trial commenced, DOJ alleging that Google has monopolized markets for publisher ad services, ad exchanges, and advertiser ad networks, seeking to dominate all sides of online advertising technology by controlling advertising customers and competitors.

State of Texas et al v. Google LLC (State AdTech), 4:20-cv-00957-SDJ (E.D. Tex.)

• December 16, 2020: The State of Texas together with nine other states and territories sued Google in the Eastern District of Texas for unlawfully monopolizing the digital advertising market.
• August 12, 2021: Cases against Google for monopolizing the digital advertising market across the U.S. were consolidated and transferred to a federal judge in the Southern District of New York.
• June 5, 2023: A judicial panel transferred the states’ lawsuit from the Southern District of New York back to the Eastern District of Texas. The panel’s decision was supported by a law passed by Congress in December 2022, which gives states more control over which court hears their cases.
• December 27, 2024: Discovery is set to close.
• March 31, 2025: Trial is scheduled to commence.

Europe

Google and Alphabet v Commission (Google Shopping), case C-48/22 P (CJEU)

• November 30, 2010: the European Commission initiated proceedings against Google for abuse of dominant position in the European Union internal market.
• June 27, 2017: The European Commission determined that Google had favored its own comparison shopping service over those of its competitors in its general search results pages across 13 countries within the European Economic Area. As a result, the Commission concluded that Google had abused its dominant market position in both online general searches and specialised product searches. Google was fined €2.4 billion.
• November 10, 2021: after Google and Alphabet challenged the Commission’s decision before the General Court, the latter largely dismissed the action and upheld the fine. However, the Court found that the Commission had not adequately demonstrated that Google’s practice had (even potential) anticompetitive effects on the market for general search services. As a result, the Court annulled the part of the Commission’s decision that claimed Google had abused its dominant position in that specific market.
• September 10, 2024: the CJEU reiterated that undertakings with a dominant position are prohibited from engaging in any practice that hinders, through means other than competition on the merits, the maintenance or growth of competition in a market where competition is already weakened. Accordingly, the CJEU concluded that conduct by a dominant undertaking that favors its own products/services over those of its competitors deviates from competition on the merits; however, considering the market characteristics and the specific circumstances of the case, the Court of Justice dismissed the appeal and upheld the General Court’s judgment.

Google and Alphabet v Commission (Google Android), case T-604/18 (General Court)

• April 15, 2015: the European Commission opened a procedure investigating certain business practices of Google in the mobile internet sector, in particular in relation to Android, as Google’s Android operating system (OS) was installed on approximately 80% of smart mobile devices used in Europe.
• July 18, 2018: in its decision, the European Commission identified different types of anticompetitive contractual restrictions that Google has imposed on mobile device manufacturers and mobile network operators (e.g.,. restrictions requiring manufacturers to pre-install Google Search and Chrome browser apps to obtain a license from Google for its Play Store, and revenue share agreement provisions, under which the grant of a share of Google’s advertising revenue to the manufacturers/operators was predicated to their commitment not to pre-install a competing general search service on a predefined portfolio of devices). The Commission found that the purpose of those restrictions was to strengthen Google’s dominant position in relation to general search services and classified them as a single and continuous abuse of a dominant position. Google was fined almost €4.343 billion.
• September 14, 2022: the action brought by Google against the Commission’s decision was largely dismissed by the General Court of the European Union, which only annulled the decision in so far as it found that the portfolio-based revenue share agreements constituted an abuse per se. The Court reduced the amount of the fine imposed on Google to €4.125billion.
• November 30, 2022: Google and Alphabet filed an appeal to set aside the judgment of the General Court. The appeal is now before the CJEU.

Google AdSense, case T‑334/19(GC)

• July 14, 2016: the European Commission initiated investigations against Google regarding the agreements between Google and partners of its online search advertising intermediation program AdSense.
• March 20, 2019: in its decision, the Commission established that Google’s inclusion of the exclusivity clauses in Google Services Agreements with its large customers of online search advertising intermediation services amounts to an abuse of Google’s dominant position in the online search advertising intermediation market, by preventing competition on the merits. The Commission ordered Google to cease applying these clauses and imposed a fine of €1.5 billion for the period between 1 January 2006 and 6 September 2016.
• September 18, 2024: the General Court annulled the Commission’s decision in its entirety and its €1.5 billion fine imposed for anticompetitive contracts related to online advertising. The Court concluded that the Commission had failed to properly assess the allegedly abusive clauses in Google's contracts, including with respect to their duration, the relevant market affected, and whether they effectively locked in the companies’ customers. Consequently, the Court held that the Commission had not established an abuse of a dominant position.

Apple

United States

U.S. v. Apple, 2:24-cv-04055 (D.N.J.)

• March 21, 2024: The U.S. DOJ and 16 state Attorneys General filed a civil antitrust lawsuit against Apple, alleging that Apple had engaged in unlawful exclusionary conduct to maintain its monopoly power in both the smartphones market and the narrower submarket for performance smartphones. Specifically, DOJ alleged that Apple imposed contractual restrictions, fees, and taxes on creation of cloud-streaming apps and distribution of super apps; and used APIs and other critical access points in the smartphone ecosystem to insulate itself from competition.
• August 1, 2024: Apple filed a motion to dismiss, contending that (1) Apple is not a monopolist as it competes with Google, Samsung, and others; (2) under precedents Trinko and Aspen Skiing, Apple does not have a duty to deal with competitors; and (3) the specific conduct DOJ alleged was not connected to any anticompetitive effects in the smartphone market.
• September 12, 2024: DOJ filed its opposition to Apple’s Motion to Dismiss, arguing, among other things, that (1) plaintiffs sufficiently pled Apple’s monopoly both using direct and indirect evidence; and (2) Apple’s conduct is not a typical “refusal to deal” with rivals, but rather an unlawful exclusionary campaign that harms competition not by withholding resources from smartphone rivals but by imposing anticompetitive restrictive conditions on users and developers.

Europe

European Commission v. Ireland, Apple Sales International Ltd and Apple Operations Europe Ltd, case C‑465/20 (CJEU)

• June 11, 2014: the European Commission opened an investigation procedure regarding the tax rulings adopted by Ireland in favor of Apple Sales International and Apple Operations Europe, companies incorporated in Ireland but not tax resident in Ireland, as those tax rulings could constitute State aid within the meaning of Article 107(1) TFEU, as they could constitute an improper advantage for the undertakings to which they were granted.
• August 30, 2016: by its decision, the European Commission stated that Ireland had granted State aid to Apple’s companies through the Tax Rulings from 1991 to 2014, which was incompatible with EU internal market rules, and ordered Ireland to recover from Apple that aid, estimated at €13 billion.
• July 15, 2020: the lower court of the CJEU, the General Court, endorsed the Commission’s competence to examine whether (1) the Irish tax authorities had granted Apple’s companies favorable tax treatment and (2) the tax ruling had constituted State aid. The Court also endorsed the Commission’s identification of the reference framework (i.e. the ordinary rules of taxation of corporate profits) and the use of the arm’s length principle to assess the selective tax advantage.
• September 10, 2024: following the appeal lodged by Apple and Ireland, the CJEU set aside the General Court’s judgment. According to the final judgement, the tax rulings in question reduced the chargeable profits of Apple’s companies, thereby lowering the amount of corporation tax they were liable to pay in Ireland, compared to other companies taxed in Ireland whose taxable profits reflected market-determined prices in line with the arm’s length principle. The CJEU thus ordered Apple to repay €13 billion in tax-breaks to the Irish state.

Apple Music Streaming, case AT.40437 (GC)

• June 16, 2020: the European Commission initiated investigations against Apple in relation to certain terms and conditions governing the use of the App Store by developers of music streaming apps on Apple’s smart mobile devices.
• March 4, 2024: the Commission found that Apple abused a dominant position by virtue of Apple’s rules set out in the various versions of the App Store Review Guidelines applicable during the infringement period and in the terms of the Developer Program License Agreement that prevented (1) music streaming service providers from informing iOS users about alternative subscription options outside iOS apps and (2) iOS users from exercising an effective choice between alternative subscription possibilities. The Commission fined Apple in the amount of €1.8 billion.
• Apple’s appeal is pending before the General Court of the European Union.

Amazon

United States

U.S. v. Amazon, 2:23-cv-01495 (W.D. Wash.)

• September 26, 2023: The FTC, together with 18 states and Puerto Rico, filed a civil antitrust lawsuit against Amazon, alleging that Amazon (1) has durable monopoly power in markets for online superstores and online marketplace services; and (2) has engaged in exclusionary conduct, including anti-discounting measures that punish sellers for and deter other online retailers from offering prices lower than Amazon, as well as tying sellers’ ability to obtain “Prime” eligibility to using Amazon’s fulfillment service.
• December 8, 2023: Amazon filed a Motion to Dismiss, contending that its conduct falls within the scope of common retail practices that presumptively benefit consumers; and that Amazon’s third-party marketplace business model, fulfillment services and membership-based Prime eligibility were developed in response to retail competition with rivals such as Home Depot, Best Buy, and Walmart.
• February 6, 2024: The FTC filed its opposition to Amazon’s Motion to Dismiss, arguing in part that Amazon’s conduct must be assessed holistically and that its claims of procompetitive benefits are premature.
• October 13, 2026: Scheduled trial date

Europe

Amazon Marketplace and Buy Box, cases AT.40462 and AT.40703

• July 17, 2019 and November 10, 2020: the European Commission opened investigations into Amazon’s business practices, in particular into (1) Amazon Marketplace, in relation to Amazon’s use of non-publicly available data regarding the listings and transactions of third-party sellers, for the purposes of its retail operations; and (2) Amazon Buy Box, in relation to the conditions and criteria governing the selection of the offer presented.
• July 8, 2022: Amazon proposed initial commitments to address competition concerns including (1) refraining from using non-public data from third-party sellers for its own retail operations; and (2) applying non-discriminatory terms and criteria for identifying offers in the Buy Box to ensure a level playing field for all sellers.
• December 20, 2022: in its decision, the Commission considered that the final binding commitments were sufficient to address the preliminary concerns identified and no fine was imposed. No appeal was filed against the decision.

Meta

United States

FTC v. Meta Platforms, Inc., 1:20-cv-03590, D.D.C.

• December 8, 2020: The FTC, together with 46 states, filed a civil antitrust lawsuit against Meta, alleging that Meta has accumulated monopoly power through anticompetitive mergers, including its previous acquisitions of Instagram and WhatsApp (amended Complaint filed in August 2021).
• October 4, 2021: Meta filed a Motion to Dismiss, contending that the FTC failed to establish Meta’s monopoly power nor sufficiently alleged that Meta’s Instagram and WhatsApp acquisitions were unlawful exclusionary conduct.
• January 11, 2022: Meta’s Motion to Dismiss was denied on the basis that FTC had (i) alleged enough facts to plausibly establish that Meta exercises monopoly power in the market for Personal Social Networking services; and (ii) adequately alleged that Meta willfully maintained that monopoly power through anticompetitive conduct – the acquisitions of Instagram and WhatsApp. Parties have been engaged in a contentious discovery process since then.

Europe

• March 25, 2024: the European Commission opened an investigation into whether Meta's “pay or consent” model for EU users complies with the DMA, which requires gatekeepers to obtain consent from the users when they intend to combine or cross-use their personal data.

Microsoft

United States

• January 25, 2024: the FTC issued 6(b) orders to Microsoft and OpenAI (as well as to Alphabet Inc, Amazon.com, and Anthropic PBC), requiring them to provide information regarding recent investments and partnerships involving generative AI companies and major cloud service providers. The FTC stated that it was seeking information whether firms were leveraging their partnerships or investments to dominate the AI marketplace, potentially limiting the diversity of AI applications and innovations available to consumers and other businesses.

Europe

• Microsoft Teams and Microsoft Teams II, cases AT.40721 and AT.40873July 23, 2023 and June 25, 2024: the European Commission initiated antitrust proceedings against Microsoft Ireland Operations Ltd and its parent company Microsoft Corporation. The Commission intends to investigate, in particular, the potential tying or bundling of Microsoft Teams since its launch in the EEA with other Microsoft products, as well as potential restrictions to the integration and interoperability of third-party products with Microsoft’s products, to the advantage of Microsoft Teams.

Nvidia

United States

• September 2024: DOJ reportedly issued a subpoena to Nvidia as part of its ongoing investigation into Nvidia’s dominant position in supplying high-end semiconductors crucial for AI computing.