E-Briefs, News and Notes: June 2025

The Antitrust and Unfair Competition Law Section has sponsored the Inclusion and Diversity Fellowship Program for five years.

The Fellowship Program welcomes applications from all law students and encourages applications from students with diverse backgrounds to join the practice of antitrust and unfair competition law in California and increase the level of diversity in these fields. The Section’s Diversity Committee manages the year-long program and this year celebrates its expansion with the largest Fellowship class yet, awarding three Fellowships this year. The Fellowship includes a stipend and summer internship with the California Attorney General’s Office in the Antitrust Section and Competition Unit of the Healthcare Rights and Access Section.

We welcome our fifth class of Fellows and congratulate Karla Lora and Iman Eslami on completing their successful terms as our 2024-2025 Fellows. The program continues to attract exceptional and growing applicant pools year-over-year, and generous sponsorships have supported its expansion.

The positive impact of our work is only possible because of your support in promoting the next generation of antitrust and unfair competition practitioners and leaders.  If you or your employer would like to make a tax-deductible donation in support of the fellowship, please click on the “Donate Now” button on our website.

We are proud to introduce our 2025-2026 Inclusion and Diversity Fellows, Eugene Addo, Meher Mann, and Shriya Verma!

2025-2026 Inclusion & Diversity Fellows:

Eugene Addo

“Working in a diverse and inclusive environment is important to me because it provides varied perspectives, exposure to various communication styles, and a sense of comfort that I think can make you a well-rounded professional. . . .  Through my previous experiences working in diverse environments . . . I felt a stronger sense of collegiality that allowed me to thrive and be the very best version of myself. . ..”

Meher Mannv

“Since I grew up in a Punjabi American family, I saw how the systems that are built in this country may assume a very narrow set of experiences . . . Working in an inclusive environment means that we should surround ourselves with people who challenge our assumptions and broaden our perspectives . . . Especially in fields like antitrust where enforcement and policies have a significant impact, it is important that people doing the work reflect the people who may be most affected by it.”

Shriya Verma

“Where there is a diversity of background and experience, that enriches conversations and promotes creative thinking whether that diversity is in cultural or socioeconomic backgrounds. . . As an Indian American woman, I oftentimes think that the legal field may not look like me, but aiming to make it more inclusive hopefully leads to feeling more comfortable and provides opportunities to succeed.”

Please join us at our Los Angeles mixer to connect summer associates, law students and new lawyers interested in Antitrust and Consumer Protection Law, with law firms, public agencies, legal departments and economic consulting firms.  Please invite your junior colleagues and summer associates to register and join you.

Register for the mixer here.

And thank you to everyone who attended the San Francisco Summer Mixer on July 12! We had a fantastic evening at Harborview Restaurant & Bar connecting law students, summer associates, and new lawyers with professionals across law firms, agencies, and consulting firms. Your energy and enthusiasm made it a great success!

Check out more photos from the event here.

By Lee Berger and Travis West

On March 31, 2025, Judge John Tunheim in the District Court of Minnesota issued a comprehensive opinion denying nearly all summary judgment motions by the defendants in In Re Pork Antitrust Litigation.  Although companies may have thought information sharing was safe after the In Re Broiler Chicken litigation, this decision brings such arrangements back into the antitrust crosshairs.

Conspiracy Allegations

Multiple plaintiffs, eventually consolidated into three classes, brought suit against leading pork producers and Agri Stats (a benchmarking company), alleging a nearly decade-long conspiracy (2009-2018) to artificially inflate pork prices.  This is part of a broader set of lawsuits in the pork, turkey, and chicken markets targeting Agri Stats, including a DOJ lawsuit filed against Agri Stats itself for facilitating antitrust violations.  The alleged scheme exploited defendants’ vertical integration through three coordinated levers:

1. Reducing hog supply by liquidating sows and procuring fewer hogs
2. Restricting pork production below competitive levels through harvest cutbacks
3. Increasing exports to artificially constrain domestic supply

Central to this conspiracy was Agri Stats, which collected detailed pricing, production, and operational data from competitors and redistributed it in “anonymized” weekly and monthly reports.  Plaintiffs alleged these reports were used to exchange competitively sensitive, non-public information through Agri Stats.

Per Se Price-Fixing Claims Advance

First, the Court rejected Defendants’ argument that price fixing was implausible because it made no economic sense.  The Court found that there was evidence in genuine dispute as to whether Defendants had motivation and the tools to do so, even if the benefits from price fixing would not be distributed equally across the Defendants. 

Plaintiffs advanced two theories for proving the per se violation:

Hub-and-Spoke Theory: One set of plaintiffs argued that Agri Stats served as a central hub, facilitating an unlawful information exchange that created a per se violation.  They argued that the invitation and acceptance of an anticompetitive plan alone constituted a violation, without needing to demonstrate the traditional parallel conduct.  Although the Court acknowledged some precedential support, it ultimately found this theory insufficient as a standalone pathway to liability, noting that the precedent also involved parallel conduct and plus factors.

Traditional Parallel Conduct Theory: Plaintiffs had more success with the customary parallel conduct theory.  The Court found enough compelling evidence of coordinated behavior across multiple dimensions to go to the jury:

• Parallel sow liquidations, particularly in 2009 when Smithfield, Tyson, and Triumph collectively reduced herds;
• Production restraints through coordinated harvest cutbacks and capacity underutilization;
• Export coordination, with defendants sometimes exporting at a loss to maintain domestic price pressure; and
• Price targeting using Agri Stats to identify opportunities to raise prices above industry averages.

Critically, the Court identified numerous “plus factors” potentially supporting an inference of concerted action.  These included defendants’ extensive information sharing, public signaling (especially Smithfield’s calls for industry-wide production cuts), direct interfirm communications, and actions against self-interest, particularly using benchmarking data to raise rather than lower prices.

Agri Stats: Facilitator, Not Bystander

Agri Stats’ attempt to avoid liability was unsuccessful.  The Court found that a reasonable jury could find Agri Stats participated in the conspiracy because it

• Encouraged the companies to increase profit by focusing on pricing rather than efficiency;
• Rated highest-priced firms as “best” and lower-priced firms as “poorest”;
• Failed to stop deanonymization efforts; and
• Solicited major producers’ participation because its “paradigm” relied on industry-wide cooperation to “survive”.

It is noteworthy that in the In Re Broiler Chicken litigation, Agri Stats escaped liability on similar facts.  The Court noted that the facts were slightly different, such as Agri Stats adding the export sales data and that Agri Stats allegedly advised the companies to increase prices than efficiency, allowing the Court to distinguish the instant case from In Re Broiler Chicken.

Individual Liability: Only Hormel Escapes

Of the seven pork producers, only Hormel avoided liability—primarily because it refused to participate in Agri Stats’ sales reports and consistently declined to share pricing data with competitors. This abstention proved decisive, as the court viewed Agri Stats participation as the conspiracy’s most suspicious element.

All other defendants faced denial of their summary judgment motions based on varying combinations of:

• Agri Stats participation and sophisticated deanonymization efforts;
• Direct communications sharing competitively sensitive information;
• Public statements encouraging competitor coordination; and
• Evidence of coordinated production and export decisions.

Rule of Reason Claims Also Advance

The Court denied cross-motions for summary judgment on whether Agri Stats’ information exchange violated the rule of reason, finding genuine disputes about anticompetitive effects, procompetitive benefits, and less restrictive alternatives.

Notably, Plaintiffs argued that any procompetitive benefits (the second step in a rule of reason analysis) came at workers’ expense through wage suppression.  While the court found the wage suppression record underdeveloped, it acknowledged the theory’s potential significance for cross-market balancing analysis.  

Key Takeaways

Information Sharing Remains Dangerous.  This case illustrates the continued risk of information sharing arrangements, even when conducted through a third party that anonymizes the data.  Combined with the Department of Justice’s 2023 withdrawal of its guidance on information sharing, such exchanges may now become a popular target for plaintiffs’ lawsuits. 

Labor Claims Are on the Horizon.  The wage suppression theory’s emergence signals that labor market issues will increasingly intersect with traditional antitrust claims.  Indeed, the DOJ has previously filed a complaint alleging wage suppression for using Agri Stats in the Cargill Meat Solutions litigation, leading to five consent decrees.  This trend may intensify under the Trump’s administration, given its recent emphasis on using antitrust to protect workers.  

By David Lerch

In an opinion on April 30, 2025, in Epic Games, Inc. v. Apple Inc., N.D. Cal. No. 4:20-cv-5640-YGR, the District Court concluded that Apple willfully violated the Court’s previous injunction, imposed after a May 2021 trial between Epic Games and Apple. The Court had found in the 2021 trial that Apple’s 30 percent commission applied to In-App Purchasing (IAP) allowed it to reap supra-competitive operating margins not tied to the value of its intellectual property, and thus constituted an anti-competitive practice.  In the injunction the Court also had prohibited Apple from denying developers the ability to communicate with, and direct consumers to, other purchasing mechanisms.   The District Court concluded that following its injunction, Apple had continued its anticompetitive practices and: (1) had charged a 27 percent commission on off-app purchases, where it had previously charged nothing, and extended that commission for  seven days after the consumer linked out of the app; and (2) imposed new barriers and new requirements to increase friction and increase breakage rates with full page “scare” screens, static URLs, and generic statements to dissuade customer usage of alternative purchase opportunities.  The Court issued a civil contempt finding and also set referred the matter to the United States Attorney’s Office.

District Court’s Injunction In the 2021 injunction order, the District Court found that Apple’s initial commission rate of 30% allowed it “to reap supracompetitive operating margins.” (Order at 7). The Court stated that the rate was a historic relic not tied to intellectual property, and there was no actual commission charged for link-out transactions, then or in the past.  The court stated that, concerning Apple’s commission rate, Apple could not hide behind its lack of clarity on the value of its intellectual property and that not all functionality benefits all developers and noted that Apple has actually never correlated the value of its intellectual property to the commission it charges (Order at 7).  The court issued a one-page injunction that enjoined Apple’s anti-steering provisions, and provided in relevant part that Apple was permanently restrained and enjoined from prohibiting developers from (i) including in their apps and their metadata buttons, external links, or other calls to action that direct customers to purchasing mechanisms, in addition to In-App Purchasing [(“IAP”)] and (ii) communicating with customers through points of contact obtained voluntarily from customers through account registration within the app (Order at 7). 

Ninth Circuit Affirms Injunction in Part On April 24, 2023, the Ninth Circuit affirmed this Court’s holding concerning the UCL and agreed that Epic had standing, that Apple violated the “unfair” prong of the UCL, and that injunctive relief was appropriate. (Order at 8, citing Epic Games, Inc. v. Apple Inc., 67 F.4th 946, 999 (9th Cir. 2023)).  The Ninth Circuit reversed this Court, however, as to Apple’s ability to recover attorneys’ fees under the DPLA.  As to the merits of Apple’s UCL violations, Apple did not directly challenge this Court’s application of the UCL’s tethering and balancing tests, instead arguing that: (i) the UCL’s “safe harbor” doctrine insulates its liability because Epic failed to establish Sherman Act liability, and (ii) two principles from Sherman Act case law preclude UCL liability.  Id. at 1001–02. The Ninth Circuit rejected both. First, as to the safe-harbor doctrine, Apple failed to cite any case that “when a federal antitrust claim suffers from a proof deficiency, rather than a categorical legal bar, the conduct underlying the antitrust claim cannot be deemed unfair pursuant to the UCL.” Id. at 1001. Second, the Ninth Circuit concluded that the Supreme Court’s decision in Ohio v. Am. Express Co., 585 U.S. 529, 549 (2018) was distinguishable (Order at 9).

District Court Findings Regarding Apple’s 2024 Response to the Injunction The Court stated that Apple chose to comply with the court’s injunction with the following five categories of changes that Apple imposed: (1) a 27% commission on link-out purchases, (2) new external purchase link placement and design restrictions, (3) requirements that induce purchase-flow friction, (4) limitations on developers’ ability to use calls to action, and (5) exclusion of certain programs utilized by large developers from the Link Entitlement (Order at 13).  The Court noted that, ultimately, Apple’s 2024 response to the injunction was the most anticompetitive option that Apple had considered: a link entitlement program that included both placement restrictions and a 27% commission.  Furthermore, the District Court stated that Apple’s notes reflect uncertainty about whether it could in fact impose a commission without violating the injunction (Order at 19). In one slide deck, Apple’s notes explain that “[i]f we decided and had the ability to charge a commission, we believe there would be very little developer adoption of link-out, assuming a scenario where we would give a cost of payments discount at 3%.” (Order at 19).   In addition, the Court noted that Apple has chosen not to value its intellectual property, and because developers’ external costs would exceed 3% when utilizing linked-out transactions, Apple’s 27% commission on linked-out transactions renders every linked-out transaction more expensive to a developer than an IAP transaction at 30% commission (Order at 19).

The Court also stated that Apple’s restrictions on link placement and design came in two flavors: (i) limits on placement of links for a linked-out purchase in the purchasing flow, and (ii)  permitting a “button”-style link (Order at 26).  The Court found that Apple’s security-related justifications were pretextual, and noted that as of the May 2024 hearing, only 34 developers out of the approximately 136,000 total developers on the App Store applied for the program, and seventeen of those developers had not offered in-app purchases in the first place (Order at 45).

Apples’s Rule 60(b) Motion The District Court also rejected Apple’s Rule 60(b) motion for relief from judgment.   Apple argued that it was entitled to relief based on Beverage v. Apple, Inc., 320 Cal. Rptr. 3d 427 (Cal. Ct. App. 2024)  in which the trial court granted Apple’s demurrer, finding that plaintiffs failed to state a claim under the Cartwright Act and the “unlawful” prong of the UCL as a matter of law because they alleged only unilateral conduct by Apple, which was immunized from antitrust liability under Colgate, and the claim for violations of the “unfair” prong of the UCL was then barred by Chavez.  The District Court concluded that Beverage does not warrant setting aside the Court’s injunction because: (1) Beverage did not change California law, and (2) this Court’s judgment does not conflict with Beverage, because neither this Court nor the Ninth Circuit have held that Apple’s conduct at-issue in this case is immune from antitrust liability under the Colgate doctrine (Order at 49-51).  

The District Court rejected Apple’s motion for relief from judgment based on Murthy v. Missouri, 603 U.S. 43 (2024), noting that Apple conflated two issues: whether Epic has standing to obtain an injunction, and the appropriate scope of that injunction. The Court stated as to Epic’s standing, while Murthy articulates the applicable legal framework at a high level, Murthy neither changes that framework nor addresses the foundation of Epic’s standing to challenge Apple’s anti-steering provisions, i.e., injury to Epic as a competing game distributor and injury to Epic’s subsidiaries’ earnings. See Epic Games, Inc., 67 F.4th at 1000.  As to the appropriate scope of an injunction once a party has established standing, Murthy provides no instruction because Murthy did not reach that distinct question (Order at 54).

Civil Contempt Finding The Court stated that it could hold Apple in civil contempt if Apple violated “a specific and definite court order by failure to take all reasonable steps within the party’s power to comply” (Order at 55, citing In re Dual- Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). “[T]he party alleging civil contempt must demonstrate by clear and convincing evidence that (1) the contemnor violated a court order, (2) the non-compliance was more than technical or de minimis, and (3) the contemnor’s conduct was not the product of a good faith or reasonable interpretation of the violated order.” Facebook, Inc. v. Power Ventures, Inc., 2017 WL 3394754, at *8 (N.D. Cal. Aug.8, 2017).  The Court found that the evidence clearly and convincingly demonstrated that Apple willfully chose to ignore the injunction, willfully chose to create and impose another supracompetitive rate and new restrictions, and thus willfully violated the injunction (Order at 58-59).  In particular, the Court stated that Apple was tasked with valuing its intellectual property, not with reverse engineering a number right under 30% that would allow it to maintain its anticompetitive revenue stream (Order at 60). Apple ignored this opportunity, choosing instead to retroactively justify the desired end result. The Court noted that for button styles, Apple limits developers to what Apple calls the “plain” button style— essentially just a hyperlink—because Apple does not want the developers to use the more effective “button.” A more effective button would increase competition.  Similarly, Apple limits calls to action to five, narrowly cabined templates.  Nowhere does the Court authorize those limitations. At a minimum, the Court need not decide whether these restrictions alone violate the injunction, because Apple has violated the central mandate of this Court’s orders: that Apple not foreclose competitive alternatives to IAP (Order at 62).

Apple’s Motion for Indemnification The District Court noted that the Ninth Circuit had reversed the Court insofar as the DPLA’s indemnification provision requires Epic to pay Apple’s attorneys’ fees related to this litigation, specifically as to Apple’s counterclaim for breach of contract. (Order at 67, citing Epic Games, Inc., 67 F.4th at 1004). However, the panel expressed no opinion on what portion of Apple’s attorney fees incurred in this litigation can be fairly attributed to Epic’s breach of the DPLA.”  On the day Apple’s petition for certiorari was denied, Apple moved for entry of judgment on its indemnification counterclaim, seeking an adjusted, discounted total of $73,404,326 in attorneys’ fees and costs.  The Court declined to attempt an estimate in the first instance and stated that Apple bears the burden of identifying those attorneys’ fees and costs that it can attribute solely to the breach of the DPLA and/or its defense against Epic’s Sherman Act claims that did not overlap with its defense of Epic’s Cartwright Act claims (Order at 72).   If the parties cannot agree on the reasonable amount of attorneys’ fees and costs, the Court ordered the issue referred to a special master of the parties’ choosing under Rule 54(d)(2)(D) (Order at 74).

Sanctions Based on Privilege Designations and Criminal Referral  The Court further found that Apple’s abuse of attorney-client privilege designations to delay proceedings and obscure its decision-making process justified sanction to deter future misconduct and sanctioned Apple the full cost of the special masters’ review and Epic’s attorneys’ fees on this issue alone through approximately May 15, 2025 (Order at 76).

In addition, the Court noted that in stark contrast to Apple’s initial testimony, contemporaneous business documents reveal that Apple knew exactly what it was doing and at every turn chose the most anticompetitive option, and the Court stated that Apple Vice-President of Finance, Alex Roman, outright lied under oath (Order at 2).  The Court set forth a referral under Rule 42(a)(2) of the Federal Rules of Criminal Procedure to the United States Attorney for the Northern District of California for investigation against Apple and Alex Roman, and specifically took no position on a criminal prosecution (Order at 78).

By Eric A. Rivas

Fed. Trade Comm’n v. Microsoft Corp., No. 23-15992, 2025 WL 1319069 (9th Cir. May 7, 2025)

Overview

On May 7, 2025, the Ninth Circuit Court of Appeals affirmed the district court’s denial of the Federal Trade Commission’s (FTC) motion for preliminary injunctive relief against Microsoft’s acquisition of Activision Blizzard, Inc.  The FTC argued that the merger would likely violate section 7 of the Clayton Act by substantially lessening competition in the markets for gaming console devices, gaming subscription services, and gaming cloud-streaming services.  The Ninth Circuit held that the district court applied the correct legal standards and did not abuse its discretion in finding that the FTC failed to demonstrate a likelihood of success on the merits.

Procedural Background

Microsoft announced its acquisition of Activision Blizzard for $68.7 billion on January 18, 2022.  The FTC began investigating the merger and filed an administrative complaint on December 8, 2022.  Concurrently, the FTC sought a preliminary injunction in the district court to prevent the merger from closing.  After a five-day evidentiary hearing, the district court denied the FTC’s motion on July 10, 2023, finding that the FTC had not raised serious questions about whether the merger would substantially lessen competition.  The FTC appealed, and the Ninth Circuit denied the FTC’s emergency request for an injunction pending appeal.

Factual Background

Microsoft is a major player in the gaming industry that both manufacturers gaming consoles (e.g., Xbox) and develops video games.  Activision Blizzard, known for popular franchises like Call of Duty, develops and publishes games without manufacturing gaming consoles.  The gaming industry includes console manufacturers like Microsoft, Sony, and Nintendo, as well as subscription services and cloud gaming platforms.  The FTC’s concerns centered on Microsoft’s potential to leverage Activision Blizzard’s gaming content (including the Call of Duty franchise) to foreclose competition in three alleged domestic markets: the console market, the subscription services market, and the cloud-streaming market.

Discussion

Applicable Legal Standard The FTC first argued that the district court applied the incorrect standard under section 13(b) of the Federal Trade Commission Act.  The court disagreed, however, pointing to the district court’s framing of the FTC’s burden to “raise[] questions going to the merits so serious, substantial, difficult and doubtful as to make them fair ground for thorough investigation, study, deliberation and determination by the FTC in the first instance and ultimately by the Court of Appeals.”  FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1162 (9th Cir. 1984).  The court also rejected the FTC’s argument that the district court improperly resolved conflicts in the evidence because that assertion was based on a misreading of Warner.  Instead, the Ninth Circuit in Warner made clear that a district court may properly make factual findings and a preliminary assessment of the merger’s impact on competition, but may not make a final determination on whether the proposed merger violates section 7 of the Clayton Act.

Console Market The FTC argued that Microsoft might make Call of Duty exclusive to Xbox, thereby reducing competition in the console market.  The district court found that Microsoft lacked the incentive to foreclose rivals by making Call of Duty exclusive, as the record showed that cross-platform play is critical to the franchise’s success.  Indeed, evidence showed that there are significantly more Call of Duty players on PlayStation than on Xbox, leading to twice the amount of revenues from PlayStation than from Xbox.  The court also noted that Microsoft’s internal analyses relied on PlayStation sales post-acquisition, and there was no evidence contradicting Microsoft’s commitment to keep Call of Duty available on PlayStation.  In comparison to this evidence, the FTC failed to identify any instance in which an established multiplayer, multi-platform game with cross-play has been withdrawn from gamers and made exclusive. 

Subscription Services Market The court affirmed the district court’s finding that, even if Call of Duty might be exclusive to Microsoft’s Game Pass post-merger, that would not substantially lessen competition.  Activision Blizzard had historically resisted subscription services, and thus the merger would make its content available for the first time, even if exclusive to Microsoft.  The court found that merely showing that some content will be exclusive post-merger does not, without more, establish that competition will be substantially lessened because the relevant question under Brown Shoe is whether the merger will lead to foreclosure of a share of the market otherwise open to competitors.  The FTC failed to show that Activision Blizzard’s content would otherwise be available to competitors absent the merger.

Cloud-Streaming Market The court affirmed the district court’s rejection of the FTC’s claim that the merger would substantially lessen competition in cloud gaming.  Activision Blizzard had not allowed its games on streaming services, except for one instance in which it temporarily allowed some titles to be available for play on Nvidia’s beta test so long as gamers already owned the titles.  Thus, the FTC did not sufficiently demonstrate that Activision Blizzard’s content would be available to competitors absent the merger.  The court upheld the district court’s finding that the FTC’s evidence on this point was weak and insufficient to establish a likelihood of success.

Conclusion

The Ninth Circuit affirmed the district court’s denial of the FTC’s motion for a preliminary injunction, holding that the FTC failed to demonstrate a likelihood of success on the merits of its section 7 claim.  The court emphasized that merely showing exclusivity after a vertical merger does not establish a substantial lessening of competition without more evidence of competitive harm.  The decision underscores the challenges in proving anticompetitive effects in vertical mergers, particularly in dynamic industries like gaming.

By Maria Ramirez  

On April 17, 2025, the United States District Court of Virginia ruled that Google has willfully engaged in anticompetitive acts to maintain monopoly power over the Publisher Ad Server and Ad Exchange market for open-web display advertising.

BACKGROUND

The United States Department of Justice and seventeen states brought a civil antitrust action against Google LLC, alleging monopolization of (i) the Publisher Ad Server market, (ii) the Ad Exchange market, and (iii) the Advertiser Ad Network market, in violation of Section 2 of the Sherman Act. Plaintiff also alleged unlawful tying in violation of Sections 1 and 2 of the Sherman Act. They sought monetary damages from Google’s violations of antitrust laws, and divestiture of Google’s Publisher Ad Server and Ad Exchange products and attorneys’ fees.

The United States’ damages claim was mooted after Google tendered full monetary compensation ($2.29 million). The Court struck the jury demand and dismissed this count.

MONOPOLIZATION CLAIM

The Court highlighted that antitrust laws protect competition, not competitors and applied the two-part monopolization test: “(i) possession of monopoly power in the relevant market and (ii) willful acquisition or maintenance of that power through exclusionary conduct.

Google denied monopolizing separate ad tech markets, arguing instead for one unified, two-sided market that includes all digital ad types. It also disputed Plaintiffs’ global market definition.

Market Definition

Product Market: Publisher Ad Server Market (DFP). The Court determined that Publisher Ad Server for open-web display was a distinct product market. These tools are uniquely designed for large web publishers to manage and monetize their ad inventory, offer specific features, and are priced differently from other ad tech tools. Evidence showed they are not reasonably interchangeable with other ad tools like Ad Exchanges, in-app or social media ad servers, or in-house solutions. Due to limited alternatives, a monopolist in this market could raise prices or reduce quality without losing significant customers.

Ad Exchange Market (AdX). The Court found that Ad Exchanges for open-web display were also a distinct product market. These platforms uniquely connect publishers with advertisers in real-time auctions, are priced differently, and are recognized as separate from other ad tech tools. No alternative tool offers the same functionality, and publishers cannot easily substitute away from Ad Exchanges. Despite Google’s argument for a broader market, the Court concluded that only Ad Exchanges for open-web display were viable substitutes.

Advertiser Ad Network Market.  The Court rejected Plaintiffs’ proposed market definition of Advertiser Ad Network for open-web display advertising as a distinct relevant product market. “Advertiser ad networks” is not a term commonly used in the industry and artificially separates the ad network’s buy-side from the sell-side. Ad networks are two-sided platforms that serve advertisers and publishers, and industry participants do not typically distinguish between their buy-side and sell-side components.  Advertisers frequently reallocate spending across digital advertising channels such as in-app ads, walled gardens, and social media, based on performance and return on investment. Plaintiffs’ market definition failed to reflect consumer substitutability.

Google’s contention that the Entire Ad Tech Ecosystem Fits within a Two-Sided Market. The Court rejected Google’s argument that the entire digital advertising ecosystem should be treated as a single two-sided market under Amex. While Amex applies to “two-sided transaction platforms” like credit-card networks (where both sides of the platform simultaneously interact), the Court found that many digital ad tech tools, such as Publisher Ad Servers and demand-side platforms, do not meet that definition. These tools serve only one side of the market and are not interchangeable with each other. Digital advertising tools in this case do not involve simultaneous transactions between advertisers and publishers.  Google’s proposed all-encompassing market would ignore the distinct functions, pricing, and customers of these products and would contradict antitrust principles that require markets to reflect actual competition. Although ad exchanges do function as two-sided transaction platforms and will be evaluated as such, the Court concluded that most other ad tech tools should be analyzed in distinct product markets. In fact, in another case, Google itself argued that combining advertiser-facing and publisher-facing tools into a single market was improper because the products were “distinct” and used by different consumers.

Geographic Market. The Court determined that the relevant geographic market for both Publisher Ad Server and Ad Exchanges in open-web display advertising is worldwide, based on commercial realities and the global nature of the digital advertising ecosystem.

Monopoly Power

Publisher Ad Server. The Court concluded that there was direct evidence that Google has monopoly power in the Publisher Ad Server market, primarily through its product DFP, which has maintained a 91-93.5% global market share for several years. Additionally, there are substantial barriers to entry and expansion, including technical complexity of building an ad server and the high switching costs publishers face, often described in the evidence as extremely burdensome and rarely undertaken. Google’s internal documents and third-party witnesses confirmed that DFP is the default and dominant choice in the industry. Even large rivals like Meta, OpenX, and Kevel failed to compete or exit the space due to these obstacles. Despite making unpopular changes to DFP’s features (like limiting pricing options), publishers did not switch, reinforcing Google’s dominant position.

Ad Exchange. The Court concluded that Google possesses monopoly power in the Ad Exchange market for open-web display advertising, primarily through its product AdX, which has maintained a 20% take rate on transactions for over a decade. That rate is twice as high as competitors like IndexExchange, Magnite, and Xandr. Despite lower-priced alternatives, customers have largely remained with AdX, underscoring Google’s market power. The Court found internal studies  confirmed that even a 25% reduction in take rate would not meaningfully impact customer retention, further proving that AdX could sustain supracompetitive pricing without losing market share. AdX’s dominance is also reinforced by exclusive access to AdWords demand, making AdX a “must call” for publishers and a technical integration with Google’s DFP, and limiting rival access.  

Willful Acquisition or Maintenance of Monopoly Power.

The Court concluded that the Plaintiffs failed to show the anticompetitive effects of Google’s acquisitions, but they proved that Google violated antitrust laws by tying its DFP to its AdX to exclude rivals, and using its dominant position to weaken competitors and harm customers.

Acquisition of DoubleClick and Admeld. The Court found that Google’s acquisitions were not anticompetitive and were part of valid business reasons. They served legitimate business purposes and were not executed with exclusionary intent.

Tying DFP to AdX. The Court held that Google unlawfully tied its Publisher Ad Server to its Ad Exchange, violating Sections 1 and 2 of the Sherman Act.  The Court found that AdX and DFP are two different products, where AdX is the tying product and DFP is the tied product.

Google technically and contractually restricted access to real-time AdX bids only to publishers who used DFP. This forced publishers to adopt DFP if they wanted access to AdX’s core functionality. Moreover, Google’s market power in the Ad Exchange market is nine times larger than the next competitor and the AdX-DFP tie affected billions of dollars in digital advertising revenue across the U.S. and globally.

Entrenching Monopoly Power with Anticompetitive Actions

The Court further found that Google used its monopoly power in the Publisher Ad Server and Ad Exchange markets to implement a series of anticompetitive policies that harmed both competition and its publisher customers. These policies included First Look, which gave Google’s AdX a preferential position in DFP’s auction process; Last Look, which allowed AdX to see rival bids before placing its own, creating unfair advantages; Dynamic Revenue Share, which used bidding data to undercut competitors; and Unified Pricing Rules, which stripped publishers of pricing flexibility and further locked them into Google’s ecosystem. Collectively, these practices exploited the AdX-DFP tie, entrenched Google’s dominance, and reduced market competition—constituting unlawful anticompetitive conduct under the Sherman Act.

Google’s Contention that Refusal to Deal Precedent Precludes Liability

The Court rejected Google’s argument of Trinko, and held the refusal to deal doctrine from Trinko does not apply to Google’s conduct in this case for several reasons. First, Trinko addressed a monopolist’s refusal to deal with rivals, whereas Google’s conduct involved imposing coercive conditions on its own customers, specifically tying its Publisher Ad Server to its Ad Exchange. The Court noted there is a significant difference between such anticompetitive restrains on customers (like tying or exclusive dealing) and simple refusals to deal with competitors. Second, Trinko occurred in a heavily regulated industry, where the regulatory framework already provided oversight and remedies for anticompetitive behavior; no such regulation exists in Google’s ad tech market, making antitrust enforcement necessary and appropriate. Third, unlike Trinko, where the defendant’s conduct did not suggest long-term strategic harm to rivals, Google sacrificed short-term profits- such as by shutting down some Admeld’s features or refusing to allow AdWords to bid across non-Google exchanges, in order to eliminate competition and maintain its monopoly. That conduct mirrors the exclusionary behavior in Aspen Skiing, which the Supreme Court recognize as an exception to Trinko.

The Court concluded that Google’s actions were rooted in coercion, exclusion, and a deliberate effort to suppress rivals and fall outside the limited protections of the Trinko doctrine and support antitrust liability under the Sherman Act.

Google’s Contention that Its Conduct is Protected by Procompetitive Justifications.

Google argued that its conduct, including tying its Publisher Ad Server to its Ad Exchange and implementing policies like First Look, Last Look, and Unified Pricing Rules, was justified as a pro-competitive product design to improve security, reduce latency and fraud, and increase publisher revenue. Nevertheless, the Court found that those justifications were unpersuasive.

CONCLUSION

After a three-week bench trial, the Court found that Google violated Section 2 of the Sherman Act by unlawfully maintaining monopoly power in the markets for Publisher Ad Server and Ad Exchange. Furthermore, Google violated Sections 1 and 2 of the Sherman Act through the unlawful tying of its dominant Publisher Ad Server to its Ad Exchange. The Court concluded that Google’s conduct foreclosed competition, harmed publishers, and entrenched its dominance in the digital advertising ecosystem.

By James Dugan

Last month, Judge Jose E. Martinez of the U.S. District Court for the Southern District of Florida denied the Burger King Defendants’ (“Burger King”) motion to dismiss a putative class action alleging that its “No-Hire” agreements violate Section 1 of the Sherman Act.  The Court had previously dismissed the case on the grounds that Plaintiffs failed to allege that Burger King and its franchisees were separate economic actors, but Judge Martinez was reversed by the Eleventh Circuit.  Ruling again on the remanded proceedings, the Court found a plausibly alleged conspiracy. 

As alleged, Burger King executes a standard contract with franchisees that includes a “No-Hire Agreement” which prohibits the entities “from attempting to poach any current employee of [Burger King] or another Burger King franchisee or hire any employee . . . for six months after the employee leaves its first Burger King restaurant . . ..”  (2). 

The plaintiffs, all employees at one time of Burger King franchise restaurants, alleged “that through the No-Hire Agreement, the “franchisees, at the direction of and with the assistance of Burger King itself, have together colluded to depress wages and employment opportunities of employees who work in Burger King branded restaurants through[out] the United States.”  (3).  Plaintiffs claimed that this constituted a per se Section 1 violation, but alternatively claimed that a quick look analysis would reach the same result. 

Burger King moved to dismiss on three grounds:

1. Plaintiffs failed to state a claim under Section 1 of the Sherman Act;
2. Plaintiffs failed to plausibly allege that Defendants engaged in wrongful conduct; and
3. claims prior to October 2014 were time barred.

Notably, the Court declined to opine on whether a per se, quick look, or full-blown rule of reason analysis was proper in this case.  Nonetheless, or perhaps somewhat counterintuitively, the Court concluded that a claim was plausibly alleged “under both the per se rule and quick look analysis,” but cautioned that “more factual development is necessary to determine which standard of review will apply to the No-Hire Agreement.”  (6).  Thus, one of the important takeaways from the opinion may be that caution must be exercised before presuming that surviving a motion to dismiss under a per se allegation will necessarily mean that the per se rule will continue to be the standard at later stages of the lawsuit. 

Moving on to the second ground for dismissal, the Court—perhaps exercising a guided caution from the Eleventh Circuit—concluded that “Plaintiffs sufficiently allege that each Defendant played a role in the purported conspiracy.”  (6).  On remand, there was no discussion of whether the entities were separate economic actors and thus a swift conclusion that “Plaintiffs’ allegations are sufficient to allow this Court to reasonably infer the involvement of all Defendants in the purported conspiracy.”  (7).

Lastly, the Court rejected Defendants’ argument that pre-October 2014 claims were time barred, finding that Plaintiffs sufficiently pled fraudulent concealment.  Of note here is the Court rejected Burger King’s argument that there could not be fraudulent concealment because “the franchise agreements were readily accessible.”   (8).  Siding with Plaintiffs, the court found plausible allegations that despite this, “Burger King concealed its misconduct in many ways,” including by misrepresentations made to prospective employees to lead them to believe that their employment would not be “constrained by the No-Hire Agreement . . ..”  (8).  Both sides of the Antitrust Bar may find this reasoning notable when contemplating their Statute of Limitations arguments.

In sum, and in a pleasant reversal for former Burger King employees, another no-poach antitrust case will proceed past the motion to dismiss stage.  Judge Martinez’s opinion joins the rapidly, and rockily, developing body of case law that applies antitrust principles to the market that matters most to working Americans—the labor market. 

By Joshua Sinensky

Factual and Procedural Background

Plaintiff Rumble, Inc. operates an online video platform that allows content creators to post videos, which Plaintiff makes available to various companies and social media websites to generate advertising revenue.  In January 2021, Plaintiff filed a complaint against Defendant Google Inc. for alleged monopolization and attempted monopolization under 15 U.S.C. §2. 

Rumble alleged Google had engaged in two distinct forms of anti-competitive conduct. Firstly, Plaintiff alleged that Defendant, through manipulating algorithms, “self-preferentially” lists Google search results to ensure that videos hosted on YouTube, Defendant’s video platform, are listed first.  Id. at 2.  Secondly, Plaintiff alleged that Google engaged in exclusionary agreements with manufacturers of Android-based devices to ensure that YouTube is pre-installed on the home page of such devices.  As a result of these self-preferencing actions and exclusionary agreements, Rumble claimed that Google was able to unfairly direct a large amount of traffic to YouTube and extract an unfair monopoly profit from ad revenue generated by video views.  But-for this anti-competitive conduct, Plaintiff alleged, potentially as many as 9.3 billion users would have been directed through a Google search to videos on the Rumble platform instead of YouTube, and they sought more than $2 billion in damages for this lost revenue.  Id. at 3.  In front of U.S. District Judge Haywood S. Gilliam Jr. was Google’s motion for summary judgment based on the theory that Rumble’s claim was time-barred by the antitrust statute of limitations.

Statute of Limitations claim

As a threshold matter, Defendant argued that Plaintiff’s claim was time-barred by the four-year statute of limitations for Antitrust claims.  Plaintiff countered, arguing that the statute of limitations defense wasn’t presented at the motion to dismiss stage, and it, therefore, wasn’t appropriate to consider it at the summary judgment juncture.  The court dismissed Plaintiff’s objections by citing 9th circuit precedent Jablon, which allowed a statute of limitations defense “raised by a motion for dismissal or by summary judgment motion”, and allowed the claim to be considered. Id. at 4.

Defendant’s argued that since the alleged conduct began in April 2014, the claim accrued then, and Rumble was 3 years late in filing by January of 2021.  Plaintiff initially attempted to dismiss this contention  by arguing that for the claim to accrue, and the 4-year clock to begin to tick, “actual or constructive” knowledge of the anti-competitive conduct is required.  The court dismissed this objection, pointing out that the “discovery” rule is inapplicable to antitrust claims, making “actual knowledge” irrelevant, and accrual, therefore, began “on the date on which the injury occurs.” Id. at 4-6 quoting Zenith Radio Corp. v. Hazeltine Rsch., Inc.. Subsequently, Plaintiff argued that the statute of limitation was tolled, either because of Google’s “fraudulent concealment” or, in the alternative, the “continuing self-preferencing” of the Defendant constituted “continuing violations.” Id. at 5.  Defendant, in turn, argued that any fraudulent concealment claim was not pled and that the “continuing violations” doctrine was inapplicable because Plaintiff did not show any “new and independent activity” committed by Defendant within the statute of limitations period.  Id.

Fraudulent Concealment

The court ultimately sided with the Defendant, holding that because the plaintiffs had failed to raise the fraudulent concealment tolling argument at the pleading stage, it couldn’t be raised at the summary judgment stage.  The court found this general rule applicable even when the tolling argument, not initially pled, was raised in opposition to summary judgment.  Id. at6; See Wasco Prods., Inc. v. Southwall Techs.  Inc.,. The court reasoned that due to the facially obvious timing issue Plaintiff should have raised the concealment claim at the pleading stage. Id. at 7.  

The court went further pointing out that even assuming there was no requirement for the concealment claim to be raised at the pleading stage, Plaintiff had not shown a genuine dispute as to material facts as necessary to uphold a fraudulent concealment claim at the summary judgment juncture. Because the basis of Plaintiff’s claim was the “Honest Results policy” that Google had circulated amongst its employees, due to its non-public nature, there was no explanation for how Rumble would have reasonably relied on it in delaying their claim. Id. at 8. Thus, Rumble failed to show how “its failure to have a claim was the result of Defendant’s affirmative conduct.” Id. at 9. Furthermore, even assuming the report was publicly available, the court found the statements contained within it didn’t amount to an affirmative denial that would equate to a “direct public denial of any wrongdoing.” Id.

Secondly, Plaintiff tried to argue that statements from Google’s expert economist, Dr. Murphy, purportedly “stressed the image of Google Search that the company had promulgated.” Id. The court found that this was inadequate as the statements neither “were defendants’ public statements about Google search, nor were they, “affirmative denials of self-preferencing.” Id. The court also found that the plaintiffs fell short in procuring any evidence of affirmative denials to support its claim  Google had entered into exclusionary contracts.  The court, therefore, found Plaintiff both (1) failed to plead fraudulent concealment as required and (2) failed to identify evidence on which a reasonable jury could rely to find that Defendant affirmatively misled it regarding the alleged self-preferencing or allegedly exclusionary contracts, such that it was reasonably delayed in bringing an antitrust suit based on either theory, and thus failed to establish fraudulent concealment as a matter of law. Id. at 10-11.

Continuing Violations

“To state a continuing violation of the antitrust laws in the Ninth Circuit, a Plaintiff must allege that a defendant completed an overt act during the limitations period that meets two criteria: 1) It must be a new and independent act that is not merely a reaffirmation of a previous act, and 2) it must inflict new and accumulating injury on the Plaintiff.'” See Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199, 1202 (9th Cir. 2014).

 To overcome their burden of showing continuing violations, Plaintiff’s single-sentence attempt stated that Defendant’s “continuing self-preferencing of YouTube and continued monopolization via the Android Agreements over several years constitute continuing violations that, as a matter of law, restart the limitations period.” Id. at 11.  The court, however, found this utterly insufficient, stating: “Rumble does not address the required elements of the continuing violations doctrine and the ‘overt act’ test, or articulate how Defendant alleged ‘continuing self-preferencing of YouTube and continued monopolization via the Android Agreements,’ amounted to new and independent acts committed during the limitations period that inflicted new injury on Plaintiff.”  Id. at 12. The court concluded Plaintiff’s failure to support its conclusory theory with specific facts and “at least some significant, probative evidence” in the record was fatal on summary judgment as a matter of law. Id. at 16.

In sum, the court found Google met its burden of showing that there was no genuine dispute of material facts as to whether the statute of limitations accrued more than four years previously, and Rumble had failed to identify any evidence on which a reasonable jury could rely to find that an exception to the statute of limitations applied.  Therefore, the court granted summary judgment because the Plaintiff’s claim was time-barred.  Id. at 16.

By Wesley Sweger

Trump’s so-called “One, Big, Beautiful Bill” (H.R. 1) may significantly restrict state and local governments’ ability to regulate algorithmic pricing tools.

Algorithmic pricing refers broadly to the automated setting of prices using computer algorithms that analyze market data to generate pricing recommendations. The practice raises substantial antitrust concerns when used by competitors in a coordinated fashion.

A prominent example is RealPage, a property management software company that provides algorithm-driven rent recommendations to landlords. RealPage’s platform aggregates commercially sensitive data—such as occupancy rates, pricing, and lease terms—submitted by its clients. It then uses this data to generate pricing suggestions across its user base, many of which are direct competitors in the same rental market. The practice has drawn intense antitrust scrutiny, including a lawsuit by the Department of Justice, which alleges the software facilitates unlawful price coordination in violation of Section 1 of the Sherman Act.

In response to such concerns, several cities, including San Francisco, Philadelphia, Minneapolis, and Berkeley, have moved to ban or restrict the use of algorithmic rent-setting tools. At the state level, similar legislative efforts have emerged in Colorado, California, Texas, Kentucky, and New York, to name a few.

H.R. 1, however, threatens to preempt those efforts. The Bill, while primarily a budget and tax reform measure, includes a provision (Section 43201) that would bar state and local governments from regulating AI systems, including algorithmic pricing tools, for a period of ten years.

Specifically, the Bill states: “This section prohibits states and localities from limiting, restricting, or otherwise regulating artificial intelligence (AI) models, AI systems, or automated decision systems entered into interstate commerce for 10 years.”

As of this writing, the Bill has narrowly passed the House and is awaiting consideration in the Senate. If enacted, it could hamper efforts by state and local governments to rein in the competitive risks posed by algorithmic pricing tools.

Tuesday, June 17, 2025

The Proposed Settlement Requires a Substantial Divestiture Package That Will Preserve Competition for Critical Flight Control Components

The Justice Department’s Antitrust Division announced today that it will require Safran, S.A. and Safran USA Inc. (Safran) to divest its North American actuation business and related assets to resolve antitrust concerns arising from its proposed $1.8 billion acquisition of Collins Aerospace’s actuation and flight control business from RTX Corporation (RTX) (formerly Raytheon Technologies). The divestiture resolves concerns that the transaction would recombine assets that were divested as part of the Division’s settlement of United Technologies Corporation’s (UTC) acquisition of Rockwell Collins in 2018. UTC merged with Raytheon Company in 2020, forming Raytheon Technologies.

The Antitrust Division filed a civil antitrust lawsuit in the U.S. District Court for the District of Columbia to block the proposed transaction. At the same time, the Division filed a proposed settlement that, if approved by the court, would resolve the Division’s competitive concerns.

*       *       *

The proposed settlement requires Safran to divest its North American actuation business, including THSAs and secondary flight control actuators, and its Canada-based electronic control unit, to Woodward Inc., an American company with significant experience in the aerospace industry, including serving large aircraft manufacturers. The divestiture assets also include the tangible and intangible assets necessary to produce and sell THSAs, secondary flight control actuators, and electronic control units. Woodward is expected to hire certain key Safran employees that today support the divested business lines.

The Antitrust Division, the European Commission, and the Competition and Markets Authority cooperated closely throughout the course of their respective investigations.

Wednesday, June 11, 2025

Carlos Martinez, 39, of Mission, Texas, was sentenced today to 11 years in prison and a fine of $2 million for his conduct in a long-running and violent conspiracy to monopolize the transmigrante forwarding agency (TFA) industry in the Los Indios, Texas, border region. Martinez and his co-defendants controlled the TFA industry through monopolization and extortion of competitors.

Transmigrantes transport used vehicles and other goods from the United States through Mexico for resale across Central America. There are only a few locations where transmigrantes are permitted to cross from the United States into Mexico, one of those being the Los Indios Bridge in Texas. TFAs are U.S.-based businesses that provide services to transmigrante clients, including helping clients complete the customs paperwork required to export vehicles into Mexico. According to court documents and statements made in court, Martinez and his co-defendants fixed prices for TFA services and created a centralized entity known as “The Pool” to collect and divide revenues among the conspirators, limit competition from other agencies, and increase prices for their services.

*       *       *

Martinez was responsible for collecting at least $9.5M in extortion payments. Cash obtained from the extortions was laundered through bank accounts controlled by Martinez and his family, with the cash deposits disguised to hide the nature, source, ownership, and control of the dirty money.

*       *       *

The Court will determine the final restitution amount owed to victims of the conspiracies at a hearing set for Sept. 3, 2025. 

Thursday, May 22, 2025

Today, the Justice Department, joined by the Federal Trade Commission (the “Agencies”) filed a statement of interest in the Eastern District of Texas in the case of Texas et al. v. BlackRock, Inc. The States’ lawsuit—led by the Texas Attorney General—alleges that BlackRock, State Street, and Vanguard used their management of stock in competing coal companies to induce reductions in output, resulting in higher energy prices for American consumers. This is the first formal statement by the Agencies in federal court on the antitrust implications of common shareholdings.

*       *       *

The Antitrust Division routinely files statements of interest and amicus briefs in federal court where doing so helps protect competition and consumers, including by encouraging the sound development of the antitrust laws. A collection of these statements of antitrust and amicus filings is publicly available on the Division’s website. 

June 23, 2025

Today, the Federal Trade Commission took action to resolve antitrust concerns related to Omnicom Group Inc.’s $13.5 billion acquisition of The Interpublic Group of Companies, Inc. (IPG).

The FTC accepted a proposed consent order that will prevent potential anticompetitive coordination by Omnicom, a global advertising agency that facilitates media buying by representing advertisers in negotiations with media publishers over conditions such as pricing, ad placement, and sponsorships, as well as helping execute advertisers’ ad campaigns.

Omnicom and IPG are the third- and fourth-largest media buying advertising agencies in the U.S. Combined, they will be the world’s largest media buying advertising agency. The proposed order imposes restrictions that prevent Omnicom from engaging in collusion or coordination to direct advertising away from media publishers based on the publishers’ political or ideological viewpoints.

“Websites and other publications that rely on advertising are critical to the flow of our nation’s commerce and communication,” said Daniel Guarnera, Director of the FTC’s Bureau of Competition. “Coordination among advertising agencies to suppress advertising spending on publications with disfavored political or ideological viewpoints threatens to distort not only competition between ad agencies, but also public discussion and debate. The FTC’s action today prevents unlawful coordination that targets specific political or ideological viewpoints while preserving individual advertisers’ ability to choose where their ads are placed. I thank the FTC staff for their thorough investigation of this merger.”

The proposed consent order resolves an FTC complaint alleging that Omnicom’s acquisition of IPG threatens to further consolidate the U.S. media buying services market. Further consolidation risks eroding competition by increasing the risk of media buying coordination among the remaining advertising agencies, which have a history of engaging in coordination.

The FTC’s complaint alleges that advertising agencies have coordinated—including through industry associations—on decisions not to advertise on certain websites and applications. Coordination among advertising firms may reduce ad revenues for particular media publishers, forcing those publishers to reduce the amount of content they can offer to their own consumers and their investment in their sites.

The terms of the FTC’s proposed consent order include a series of provisions that would eliminate Omnicom’s ability to deny advertising dollars to media publishers based on their political or ideological viewpoint, except at the express and individualized direction of Omnicom’s advertiser customers.

Tuesday, June 10, 2025

OAKLAND — California Attorney General Rob Bonta along with San Diego District Attorney Summer Stephan, Alameda District Attorney Ursula Jones Dickson, Los Angeles County District Attorney Nathan Hochman, Marin County District Attorney Lori E. Frugoli, San Francisco District Attorney Brooke Jenkins, and Sonoma District Attorney Carla Rodriguez, today announced a settlement with Pacific Magazine Billing, resolving allegations that the company deceptively disguised solicitation mailers for magazine subscriptions as bills. As part of the settlement announced today, Pacific Magazine Billing agreed to pay $275,000 and is banned from participating in the mail order magazine solicitation industry. 

“In California, we boast nation-leading consumer protection laws — robust tools my office and the offices of local law enforcement partners can use to protect our residents. Pacific Magazine Billing used dishonest tactics to trick recipients into thinking they owed money to get consumers to sign up for a magazine subscription,” said Attorney General Rob Bonta. “Today, the settlement secured by my office and our law enforcement partners sends a clear message to companies looking to make a buck off unsuspecting Californians: If you deceive consumers, we will go after you, it’s that simple.”

*       *       *

Spurred by consumer complaints, in late 2022 the District Attorneys’ offices and the California Department of Justice launched a joint investigation into Pacific Magazine Billing. The investigation revealed that between 2016 and 2022 the company blasted out tens of millions of mailers that looked like bills for existing magazine subscriptions, when the mailers were in truth solicitations designed to deceive consumers into unknowingly starting or renewing subscriptions. 

The settlement announced today resolves allegations that in sending the mailers, Pacific Magazine Billing misled consumers and violated California’s False Advertising and Unfair Competition Laws. As part of the settlement, Pacific Magazine Billing will pay a total of $275,000 in combined civil penalties and other payments that will be used to fund the enforcement of consumer protection laws. The company has also agreed to strong injunctive terms that permanently stop it from issuing solicitations for any magazine subscriptions and mailing solicitations designed as bills in any other business effort. 

Attorney General Bonta is committed working with law enforcement partners up and down the state to protect California consumers. In April, Attorney General Bonta in partnership with Napa County District Attorney Allison Haley and Santa Barbara County District Attorney John T. Savrnoch, announced a settlement with HomeOptions, a realty company based in Oakland that engaged in a predatory real estate scheme impacting over 500 California homeowners, and its Chief Executive Officer. In 2024, Attorney General Bonta, along with Los Angeles City Attorney Hydee Feldstein Soto, announced a $500,000 settlement with Tilting Point Media LLC resolving allegations that the company violated state and federal laws by collecting and sharing children’s data without parental consent in their popular mobile app game “SpongeBob: Krusty Cook-Off.” In 2023, Attorney General Bonta, along with District Attorneys from Merced, Ventura, and Yolo Counties, announced a settlement against Walmart over allegations that illegal weapons were sold to California consumers by Walmart and by third-party sellers through Walmart’s website.

A copy of the complaint and final judgement can be found here and here. The settlement is pending court approval.