Articles Posted in BigTech

Which Software Developers Should Consider a Direct Action Against Google Following the $700 Million Google Play Settlement?

September 8, 2026 | Bona Law PC

The class chapters of the Google Play fight are closing. A federal court gave final approval in 2026 to the $700 million settlement resolving the claims of consumers and a coalition of state attorneys general. Small app developers took $90 million in an earlier class settlement. Google’s conduct has been found illegal and the finding has been affirmed on appeal.

But look at who is not in those cases. Epic Games took its case to a jury and won a monopolization verdict. Match Group settled its own claims on the eve of trial. Neither rode a class. Both pursued their own direct actions—and both did so because the developers with the most at stake often recover more on their own than they do as a line item in a class fund.

What the class settlements actually cover

Three tracks ran through the same multidistrict litigation before Judge James Donato in the Northern District of California. The consumer and state track produced the $700 million settlement. An earlier developer class settled for $90 million, but that class reached only small developers—those earning roughly $2 million a year or less through Google Play. The largest developers were never in it. And Epic and Match brought and controlled their own direct claims.

The theory across all of them was the same one Epic proved at trial: Google holds monopoly power over Android app distribution and in-app payments, and it used contractual and technical restraints to keep its commission—up to 30% on every transaction—flowing. A jury agreed. The Ninth Circuit affirmed the verdict and the injunction, and the Supreme Court declined to stay it. The remedy fight is over too: Epic and Google finalized their settlement in March 2026, the 30% commission is dead, and Google’s Supreme Court petition was dismissed—so the liability finding is not just affirmed but final.

That is the backdrop a developer should weigh. The unlawful conduct is established, but the overcharge—your commissions above what a competitive market would have charged—is different for each developer.

Two ways to be a direct-action plaintiff

In the U.S. system, a damages class under Rule 23(b)(3) sweeps in everyone it defines unless a member affirmatively excludes itself. That produces two routes to a direct claim, and the difference decides what clock you are on.

The first is the true opt-out: a developer that was a class member and affirmatively excluded itself before the class’s opt-out deadline, preserving its own claim to litigate directly. If you miss that deadline, you are bound by the class result and the release that comes with it. In the Play Store developer class (those earning less than $2 million a year through Google Play), that exclusion deadline has already passed, and the developers who stayed in gave up their claims for the covered period.

The second route is larger and, for these purposes, better positioned: developers the class never covered at all. The developer settlement reached only smaller developers. Any developer above that ceiling was carved out by definition. It was never a class member, never released anything, and had no opt-out deadline to miss. Its claim is still live today, subject to the statute of limitations. If you moved serious volume through Google Play, you are probably in this second group—and may not realize your claim is still potentially available.

Either way, the reason to go direct is the same. A class settlement divides a compromised, discounted pool across the entire class. A direct action seeks your damages, and antitrust damages are trebled by statute. A developer whose overcharge—the commission above a competitive rate, not the whole fee—ran to, say, $20 million is looking at serious claim, especially considering trebling available under the antitrust laws. Going direct also buys control: your own counsel, your own theory of overcharge, your own experts, your own timing, and a settlement posture that reflects your leverage rather than the class’s average. Epic and Match did not litigate separately for sport. They did it because their damages justified it and the class may have left much of their recovery on the table.

Of course, there are downsides to bringing your own claim, as you have to actually litigate an antitrust case.

Who qualifies, and the deadline you may be facing

The plaintiffs this analysis is built for share a profile: a business that distributed a paid app, a game, or a subscription service through Google Play and paid substantial commissions on its in-app transactions. Gaming studios, subscription and SaaS developers, and any company that moved real volume through Google’s billing system carried the overcharge the Epic jury found unlawful. If your Play Store payments ran into the millions, you are the kind of plaintiff a direct action is designed for—and, in all likelihood, you were above the developer class’s revenue ceiling and never bound by its release in the first place.

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Google Play Antitrust US Settlement vs. the EU’s €4.1 Billion Fine: Litigation or Regulation—Which Actually Stops a Monopoly?

August 21, 2026 | Luis Blanquez

Author: Luis Blanquez

Google just paid $700 million in the US to close the domestic front of a war it has already lost twice. This month, the court gave final approval to the settlement resolving the antitrust claims brought by a bipartisan coalition of states, together with a nationwide class of Android users. Judge James Donato of the Northern District of California signaled his approval at an April 2026 hearing, and payments to eligible consumers follow from there.

The number is large, but the shadow of the precedent behind it is even larger. Weeks earlier, the European Court of Justice put the final seal on a €4.1 billion fine for the same company, over the same operating system, and for conduct similar to what the states alleged here. Two legal systems, two very different jurisdictional machines, one defendant—and a question that should interest every company with a platform and a dominant position: which machine really changes a monopoly’s behavior?

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How Phhhoto v. Meta Turned the Nascent Competitor Theory into a Weapon Against Big Tech

June 4, 2026 | Luis Blanquez

Author: Luis Blanquez

A federal court recently handed antitrust plaintiffs something they have lacked for two decades: a monopolization theory against a dominant platform that survives a motion to dismiss. On March 30, 2026, the Eastern District of New York allowed Phhhoto’s monopoly maintenance claim against Meta to move into discovery. Most coverage filed it under routine platform conduct, but the court in this case built its ruling on a nascent competitor framework that private plaintiffs have almost never gotten past the pleadings since Trinko—and the reasoning reaches far beyond Meta. Phhhoto Inc. v. Meta Platforms Inc., No. 1:21-cv-06159 (E.D.N.Y. Mar. 30, 2026).

The Facts Behind the Ruling

Phhhoto launched its looping-photo app in July 2014 and reached 10 million users within two years. That growth depended on plugging into Instagram—Find Friends API access, hashtag integration, and organic sharing. In February 2015, a Meta strategic partnerships manager reached out about a Facebook newsfeed integration. Phhhoto signed a nondisclosure agreement and handed over operational detail.

Then suddenly the door closed. On March 31, 2015, with integration talks still open, Meta cut off the Find Friends API, partnered with GIPHY, launched Boomerang on the very day Phhhoto planned to announce its Android release, and in March 2016 rolled out an Instagram feed algorithm that—Phhhoto alleges—buried third-party content instead of personalizing the feed.

If you want the full background on the Phhhoto Inc. v. Meta Platforms Inc. case, here is an article we recently published on the ABA antitrust Section site.

Why the Court Refused to Apply Trinko

Meta’s lead defense was Trinko, the US Supreme Court decision that protects a monopolist’s right to choose its business partners. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). The D.C. Circuit had already tossed a parallel state case on that exact basis. New York v. Meta Platforms, Inc., 66 F.4th 288 (D.C. Cir. 2023).

But Judge Matsumoto declined to follow that path. The states had attacked a general policy of cutting API access to potential rivals. Phhhoto attacked something narrower and uglier: Meta targeting one specific competitor after using an NDA to study how it worked. Meta took in confidential information during the NDA window, shut the API, and cloned the product. On those facts—the court reasoned—this is a nascent competitor case, not a refusal-to-deal case.

That line is the whole ball game because refusal to deal claims rarely clear Trinko. Nascent competitor claims are very much alive—central to the FTC’s case against Amazon, briefed in the Google Search litigation, and now applied at the pleading stage against Meta. Courting a rival, learning its business, and then locking it out is treated differently than simply turning a stranger away at the front door.

What the Nascent Competitor Theory Actually Targets

The theory addresses a gap that classic monopolization doctrine handles poorly. A dominant firm rarely fears the competitor it already faces. It fears the small, fast-growing one that could mature into a real threat. Buying that company outright draws merger scrutiny. So, the dominant firm uses alternative tools—pulling interoperability, timing a copycat product, or tuning an algorithm to suppress the upstart’s reach. Phhhoto pleaded all three, and each survived.

The Find Friends cutoff survived because Meta’s own statement—that it disliked how Phhhoto was growing through Instagram—pointed to an anticompetitive motive rather than a legitimate one. The Boomerang launch survived because Phhhoto alleged Meta learned the product through the integration process and then shipped a clone on the day of Phhhoto’s biggest announcement. And the algorithmic suppression claim survived because Phhhoto alleged the 2016 feed was tuned to cut rival visibility, with registrations falling sharply once it went live.

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Apple’s Gemini-Siri Deal Is the Next Microsoft Antitrust Case, Not the Next App Store Fight

May 14, 2026 | Luis Blanquez

The Gate to the Kingdom May Be Closing for Good: Apple Puts Google Inside Siri

Author: Luis Blanquez

On January 12, 2026, Apple and Google announced a multi-year deal—reported at roughly $1 billion a year—under which a custom Google Gemini model will run as the backend “brain” of the rebuilt Siri and the next generation of Apple Intelligence. Apple plans to unveil the new assistant at WWDC on June 8, 2026, and ship it with iOS 27 in September. Apple’s own on-device Foundation Models will handle simpler, privacy-sensitive tasks. Heavier queries will route to Gemini on Apple’s private cloud. Siri’s cognitive core will no longer be Apple’s. It will be Google’s.

Meanwhile, ChatGPT—the model Apple spent 18 months positioning as the future of iPhone AI, and the one still at the center of the xAI antitrust lawsuit pending in the Northern District of Texas—continues to sit where it has always sat: in a separate, opt-in, off-by-default layer that users have to turn on themselves. In iOS 27, Apple will expand that layer into an “Extensions” framework that lets users pick from Claude, Grok, Copilot, Perplexity, and a user-selectable Gemini chatbot app alongside ChatGPT.

On the surface, the Gemini deal looks like Apple conceding ground—admitting it cannot build a frontier AI model of its own and paying Google to fill the gap. It is not. Apple does not fear a better chatbot. It fears losing the user to one. By routing Siri’s cognition through a supplier Apple controls contractually, it keeps the interface, the invocation, the defaults, the billing, and the brand—everything that makes an operating system a platform—while outsourcing the only layer it never wanted to own: the AI model. It is classic Apple, but this time with Google as an ally instead of a threat.

Where The xAI Case Stands

Elon Musk’s X Corp. and xAI sued Apple and OpenAI on August 25, 2025, in the Northern District of Texas.

The theory of harm has two layers. First, ChatGPT’s integration into iOS, iPadOS, and macOS—announced in June 2024—delivers billions of iPhone-originated prompts to a single model. Second, the complaint alleges that Apple deprioritized rival chatbots in App Store rankings, making it harder for Grok and others to reach users even outside the system layer.

In late September 2025, Apple and OpenAI moved to dismiss. Apple argued the deal is “expressly not exclusive.” OpenAI called the suit part of a “lawfare” campaign. Judge Mark T. Pittman denied both motions on November 13, 2025, in a one-page order signaling the case is “more well-suited for adjudication through a motion(s) for summary judgment.” Discovery opened on October 10, 2025, and closes on May 22, 2026.

Two rulings tell us the real story.

The source-code ruling: Courts don’t want to become engineers, they just want evidence of platform foreclosure

On January 22, 2026, Magistrate Judge Hal R. Ray Jr. denied X’s motion to compel OpenAI to produce ChatGPT’s source code. X argued it needed the code to rebut any defense of lack of feasibility, to establish whether Apple could integrate Grok into the Apple iOS, and whether it would be feasible to integrate multiple AI products from various providers on the iPhone. The court disagreed on both relevance and proportionality.

On relevance, the order is blunt: “At this stage, it is unclear how the source code is relevant to whether Apple unlawfully excluded Grok from its products and conspired with the other defendants to create a monopoly.” On proportionality, the court noted that OpenAI had already produced API documentation and offered to stipulate that neither side would rely on proprietary source code. X refused the compromise. The court refused the production.

For a platform-exclusion case, that ruling is not a setback. It is a roadmap. Courts do not want plaintiffs dissecting competitor IP to infer what could have happened. They want direct evidence of platform misconduct—integration terms, routing logic, default settings, App Store treatment. That is where antitrust liability lives in a case like this. The court said so in plain terms, and future plaintiffs should take the hint.

The April 2026 motion to compel: Valuation and training data

X filed a second motion to compel on April 10, 2026, this one aimed squarely at OpenAI’s document production. The motion accuses OpenAI of having “persistently evaded its discovery obligations,” noting that OpenAI had produced 7,475 documents compared with X’s 32,116. The requested materials include valuation studies, financial projections through 2030, ChatGPT usage by country, and documents about OpenAI’s use of X data to train its models.

The valuation request is the one to watch. X tells the court that OpenAI’s valuation grew by more than $500 billion in the past year—from $300 billion at the end of March 2025. X argues the jump “does not make sense unless OpenAI and its investors understand that ChatGPT’s exclusive deal with Apple is cementing OpenAI’s dominance.” That is a causation theory built on investor behavior, not technology.

The training-data request matters for a different reason. OpenAI has defended the case in part by arguing that Grok’s foreclosure from iPhone-originated prompts is insubstantial because xAI has asymmetrical access to X data. X’s response is direct: if OpenAI also trains on X data, the asymmetry disappears. That question—who gets to learn from where—sits at the center of every theory of harm in generative AI.

Both motions, taken together, ask the court to analyze platform foreclosure through evidence: deal terms, integration architecture, valuation impact, data flows. None of it is specific to OpenAI nor depends on getting inside OpenAI’s code.

That same framework applies to Gemini.

Gemini Isn’t Apple’s Competitor. It’s Apple’s Supplier.

Apple’s decision to build Siri on Gemini at the backend, while offering third-party chatbots through Extensions on top, reshapes the competitive picture more than any filing in Texas has.

Apple did not retreat from AI. It relocated AI. Every layer a platform needs—distribution, defaults, billing, invocation, user interface, identity—remains Apple’s. When a user says, “Hey Siri” and Gemini answers, Apple delivers the answer. The supplier is invisible. Apple owns the user relationship.

That is the Google Search playbook applied one floor up in the stack. The existing Apple–Google deal to make Google the default search engine in Safari has existed for over a decade, with payments roughly reaching $18–$20 billion a year in the early 2020s. Google delivered the search results. Apple kept the browser, the UI, the defaults, and the customer. Nobody ever thought of Safari as “the Google browser.” That deal survived the U.S. v. Google antitrust trial not because it was invisible, but because it proved how much Apple gained by making a dominant rival pay for access instead of competing on equal terms.

The Gemini arrangement reuses the same design. At the foundational layer, Gemini is Siri’s cognitive backend—contractual, invisible, and not subject to user choice. At the visible layer, the iOS 27 Extensions framework lets users swap among ChatGPT, Claude, Grok, Perplexity, and a Gemini chatbot app for certain requests. Apple will point to that second layer as evidence of openness. But the first layer is where platform control actually lives. Whatever model a user picks through Extensions runs on top of an infrastructure Apple has already built around Gemini. Apple does not compete with Gemini. Apple neutralizes it by absorbing it. History doesn’t repeat itself, but it often rhymes.

Forget the App Store. This is Microsoft All Over Again

The App Store line of cases is a distraction here. The real analogue is the Microsoft browser and search monopolization litigation, both in the United States and the EU.

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Beyond the DOJ Complaint: Potential Exclusionary Conduct Theories in the Apple Ecosystem

May 4, 2026 | Pat Pascarella and Luke Hasskamp

Authors: Pat Pascarella & Luke Hasskamp

Recent proceedings involving Apple Inc.—including the U.S. Department of Justice case and Epic Games v. Apple—together with developments in AI markets, suggest an evolving framework for platform-focused antitrust analysis. This article considers how those threads may fit together.

I. The DOJ Has Done Substantial Groundwork

Begin with market power. In U.S. v. Apple, the district court accepted as plausible a U.S. smartphone market in which Apple holds roughly 65%—now closer to 70%—reinforced by barriers to entry, network effects, and switching costs.

The DOJ also presents an alleged pattern of exclusionary conduct: the repeated neutralization of technologies that reduce platform dependence, including middleware, super apps, cloud streaming, smartwatches, messaging, and digital wallets. According to the complaint, each time a product threatened to make device choice less consequential, Apple constrained or neutralized it. If this allegation is supportable, such a pattern could address concerns about improperly “punishing success.”

II. The Markets Apple Controls at 99 Percent

If a higher market share is needed, the more compelling market is not some smartphone submarket. Rather, it will be markets Apple controls at 99 percent: the iOS functionalities and apps themselves. While not every function is a separate product, some may well be—particularly those Apple allegedly targets.

Epic v. Apple is instructive on this point, and not fatal. The court did not hold that iOS-tethered markets are inherently non-cognizable—only that Epic failed to establish that consumers lacked awareness of iOS restrictions and could not factor them into purchasing decisions. But those gaps seem addressable.

The full scope of any restraints—and their costs—is obscured in a dense web of contractual and technical restrictions. No reasonable consumer could anticipate the extent to which app review, API access, and distribution control could be wielded against rivals. Nor should antitrust liability turn on whether consumers anticipated unlawful conduct.

Even if consumers had advance knowledge of such restraints, a single-brand market is not foreclosed. Apple’s own counsel acknowledged in Epic that consumers entering the iOS ecosystem cannot predict downstream costs related to app distribution, in-app payments, or aftermarkets. If the costs of any restraints are unknowable at the time of purchase, foremarket competition cannot discipline aftermarket conduct. The remaining elements of a single-brand iOS functionality or app market also appear to be present, including allegations of intentional degradation of interoperability to maintain switching costs—without corresponding loss of share or margin.

III. CoStar, Exclusive Dealing, and the End User License Agreement

Some claims may not require pleading a single-brand market. For example, under the Ninth Circuit’s decision in CoStar v. CREXi, “substantial foreclosure” is sufficient to plead an exclusive dealing agreement.

The agreement? The EULA itself. While a web of contractual and technical restrictions might enable foreclosure, the enforceable agreement between Apple and the user is embodied in the EULA. In that sense, Apple may have supplied potential plaintiffs with the central instrument of its own potential liability.

IV. The EULA as a Negative Tie

The EULA may also provide a foundation for tying claims. Courts often resist tying theories in platform cases, frequently reasoning that coercion must be directed at consumers rather than suppliers. That argument, though contestable, is predictable.

A potential response may be that it is the EULA that effectively conditions use of the platform on the consumer’s agreement not to obtain competing products, services, or apps outside Apple’s approval.

V. Attempted Monopolization and Dangerous Probability of Success

Tying allegations also expand the analytical framework, though courts ultimately may analyze them as attempted monopolization. On the “dangerous probability of success,” a defendant such as Apple likely would invoke concerns about outdated leveraging theories. But this would not be a classic leveraging case.

Any company that demonstrates both the ability and the willingness to neutralize technologies or rivals that threaten its market position may struggle to characterize that conduct as competing on the merits. Such a pattern should reduce concerns about punishing a company simply for being successful. Where a company has demonstrated a pattern of exclusion and retains the ability to repeat it, the “dangerous probability” standard should be satisfied.

VI. Inextricably Intertwined—and Antitrust Standing

A direct monopolization claim targeting the U.S. smartphone market faces a threshold question: standing. Developers and rivals operating at the functionality level are neither customers nor competitors in the smartphone market.

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Antitrust Lawyers: AI’s Wartime Consiglieres

February 17, 2026 | Pat Pascarella

Author: Pat Pascarella

AI will weaponize antitrust. AI markets have high fixed costs, winner-take-all dynamics, platform leverage, bundling power, and data lock-in. These dynamics predict concentration. And market concentration is an accelerant for antitrust litigation—both private and government. We saw it with IBM, Microsoft, and the telecom wars.

Private actions will move faster than government enforcers—not because they are necessarily stronger on the merits, but because they are less constrained by politics and bandwidth. A well-timed complaint can slow a rival’s rollout, trigger regulatory scrutiny, and create settlement leverage. When markets tip quickly, the losers litigate.

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Banks, Stablecoins, and Base by Coinbase: Fighting for Open Money Without Gatekeepers

February 10, 2026 | Luis Blanquez

Author: Luis Blanquez

Congress didn’t set out to redesign money with the Digital Asset Market Clarity Act. Yet that is where the debate has now landed. The bill—intended to end regulation‑by‑enforcement and draw a workable line between SEC and CFTC authority—has stalled because stablecoins force a choice the status quo would rather avoid. Are digital dollars going to be corralled into a bank‑shaped box, or will they remain programmable cash that pressures incumbents to compete on yield, speed, and service? Everything else is downstream of that decision.

Banks, Stablecoins and the Need for Real Competition

Stablecoins have become the functional rails of crypto today—payment instruments, settlement media, and trading collateral—sometimes accompanied by yields from lending, reserve income, or activity‑based rewards. Banks see this as deposit‑like remuneration without bank‑level prudential rules. And they warn of deposit flight and regulatory arbitrage.

Senate negotiators have responded with draft provisions that limit “interest for simply holding a stablecoin,” while permitting some incentives tied to real activity (e.g., payments volume). Crypto firms counter that this approach smuggles the legacy model back in: if a fully reserved, transparent stablecoin can’t share its economics with users or experiment with market incentives, what exactly is the innovation? And if tokenized assets are pushed back into broker‑dealer rails, how meaningful is on‑chain finance?

This is not a sterile policy scuffle. It’s a market‑structure fork. Treat stablecoins like quasi‑deposits with minimal yield and centralized chokepoints, and you’ll get the same existing incumbent-protection and innovation-fenced banking channels. Treat them as programmable, interoperable dollars with risk‑appropriate guardrails, and you’ll get competition—on rates, UX, interoperability, and transparency.

Base—Coinbase’s Layer‑2 Network

Meanwhile, the market is already revealing the tradeoffs. Consider Base—Coinbase’s Layer‑2 on Ethereum’s OP Stack. It solves real problems: cheaper transactions, faster confirmation, and effortless ramps. It is the rare bridge from Web2 familiarity to Web3 innovation, powered by the distribution of an innovative public company. A very successful project so far indeed.

But Base also shows how “Web3‑branded” platforms can quietly recreate Web2 chokepoints. Today, a single sequencer—run by Coinbase—controls transaction ordering, inclusion, and liveness. Users can self‑custody, yet the network’s heartbeat depends on one operator.

At the asset layer, USDC, a stablecoin co‑created by Coinbase and Circle, is the default settlement currency. This is unsurprising given reserve‑yield economics and compliance benefits. While other tokens can technically be used on Base, the user experience strongly privileges USDC, shaping behavior through design rather than choice. None of this makes Base malign; it makes Base effective. But it also makes it an ecosystem managed by corporate incentives rather than a neutral public protocol.

The Bitcoin and Nostr Lesson: Protocols as Antidotes to Chokepoints

Here’s where Bitcoin and Nostr matter as living proof that open protocols can scale human coordination without reintroducing gatekeepers.

Bitcoin is bearer money with credible neutrality. There is no issuer to lean on, no off‑chain promise to redeem, no corporate switch to flip. With Lightning, small payments settle in native BTC without bridges or custodial wrapping. That architecture prevents a single firm from deciding who transacts, in what order, or at what fee. It’s not frictionless; liquidity management and UX remain hard. But Bitcoin/Lightning delivers something corporate L2s cannot promise: a censorship‑resistant exit option. When “Web3‑branded” stacks drift toward walled gardens, the mere availability of a neutral settlement layer disciplines behavior—users and developers can route around control points.

Nostr offers the same lesson for communications. It is a simple, open event protocol for publishing and relaying messages. There are no accounts to seize, no central servers to pressure, and no mandatory app store chokepoints. Anyone can run a relay, anyone can build a client, and identities travel with the user, not the platform. Like Bitcoin, Nostr isn’t perfect: spam resistance, moderation norms, and discovery are hard. But its permissionless interoperability and portable identity prevent the quiet re‑centralization that Web2 perfected and “Web3‑branded” platforms sometimes emulate. In practice, Nostr and Lightning together show how value and speech can move across a network where the rules are baked into open code rather than corporate policy.

The point isn’t to crown Bitcoin and Nostr as universal solutions (although we think highly of them): It’s to recognize their governance properties—credible neutrality, forkability, non‑discriminatory access—as the antidote to the chokepoints corporate platforms tend to recreate nowadays.

How Corporate L2s Can Earn Trust—and Avoid Antitrust Trouble

The solution isn’t to reject polished, easy‑to‑use platforms. It’s to make sure that as these networks grow, they don’t quietly become new chokepoints. Base—and any corporate‑run Layer‑2—could earn long‑term trust by committing to three simple principles:

Decentralize the Infrastructure

Right now, Base relies on a single sequencer. To avoid becoming a gatekeeper, it should eventually open this role to many independent operators. That means multiple entities helping order transactions, clear rules preventing any one party from dominating, and technical safeguards so users can always get their transactions included—or withdraw to Ethereum—if something goes wrong.

Neutralize the Asset Layer

If the network defaults to USDC everywhere, people will naturally end up using it—even if they’d prefer something else. Base could avoid that by offering a neutral asset picker and allowing different stablecoins, ETH, and even non‑custodial Bitcoin payment paths, to truly compete on equal footing. It should also separate any reserve income from network decisions and make switching between assets or providers easy and low‑cost.

Build Fair, Transparent Governance

To avoid ever looking like a walled garden, Base could give more groups a seat at the table, such as developers, users, and independent voices. Clear rules against self‑preferencing, public audits, transparent fee policies, and easy data portability, all would make the ecosystem more antitrust friendly.

These three steps aren’t just good crypto hygiene. They are antitrust risk reducers. The legal vulnerability for a dominant exchange‑wallet‑L2 bundle is the appearance of leveraging distribution power to foreclose rivals—by steering order flow, setting biased defaults, or discriminating in access. Open sequencers, neutral defaults, and documented non‑discrimination would make Base look less like a vertically integrated gatekeeper and more like neutral infrastructure.

What Congress Should Do

Policy should reflect the same principles.

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Germany’s Competition Authority Sanctions Amazon Over Its Control of Seller Pricing on its Marketplace

February 8, 2026 | Luis Blanquez

Author: Luis Blanquez

On 5 February 2026, Germany’s competition authority, the Bundeskartellamt, announced a landmark ruling prohibiting Amazon from continuing practices that influenced how independent sellers priced their products on the German Amazon Marketplace. The authority also ordered Amazon to disgorge €59 million in economic benefits that it determined were gained through these anticompetitive practices.

At the center of the ruling lies Amazon’s dual role in Germany’s online retail ecosystem. As in the United States, the company not only sells products through its own retail arm, Amazon Retail, but also operates the Amazon Marketplace, a platform where independent third‑party sellers list and sell goods directly to consumers. About 60% of all items sold on Amazon.de come from these independent sellers, who bear full responsibility for setting prices and managing the financial risks of their businesses.

The Bundeskartellamt concluded that Amazon used a variety of “price control mechanisms” to review whether sellers’ prices were “too high.” When Amazon’s systems flagged a price as unacceptable, the company responded by either fully removing the listing from the platform or excluding the offer from the Buy Box—the prominent purchasing option that strongly influences sales volume. These measures can severely limit a seller’s visibility and revenue.

According to the authority, this system created a significant competitive imbalance. President Andreas Mundt emphasized that Amazon directly competes with the very sellers who rely on its platform. When a dominant marketplace operator can restrict or manipulate competitor pricing—even indirectly through algorithmic controls—it risks shaping the entire price landscape according to its own commercial interests. Mundt warned that such interference could prevent sellers from covering their costs, potentially pushing them off the marketplace entirely.

The Bundeskartellamt made clear that it does not object to Amazon’s ambition to offer low prices to consumers. Instead, the issue lies in how Amazon has attempted to achieve that goal. Regulators argue that Amazon can provide competitive prices without directly constraining the pricing choices of independent sellers. To address the issue, the authority has restricted Amazon from using price control tools except under narrowly defined circumstances—particularly cases of excessive or exploitative pricing—and only in compliance with detailed requirements that the Bundeskartellamt has now established.

The regulator highlighted the implications of Amazon’s market position. Amazon accounts for roughly 60% of Germany’s online goods retail market, making it an undeniably influential digital gatekeeper. Because independent sellers depend heavily on Amazon’s infrastructure and visibility, any internal policy that affects pricing can have sweeping economic impact. The authority asserts that Amazon’s previous practices allowed it to act as both a competitor and an arbiter of acceptable pricing behaviors, creating a structural conflict of interest.

By limiting Amazon’s ability to use these mechanisms, the Bundeskartellamt aims to restore pricing freedom to third‑party sellers and safeguard the competitive process. The decision stresses the need to prevent dominant digital platforms from exploiting their market position by embedding competitive advantages into the algorithms and systems that govern visibility, listing status, and price acceptability. According to the authority, this type of intervention is crucial to ensuring that Amazon cannot extend its competitive power on the marketplace into the broader retail economy.

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Could Elon Musk Acquire TikTok Under a Joint Operating Agreement Exception to the Antitrust Laws?

January 17, 2025 | Pat Pascarella and Aaron Gott

Authors: Pat Pascarella and Aaron Gott

The idea of Elon Musk purchasing TikTok might sound like a headline ripped from a speculative business column, and maybe it is. But as antitrust lawyers, we couldn’t resist. Obviously, Mr. Musk already owns X, and any such acquisition might raise antitrust concerns.

But could you head off those concerns by structuring the deal with an exception to the antitrust laws known as a Joint Operating Agreement? While JOAs were related to the newspaper industry and are largely seen as a relic of the past, their principles could provide a framework for addressing modern concerns.

A Brief History of Joint Operating Agreements

Joint Operating Agreements emerged during the 20th century as a mechanism to save failing newspapers thereby maintaining at least some level of editorial competition. By the mid-20th century, many U.S. cities had two major newspapers, but declining revenues and readership often left one teetering on the edge of closure. To prevent monopolization of the news market, Congress enacted the Newspaper Preservation Act of 1970, which allowed competing newspapers to enter into JOAs.

Under a JOA the two newspapers would be permitted to merge their business operations, so long as they agreed to maintain separate editorial teams. The goal was to preserve journalistic diversity in cities that were about to find themselves with only one surviving paper. But JOAs required approval from the Department of Justice (DOJ) and were contingent on demonstrating that one of the newspapers was “failing.”

JOA Requirements

For a JOA to be approved, the following conditions had to be met:

Failing Firm Doctrine: One of the parties had to demonstrate that it was financially unsustainable and would likely exit the market absent the agreement.
No less anticompetitive alternative: There must not be a less anticompetitive alternative to the joint operation agreement.
Preservation of Competition: The agreement had to preserve a degree of competition, particularly in areas such as content creation or editorial independence.
DOJ Oversight: The DOJ maintained the authority to review and approve any proposed JOAs, ensuring they aligned with antitrust laws.

Applying the JOA Framework to a Musk-TikTok Deal

Elon Musk’s ownership of X likely would raise antitrust concerns about the acquisition of TikTok. But a JOA (or JOA.2) could provide a creative solution to balance these concerns with broader policy objectives, such as ensuring competition with other tech giants like Meta and Alphabet while also addressing national security issues tied to TikTok’s current Chinese ownership.

A critical hurdle, however, would be demonstrating that TikTok meets the “failing firm” criterion. While TikTok is far from failing financially, isn’t “failing” simply another term for “about to involuntarily exit the market.” Same outcome, hence same justification.

But this difference could mean a crucial difference under the JOA legal framework. As explained above, there must be no less anticompetitive alternative available. When it came to the failing newspapers, there was no alternative: failing newspapers did not have buyers lining up to buy them. But popular social media platforms do.

But there’s an answer here as well. One idiosyncrasy of the TikTok situation is that the Chinese government has taken the position that the TikTok algorithm is a Chinese national security secret. So any sale of TikTok means, as a practical matter, that it is not likely to come with a functioning algorithm. This limits the potential pool of buyers to those who either have one they can adapt or who can put one together on the fly.

This likely narrows significantly the existing pool of willing buyers to those who already have social media companies, or possibly even to those people who are known to drive their teams to accomplish skunkworks-like missions on impossible timelines.

Political and Regulatory Considerations

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Unpacking the Implications of the FTC’s Antitrust Case Against Amazon for Online Marketplace Competition

October 22, 2024 | Sabri Siraj

Author: Sabri Siraj

The Federal Trade Commission has survived a motion to dismiss in a high-stakes lawsuit against Amazon, igniting critical discussions about competition in the online marketplace. As a dominant player in global e-commerce, Amazon’s practices have long affected both consumers and competitors. Will this case change those practices or otherwise have implications for online marketplaces?

Important Note

Bona Law is currently representing Zulily in a similar lawsuit against Amazon in federal district court. You can read the complaint here.

About the Case

The FTC’s lawsuit, filed in Washington State federal court, stems from allegations that Amazon engages in anticompetitive practices that inhibit competition and violate the Sherman Act, the FTC Act, and consumer protection laws. The FTC alleges Amazon pricing practices harm competition by limiting consumer choices, and that Amazon engages in coercive tactics that disadvantage third-party sellers, creates barriers for new entrants, overcharges sellers, and makes it more expensive for sellers to offer their products on other platforms. Numerous states have joined the FTC’s lawsuit.

Amazon denies the allegations and asserts that its practices benefit consumers and competition. The court dismissed some state law claims but has otherwise allowed the lawsuit to proceed, with trial scheduled for October 2026.

Will the Case Affect Amazon’s Competitors?

For Amazon’s existing competitors, the FTC’s actions could provide both opportunities and challenges. If the lawsuit successfully restricts Amazon’s anti-competitive practices, it may level the playing field for other marketplaces like Walmart, eBay, and Shopify. These companies have often struggled to compete with Amazon’s extensive resources, alleged anticompetitive conduct, and customer loyalty programs. A more dynamic marketplace could enable them to attract more sellers and consumers, driving innovation and diversity in e-commerce offerings.

Moreover, if Amazon’s pricing strategies are curtailed, consumers could benefit through lower prices and improved service from competitors. This could encourage a competitive environment where companies strive to enhance their offerings, benefiting consumers.

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