esults related to stock photography.In 2015, Google revised its search engine’s algorithms that gave more weight to “certain words based on how the webpage displayed them.” Dreamstime’s organic search ranking began to drop after this new algorithm was implemented by Google. In approximately one year, Dreamstime claimed that its number of new customers fell by 30% and claimed this was due to the changes in Google’s algorithms. Dreamstime raised this issue with Google, and its advertising support team suggested that Dreamstime retain an SEO expert to improve its search rankings. The expert provided a free analysis to Dreamstime that suggested its falling search ranking was the result of the “weak content of [its] site .” Dreamstime then invested millions of dollars in an attempt to improve its search ranking; however, its ranking continued to decline.In March 2018, Dreamstime sued Google for various claims, including an antitrust claim alleging violation of section 2 of the Sherman Act, 15 U.S.C. § 2. Google filed a motion to dismiss, which the court granted as to the antitrust claim but allowed Dreamstime leave to file an amended complaint which it did. Google moved to dismiss the amended antitrust claim, which was likewise granted by the court on the grounds that Dreamstime did “not plausibly allege harm to competition in the relevant market of online search advertising.” The court allowed Dreamstime’s other claims to proceed but later dismissed them as well. Dreamstime then appealed the dismissal of its antitrust claim to the Ninth Circuit.The Ninth Circuit began by noting that an antitrust plaintiff can avoid a motion to dismiss by alleging “sufficient facts from which the Court can discern the elements of an injury resulting from an act forbidden by the antitrust laws.” Dreamstime asserted that the trial court had mischaracterized the relevant market in considering its antitrust claim as being limited to the online search advertising market as opposed to including the online

AT&T thus participates in the DSL market at both the wholesale and retail levels by providing ISPs with wholesale DSL transport service and by selling DSL service directly to consumers at retail. In 2003, LinkLine brought suit in federal court alleging that AT&T violated Section 2 of the Sherman Act, 15 U.S.C. § 2, by monopolizing the DSL market in California. The key allegation was that AT&T engaged in a price squeeze to minimize LinkLine's profit margins by setting a high wholesale price for DSL transport and a low retail price for retail DSL service in order to prevent rival firms from competing in the retail market.

ons that we have entered a new era of prosecuting monopolists — actual or attempted — should be taken with a grain of salt.1See Michael Acton, US DOJ stands ready to bring criminal charges in Section 2 monopolization cases, Powers says, MLex (Mar. 2, 2022), https://mlexmarketinsight.com/news/insight/us-doj-stands-ready-to-bring-criminal-charges-in-section-2-monopolization-cases-powers-says.2See, e.g., Enforcers’ Roundtable, Antitrust Magazine (June 27, 2022), https://www.americanbar.org/groups/antitrust_law/resources/magazine/2022-june/enforcers-roundtable/ (“We will pursue criminal violations when the facts and the law suggest it’s appropriate and consistent with the principles of federal criminal prosecution.”); U.S. Dept. of Just., Antitrust Division Manual § 7-2.200 (2022) (confirming that the DOJ may “bring, and has brought, criminal charges under Section 2”).3See Michael Acton (@MActon93), Twitter (Mar. 2, 2022, 1:40 PM), https://twitter.com/MActon93/status/1499107395884122112.4 15 U.S.C. § 2 (“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony.”)5 U.S. Dept. of Just., Recognizing Antitrust conspiracies and Working with the Antitrust Division 13, https://www.justice.gov/atr/page/file/1214191/download.6See Daniel Crane, Criminal Enforcement of Section 2 of the Sherman Act: An Empirical Assessment, 84 Antitrust L.J. 753, 755 (2022).7See Joseph James Matelis II & Daniel Richardson, Criminal Enforcement of Section 2 of the Sherman Act, Antitrust (Sept. 9, 2022), https://www.americanbar.org/groups/antitrust_law/resources/magazine/2022-summer/criminal-enforcement-section-2-sherman-act/.8See Press Release, U.S. Dept. of Just., Executive Pleads Guilty to Criminal Attempted Monopolization (Oct. 31, 2022), https://www.justice.gov/opa/pr/executive-pleads-guilty-criminal-attempted-monopo

See Diane Bartz & David Shepardson, Reuters, U.S. Says Google Breakup May Be Needed to End Violations of Antitrust Law (Oct. 20, 2020), https://www.reuters.com/article/marketsNews/idUSL1N2HB0EX?il=0. Carroll v. Google LLC, No. 3:20-cv-07379 (N.D. Cal. Oct. 21, 2020) (alleging violations of the Sherman Act (15 U.S.C. § 1) and the antitrust laws of more than 20 states); Herrera v. Google LLC, No. 5:20-cv-07365 (N.D. Cal. Oct. 20, 2020) (alleging violations of the Sherman Act (15 U.S.C. §§ 1, 2) and California Cartwright Act (Cal. Bus. & Prof. Code §§ 16700 et seq.)); McNamara v. Google, LLC, No. 5:20-cv-07361 (N.D. Cal. Oct. 20, 2020) (alleging violations of the Sherman Act (15 U.S.C. § 2) and California Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200 et seq.)). Pure Sweat Basketball, Inc. v. Google LLC, No. 5:20-cv-05792 (N.D. Cal. Oct. 21, 2020) (alleging violations of the Sherman and Clayton Acts (15 U.S.C. §§ 1, 2, 3, 15, 26), California Cartwright Act (Cal. Bus. & Prof. Code §§ 16700 et seq.) and California Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200 et seq.)).

The same antitrust analysis now applies to conduct involving IP as to conduct involving other forms of property, taking into account the specific characteristics of the particular property right. However, there have been significant calls recently for findings that infringements suits and licensing conduct by patent assertion entities (PAEs) labeled “patent trolls” and holders of standard essential patents (SEPs) generally are monopolization or attempts to monopolize that violate Sherman Act §2, 15 U.S.C. §2. This paper argues that the basic principles of keeping in mind history and context, and general antitrust principles, apply equally to SEPs and PAEs as to other economic phenomena.

s, 122 S. Ct. at 2236.[34]Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1 (1979).[35]Id. at 9.[36]Bd. of Trade of the City of Chicago v. United States, 246 U.S. 231, 238 (1918).[37]Broadcast Music, Inc., 441 U.S. at 9.[38]Bd. of Trade of the City of Chicago, 246 U.S. at 238.[39]Gulf States Reorganization Grp., Inc. v. Nucor Corp., 822 F. Supp. 2d 1201 (N.D. Ala. 2011), aff'd. 721 F.3d 1281 (11th Cir. 2013).[40]Fed. R. Civ. P. 53(a)(1)(A).[41]Gulf States Reorg. Grp., 822 F. Supp. 2d at 1205.[42]The bid was financed via a nonrecourse loan from Nucor. If Casey/Park won the auction, Casey would repay Nucor 75% and keep the remaining 25% and the fees related to dismantling the plant.[43]Nucor's bid was actually lower than GSRG's, but GSRG's bid did not conform to the auction's rules, and was therefore disqualified.[44]15 U.S.C. § 1.[45]15 U.S.C. § 2.[46]Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Texas.[47]15 U.S.C. § 2.[48]Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68 (1984).[49]Gulf States Reorg. Grp., Inc., 822 F. Supp. 2d at 1222-23.[50]Copperweld Corp., 467 U.S. at 767-68.[51]Monsanto v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984). See also Seagood Trading Corp. v. Jerrico, Inc., 924 F. 2d 1555, 1573-74 (11th Cir.1991).[52]Gulf States Reorg. Grp., Inc., 822 F. Supp. 2d at 1220, citing 7 P. Areeda, Antitrust Law, ¶ 1474 (2007).[53]Gulf States Reorg. Grp., Inc., at 1220.[54]Id.[55]American Needle, Inc., v. Nat'l Football League, 560 U.S. 183 (2010).[56]Gulf States Reorg. Grp., Inc., 822 F. Supp. 2d at 1221, 1226.[57] Id. at 1224.[58]Id.at 1225-26.[59]Id. at 1226, 1227.[60]Id. The Section 2 conspiracy to monopolize claim also failed because plaintiff failed to demonstrate Casey/Park acted with the specific intent of achieving a monopoly, one of the elements of the claim. Gulf States Reorganization Grp., Inc., at 1228. The other element in addition to concerted conduct is th

oot and outline affirmative steps to help litigators navigate this new complex terrain. To better orient their takeaways, this post begins with an overview of the current (and ever-changing) state of right-to-repair legislation.A Look Into The Legal Bases & Regulatory Landscape for the Right to RepairAs of today, the movement counts among its supporters the President of the United States, the Federal Trade Commission (FTC), members of Congress, and members from at least 45 State legislatures that have introduced bills to enact a statutory right to repair. Industry leaders and their lobbying arms have struggled to navigate this growing trend. The window is quickly closing for manufacturers to present a uniform response to the movement.In looking to the future, we must first consider the past. Of course, regulations have long governed manufacturers. Among these, the Magnuson-Moss Warranty Act’s anti-tying provision, 15 USC § 2302, the Sherman Act’s antitrust protections, 15 USC §§ 1 and 2, and the FTC Act, 15 USC § 45, all bear on the ability of foremarket manufacturers to exert some level of control over aftermarket repairs.The Judiciary, too, has weighed in on this issue in Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 US 451 (1992), for example, the Supreme Court directly addressed the intersection of aftermarket repair issues and antitrust principles. In short, the Supreme Court held it was at least conceivable that original equipment manufacturers could be aftermarket monopolists for their own products even if there were sufficient competition in the foremarket. Though the Court did not discuss when or under what conditions such a situation would arise, the movement’s advocates continue to cite Eastman Kodak today as one of the leading cases to support their cause.The Executive Branch took nearly 30 years to engage with the purported right-to-repair. But it has quickly made its presence known. In May 2021, the FTC released a report, “Nixing the Fix: An FTC Re

prior federal merger guidelines. Nonetheless, the Agencies will almost certainly argue that they should receive similar deference.What Is Next?The Draft Guidelines will be subject to a 60-day comment period expiring on 18 September 2023, during which time the public may submit comments. Following the comment period, the Agencies will review the comments and then publish a final version of the Merger Guidelines.While the Draft Guidelines will not take immediate effect, they likely reflect the Agencies’ current merger enforcement objectives. Mergers reviewed by the Agencies in the coming months are likely to receive substantially similar scrutiny to that described in the Draft Guidelines. Accordingly, businesses contemplating mergers and acquisitions should expect their transactions to be evaluated pursuant to the principles and analyses described in the Draft Guidelines.1 The Agencies enforce the federal antitrust laws, specifically Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2; Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45; and Sections 3, 7, and 8 of the Clayton Act, 15 U.S.C. §§ 14, 18, 19. Section 7 of the Clayton Act is the antitrust law that most directly addresses mergers, though mergers may also violate other of the above-referenced statutes.2 A “Second Request” is a discovery procedure by which the Agencies seek additional information through document requests and interrogatories to investigate mergers that they believe have the potential to be anticompetitive.3 138 S. Ct. 2274 (2018).4 E.g., United States v. U.S. Sugar Corp., --- F.4th----, 2023 WL 4526605 (3d Cir. 2023); Fed. Trade Comm’n v. Microsoft Corp., --- F. Supp. 3d ----, 2023 WL 4443412 (N.D. Cal. July 10, 2023).

1 and 2 of the Sherman Act became a felony in 1974. Antitrust Procedures and Penalties Act, Pub. L. No. 93-528, § 3, 88 Stat. 1706, 1708 (1974) (codified as amended at 15 U.S.C. § 16 (2012)).[5] United States v. Braniff Airways, Inc., 453 F. Supp. 724 (W.D. Tex. 1978) (denying the defendant’s motion to dismiss).[6] United States v. Molasky, 5 Trade Reg. Rep. 45,073 (case no. 2345) (D. La., filed 1973) (summary of indictment).[7] Information at 3, United States v. Zito, No. 1:22-cr-00113-SPW (D. Mont. Sept. 19, 2022).[8]Id. at 4-5.[9]Id.[10] Id.[11]Id.[12] Id.[13] Id.[14] 18 U.S.C. § 1343; see United States v. Ames Sintering Co., 927 F.2d 232 (6th Cir. 1990) (defendants charged with wire fraud for attempted bid rigging).[15] A wire fraud charge under 18 U.S.C. § 1343 would carry a maximum sentence of 20 years’ imprisonment and a fine of $250,000, while the maximum sentence for an individual charged with a criminal Section 2 violation is ten years’ imprisonment and a fine of $1 million. 15 U.S.C. § 2.[16]Remarks of Procurement Collusion Strike Force Director Daniel Glad at ABA Section of Public Contract Contract Law’s Public Procurement Symposium (Oct 13, 2021), https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-opening-remarks-2022-spring-enforcers.[17]See, e.g., Press Release, U.S. Dep’t of Just., “Former Contractor Pleads Guilty to Bid Rigging and Bribery” (Oct. 3, 2022), https://www.justice.gov/opa/pr/former-contractor-pleads-guilty-bid-rigging-and-bribery; Press Release, U.S. Dep’t of Just., “Military Contractors Indicted for $7 Million Procurement Fraud Scheme” (June 23, 2022), https://www.justice.gov/opa/pr/military-contractors-indicted-7-million-procurement-fraud-scheme.[18] Commission Communication Guidelines on the Applicability of Article 101 on the Functioning of the European Union to Horizontal Co‐Operation Agreements, SEC (2010) 528/2 (draft) at ¶¶432-33.[19] Case C‑74/14, Eturas UAB v. Lietuvos, ECLI:EU:C:2016:42 ¶¶64-65 (Jul. 16,

However, Abbvie obtained an additional 132 related patents, giving the company protection until 2034. An antitrust case filed against the company in 2019 contended that Abbvie has established a patent thicket that violates the Sherman Antitrust Act, 15 USC Sections 1 and 2. The initial case was dismissed in 2020, and the decision was upheld on August 1, 2022.