September Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to this edition of the Sidley Antitrust and Competition Bulletin — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you.

• U.S. Assistant Attorney General (AAG) Gail Slater announced the creation of a Comply With Care task force within the Department of Justice (DOJ) Antitrust Division to target “problematic tactics” used by parties in antitrust cases and investigations.
• A federal judge for the District of Columbia ruled on remedies in U.S. v. Google, ordering targeted remedies and rejecting many proposals by the government.
• Following a four-year investigation, the European Commission (EC) fined Google €2.95 billion for abuse of dominance in the advertising technology sector, concluding that Google engaged in self-preferencing practices.
• The EC recently launched a call for evidence as part of its first review of the Digital Markets Act (DMA).
• The Federal Trade Commission (FTC) withdrew its support for the Biden-era rule against noncompete clauses that would have rendered almost all employee noncompete clauses unlawful.
• The UK Competition and Markets Authority (CMA) recently concluded a consultation into guidance on price transparency.

Read more on how this news can affect your business below....

Head of U.S. DOJ Antitrust Division announces Comply With Care task force: On August 29, AAG Slater announced the creation of a task force within the Antitrust Division to target “problematic tactics” that are  “designed to circumvent legal process and hinder [DOJ antitrust] investigations.” Examples include destruction of relevant evidence, failure to produce documents, deficient privilege logs, overbroad privilege assertions, tactics designed to delay investigations, and failure to make required filings under the Hart Scott Rodino Antitrust Improvements Act (HSR Act). AAG Slater stated that antitrust enforcers will use the “full range of available penalties” against parties found to engage in obstructive behavior.

Why it matters: AAG Slater’s remarks suggest that the Antitrust Division will examine discovery conduct under a microscope and will take an aggressive approach to holding companies and their counsel accountable for obstructive behavior. Moreover, AAG Slater warned that obstructive discovery conduct could not only result in direct penalties but could also affect a company’s credibility in the underlying DOJ investigation.

U.S. v. Google: Judge rejects divestiture, orders targeted conduct remedies: Following last year’s ruling that Google unlawfully maintained a monopoly in certain internet search markets through exclusionary agreements with device makers and distributors in violation of Section 2 of the Sherman Act, a federal judge for the District of Columbia recently issued a decision on remedies, ordering remedies that were significantly narrower in scope than those sought by the government. The court imposed limited conduct restrictions, prohibiting Google’s exclusivity agreements for the distribution of its search products, and ordered Google to share narrowed datasets and offer syndication services to certain competitors to remedy Google’s “massive scale advantage.” As Google is expected to appeal the court’s monopolization finding and the DOJ may appeal the scope of the remedies, implementation of the ordered relief could be delayed. 

Why it matters: This ruling is one of the most significant antitrust remedies imposed in the past quarter century and signals that courts, while possessing broad discretion to fashion remedies, remain cautious about imposing structural or other remedies that are not narrowly “tailored to fit the wrong,” especially in dynamic, fast-moving markets. This decision also suggests that courts are willing — during the remedies phase — to look beyond the market(s) addressed at the liability phase. While Google was foreclosed from presenting evidence of artificial intelligence (AI) competition to defend against the monopoly claim, the remedies decision repeatedly invokes the “highly competitive” generative AI space to justify limiting relief. 

EC fines Google for abuse of dominance in the advertising technology sector The EC fined Google €2.95 billion for abuse of dominance in the advertising technology (adtech) sector. Following a four-year investigation, the EC concluded that Google engaged in self-preferencing practices in favoring its own ad exchange to the detriment of rivals.  It also has “inherent” conflicts of interest in the digital tools it provides to advertisers and publishers to manage, buy, and sell ad inventory online.

Why it matters: While the fine imposed on Google is large, the EC is allowing Google the opportunity to propose an alternative remedy to the divestiture of part of Google’s adtech business, despite the EC’s consistent messaging throughout its investigation (here and here) that only a structural remedy would be sufficient. In parallel, the U.S. DOJ is calling for structural remedies in the Google adtech remedies trial that began on September 22. Any divestment required in the U.S. would likely have to be rolled out in the EU too.

First review of the DMA: On August 26, the EC launched a call for evidence as part of its first review of the DMA. The consultation, which closed September 23, will inform the EC’s first review report, expected in May 2026. Notably, the call included a dedicated AI questionnaire that placed generative AI and foundational models at the center of the EC’s inquiry. The EC sought stakeholder feedback on how AI services are integrated with, or rely on, “gatekeeper” platforms — and whether current DMA rules provide sufficient safeguards for competition in the AI space.

Why it matters: This consultation marked the first formal step in the EC’s efforts to assess how the DMA applies to emerging AI markets. The AI-specific section asked about

• partnerships and integration — whether AI services depend on app stores, mobile OS, or cloud services operated by gatekeepers and if contractual terms or technical restrictions limit fair access
• access and interoperability — whether AI models and tools can access essential inputs such as distribution, user interfaces, training data, or compute infrastructure and whether defaults or design choices tilt the market
• market dynamics — the impact of gatekeeper-controlled AI services on independent developers and users, and what additional measures may be needed to preserve competition

The EC’s framing makes clear that it is considering how DMA obligations may be extended or clarified to prevent the reinforcement of gatekeeper power at the AI layer — including through bundling of AI assistants, closed distribution pipelines, or restricted access to data. This could have major implications for gatekeepers and AI developers alike, shaping rules around platform neutrality, interoperability, and data access in one of the fastest-moving areas of the digital economy.

The FTC withdraws its support for the Biden-era rule against noncompete clauses that would have rendered almost all employee noncompete clauses unlawful: On September 5,  the FTC took steps to dismiss its pending appeals in both the Fifth Circuit and Eleventh Circuit and consented to the district courts’ vacatur orders. The dismissal of these appeals and the 3–1 Commission vote to abandon the rule signals an end of the FTC’s proposal to broadly prohibit nearly all employer-imposed noncompete agreements. FTC Chair Andrew Ferguson — joined by Commissioner Melissa Holyoak — made clear in a joint statement that employers cannot freely implement noncompete clauses without risk of scrutiny because “[n]oncompete agreements can be pernicious” and “abused to the effect of severely inhibiting workers’ ability to earn a living.” FTC Commissioner Mark Meador – like Ferguson and Holyoak, a Republican nominated by Trump – provided additional guidance, advocating for a reasonableness-based standard that evaluates noncompete clauses in context, taking into account duration, field of employment, and legitimate business interests.

Why it matters: While the specter of an industrywide ban has evaporated, noncompete agreements remain governed by traditional antitrust principles. In lieu of the rule, the FTC appears to be pivoting to a more targeted, enforcement-first approach. For instance, in August, the FTC filed an administrative complaint and proposed consent order against Gateway Pet Memorial Services, the nation’s largest pet cremation provider, alleging that Gateway used broad noncompetes to stifle competition for specialized technicians. The consent order proposes prohibiting Gateway Services from enforcing existing, or entering into new, noncompete provisions, with narrow exceptions for directors, officers, and senior employees.

CMA to issue final guidance on price transparency: The CMA’s new consumer protection powers under the Digital Markets, Competition and Consumers Act 2024 allow it to enforce directly against perceived misleading pricing practices (see the Sidley Update on the CMA’s new consumer protection powers here). To clarify the application of these new (and existing) powers, the CMA recently closed its consultation into draft guidance on pricing for consumer products and services. The draft guidelines contain guidance on drip pricing, partitioned pricing, running costs, delivery fees, and other mandatory fees.

Why it matters: The CMA finished its consultation on the draft guidance on September 8; it focused on ensuring clarity and consistency between the CMA’s powers and separate existing pricing rules in regulated sectors. Once the guidance is finalized in the fall, we may see a shift toward more active consumer protection enforcement in the UK by the CMA with a particular focus on how prices are displayed in sectors without dedicated pricing regulations.