On the latest episode of “Fierce Competition,” antitrust/competition partners Bill Batchelor, Evan Kreiner and Aurora Luoma report back from the ABA 2026 Antitrust Spring Meeting, where over 3,500 officials and practitioners gathered in Washington, D.C. to discuss the most pertinent issues in competition law today. Distilling the highlights from the conference, our attorneys cover the latest in merger control — from the CMA’s “4 Ps” framework to the EU’s revised guidelines and the fate of the FTC’s expanded HSR form — as well as cartel enforcement trends including AI-driven investigations and algorithmic pricing, and key market power developments in digital regulation and social media.
Episode Summary
The ABA 2026 Antitrust Spring Meeting gathered antitrust lawyers and practitioners – some 3,500 of them – for 70 panels in Washington, D.C. Host Bill Batchelor reports back along with Skadden antitrust/competition partners Evan Kreiner and Aurora Luoma. Drawing out the central themes from the conference, they cover the latest in merger control — from the CMA's "4 Ps" framework to the EU's revised guidelines and the fate of the FTC's expanded HSR form — as well as cartel enforcement trends including AI-driven investigations and algorithmic pricing, and notable market power developments in digital regulation and social media.
Voiceover (00:00):
Welcome to “Fierce Competition,” a podcast from Skadden's Global Antitrust/Competition Group that explores antitrust policy and enforcement around the world. Join our colleagues from across the continents as we discuss the latest developments and what they mean to you in an increasingly complex legal and regulatory landscape.
Bill Batchelor (00:20):
Welcome one and all to “Fierce Competition,” where this week our experts report back from the Woodstock of antitrust lawyers. Yes, it's the ABA Spring Meeting report. Officials and practitioners across the world, some three and a half thousand in total, have all met in Washington D.C. across 70 panels, myriad ballrooms and conference rooms to discuss the topics du jour in antitrust.
(00:50):
And with me today to distill the highlights from this three-day conference, we have Evan Kreiner, my partner from New York, and Aurora Luoma from our London office to cover the U.S. and UK respectively. I'll be doing my best to match them blow for blow on the highlights from the EU. Right. We've got it broken down into merger control, cartels and market power, and let's go straight to merger control. Aurora, all the excitement has really been about the UK where we've been seeing a complete all-change in UK merger control with the promise of more to come.
Aurora Luoma (01:26):
That's right, Bill. The UK CMA has been rapidly shifting its approach to merger control enforcement in the past 18 months or so. What we heard at the ABA conference was a continued emphasis from the CMA officials on its shift to what it calls its "4 Ps" framework. So that's greater predictability, pace, process and proportionality in merger review. And as we know, this is part of the CMA's repositioning since the new government came in 2024 to reassess its stance and its procedures for merger control, to be more business friendly, to support economic growth and for the UK generally to be seen as a good place to do business.
Bill Batchelor (02:02):
Well, on “Fierce Competition,” we love an acronym. So “4 Ps” sound great. But what are we seeing in practice? How has that really affected day-to-day cases? Were the officials saying that you can see this in our output as well as in what we're saying?
Aurora Luoma (02:17):
This is a very good question, Bill. I mean, as practitioners advising on mergers, including in the UK, we are certainly seeing some changes on the ground in terms of how the CMA is approaching cases. One of the flagship changes — compared to say the post 2019, pre 2024 period — is the CMA's been keen to emphasize that it's going to take a more thoughtful approach to the types of mergers that it looks at. And particularly it may choose not to review mergers that are primarily global in nature that are being looked at by other authorities such as say the U.S. competition authorities or the EU and which don't have a particular UK angle. Now, that of course is a pretty radical change from what we saw in the 2019 or post 2019 period where the CMA was very well known for intervening in all types of transactions, including global deals where apparently there was little specific or direct nexus with the UK, or at least not any unique or different nexus to other major jurisdictions.
(03:13):
So what are we seeing on the ground? We are seeing the CMA perhaps take a closer look at which transactions it's reviewing. There are some deals, particularly relating to global markets such as tech or digital markets, where perhaps the CMA is choosing not to look at deals that it might have looked at quite carefully a couple of years ago. We're also seeing some procedural changes. The CMA, and we heard this again at the conference, is very keen to emphasize that it's looking and re-reviewing its procedures to make sure that they are as open and transparent as possible, that there's flexibility where it's needed. And it's generally a better user experience for businesses that do notify to the CMA and need to go through the merger review process.
(03:51):
So whilst all of that is still playing out on the ground, we're certainly seeing a change in the way that the CMA is looking to review in terms of the speed and the efficiency of review, and also in terms of the nature of their engagement with businesses, with a view to being more transparent and having less surprises for parties who are going through a merger review.
Bill Batchelor (04:11):
And what I'm hearing is there's an organization known as the panel that could be up for review as well. What is this organization and is it true there could be changes in future?
Aurora Luoma (04:21):
So that is one of the hottest topics at the moment, I would say, in the London antitrust market. Traditionally, the CMA has had a system where the first review of a transaction, the so-called phase one, is undertaken by the CMA. But if issues are identified that warrant a more detailed review — which can take six to eight months or more and generally applies to only a handful of cases, perhaps six to 10 per year — then that review is undertaken by a separate body, which is called the panel. And the panel is a body of experts who are not part of the CMA, but are a standing body of individuals who review phase two transactions, bringing sort of impartiality and expertise to that review.
(05:01):
The latest proposals, which have been put forward by the government for consultation, suggest abolishing the panel and introducing a system where the CMA would be accountable for review, both at phase one and phase two, but with input from a third-party panel. But the decision, the final decision, would shift to the CMA. And the purpose for that is to allow the CMA to be fully accountable for decisions that it takes both at phase one and phase two.
Bill Batchelor (05:25):
So turning then to the EU. The big story of the event is what's not happened or not happened yet in the EU, because of course the EU is about to release their revised merger guidelines. This hasn't been updated for the last 22 years, and in those two decades, there has been a huge amount that's happened. All sorts of new theories of harm have been applied, efficiencies have been looked at, and there's been a huge amount of both public debate and lobbying, no doubt, amongst companies saying, "Is merger control really working as intended?" And particularly a very senior official called Mario Draghi released a report saying, "Is excess or poorly applied merger control having a negative effect on European productivity and competitiveness?" So here we did have a couple of sneak peeks from senior officials attending the conference, both at the director and acting-director-general level.
(06:23):
So first up, we have a lot of debate around efficiencies. Now, if the regulator shows your merger is potentially anticompetitive, then what can you do? Well, one defense that is, at least in theory, available to use is to show, “Well, we’ve become much more efficient. We’ve become better at doing what we're doing. We lower marginal costs, competitiveness, consumers benefit. Innovation should prosper.” In practice though, it's been really hard to make that efficiencies defense work so much so that some have dubbed it the efficiencies offense. What we heard from very senior EU officials is they are very serious about getting a sensible efficiencies test through the revised merger guidelines. Now, they're not going to be a soft touch. There are quotes like, "We want to avoid efficiency washing — just mere promises, provide us something that's based on the evidence.” But a real willingness, it seems, to put down the kinds of things that might provide that evidence of how your efficiency might dispel any potential concerns of anti-competitive effects in your merger.
(07:26):
I still think you've got to be quite brave as advisers to say, "Go in with your efficiencies defense” even before you've argued about whether there could be an anticompetitive effect at all. It does perhaps look like you don't have other arguments, but officials even there have said, "Well, come to us. We have an open mind," they say. We will look at your efficiency story and then try to understand whether this is something that we should take into account when assessing your review. The other thing I’ve got to mention, which is something that EC officials have looked at in the past, but is not one of particular currency, is common ownership. So when you have common ownership of competitors within an industry, even if that's just a minority stake, then could you have competition concerns? And the EU chief economist, speaking at the spring meeting, said, Yes, we continue to look at common ownership. Could that be an issue? What could the conduit of potential competition concerns be if we have minority stake across common competitors within an industry?
(08:27):
And that too, one anticipates will be something we can see feature in the revised merger guidelines. Not mentioned is everything else we were so keen on seeing in the revised merger guidelines. So all sorts of promises we're hearing about what they might contain — will they address the innovation theory of harm, something promulgated in Dow DuPont, now a good 10 years ago, but something where could they put more limiting principles into that oft-spoken about, but not so often deployed theory, the ecosystem theory. So one which the EU has deployed in recent cases to say, Well, you're so strong now. And any increment, even if it's not in the same market could be a concern for us. Either theory, so you're acquiring somebody who has a particularly hot source of information. Do we have concerns that that might lead to anti-competitive effects post-merger?
(09:19):
So all of those we anticipate will be the subject of revised guidelines, but we don't know yet. All eyes on the end of this month —possibly next month, it could slip into — when those could be revealed.
(09:33):
So Evan, over to the U.S. You seem to be in a bit of a to and fro as to how you notify mergers. That must be something the framers of the HSR Act are very confused about.
Evan Kreiner (09:45):
Yes, that is a debate among the framers. But unlike with the UK and EU, at the spring meeting, we didn't have any panelists from either the FTC or the DOJ, so a lot of the talk here is speculation among panelists and then observations that they've seen in merger control over the past year. And in the U.S., Bill, like you mentioned, there was a lot of talk about both the form and the substance of merger reviews. And when I say form, I mean that quite literally because the expanded HSR pre-merger notification form that was adopted during the Biden administration and went into effect in February 2025 was struck down a few weeks before the conference in February 2026, and that injunction is not going to be stayed pending appeal. So it's back to the old form, at least for now as that appeal goes through the courts.
(10:42):
On the form, another topic of conversation was what, if anything, is going to replace the old HSR form if we go back to it. During the conference, Chair Ferguson and the DOJ actually put out some requests for comment on what should go into the new form, but all of that is pending further development. So there was a lot of speculation about what might replace the form, but again, nobody really knows. On to the substance, there was speculation at the beginning of the Trump administration that the merger guidelines that were adopted during the Biden administration in 2023 would be pulled. That hasn't happened yet. There was a lot of question about why hasn't that happened among panelists and the prevailing theory is some combination of inertia, resource constraints and, because the guidelines aren't really binding, the DOJ and the FTC don't really need to follow them, it's not worth the effort to replace them.
(11:41):
While the FTC and the DOJ didn't have folks on panels, there were a bunch of state enforcers and a big topic of debate was what expanded role are state antitrust enforcers going to play during the Trump administration. And so this followed a lot of observations by many panelists about the Trump administration's apparent and newfound openness to settlements in merger litigation, including with the ANSYS/Synopsis transaction, HPE Juniper, and a couple of deals that they let go through with Compass Anywhere and Nexstar-Tegna. And with a few of those and the Live Nation trial that's going on right now in the Southern District of New York, state enforcers have stepped up either to challenge a settlement or to pursue litigation.
(12:29):
With all that, another development from the past year that folks talked about was new state pre-merger notification rules and what impact that's going to have on merger review going forward. Two states in the past year actually had those types of rules go into effect, Colorado and Washington. The results, unclear. Colorado and Washington haven't really taken any actions following up on any mergers that were notified to them through that process, but it does add another layer of review for merging parties to contend with, especially now that similar bills are being considered or have passed in other states like California and New York.
Bill Batchelor (13:08):
So just when we thought it was the EU that had the monopoly on thorny jurisdictional issues between member states and Brussels, and also the monopoly on strange forms to fill in, it turns out that the U.S. might be having an even more interesting story emerging over there.
Evan Kreiner (13:25):
Hold onto your seatbelts.
Bill Batchelor (13:26):
Got it. Well, from the high arts and politics of merger control down into very much the dark arts of cartels, what's been going on on cartel and antitrust. And there, I think I can steal a march on my London and DC colleagues by saying there's been lots of excitement in the EU. What? Surely not, you say. Cartels are pretty much old law. There can't be that much that's new, but actually there was quite a lot. Again, we had very senior officials, director general, director of cartels level at the ABA Spring Meeting, and they gave us a couple of peeks into what they're looking at. So from the top, no poach has been very hot in the EU. We had a big 329 million penalty in the food delivery sector where it was alleged that parties agreed not to hire each other's staff. And there's apparently another one which is currently under review.
(14:18):
We had dawn raids about two years ago. We hadn't really heard much about it since then, but officials confirmed, yes, it's ongoing. We're looking at the construction of data centers and whether or not the companies constructing the data centers agreed not to poach each other's technicians. And one might think there you could foresee there must be huge demand for the right kind of engineering talent there and quite a lot of competition to make sure you retain their services. And perhaps in the course of that, there could have been a temptation to reach out to the other side's hiring team to say, "Well, let's bury the hatchet here.” Who knows? Well, we'll see what comes of that one. One thing that we also heard is that the EU is about to release a report on the deterrent effect of its cartel enforcement. And that's been a hot topic over in the EU, not least because there's been concerns about a cartel drought.
(15:12):
And if you looked at the statistics over time, the huge penalties you had in the 2010s and in the noughties, they've really rather subsided and you're seeing a relatively low double or single digit fines coming out of the EU. The question is there a dampening effect on the interest of companies to come forward and seek leniency, which has been a big part of priming the cartel pipeline for the EU? Could that be the issue? Is the huge damages claims that we've seen in some countries in Europe and in the UK, could that be part of the dissuasive effects of wanting to come and talk to the EU, to perhaps whistle-blow on poor conduct, which you've found? So it'd be very interesting to see the study that they've done and the outputs from that.
(15:57):
One of the things that the EU is saying it is doing, the officials confirmed this, it is taking more of its own initiative cases. So it's not waiting for whistleblowers to come in. It is looking for its own cases. They tell us they have an effective whistleblower hotline and they've actively received tips. Interestingly, even post announcement of an investigation, they've been fed with additional tips from employees saying, "Oh yes, that one you've just announced. Yes, let me tell you something about that," we're told.
(16:28):
And finally, they were very proud of the use of more sophisticated tools to detect cartels even without an inside informant. So in the Michelin case, a case about the tire industry, that went up onto appeal where Michelin set challenges on the premises’ inspection and its dawn raid in Europe where officials come to the company's premises, demanded to see the books. They take this on a challenge to the court of justice and they say, "What evidence, what threshold of suspicion did you have to come and raid us? We don't think you had it." And as part of that proceeding, the EU had to turn over the evidence they had and it was extremely interesting.
(17:10):
So the EU said, Well, we looked at a number of industries using an AI tool, that passed public statements made by companies across an industry. And we used this to identify certain statements made in earnings reports, particularly amongst you, Michelin, and your peer competitors. And from that, we had a reasonable suspicion that you might be coordinating on prices. Now, only a suspicion, go long, long way from meeting your burden of proof, but that was sufficient in the court's view to reach the threshold for starting a dawn raid. An extremely intrusive investigative step, or basically closing down the trading floor or the business parameters of company while you have officials looking at data and so on.
(17:54):
It was very interesting to see that the court is adjusting to the new tools of the European Commission and allowing cartels to go forward on that basis.
(18:03):
And then Aurora, over to you for what's happening in the UK.
Aurora Luoma (18:06):
So a lot of similar themes I think were here in the UK and were discussed on some of the panels at the conference, which is, as you say, how to maintain momentum in cartel enforcement in circumstances where it's not always attractive. As you say, for companies to come forward, given the potential broader consequences. And again, from the CMA, we've seen both at the conference and more generally a focus on using internal tools and data-driven analytics to try and detect misconduct that requires further investigation. We have also seen a number of instances, I think, in Europe generally and not just the UK where there appears to be a timing coincidence between mergers that have been reviewed by the authorities and then sometime after investigation. So one can speculate whether the review of certain mergers could have triggered the interest of the authorities such as the EU or the CMA.
(18:54):
One particularly interesting area of focus for the UK that we're seeing, they are targeting very much particular areas to think about from point of view of cartel enforcement. One of those is, as you might expect, government contracts and procurement where they're particularly well positioned to use the data from tenders that are being submitted to try and establish whether there's any potential collusion by those who are bidding for contracts, and also a clear and direct interest in enforcing that area to reduce costs for the government. Another one which has been much waited for in the sense that we've seen a lot of activity in the U.S. on this topic, which Evan may talk to, is the focus on the use of algorithms by companies. So most recently, the CMA launched an investigation into a group of hotels in relation to alleged illegal information sharing, and in particular, using a data analytics product of one of the parties subject to the investigation to share sensitive information.
(19:50):
Now, of course, companies do use various types of data analytics and algorithms to help them make commercial decisions. This can bring benefit, but also the competition authorities have identified potential risks of using data analytics tools in certain ways gives too much transparency as to how your competitors are reacting to market conditions and how they think about pricing. As I mentioned, we've seen this kind of investigation in the U.S., we've seen an interest in investigating the use of new technologies in the UK. So this is a case that'll be very interesting to see unfold, although usually investigations take two to three years, so we may have to wait a little while until we get more clarity on how the CMA is thinking about this.
Bill Batchelor (20:30):
Well, indeed, one to one. I mean, which company these days doesn't use data analytics as part of their benchmarking of their performance. So definitely want to watch.
(20:39):
Evan, we're told, perhaps rather chillingly, by UK officials that they are watching and learning quote from what's happening in the U.S. around AI and collusion and cartels more generally. What would they be watching and learning?
Evan Kreiner (20:53):
Well, I think the question there is whether they're watching it and learning from it using their human eyes and ears, or whether they're using their own AI tools for that type of learning. Bill, as you might be aware, algorithmic pricing and information exchanges were quite a hot topic at the spring meeting as it relates to US antitrust law developments, but there was one session on algorithmic pricing that was standing room only. It had quite a lead panel there, including yourself.
Bill Batchelor (21:23):
I hear they were excellent speakers.
Evan Kreiner (21:25):
Yes. Bill and other esteemed panelists gave a standing-room-only crowd an overview of developments in the antitrust law around pricing algorithms. And indeed, this is quite the dynamic area of law in the U.S. and US courts where multiple cases, including some brought by state attorneys general, the federal DOJ, and then private putative classes alleging that software that companies use to set price violates section one of the Sherman Act. We've seen development now, mostly at the pleading stage, when all of the plaintiff's allegations need to be treated as fact, even if they might not match actual commercial realities. There's been somewhat of a reticence by courts to treat use of this type of off-the-shelf software as a per se violation of the Sherman Act. Instead, they've mostly leaned towards treating them under the rule of reason. And in determining whether, even under the rule of reason, you can state a claim that a pricing algorithm might violate the Sherman Act.
(22:39):
Courts have seen coalesced around a few key points. Some of those are what type of information is going into the algorithm. If it's users’ confidential information that they don't typically share, that would lean towards allowing the case to proceed. And then is there plausibly some type of agreement to follow the pricing tools recommendations? If there are, if adherence to the recommendations is particularly high, that's also a fact that could contribute to a case proceeding past a motion to dismiss. And then also how configurable is a tool? Is it something that users can manipulate to get to different pricing outcomes? If it's more configurable, then it's less likely to suggest that there's some sort of unlawful agreement.
(23:22):
Also in pricing algorithms, there have been settlements in the DOJ's case against RealPage and some users of RealPage that some in the antitrust community have looked at to consider what the DOJ might consider kosher in terms of the types of inputs that pricing algorithms can use and that can be exchanged among competitors and what might fall, at least in the DOJ's mind, on the opposite end of the law.
(23:49):
Last here on pricing algorithms, there's been a number of state laws that have been passed in New York and California related to the use of pricing algorithms and which ones might be lawful or unlawful. And those state laws typically focus on whether confidential information is or isn't going into the tool.
(24:09):
The other item on people's minds with respect to the section one of the Sherman Act that came up quite a bit was what might be increased focus by the DOJ on no-poach cases. This is an area of law that a lot of people had expected to subside after the DOJ had a string of losses in the criminal context when they brought no-poach cases. However, they've recently filed a statement of interest in a private case in the Southern District of Florida where they said, contrary to holdings by the Fourth Circuit and the Third Circuit, in no-poach context, when you have combined vertical or horizontal restraint, it could still be considered a per se violation of the Sherman Act.
(24:55):
And so folks have looked at that and done some tea-leaf reading, anticipating that there might be some increased criminal enforcement, the no-poach area of antitrust law.
Bill Batchelor (25:06):
Oh no, that is a good heads up in terms of compliance steps. We should be thinking about good tea-leaf reading indeed.
(25:13):
Right. So from cartels then to market power. And while there was so much to choose from, really the question is, how can we give our “Fierce Competition” listeners the top cases of the conference? I think, Evan, I think for Aurora, avid social media users amongst our audience participants, I think we have to let you lead off here with the FTC and Meta decision.
Evan Kreiner (25:38):
Yes. So the FTC and Meta decision, Judge Boasberg's decision providing judgment for Meta in the case that the FTC brought was top of mind for a lot of people for a number of reasons, one of which was a practice pointer or a suspicion of where the DOJ or the FTC might bring future enforcement matters. FTC v. Meta was brought in the District of Columbia, and it was brought some number of years ago, five years ago. And in that time, as Judge Boasberg noted in his decision, there's been a lot of change that's happened for Meta's products in the social media industry writ large that have changed the competitive landscape, which was particularly significant because in that case, the FTC was seeking forward-looking relief and the court had to evaluate competitive conditions at the time of the order. And so there was speculation, again, that in the future, the FTC and the DOJ, when they bring these types of enforcement actions, will go to courts known for having a rocket docket, particularly the Eastern District of Virginia as they did in the Google Ad Tech case.
(26:46):
On the substance, people were quite interested in Judge Boasberg's evaluation and analysis, both the market that Instagram and Facebook, Meta's products that were challenged by the FTC, that Instagram and Facebook participate in, as well as how Judge Boasberg considered whether or not Instagram and Facebook have market power. So market definition in that case was hotly contested. On the FTC side, they said that personal social networks of which there were only four, according to the FTC, and those are Facebook, Instagram, Snap, and much lesser-known product called MeWe, these types of personal social networks that aren't focused on reels or providing videos, but really on personal connection, that those comprise their own market. And on the other side, you had Meta saying that's not the commercial reality that we face. The commercial reality that we face is that we're competing for users, time and attention in these apps.
(27:52):
And there's a whole plethora of options, including stuff outside of your phone, but there's a whole plethora of options, including YouTube and TikTok that users really toggle between from Facebook and Instagram and that compete for user time and attention. And in support of their position that you have this broader network of apps and competition for user time and attention, Facebook put forward a bunch of studies. There were some natural experiements where either Facebook or Instagram or TikTok were down in different locations and Facebook's or Meta's internal documents which show that they're considering competition from a whole bunch of other sources beyond what the FTC labeled as personal social networking sites or apps.
(28:42):
And so that was the position Meta took. The FTC on the other hand said that you can't really look at any of that. There are really distinct uses and characteristics of these personal social networking apps and they should be considered in their own market.
(28:57):
At the end of the day, Judge Boasberg, in what was a pretty well-reasoned opinion, he took those commercial realities into account and said, "No, you have a broader market here for user time and attention that includes at least YouTube and TikTok." And then from there, he went on to consider whether in that broader market, Meta had market power, and he pretty readily concluded that they do not. Notably here, the metric for market power and market share was the time spent on apps. Because these apps are free, you can't, at least according to Judge Boasberg, you can't really look at share of money spent in these markets, but instead you have to look at time spent on the apps. And then once you include YouTube and TikTok, Meta's market share is too low, and also it didn't have the other indicia of market power that you'd typically see.
(29:56):
I'd say that the balance of the opinions on these panels was that Judge Boasberg got this one right, but it's something to keep in mind, particularly when you're dealing with technology platforms or technology, that when you're presenting these issues to a court, you have to take into account commercial realities, especially because a lot of judges are dealing with these apps, a lot of this technology on a daily basis, and they're going to be more familiar with it. And reading Judge Boasberg's opinion kind of smacked of, he, on a personal level, didn't think that Facebook and Instagram were in their own market separate from YouTube and TikTok.
Bill Batchelor (30:35):
So from the U.S. to the EU. The EU, again, a number of senior officials attending the meeting drew particular attention to WhatsApp and AI chatbots. Now, that might seem a bit niche perhaps for our “Fierce Competition” podcast listeners. But one of the things they pointed out is this was quite an interesting case on a number of levels. So first up, it starts out of the Italian competition authority. Now you might say to yourself, "Oh, surely WhatsApp is used outside of Italy” — and you'd be right —“so why are the Italians starting this case and then the EU picking it up and looking at the case outside of Italy?” A thorny jurisdictional question that may need to be addressed in future.
(31:19):
What has the EU done with the WhatsApp case? Well, the argument from the EU is we've had a recent judgment out of the Court of Justice in Luxembourg that has rewritten the refusal to deal laws. Now the refusal to deal great-granddaddy case is one called Oscar Bronner, and it's all to do with a network, but not the kind you're thinking of. It's an old-fashioned paper delivery network. And the question is there, should Oscar Bronner be allowed to be delivered by that delivery network? And the answer from the court was no, you haven't made the investments. It's not essential to getting to market for you. There are all sorts of other ways to get to the market. And we would have a very high bar indeed enforcing investors in this kind of infrastructure, if you can call delivery network infrastructure, having to share their investments. That would send a poor investment and innovation message.
(32:12):
But all that changed last year in our case called Android Auto, where the Court of Justice said, yes, Oscar Bronner is the authority on this point, but actually we need to amend that for the digital age. And we're going to say when you have developed infrastructure, a digital infrastructure that is meant to be on an open architecture. And so all sorts of different apps can be introduced into that open infrastructure. Then we're not asking, should an investor be forced to share their innovation? We're not going to say that it should be essential to compete, although it would frustrate the emergence of new products, as Oscar Bronner said. What we're going to say is it important to compete? Is it a useful way, an important way to get to market? And if it is, then the inquiry can potentially stop there if you're in a dominant market position.
(33:02):
And so although the officials were pretty clear, it would've been difficult for them to have brought this case as to whether WhatsApp can tell non-Meta AI chatbots not to be hosted on WhatsApp. After Android Auto, they felt this one was available to them. And they have taken something we haven't seen for almost 10 years now. They've taken interim measures. So they said to Meta, "You must host alternative chatbots within WhatsApp, or we will order you to do so." And Meta has turned around and said, "Oh, okay, we will do that, but they'll have to pay a fee." And that is also, of course, close reading of the Android Auto judgment where the court of justice said, "We're not saying that the owner of the open architected infrastructure needs to give it away. We are saying they could charge a reasonable fee." So perhaps the inquiry will now turn to the nature of reasonableness.
(33:57):
And so Aurora, what can you tell us about UK developments in market power?
Aurora Luoma (34:02):
So in the UK, the most interesting recent developments on the question of market power has been the CMA's application of its new digital regulation powers, which came into force at the beginning of last year. And towards the end of last year, we saw some of the first designations of certain tech companies as having what's called strategic market status, which effectively equates to having entrenched market power in the view of the CMA. And specifically, they looked at both Apple and Google and identified that their mobile ecosystems gave them entrenched market power for a number of reasons. One is that they said customers tend to use either Google's Android system or they tend to use Apple's system, and they don't tend to switch between the two. So the point being, although there are two strong systems, each of them has entrenched market power in their own. The CMA also noted that mobile operating systems are the main way that consumers then access the various content which is available on their mobile phones, and that businesses really have to develop their app and content to go through either one of those two mobile operating systems.
(35:05):
The CMA also interestingly observed that they don't see that the current technological developments are going to substantially change the position of Apple and Google in those markets. So what happens next? Well, the designation is there, and now the CMA has the power to think about what sort of conduct requirements they might impose on Apple and Google. But those are at the consultation. So one to watch to see how those look, but one can assume that there'll be a heavy dose of access requirements for both companies.
Bill Batchelor (35:30):
Well, I think on that note, Evan, Aurora, we've digested the Woodstock of antitrust for our “Fierce Competition” listeners. Festival has moved on. We're taking down our tents, trying to find our sleeping bags. But I think our listeners have had a good sense of what to look for in the coming months and coming year with those tidbits from the ABA Spring Meeting. Thank you very much.
Aurora Luoma (35:54):
Thank you.
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