Antitrust & Competition Technology Q3 2026 Update

The third quarter of 2026 brought a greater reliance on behavioral remedies alongside continued focus on AI development, pricing algorithms, and dominant-firm conduct. President Trump nominated Adam Candeub to lead the Department of Justice (the DOJ) Antitrust Division on July 21 after the previous head stepped down in February. Enforcement authorities demonstrated a willingness to resolve competition concerns through settlements. Those negotiated resolutions, along with recent remedies decisions in the Google monopolization cases, have highlighted the ongoing debate over the effectiveness of behavioral remedies in technology markets. 

AI development and algorithmic pricing remain central to technology-sector antitrust scrutiny. A new lawsuit challenged alleged coordination among leading AI developers to slow technological advancement. The Third Circuit revived claims challenging the use of shared pricing software, emphasizing allegations about nonpublic data and common pricing recommendations. The DOJ also proposed another consent decree in its enforcement action involving RealPage’s revenue management software. 

The DOJ announced a targeted Second Request process intended to expedite certain merger investigations. Meanwhile, California’s enactment of a prohibition on unlawful monopolization and monopsonization creates a separate basis for enforcement action beginning next year. Overseas, the European Commission adopted a comprehensive framework providing guidance on abusive exclusionary conduct by dominant companies. 

For technology companies, these developments reinforce the importance of assessing how data, commercial relationships, and market power affect competition while accounting for differences among federal, state, and international law and enforcement priorities. This update summarizes significant developments in the United States and European Union during the third quarter of 2026 and their implications for transactions and business conduct. 

Google Remedies Favor Conduct Restrictions Over Divestiture

On September 2, 2026, U.S. District Judge Leonie M. Brinkema issued her remedies decision in the Google ad-technology case. The opinion came more than a year after the court’s April 2025 decision that Google violated Sections 1 and 2 of the Sherman Act by illegally acquiring and maintaining monopoly power in open-web display publisher ad server and ad exchange markets and unlawfully tying its publisher ad server and ad exchange. Although the DOJ characterized the ruling as a “significant victory,” the court declined to order the structural relief the DOJ sought, including divestiture of Google’s ad exchange, instead imposing only behavioral remedies.

The remedies include: (1) integrating Google’s publisher ad server (DFP) and ad exchange (AdX) with Prebid, an open-source industry standard for real-time bidding; (2) allowing publishers to access and export their own data from DFP and AdX to make switching easier; and (3) prohibiting AdWords from favoring Google’s ad-tech tools in bidding.

Addressing the DOJ’s concerns about compliance, Judge Brinkema pointed to pending private litigation against Google as an additional incentive to comply. She also required six years of oversight by a compliance monitor and technical committee. The decision follows the approach taken in the September 2025 Google search remedies opinion in relying on conduct remedies rather than a breakup, although the obligations differ across the two cases.

Google has said it plans to appeal Judge Brinkema’s April 2025 liability ruling, but it is unclear whether Google will seek to stay the ad-tech remedies decision pending appeal. In the separate search case, Google sought a partial stay of the court’s final judgment pending appeal, but Judge Amit Mehta denied without prejudice that request on May 7, 2026, finding that Google had not shown imminent irreparable harm, and the parties’ cross-appeals remain pending. For market participants, the practical effect of the ad-tech ruling will depend on implementation of the interoperability and data-access obligations, compliance oversight, and the outcome of any appeals.

Courts Issue Rulings in Private Actions Against Google 

Shortly after Judge Brinkema’s remedies decision was unsealed, federal judges issued several substantive orders in related private litigation. In a multidistrict litigation in the Southern District of New York, U.S. District Judge P. Kevin Castel denied Google’s motion for summary judgment against the publisher class and rejected its efforts to exclude expert opinions. The court also dismissed certain claims brought by plaintiffs Gannett and Daily Mail under New York law and set an April 5, 2027 trial date for the claims remaining in that case. 

U.S. District Judge Rita F. Lin separately dismissed claims brought by a group of consumers alleging that Google’s default search engine agreements had stymied innovation. Judge Lin held that plaintiffs had failed to establish antitrust injury because they did not put forth any evidence that better search options would have been available to them absent Google’s alleged conduct. 

AI Development and Algorithmic Pricing Face Continued Antitrust Scrutiny

Complaint Alleges Coordination to Slow the Pace of AI Development

On September 18, 2026, AI subscribers filed a proposed class action against Anthropic, OpenAI, SpaceXAI, and Google, alleging an anticompetitive agreement to slow AI development. The complaint cites a public statement by Anthropic CEO Dario Amodei calling for “coordinated pacing” of AI development and alleges that executives of competing developers publicly endorsed the proposal. The plaintiffs acknowledge potential AI safety risks but contend that the alleged agreement unlawfully restricts competition. The case raises questions about the boundary between lawful safety collaboration and agreements to restrict innovation.

Third Circuit Revives Algorithmic Pricing Claims

On July 29, 2026, the Third Circuit, in Cornish-Adebiyi v. Caesars Entertainment, Inc., reversed the dismissal of a proposed class action alleging that Atlantic City casino-hotels conspired to fix room rates through Cendyn’s “Rainmaker” software in violation of Section 1 of the Sherman Act. The Third Circuit held that plaintiffs plausibly alleged an unlawful agreement based on the exchange of current, nonpublic pricing and occupancy data. The panel reasoned that the participating casinos allegedly knew that their competitors provided nonpublic data to the platform. The decision also credited allegations of substantial adherence to the software’s recommendations and pricing behavior contrary to independent economic interests. 

The decision contrasts with the Ninth Circuit’s August 2025 ruling in Gibson v. Cendyn Group, LLC affirming dismissal of a similar case involving Las Vegas casino operators’ use of a pricing algorithm. Although there were differences in the allegations and arguments on appeal, the divergent outcomes underscore uncertainty over how courts will assess algorithmic pricing claims. Taken together, the decisions highlight the importance of the specific allegations about the nature of information shared, mutual awareness, and adherence to pricing recommendations. 

The DOJ Settles Algorithmic Coordination Claims

On September 4, 2026, the DOJ proposed a consent decree with Pinnacle Property Management Services, LLC in its lawsuit challenging the use of RealPage’s revenue management software. If approved, the decree would prohibit Pinnacle from using pricing algorithms that rely on other landlords’ competitively sensitive data to generate pricing recommendations and from sharing such information with competitors. The DOJ previously reached settlements with RealPage and four other large landlords. The proposed settlement signals continued regulatory focus on pricing algorithms.

Enforcers Use Settlements to Resolve Competition Concerns

Two other significant settlements illustrate enforcers’ willingness to resolve pending litigation through negotiated remedies. Both the Paramount Skydance–Warner Bros. settlement and the Zillow–Redfin settlement involve multiyear operating requirements, combining performance obligations with more traditional reporting, monitoring, and enforcement mechanisms.

On September 21, 2026, 12 state attorneys general agreed to settle their challenge to Paramount Skydance’s acquisition of Warner Bros. Discovery. The consent decree will require the combined company to meet theatrical-film-release commitments and increase domestic film-production spending, negotiate deals for current Paramount-owned and Warner-owned basic cable channels separately, and establish an independent editorial board to monitor editorial independence at CBS News and CNN. 

The states challenged the merger after the DOJ declined to do so, and while California enforcers praised the settlement, critics were disappointed. Opponents complained that the settlement does not require divestiture, although it provides for such a remedy as a consequence of certain failures to comply. The parties defended the proposed consent decree against objections, including those raised by Senator Cory Booker. Despite these criticisms, U.S. District Judge Araceli Martinez-Olguin approved the settlement on September 30, and the Supreme Court summarily declined to enjoin the merger on October 5, clearing the path for the merger to close on October 6.

On August 24, 2026, the Federal Trade Commission (FTC) and five state attorneys general announced a settlement resolving a lawsuit challenging a rental listings syndication deal between Zillow and Redfin. In the challenged February 2025 agreement, the FTC alleged that Zillow paid Redfin $100 million to exit the market for multifamily-rental internet listing services and exclusively republish listings provided by Zillow. If approved, the settlement agreement contains provisions regarding Redfin’s reentry into the market within six months, allowing it to sell rental advertising and display its own listings, and preserving its access to syndicated Zillow listings. 

These settlements reflect an FTC inclination toward negotiated remedies that prescribe output commitments, investment, and market reentry. Companies considering transactions or collaborations with rivals should assess whether transfers of customers, employees, or business functions could eliminate an independent competitor. Parties negotiating settlements should also evaluate the feasibility and cost of operational commitments and consequences of noncompliance. 

The DOJ Introduces Expedited Path for Merger Reviews 

On July 23, 2026, the DOJ released an updated Model Timing Agreement introducing an “Expedited Consideration” fast track for merging parties responding to a Second Request, a lengthy and costly demand for documents and data. The new option offers a formal mechanism for parties to present information to the government and receive a substantive response on an expedited basis. 

If the parties elect to use the fast track at the outset of the investigation, they work with the DOJ to identify priority documents and custodians and must produce those materials on an expedited basis. A senior company official overseeing compliance must certify that each party’s priority production is accurate and complete. The DOJ then must offer the parties a meeting with DOJ leadership within 21 days. After the meeting, the DOJ has 14 days to formally notify the parties whether it will close the investigation, narrow its requests, or proceed with the full review. 

The expedited option does not guarantee a favorable or early resolution. If the DOJ decides that it needs more information, the parties must comply in full with the Second Request. 

California Expands Antitrust Laws to Cover Single-Firm Conduct

On September 30, 2026, Governor Gavin Newsom signed Assembly Bill 1776, also known as the Competition and Opportunity in Markets for a Prosperous, Equitable, and Transparent Economy (COMPETE) Act. Effective January 1, 2027, the law expands California’s existing antitrust statute and, for the first time, authorizes California public enforcers to challenge single-firm conduct under the Cartwright Act.

For more than a century, the Cartwright Act has focused on anticompetitive agreements among multiple firms, leaving California to rely on the federal Sherman Act to address unilateral conduct. AB 1776 changes that framework, making it unlawful under California law for a single firm to monopolize or monopsonize a market.

AB 1776 is part of a broader shift in California antitrust law. AB 325, effective since January 1, 2026, restricts the use or distribution of a common pricing algorithm as part of an unlawful agreement and changes the pleading standard for Cartwright Act conspiracy claims. SB 25 requires certain parties making federal premerger filings on or after January 1, 2027 to submit copies to the California attorney general. These statutes, coupled with recent state-led challenges, point toward a California antitrust regime that is increasingly independent of federal doctrine and enforcement priorities.

New Article 102 Guidelines Strengthen the Framework for Challenging Exclusionary Conduct

On September 3, 2026, the European Commission adopted its first Guidelines on the application of Article 102 TFEU to exclusionary conduct by dominant firms. The Guidelines conclude a process that began with a call for evidence in 2023 and replace the 2008 Guidance Paper, which focused primarily on the Commission’s enforcement priorities and no longer reflected the evolution of EU case law or enforcement practice. The Guidelines formally replaced the 2008 Guidance Paper on October 10, 2026.

The new Guidelines seek to bring together two decades of jurisprudence, including cases such as Intel and Google Shopping, into a coherent analytical framework. They center on two questions: whether the conduct departs from competition on the merits and whether it is capable of producing exclusionary effects. The Guidelines also endorse a sliding evidential approach under which the Commission may rely on less case-specific evidence where the conduct is considered inherently more likely to harm competition. Compared with the 2024 draft guidelines, the final version is more restrained. Notably, it restores the statement that dominance will generally be unlikely below a 40% market share and narrows and reframes the presumptions of exclusionary effects proposed in the draft while retaining presumptions for certain conduct, such as exclusive dealing.

For technology companies, the most important aspects concern digital markets. The Guidelines expressly recognize factors such as data accumulation, data-driven network effects, ecosystem dynamics, and AI-related advantages as potential barriers to entry. They also confirm that dominance may exist below a 40% market share where customers are significantly dependent on the undertaking concerned.

The Guidelines also address two categories of conduct that have been particularly relevant in recent platform investigations. First, they recognize that restrictions on access, including refusing, delaying, or imposing unreasonable conditions on access to an input, may be abusive even where the input is not indispensable. The stricter indispensability test is reserved for cases where a dominant firm is asked for the first time to grant access to an input it developed for its own use. Where a platform or input was designed with third-party use in mind, indispensability is no longer a prerequisite, although it remains relevant to the assessment. Second, the Guidelines provide a framework for assessing self-preferencing. While self-preferencing is not presumed unlawful, it is likely to face strict scrutiny where a dominant firm controls access to a platform or ecosystem or acts contrary to expectations of neutrality and uses that position to favor its own products or services in a neighboring market.

The Guidelines form part of a three-part antitrust framework for regulating large technology platforms in Europe. The forthcoming merger control guidelines, published in draft in April 2026 and discussed in our 1H 2026 update, would treat the entrenchment of market power as a standalone theory of harm, recognize interoperability restrictions as a form of foreclosure, and limit the reliance on innovation-based arguments where markets are highly concentrated or the deal involves a merging party with significant market power. Alongside this sits the Digital Markets Act itself, which imposes ex ante obligations on designated gatekeepers without requiring the Commission to establish dominance, define a relevant market, or prove anticompetitive effects.

As a result, the center of gravity for many platform cases has shifted from Article 102 to the DMA. Self-preferencing, interoperability, data access, anti-steering provisions, and default settings are now addressed through detailed regulatory obligations that can be enforced much more quickly under the DMA than traditional Article 102 abuse of dominance proceedings. The contrast is stark: the Google Shopping investigation took more than a decade to progress from complaint to final judgment, whereas the 2026 DMA specification proceedings on Android interoperability were completed in less than six months.

Article 102 nevertheless remains highly relevant. For companies that depend on access to platforms, ecosystems, data, infrastructure, or interoperability provided by larger technology firms, the Guidelines provide a clearer framework for challenging conduct that may restrict competition. In particular, the Commission’s willingness to rely on qualitative evidence in assessing certain forms of non-pricing conduct may make it easier to scrutinize restrictions on access, interoperability, ranking, and other practices that can disadvantage competitors.

Outlook

The coming months will test how recent conduct remedies work in practice while courts and enforcers continue to define the boundaries of lawful competition. Implementation of the Google ad-tech remedies and the obligations in the Paramount–Warner and Zillow–Redfin settlements will warrant close attention, alongside appellate review in the Google cases. AI collaboration and algorithmic pricing will remain areas to watch as courts distinguish lawful cooperation and independent decision-making from coordination among rivals. California’s new monopolization and premerger-notification provisions, effective in January 2027, will add to the demands on businesses operating across jurisdictions, while the European Commission’s Guidelines clarify its approach to dominant-firm conduct. 

For technology companies, practical priorities include reviewing the use of pricing tools, assessing the competitive effects of commercial arrangements, and documenting the rationale and expected benefits of conduct that may attract scrutiny. Transaction planning should also account for state enforcement and the cost of any continuing operational commitments. We will continue to track these developments in future updates.