This year, scrutiny over antitrust practices has intensified, and a multitude of industries are experiencing increasing attention for potential monopolistic activity. With the Federal Trade Commission’s (FTC) renewed commitment to tackling anti-competitive behaviors under Commissioner Lina Khan, the agency has launched a series of decisive enforcement actions aimed at curbing monopolistic dominance across industries which in turn will reshape the competitive landscape. But the extent of this reshaping is now in question following the conclusion of the United States presidential election, making it essential to stay ahead of the curve when it comes to navigating the evolving antitrust landscape.
In our effort to anticipate future litigation trends, we take a proactive approach to deliver insights from leading experts across industries and look at arising trends in litigation within each sector, along with issues that converge across them.
Expert Industry Insights
To understand antitrust disputes in today’s legal landscape, we asked two of our esteemed experts to offer insights on the trajectory of their industry as regulations continue to rapidly evolve. These experts are true professionals in their field and were carefully selected for their knowledge, experience, and ability to communicate effectively.
Antitrust Disputes in Gaming: Assessing the Google App Store Case
The recent antitrust case against Google’s app store highlights alleged monopolistic practices in the digital marketplace, with claims that Google uses its control over Android and the Play Store to stifle competition and inflate consumer costs. Central to the case are Google’s in-app purchase policies and developer fees, which plaintiffs argue limit choices for users and developers alike. The outcome may set a precedent for regulating tech giants and could reshape app store policies industry-wide.
To better understand how this could create continued competition in the space, we asked WIT’s gaming pioneer and expert Josh Grant for his thoughts.
WIT: How do the security benefits of curated app stores compare to the potential for increased competition and innovation that could result from allowing users to sideload apps on the Android operating system?
Grant: Walled garden app stores—where the platform tightly controls content submissions, enforces policies, and tests for security—have historically been safer for consumers by reducing risks like malware, hacks, scams, and system instability. This approach is common across major platforms, including Apple’s iOS and Microsoft’s Xbox, where a small group determines what content is available to users. While these stores offer stability and protection, they also restrict consumer choice, locking users into specific hardware and fee structures that often return 30-60% of revenue to the platform.
Today, the notion of “side loading” is a bit obsolete. Side loading—installing content from outside the app store, often by connecting a device to a computer—offers maximum consumer choice and lower costs but comes with added security risks. On open platforms like Android and Windows, users can choose to shop within a walled garden or side load apps and accept the associated risks and benefits. On more restrictive platforms like iOS and Xbox, however, this option is removed. This situation recalls Microsoft’s 1990s practice of tying computers to its OS, which led to antitrust suits that they eventually lost. Today, as seen in the Epic Games suits, consumers on open platforms could soon access trusted “store within a store” options, where competition between storefronts might lower prices and raise service standards, blending the best of both models.
WIT: Is having one dominant player in the market a good thing in terms of setting a universal standard and setting the direction for future innovation?
Grant: In my experience working in the tech space over the past 20 years, monopolies generally do not benefit consumers in Western, market-based economies governed by democratic principles. In certain essential industries like water, electricity, or gas, “natural” monopolies might exist due to high capital costs, but even these sectors often see deregulation over time, leading to more participants, innovation, and lower prices. Notable examples include the Airline Deregulation Act of 1978 and the Telecommunications Act of 1996, both of which dismantled “natural monopolies” and resulted in greater consumer choice and reduced costs.
In tech—and particularly in interactive gaming—consumers benefit most when vibrant competition exists for both hardware and software, allowing distinct choices at the consumer level. History shows us, from railroads to telecommunications, that monopolies or regulated monopolies rarely serve consumers’ long-term interests. Today’s tech monopolies or duopolies should be critically examined, especially as the cost of serving each additional user is minimal, contrasting with the heavy fixed costs traditionally associated with monopolistic industries.
Antitrust Disputes in Fintech: Understanding the DOJ v Visa Conflict
In September 2024, the U.S. Department of Justice (DOJ) filed an antitrust lawsuit against Visa Inc., alleging that the company maintains an unlawful monopoly in the debit card market. The DOJ contends that Visa employs exclusionary tactics to suppress competition from rival payment networks, leading to higher fees for merchants and consumers. Specifically, the lawsuit claims that Visa imposes penalties on merchants and banks that opt for alternative processing technologies, thereby limiting market choices and innovation. Visa has dismissed the allegations as meritless and is preparing a legal defense. This case underscores the ongoing regulatory scrutiny of dominant players in the financial sector and could have significant implications for the payment processing industry.
To better understand how this could create continued competition in the space, we asked WIT’s fintech authority and expert Steve Mott for his thoughts.
WIT: Given that payment networks become more attractive to users as more people use them and can offer lower prices due to their size, how does this impact the ability of new companies to compete and introduce new financial technologies?
Mott: In theory, networks gain efficiency from scale, both operationally and through “The Network Effect,” where more users attract more participants, increasing overall value. Monetizing a network, however, is challenging in the digital age, as users often expect networks to be “free,” with advertising revenue covering costs instead of direct fees. Cell phone networks exemplify this, as access is typically marketed interchangeably by multiple distributors, making it a commodity where value relies on add-on services and device improvements, while consumers are incentivized by bundled pricing to switch providers.
In contrast, payment card networks are the main exception to this commoditization rule, having built a two-sided network connecting buyers (consumers) and sellers (merchants) with banks (card issuers) acting as distributors and capturing roughly 75% of the fees through the interchange. Once these networks reached critical mass (when, in the early days, issuers even paid merchants interchange fees to encourage card acceptance), scale became a significant moat for incumbents, making it nearly impossible for new entrants—even those with better solutions, like PayPal—to gain substantial market share. This entrenched dominance has led the DOJ and some in Congress to push for reforms that could alter the rules and practices governing these networks.
WIT: Is having one dominant player in the market a good thing in terms of setting a universal standard and setting the direction for future innovation?
Mott: It depends on how the standard is derived. Google could be said to have set a standard for online search and advertising as the dominant player, driving today’s direction for use. But does that direction truly constitute “innovation”? Many would think not. An “industry standard,” built from inputs from a wide range of providers and participants across the ecosystem, is more likely to reflect the best contributions from the broadest group and support a process that adapts and evolves to foster ongoing innovation. That’s the theory, but rarely the practice. When an industry doesn’t fully “own” its standards, it often defaults to the lowest common denominator for broader acceptance (as seen in U.S. payment networks), prioritizing network growth and usage over managing costs, fraud, and misuse.
Take security, for instance. NIST (the National Institute of Standards and Technology) gathers input from financial services and related industries, sets standards, but faces only modest adoption—even from the federal government, which sponsors it. In payments, the major brands created their own technical standards body, EMVCo, to establish “standards” for card payments (and now other payment modes), enabling legacy networks to claw their way to incremental security improvements while avoiding wholesale transformations, like adopting robust encryption, that would challenge their historic positions. While these improvements cost less than ongoing losses from breaches, fraud, and chargebacks, industry groups setting “standards” tend to invest in minimal change today rather than saving more tomorrow. Without a universal body to enforce compliance, achieving true security and efficiency remains elusive.
Reach out to learn more about WIT’s expert teams in these and other evolving areas of technology, created to address what we expect to be the key areas of litigation in each of their sectors. We have experience working with clients on a wide range of matters including antitrust disputes, patent infringement, theft of trade secrets, breach of contract, and securities.