2023 Wrap: Antitrust Actions Drop Compared to Previous Five Years

The past 12 months mark another chapter in the antitrust ledger. Courts saw public and private challenges seeking to hold companies accountable for alleged market monopolization, price-fixing, and other anticompetitive acts based on both traditional means and through novel methods involving new technologies and/or hard-to-define markets. While legal theories and strategies tell one story, statistics tell another.

A Docket Alarm search for Nature of Suit code 410, which pertains to antitrust under PACER, reveals trends about 2023 including how antitrust filings compare to previous years, where most suits were filed, and which companies were sued the most.

Of the nearly 500 cases filed this year and captured by Docket Alarm’s search, nearly 20% were filed in April. That month saw suits across industries including technology, healthcare, and household goods. Suit targets ranged from companies like Energizer Holdings, Inc. to Google and RealPage, Inc., a company that provides software and services to the residential real estate industry, including revenue management software now the center piece of multi-district litigation accusing the company and its property management clients of price-fixing in various housing markets around the country.

According to Docket Alarm, this year was slightly slower than the last five in terms of new filings. This year averaged 1.3 antitrust filings per day nationwide whereas the past five years averaged 1.7 per day.

Top courts of 2023 were the Northern District of California followed by the Middle District of Tennessee where the MDL against RealPage was consolidated earlier this year.

This trend echoes the Northern District of California’s popularity as an antitrust venue, as shown by data from the last five years. Under-represented in this year’s data compared to last five years were districts home to the Chicago, New York City, and Washington, D.C. metropolitan areas.

According to Docket Alarm, this year’s most sued companies in antitrust actions were RealPage and its alleged co-conspirators, Greystar Real Estate Partners, Avenue5 Residential, and Equity Residential, among others. Greystar is the nation’s largest manager of multifamily rental real estate and its fourth largest student housing manager, according to one the MDL’s operative complaints. Characteristic of antitrust, however, defendant businesses topping the list spanned a range of industries including food supply and pharmaceuticals.

In the last five years, the most-sued companies included Tyson Foods, a defendant in multiple antitrust cases concerning price fixing in various meat markets, in addition to AgriStats, a food-industry data aggregator accused of facilitating the alleged collusion.

In addition, Google bears mention, a company sued for antitrust violations 2.4 times per month in the last five years, a rate about 30% greater than the overall average.

This year, Google and its subsidiaries faced actions from private plaintiffs and multiple government entities. In one recently filed sued, “the free press” alleged that Google “siphons off billions of readers and billions of dollars from Publishers through an anticompetitive scheme that extracts their content, publishes it on Google, and diverts readers and ad revenue.”

Several complaints, like one from the Southern District of New York, contended that Google illegally dominates several search-engine related markets, echoing the claims of suits brought by states and the federal government against the tech titan earlier this year.

A review of notable 2023 antitrust cases would not be complete without mentioning several Federal Trade Commission challenges. The agency filed over a dozen antitrust suits as a plaintiff this year, according to a Docket Alarm search.

In particular, the agency headed by Chairwoman Lina Khan, took aim at Microsoft and Meta Platforms, aiming unsuccessfully to derail proposed acquisitions of video game maker Blizzard Activision and virtual reality headset maker Within Unlimited, respectively.

One success came after the Fifth Circuit affirmed key portions of an agency decision blocking a deal between DNA sequencing company Illumina and GRAIL, a company that sought to reunite with its corporate parent after being spun off five years prior. Earlier this month, the company announced its intention to abandon the reacquisition.

Next year could see the resolution of ongoing cases including the DOJ’s suits against Google and various FTC actions against Amazon, Meta, and pesticide makers Corteva and Syngenta.