January 2, 2025

By Ian Tang, Capstone Tech, Media, and Telecommunications Analyst

Capstone believes the executive and judicial branches will step up scrutiny of Big Tech platforms in 2025, including Alphabet Inc.’s Google, ByteDance Ltd.’s TikTok, and Live Nation Entertainment Inc. However, Congress will play a less significant role than it did during the Biden administration as key conservatives leave Congress to join the Trump White House. We also expect the refusal-to-deal (RTD) doctrine to play a pivotal role in litigation.

Outlook at a Glance:

• Most Tech Antitrust Cases to Proceed; Settlement Most Possible for Amazon, Apple
• Trump Administration Unlikely to Reverse Course on Live Nation-Ticketmaster Case
• Looming TikTok Deadline Will Force Trump Administration to Act Early

Most Tech Antitrust Cases to Proceed; Settlement Most Possible for Amazon, Apple

Winners	Apple Inc. (AAPL), Amazon.com Inc. (AMZN), Microsoft Corp. (MSFT), Nvidia Corp. (NVDA), SNAP Inc. (SNAP)
Losers	Alphabet Inc. (GOOGL), Match Group Inc. (MTCH), Meta Platforms Inc. (META), Shopify Inc. (SHOP), Spotify Technology SA (SPOT)

Capstone believes technology platforms, which we broadly define here to include Big Tech firms such as Alphabet (GOOGL) and social media companies such as Byte Dance, as well as Live National Entertainment (LYV), will likely come under scrutiny from regulators and the courts rather than Congress in 2025 as key conservative voices, namely Vice President-elect JD Vance and Senator Marco Rubio (R-FL), leave Congress to join the Trump White House.

In competition matters, we expect legal theories such as the refusal-to-deal doctrine to play an increasingly pivotal role in litigation. Google prevailed in some claims related to its SA360 search advertising platform in litigation with DOJ, contending that under the RTD doctrine, the company has the right to not engage with competitors. Many of the tech platforms have relied heavily on a similar argument in early procedural motions. For example, Apple spent a majority of its time in oral arguments citing the RTD doctrine in challenging the DOJ’s antitrust allegations. If Judge Julien Neals of the US District Court for the District of New Jersey buys Apple’s argument, it would further expand the RTD defense.  

Capstone notes that Trump’s new pick to lead the Department of Justice, former Florida Attorney General Pam Bondi (R), has a weak record on technology-related antitrust matters compared to the president-elect’s original nominee, Representative Matt Gaetz (R-FL). However, Trump’s nominee for the assistant attorney general of the Antitrust Division, Gail Slater, is likely to maintain pressure, specifically against Google. She previously served as an adviser to both Trump and Vance and held positions at Fox Corp. and streaming company Roku. While Bondi may be less critical of or interested in these issues, many of the cases are well underway, and we expect the Trump administration will allow them to play out. We also will watch for pending nominees for soon-to-be-vacant Republican commissioner seat at the Federal Trade Commission (FTC) and whomever Trump designates as FTC chair.

We believe cases in which motions to dismiss or summary judgments are granted are most likely to result in settlements, as are those in which the companies in other jurisdictions have agreed to behavioral remedies. It is less likely the Trump administration will initiate completely new and substantial cases, which will benefit Microsoft and Nvidia, companies that federal antitrust enforcers are scrutinizing in the final days of the Biden administration.

US v. Google: New Administration May Shake Up Developments, Display Network Most at Risk

We expect the Trump administration will press forward with the Justice Department’s dual antitrust cases against Google, targeting its alleged dominance in the search services and adtech markets, respectively, especially given the advanced nature of those proceedings. In 2025, Google will spend significant time in appellate courts in California and Virginia, while the US District Court for the District of Columbia Judge Amit Mehta finalizes remedies in the case addressing the company’s dominance in the general search services market. Meanwhile, the US District Court for the Eastern District of Texas Sean Jordan will preside over a jury trial in another case targeting Google’s adtech dominance brought by Texas.

AdTech

US District Court for the Eastern District of Virginia Judge Leonie Brinkema is expected to rule before Trump is inaugurated into office on January 20, 2025, and the federal government seems to be on a strong footing in compelling some structural relief in its adtech case against Google.

Search

The Biden administration has outlined the path forward for remedies, and Judge Mehta has indicated that there is little flexibility to substantially rework the department’s proposed final judgment later down the line. Even if that were possible, Trump’s early appointments suggest an alignment toward resolving US v. Google (Search). However, some believe Trump’s return to office could signal a reversal of Assistant Attorney General Jonathan Kanter’s stated preference for structural remedies.

FTC v. Meta: Likely to Proceed Despite Republican Opposition

While former Republican commissioners Noah Phillips and Christine Wilson dissented in August 2021 to the decision to file the FTC’s case targeting Facebook’s acquisition of Instagram and WhatsApp on the basis that the action undermines the integrity of the Hart-Scott-Rodino pre-merger notification process, the lawsuit still garnered bipartisan support, including from former Republican Chair Joseph Simons. Commissioners Andrew Ferguson (R) and Melissa Holyoak (R) have not indicated where they stand on these matters, but they previously voted with their Democratic counterparts in other competition cases. After the FTC’s win against Meta’s request for summary judgment, the case now moves to trial, scheduled for April 14, 2025. In the meantime, there will be another status conference on December 9, 2024.

FTC v. Amazon: Highest Likelihood for Settlement Given Behavioral Remedies Sought

The proceedings against Amazon have been bifurcated at the FTC’s request. However, such processes are typically lengthy, as demonstrated in US v. Google (Search). At later stages, the FTC’s Republican majority might seek an early win and put the matter to rest, especially given some of the complaint’s focus on elements outside the consumer welfare standard. Notably, the case was filed under a 3-0 vote during a period when the agency only had Democratic commissioners on the bench. Additionally, Amazon has made behavioral changes in other jurisdictions, consistent with some of the FTC’s initial demands. For now, the parties are likely to move forward to the next steps until the next major juncture (i.e., summary judgment) as the FTC largely prevailed against Amazon’s motion to dismiss. US District Court for the Western District of Washington Judge John Chun only dismissed the state-related claims.

US v. Apple: Outright Dismissal Unlikely but Pending Ruling to Determine Fate of Litigation

On November 20^th, New Jersey District Judge Neals heard oral arguments from Apple and the DOJ on the company’s extensive motion to dismiss. In addition to framing the case as a refusal-to-deal, Apple characterized DOJ’s complaint as failing to establish a connection between the exclusionary conduct and monopoly power and argued that the government relied on “inferential leaps” to make its claims. Capstone believes Apple’s attack on the metrics that DOJ used to establish the company’s dominant market share for smartphones and performance smartphones alike was compelling, arguing that regulators relied on revenue, rather than units, to measure.

Judge Neals was quiet throughout the presentation. Typically, at this stage of litigation, federal courts grant some deference to the government. Areas of the case where he may be more inclined to toss out comments on a limited basis include more hypothetical and underdeveloped claims relating to Apple’s “playbook” across other product categories. However, if he does dismiss the complaint without prejudice, which would allow the department to amend and refile the case (as the FTC did against Facebook’s long-ago acquisitions), the Trump administration may be disinclined to continue pursuing the matter.

Trump Administration Unlikely to Reverse Course on Live Nation-Ticketmaster Case

Winners	N/A
Losers	Live Nation Entertainment Inc. (LYV)

Southern District of New York Case to Proceed as Consent Decree Nears Expiration

Capstone believes the DOJ under Trump also will proceed with the case against Live Nation, despite some initial market expectation following the 2024 presidential election results that the incoming administration would take a more lenient approach. For example, shares of the company surged 9% the day after the 2024 election, primarily relying on the fact that former AAG Makan Delrahim in the first Trump administration chose to settle. At the same time, we do not expect the case to directly generate material positive externalities for secondary ticketing players.

Live Nation’s motion to dismiss the case remains pending. We believe the motion to dismiss is relatively narrow and will not materially change the issues heard at trial, which is scheduled to kick off in March 2026.

DOJ’s lawsuit is playing out in the US District Court for the Southern District of New York (SDNY), where Judge Arun Subramanian has kept it separate from the 2010/2020 consent decree that allowed Live Nation’s merger with Ticketmaster, denying the company’s motion to transfer the case. One consideration that DOJ may have to grapple with is the forthcoming expiration of the consent decree on December 31, 2025. Although, regarding the consent decree, the complaint in the SDNY is limited to discussing issues related only to compliance, DOJ may have chosen to strategically omit that information or has no evidence to establish such conduct occurred, especially given there is no indication that the independent monitor found violations over the course of the past four years.

Still, if DOJ believes Live Nation has violated the existing provisions and is inclined to pursue additional modifications or a further extension, the company may have to contend with a separate case for those proceedings in the US District Court for the District of Columbia. At the same time, this could present Live Nation with some leverage to negotiate a global settlement, though it will largely depend on the types and severity of violations that the Justice Department alleges.

Looming TikTok Deadline Will Force Trump Administration to Act Early

Winners	Alphabet Inc. (GOOGL), Meta Platforms Inc. (META), Snap Inc. (SNAP)
Losers	ByteDance Ltd.

Law Allows Some Room for Interpretation but Limited Ability to Fully Ignore Requirements

In the lead-up to the election, President-elect Trump revised his stance to favor saving TikTok. This gave critics of the statute, which requires parent company ByteDance to divest its ownership in the application (or face a ban), hope that the incoming administration will reverse course. The statute affords the president some authority to interpret whether a “qualified divestiture” has taken place, with limited pathways to challenge the president’s determination as few parties would have standing to sue. However, Capstone believes TikTok faces a tough path ahead, absent a decisive act of Congress repealing the 2024 provisions.

Congress Softening Approach, Though Probability of Legislative Repeal Remain Low

Some influential conservative lawmakers, such as House Judiciary Chair Jim Jordan (R-OH) and Sen. Rubio, already have softened their stance on TikTok divestment, despite being among the most hawkish members on the issue. Still, the Senate Commerce Committee, including Senator Ted Cruz (R-TX), who is expected to chair the committee in the 119^th Congress, affirmed the statute in recent comments.

Capstone continues to believe a legislative repeal of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) is unlikely. Trump would have to convince a substantial majority of the 211 House Republicans who voted in favor of the legislation to switch their votes, as well as roll back the filibuster to overcome Democratic opposition in the Senate, to enact a repeal before the bill goes into effect on January 19, 2025.

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