This article originally appeared in the January-March 2026 issue of Corporate Disputes Magazine.
How has the scope of antitrust investigations changed in recent years, particularly in relation to digital platforms and algorithmic pricing models?
Boedeker: Antitrust enforcement has widened and deepened over the last few years. Regulators still care about classic issues (monopoly power, price-fixing, unlawful mergers), but they’ve broadened what counts as “competition harm” and the tools they’ll scrutinize — especially where big digital platforms and automated systems are involved. There are a few key ways the scope has shifted, and we’ll share some examples and enforcement signals.
Regulators now treat platform practices (self-preferencing, default settings, app-store rules, gatekeeper conduct, buy-box or ranking algorithms) as core antitrust issues — not just ancillary facts. New regulatory regimes (e.g., the EU’s Digital Markets Act) create obligations specifically aimed at large platforms and give authorities faster, tailored enforcement tools. This is changing investigations from narrow price or merger probes into broad reviews of entire platform business models.
Peng: Pricing algorithms, dynamic/ personalised pricing, and automated repricing tools are now a front-line concern. Authorities worry algorithms can (a) facilitate explicit collusion by exchanging signals, (b) enable tacit collusion by quickly punishing deviations, or (c) enforce parity through platform rules. Regulators (DOJ, FTC, OECD, CMA, EU authorities) have published studies/statements and opened cases or guidance projects focused specifically on algorithmic pricing. I expect to see more probes that examine code, logs, training data and model outputs.
Enforcers are applying old statutes to new tech (Sherman Act §1/§2, Article 102 TFEU, national competition laws) but also experimenting with remedies tailored to digital markets: interoperability mandates, data-access orders, limits on default settings, structural divestitures in extreme cases, and algorithm audits. Courts and agencies are more willing to pursue large structural remedies in platform cases (recent high-profile suits and Digital Market Act (“DMA “) enforcement show this shift).
Nwogu: Investigations now combine traditional economic analysis with machine-learning forensics, source-code review, model-output testing, and large data subpoenas. Agencies are building AI/tech teams and collaborating across jurisdictions (G7/OECD cooperation). That raises both practical enforcement capacity and evidentiary complexity — proving anticompetitive intent/effect for autonomous systems is often harder.
Authorities increasingly consider harms to innovation, privacy, choice (e.g., steering, bundling, exclusionary tactics), and to smaller market players — not only immediate price rises. That’s one reason platform conduct (data practices, ad-tech tying, acquisition of nascent rivals) draws antitrust attention even when consumer prices seem unchanged.
The EU (DMA), UK CMA and many national agencies are moving faster than traditional case-by-case litigation. They’re using ex ante rules (DMA-style obligations) and quicker investigative deadlines, which shifts some enforcement from reactive litigation to preventive regulation. The U.S. remains aggressive in litigation (major DOJ/FTC cases) but has fewer ex ante platform rules — though that may change.
How are regulators balancing innovation and competition when assessing mergers and market dominance in fast-moving sectors like tech and fintech?
Boedeker: We are observing a shift in enforcement philosophy that focuses on “Dynamic Competition.” Traditional merger analysis emphasized short-term price effects and market shares. Nowadays, regulators recognize that in digital and fintech markets innovation, data access, and network effects are the true competitive levers. In general, a firm’s future potential—even if small today—can be the most significant source of competition tomorrow. Hence, regulatory agencies are explicitly including dynamic competition and innovation pipelines in their assessments. For example, the U.K. CMA’s block of Meta/Giphy and the U.S. FTC’s challenge to Meta/Within focused on loss of future innovation rather than price effects.
In addition, regulators increasingly scrutinize acquisitions of startups by dominant incumbents — especially when the target has a nascent technology that could evolve into a rival platform, or when it offers complementary capabilities that strengthen a gatekeeper’s data or ecosystem lock-in. Regulators now require evidence that the acquisition does not suppress emerging innovation, even if the target has little revenue. An example of this new approach can be seen by the fact that the European Commission and CMA have both tightened merger-review thresholds to catch smaller tech and fintech deals that would have escaped scrutiny in the past.
Peng: As the developments in the recent past have shown, data concentration and interoperability barriers can create de facto dominance in the tech and fintech sectors. Regulators have started to balance this by demanding data portability or open-banking access (e.g., Payment Service Directive (“PSD2” in the EU, and the UK Open Banking framework). Furthermore, regulators are now evaluating whether mergers unduly restrict data access or reinforce closed ecosystems. Lastly, regulators now include API openness and platform neutrality as part of competitive assessments.
It has to be pointed out that regulators have begun to find a balance between innovation incentives and the risk of over-enforcement. We have seen attempts to not stifle beneficial collaboration or scale economies by allowing safe-harbor regime or using behavioral remedies (data access, interoperability requirements) rather than blocking mergers outright, when possible.
Nwogu: Globally, different trends have emerged. For example, in the EU & UK a more proactive, ex ante regulation (Digital Markets Act, CMA’s pro-innovation approach) seems to be the prevalent approach. In the U.S., DOJ and FTC have modernized merger guidelines (2023) to emphasize potential competition and data power, and in the APAC jurisdictions (e.g., Singapore, Australia) more “innovation-friendly” enforcement with lighter behavioral commitments seems to have been adopted. However, besides these different approaches, the general trend is clearly toward early intervention balanced with innovation-impact analysis rather than purely structural presumptions.
In addition, regulators face key challenges in proving what would have happened “but for” a merger because innovation has become more difficult to forecast, fast changing market definitions can become obsolete during the course of an investigation. Lastly, the access to technical evidence in the form of data science, AI, and machine learning based algorithms has become crucial to perform the necessary analysis.
What impact is the EU’s Digital Markets Act having on global antitrust strategies? How should companies be adapting to stay compliant?
Boedeker: The Digital Markets Act (DMA) is a European Union regulation that aims to create a fairer and more open digital economy. It marks a paradigm shift in competition enforcement by shifting the focus from reactive, case-by-case antitrust investigations to proactive, rule-based regulation of large digital platforms (“gatekeepers”). The primary goal is to curb the dominance of large online platforms and create a more competitive and innovative digital market. Furthermore, DMA aims to give users more freedom to choose how they use their devices and services, such as selecting default browsers and downloading apps from different sources. Lastly, DMA aims to provide smaller businesses with a fairer chance to compete and to give them better access to data and platform services
Instead of proving harm after dominance is abused, the DMA imposes upfront obligations on gatekeepers to prevent harm. Designated “Gatekeepers” (as of 2024–25) are Alphabet (Google), Amazon, Apple, Meta, Microsoft, and ByteDance (TikTok). Under the DMA, these companies are subject to strict conduct rules covering search, app stores, messaging, operating systems, and online advertising.
Peng: The DMA has already had an impact and it is shaping global antitrust strategies. The DMA rules (e.g., bans on self-preferencing, mandatory data portability, interoperability) are influencing the UK’s Digital Markets, Competition and Consumers Act (DMCC), proposed U.S. “Digital Competition” bills, and Japan’s, Korea’s, and Australia’s platform regulations
In direct response, we have observed that multinational corporations are increasingly adopting “EU-first” compliance models, aligning global practices with DMA standards to reduce fragmentation.
On the other hand, regulators worldwide have begun to “borrow” enforcement tools from each other. Data access and interoperability mandates are being replicated beyond Europe. Algorithmic transparency and default-choice obligations are now appearing in merger remedies and platform conduct probes globally. Non-EU regulators reference DMA compliance as a benchmark of responsible behavior. Consequentially, even companies that are not formally under DMA jurisdiction face de facto global compliance pressure — because inconsistent systems are costly and risky.
Nwogu: The global reach of the DMA has significant key compliance implications for companies. Compliance has to be now viewed in a holistic way across jurisdictions. Companies should build integrated global compliance programs that reflect DMA obligations — especially if they operate large platforms, app ecosystems, or digital intermediaries.
The DMA is reshaping global antitrust from reactive enforcement to proactive rule-setting.
Companies that treat compliance as a strategic design principle, not a legal afterthought, will be better positioned worldwide.
A designated DMA compliance officer directly reporting to senior management should oversee the implementation of a compliance program, that addresses each key obligation associated with the various DMA rule types and formulate actionable practical compliance steps. Keeping audit trails of decisions, algorithm updates, and access logs and implementing independent compliance testing of platform behavior (ranking, access, interoperability) will be of utmost importance.
In your experience, what are the most frequent pitfalls in corporate antitrust compliance programs?
Boedeker: A credible antitrust compliance program must be active, risk-based, and culture-driven — not just a checkbox exercise. Regulators increasingly judge programs by their effectiveness, not their existence. Compliance programs that only exist on paper and are not implemented and embedded in daily business practices face increased scrutiny. Merely having employees sign annual certifications without receiving practical guidance and senior management rarely referencing compliance in its decisions are not viewed as serious compliance efforts. Therefore, each successful program must start with the integration of antitrust compliance into operations, deal approval workflows, and performance metrics.
Furthermore, executive leadership should not simply delegate antitrust matters to legal teams without visible engagement which may lead to employees perceiving compliance as low priority or purely legalistic. Instead, executives should publicly endorse compliance goals, attend training, and allocate real resources to enforcement and audits.
Lastly, one-size-fits-all or infrequent training cannot possibly reflect actual business risks. Training should be frequent and role-specific, scenario-based, and tailored to functions (e.g., procurement, sales, M&A, pricing, trade associations).
Peng: Any successful corporate antitrust compliance program must start with the identification and monitoring of high-risk activities. Compliance programs all too often fail to prioritize “red zones” such as: Information exchanges with competitors, participation in trade associations, the development and use of dynamic pricing algorithms, and M&A or joint venture discussions. A simple fix to this pitfall is to conduct a risk mapping exercise where activities are scored by likelihood and potential impact so that enhanced controls and monitoring activities can be implemented timely.
Often times inadequate supervision of informal or digital communications (e.g., WhatsApp, Signal, Slack) will often be used by regulators as key evidence in antitrust cases. This pitfall can be remedied by enforcing clear policies on acceptable communication channels, retaining data in accordance with legal requirements, and educating staff that “off-record” chats are never truly private in investigations.
Nwogu: In addition to the potential pitfalls already discussed, we often see poor integration with other compliance functions. Designing antitrust compliance programs has to incorporate a coordinated approach taking into account that antitrust compliance does not operate in isolation from other areas such as data protection, ESG, procurement, or ethics teams. Overlaps between these different areas (e.g., data sharing, joint R&D, sustainability collaborations) can create blind spots that typically result in deficient compliance programs leading to higher risk exposure. Therefore, successful antitrust compliance programs have to build cross-functional compliance committees to ensure consistent risk assessment and messaging.
Preventive auditing has to replace reactive responses after an investigation has started. Conducting regular internal audits and compliance stress tests are a great way to be prepared for an investigation rather than being overwhelmed by it. The use of advanced data analytics and AI can be used to spot pricing anomalies, bid patterns, or suspicious communication clusters.
Lastly, compliance programs that neglect to incorporate digital & algorithmic risks are doomed to fail. AI-driven pricing, recommendation engines, and digital marketplaces cannot be ignored in compliance programs. Clearly, all compliance policies have to include algorithmic systems. Proper oversight processes, documentation, and the ability to explain and justify algorithmic decisions have to be included in compliance programs.
What are the main difficulties companies face when responding to simultaneous antitrust investigations in different jurisdictions?
Boedeker: Handling simultaneous antitrust investigations across multiple jurisdictions is extremely challenging for multinational companies. The difficulties arise from differences in laws, procedures, evidence requirements, and timing, as well as operational and reputational pressures. Divergent legal standards and enforcement approached as well as different definitions of antitrust violations may result in the same corporate conduct being viewed as lawful in one jurisdiction but prohibited in another, complicating compliance and defense strategies.
In addition, there are conflicting procedural rules when it comes to discovery and document production requirements. For example, in the U.S. extensive pre-trial discovery, including internal communications and emails prevail while in the EU there is no discovery in civil litigation and competition authorities rely on formal requests, and limited internal reviews.
Companies may struggle to coordinate document retention, disclosure, and legal privilege across borders.
Peng: Any individual antitrust investigation implies timing and coordination challenges for the company involved. Multiple overlapping investigations exponentially increase these challenges. Investigations may overlap or run on different timelines, creating pressure to respond simultaneously depending on the stance of the investigating regulators who may expect immediate compliance or others who allow extended review periods. The possible impact of resource constraints leads to an increased risk of inconsistent submissions or commitments.
In addition, remedies or fines imposed in one jurisdiction may conflict with obligations elsewhere. For example, the EU may require platform interoperability, while another jurisdiction restricts data sharing for privacy reasons. Therefore, companies must carefully design remedies that comply globally or seek harmonization through regulator dialogue.
Nwogu: Companies involved in simultaneous antitrust investigations in different jurisdictions face an additional challenge by coordinating responses across jurisdictions without breaching confidentiality or legal privilege. Furthermore, sharing sensitive internal information internally can risk waiving privilege, and sharing certain information with regulators in one jurisdiction may trigger adverse consequences in another. This heightens legal risk and complicates internal compliance procedures.
One difficulty often overlooked is the public and market pressure caused by simultaneous investigations which often attract media attention, creating reputational risks that can adversely impact investors, customers, and partners.
The best strategy to effectively handle all the challenges of simultaneous investigations involves early cross-jurisdictional planning, centralized evidence and project management, harmonized messaging while respecting local legal constraints, and early engagement with regulators for potential alignment or staggered cooperation.
What are the first steps a company should take upon learning it is under antitrust investigation?
Boedeker: An antitrust investigation is a serious matter with potentially severe consequences. However, the fact that a company is informed of an ongoing investigation via a subpoena or Civil Investigative Demand does not mean that violations have occurred. Immediately upon receipt of a subpoena, outside counsel experienced in antitrust law should be retained to provide consulting, manage the response, and ensure that attorney-client privilege is preserved. Ignoring a subpoena altogether or attempting to respond to or interact with regulators without adequate legal representation will possibly end in disaster.
All functions of senior management (CEO, CFO, General Counsel, and relevant business unit heads) have to be alerted immediately. An internal investigation response team including legal, compliance, finance, IT/data teams, and communications specialists should be activated. Ideally, a single point of contact for regulators (e.g., the legal department or an investigation coordinator with the assistance of outside counsel) will be identified to ensure consistent communication.
Peng: The preservation of documents and data is of utmost importance. The implementation of an immediate document and data hold is a key step. Emails, internal chats (Slack, Teams, WhatsApp), cloud-based applications pricing algorithms, meeting notes, and relevant files have to be retained. Furthermore, backups and secure systems have to be created to prevent accidental deletion or alteration. This requires coordinated efforts between legal and IT professionals to identify all potential sources of relevant information and the custodians of that information. Destroying or failing to preserve relevant data can lead to severe legal penalties. To comply, companies must implement effective legal hold procedures that ensure that employees do not self-manage data retention.as
Assessing the scope of an antitrust investigation involves identifying the specific products, geographic markets, time periods, and types of conduct. The specific statutes or laws that form the legal basis under which the investigation is being conducted has to be taken into account to understand which legal standards apply.
Nwogu: The development of a strategic approach to managing internal and external communication is a further key step in successfully facing the challenge of an antitrust investigation. All employees have to be advised on how to interact with investigators (e.g., they may have the right to have an attorney present before any interviews) and to be careful with all communications, avoiding ambiguous or misleading language that could be misconstrued later as evidence of anticompetitive conduct. For all external communication, a single spokesperson should be designated to interact with the investigating authority and a media/public relations specialist should be designated to handle external communications. Since the investigation process is often confidential in its early stages, any unnecessary public attention should be avoided. In instances where multiple regulators are involved, it is recommended to create a global response plan to ensure consistency.
How important is economic modelling in antitrust cases today? Which methods or tools are proving most effective in practice?
Boedeker: Economic modelling has become central to modern antitrust enforcement and litigation. Regulators and courts increasingly rely on quantitative evidence to understand market power, competitive effects, and the potential harms of mergers, pricing behavior, or exclusionary practices. Statistical and econometric tools were developed to assess the impact of anti-competitive actions. These tools are particularly well suited to create “but-for” scenarios to predict market conditions without the alleged anti-competitive actions. Economic models and their quantitative results obtained from actual data are critical to provide crucial input to support legal decisions and for understanding how the market would have behaved absent the specific conduct in question.
Economic models are more powerful than traditional qualitative evidence because they help demonstrate the effects of anti-competitive behavior on prices, output, innovation, or consumer welfare and to quantify the economic harm to high degree of certainty as measured by the confidence interval and margin of error.
Peng: I want to briefly touch on two methods that have proven effective in practical applications. It has to be pointed out that there is no one-size-fits-all economic model. One fairly new economic concept us the class of Difference-in-differences (DiD) models which is now more commonly used in antitrust cases to estimate the economic impact of an anticompetitive act, such as a cartel or illegal market allocation, by comparing the change in an outcome (like price or cost) over time between a “treatment” group and a “control” group. It isolates the effect of the alleged anticompetitive behavior by comparing how the treatment group (affected by the behavior) changed relative to changes in the control group (unaffected by the behavior). This approach effectively controls for other market trends.
Game theory is used in antitrust cases to model strategic interactions between competitors, predict outcomes of actions like price fixing or predatory pricing, and assess market behavior. It analyzes how a firm’s best strategy depends on the expected actions of its rivals, providing a framework for both theoretical analysis and evidence-based arguments in court, though its application can be challenging due to the complexity of real-world markets. It has proven effective in determining if market outcomes are consistent with collusion rather than competition, in evaluating potential predatory pricing, and in forecasting market effects of mergers.
Nwogu: Besides traditional approaches like event studies, linear and non-linear regression analysis or time series analysis there are new emerging methodologies that have entered into the tool kits of economic experts. Algorithmic audits where economic and statistical tools are used to test pricing models for tacit collusion or discriminatory patterns are a powerful tool to manage large data sets to identify patterns of possible antitrust violations.
Another emerging modeling tool is network analysis which is applied in antitrust cases to evaluate complex business structures and relationships, often involving digital or infrastructure-heavy industries, to assess market power and anticompetitive behavior. It involves analyzing networks of firms, suppliers, or even publications to identify patterns, measure influence, and determine if actions like mergers or partnerships restrict competition, while also accounting for potential competitive benefits.
Counterfactual simulations are viewed increasingly as the standard in EU merger reviews. These models involve analyzing what would have happened in a market if an anticompetitive action or merger had not occurred, using models to predict the outcomes of the “counterfactual” scenario. These simulations are used to assess the impact of conduct, quantify damages, and determine whether a merger would have serious anticompetitive effects. They are a key part of effects-based analysis in competition law, comparing the actual market situation to a hypothetical one without the anticompetitive harmful conduct in question.
Reach out to Stefan Boedeker, Okem Nwogu or Zi Peng to discuss these topics and how StoneTurn can help.
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