USA Trends and Developments Contributed by: Peter Mucchetti, Sharis Pozen, Brian Concklin and Michael Van Arsdall, Clifford Chance US
the Sherman Act relating to the company’s YieldStar and AI Revenue Management (AIRM) products, which both use competitors’ non-public, transactional data to suggest daily floor-plan prices and recommend unit-level prices. The complaint alleged that Real - Page’s use of these products facilitated the sharing and exploitation of non-public, competitively sensi - tive information among competing landlords, and used that data to influence and align pricing across the housing rental industry. The DOJ and private litigants will need to show inju - ry, given the fragmented and localised nature of real estate markets and minimal evidence of conspiracy among competitor landlords. Nonetheless, in January 2025, the DOJ and several states filed an amended complaint, adding several rental companies as defend - ants. One of the new defendants, Cortland Manage - ment, LLC (Cortland), entered into a settlement with the DOJ and several states, agreeing to stop using non-public data from properties with different own - ers to set or recommend rental prices. Cortland also agreed not to share, solicit or use external non-public data from other property managers or owners (except for its own property owners). Jury Verdict Gives Defendants Major Win International Construction Products v Caterpillar In April 2024, a jury in the US District Court in Del - aware found in favour of Caterpillar and dismissed plaintiff International Construction Products’ (ICP) Sherman Act Section 1 claim. ICP alleged that Cater - pillar conspired to pressure IronPlanet, an online auc - tion platform, to terminate its agreement with ICP, and claimed up to USD2 billion in treble damages. The jury rejected ICP’s conspiracy claim but found in favour of ICP on the state law tortious interference claim, and awarded USD100 million. However, in March 2025, a district judge vacated the entire award for damages, granting in part Caterpil - lar’s motion for judgment as a matter of law, and ruled that ICP failed to provide sufficient evidence of actual damages. The court reasoned that the company’s lack of sales and unproven market presence rendered its projected losses too speculative. Though the tortious interference merits finding remains, the elimination of all monetary damages effectively neutralised the
financial impact of the verdict without the need for a new trial. The court’s decision to vacate ICP’s dam - ages award highlights the importance of proving dam - ages in antitrust litigation with actual, non-speculative evidence and testimony. New businesses or start-ups must show concrete injury – not just lost opportunity – to succeed, which can be difficult for new market entrants. The Antitrust Landscape Under the Second Trump Administration In February 2025, FTC Chair Andrew Ferguson and then-DOJ Acting Assistant Attorney General Omeed Assefi instructed the FTC and DOJ staff to continue applying the 2023 Merger Guidelines introduced under the Biden administration. Chair Ferguson emphasised that retaining the 2023 Merger Guidelines was impor - tant for maintaining stability and predictability in the merger review process. Ferguson also raised the con - cern that the enforcement agencies’ credibility could be undermined if the guidelines were changed “with every new administration” in an ostensibly “partisan” manner. Seen as a departure from past guidance, the 2023 Merger Guidelines provide the antitrust agencies with significantly more latitude in the cases they bring and the antitrust theories they employ. The antitrust agencies remain active in merger enforcement under the second Trump administration (eg, United States v Hewlett Packard Enterprise Co ). In January 2025, the DOJ sued Hewlett Packard Enter - prise (HPE) in the US District Court for the Northern District of California to block its proposed acquisition of rival wireless networking technology provider, Juni - per Networks, alleging that, as an industry maverick, Juniper provided competitive pressure forcing HPE to maintain competitive pricing and ongoing investment in innovation. In June 2025, the DOJ announced a settlement with HPE, including a structural remedy and licensing commitments. The HPE settlement marks a departure from the Biden administration’s settlements practices, which gener - ally avoided entering into merger consent decrees. Additionally, in May 2025, the FTC allowed the USD35 billion Synopsys-Ansys merger to proceed after the parties agreed to divest certain assets, returning that agency to a more receptive approach to remedies.
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