Published on Jan 27, 2025
Christina Caffarra’s conference “The Perfect Storm: A Time of Truth for Europe” is this Thursday, January 30. Cristina Caffarra’s annual must-attend conference on competition, trade, and industrial policy takes place this Thursday in-person in Brussels and livestreamed. Caffarra set the table for the conference with a blog post laying out how the conference will discuss “existential threats” that Europe faces:
“1) The threat to Europe’s industrial capacity posed by China’s industrial aggression, which is now being amplified by the U.S. menacing tariffs and reducing imports. 2) The threat to democracy posed by the Orwellian embrace of ‘free speech’ by US Big Tech, which appears also a threat to others’ free speech, the press, and elections. Our institutions will be judged by our success or failure to address these threats in this moment.”
Register here to attend.
Staffers from the Texas AG joining Trump’s National Economic Council. Ryan Baasch, associate deputy attorney general under Texas Attorney General Ken Paxton, will join President Trump’s National Economic Council (NEC) as special assistant for economic policy with a focus on tech. Paige Willey, Paxton’s communications director, will also join the NEC as deputy director and deputy assistant to the president for economic policy.
Baasch served as counsel of record in Netchoice v. Texas in the Fifth Circuit, which ruled in favor of a Texas law preventing social media companies from censoring user content based on viewpoint.
In Netchoice, the social media companies’ trade association asserted that the laws in Texas and Florida dictating platforms’ content moderation practices restricted the platforms’ First Amendment-protected expression. Pro-tech regulation groups argued that a ruling against the state laws would render wide swaths of social media regulation unconstitutional, such as restrictions on content targeting minors or throttling material from certain news publishers.
“The editorial discretion First Amendment argument that the platforms have been making is premised on the idea that their editorial discretion is somehow expressive, but … really what’s happening is not expressive at all,” Baasch said at a Federalist Society panel in 2023. “It’s a platform saying, ‘we want to make as much money as possible, if our advertisers want us to do this, we’re going to do it.’ Nothing expressive is happening, nothing First Amendment-protected is happening.”
He also made the case for common carriage laws applying to social media platforms, which require phone and broadband networks to carry all legal communications and serve all customers.
“[The platforms] are going to be subject to these requirements just like mail carriers were before them, just like many other types of industries were before them dating back hundreds of years,” Baasch said. “I don’t see any principal reason why they can’t be extended to the social media platforms now.”
Experts discuss BlackRock case’s antitrust policy implications. Baasch was also involved in litigating Texas v. Blackrock, one of Paxton’s primary antitrust efforts. Texas and 10 other states accused the investment firms BlackRock (BLK), Vanguard, and State Street (STT), as major shareholders in coal companies, of artificially depressing supply through their membership in and directing of environmental, social and governance (ESG) advocacy group Climate Action 100+.
The states allege in the complaint that the firms “have leveraged their holdings and voting of shares to facilitate an output reduction scheme, which has artificially constrained the supply of coal, significantly diminished competition in the markets for coal, increased energy prices for American consumers, and produced cartel-level profits for defendants.”
The lawsuit aligns with a larger movement from Republicans to pursue antitrust enforcement against ESG practices. In a letter to financial institutions including BlackRock, Goldman Sachs (GS), and Morgan Stanley (MS) last week, Paxton reaffirmed his commitment to targeting business practices based in ESG policies, as well as diversity, equity, and inclusion (DEI) programs, for law violations.
“Unlawful race- and sex-based quotas and so-called ‘green energy’ schemes will not be allowed to stand and I will continue to urge these organizations to uphold the legal obligations they owe to consumers and investors,” Paxton wrote. “Any institution found to be violating the law will be held accountable.”
“One of the views that we’ve seen building, and you see it among people that are entering office now, is that sustainability policies and ESG policies are harming the economy and worsening energy prices,” Drake Morgan, an antitrust attorney at Crowell told the Capitol Forum. “If there are antitrust violations that are contributing to what they view as a mistaken energy transition, then they likely view fighting them as a valuable role for law enforcement.”
Ryan Tisch, global lead of McDermott Will & Emery’s antitrust group, also remarked on the possible marriage of social goals with antitrust policy in the new Trump administration.
“This is a diverse set of enforcers coming from a range of enforcement backgrounds and philosophies. Some of them are highly focused on theories that companies are violating the Sherman Act when they collaborate in pursuit of social goals; others believe M&A drives economic value,” he said. “There are lots of other variations represented too.”
In response to a request for comment, Vanguard told The Capitol Forum in a statement that “Vanguard is an independent asset manager owned by the investors in our funds, and our proxy voting record reflects our singular mission to help individual investors achieve their financial goals. We take a consistent, investor-centric approach to maximizing long-term shareholder value and leave policymaking to policymakers.”
State Street told the Capitol Forum in a statement that it “acts in the long-term financial interests of investors with a focus on enhancing shareholder value. We have a mutual interest in the long-term success of our portfolio companies. This lawsuit is baseless, and we look forward to presenting the facts through the legal process.”
BlackRock declined to comment beyond the public statement it released after the lawsuit was filed. Baasch could not be reached for comment.
Recap of Ferguson’s first week as FTC Chair. In his week on the job, Chair Andrew Ferguson, a Republican, removed five requests for public comment started by Democrats during the Biden administration, opened a 2017 gas pipeline consent order for comment, proclaimed the death of DEI at the agency, and requested an emergency commission vote for authority to bypass commissioner voting requirements to reform the FTC’s 2022-26 strategic plan as well as “other documents requiring rescission or modification.”
Ferguson wrote that the authority was needed to ensure the FTC “fully and timely complied with the president’s lawful orders [on DEI] as soon as possible.” He was granted the authority as Democratic Commissioners Rebecca Slaughter and Lina Khan, the former chair, abstained from the vote, while Commissioner Alvaro Bedoya, also a Democrat, dissented.
Slaughter and Bedoya raised concerns about Ferguson’s freedom to use the authority to avoid a full commission vote for other issues. Slaughter wrote that she hoped Ferguson in the future would “return to the agency’s proud tradition of regular order, adequate process and notice, consultation with career staff, and seeking bipartisan input and agreement.”
Last Tuesday, the FTC opened a request for comment on a proposal to rescind a consent order in a gas pipeline deal. The consent order, secured by the Trump FTC in 2017, prevented Enbridge—through a “firewall”—from accessing its indirect interest in a competitor to its pipeline. As they no longer own that indirect interest in a pipeline that was the only competitor to a pipeline they own outright, they asked the FTC to rescind the consent order.
Another action relevant to the FTC is the Trump order of an executive branch media blackout so the White House executive secretary could review every agency action before it is taken, through February 1.
Bloomberg also reported that Ferguson chose Daniel Guarnera, the section chief for the civil conduct task force at the DOJ Antitrust Division, a lawyer who worked on the United States v. Google ad tech case, as his director for the FTC’s Bureau of Competition. Guarnera was previously counsel for Sen. Chuck Grassley (R-IA) on the Senate Judiciary Committee and an associate at Kellogg Hansen.
State bills in Massachusetts and Maine seek to combat monopoly power. In Massachusetts, a proposed state bill would outlaw “every contract, agreement, arrangement or combination” that “establishes or maintains a monopoly or monopsony” or “restrains or may restrain competition or the free exercise of any activity in the conduct of any business.”
It also outlaws the abuse of a dominant position in a market situation, including in labor markets. The direct evidence required to prove liability includes documentation of a “reduction in output or in quality of goods or services, the imposition of supracompetitive prices, or the ability to force, induce or otherwise coerce a supplier to offer a lower price, discount, advertising allowance or other service than what the supplier offers others.”
For labor markets, it’s the violation of labor laws or sub-competitive wages. A dominant position is defined as a 40% market share as a seller, and a 30% market share as a buyer.
The Maine state antimonopoly bill is not yet publicly available but would ban grocery price discrimination, according to Ron Knox, a senior researcher at the anti-monopoly nonprofit Institue for Self-Reliance. Knox argued state bills like these are historically rare “but not unprecedented.”
“The first state antitrust laws largely emerged around the same time, in the late 19th century, at another moment of unmatched economic inequality amid the rising dominance of the trusts and the gilded age monopolies,” he said. “States have always led on antitrust enforcement, because state lawmakers and enforcers are often better placed to understand how abuses of corporate power hurt their residents.”
Knox added that in red states and blue states, “these bills are emerging because the economy is broken for most folks and antitrust is a really useful tool to fix it.”
Chinese government to probe U.S. chip subsidies. China’s Ministry of Commerce (Mofcom) said it’s set to launch investigations into complaints of local semiconductor companies that claim American chipmakers have “unfair competition advantages” due to U.S. government subsidies.
The subsidies have enabled U.S. companies to dump low-end chips in China, the Mofcom spokesperson alleged.
The statement came after the White House’s recent announcement of a Section 301 investigation of China’s semiconductor industry.
The Mofcom probes could indicate China is laying the groundwork for more retaliatory actions should Trump decide to slap higher tariffs on Chinese products as he has threatened to do, two U.S.-China trade experts said.
“The Chinese government is sending a signal to Trump that it is ready to go the ‘U.S. way,’” said one of the experts, who requested anonymity to discuss the matter candidly.
Mofcom, if it ultimately sides with the local market players, can impose significantly higher tariffs on U.S. chipmakers.
In Their Own Words
Trump on regulatory burdens at World Economic Forum, January 23. “[My friends are] very frustrated with the time that everything seems to take to be approved. Environmental impact statements for things you shouldn’t even have to do that and many other ways it takes…
“[The EU] took court cases with Apple and they supposedly won a case that most people didn’t think was much of a case. They won $15 [billion] or $16 billion from Apple, they won billions from Google, I think they’re after Facebook for billions and billions. These are American companies, whether you like them or not they are American companies and they shouldn’t be doing that. As far as I’m concerned, it’s a form of taxation.”
On resolving a gas plant permit issue in Louisiana: “It looked like it was going to end, they couldn’t get their permits. I got them done in less than a week… When they called them to announce it was done the countries, Japan was involved… they couldn’t believe it, and I said ‘just do yourself one favor, don’t pay any consultants because the only one who got it done was me… the consultants had nothing to do with it, they consultants go in and say give us millions of dollars…”
To Bank of America CEO Brian Moynihan: “I hope you start opening your banks to conservatives, because many conservatives complain that the banks are not allowing them to do business within the bank, and that included a place called Bank of America. They don’t take conservative business. I don’t know if the regulators mandated that because of Biden or what but I hope you and Jamie open your banks to conservatives because what you’re doing is wrong.”
To Banco Santander Chair Ana Botín on her desire for deregulation: “We’ve moved very quickly; we’ve done things in the last three days that nobody thought were possible to do in years…. Money was being wasted on crazy things; the green new deal was such a total disgrace… A lot of good things are going to happen.”
Events
January 28 at 2 p.m. ET. The Commerce Department and the National Institute of Standards and Technology host a virtual meeting of the National Artificial Intelligence Advisory Committee. They will report working group findings, identify actionable recommendations, and receive public briefings. Register here.
January 28 at 5 p.m. ET. In recognition of Data Privacy Day 2025, the R Street Institute will host its fourth annual privacy outlook event at Rayburn House Office Building in Washington, D.C. Experts will discuss the legislative and regulatory opportunities facing the new Congress and administration. Register here.
January 29 at 9 a.m. ET. “Transatlantic perspectives on U.S.-China geoeconomic competition,” a virtual conference jointly organized by the Peterson Institute for International Economics and the Centre for Security, Diplomacy, and Strategy at the Vrije Universiteit Brussels that explores U.S. and EU alignment on China. Register here.
January 30. “The Perfect Storm: A Time of Truth for Europe?” The Capitol Forum and antitrust expert Cristina Caffarra will host an in-person and online conference in Brussels discussing urgent economic, antitrust, and geopolitical questions facing Europe. Speakers include France’s chief antitrust regulator Benoît Cœuré, FTC Commissioner Rebecca Slaughter, CFPB Director Rohit Chopra, historian Adam Tooze, and others. Register here.
January 31. “Consumer and Unfair Competition Law Institute,” a conference in Los Angeles hosted by the California Lawyers Association on government enforcement priorities and recent changes in state competition and consumer law. Register here.
February 4 at 1 p.m. ET. “Conversation on Congressman Fitzgerald’s Antitrust Agenda,” a webinar by the ABA antitrust law section featuring Thomas Blanford, Rep. Fitzgerald’s legislative director, discussing the congressman’s agenda as Chair of the House antitrust subcommittee. Register here.
February 6. “2025 Antitrust Data Privacy Conference,” an in-person conference in Palo Alto, California, hosted by the ABA antitrust law section. Sessions will focus on privacy and cybersecurity in the context of AI in relation to antitrust. Register here by February 5.
February 27. “Economist Antitrust Summit,” an in-person conference in London hosted by The Economist. Speakers include Olivier Guersent, Director-general of the European Commission; former FTC Commissioner Christine Wilson; and dozens more antitrust professionals. Register here.
Personnel
USDA Secretary Names Chief of Staff. Kailee Buller, president and CEO of the National Oilseed Processors Association, has been named chief of staff for Agriculture Secretary-nominee Brooke Rollins. Buller has worked in various legislative and regulatory roles at the Edible Oil Producers Association, Corn Refiners Association, SNAC International and the National Grocers Association.
Chris Mufarrige tapped to head FTC’s Bureau of Consumer Protection. In addition to reporting Daniel Guarnera as a pick to lead the FTC’s Bureau of Competition, Bloomberg also reported Republican Commissioner Melissa Holyoak’s Chief of Staff Chris Mufarrige will lead the agency’s Bureau of Consumer Protection.
Links
Antitrust/M&A
New York Times: Can the Only Grocery Store in a Rural Michigan Town Stay Independent? LINK
Automotive News: Mitsubishi to sit out Honda-Nissan merger, stay independent LINK
CNBC: Why merger mania is coming to the fore in the mining industry LINK
Antitrust/M&A Opinion
Steven Salop for ProMarket: Did the Mouse Outfox the Fox? The Fubo Settlement, Disney, and the Death of the Venu Sports-Streaming Venture LINK
Healthcare
MedPage Today: FTC Settles With Private Equity Firm Over Anesthesia Investments LINK
FIERCE Healthcare: AIDS organization wins $10M antitrust ruling against Prime Therapeutics LINK
Labor
Philadelphia Inquirer: In the case of the landmark House v. NCAA settlement, count the Ivy League out LINK
Tech/Social Media
CNBC: Apple and Google’s massive mobile empires face dual UK antitrust probes LINK
PYMNTS: Perplexity AI Eyes TikTok Merger Amid US Ban LINK
Other
Inside Higher Ed: Johns Hopkins, Caltech Settle in Antitrust Lawsuit LINK
