Published on Mar 06, 2023
Antitrust enforcement sparks optimism at Brussels event, but some say new laws key. Speakers at a Keystone Strategy conference in Brussels on March 2 voiced optimism that antitrust enforcement and competition policy have sprung back to life in the fight against monopolies and other dominant players, though they debated whether new laws are needed to cement these changes.
Industry participants that had gotten used to creating gatekeepers that limited competition and otherwise building market power now face enforcers who “are alive again” and focused on not letting industries “become so concentrated and abuse to be so pervasive,” said Rohit Chopra, director of the U.S. Consumer Financial Protection Bureau. While the pendulum can move, it’s not going to swing back in the other direction anytime soon because the light-touch approach didn’t work, he said. He added that the analysis behind the consumer welfare test was “lazy.”
Rana Foroohar, a columnist and associate editor at the Financial Times, said a previous time —in which New York Times columnist Tom Friedman said “the world was flat”—led to tremendous income inequality as cheap capital sought out cheap labor, fueled by cheap energy. But she said that world started to break down in the financial crisis of 2008-2009, and collapsed in recent years due to the disruptions of the pandemic, the Ukraine war and overall geopolitical tensions. Cheap capital, cheap energy and cheap labor largely aren’t coming back, she said. “The world is bumpy.”
Columbia University law professor Tim Wu, an ex-tech/competition adviser to President Biden, said there’s a sense that things are changing and probably not going back anytime soon, as big trends tend to occur in cycles over 30-40 years. He said the “antitrust winter” of recent decades has taken a “decisive turn,” with Biden’s 2021 competition executive order playing a key role. But he warned against declaring victory prematurely—there’s almost certainly going to be an “Empire Strikes Back” moment coming.
“We don’t need new law,” said Open Markets Institute Executive Director Barry Lynn. He called for returning antitrust to the teachings of Louis Brandeis, the influential attorney, author and Supreme Court justice who served prior to World War II. The focus needs to be on market structure and eliminating chokepoints to create redundancy, resiliency and true efficiency.
Others said passing new laws is important. Andreas Mundt, president of the Bundeskartellamt, Germany’s competition enforcer, said he admired the competition efforts of Wu, FTC Chair Lina Khan and DOJ antitrust chief Jonathan Kanter, which he called “overdue,” but questioned whether fundamental change could occur without changes in the law. “I don’t know if that works,” he said, noting agency decisions face court scrutiny. Germany had updated its law, helping his agency, he said.
Tomasso Valletti, an economics professor in London and the EC’s former chief competition economist, was more adamant: Big, systematic change requires changes to the law, he said. Rod Sims, ex-chair of the Australian Competition and Consumer Commission and now a public policy professor, said new laws to lower the evidentiary burden of agencies and stronger competition enforcement were both needed. The executive branch can do a lot, Wu said, but “the law does matter.”
Lynn was unbowed, arguing the U.S. effectively has “new law”—the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Celler-Kefauver Act—because enforcers were revitalizing their enforcement. “We got the goddam law,” he said.
FTC Bureau of Competition Deputy Director John Newman said his agency was heartened by a recent court ruling recognizing the validity of the commission’s vertical-merger and potential-competition theories of harm in challenging the Meta/Within combination, even though the judge didn’t issue a preliminary injunction after finding the FTC hadn’t sufficiently made its initial case. Now those two tools are on the table and they’re sharp, he said.
Kanter warns On Big Tech and … Big Health Care? Kanter spent much of his keynote speech discussing the problems with exclusionary discrimination from Big Tech platforms (see excerpts from full speech below). He concluded that structural reform is necessary to remove perverse incentives that the platforms have to “shift towards closed systems that exclude competition.” The DOJ has already sought structural remedies in litigation against Google, and the FTC has sought structural remedies against Meta/Facebook, and Kanter’s remarks indicate perhaps that we’re likely to see structural remedies sought in upcoming litigation against Amazon from the FTC.
And while he didn’t mention health care directly, stakeholders can see the same perverse incentives in closed systems in that sector that we do among tech platforms. Ultimately, as the FTC moves ahead with its investigations into pharmaceutical benefit managers and Kanter’s DOJ reviews multiple mergers from an insurer – CVS Health – seeking to purchase providers, it seems likely that stakeholders can provide Kanter’s Big Tech analytical framework to healthcare. Lastly, Kanter may have given the antitrust community the best insight to date into what we can expect from upcoming draft merger guidelines when it comes to antitrust enforcers’ specific approach to Big Tech.
Vestager stood out as backing down on antitrust. EC competition chief Margrethe Vestager’s comments at the conference were remarkably softer than her prior speeches on antitrust enforcement. She explained that the EC narrowed the scope of its Apple music streaming investigation because it put the interests of end users first and was willing to ignore the concerns from businesses complaining about Apple’s dominance. Sources at the conference openly wondered if Vestager was auditioning for another job given how out of character her remarks were, particularly on Big Tech, and particularly in front of U.S. and UK decision makers who have, in the past, followed her lead in investigating tech platforms.
FTC calendars. The Capitol Forum received January calendars via a FOIA request for:
FTC visitor logs. The Capitol Forum received the January visitor logs via FOIA request.
In Their Own Words
Kanter on platform M&A tactics, exclusionary discrimination, antitrust remedies. From text of DOJ antitrust chief Jonathan Kanter’s remarks at a Keystone event in Brussels, March 1.
“At their core, platforms are often intermediaries. They can offer different products or services to different groups [who] depend on the platform to intermediate between them. … The opportunities for platforms are almost boundless, but so are the opportunities for anticompetitive behavior and harm. … [P]latforms often benefit from economies of scale as they grow. … Platforms can seek to achieve scale through … both competitive and anticompetitive means in order to create a moat… For example, dominant platforms can build their market power and deepen their moat through strategic mergers and acquisitions (to block entry or the growth of rival) or through conduct that deprives rivals of the ability to achieve scale through competition on the merits. …
“… [D]ominant platforms often get to set the rules of the road … [T]these decisions may affect not only participants on the platform but the very structure of the industry across a wide array of related markets. Critically, dominant platforms may be able to set those rules free from the discipline of a properly functioning competitive market.
“… [W]e need to be particularly mindful of transactions that impede the ability of market participants to meaningfully choose the platforms they want to use based on the quality, price, privacy, security, innovation and other competitive elements… Where a merger ties up one side of a platform market, limiting other platforms’ ability to offer a competitive product on the merits, competition can suffer… Where a merger impedes the ability of users to multi-home across platforms, the effect can be to drive out essential competition between platforms and create a deep moat that insulates the platform… As we think about our approach to mergers, platforms often do not fit neatly within the traditional horizontal and vertical geometries of competition. …
“A similar story often plays out in our conduct investigations, where dominant firms distort the competitive process. … Platforms can engage in exclusionary discrimination to exclude competitors – current or nascent – that directly threaten to displace or disintermediate a core monopoly. Platforms also may engage in such conduct to exclude competitive threats to expand the scope of their existing monopoly in order to erect additional barriers to competition that in the future might challenge the core monopoly, or as a mechanism to exercise monopoly power…
“Whether discriminatory conduct excludes competition for the platform, on the platform, or around the platform, or deepens the moat to insulate the platform from competition, the antitrust laws provide a mechanism for intervention.
“In the hope of fostering a more meaningful dialogue on this issue, I want to share some of our current thinking on this … exclusionary discrimination… First, courts have long refused to place form over substance when it comes to monopolization, recognizing that exclusionary conduct can come in many forms. As the Supreme Court explained in United States v. Grinnell, the Sherman Act condemns the attainment or maintenance of a monopoly through anything other than “a superior product, business acumen, or historic accident. … Second, where a dominant firm engages in exclusionary discrimination that has the effect of creating or maintaining a monopoly – whether in a dominant firm’s core market or an adjacent one – we will not hesitate to investigate and, where appropriate, take action regardless of the label firms or their defenders seek to apply.
“ … [D]ominant firms in platform industries often have a wide array of levers at their disposal, each of which can be flipped separately or in combination to alter competitive dynamics and harm competition. Often this conduct is subtle or hidden from the marketplace more broadly, which makes it all the more difficult to detect, investigate, and stop. If we assume platform operators are profit-maximizing, then they have incentives to flip these levers that benefit their market position at the expense of rivals’. I don’t fault them for having those incentives, but where we find a monopolist has engaged in anticompetitive conduct by pulling those levers, we can’t simply ignore their ability and incentive to do so again…
“To that end, it long has been the policy of the Division – when appropriate – to consider structural remedies, dating back to the breakup of Standard Oil in 1911 and AT&T in 1982. The logic behind that stance applies to platform markets just as much, if not more so, than other industries. Structural relief can break the incentives structures that otherwise might encourage platforms to shift towards closed systems that exclude competition; relief can reinvigorate incentives to interoperate and facilitate multi-homing by users across platforms. Structural relief also provides greater certainty to enforcers and potentially obviates the needs for ongoing, invasive monitoring. If we move some of the levers out of reach, even a profit-maximizing monopolist can’t pull them.”
E&C Chair Rodgers: Privacy bill needed to curb Big Tech, data brokers practices. From House Energy & Commerce Committee Chair Cathy McMorris Rodgers opening remarks at a March 1 hearing on data privacy legislation.
“[It’s time to] rein in Big Tech, protect kids online, and put people in charge of their data. These discussions build on the bipartisan, bicameral American Data Privacy and Protection Act (ADPPA), which we moved through the committee last year with a vote of 53-2. … We need a national data privacy standard… Americans have no say over whether and where their personal data is sold and shared, they have no guaranteed way to access, delete, or correct their data, and they have no ability to stop the unchecked collection of their sensitive personal information. This isn’t acceptable. Data brokers and Big Tech’s days of operating in the dark should be over.”
E&C Ranking Member Pallone: Pass data minimization duty, protection for kids. From E&C Ranking Member Frank Pallone’s (D-NJ) opening remarks at the same March 1 heating.
“The [ADPPA] will put people back in control of their personal data, stop data collection abuses by Big Tech, provide important protections for kids, rein in the shadowy world of data brokers, and establish strong federal data security standards. … The [bill] rejects the coercive ‘notice and consent’ system that has failed to protect Americans’ data privacy and security. Instead, the ADPPA adopts a data minimization obligation. … The [bill] protects kids from Big Tech. It bans targeted advertising to children under 17. … [It] also shines a light on the shadow world of data brokers that profit from buying and selling our personal data. … We must stop these data brokers from collecting, using, and selling consumers’ data without their knowledge or permission.”
FTC commissioners caution Amazon, One Medical on data use, promises. From a February 27 statement by FTC Chair Lina Khan and Commissioners Rebecca Slaughter, Christine Wilson and Alvaro Bedoya.
“Amazon has announced that it has finalized its acquisition of One Medical, a membership-based primary care practice. Separate from the inquiry into whether the transaction violates the antitrust laws, the Commission issues this statement because the acquiring and acquired companies’ conduct with respect to the sensitive data they hold could risk violating consumer protection laws.
“… The statements in One Medical’s privacy policies, combined with the recent public statements by both companies about privacy, constitute promises to consumers about the collection and use of their data by the post-acquisition entity. Companies that fail to abide by the commitments and representations they have made to consumers can violate Section 5 of the FTC Act. … Amazon and One Medical should make clear not only how they will use protected health information as defined by [the Health Insurance Portability and Accountability Act] but also how the integrated entity will use any One Medical patient data for purposes beyond the provision of health care. … The law requires companies to treat sensitive data with great care. Accordingly, the parties and the market more broadly should be on notice that the Commission will continue to monitor this space and bring enforcement actions whenever the facts warrant.”
Durbin blasts Section 230 shield for platforms; fentanyl sales, deaths cited. Senate Judiciary Committee Chairman Richard Durbin (D-IL) took aim at Communications Act Section 230 provisions that broadly protect online platforms from liability, including on fentanyl advertising and sales by drug cartels. “I think Section 230 has become a suicide pact,” Durbin said at a March 1 hearing on DOJ oversight at which Attorney General Merrick Garland testified. “We have basically said to these companies, you are absolved from liability, make money, and they’re at it in overtime. Deaths result from it,” Durbin said. “We have a responsibility” to act, he said.
Durbin noted the concerns of Ranking Member Lyndsey Graham (R-SC), who said “fentanyl poisoning” is now the leading cause of death among Americans aged 18-45. Durbin also noted concerns at a recent hearing on children’s online safety about what social media platforms “are peddling.” Some mothers testified that their children “died as a result of the trafficking of information on social media and there’s little or no responsibility accepted by these platforms” because of Section 230, he said.
“I think there was a general consensus on this committee—which is saying something—that we need to do something about the social media platforms,” said Durbin. He noted DEA Administrator Anne Milgram shortly thereafter told him sales of phony drugs on the internet and social media platforms are very common. He noted Graham made a reference “to a person who thought they were buying Percocet and bought fentanyl and died as a result.” The situation “is out of hand,” Durbin said.
Durbin asked Garland, “Do you believe we need to do more to regulate and control the use of social media platforms that are currently exploiting families and children?” Garland said that drug cartels are using social media to advertise fentanyl pills “as if they’re prescription drugs,” and people, including youths, are then taking the pills, often in fatal doses. He said he’s urging social media companies to advise the DEA when they discover such sales.
Durbin said that Milgram told him that when the DEA asks social media for the algorithms so that it “can get to the root cause of this death and destruction,” the “platforms plead Section 230 and refuse. What do we do?” Garland said, “I think we do have to do something to force them to provide information to search their own platforms for sales of illegal drugs.” Noting his conversations with Graham, Durbin said, “We both feel very strongly that this committee needs to be a venue to take on this issue.”
Senator Richard Blumenthal (D-CT), chairman of the technology subcommittee, noted that he and Ranking Member Josh Hawley (R-MO) would be holding a hearing on Section 230 reform this coming week, in the hope it will lead to legislation. (The hearing will be on Wednesday, March 8 at 2:00 p.m. See also Blumenthal-Hawley release.) When Blumenthal asked whether DOJ was investigating Live Nation/Ticketmaster, Garland said he couldn’t confirm or deny it, but noted that “we know all too well” the importance of competition and the problem of highly concentrated industries.
In written testimony, Garland said DOJ “strongly supports” measures, such as the American Innovation and Choice Online Act (AICOA), to promote digital competition and prohibit anticompetitive practices by dominant platforms, and also backs broad legislation to bolster DOJ tools to spur competition across the economy. In response to questioning from Senator Amy Klobuchar (D-MN), antitrust subcommittee chair, Garland also endorsed the Open App Markets Act and said DOJ would be using expected funding from a recent merger filing fee law to “staff up” to battle industry in litigation.
House panel clears bill to ban TikTok, other apps on national security grounds. The House Foreign Affairs Committee voted 24-16 on March 1 to approve a bill (H.R. 1153) to mandate the administration to ban TikTok in the United States. It’s “no secret that TikTok is beholden” to the Chinese Communist Party, said Chairman Michael McCaul (R-TX). “TikTok is a modern-day Trojan Horse of the CCP used to surveil and exploit Americans’ personal information. This legislation is a first step in protecting Americans against subversive data collection. … My bill empowers the administration to ban TikTok or any other software application that threatens U.S. national security.”
TikTok “allows the CCP to manipulate and monitor its users while it gobbles up Americans’ data to be used for their malign activities,” McCaul said. “Anyone with TikTok downloaded on their device has given the CCP permission and a back door to all their personal information. In other words, it’s a spy balloon in your phone. And I have no doubt [China] will look to weaponize this intelligence… It’s time to put an end to the hostile efforts of the CCP to exploit Americans and their personal privacy.”
Ranking Member Gregory Meeks (D-FL) was “deeply concerned” by the GOP “rush” to move “a bill with such wide-ranging consequence” without greater scrutiny. “Unfortunately, during markup Republicans opposed my amendment narrowing the scope of the bill to address genuine privacy concerns relating to TikTok,” Meeks said, noting he was committed to working with Republicans to address Chinese threats to U.S. data privacy. “However, this unvetted bill risks creating more harmful unintended consequences than solutions, including damage to the U.S. economy and to the economies of our allies and partners, which this bill, as drafted, targets.”
The ACLU “strongly opposes” the bill. “Congress must not censor entire platforms and strip Americans of their constitutional right to freedom of speech and expression,” said Jenna Leventoff, ACLU senior policy counsel. “HR 1153 is intended to effectively ban TikTok in the U.S. — and could ban many other businesses and applications as well — by requiring the secretary of the treasury to forbid U.S. citizens from engaging with entities that ‘may’ transfer sensitive personal data to a foreign entity that is ‘subject the influence of China.’”
TikTok tweeted its disappointment with legislation that it said would harm user free speech.
Businesses using Amazon, other online marketplaces form trade group. The Responsible Online Commerce Coalition (ROCC), a trade group representing businesses that use Amazon and other online marketplaces, March 2 announced its formation, saying it is advocating against unfair practices towards small businesses by online marketplaces. (https://theroccoalition.com)
The Coalition has been founded by Damien Geradin and Tom Smith, partners of European-based antitrust law firm Geradin Partners, and Amanda Lewis, of Cuneo, Gilbert & LaDuca and a former FTC attorney once detailed to the House Judiciary antitrust subcommittee.
ROCC includes among the principles of its mission support for competitive fees and commissions for businesses participating in the online markets, equal access to data and equal access to the platforms. It said it will oppose unfair methods of competition, self-preferencing and the tying of products and services.
Senators urge DOJ to probe YieldStar software used by landlords. Senators Elizabeth Warren (D-MA), Ed Markey (D-MA), Tina Smith (D-MN) and Bernie Sanders (I-VT) called on DOJ to investigate RealPage’s YieldStar algorithmic software product. “The lawmakers warned that YieldStar, which landlords use to set prices on millions of rental properties, could be ‘facilitating de-facto price setting and driving rapid inflation,’” said a Warren release on March 3, citing the senators’ letter to DOJ’s antitrust division. It’s “essential that [DOJ] use all of its tools to ensure that renters do not fall victim to corporate landlords and anti-competitive forces,” they wrote.
The release also attached a RealPage December response—to an earlier letter from the senators—that said its products had not been accurately portrayed in recent news coverage. A RealPage spokesperson emailed, “RealPage appreciates the opportunity to work with the senators’ offices and, more generally, we are always willing to engage policy stakeholders to ensure an informed and comprehensive understanding of the benefits we contribute to the rental ecosystem.” A DOJ antitrust spokesperson didn’t respond to a Capitol Forum query.
FTC, CFPB seek comment on background screening issues, including algorithms, affecting potential renters. The FTC and the Consumer Financial Protection Bureau requested comment “on background screening issues affecting individuals who seek rental housing …, including how the use of criminal and eviction records and algorithms affect tenant screening decisions and may be driving discriminatory outcomes,” said a February 28 release.
Biden urges others to follow Eli Lilly insulin cost cuts, $35 cap; Schumer seeks legislation. President Biden urged other drug makers to follow the example of Eli Lilly, which announced on March 1 that it was slashing insulin product costs and lowering consumers’ out-of-pocket insulin costs to $35 per month. “Insulin costs less than $10 to make, but Americans are sometimes forced to pay over $300 for it. It’s flat wrong,” Biden said. “Last year, I signed a law to cap insulin at $35 for seniors and I called on pharma companies to bring prices down for everyone on their own. Today, Eli Lilly did that. It’s a big deal, and it’s time for other manufacturers to follow.” Senate Majority Leader Chuck Schumer (D-NY) praised the announcement and called for bipartisan legislation to mandate a $35 monthly insulin user cost cap.
FDA touts collaboration with FTC on biologic competition. The Food and Drug Administration highlighted its collaboration with the FTC to advance competition in the biologic marketplace. “There are many roadblocks that can delay competition, such as ‘patent thickets,’ or groups of overlapping patents that can hinder the development and availability of biosimilars,” said the FDA March 2. “The FDA and the FTC have been working together to help advance competition for biologics, including biosimilars and interchangeable biosimilars. … We detailed our commitments in the Joint Statement of the FDA and the FTC Regarding a Collaboration to Advance Competition in the Biologic Marketplace.” The release also noted a 2020 joint public workshop on a Competitive Marketplace for Biosimilars and related summary report.
FTC Commissioner Wilson departing March 31; E&C chairs seek Khan answers. Christine Wilson, currently the FTC’s sole GOP commissioner, is resigning her position on March 31, she told President Biden in a March 2 letter criticizing FTC Chair Lina Khan’s leadership. House Energy and Commerce Committee Chair Catherine McMorris Rodgers (R-WA) and Innovation Subcommittee Chair Gus Bilirakis (R-FL) wrote to Khan on March 1 demanding answers and documents relating to allegations Wilson made in previously announcing her intent to resign. An FTC spokesperson declined to comment.
Biden to nominate Su as labor secretary. President Biden announced his intent to nominate Julie Su as labor secretary. She has been deputy labor secretary since July 2021. Senate Majority Leader Chuck Schumer (D-NY) said Su will be a “phenomenal” secretary.
House Judiciary Chair Jordan has new senior counsel. Craig Trainor is now a senior special counsel to House Judiciary Committee Chairman Jim Jordan (R-OH), LegiStorm reported. Trainor had been a senior litigation counsel at the America First Policy Institute and was also of counsel to the Fairness Center providing “free legal services to individuals hurt by public-sector unions,” according to his Linkedin page.
Khan cites FTC Office of Technology hiring need. FTC Chair Lina Khan flagged that the commission’s new Office of Technology is hiring. “We’re seeking expertise across areas—from ad tech and AI to AR/VR and cloud computing, to name a few,” she tweeted. “Technologists will embed across the agency’s work as we continue to tackle unlawful business practices.”
DOJ antitrust has acting FOIA chief. Laura Starling is now the acting chief of the FOIA Unit at the DOJ antitrust division, replacing departed chief Kenneth Hendricks, according to the leadership directory. The division is seeking an attorney advisor to be its FOIA chief, according to its employment page.
Key Upcoming Events
To access our calendar of all antitrust events, click HERE.
Monday-Tuesday, March 6-7 at 8:00 a.m. PST both days. National Farmers Union 121st Anniversary Convention in San Francisco. ATR DAAG Michael Kades will attend according to DOJ; Ag Secretary Tom Vilsack to speak March 6 at 8:00a.m.
Monday, March 6 at 8 a.m. EST. State of the Net hybrid conference in Washington, D.C. (To register, click on “Get Tickets” for in-person and livestream options). Among speakers: DOJ antitrust chief Jonathan Kanter, NTIA chief Alan Davidson, FCC Commissioner Nathan Simington, President’s Deputy Chief Technology Officer Alexander “Amac” Macgillivray.
Monday and Tuesday, March 6-7 at 9:00 a.m. and 9:20 a.m. EST. Institute of International Bankers annual conference in Washington, D.C. FDIC Chairman Martin Gruenberg to speak March 6 at 10:15 a.m., and Acting Comptroller of Currency Michael Hsu will discuss cryptocurrency March 6 at 2:15 p.m. Other speakers include CFTC Chairman Behnam and Commissioner Goldsmith Romero, and SEC Commissioners Uyeda and Peirce.
Monday, March 6 at noon EST. FCC virtual “Digital Ecosystem Forum” hosted by the Communications Equity and Diversity Council (CEDC). Chairwoman Jessica Rosenworcel to speak.
Monday, March 6 at noon EST. Federalist Society hybrid roundtable in Washington, D.C. on recent FTC developments. Participants include former FTC Commissioners William Kovacic (also an ex-chair) and Joshua Wright, and two former FTC senior staffers.
Tuesday, March 7 at 8:15 a.m. EST. Incompas Policy Summit in Washington, D.C. Among speakers FCC Commissioners Brendan Carr, Nathan Simington and Geoffrey Starks, Former FCC Commissioners Michael O’Rielly and Harold Furchtgott-Roth, and members of Congress including House Subcommittee on Comms and Technology Chair Bob Latta (R-OH) and House Ag Committee Chair Glenn Thomspon (R-PA).
Tuesday-Friday, March 7-March 10 at 10:00 am EST. Global Health Care LLC’s “The Virtual Fortieth HIPAA Summit.” Speakers include HHS National Coordinator for Health Information Technology Micky Tripathi, Director of HHS Civil Rights and Former Chief of Staff at CMS Medicare-Medicaid Coordination Office Melanie Fontes Rainer, HHS Civil Rights Deputy Director of Health Information Privacy Timothy Noonan, FTC Division of Privacy and Identity attorneys Ronnie Solomon and Elisa Jillson, among other current and former HHS officials and industry representatives.
Tuesday-Wednesday, March 7-8 at 10 a.m. EST both days. Federal Reserve Chairman Jerome Powell testifies at March 7 Senate Banking Committee hearing and March 8 House Financial Services Committee hearing on the Fed’s Semi-annual Monetary Policy Report to Congress.
Tuesday, March 7 at 3:00 p.m. EST. Senate Judiciary Committee hearing “Reining in Dominant Digital Platforms: Restoring Competition to Our Digital Markets.”
Wednesday, March 8 at 9:00 a.m. EST. Sandpiper conference “Hot Topics in SEC and DOJ Enforcement and Litigation” in Indianapolis. (Register here). Speakers include the Director of SEC’s Chicago Regional Office.
Wednesday, March 8 at 10 a.m. EST. Senate Homeland Security Committee hearing “Artificial Intelligence: Risks and Opportunities.”
Wednesday, March 8 at noon EST. Federalist Society hybrid event in Washington D.C. “Antitrust and Big Tech” with Douglas Ginsburg, senior judge, U.S. Court of Appeals for the D.C. Circuit.
Wednesday, March 8 at 1:00 p.m. EST (noon CST). UChicago Booth Stigler Center and ProMarket webinar “What’s Old is New Again: Industrial Policy’s Revival.” OECD’s Chiara Criscuolo to speak.
Wednesday, March 8 at 1:00 p.m. EST. Crowell webinar “The DOJ’s Updated Corporate Criminal Enforcement Policies and What They Mean for Companies Today.”
Wednesday, March 8 at 2:00 p.m. EST. Senate Judiciary Committee hearing “Platform Accountability: Gonzalez and Reform.”
Wednesday, March 8 at 2:00 p.m. EST. House Oversight Committee hearing “Advances in AI: Are We Ready for a Tech Revolution?”
Wednesday, March 8 at 2:30 p.m. EST. Electronic Frontier Foundation Hill Briefing “What Policymakers Need to Know About the First Amendment and Section 230.”
Wednesday and Thursday, March 8-9 at 2:30 p.m., 9:00 a.m. EST. Institute for Transnational Arbitration Conference on International Arbitration in the Mining Sector in Toronto.
Thursday, March 9 at 8:30 a.m. EST. Broadband Breakfast’s “Big Tech & Speech Summit” in Washington, D.C. Speakers include Chamber of Progress CEO Adam Kovacevich, TechFreedom President Berin Szóka, NetChoice President and CEO Steve DelBianco, as well as representatives of Proton, Parler, Public Knowledge, Future of Privacy Forum, Electronic Frontier Foundation, Center for Democracy and Technology and Information Technology and Innovation Foundation.
Thursday, March 9 at 9:00 a.m. Greenwich Mean Time. GCRLive “Telecoms, Media & Technology” conference in London. Among speakers: Olivier Guersent, director general, EC Directorate General for Competition; Andrea Coscelli, former CMA Chief Executive; Thomas Kramler, head of unit for EC DG for Competition; David Stewart, CMA executive director, mergers and markets.
Thursday, March 9 at 10 a.m. EST. House Financial Services Committee hearing “Consumer Financial Protection Bureau: Ripe for Reform.”
Thursday, March 9 at 11:00 a.m. EST. FTC commissioners’ closed meeting on a nonpublic law enforcement matter.
Thursday, March 9 at 1:00 p.m. EST. Cato Institute hybrid policy forum “Exploring the Risks of Central Bank Digital Currencies” in Washington, D.C. GOP Majority Whip Congressman Tom Emmer (R-MN) to speak.
Thursday and Friday, March 9-10 at 9:00 a.m. and 8:30 a.m. PST. American Bar Association “Emerging Issues in Healthcare Law Conference” in San Diego, CA. Speakers include Former HHS OIG Chief Counsel Greg Demske and President & CEO of American Arbitration Association and Former Chief Justice for the Supreme Court of Michigan Bridget McCormack.
Friday, March 10 at 9:00 a.m. EST. House Judiciary Committee’s Administrative State, Regulatory Reform, and Antitrust Subcommittee hearing “Reining in the Administrative State: Reclaiming Congress’s Legislative Power.”
Friday, March 10 at 10:00 a.m. EST. NTIA Commerce Spectrum Management Advisory Committee Meeting in Washington, D.C. Open to the public via teleconference (866-880-0098 participant code 48261650).
Friday-Saturday March 10-18 at 10:00 a.m. CT each day (11:00 a.m. ET). SXSW conference on media and tech in Austin, Texas. DOJ antitrust chief Jonathan Kanter to discuss the future of technology on the Hard Fork podcast Saturday March 11 at 11:30 a.m. CST. Department of Energy Secretary Jennifer Granholm to speak Friday March 10 at 2:30 p.m. CST. Other notable speakers include Chelsea Manning, U.S. Ambassador for Cyberspace and Digital Policy Nathaniel Fick, Superintendent of NY Dept. Of Financial Services, members of Congress and various industry representatives.
March 13-15 at 8:00 a.m., 8:00 a.m., and 8:30 a.m. PDT. SIFMA C&L Annual Seminar in San Diego, CA. Among speakers: Director of SEC Division of Enforcement Gurbir Grewal, President and CEO of FINRA Robert W. Cook.
March 13-14 at 8:30 a.m. EDT both days. National Alcohol Beverage Control Association hybrid “30th Annual Symposium on Alcohol Beverage Law and Regulation” in Arlington, VA. Speakers include representatives of Treasury Department TTB and CBP Office of Trade.
March 14 at 9:15 a.m. EDT. Bipartisan Policy Center webinar “Fireside Chat with USDA Undersecretary for Rural Development Xochitl Torres Small.”
March 14 at 11:00 a.m. EDT. The Capitol Forum conference call on CFIUS-Like Regulators in Europe. National security experts Antonia Tzinova, Stephen Whitfield, Stephan Müller and Gerrit Oosterhuis to discuss the emerging trend of countries conducting reviews of proposed foreign investment to protect their national security. In particular, the experts will discuss the U.S. Committee on Foreign Investment in the United States’ work and its efforts to establish CFIUS-like screening processes in allied countries. Click here to RSVP and receive the link.
March 15 at 10:00 a.m. EDT. Aspen Institute panel “An “All-Tools” Approach to Disrupting Digital Threats” in Washington, D.C. Speakers include Assistant Commerce Secretary Matt Axelrod, Assistant Treasury Secretary Paul Rosen, and Former Acting DAG John Carlin.
March 15 at 2:00 p.m. EDT. New America webinar “North America’s Semiconductor Moment.”
March 15 at 2:00 p.m. EDT. Bipartisan Policy Center hybrid event “Crypto Crossroads: Navigating the Future of Crypto and Blockchain Policy” in Washington, D.C. Sen. John Hickenlooper (D-CO) and Sen. Thom Tillis (R-NC) to speak.
March 15 at 3:00 p.m. EDT. Federalist Society webinar on cryptocurrency legislation with Chair of House Subcommittee on Digital Assets, FinTech and Inclusion J. French Hill (R-AR).
March 15 at 4:00 p.m. EDT. Verizon State of Telecom Policy event in Washington, D.C. Among speakers NTIA Administrator Alan Davidson, former FCC Commissioner Mike O’Rielly, and other industry and government representatives.
March 15-16 at 9:15 a.m. PDT both days. “Trade Secret IP Protection & Management USA Summit” in San Diego, CA. Legal counsel from Meta, Microsoft, Thermo Fisher, Intel among speakers.
March 15-16 at 1:00 p.m. EDT both days. Crowell Webinar “HOOPS 2023: Navigating the Rapid Developments in Health Care.”
March 16 at 10:00 a.m. EDT. U.S. District Court for the District of Columbia Judge John Bates to hold motions hearing for oral argument on FTC sealed motion for partial summary judgment and Surescripts sealed motion for summary judgment (Recap docket).
Mark your Calendar
Monday, March 27 at 9:00 a.m. EDT. FTC and DOJ ATR hybrid Enforcers Summit in Washington, D.C. FTC Chair Lina Khan and DOJ AAG Jonathan Kanter to lead discussions with other senior agency officials. In-person attendance including closed-door breakout sessions open to Attorneys General and agency heads who pre-register, plenary sessions available to public via livestream.
Warren, Whitehouse hit Chamber opposition to FTC noncompete ban proposal. Senators Elizabeth Warren (D-MA) and Sheldon Whitehouse (D-RI) called out the U.S. Chamber of Commerce for opposing a proposed FTC rule to generally ban employer noncompete clauses for workers, and they called on the group to explain its position, said a Warren release, February 28.
“This rule would drastically improve conditions for workers, small businesses, and the entire economy, benefiting all Americans. But the Chamber, which purports to believe in a ‘future …(that) gives everyone the opportunity to build a better future for themselves,’ is already saber-rattling about opposing a simple rule that would allow America’s workers, businesses, and entrepreneurs the freedom to build that future,” wrote the senators. “The Chamber owes its member organizations, and the American public, an explanation for its intention to oppose this rule and defend a deeply exploitative and unfair method of competition that harms workers and businesses.”
The Chamber disputed the proposed rule’s scope and the FTC’s legal authority. “While we agree with you that unreasonable noncompete clauses can inhibit competition, we must address your fundamental misunderstanding of the Chamber’s position,” the group wrote back, explaining its views. “The Chamber opposes this rulemaking not just because it unjustifiably bans the use of noncompetes even when used appropriately, but because the FTC lacks the statutory or constitutional authority to issue a competition rule. The text, structure, and history of the [FTC] Act and associated statutes all confirm that Congress never granted the FTC the authority to issue a competition rule, particularly one as sweeping as this.” The Chamber also sent a letter to lawmakers from its members and various groups opposing the proposal.
FTC Office of Policy Planning Director Elizabeth Wilkins summarized the agency’s rulemaking rationale and basis in a February 27 10-tweet thread. A few days later, she said noncompete clauses look like naked restraints on labor, not protections of business trade secrets. It’s right in their name that the clauses are aimed at preventing competition for workers, Wilkins said on an Economic Policy Institute webinar, March 1. The clauses are unjustified for low-wage workers, she said; and while there could be some “reasonable” trade-secret concerns regarding high-wage executives and employees, she added, the clauses can still undercut compensation, entrepreneurial activity and innovation, and can be replaced by nondisclosure agreements and other methods.
Warren urges STB to stop Canadian Pacific-Kansas City Southern rail merger. Senator Elizabeth Warren (D-MA) called on the Surface Transportation Board to block the planned rail merger of Canadian Pacific and Kansas City Southern. Warren raised concerns the deal “would reduce competition in an already consolidated market, cause increased shipping costs, job losses and service disruptions” that impact supply chains, said a March 3 release.
Warren also raised “safety concerns, citing industry cost-cutting and efforts ‘to squeeze as much productivity out of these workers as they can,’” and an ex-mayor’s “warning that the merger could ultimately result in ‘a disaster of monumental proportions,’” said the release, noting she wrote the STB following the derailment and chemical spill in East Palestine, Ohio.
The STB is unable to comment, emailed an agency spokesperson, citing the pending merger decision. The companies didn’t respond to Capitol Forum queries.
House Republicans question CFPB credit card late-fee proposal. Representative Andy Barr (R-KY), House Financial Services Committee Chairman Patrick McHenry (R-NC), and 16 other Republicans wrote the Consumer Financial Protection Bureau “pushing back” on the Bureau’s credit-card late-fee proposal, said a March 2 release of Barr, chair of the financial institutions subcommittee. While agreeing that consumer education and disclosure simplification should be addressed, they said the provision of credit and other financial products have associated costs, which late fees often help to offset. The “late fees targeted in this proposal will ultimately result in negative consequences,” requiring offsetting interest rate hikes or credit limitations, they wrote.
New York AG proposes rules to curb price gouging in emergencies. New York Attorney James proposed rules aimed at protecting consumers and small businesses from “corporate profiteering” by boosting enforcement of the state’s price-gouging law. “The proposed rules will make it more straightforward to investigate and combat price gouging by setting clear guardrails against price increases during emergencies,” said a March 2 release.
Non-Capitol Forum Antitrust Reading List
Axios: 1 big thing: Judges, not lawmakers, are setting 2023’s tech policy. LINK
The Washington Post: Biden finds breaking up Big Tech is hard to do. Google is hiring teams of former DOJ lawyers to fight antitrust lawsuits as the battle over tech firms’ power shifts to the courts. LINK
Washington Examiner: House GOP split over Big Tech antitrust: Jordan versus Buck. LINK
FedScoop: Rep. Ken Buck: federal agencies should reconsider future Amazon contract awards. LINK
Mihir Desai in The Washington Post: Why Big Tech should break itself apart. LINK
The American Prospect: How Monopoly Destroys Democracy. LINK
Robert Bork, Jr. in the WSJ: Congress Can Investigate Lina Khan. There’s a precedent: The House looked into FCC Chairman Kevin Martin on similar grounds. LINK
The NY Post: FTC’s Lina Khan may face congressional hearings over legal controversies. LINK
The Washington Post Editorial Board: An uncompetitive defense industrial base puts the nation at risk. LINK
ITIF: Lina Khan Erred in the Seminal Amazon Critique That Has Inspired Antitrust Legislation and a Possible FTC Suit, New Report Finds. LINK
Reuters: Google advertising antitrust cases caught in a tangled web over venue. LINK
The Washington Post: Google releases civil rights review, caving to years of pressure. Advocacy groups have long called on the tech giant to follow companies like Meta and Apple and vet its products for racial biases. LINK
PYMNTS: Why the Amazon-Walmart Retail Battle Won’t Be Fought in the Grocery Aisle. LINK
Bloomberg: Amazon Pauses Construction on Second Headquarters in Virginia as It Cuts Jobs. LINK
The New Republic: The Shadow Empire that Fuels Amazon’s Dominance. Antitrust regulators looking to curb the megafirm’s abusive practices will have to contend with the vast web of subcontractors and third-party sellers under its control. LINK
Steven Salop in ProMarket: An Excessive Evidentiary Burden Sunk the FTC’s Case Against the Meta/Within Merger. LINK
Herbert Hovenkamp in ProMarket: Reclaiming The Antitrust Law Of Potential Competition Mergers. LINK
NBC News: White House gives federal agencies 30 days to remove TikTok from all government devices. The ban Biden signed into law last year provides limited exceptions for law enforcement, national security and security research purposes. LINK
Axios: Republicans want to help Biden ban TikTok. LINK
The NY Times: As A.I. Booms, Lawmakers Struggle to Understand the Technology. Tech innovations are again racing ahead of Washington’s ability to regulate them, lawmakers and A.I. experts said. LINK
The Washington Post: AI chatbots may have a liability problem. LINK
The Economist: Artificial intelligence is reaching behind newspaper paywalls. Publishers long accused tech firms of profiting from their content. Now they have a point. LINK
The Washington Post: As ChatGPT hype soars, FTC warns Silicon Valley not to oversell its AI. LINK
The Washington Post: The right’s new culture-war target: ‘Woke AI.’ ChatGPT and Bing are trying to stay out of politics — and failing. LINK
The New York Times: Biden’s Semiconductor Plan Flexes the Power of the Federal Government. In return for vast subsidies, the Biden administration is asking the chip industry to make promises about its workers and finances. LINK
The American Prospect: Unions for On-Time Construction. Today on TAP: Commerce Department urges chip-makers facing a construction labor crunch to offer child care, use union workers. LINK
Politico: Lobbyists to Biden: Unless you want to cede to China, relax microchip rules. Microchip industry lobbyists are urging Washington to exclude new projects from the federal environmental reviews attached to huge federal subsidies. LINK
The American Prospect: Labor’s Struggle With Anti-Monopoly. The split between two unions on the JetBlue-Spirit merger reveals the dilemma. LINK
BIG by Matt Stoller: Pete Buttigieg’s Moment of Truth. Airlines are a consolidated mess, and JetBlue is trying to centralize the industry further. As Biden enforcers block deals across the economy, will Transportation chief Pete Buttigieg finally step up? LINK
The Hill: Republicans press Biden to withdraw FAA nominee. LINK
The American Prospect: A Small Victory Over Big Pharma. Eli Lilly announces insulin price caps, but keep an eye on the footnotes. LINK
The American Prospect: Private Health Care Companies Are Eating the American Economy. A new report from Wendell Potter at the Center for Health and Democracy examines just how the private insurance market makes its money—and how American health care is worse off for it. LINK
Bloomberg: Apple Suppliers Are Racing to Exit China, AirPods Maker Says. LINK
The American Prospect: West Virginia Wanders Away From Coal. Some coal defenders amp up culture war as others welcome nuclear and batteries. LINK