Published on May 23, 2022
Senate floor time for antitrust bill means likely passage into law. Axios reported May 19 that Senate Majority Leader is telling colleagues that he will allow for a Senate floor vote on antitrust legislation in early summer.
A source close to the legislative process explained that, to date, all votes on antitrust legislation have been uncertain until the actual timing of the vote, as many Senators view the votes as tough political decisions and don’t want to be inundated by big tech lobbying any more than they already are.
For example, when the Senate Judiciary Committee passed the Open App Markets Act (S. 2710) by a vote of 20-2, it wasn’t even clear going into the vote that there was a majority in favor of the bill, let alone 20 votes in favor of it.
So, when Schumer said he wanted proof that a bill had 60 votes before bringing it to the floor, lobbyists on both sides of the issue knew that this was a certain death for tech legislation because Senators were refusing to commit in advance of votes.
Conversely, with Schumer committing to bring a bill to the floor in early Summer, he is setting legislation up to pass into law as it appears likely there will be a 60-vote majority for legislation.
Vote math. Perhaps the easiest way to understand that there are upwards of 70 possible votes for antitrust legislation focused on reining in big tech is that Lina Khan received 21 Republican votes for her nomination. Now, while some big tech proponents will try to shoot down the significance of that vote, it is the closest thing we have to a proxy for Republican interest in reining in big tech. In addition to that, there is now a pretty clear group of Republicans who are interested in legislating and regulating the tech sector.
The Senate Judiciary votes on two antitrust bills also suggest a pretty wide spectrum of Republican lawmakers who could support legislation on the floor. The American Innovation and Choice Online Act (S. 2992) passed out of committee on a 16-6 vote with Republicans Lindsey Graham (R-SC), Josh Hawley (R-MO), Ted Cruz (R-TX) and John Kennedy (R-LA) all voting in favor. The Open App Markets Act attracted support from Graham, Hawley, Cruz, and Kennedy as well as Senators Chuck Grassley (R-IA), Mike Lee (R-UT), Tom Cotton (R-AR), Ben Sasse (R-NE), and Marsha Blackburn (R-TN).
Senator Mike Lee (R-UT) introduced a bill called the Competition and Transparency in Digital Advertising Act (text).
What will be in the bill? It is yet unclear what will be included in the package that Schumer brings to the Senate floor in early summer, but it’s worth looking at the three bills that passed into law and the one that was recently introduced to assess their political prospects and significance.
The American Innovation and Choice Online Act—almost certain to be the backbone of legislation. This bill is really the heart of regulating the tech sector and will be the bones of the package that Schumer brings to the floor. While stakeholders should expect big tech to lobby to defeat legislation on the floor, really, what they will most likely try to do is add complexity and loopholes into this legislation to reduce its effectiveness upon implementation. The details here will matter, but, effectively, this bill prohibits discrimination by the owner of a dominant platform.
The wiggle room for big tech currently written into the legislation can be found in the affirmative defense that allows a dominant platform to discriminate if it “establishes by a preponderance of the evidence that the conduct was narrowly tailored, nonpretextual, and reasonably necessary to maintain or substantially enhance the core functionality of the covered platform.” This affirmative defense sounds a lot like the rationale given by certain FTC staffers who argued against enforcement against Google during the Obama administration.
Even with the affirmative defenses, the legislation would amount to a durable new regulatory framework for big tech. Enforcement would be left up to the FTC, DOJ, and state AGs, and while future Presidents with less interest in enforcing antitrust law could diminish the efficacy of the law, state AGs would always be able to bring cases, making it less subject to swings in political fortunes.
State Antitrust Enforcement Venue Act of 2021—likely to be included in package. This bill exempts antitrust actions brought by state AGs from being consolidated in a single court district. Big Tech has had some success in venue shopping state AG litigation, and this bill would put a stop to that. This bill is widely considered to be the most likely to pass into law since it was introduced as it enjoys strong bipartisan support.
Open App Markets Act—on track to be included in package. One source following antitrust legislation said that the current expectation is for the Open App Markets Act to be included in the antitrust legislation that Schumer will bring to the Senate floor. This bill would prohibit platforms from forcing transactions to be made on the platform’s payment system, among other things.
From a political standpoint, it makes sense to include the Open App Markets Act because it enjoyed more Republican support than the American Innovation and Online Choice Act.
From a market standpoint, subscription offerings that primarily sell via Apple’s or Google’s online app ecosystem will enjoy a big reduction in costs. The stock market overall jumped during the Trump administration when it became clear tax cuts would pass into law. Effectively, companies like Epic, Match, Spotify, and other online software providers that rely on mobile payments will enjoy something akin to a big tax break if this bill passes into law as part of an antitrust package. Additionally, Digital Content Next supports the legislation, indicating that online media subscription offerings like the New York Times and Disney will also benefit.
Wildcards to watch—OPEC and Google break-up bills. Supporters of antitrust legislation probably won’t want to load up the package with too many different bills because that could complicate the political prospects for the whole bill. That said, two additional bills are worth watching during the amendment process. The first is legislation allowing antitrust suits against OPEC that passed out of the Senate Judiciary Committee earlier in May by a vote of 17-4. The White House said it had concerns there might be “unintended consequences” of legislation to allow for an antitrust crackdown on OPEC, but Senator Schumer has explicitly touted aggressive antitrust enforcement as a remedy to high gasoline prices, making the bill an interesting one to watch as legislation heads to the Senate floor.
Republican Senator Mike Lee just last week introduced the Competition and Transparency in Digital Advertising Act, which would force both Google and Facebook to divorce their primary businesses from their advertising businesses. To some extent, Google and Facebook are the companies that bipartisan legislators have grown most frustrated with from a political standpoint, and this bill has a chance to be added because it arguably could boost support for the overall bill in that it delivers a very clear blow to Google and Facebook. Further, the bill would represent a clear regulatory restructuring of the advertising and news ecosystem, which would address both Democrats’ broader concerns about concentrated power and Republicans’ particular concerns about political favoritism and censorship.
Beyond the bills themselves. In his weekly newsletter, Matt Stoller suggested a couple of additional ways in which antitrust legislation will have an impact: “First, they send a signal to judges to take antitrust more seriously and stop tossing cases. And second, they help Congress understand that it can actually structure markets.”
In terms of sending a signal to judges, Congress passing robust antitrust legislation specifically focused on discrimination and conflicts of interest would send a clear signal to the broader judiciary that such rules are central to antitrust enforcement. Intellectually, such a shift would seem to lend support to the antitrust leaders pushing ahead with enforcement of the Robinson Patman and Packers and Stockyards laws, which address similar issues in retail and agriculture, respectively.
Further, the FTC and DOJ are currently in the process of re-writing the merger guidelines, and Congressional passage of antitrust legislation would provide that effort with political cover as well as a boost in persuasiveness if they both hit on the same themes as they are expected to.
And judges aren’t the only powerful constituency watching these bills closely—European enforcers are in many respects in a wait-and-see approach regarding whether or not the US will take the lead on attacking their own platforms. Even the CMA, which has taken a much more aggressive posture than the EU towards big tech, is still years away from implementing their own regulatory approach.
The true end of the Bork era? To Stoller’s second point, the Bork era of antitrust enforcement focused not only on establishing a consumer welfare standard as the analytical frame for enforcement but also on a deference to large companies to govern markets and for government to keep their hands off from a regulatory standpoint. Lee’s legislation to break up Google and Facebook is perhaps the biggest signal that we have moved completely on from the Bork era’s laissez-faire approach to antitrust.
Lee continues to promote the consumer welfare standard as his preferred antitrust framework, but, in terms of deference to big business, his bill’s proposal to fully structure and regulate the online ad market is the starkest example to date of Republicans’ newfound interest in using power to ensure that companies compete in a way that they deem to be in the public interest. It’s also hard to overstate Lee’s importance in setting the tone for Republicans on antitrust, as he is the Ranking Member of the Senate Judiciary Committee and would be in line to take over as chair should Republicans win the Senate in November.
FTC, DOJ antitrust expected to get some funding increases. The FTC and DOJ antitrust division appear poised to receive additional funding from this Congress, though it might not be as much as they seek. The agencies’ fiscal year 2023 appropriations are generally expected to increase to some degree due to Democratic control—and a key Republican says proposals to raise their merger filing fee collections have a good chance—but Build Back Better Act provisions to boost the agencies’ funding further look uphill, sources told The Capitol Forum.
The president’s budget proposed to increase FY23 appropriations for the FTC to $490 million and DOJ antitrust to $273 million (30 percent and 41 percent hikes, respectively, compared to enacted FY22 levels). The funding requests are subject to an appropriations process that is expected to extend into a lame-duck session, the sources said. The process will “likely end up with a CR [continuing resolution] to at least get past Election Day,” emailed Jonathan Bydlak, R Street Institute fiscal and budget policy project director. “There’s little appetite for the collaboration necessary to enact approps.” CRs provide interim funding for agencies at base levels but tend to eventually lead to omnibus measures with new spending amounts, he noted.
There is a chance some appropriations bills could be enacted by the October 1, 2022, start of FY23, said a senior House Democratic aide, who suggested the Financial Services and General Government (FSGG) bill containing FTC funding is one of those that has a shot. But FSGC subcommittee Ranking Member Steve Womack (R-AR) doubted that scenario at a May 18 hearing (see related item) and also expects a CR.
The House Democratic aide said the Commerce, Justice, Science bill with DOJ funding is even more likely to be included in a CR, given expected liberal Democratic resistance to proposed increased police funding and Republican resistance to overall CJS funding proposals. The aide thought this Congress would likely complete action on the FY23 appropriations bills before adjourning for good, rather than passing a CR into the next Congress, though the mid-term election could scramble things. Because of the need for 60 Senate votes on appropriations, Senate Republicans have leverage to reduce many Democratic domestic funding proposals.
The Build Back Better Act could get through the Senate with only Democratic votes under the reconciliation process, but Senator Joe Manchin (D-WV) has so far blocked it. The House Democratic aide said a slimmed-down BBB can’t yet be ruled out, but was skeptical that $1.5 billion in proposed DOJ antitrust and FTC funding would be included. R Street’s Bydlak said, “Manchin has zero incentive to support [BBB], and while it’s always possible a provision here or there passes separately during lame duck, I think it’s pretty much dead.” The office of Senate Majority Leader Chuck Schumer (D-NY), who in March asked colleagues to back $1 billion for FTC competition and consumer protection efforts, didn’t respond to a Capitol Forum query.
House Judiciary Committee antitrust subcommittee Ranking Member Ken Buck (R-CO) has voiced optimism about the prospects for U.S. innovation and competition bill provisions to raise the filing fees that companies pay to the FTC and DOJ for large merger applications. A conference committee is attempting to reconcile House and Senate bills (H.R. 4521, S. 1260).
FTC calendars. The Capitol Forum received no calendars this past week.
Key players in their own words:
Khan: “I have asked staff to orient our enforcement efforts around targeting and rectifying root causes to avoid a whack-a-mole approach that imposes significant enforcement burden with few long-term benefits.”
Kanter: “Our markets are suffering from a lack of resiliency… Competitive markets create resiliency. Competitive markets are less susceptible to central points of failure.”
Kanter: “The history of the Sherman and Clayton Acts show a profound concern with economic liberty, not merely as an economic concept, but as a concept connected to the freedom of our nation.”
Kanter: “Sometimes [the motive of a private equity firm is] designed to hollow out or roll up an industry and essentially cash out. That business model is often very much at odds with the law, and very much at odds with the competition we’re trying to protect.”
Tzuker DOJ antitrust’s new chief of staff, Attridge his deputy. DOJ’s antitrust division named Joshua Tzuker chief of staff and senior counsel, and James Attridge deputy chief of staff and counsel to AAG Jonathan Kanter, according to the agency directory. Tzuker had been an Oracle senior competition policy advisor and before that was an advisor to then-FTC Commissioner Terrell McSweeny. Attridge had been acting chief of staff.
DOJ names Choe assistant chief, Lunder acting assistant chief of antitrust sections. Soyoung Choe was named assistant chief of the DOJ antitrust division’s Defense, Industrials and Aerospace Section, the agency directory says. She had been a Transportation, Energy, and Agriculture Section acting assistant chief. Matthew Lunder was named acting assistant chief of the Washington Criminal I Section. He had been a division trial attorney.
Wednesday, March 25 at 11 a.m. EDT. House Energy & Commerce hearing on infant formula safety supply. Witnesses include FDA Commissioner Robert Califf and other FDA officials.
Wednesday, May 25 at 3 p.m. EDT. Senate Finance hearing, “Supply Chain Resiliency: Alleviating Backlogs and Strengthening Long-Term Security.”
All Upcoming Events
Note: you can visit our Antitrust Calendar app at THIS LINK or via The Capitol Forum platform.
Tuesday, May 24 at 11 a.m. EDT. House Energy & Commerce hearing, “Strengthening Our Communications Networks: Legislation to Connect and Protect,” examining five bills.
Tuesday, May 24 at 1 p.m. EDT. American Bar Association (ABA) webinar, “Class Certification Issues Unique to Antitrust.”
Tuesday, May 24 at 2 p.m. EDT (11 a.m. PDT). Berkeley Center for Law and Technology event, “China IP Law Year in Review,” with antitrust discussion included.
Tuesday, May 24 at 4:30 p.m. EDT. ABA virtual meeting, “Learn & Mingle: Introduction to Labor Markets and Non-Competes.” Speakers include California DOJ’s Eleanor Blume.
Wednesday, May 25 at 9:30 a.m. Central European Summer Time (CEST). GCR Live: “Dusseldorf 2022” in-person conference in Dusseldorf, Germany, with EC and other European competition officials.
Wednesday, May 25 at 10 a.m. EDT. Information Technology & Innovation Foundation (ITIF) webinar, “What’s Next for the AI Act: Perspectives from Across Europe.”
Wednesday, May 25 at 10:30 a.m. U.S. EDT (4:30 p.m. CEST). Concurrences webinar, “Non-Poaching Agreements: A new battlefield for antitrust in the EU and US labor markets.”
Wednesday, May 25 at 11 a.m. EDT. Foreign Policy and Computer & Communications Industry Association webinar, “Tech Regulations: A National Security Threat?” (registration). Speakers include McLarty Associates’ John Negroponte (an ex-U.S. ambassador, including to the UN) and Ross Schulman, a New America’s Open Markets Institute senior policy technologist and counsel.
Wednesday, March 25 at 11 a.m. EDT. House Energy & Commerce hearing on infant formula safety supply. Witnesses include FDA Commissioner Robert Califf and other FDA officials.
Wednesday, May 25 at 3 p.m. EDT. Senate Finance hearing, “Supply Chain Resiliency: Alleviating Backlogs and Strengthening Long-Term Security.”
Thursday, May 26 at noon EDT. ABA webinar, “Your Must-Have Briefing on US Cartel Enforcement.”
Thursday, May 26 at 1 p.m. EDT. ABA webinar, “RICO Turns 50: Its Continuing Relevance in Business and Competition Litigation.” Speakers include Douglas Crow, DOJ principal deputy chief for RICO and policy.
Friday, May 27 at noon EDT. ABA webinar, “Greening Competition: A Global Perspective” with competition regulators and experts.
May 31 at 10:30 a.m. EDT. Information Technology & Innovation Foundation webinar, “Why the Bipartisan Innovation Act is Crucial for National Security.”
May 31 at 4:30 p.m. CEST (10:30 a.m. EDT). Concurrences “EU Merger Control and Digital Markets” in-person conference in Brussels with European competition officials.
May 31 at 11 a.m. EDT. ABA webinar, “Sports and Antitrust: Enforcement Trends on Both Sides of the Atlantic.”
June 1 at noon EDT. R Street webinar, “How to Pass a Federal Privacy Law: Exploring Areas for a Consensus and a Path Forward.”
June 1 at 1 p.m. EDT. ABA webinar, “Consumer Protection and Algorithmic Bias.” Speakers include Vikram Swaruup of the of the D.C. attorney general’s office.
June 2-3 at 8 a.m. EDT. ABA “2022 Antitrust in Healthcare Conference” in-person in Crystal City, Arlington, Virginia. Speakers include DOJ antitrust division Deputy AAG Andrew Forman (DOJ keynote) and other senior DOJ, FTC and state enforcers (“FTC keynote” June 2 at 9:30 a.m.)
June 3 at noon EDT. Information Technology & Innovation Foundation webinar, “Assessing the Neo-Brandeisian Revolution: Looking for Mr. Schumpeter?”
June 15 at 9 a.m. EDT. American Antitrust Institute in-person annual policy conference in Washington, D.C. Speakers include: Colorado special assistant AG Jon Sallet, D.C. Deputy AG Kate Konopka, Sullivan & Cromwell partner Renata Hesse, ex-DOJ acting assistant AG (twice).
FTC budget request gets mixed reception in House panel; Khan cites priorities. House Democrats were receptive to the Biden administration’s proposed $113.5 million increase in FTC funding to $490 million in fiscal year 2023, but Republicans voiced resistance. The FTC and the SEC are “seriously out-resourced by the industries they oversee,” said Representative Mike Quigley (D-IL), chairman of the House Appropriations Committee Financial Services and General Government Subcommittee at a May 18 hearing on the agency budget requests. “We have heard reports that these agencies may be outstaffed 10-to-1 in high-profile litigation.”
Subcommittee Ranking Member Steve Womack (R-AR) was skeptical about the proposed hike and said the FTC was contemplating a “dramatic shift” in antitrust enforcement that “could have far-reaching impacts” on the market. “Under any circumstances I would be reluctant to consider increasing an agency’s operating budget by 30 percent in one year,” he said. “Given the federal government’s current financial situation with more than $30 trillion in debt, I’m especially reluctant to support such an enormous increase.” Representative David Joyce (R-OH) said he wasn’t confident the extra funding would be used wisely.
FTC Chair Lina Khan said the agency seeks to increase staff count from 1,225 to 1440, mostly to beef up enforcement teams and litigators, but also to hire more technologists, economists and financial analysts. She said a surge in merger filings forced “triage” about which deals to challenge, and unlawful mergers have “deep consequences,” including increased concentration and fragile supply chains.
The FTC seeks to orient “enforcement efforts around targeting and rectifying root causes rather than a whack-a-mole approach that imposes significant enforcement costs with seemingly few long-term benefits,” Khan said (text). The FTC is also “ensuring that our work is tackling the most significant harm across markets, particularly by dominant firms whose business practices affect huge swaths of Americans,” and focused on “anticipating problems and taking swift action, especially as it concerns next-generation technologies and nascent markets.”
In response to Appropriations Committee Chair Rosa DeLauro (D-CT), who called on the FTC to work with the FDA and Department of Agriculture on the infant formula shortages, Khan called the shortages deeply troubling, cited high market concentration as problematic and exclusive state “WIC” (women, infants and children) formula purchasing contracts as a complication, and vowed to seek near-term and long-term solutions.
Womack noted FTC Republican Commissioners Noah Phillips and Christine Wilson dissented from the budget request and said enforcement productivity had dropped. Khan disagreed and said the enforcement trends were “on par” with past years and improving, and said she was focused on enforcement effectiveness, and preventing repeat offenders, not lawsuit numbers. Womack expected the FTC and other agencies to be funded by a continuing resolution (CR) beyond FY23’s October 1 start. “Higher budgets and a shorter, more compressed time to spend, I think, can be terribly inefficient for the taxpayers,” he said.
House Democrats, GOP spar over ‘profiteering,’ inflation cause. Partisan divisions were on full display at a May 17 House Judiciary antitrust subcommittee hearing on “reviving competition” and “corporate profiteering.” Democrats said dominant companies in highly concentrated industries are exploiting inflation to further raise prices above costs and extract profits at the expense of consumers. Republicans said the Democrats where trying to shift the blame for high inflation and product shortages from the majority’s stimulus and regulatory policies.
U.S. “economic leadership has been undermined by years of consolidation, underinvestment, and focus on short-term profits at the expense of everything else,” said subcommittee Chairman David Cicilline (D-RI). “Because of corporate consolidation, wages have stagnated, and consumer prices across the board are climbing higher and higher. … Corporations are reporting windfall profit margins in one sector after another. They are taking advantage of the current crises to raise prices even higher.” Rising gas prices are a “perfect example,” as “Big Oil’s profits are also at record highs,” as is the median pay of large company CEOs, he said. Republicans said Democratic policies undercut U.S. oil production, pushing gas prices higher.
The economy is “stagnating in uncertainty over record-setting inflation, labor shortages and a crippled supply chain,” said Subcommittee Ranking Member Ken Buck (R-CO). While U.S. families face an infant formula shortage, he noted, Congress passed a $40 billion Ukraine bill with funding for global food security. “The Biden administration and congressional Democrats need to stop hiding behind scapegoats and finally address the root causes of skyrocketing inflation. Between profligate spending, unabashed union protectionism, and radical environmentalism, it’s no wonder how we got here.”
Democrats said the formula shortage is a concentration symptom. “Just two companies control 80 percent of baby formula production,” Cicilline said. “The largest U.S. formula producer, Abbott, shut down one of its plants in February due to bacterial contamination. Because of the loss of one plant of one company, formula shelves are empty. We do not have the diversity of other, smaller companies capable of picking up the slack. Our supply chain is not resilient.” Buck countered: “To suggest that changes to competition policy will put formula back on the shelves for consumers is disconnected from reality, especially when the Biden administration is busy shipping pallets of formula to the southern border for illegal immigrants.”
Democratic-called witnesses cited concentration concerns. Ex-Labor Secretary Robert Reich said companies with market power were raising prices under the cover of inflation—instead of absorbing higher input costs—and using profits to buy back their stock to reward shareholders instead of investing in capacity, innovation and workers. He called for bolstering antitrust laws and enforcement, preventing price gouging, and taxing windfall profits and stock buybacks.
Open Markets Institute Executive Director Barry Lynn said shortages and price gouging are due to consolidation, capacity chokepoints and offshoring driven by both parties since the 1980s. He said the U.S. unwisely “put all our eggs in one basket” and placed the basket in China, creating national security risks. He said the remedy is to enforce anti-monopoly laws as intended, and update them where necessary. He also called for spurring domestic mining and processing of critical minerals, like silicon, drawing praise from Republicans.
Republican-called witness Patrice Onwuka, director of the Independent Women’s Forum’s Center for Economic Opportunity, said inflation was due to a demand spike from fiscal and monetary stimulus, combined with supply problems. The top five gasoline distributors only have 36 percent of the market, she said, arguing crackdowns on companies or prices won’t help. But Groundwork Collaborative Chief Economist Rakeen Mabud cited Economic Policy Institute findings that 54 percent of company price hikes go to profits, with labor costs and non-labor costs (e.g., for inputs) accounting for only 8 percent and 38 percent, respectively.
House passes bill to bar fuel price gouging. The House voted 217-207 to pass the Consumer Fuel Price Gouging Act (H.R. 7688). The bill would generally bar the sale of fuel for a price that is “unconscionably excessive” and “indicates the seller is exploiting” an “energy emergency” to “increase prices unreasonably.” The president would be empowered to declare an energy emergency for any area of the U.S., based on various “aggravating factors,” and the FTC and state attorneys general would enforce the provisions.
Congress passes USDA emergency baby formula action, House approves funding. The House by a 414-9 vote and the Senate by unanimous consent passed the Access to Baby Formula Act (H.R. 7791) to authorize U.S. Department of Agriculture emergency action to address supply chain disruptions, particularly the shortage of infant formula affecting the Special Supplemental Nutrition Program for Women, Infants, and Children. The House also voted 231-192 on May 18 to pass the Infant Formula Supplemental Appropriations Act (H.R. 7790) to give $28 million in emergency funding to the U.S. Food and Drug Administration to address the infant formula shortage. “This critical funding will work in tandem with President Biden’s launch of Operation Fly Formula and invocation of the Defense Production Act to help quickly and safely address the infant formula shortage,” said House Appropriations Chair Rosa DeLauro (D-CT).
Bipartisan Senate bill targets digital advertising conflicts of interest. Four senators introduced a Competition and Transparency in Digital Advertising Act, “to restore and protect competition in digital advertising by eliminating conflicts of interest that have allowed the leading platforms in the market to manipulate ad auctions and impose monopoly rents on a broad swath of the American economy,” said a May 19 release of sponsor Mike Lee (R-UT), Judiciary antitrust subcommittee ranking member. He was joined by antitrust subcommittee Chair Amy Klobuchar (D-MN) and Senators Ted Cruz (R-TX) and Richard Blumenthal (D-CT).
“As the buyer, seller, broker, and exchange, Google maintains pervasive conflicts of interest in online advertising that it uses to manipulate markets,” said Matt Stoller, American Economic Liberties Project research director. “By breaking up Google’s third-party ad tech business and requiring advertising intermediaries to disclose the prices and quality of the advertising they are buying and selling, this bill will finally allow honest price discovery in markets for online advertising.”
Warren, Rounds seek to direct FTC to probe beef-packers. Senators Elizabeth Warren (D-MA) and Mike Rounds (R-SD) introduced a joint resolution to direct the FTC “to report to Congress within one year on the extent of anti-competitive practices and violations of antitrust law in the beef-packing industry, including price-fixing, anti-competitive acquisitions, dominance of supply chains, and monopolization,” said a May 19 Warren release.
NYAG investigating social media role in Buffalo shooting; Durbin also seeks info. The Office of New York Attorney General Letitia James is investigating social media companies regarding the recent mass shooting “terror attack” in Buffalo. “The investigations will focus on those platforms that may have been used to stream, promote, or plan the event, including but not limited to Twitch (owned by Amazon), 4chan, 8chan, and Discord,” said a May 18 release. U.S. Senate Majority Whip and Judiciary Committee Chairman Dick Durbin (D-IL) pressed Discord and Twitch “about the role the platforms play in disseminating extremist content,” after the mass shooting in Buffalo, “which the gunman reportedly planned and attempted to amplify using social media platforms,” said a May 19 Durbin release.
Khan, Slaughter voice concern to ITC about SEP holders seeking product bans. FTC Chair Lina Khan and Commissioner Rebecca Slaughter are “increasingly concerned that [standard essential patent] holders who have committed to license SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms are seeking exclusionary orders to ban products from the marketplace for the purpose of gaining leverage over existing or potential licensees.” In May 16 comments to the U.S. International Trade Commission, they wrote, “In our view, where a complainant seeks to license and can be made whole through remedies in a different U.S. forum, an exclusion order barring standardized products from the United States will harm consumers and other market participants without providing commensurate benefits.”
Wicker asks Khan to address drop in FTC staff satisfaction, and propose plan. Senate Commerce Committee Ranking Member Roger Wicker (R-MS) voiced concern to FTC Chair Lina Khan over the agency’s staff morale after a recent Federal Employee Viewpoint Survey “showed a significant decline in employee satisfaction,” said a May 19 Wicker release. “I write today to ask that you explain why staff perception and regard for the Commission’s leadership has decreased and to provide a plan for how you are going to work with all Commissioners to address this breakdown in confidence within the agency,” he wrote in an attached letter. “This problem demands immediate attention.” The FTC didn’t respond to a Capitol Forum query.
Progressive groups seek waiver for Kanter on Google matters. Progressive advocates said they were alarmed that DOJ antitrust chief Jonathan Kanter has been barred from participating in agency scrutiny of Google while the department weighs whether to seek his recusal “at the behest of the embattled company,” and they asked he be given a waiver. “A review of federal ethics guidelines dispels the argument that Mr. Kanter’s work in private practice to rein in monopoly power stops him from being impartial in scrutiny of the company,” said a May 13 letter to DOJ from the Revolving Door Project and 27 other groups. “On the contrary, Mr. Kanter’s efforts in private practice to hold Google’s anti-competitive behavior accountable is a mark in his favor, not an ethical predicament.”
Key senators unveil homeland security supply chain bill. Senate Homeland Security Committee Ranking Member Rob Portman (R-OH) and Chairman Gary Peters (D-MI), and Senator Debbie Stabenow (D-MI) proposed a bill to bolster U.S. supply chains and domestic production capacity and benefit homeland security. The DHS Trade and Economic Security Council Act would task the Department of Homeland Security’s Trade and Economic Security Council with “identifying economic risks to the homeland, setting priorities for securing the country against identified risks, coordinating activity across DHS to meet those priorities, and proposing statutory and regulatory changes where necessary to meet those priorities,” said a May 18 Portman release.
Military contractor indicted in Texas in alleged $15 million bid-rigging scheme. A federal grand jury in Texas indictment charged a military contractor with rigging bids on military contracts in Texas and Michigan and defrauding the United States, the DOJ announced on May 20, alleging a $15 million scheme and conspiracy.