Published on Mar 21, 2023
UBS’s takeover of Credit Suisse, announced yesterday, is clearly at odds with the Biden administration’s whole-of-government approach to enforcing competition policy. The merger combines a formerly top 10 bank with its Swiss rival – an outcome that would have been unthinkable from a regulatory and antitrust perspective even weeks ago. CNBC hosts are now saying that UBS will, following the combination, enjoy a monopoly in the Swiss banking market. The level of stress in the banking sector is leading to extraordinary measures to steady the market.
That said, it comes at a time when decision-makers who aren’t champions of antimonopoly enforcement—Treasury Secretary Janet Yellen and Federal Reserve Chair Jerome Powell—are seeing their White House standing fall as supporters of antimonopoly enforcement—Senator Elizabeth Warren (D-MA) and Lael Brainard, director of the National Economic Council—are experiencing the opposite. Brainard has prominently opposed Powell’s support for deregulation.
A 2021 New York Times opinion piece titled “The Great Dissenter” by Peter Coy summarizes the NEC director’s prescient warnings succinctly: “Lael Brainard has emerged as the great dissenter on today’s Federal Reserve Board of Governors, the seven-member body that oversees the central bank. In multiple decisions, she has not only voted against the board’s deregulatory agenda — challenging its positions on matters such as liquidity requirements, trading rules and capital buffers for banks — but she has also detailed her reasoning in forceful terms.”
Warren also loudly objected to bank deregulation, which is now viewed as directly contributing to the current banking crisis. Yellen and other Treasury Department officials generally have, along with Powell and the Fed, been open to broader and more Wall-Street-friendly bailout policies than the ones that have been implemented to date. But our understanding is that this posture isn’t favored by President Joe Biden, who views himself as a champion of the middle class.
In that context, it’s worth viewing regulators’ near-term decisions on proposed bank mergers that involve failing banks differently than other deals in the sector under scrutiny. Clearly, if a bank is headed for collapse, it may end up being part of a combination that bypasses antitrust scrutiny in an effort to shore up financial stability.
However, as we said last week, the Federal Deposit Insurance Corporation, which is more thorough and rigorous than the Fed and Office of the Comptroller of the Currency when it comes to bank regulation and supervision, is likely to be in the driver’s seat when it comes to rewriting bank merger review rules. Further, we imagine that the White House, once the stress in the banking sector subsides, will look to promote decision-makers at the Fed and Treasury who have stronger pro-regulation track records to prevent the president from having to make politically uncomfortable bailout decisions in the future.
A Fed spokesperson pointed to Vice Chair of Supervision Michael Barr’s bank merger policy review remarks in a September 2022 speech. “Mergers are a feature of vibrant industries, but the advantages that firms seek to gain through mergers must be weighed against the risks that mergers can pose to competition, consumers, and financial stability,” he said. “These risks may be difficult to assess, but this consideration is critical. I am working with Federal Reserve staff to assess how we are performing merger analysis and where we can do better.”
Spokespeople from the OCC and Treasury didn’t immediately respond to requests for comment.
New merger guidelines before enforcers summit? We continue to expect the DOJ and FTC to release draft merger guidelines by the end of the month that will be much tougher than the conventional wisdom anticipates. DOJ and FTC have an enforcers summit on March 27, and it would make sense to release the guidelines in advance of that meeting so that the draft can be discussed with policymakers and law enforcers like state attorneys general and agency heads who play a role in antitrust decisions.
In Their Own Words
Khan: Social media ‘huge vector’ for fraud; business model warrants 6(b) deep dive. From FTC Chair Lina Khan’s March 16 remarks on the Section 6(b) orders that commissioners approved 4-0 seeking information from Meta, TikTok, YouTube, Twitter and certain other platforms on their efforts to screen and curb deceptive advertising and scams over their systems.
“The FTC … has uncovered that major social media and video streaming platforms have become a huge vector for misleading ads, financial scams, and other types of fraud. In 2021, more than one in four people who reported losing money to fraud said it started on social media with an ad, post, or message. Data spotlights by our team also found that since 2021, nearly half of those who report cryptocurrency losses say it began on social media. Another report details how, during the throes of the COVID-19 pandemic, deceptive COVID claims particularly thrived on social media.
“We are deploying our full set of tools and authorities to tackle deceptive practices that increasingly occur on digital platforms. Given these findings, it’s also important for us to understand the factors that are allowing fraud on social media platforms to proliferate. For example, several of these platforms generally earn their revenue at least in part through behavioral advertising, whereby a platform will collect data on users in order to be able to target them with personalized ads. These platforms’ bottom lines depend on user engagement, which tends to result in a business focus on tactics that boost traffic and time spent on the platform.
“I am especially eager to understand the role of this business model and the incentives it creates. For example, how do platforms’ business incentives align with rooting out fraud? If financial scams and counterfeit goods are driving engagement on the platform, how do platforms decide whether to crack down on fraud or whether instead to turn a blind eye? And to what extent do targeting and personalization tools on platforms enable scammers to target their victims with immense precision?”
Khan: Time to shed light on credit-reporting firms’ opaque small business practices. From Khan’s March 16 remarks on other Section 6(b) orders the FTC approved 4-0 requesting information from Dun & Bradstreet, Experian, Equifax and two other credit-reporting companies on their practices and processes for reporting on small business.
“Many small business owners, focused on the day-to-day tasks of running a business, don’t have time to worry about whether business credit reporters are providing correct information to their suppliers and customers. But when reporting errors do occur, they can impose major obstacles for small businesses. Suppliers often use credit reports to guide the terms on which they extend ‘trade credit’ to businesses, which allows businesses to procure goods, services, and equipment without having to pay immediately. … To suppliers gauging whether a business will pay its bill on time, missing data can be reason enough to classify a business as risky.
“Often, small businesses only discover that there are problems with their credit report when they’re denied trade credit, receive less favorable contract terms, or lose out on a contract altogether. Credit reporting companies can also market products to small businesses that promise to improve their credit reports. But these products don’t always deliver to the extent they claim they will. That’s what the FTC found when it investigated Dun & Bradstreet. … This study would shed light on a critical but opaque part of the market in which small businesses operate—and would build on the agency’s broader effort to ensure that small businesses and entrepreneurs have a fair shot in the marketplace.”
FTC’s Wilson: 6(b) probes useful, but require resources, hard choices. From Commissioner Christine Wilson’s remarks at a March 16 meeting on both sets of Section 6(b) orders: for social media and video streaming companies, and for credit-reporting firms.
“[W]e have seen a surge in deceptive and fraudulent advertising on social media and video streaming platforms. Given this trend, the topic of this study likely will be beneficial to consumers who use these services. But obtaining and analyzing the data from this study will require significant resources. I will note that the FTC currently has multiple 6(b) studies underway. … I would hope that the Commission’s law enforcement efforts will not be diluted too significantly by the expenditure of resources in so many other arenas. To facilitate transparency and accountability, it would be helpful for the public to understand how many full-time employees are being allocated for this 6(b), for the other ongoing 6(b) studies, and for the rulemakings underway.”
“… As with the Social Media Ad Fraud 6(b), staff have crafted a thorough set of inquiries. And our 2022 Dun & Bradstreet case demonstrated that the topic of this 6(b) likely will be beneficial to small businesses throughout the U.S. As I noted earlier, though, there are many worthwhile projects for the agency to pursue; in a world of finite resources, prudent governing requires hard choices about where to deploy these scarce resources.”
DOJ brief to court in private case, comments to two agencies circulated on March 15:
Merger Decision
STB clears CP-KCS rail merger with conditions; AELP calls decision “disgraceful.” The Surface Transportation Board on March 15 approved Canadian Pacific Railway’s (CP) acquisition of Kansas City Southern Railway (KCS) with conditions. “The decision includes an unprecedented seven-year oversight period and contains many conditions designed to mitigate environmental impacts, preserve competition, protect railroad workers, and promote efficient passenger rail,” said an STB release. “The Board also anticipates the merger will result in improvements in safety and the reduction of carbon emissions.”
“CP and KCS are Class I railroads, but individually they are far smaller than any of the other five Class I railroads with which they compete for business,” said the 212-page STB decision. “Even after they merge, the combined system—to be known as Canadian Pacific Kansas City (CPKC)—will continue to be the smallest Class I railroad. This merger will create the first railroad providing single-line service spanning Canada, the United States, and Mexico. Among many other new single-line options, this new direct service will facilitate the flow of grain from the Midwest to the Gulf Coast and Mexico, the movement of intermodal goods between Dallas, Tex., and Chicago, Ill., and the trade in automotive parts, finished vehicles, and other containerized mixed goods between the United States and Mexico.
“The Board expects that this new single-line service will foster the growth of rail traffic, shifting approximately 64,000 truckloads annually from North America’s roads to rail, and will support investment in infrastructure, service quality, and safety. The transaction is also expected to drive employment growth across the CPKC system, adding over 800 new union-represented operating positions in the United States.” In addition, the merger will foster new Amtrak “passenger rail opportunities,” the STB added, noting Amtrak’s endorsed the deal.
However, the merger could still “pose competitive risks, and indeed this decision overturns prior agency precedent that did not sufficiently recognize such concerns,” the decision said. “To address any potential anticompetitive harm, the Board is imposing numerous conditions designed to protect competition.” In addition to detailing those conditions, the decision also detailed environmental findings and safeguards, a rail safety plan, the seven-year oversight period and extensive data-reporting requirements.
CP can take control of KCS as early as April 14, creating the new CPKC then or thereafter, said a CP release, which said it’s reviewing the decision and will announce its plans in coming days.
The American Economic Liberties Project blasted the STB’s “disgraceful” approval. “This $28 billion mega-merger will put even more critical transportation infrastructure in the hands of a single, powerful corporation more interested in extracting profits than operating a reliable, safe railroad system,” said Erik Peinert, AELP research manager and editor. “Nothing in the history of rail consolidation suggests it is a good idea. This deal also sets the stage for future disasters like East Palestine and will likely lead to railroad staffing cuts, higher cargo loads, and other profit-driven safety shortcuts.” AELP disputed the behavioral remedies and oversight would address the “harmful merger” effects, comparing them to those applied to Ticketmaster.
Tech Update/Outlook
Lawmakers, AELP see Big Tech bid to “rig” digital trade rules, handcuff governments. Legislators and American Economic Liberties Project officials said that Big Tech is looking to promote trade restrictions on the ability of U.S. and global policymakers to adopt and enforce pro-competitive and pro-consumer online safeguards. They spoke on a March 15 webcast of AELP’s Rethink Trade as it issued a report on Big Tech’s attempt to “hijack” trade talks with digital rules that limit or ban key aspects of “strong privacy, anti-monopoly and algorithmic transparency policies” in the U.S. and elsewhere.
“Giant corporations have this one great trick,” said Senator Elizabeth Warren (D-MA). “If it looks like regulators just might rein you in, send out your corporate lobbyists to rig a trade deal. From Big Pharma to Big Banks, giant corporations use bad trade deals to pad their profits and chip away at protections for workers and consumers. And, now that the United States is trying to rein in Big Tech, finally, their lobbyists and lawyers are trying to rig the digital trade deals to undermine those” efforts.
Rethink Trade’s report “reveals Big Tech’s ploy to internationally pre-empt top congressional and White House initiatives to protect our privacy, to battle Big Tech monopolies, to ensure algorithmic justice and transparency, making sure AI (artificial intelligence) isn’t discriminating … or invading our rights,” said RT Director Lori Wallach. She said Big Tech’s focus is on inserting “so-called digital trade rules” into current Indo-Pacific Economic Framework (IPEF) talks, but it’s also targeting talks linked to the World Trade Organization and with Latin American countries and others.
Policymakers shouldn’t have “their policy space excavated right under their feet through obscure and secretive trade negotiations that would help industry to fend off regulations globally,” said Daniel Rangel, Rethink Trade’s research director and report lead author.
Representative Jan Schakowsky (D-IL) said legislation to protect consumer data privacy and fight Big Tech “predatory” practices “could be threatened by the administration’s” IPEF involving 14 nations and 40 percent of global GDP. “We are worried about what is being negotiated,” she said, citing the “flawed” digital provisions of the Trump administration’s U.S.-Mexico-Canada (USMCA) trade agreement as a bad model. She said Big Tech is looking to expand Section 230 online liability protections overseas, but with Congress revisiting the provisions here, “now is not the time to have an international agreement about that.” She said USMCA’s language barring limits on cross-border data sharing shouldn’t be adopted more broadly, further jeopardizing U.S. consumers’ data.
“We have to insist on a level of transparency and an involvement of Congress, especially when it comes to the possible preemption of some very important laws, and preemption of possible legislation like mine, the Justice in Forensic Algorithms Act” to uphold the rights of defendants in criminal trials, said Representative Mark Takano (D-CA). He said the IPEF shouldn’t go into effect without a vote of lawmakers.
Policymakers are “taking a close look” at AI, which can “discriminate on a massive scale,” Warren said. “Big Tech wants to keep its code in a black box where no one can see what they’re doing. Of course, Big Tech companies only care about secrecy when it’s their secrets, but they’re fighting tooth and nail to protect their ability to collect, to store, and to sell your data anywhere… That’s why tech lobbyists want trade rules that would let them transfer your data anywhere in the world, with only a narrow and basically unusable exception for sensitive personal information. This is outrageous. … Trade deals must work for workers, consumers and small businesses, not just for billionaire corporations.”
The Computer & Communications Industry Association (CCIA), a tech trade group, declined comment on the lawmaker and AELP criticism of Big Tech. But CCIA issued a statement on the just-concluded round of IPEF talks in Bali, Indonesia, noting discussions included newly tabled digital trade proposals. CCIA “strongly encourages parties to seek robust digital trade rules to set a high-standard agreement and has joined partner industry groups in calling for ambitious digital trade rules in IPEF,” it said. “CCIA previously offered recommendations to the Biden Administration on priorities for maximizing benefits to the digital economy through this initiative.”
CCIA is “pleased to see text-based proposals on digital trade, a key component in finalizing a meaningful trade agreement with key partners in the Indo-Pacific region,” said CCIA Digital Trade VP Jonathan McHale. “As text for the digital trade chapter is advanced, industry hopes that “IPEF can build off—and not weaken—the strong foundation set by USMCA and the U.S.-Japan Digital Trade Agreement to ensure digital goods and services can flow between member countries and boost U.S. export competitiveness. Addressing these issues through IPEF will go a long way to protect the free and open internet and promote market access for large and small suppliers alike.”
CCIA also recently released a paper “debunking myths about the impact of digital trade rules in negotiated agreements including” the IPEF. “Opponents of effective trade frameworks have sought to misconstrue the positive effects of digital trade, and downplay the benefits of U.S. participation in this vital region, supported by meaningful rules,” CCIA said March 9.
Meta filing reveals Zuckerberg, Sandberg to be deposed by FTC, private parties. “Meta regrettably must request the Court’s intervention to enter a narrowly-tailored protective order to impose reasonable time limitations for four apex depositions, the first of which is proposed for April 5, 2023: Mark Zuckerberg, Chief Executive Officer (3 hours), Sheryl Sandberg, former Chief Operating Officer and current Board member (3 hours), Sir Nicholas Clegg, President of Global Affairs (4 hours), and Chris Cox, Chief Product Officer (4 hours),” wrote Meta’s counsel to District Court Judge James Donato of the Northern District of California March 17 in Klein v. Meta Platforms, Inc. (Recap docket).
“Though it would be justified, Meta is not seeking to block these depositions outright or to impose shorter time limits on all senior executives—as a compromise, Meta has agreed to present its current Chief Operating Officer, its Chief Marketing Officer & VP Analytics (Alex Schultz), its Chief Strategy Officer, and its Chief Privacy Officer for deposition up to seven hours. Instead, Meta requests reasonable time limits for these four specific witnesses, taking into account” various factors, “including the fact that Meta is already providing Plaintiffs with the transcripts from the witnesses’ corresponding depositions in FTC v. Meta Platforms, Inc., 1:20-cv-03590-JEB (D.D.C.), which are taking place prior to the depositions in this matter, and prior transcripts and exhibits from other proceedings (Dkt. 424).”
Donato quickly granted the proposed time limitations. “If, after the depositions have concluded, plaintiffs have a good-faith basis for seeking additional time, they may advise the Court,” he wrote in a docket entry.
“[L]ate Friday night news! Zuckerberg and Sandberg depositions coming,” tweeted Digital Content Next CEO Jason Kint. “After breaking records (nearly $6B) to avoid testifying in FTC and class action privacy suits, Zuckerberg and Sandberg will finally be deposed in next month by FTC then private plaintiffs in antitrust suits. It’s worth noting, the private suit includes the ‘Jedi Blue’ allegations that Sheryl Sandberg signed deal with Google guaranteeing benefits to Facebook in auctions if it exited header bidding. Sandberg will be under oath for 1st time AFAIK.”
Cruz demands Meta, Google, TikTok answer content-recommendation queries. Senate Commerce Committee Ranking Member Ted Cruz (R-TX) pressed Meta, Google and TikTok with new queries after their “failure to adequately answer his initial requests for information regarding these companies’ use of recommendation algorithms to filter and curate online material,” said a Cruz release. “The American people have a vested interest in the policies and practices that govern their speech on large social media platforms,” Cruz wrote to TikTok March 16, and similarly to Meta and Google.
“As content moderation has grown in both scale and complexity, the need for sunlight—particularly on politically-charged moderation questions—has become an imperative. In light of such public interest, increased congressional oversight of social media companies, and pending Section 230 litigation at the Supreme Court, it is essential that TikTok responds substantively to congressional requests, especially from this Committee, which has jurisdiction over key industry issues like Section 230 and data privacy.”
CFPB seeks input on data broker practices. The Consumer Financial Protection Bureau opened an inquiry into companies that collect and track information on people’s personal lives. Through a Request for Information, the CFPB “wants to understand the full scope and breadth of data brokers and their business practices, their impact on the daily lives of consumers, and whether they are all playing by the same rules,” said a March 15 release. “Modern data surveillance practices have allowed companies to hover over our digital lives and monetize our most sensitive data,” said CFPB Director Rohit Chopra. The inquiry will inform whether Fair Credit Reporting Act rules reflect market realities, he said, as the agency eyes a planned rulemaking.
CFPB seeks to bring federal, state tech enforcers together. The CFPB is “convening enforcement agencies across the government—including federal agencies, state attorneys general, and state insurance commissioners—to sharpen our combined efforts to ensure consumers are protected,” wrote Erie Meyer, agency chief technologist, March 14. “Over the last few months, we’ve hosted trainings and briefings for enforcement agencies on numerous consumer financial protection topics, including emerging practices in biometrics and how to address algorithmic harms. We also released a guide to help other enforcement agencies hire technologists to protect consumers. Together, lawyers and technologists are working closely to stay on top of trends, address emerging risks, and rein in bad actors, especially those in Big Tech.”
Healthcare Update/Outlook
Biden, Schumer tout new insulin price cuts, still want $35 monthly cap legislation. The three “leading insulin producers in America have agreed to substantially reduce their prices, following my calls to expand my $35 cap for seniors to all Americans,” said President Biden on March 16. “Sanofi became the latest company to recognize that charging hundreds of dollars for insulin that costs $10 to produce is just wrong,” he said (Sanofi release).
Earlier on March 16, Senate Majority Leader Chuck Schumer (D-NY) had called on Sanofi to act, two days after hailing Novo Nordisk’s move “to slash insulin costs by up to 75 percent” (company release) and two weeks after an Eli Lilley move to cut insulin costs. Both Biden and Schumer called for passing legislation to ensure everybody can get insulin for no more than $35 per month.
HHS announces IRA’s Medicare Part B inflation rebates targeting “price gouging.” The U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services (CMS), on March 15 announced 27 prescription drugs for which Part B beneficiary coinsurances could be lower in Q2. Some Medicare beneficiaries taking the drugs could save between $2 and $390 per average dose starting April 1, depending on their coverage, under the Inflation Reduction Act (IRA) provisions, HHS said. The White House cited the announcement in a release touting President Biden’s prescription drug law producing savings for seniors.
Senate Finance Committee Chairman Ron Wyden (D-OR) hailed the IRA’s rebate policy penalizing drug makers when the increase prices faster than the inflation rate. “The announced reduction in coinsurance for these drugs, including Humira, is the culmination of legislation I first wrote in 2019 to hold Big Pharma accountable for price gouging, and is just the beginning of further cost protections Americans in Medicare will feel in the coming months and years,” he said. On March 14, Wyden and 21 other senators had asked the administration to publicize the IRA’s Medicare Part B inflation rebate effects.
NCPA lauds bipartisan bill to bar PBM Medicaid managed care spread pricing. The National Community Pharmacists Association praised the reintroduction of a bipartisan bill to prevent pharmacy benefit managers from using “spread pricing” in Medicaid managed care—overbilling state or Medicaid programs, under-reimbursing pharmacies for dispensed medications, and retaining the difference. The Drug Transparency in Medicaid Act was introduced by Representatives Buddy Carter (R-GA), Vicente Gonzalez (D-TX) and others of both parties, including House Republican Conference Chair Elise Stefanik (R-NY).
“Through spread pricing in Medicaid alone, PBMs can hoard hundreds of millions of dollars each year. That this tactic hasn’t yet been banned is good for the mega-middlemen, but terrible for the beneficiaries and taxpayers left paying inflating prescription drug costs as a result,” said NCPA CEO B. Douglas Hoey March 17. “This bipartisan bill would not only prohibit spread pricing, it would also see that pharmacies are paid in a way that would cover their dispensing costs.”
Personnel News
FTC seeks IT specialist, sought assistant regional director for Cleveland office The FTC is seeking an information technology specialist for the Bureau of Consumer Protection, Division of Litigation Technology and Analysis. “The incumbent will serve as the Information Systems Security Officer (ISSO) responsible for overseeing the information security of the Tech Lab (Lab), a separate network that provides undercover Internet access for staff to conduct investigations and research.” The FTC was also seeking “an experienced attorney to serve as Assistant Regional Director of its East Central Region (Cleveland).”
Events in Next Two Weeks
To access our calendar of all antitrust events, click HERE.
Monday, March 20 at 10:00 a.m. EDT. ITIF “U.S. Spectrum Allocation Needs Reform: Lessons From the C-Band Controversy.” Panelists include NTIA Senior Spectrum Advisor Scott Blake Harris and former NTIA Assistant Secretary Lawrence Strickling.
Monday-Tuesday, March 20-21 at 8:50 a.m. and 4:50 a.m. EDT (11:50 a.m. and 7:50 a.m. PDT). USC Gould School of Law hybrid “Intellectual Property Institute” in Santa Monica, CA. Speakers include Deputy Commissioner for Trademark Examination, U.S. PTO Amy Cotton and Member of the President’s Intelligence Advisory Board Jeremy Bash.
Tuesday-Wednesday, March 21-22 at 9:00 a.m. Greenwich Mean Time both days. InformaConnect’s “AML & ABC Forum” in London, UK. Among speakers: Gerald Moody, Assistant Chief of DOJ FCPA.
Tuesday-Thursday, March 21-23 at 9:00 a.m., 8:15 a.m., 8:30 a.m. EDT. American Conference Institute’s 40th “FDA Boot Camp” virtual event on FDA regulation, laws, developments. (March 21 has “pre-conference workshops”). Co-chairs: Morrison & Foerster partner Stacy Cline Amin, an ex-FDA chief counsel, and Hyman, Phelps partner Kurt Karst.
Tuesday, March 21 at 11:30 a.m. EDT. Morgan Lewis webinar “M&A Considerations Across the Evolving Life Sciences Sector.”
Tuesday, March 21 at 2:00 p.m. EDT. BakerHostetler webinar “Back to the Future Part II: The NLRB and the Uncertain State of Labor Law.”
Wednesday, March 22 at 9:30 a.m. EDT. American Enterprise Institute “Livestock Regulation and the 2023 Farm Bill” hybrid event in Washington D.C.
Wednesday, March 22 at 10 a.m. EDT. Senate Commerce Committee executive session to consider and vote on five bills and any amendments, including the Pharmacy Benefit Manager Transparency Act (S. 127), informing Consumer About Smart Devices Act (S. 90) and FAA administrator nominee Phillip Washington.
Wednesday, March 22 at 10 a.m. EDT. Senate Homeland Security Committee hearing “Drug Shortage Health and National Security Risks: Underlying Causes and Needed Reforms.”
Thursday-Friday, March 23-24 at 8:00 a.m. CDT both days. Tulane Law hybrid conference on corporate law in New Orleans, LA. Speakers include: Ted Yu, Chief of M&A at SEC Division of Corporate Finance and Paul Rosen, Assistant Secretary of the Treasury for Investment Security.
Thursday, March 23 at 10 a.m. EDT. House Energy & Commerce Committee hearing “TikTok: How Congress Can Safeguard American Data Privacy and Protect Children from Online Harms.” In first congressional appearance, TikTok CEO Shou Chew to testify on company’s “privacy and data security practices,” its “impact on kids, and its relationship with the Chinese Communist Party” (release).
Thursday, March 23 at 10 a.m. EDT. Senate Commerce Committee hearing “Enhancing Consumer Protections and Connectivity in Air Transportation.”
Thursday, March 23 at 10:00 a.m. EDT. House Transportation Committee Aviation Subcommittee hearing “FAA Reauthorization: Navigating the Comprehensive Passenger Experience.”
Thursday, March 23 at 10 a.m. EDT. Senate Finance Committee hearing on President Biden’s 2023 Trade Policy agenda with U.S. Trade Representative Katherine Tai.
Thursday, March 23 at 1:00 p.m. EDT. FTC Hearing before Administrative Law Judge: In re Intuit, Inc. over deceptive advertising practices for TurboTax (case summary).
Thursday, March 23 at 2:00 p.m. EDT. House Ways & Means Health Subcommittee hearing on the impact of high health care costs on patients, medical providers and small businesses.
Thursday, March 23 at 2:00 p.m. EDT. House Oversight subcommittee on Cybersecurity, Information Technology, and Government Innovation hearing “Unpacking the White House National Cybersecurity Strategy.”
Thursday, March 23 at 2:00 p.m. EDT. House Committee on Small Business hearing on SBA oversight with SBA Administrator Isabella Casillas Guzman.
Thursday, March 23 at 3:00 p.m. EDT. House Appropriations Committee Budget & Oversight Hearing “President Biden’s Fiscal Year 2024 Budget Request and Economic Outlook.” Treasury Secretary Janet Yellen, OMB Director Shalanda Young among witnesses.
Friday, March 24 at Noon EDT. ITIF hybrid event promoting the release of new report “Preserving a Virtuous Cycle: The Economics of Biopharmaceutical Innovation” in Washington, D.C.
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.
March 27-29 at 8:00 a.m. PDT each day. Consumer Bankers Association conference “CBA Live 2023” in Las Vegas, NV. Among speakers CFPB Office of Regulations Senior Counsel Larry Lee.
March 28 at 8:45 a.m. EDT. Free State Foundation’s Fifteenth Annual Policy Conference (register here, agenda here). FCC Commissioners Brendan Carr and Nathan Simington, FTC Commissioner Christine Wilson and NTIA Senior Spectrum Advisor Scott Blake Harris to deliver keynote speeches.
March 28-29 at 8:55 a.m. and 9:10 a.m. CDT. Connected America conference on broadband in Dallas, TX. Among speakers are FTC Chief of Consumer Affairs and Outreach Lyle Ishida, CTC CEO Kristi Westbrock, President of AT&T Network Christopher Sambar, CEO of Fiber Broadband Association Gary Bolton and other industry and government representatives.
March 28 at 9:00 a.m. EDT. Punchbowl News hybrid live interview with House Financial Services Committee Chair Patrick McHenry (R-NC) in Washington, D.C. McHenry will discuss his priorities for the committee.
March 28-29 at 9:00 a.m. EDT both days. Virtual law enforcement seminar hosted by Association of Certified Anti-Money Laundering Specialists. Among speakers Cryptocurrency Coordinator for DOJ Criminal Division Kevin Lowell and agency representatives from FBI, IRS, DEA, Homeland Security, ICE, Secret Service, and USPIS.
March 28 at 9:15 a.m. EDT. GCR Live conference “Antitrust in the Digital Economy” in Washington, D.C. Speakers include: Sarah Cardell, CEO of UK CMA; Andreas Mundt, President of German Bundeskartellamt; Patty Brink, Acting Deputy Director, FTC Bureau of Competition; Lynda Marshall, Chief, International Section, DOJ ATR.
March 28 at 10:00 a.m. EDT. House Small Business Committee hearing on the CFPB’s Small Business Lending Data Collection Rule.
March 28 at 1 p.m. EDT (7 p.m. CEDT). Centre de droit European hybrid event in Brussels, “The New Horizontal Rules and Guidelines” address by Sophie Moonen, head of unit, EC’s DG Comp (registration).
March 28 at 1:00 p.m. EDT. House Energy & Commerce Health Subcommittee hearing “Lowering Unaffordable Costs: Examining Transparency and Competition in Health Care.”
March 28 at 3:15 p.m. EDT. Hybrid panel “Legislative & Regulatory Update: Impacts On the NY Wine & Grape Industry” at B.E.V. NY conference in Syracuse, NY. Panelists include TTB AVA Program Manager Karen Thornton and TTB Distilled Spirits Program Manager Christopher Thiemann.
March 28 at 6:30 p.m. EDT. Concurrences and GW Law 2023 Antitrust Writing Awards Ceremony in Washington, D.C. Speakers include DOJ ATR Principal Deputy AAG Doha Mekki and GW Law Professor William Kovacic.
March 29-31, 8:00 a.m. EDT each day. American Bar Association “Antitrust Spring Meeting” in Washington, D.C. Among the speakers are many senior DOJ, FTC and other government authorities, including an enforcer’s roundtable on March 31 at 10 a.m. with DOJ antitrust AAG Jonathan Kanter, FTC Chair Lina Khan, EC Vice President and Commissioner Margrethe Vestager, UK Competition and Markets Authority Chief Executive Sarah Cardell, Wisconsin antitrust AAG Gwendolyn Cooley.
March 29-30 at 8:00 a.m. EDT each day. National Community Reinvestment Coalition’s Just Economy Conference in Washington, D.C. Speakers include: Acting Comptroller of the Currency Michael Hsu, Federal Reserve Vice Chair for Supervision Michael Barr, Chairman of FDIC Board of Directors Martin Gruenberg, HUD Secretary Marcia Fudge, and Representatives Maxine Waters (D-CA) and Pramila Jayapal (D-WA).
March 29-31 at 10 a.m. EDT each day. DIA/FDA virtual Biostatistics Industry and Regulator Forum. Speakers include representatives from FDA and Big Pharma companies.
March 29 at time TBD. House Finanancial Services Committee hearing on Silicon Valley Bank and Signature Bank Failures. Chairman of FDIC Board of Directors Martin Gruenberg and Vice Chair for Supervision of Federal Reserve Board of Governors Michael Barr to testify.
March 31 at noon EDT. George Mason Center for the Study of the Administrative State “Second Annual Gray Lecture on the Administrative State” in Washington, D.C. Former Secretary of Labor Eugene Scalia to speak.
Mark your Calendar
April 4-5 at 9:00 a.m. and 8:00 a.m. EDT. IAPP Global Privacy Summit in Washington, D.C. FTC Commissioner Alvaro Bedoya to speak April 5 at 10 a.m. EDT.
April 10 at 2:00 p.m. EDT (noon MDT). University of Utah law hybrid event “Wither the Consumer Welfare Standard? How Antitrust Can Promote Worker Interests” in Salt Lake City, UT. Keynotes: DOJ antitrust division AAG Jonathan Kanter and FCC Commissioner Alvaro Bedoya.
April 13 at time TBD. Hearing scheduled for U.S. and Plaintiff States v. Google LLC digital advertising antitrust case in Washington, D.C. (docket here).
April 17-18 at 1 p.m. and 9 a.m. EDT. National Association of Attorneys General “Symposium & Presidential Summit” in Philadelphia, with many state AGs and staffers. Draft agenda.
Other Developments
FTC seeks 37% funding boost to $590 million. The FTC asked Congress for $590 million for fiscal year 2024 starting September 30, 2023, a $160 million increase (37 percent) over FY23’s enacted $430 million. That includes an additional $17.6 million for higher mandatory existing staff expenses and $70.8 million to hire 310 more staffers, said the independent agency’s budget request. It also includes $71.6 million more for “critical” investments, mostly for IT modernization and security, competition-related expert witnesses, and the added non-compensation costs of the proposed new staff (e.g., for training, office space). The FTC voted 3-0 for the request, with outgoing Commissioner Christine Wilson not voting.
The FTC wants to add 106 staffers to “right-size” the Bureau of Competition and three regional offices with its presence. It cited “marked increases in workload” due to “high levels of market concentration,” increasingly complicated M&A reviews and efforts to combat “harmful acquisitions and other anticompetitive business conduct.” The activity includes “resource-intensive and fast-paced merger litigation against major corporations” and efforts to identify and challenge “anticompetitive conduct in complex and increasingly pervasive technology markets.”
The Bureau of Competition would add 62 staffers “to litigate larger and more complex cases in areas such as privacy and data security, financial and marketing practices, national advertising, and practices targeting specific population.”
The proposal assumes offsetting Hart-Scott-Rodino collections of $323 million from higher fees on large deals under a recent law, which are split 50-50 with the DOJ antitrust division. It also assumes offsetting collections of $13,000,000 from fees used to maintain a national Do-Not-Call database. Both reduce the direct appropriations funded by federal taxpayers and borrowing, easing budget pressure, but Hill Republicans are concerned about the FTC’s direction.
FTC orders Anchor Glass Container to drop noncompetes. The FTC ordered Anchor Glass Container Corp. to discontinue noncompete restrictions on its workers, citing them as an unfair method of competition under FTC Act Section 5. In a complaint against Anchor and its owners, Lynx Finance GP, LLC and Lynx Finance L.P., the FTC found “Anchor illegally imposed noncompete restrictions on more than 300 workers across a variety of positions, including salaried employees who work with the plants’ furnaces and forming equipment and in other glass production, engineering, and quality assurance positions,” said a March 15 agency release. It noted a 3-1 vote to issue the complaint and accept a consent agreement, with Commissioner Christine Wilson dissenting.
Anchor didn’t respond to a Capitol Forum query for comment.
SG, Tegna threaten to take FCC to court. Standard General and Tegna are threatening to sue the FCC in federal court if the Commission doesn’t respond by March 27 to its latest motion, for a waiver of rules connected to their Application for Review of a staff hearing designation order. SG brought new counsel, litigation partners from Gibson Dunn. “Applicants further move the Commission to act on the AFR on an expedited basis and issue a ruling no later than 5:00 p.m. on March 27. If a ruling remains pending at that time, Applicants will have no choice but to treat the applications as denied and seek judicial relief.”
Progressives urge Biden to nominate a new public-interest champion to FCC. Progressive advocates called on President Biden to end a Federal Communications Commission 2-2 partisan “deadlock” and put forward a new commissioner nominee”—“one who has a history of advocacy for the public interest and is free of industry conflicts of interest; demonstrates a clear commitment to championing the rights of low-income families and communities of color; and supports Title II oversight and laws that ensure the FCC the authority to prevent unjust discrimination and promote affordable access.”
“Moreover, we ask you to actively press the Democratic majority in the Senate to swiftly confirm your nominee,” wrote Demand Progress Education Fund and over 60 other groups on March 17. “We cannot permit Senators to prevent forward progress any longer at the behest of the very corporations the FCC is meant to regulate.” Previous nominee Gigi Sohn withdrew, blaming “powerful cable and media companies” and their allies with distorting her record “into an absurd caricature of blatant lies.”
Las Vegas healthcare staffing executive indicted for allegedly fixing nurses’ wages. A federal grand jury in Las Vegas returned an indictment charging a healthcare staffing executive with conspiring to fix the wages of local nurses, violating the Sherman Act, the DOJ said March 16. According to the one-count felony indictment, Eduardo Lopez, of Las Vegas, and other unnamed co-conspirators “are charged with agreeing to suppress and eliminate competition for the services of nurses between March 2016 and May 2019.”
Non-Capitol Forum Antitrust Reading List
Bloomberg: Biden’s Antitrust Push Across Agencies Is Working to Block Deals. LINK
NPR: Lina Khan is taking swings at Big Tech as FTC chair, and changing how it does business. LINK
Bloomberg Law: FTC Lawyers Leave at Fastest Rate in Years as Khan Sets New Tone. LINK
New York Post: GOP’s FTC hopefuls lack experience on antitrust issues: sources. LINK
Bloomberg: Buttigieg Pushes New Crackdown on Mergers in Transportation Industry. LINK
The Washington Post: Cicilline says Congress’s antitrust push will triumph, even without him. LINK
The New Republic’s Soapbox: Big Tech Is Winning the Antitrust War on Capitol Hill. With Republicans in control of the House, the tech giants appear likely to evade stricter regulations yet again. LINK
CNBC: Apple, Amazon, Google will likely get a reprieve from GOP-controlled House on antitrust legislation. LINK
CNBC: Google stacks its legal team with former DOJ employees as it faces antitrust cases. LINK
Wired: The Case for Regulating Platform Design. Focusing on Section 230 protection for user-generated content is detracting from the real threat: apps’ negligent design choices. LINK
Reuters: EBay slams ‘alarming’ Meta subpoena in FTC monopoly case. LINK
Bloomberg: Zuckerberg Was Warned on Social Media Addiction, Filing Says. Platforms face scores of suits over screen time hurting kids. Meta defunded mental health team, unsealed court filing says. LINK
Public Citizen: Twitter Likely Violated Consent Decree, Public Citizen Tells FTC, DOJ. LINK
The New York Times: California Court Mostly Upholds Prop. 22 in Win for Uber and Other Gig Companies. The decision lessens the chances that gig drivers will be considered employees in the state, but it is expected to be appealed to the state Supreme Court. LINK
The Washington Post: Noncompete clauses are everywhere, even for dancers and hair stylists. LINK
Reuters: Proposed rule banning noncompetes: taking stock as comments flood the FTC. LINK
Reuters: Albertsons, Kroger reiterate store divestiture plan ahead of merger. LINK
Axios: U.S. tells TikTok owners to sell app or face a ban. LINK
Bloomberg: TikTok Considers Splitting From ByteDance If Deal With US Fails. LINK
The Washington Post: Biden’s TikTok plan echoes failed Trump bid China called a ‘smash and grab.’ LINK
NBC News: TikTok now has 150 million active users in the U.S., CEO to tell Congress. A 50% jump in active users suggests the app has become even more entrenched in the U.S. over the nearly three years that Washington has grappled with how to rein it in. LINK
The Wall Street Journal: Biden’s TikTok Dilemma: A Ban Could Hurt Democrats More Than Republicans. App popular with younger Americans is emerging as a vital campaign asset for Democrats. LINK
The WSJ: TikTok Ramps Up Lobbying in Washington to Try to Avoid U.S. Ban. Social-media company is teaming up with Oracle to pitch a solution dubbed Project Texas. LINK
The Information: TikTok Sale Likely to Be Rejected by China. LINK
The NY Times: Finding a Buyer for TikTok May Not Be So Easy. The Biden administration is pushing TikTok’s Chinese owners to sell the app or face a possible ban. But there are many complications to finding a suitor. LINK
Peter Harrell and Tim Wu in The NY Times: Being an Open and Democratic Country Does Not Mean Being a Sucker. LINK
The Washington Post: How TikTok went from teen sensation to political pariah. LINK
Politico: Crisis sparks new battle between small and large banks. The banking industry’s factions of lobbyists are beginning to draw battle lines following the collapse of regional lenders Silicon Valley Bank and Signature Bank. LINK
The Lever: Fed Insisted SVB Posed No Serious Risk To Financial System. Less than two years later, Fed Chair Jerome Powell cited systemic risk as justification to protect Silicon Valley Bank’s depositors. LINK
The American Prospect: The Silicon Valley Bank Bailout Didn’t Need to Happen. The debate over protecting all deposits in a blink looks past the incompetence that got us here. LINK
BIG by Matt Stoller: Fire the Fed. Key bad guys in the Silicon Valley Bank saga are at the Federal Reserve. It’s time to end the era of central bank supremacy and fire the Fed as our most important bank regulator. LINK
Vanity Fair: This Bank Panic Should Not Exist. The most important bank in Silicon Valley has failed, triggering economic uncertainty nationwide. To blame: tough-talking tech dudes, a reckless Congress, contradictory monetary policy, and even Barney Frank. LINK
The Nation: Why Is Larry Summers So Obsessed With Tech Bros? The former Treasury secretary’s business partnerships may have influenced his early calls to bail out Silicon Valley Bank. LINK
The Washington Post: Biden’s private concerns, a rescue plan and the political firestorm that ensued. Frustrated by 2008 bank bailouts, the president made clear to advisers that federal action must not rescue banks or their shareholders. LINK
The Washington Post: AI chatbots won’t enjoy tech’s legal shield, Section 230 authors say. LINK
Bloomberg: ChatGPT Advances Are Moving So Fast Regulators Can’t Keep Up. LINK
The Washington Post: AI is reviving San Francisco’s tech scene. Welcome to ‘Cerebral Valley.’ The money and power flooding into AI are warping and intensifying the typical Silicon Valley gold rush, now set to explode with the launch of GPT-4. LINK
The Washington Post: Lifesaver or job killer? Why AI tools like ChatGPT are so polarizing. LINK
Ars Technica: Google dusts off the failed Google+ playbook to fight ChatGPT. New directive gives Googlers ‘months’ to build AI into existing products. LINK
Reuters: Visa, MasterCard $5.6 bln settlement with retailers is upheld. LINK
