Published on Apr 03, 2023
Has McConnell’s absence from Senate delayed Republican FTC appointments? While antitrust enforcers made some headlines at the ABA Spring Meeting (see below for key remarks and highlights), the health of Senate Minority Leader Mitch McConnell was a subject of interest, as he is set to make decisions on two empty Republican seats at the Federal Trade Commission.
News reports have said that McConnell returned home on March 25 from rehabbing a concussion and broken limbs, but concussions for octogenarians (McConnell is 81) can require lengthy recoveries, and it’s unclear when he will return to the Senate. Sources speculated that Republican FTC seats may remain unfilled until McConnell rejoins his Senate colleagues. One source close to Senate Republicans suggested McConnell is tentatively set to return after the Senate’s Easter recess, which is set to conclude on April 14.
Vedova hints at crack down on HSR form violations. While FTC Bureau of Competition Director Holly Vedova may be headed for retirement soon, her opening comments at her panel presentation at the ABA were of significant interest to antitrust lawyers. She summarized those comments in a blog post.
Vedova made it clear that, depending on the significance, changes to mergers may require re-submitting information and new timetables for review. She further demanded merging parties to provide all 4(c) and 4(d) documents and warned of steep civil penalties, including the possibility that a closed merger might be unwound. Lastly, Vedova said that the FTC will not review hypothetical mergers. While on the one hand, Vedova was simply restating the law as it is, it would appear that the antitrust community needed a reminder because these rules were not being followed as expected.
Beyond that, we view Vedova’s comments as a hint that the FTC will be especially vigorous in enforcing the new form, when it is ultimately released. We have noted in previous reporting that deal lawyers should expect the new HSR form to require all merging parties to provide information that typically is provided only after FTC staff investigators have questions and make a voluntary request for more information. Even as new draft merger guidelines continue to (rightfully) dominate the attention of the antitrust community, the new HSR form rules have developed as a sleeper issue that may catch some antitrust practitioners off guard.
SAMR approves Regal Rexnord’s acquisition of Altra Industrial Motion unconditionally. China’s antitrust authority, the State Administration for Market Regulation (SAMR), announced on March 31 that it has granted green light on Regal Rexnord Corporation’s (RRX) planned acquisition of Altra Industrial Motion Corp. ( AIMC).
The unconditional approval decision came after SAMR conducted a review lasting two months. The $5 billion deal will make Altra—a leading industrial manufacturer and supplier of highly engineered motion control, automation, and power transmission systems and components—a 100% subsidiary of Regal Rexnord. The companies confirmed in a statement that the transaction has obtained all regulatory approvals for the merger.
In Their Own Words
Arizona AG: Kroger/Albertsons could create insurance issue for military service members. From Attorney General Kris Mayes’s interview by local outlet 13 News on a March 28 listening session on the proposed merger.
“I thought there were some really interesting points that were made here at this public comment session in Tucson, especially around the pharmaceutical issue, around the fact that one of these stores or several of these stores accept military insurance for pharmaceuticals and one of them doesn’t. You know, that’s a huge impact on our armed services, potentially, on folks who are fighting for this country that could come from this merger if it goes through. I thought that was interesting and we had not heard that yet. So I thought there were a number of issues raised here that actually we had not heard about yet.”
Kanter: ‘Powerful’ antitrust deterrence, flurry of probes and cases reopening markets as we confront pivot to AI, new paradigms. From the remarks of antitrust Assistant Attorney General Jonathan Kanter opening a March 27 DOJ-FTC Enforcers Summit in Washington, D.C.
“We meet at a time when a popular movement is growing in support of more robust competition enforcement in the United States and around the globe. Our fellow citizens, who are feeling the effects of monopoly power, are advocating for greater protection of markets and opportunities to compete and benefit from competition. … We are experiencing change in our economies on par with, if not exceeding, the industrial revolution. … Poles and wires have given way to 1s and 0s. Intermediaries that once protected against information sharing have given way to digital collusion. Data has replaced oil as the power source for our new industrial tools. …
“Goods used to move up and down supply chains. Competitive relationships were vertical and horizontal. Those facts have changed. We have platforms that are multi-dimensional, serving distinct users and businesses all at once with complex relationships. The geometries of our markets today often look more like gemstones than two-dimensional drawings. Gatekeeper power has become the most pressing competitive problem of our generation at a time when many of the previous generations’ tools to assess and address gatekeeper power have become outmoded.
“But we are working to meet the moment. … In the United States, we are invigorating monopolization and merger enforcement. The deterrent effect is powerful and the results are tangible. Simply put — most anticompetitive deals are no longer getting out of the boardroom. And the ones that do are facing a sophisticated and empowered team of career enforcement officials … [W]ould-be monopolists know that the antitrust agencies are standing by to challenge exclusionary conduct. When it comes to monopolization, we have more active litigation and investigations than several prior decades combined. … When we stop anticompetitive conduct; prohibit exclusion; and stop mergers that risk lessening competition, we let the natural forces of free and fair competition elevate our economies and democracies.
“So let me open this conference with a note of optimism. Our work is making a difference. We have already changed the calculus for businesses contemplating preserving their power through mergers or exclusionary conduct or cartel behavior. And as a result, we have reopened markets for competition to gradually reappear and to flourish. As we confront the pivot to AI and to new paradigms of health care, finance and agriculture, I am incredibly hopeful. So long as we continue to build on and maintain an aggressive enforcement posture that accounts for modern market realities, new technology will bring a new competitive reality to our economies.”
DOJ-FTC Enforcers Summit Q&A
Khan, Kanter look to ensure competition in AI era; incumbents can ‘panic.’ The nation’s top antitrust enforcers are closely monitoring artificial intelligence to see that it’s used to facilitate digital competition, not thwart it. AI “is really top of mind for us,” said FTC Chair Lina Khan in a March 27 Enforcers Summit Q&A session (video). Noting her agency just launched a cloud computing inquiry, she said, “As you have machine learning that depends on huge amounts of data [and] storage, we need to be very vigilant to make sure that this is not just another site for the big companies becoming bigger and really squelching their rivals.”
“When you have these moments of technological transition … that’s when you see the incumbents start to panic,” Khan said. That’s the lesson of Microsoft. That’s the lesson going back to when we were seeing the shift from desktop to mobile—you see the incumbents sometimes having to resort to anticompetitive tactics to protect their moats and … dominance. So this is another transition that we’re looking at closely to make sure that if this an opportunity for competition to really enter the market and disrupt, that we’re allowing that to happen, rather than illegal tactics locking up the market.”
AI has “very significant potential” to transform society, said Antitrust AAG Jonathan Kanter in another Q&A session. “Our job as competition law enforcement authorities is not to make judgments about whether it’s good or bad; it’s to make sure we understand the competitive landscape,” including access to key assets, and “potential chokepoints and tipping points,” he said in a Q&A session. AI “is inherently dependent on scale” and such markets “often present a greater risk of tipping, often a greater risk of having deep moats and barriers to entry.” And it’s “not just competition for the technology,” but it’s competition in light of the technology,” he said. That creates “boundless” opportunities and challenges.
The FTC is also focused on consumer protection, issuing guidance noting “significant concerns with false and deceptive claims about the efficacy of AI,” Khan said. “There can be high error rates, high rates of discrimination, and so we need to make sure companies are not overselling or overstating their AI capacities.” AI can generate “very realistic simulations,” creating “high risk” of deception and fraud, she said, noting recent FTC guidance “that the upstream developers of these tools can potentially be liable” if they’re “effectively designed to deceive people.”
On other matters:
… FTC eyes Robinson-Patman action; PBMs an area of concern. As part of an effort to reactivate its “full set of authorities,” the FTC is looking to enforce the Robinson-Patman Act, Khan said: “We’re looking closely at areas where we might be able to do that in short order. One of the key provisions that we put the market on notice about is Section 2(c) of Robinson-Patman, which prohibits illegal kickbacks and rebates. In particular, we’ve heard some concerns about ways in which relationships between [pharmaceutical benefit managers] and the big drug manufacturers may raise concerns under this provision.”
… Kanter, Khan on deciding which cases to bring. “Internally on the team we talk about keeping our hands on our HIPS, … High Impact, Programmatically Significant,” Kanter said. “We’re thinking about, first, high impact, and then … about the issues that are programmatically significant, meaning that they have a meaningful impact on the direction of the law.”
Khan said the “magnitude of harm” is a key factor. “How many people are being harmed? Is this a dominant actor in the marketplace such that the harm is likely to be pretty significant as well?” she said. “Another thing we look at is, if we don’t act, who will? Especially with the Sherman Act, there’s a private right of action, and often times you have big companies coming to you with problems … One thing we ask is, if there’s a private right of action, are these players able themselves to bring a lawsuit? Areas where we’re not likely to see private enforcement are areas where public enforcement is most essential. Hearing directly from the public is also something that’s directly feeding into some of our considerations of what types of cases to be investing in and bringing.”
… Khan on the risks of not litigating, and Meta-Within map. In market after market, “We see major competition problems, and the problem is urgent and we need to act,” Khan said. “One pathology that sometimes we can fall into is convincing ourselves that we need to wait for the most immaculate set of facts ever to arise … before we can move forward. If that’s the only thing that you’re prioritizing, then … you can really fail to take a shot at all. So one thing that we’re really focused on is not just the cost of creating bad precedent, but also the cost of not creating any precedent at all [and] stale doctrine. … So we feel a real impetus to be moving ahead.
“One case that comes to mind here is Meta-Within. … That opinion has a whole set of justifications and explanations that really do mark a programmatic advance for us. … We showed that the potential competition doctrine is alive and well. Meta was arguing that this is a stale doctrine, it really doesn’t exist and shouldn’t be applied in this market. And the judge forcefully rejected that. So I think that’s a good example of a case that didn’t go the way we wanted, but really did lay out a map and showed the way for continuing to bring potential competition cases, especially in digital markets and … nascent markets.”
… Challenges in Merger Review panel (video): DOJ Deputy AAG Doha Mekki (moderator), U.K. CMA Chief Executive Sarah Cardell, Wisconsin AAG Gwendolyn Cooley, FTC Bureau of Competition Deputy Diredtor John Newman, South Africa Competition Commissioner Doris Tshepe.
… Challenges in Monopolization Cases panel (video): FTC Bureau of Competition Deputy Director Rahul Rao (moderator), California AG Paula Blizzard, DOJ Deputy AAG Hetal Doshi, EC Director General DG-Comp Olivier Guersent Korea Fair Trade Commission Chair Ki Jeong Han.
ABA Enforcers Roundtable
Khan sees merger guideline draft ‘in short order;’ Kanter cites abandoned mergers. FTC Chair Lina Khan said her agency and the DOJ antitrust division are getting close to taking their initial shot at revising their merger review guidelines. “A key pillar of this effort is to make sure that the guidelines are fully reflecting commercial realities, fully responsive to the types of business incentives and business strategies that companies today face, including in digital markets,” Khan said during an March 27 Enforcers Roundtable (video) at the American Bar Association’s antitrust spring meeting. “We’re excited about some of the internal progress we’ve made and we’re excited in short order to be able to share a draft publicly.”
Antitrust AAG Jonathan Kanter said there’s no greater success on mergers than deterrence, and that comes in many forms. “When we are ready to file a case, and a party abandons a merger, that is success,” he said. “We have had six public abandonments, but I can tell you that there are many more non-public abandonments, and that is because of the hard work of our team uncovering issues and demonstrating the willingness to bring strong, formidable and winning cases.”
Until the DOJ and state AGs brought a Sherman Act Section 2 case against Google in 2020, it had been over 20 years since the last filed standalone Section 2 case, in U.S. v. Microsoft, Kanter said. “Now we have multiple Section 2 cases in litigation. With many investigations under way. Section 2 of the Sherman Act is the cornerstone of our antitrust laws, monopolization, and we are not going to hesitate to bring monopolization cases when supported by the facts and the law.”
Clayton Act Section 8’s restrictions on competitors sharing board of director members and officers has been the law since 1914, but has never been systematically enforced—“until now,” Kanter said. “Now we have a vibrant Section 8 enforcement, interlocking directors. We’ve had nearly 15 directors step off the boards of their companies due to Section 8 enforcement efforts, and we have nearly 20 open investigations, and … there are many additional opportunities out there for investigation and enforcement. It is the law; we’re going to enforce it; and in many respects it is probably the most effective way to deconcentrate the United States economy.”
EC Executive Vice President & Commissioner Margrethe Vestager disputed the notion that Europe was undertaking “radical” shifts in policy. The shifts are addressing “root causes,” with the Digital Markets Act targeting markets that are “not contestable, not open,” she said. “So I don’t think it’s radical.”
… DOJ antitrust division panel update (March 29 video): Chief Economist Susan Athey and Deputy AAGs Hetal Doshi, Andrew Forman, Maggie Goodlander, Michael Kades and Manish Kumar.
… Spring Meeting Updates (March 31 blog): FTC Bureau of Competition Director Holly Vedova.
Vestager meets with Khan, Kanter, Yellen, Raimondo While in Washington, Vestager met separately with Khan and Kanter on March 30 as part of the U.S.-EU Joint Technology Competition Policy Dialogue in order to coordinate work on promoting competition in the digital economy. “The discussions centered on critical themes the agencies are facing, including the reasons mergers between digital players may lead to competition concerns,” said an FTC release. “The agencies also shared policy reflections in the area of abuse of dominance and monopolization in the digital sector and presented recent policy initiatives in this field. They also exchanged views on the evolving business strategies of big tech companies as well as on their implications for enforcement.”
On March 31, Vestager met with Treasury Secretary Janet Yellen to discuss U.S. “implementation of the Inflation Reduction Act and the European Union’s Green Deal Industrial Plan, developments in the international financial system, and the Clean Energy Incentives Dialogue,” said a Treasury release.
On March 29, Vestager met with Commerce Secretary Gina Raimondo to discuss “areas of mutual interest to the transatlantic commercial relationship” such as “collaboration within the U.S.-EU Trade and Technology Council (TTC) including on AI, critical and emerging technologies, the digital economy, and semiconductor supply chains,” said a Commerce release. They discussed “their goals for the upcoming TTC Ministerial taking place in Sweden in May. Secretary Raimondo highlighted progress on semiconductor cooperation and artificial intelligence.”
Court Decision
Judge rules for FTC vs. Surescripts on market definition and monopoly power, refers parties to mediation. A U.S. district judge on March 30 granted an FTC motion for summary judgment on market definition and monopoly power, in an antitrust case against health information technology company Surescripts over its loyalty pricing contracts and other practices. The judge also found the case is not moot, deferred ruling on Surescripts’ motion for summary judgment, and referred the parties to a magistrate judge for mediation on remaining issues.
In 2010, Surescripts began offering loyalty pricing contracts “to its customers in the electronic prescription routing and eligibility markets, complementary markets collectively known as ‘e-prescribing,’” wrote Judge John Bates of the U.S. District for the District of Columbia in his opinion (order) The FTC sued Surescripts alleging two violations of Sherman Act Section 2—one in the electronic routing market and another in the electronic eligibility market—“through its loyalty pricing contracts and other allegedly anticompetitive conduct in both markets,” he noted.
Surescripts sought total summary judgment on both claims, while the FTC sought partial summary judgment on two issues: that “(1) the relevant markets in this case are the U.S. markets for [electronic] routing and [electronic] eligibility; and (2) Surescripts has possessed monopoly power in both markets since 2010.”
Surescripts’ two-sided platform connects players in the electronic prescription routing and eligibility markets. Before such e-prescribing, “the transmission of routing and eligibility information occurred only by other means, such as by paper, fax, or phone,” or “analog methods,” wrote Bates. The “central dispute is whether the relevant markets include both electronic and analog methods of routing and eligibility, or whether those should be treated as separate markets.” All the record evidence “tends to support that analog methods are not legitimate substitutes for electronic routing and eligibility,” and “that electronic routing and eligibility are thus distinct markets,” he concluded.
“The undisputed facts are sufficient” to rule “in the FTC’s favor on monopoly power,” Bates wrote. “The Court is unaware of, and Surescripts was unable to point the Court to, any antitrust case in which a defendant with a 95% share of the relevant market did not hold monopoly power.”
Surescripts also argued the case was moot because it had ceased its loyalty pricing program, but the FTC’s argued a decision wasn’t ripe, in part because the loyalty program hadn’t fully ended. The “Court determines that the case is not moot at this juncture and will grant the FTC’s motion for partial summary judgment and reserve decision on Surescripts’s motion for summary judgment,” Bates concluded. “[T]he only remaining issue in this case is whether Surescripts’s loyalty pricing or other conduct has caused anticompetitive effects in the electronic routing and electronic eligibility markets. The Court will refer the parties to mediation.”
The FTC’s “complaint relies on significant factual errors about Surescripts’ business and mischaracterizations about the economic realities of the e-prescribing market,” emailed Surescripts. “We stand by our motion for summary judgment based on the facts and merits of the case. We also welcome mediation to resolve the case and remain focused on our customers who make up the Surescripts Network Alliance and ultimately the patients they serve.”
The FTC didn’t immediately respond to Capitol Forum queries.
Tech Update/Outlook
Lee, Klobuchar, others unveil bill targeting digital ad platform conflicts of interest. Senate Judiciary Committee antitrust subcommittee Ranking Member Mike Lee (R-UT), Chair Amy Klobuchar (D-MN), Judiciary Ranking Member Lyndsey Graham (R-SC) and eight others introduced the Advertising Middlemen Endangering Rigorous Internet Competition Accountability (AMERICA) Act. The bill would seek to restore and protect digital advertising competition “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 Lee release March 30.
“Companies like Google and Facebook have been able to exploit their unprecedented troves of detailed user data to obtain vice grip-like control over digital advertising, amassing power on every side of the market and using it to block competition and take advantage of their customers,” said Lee. “The conflicts of interest are so glaring that one Google employee described Google’s ad business as being like ‘if Goldman or Citibank owned the NYSE.’”
“It is past time for a transparent ad technology industry where the best interests of customers are prioritized and companies of all sizes are able to compete,” Klobuchar said. “This legislation will put rules in place to do just that, restoring and protecting competition in digital advertising to create a more even playing field that will promote fairness and innovation moving forward.” Other cosponsors were Senators Ted Cruz (R-TX), Richard Blumenthal (D-CT), Marco Rubio (R-FL), Elizabeth Warren (D-MA), Eric Schmitt (R-MO), Josh Hawley (R-MO), JD Vance (R-OH), and John Kennedy (R-LA).
Google asks court to dismiss DOJ/state ad-tech antitrust suit. Google asked the U.S. District Court of the Eastern District of Virginia to throw out a DOJ antitrust complaint, joined by various states, that alleges the company’s business practices monopolize digital ad-tech markets in violation of the Sherman Act. “Over the past 15 years, Google has achieved success in digital display advertising by making significant investments in developing innovative and effective … technology (‘ad tech’) tools,” said Google in a March 27 memorandum on its dismissal motion. “Google’s ad tech gools have attracted publishers seeking monetize their online advertising space and advertisers seeking the best return on their advertising dollars.”
Success depends on placing ads “on the most relevant publisher webpages or mobile applications in ways that most appeal to viewers,” Google said. “So in developing its ad tech tools, Google considers the interests of advertisers, publishers, and internet users. Plaintiffs misconstrue Google’s efforts to serve the interest of all of these customers as a ‘corruption of legitimate competition.’ Plaintiffs characterize Google’s every business decision over the past 15 years as evidence of a long-term scheme to amass power and choke out competition, ignoring the competitive pressures and customer interests driving Google in a dynamic and multisided digital platform.
“In the more than three years that it has been investigating Google’s ad tech business, the United States has received more than two million documents from Google and taken over thirty depositions of Google witnesses; it also has obtained documents and deposition testimony from numerous third parties. Yet Plaintiffs remain unable to find support for their claimed antitrust harms. Instead, they repeat conclusory statements to concoct exceedingly narrow relevant markets as a basis for their claims [of monopolization and tying]. In gerrymandering markets, Plaintiffs cast aside obvious substitutes with only perfunctory explanation.”
Judge faults Google for not preserving messages, finds more proceedings needed. A U.S. district judge found that Google didn’t take reasonable steps to preserve electronically stored information and “intended to subvert the discovery process” in litigation over its Play Store practices. “During discovery in this multiligation case (MDL), plaintiffs obtained information indicating that Google did not adequately preserve communications that were exchanged internally on its Chat message system,” ruled Judge James Donato of the Northern District of California May 28. “Plaintiffs say that this shortfall was intentional and deprived them of material evidence. They have requested sanctions under Federal Rule of Procedure 37(e).” The judge concluded that sanctions are warranted.
“This antitrust case will not be decided on the basis of lost Chat communications,” Donato wrote. “The determination of an appropriate non-monetary sanction requires further proceedings. The Court fully appreciates plaintiffs’ dilemma of trying to prove the contents of what Google has deleted. Even so, the principle of proportionality demands that the remedy fit the wrong, and the Court would like to see the state of play of the evidence at the end of fact discovery. At that time, plaintiffs will be better positioned to tell the Court what might have been lost in the Chat communications. For monetary sanctions, it is entirely appropriate for Google to cover plaintiffs’ reasonable attorneys’ fees and costs in bringing the Rule 37 motion…”
DOJ quickly notified the U.S. District Court for the D.C. District about Donato’s ruling. A DOJ reply in support of its motion to sanction Google for similar allegations in the case against the company’s search business was unsealed with redactions March 31.
Durbin-led bill would hold Big Tech ‘accountable’ for online drug deals. Senate Majority White and Judiciary Committee Chair Dick Durbin (D-IL) and Senators Chuck Grassley (R-IA), Amy Klobuchar (D-MN), Roger Marshall (R-KS), Jeanne Shaheen (D-NH) and Todd Young (R-IN) unveiled the Cooper Davis Act, a bill to “require Big Tech companies to take a more proactive role against drug dealers preying on America’s youth on social media,” said a Durbin release March 30. “Our country is facing both a kids’ online safety crisis and a fentanyl crisis,” said Durbin. “Today, drug dealers can easily target kids through social media platforms. … By holding Big Tech accountable for reporting when their platforms are used for illicit fentanyl trafficking, this bill will help equip law enforcement with information to fight fentanyl and protect kids.”
Durbin urges online video game industry to target extremist content. Senator Durbin wrote to publishers of popular online games—that have reported extremist content issues—requesting information on their actions “to identify and remove content that broadcasts or promotes terrorism, violent extremism, or hate crimes, as well as any efforts they have made to address the use of their platforms by those who perpetrate such acts or who seek to recruit or radicalize like-minded individuals,” said a release March 29. Durbin also sent letters to Attorney General Merrick Garland and U.S. Department of Homeland Security Secretary Alejandro Mayorkas seeking information regarding their efforts “to address the growing threat of extremists and other malicious actors exploiting online video games to radicalize and recruit new members.”
Sen. Paul objects to TikTok ban. Senator Rand Paul (R-KY) opposed moving legislation to ban TikTok, citing political and constitutional free speech concerns. “Reserving the right to object, if Republicans want to continuously lose elections for a generation, they should pass this bill to ban TikTok, a social media app used by 150 million people, primarily young Americans,” he said in floor remarks March 29. “This brilliant strategy comes while polls indicate that 71% of young women and 53% of young men voted for a Democrat candidate for Congress. “Admittedly, many Democrats have joined Republicans in calling for this ban but like most such issues, the blame will stick to Republicans more.”
“We should not let fear of communism cause us to ignore our First Amendment protections of free speech,” he said. “Have some faith in freedom. … If you want to address the evils of Big Tech, it is not the Chinese government you have to fear, but your own. In June 2021, Newsweek reported that Big Tech complied with 85 percent of government requests to hand over your personal data. … I hope saner minds will reflect on which is more dangerous: videos of teenagers dancing or the precedent of the US government banning speech. For me, it’s an easy answer, I will defend the bill of rights against all comers, even, if need be, from members of my own party.
“I object.”
Personnel News
Google hires ex-House E&C member Costello as outside lobbyist. Former Representative Ryan Costello (R-PA) and his firm, Ryan Costello Strategies, were hired as outside lobbyists for Google Client Services to work on “openness and competition in online services and devices; privacy and data security issues,” according to their registration form. Politico had reported the news. Costello was in Congress from 2015-2019, serving on the Energy & Commerce Committee, which oversees communications, technology, innovation and data issues, among others.
Ex-FTC Commissioner Phillips aide Xenakis now at Amazon. Stelios Xenakis, formerly an attorney advisor for then-FTC Republican Commissioner Noah Phillips, is now corporate counsel at Amazon, according to his Xenakis’ LinkedIn page, which was noted by AELP’s Matt Stoller.
Khan says FTC got flurry of applications for technologist jobs. The FTC received more than 300 applications within just a few days of a notice on some new technologist job openings, Chair Lina Khan said at both the DOJ-FTC Enforcers Summit and the ABA’s antitrust spring meeting.
FTC seeks OPP deputy director, Bureau of Competition attorneys. The FTC is looking for an experienced attorney to serve as Office of Policy Planning deputy director. It’s also searching for attorneys to work in the Bureau of Competition.
Events in Next Two Weeks
To access our calendar of all antitrust events, click HERE.
Monday, April 3 at noon EDT. Future of Privacy Forum training program in Washington, D.C.: “Fundamentals of Online Advertising.”
Tuesday-Wednesday, 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.
Tuesday, April 4 at 10:00 a.m. EDT. Brookings Institution webinar “Federal Procurement and acquisition policies: Removing barriers to reform.”
Tuesday, April 4 at 11:00 a.m. EDT. Computer & Communications Industry Association webinar “How Narrowing Section 230 Could Crash the Digital Economy.” Discussion of the potential economic impacts of an adverse ruling in Gonzalez v. Google.
Tuesday, April 4 at noon EDT. Federalist Society discussion in Washington, D.C. “AI & Antidiscrimination: AI Entering the Arena of Labor & Employment Law.”
Tuesday, April 4 at 2:00 p.m. EDT. BakerHostetler webinar “Federal Agencies Are Talking About You – and You Can’t Just Ignore It Anymore.”
Tuesday, April 4 at 4:00 p.m. EDT. Cato Institute hybrid policy forum “Cut the Budget, Change the Strategy” with former Acting Defense Secretary Chris Miller in Washington, D.C.
Tuesday, April 4 at 5:00 p.m. EDT. Farm Action webinar “Justice for All: Centering Equity in the Farm Bill.” Keynote speaker: Adam Zipkin, Senator Cory Booker’s (D-NJ) deputy chief of staff.
Wednesday, April 5 at noon EDT. Federalist Society lecture by Robert H. Bork Jr. on “The Antitrust Paradox” at the University of Richmond in Richmond, Virginia.
Thursday, April 6 at 10:00 a.m. EDT. ITIF Center for Digital Innovation webinar “What Are the Consequences of Backdoors for Online Privacy?”
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 FTC Commissioner Alvaro Bedoya.
April 11 at TBD. Pre-trial conference in U.S. v. Assa Abloy case in U.S. District Court for the D.C. District, with trial scheduled to start April 17 (Recap docket).
April 11 at noon EDT. Electronic Privacy Information Center hybrid event “AI Assurance Policies: A Discussion with NTIA’s Alan Davidson,” plus other experts, at the University of Pittsburgh.
April 11 at 2:00 p.m. EDT. Brookings Institution webinar “Wall Street Comes to Washington health care roundtable.”
April 11 at 2:00 p.m. EDT. American Enterprise Institute hybrid panel “The Future of Medical Device Regulation: The Final Frontier” in Washington, D.C. President-Elect of American Medical Association Jesse M. Ehrenfeld and Director of FDA Center for Devices and Radiological Health Jeff Shuren to speak.
April 12-13 at 8:00 a.m. EDT both days. FDA Generic Drugs Forum 2023 (virtual event) in the generic drug approval process. Among speakers Jacqueline Corrigan-Curay, principal deputy center director of FDA Center for Drug Evaluation and Research (CDER), and Iilun Murphy, deputy director for clinical and regulatory affairs for CDER Office of Generic Drugs.
April 13 at time TBD. Hearing scheduled for U.S., et al. v Google LLC search antitrust case in Washington, D.C. (docket here), according to DOJ webpage.
April 14 at 8:45 p.m. CDT. Loyola University Chicago Law 23rd annual Antitrust Colloquium in Chicago. Speakers include Sarah Allen DOJ antitrust division special counsel for state relations; Utah Project, American Economic Liberties Project, American Antitrust Institute, Public Knowledge, and Open Markets Institute representatives; and various antitrust scholars (FTC Chair Lina Khan invited).
Mark Your Calendar
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.
April 20-21 at 8:55 a.m. and 8:30 a.m. CDT. U. of Chicago Stigler Center antitrust conference “Beyond the Consumer Welfare Standard?” in Chicago, IL. Among speakers: Tim Wu; FTC Bureau of Competition Director Holly Vedova; Sarah Miller, AELP; David Dayen, The American Prospect; Matt Stoller, AELP; Barry Lynn, Open Markets Institute; and other influential thinkers in antitrust. Request to attend here, request livestream access here.
April 26 at 4 p.m. EDT (1:00 p.m. PDT). University of California Berkeley Law and Freshfields “Spring Forum on M&A and the Boardroom” in Berkeley (hybrid event). Speakers include FTC Chair Lina Khan; Paul Rosen, assistant treasury secretary for investment security; Erik Gerding, SEC director, Corporation Finance Division; and Lucia Bonova, EC DG Competition head of unit – digital platforms.
Other Developments
SG, Tegna and Cox seek relief from D.C. Circuit. On Tuesday Standard General, Tegna and Cox made good on their threat to sue the FCC in federal court. The parties asked the U.S. Court of Appeals for the D.C. Circuit to reverse the Media Bureau’s hearing designation order and to compel the Commission to rule on their broadcast transfer application by April 28. They also asked the court to rule on their requests by April 3 so that the deal can close by a May 22 deadline. In response, the D.C. Circuit set an expedited schedule providing for briefing to be completed by March 30. The panel assigned to decide the appeal includes Judge Florence Y. Pan, who ruled in favor of DOJ in its challenge to block Penguin Random House’s bid for Simon & Schuster.
NAB files amicus in support of SG-led suit. On Thursday, the National Association of Broadcasters filed an amicus brief with the D.C. Circuit in support of the Standard General, Tegna, and Cox challenge to the FCC Media Bureau order to designate their transaction for an administrative hearing. The agency’s handling of their transaction “has exposed serious flaws in the current system that impact anyone who depends on free, local broadcast service,” said NAB President Curtis LeGeyt. “We urge the court to correct this egregious misstep by the FCC. Unappointed FCC staff have sent this proposed deal to regulatory purgatory, depriving the Commissioners the opportunity to participate in decisions that carry significant implications for broadcast stations and their viewers and listeners. … “[W]e ask the court to act quickly.”
Non-Capitol Forum Antitrust Reading List
Reuters: Amazon loses bid to toss consumer antitrust lawsuit. LINK
The New York Times; Elon Musk Tried to Meet With F.T.C. Chair About Twitter but Was Rebuffed. LINK
MarketWatch: Prescription-drug middlemen face mounting pressure from federal government, states. LINK
Reuters: Cigna’s PBM, two others sued in Ohio over drug price fixing. LINK
The American Prospect: California Goes In for Drugmaking. The state will make and distribute insulin at cost. That should be a model for every other state. LINK
Reuters: U.S. Supreme Court mulls Amgen bid to revive cholesterol drug patents. LINK
Politico: Abortion pill access threatened in Nevada amid legal uncertainty. Drug distributor AmerisourceBergen, the sole supplier of the pills to all pharmacies, is accused of taking an approach that could limit access. LINK
The NY Times: Medicare Delays a Full Crackdown on Private Health Plans. After intense lobbying by insurers, U.S. health officials say changes to reduce overbilling in Medicare Advantage will be phased in over three years. LINK
Bloomberg Law: Google Advertising Antitrust Suit Headed to Trial in March 2024. LINK
The Sling: CFPB Can Take on Big Tech and Big Finance, All in One Swoop. LINK
The American Prospect: The SVB Collapse Reveals the Class Bias in American Policymaking. When bankers blow their businesses up, it’s no-questions-asked bailout time. When student borrowers need relief, not so much. LINK
Reuters on Kanter: Spooked dealmakers scurry back into their foxholes. LINK
Politico: Feds target alcohol pricing in new antitrust probe. The FTC has a similar investigation involving the soft drink market. LINK
Reuters: California, three other states join US bid to stop JetBlue-Spirit merger. LINK
WSJ’s Holman Jenkins, Jr.: Mayor Pete and the FAA’s Plan for Higher Fares. To alleviate air-traffic woes, the government proposes to commit an antitrust offense. LINK
The American Prospect: Lawsuit: Defense Contractor Fired Whistleblower for Reporting Accounting Irregularities. The allegations against spare-parts conglomerate TransDigm mirror previous claims against the ‘Martin Shkreli of defense contracting.’ LINK
The Virginian Pilot: Delivery date for next carrier, USS John F. Kennedy, pushed back a year. LINK
The NY Times: Dollar General Is Deemed a ‘Severe Violator’ by the Labor Dept. LINK
Reuters: Big title insurer settles New York attorney general ‘no-poach’ claims. LINK
The American Prospect: What Comes After Neoliberalism? We are winning the battle of ideas. We have a long way to go before we win the politics. LINK
Artificial Intelligence
Future of Life Open Letter: Pause Giant AI Experiments: An Open Letter. We call on all AI labs to immediately pause for at least 6 months the training of AI systems more powerful than GPT-4. LINK
Engadget: OpenAI may have to halt ChatGPT releases following FTC complaint. A nonprofit claims OpenAI is breaking the law with a ‘biased, deceptive’ AI model.
MIT Technology Review: ChatGPT is about to revolutionize the economy. We need to decide what that looks like. LINK
Bloomberg: Tech’s AI Armies Are Huge, Yet Struggling to Innovate. New data show Amazon, Microsoft and Google have thousands of AI specialists, but they’re still playing catch-up to a tiny team at OpenAI. LINK
The Wall Street Journal: Publishers Prepare for Showdown With Microsoft, Google Over AI Tools. Media executives want compensation for use of their content in ChatGPT, Bing and Bard. LINK
The Washington Post: As AI booms, tech firms are laying off their ethicists. Twitch, Microsoft and Twitter are among firms that have laid off workers who studied the negative sides of AI. LINK
VoxMedia’s On with Kara Swisher podcast: OpenAI CEO Sam Altman on GPT-4 & the A.I. Arms Race. LINK (podcast), LINK (transcript)
Other Tech
AxiosPro: Congress zooms in on tech content. LINK
Alina Polyakova in Foreign Policy: Better Tech Regulations Can Save Democracy. LINK
The Guardian: TechScape: How the world is turning against social media. LINK
The New York Times: Elon Musk Values Twitter at $20 Billion. The billionaire bought the social media company for $44 billion in October and took it private. LINK
Mashable.com: Twitter silent as hackers scam users with stolen high-profile verified accounts. Users are being scammed out of money and Twitter support is MIA. LINK
The Washington Post: Amazon grew relentlessly. Now it’s getting lean. After two decades of expansion, the company known for doing it all is trying to find focus. LINK
The New York Post: Amazon reportedly interested in buying AMC Entertainment. LINK
Vice: Leaked Amazon Memo Details Plan to Smear Fired Warehouse Organizer: ‘He’s Not Smart or Articulate.’ LINK
The Washington Post: Tech group launches litigation hub as regulation battle moves to courts. NetChoice’s new center is designed to respond to the threat of state laws and local lawsuits. LINK
Axios: Social media’s new pay-for-play rules. LINK
AELP Rethink Trade: Business Interests Dominate U.S. Trade Advisory System, Gain Access to Trade-Pact Texts Kept Secret from Public, New Economic Liberties Research Shows. LINK
National Post: Use [Canadian] Competition Bureau to end Google’s digital ad dominance, news publishers tell federal government. LINK
TikTok
The Washington Post: Biden stuck between China hawks, young voters as TikTok pressure mounts. The administration faces national security concerns over the app’s ownership — and a possible backlash over a ban. LINK
New York Post: Bytedance founder secretly met with Walmart CEO last week, sources say. LINK
Courier Journal — Rand Paul: Opposition to TikTok ban based on free speech, not his ties to top investo. LINK
Vice’s Motherboard: The ‘Insanely Broad’ RESTRICT Act Could Ban Much More Than Just TikTok. LINK
The Washington Post: The state of play on TikTok legislation. LINK
Politico: The campaign to save TikTok has been years in the making. TikTok began working to win over the U.S. and European governments long before the latest concerns about its Chinese ownership. LINK
The Washington Post: Congress had a lot to say about TikTok. Much of it was wrong. LINK
Jonah Goldberg in the Los Angeles Times: Congress may be out of touch with technology, but the concerns over TikTok are right. LINK
The New York Times: What’s Hot on TikTok? Defending Its C.E.O. After lawmakers grilled TikTok’s chief executive last week, the app’s users argued that the platform should not be banned in the United States over national security concerns. LINK
The American Prospect: Can K Street’s Most Pro-Biden Firm Save TikTok? SKDK, co-founded by Biden consigliere Anita Dunn, has taken on TikTok as its client. LINK
ITIF: The TikTok Debate Should Start With Reciprocity; Everything Else Is Secondary. LINK
