Making sense of the sweeping antitrust reform bills in Congress

Those tracking tech policy and regulation would be forgiven for asking: is there something in the water in the nation’s Capitol? In the first half of 2021, U.S. lawmakers have proposed a staggering nine bills–six in the House of Representatives and three in the Senate–to reform federal antitrust laws and supplement them with regulatory backstops.

This comes on top of efforts to reform state laws (for example, New York is considering a major revamp of its antitrust law1https://www.natlawreview.com/article/new-york-antitrust-law-reform-bill-fails-to-clear-assembly), the impact of a change in the composition of the Federal Trade Commission under a new Presidential administration (including the appointment of a progressive antitrust reformer as its Chair)2https://www.nytimes.com/2021/06/15/technology/lina-khan-ftc.html, and a bevy of massive antitrust lawsuits filed by federal and state officials against the largest companies in the world that go to the core of vertically integrated business models in consumer-facing tech markets (more on that here and here).

How to make sense of the laws being proposed in Congress and fit them into the broader U.S. and worldwide context of antitrust enforcement and policy debates surrounding market concentration?

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The government antitrust lawsuits against Google and Facebook: the endgame

In the second of a series of articles on the historic antitrust lawsuits against Google and Facebook, I look at what the endgame may bring for the government plaintiffs and highlight the challenges they face along the way. I also preview the broader legal reforms and regulatory changes that may follow if competition laws reveal themselves unable to reach the conduct at issue in these cases.

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The government antitrust lawsuits against Google and Facebook: what it all means for tech businesses

2020 ended with a whirlwind of US antitrust activity against the tech industry. In a three-month span, state and federal authorities shook off nearly two decades of inaction by filing five separate lawsuits alleging wide-scale violations of the antitrust laws by Google and Facebook. The historic cases go to the heart of what online platforms can and cannot do in dealings with their business users, competitors, and partners. Antitrust now stands front and center in the US debate over how to regulate Big Tech, and the entire industry should take heed.

This first in a series of articles about the landmark antitrust lawsuits against Google and Facebook looks at how the mere filing of these cases signals a reshaping of the legal landscape and what it means for tech businesses, big and small.

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Risks and opportunities in the coming era of online platform regulation

The unregulated era for the digital economy is coming to an end. Governments around the world are done studying digital markets and have moved on to crafting new antitrust laws and regulations that will reshape the relationship that exists between large online platforms and their business users, trading partners, and competitors. The big online platforms will face new legal risks, while the tech companies operating in their spheres of influence will see new legal protections and business opportunities. Everyone will need to keep up with a fast-changing legal landscape.

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Antitrust After American Express: Down a Competitive Effects Rabbit Hole

In 2018, the Supreme Court affirmed a decision throwing out a major antitrust case that the Department of Justice and seventeen States Attorneys General had brought against American Express. The case concerned contractual restrictions the company imposes on merchants accepting its credit cards that prevent them from steering shoppers to other credit cards. The Supreme Court concluded that the government had failed to prove that these restrictions eliminated competition on both sides of a “two-sided” market because its case focused on harm imposed on merchants without giving enough attention to what it meant for cardholders.

American Express accelerated a half-century trend in modern antitrust orthodoxy that has disarmed enforcers by imposing impossibly high burdens on them to analyze and predict the competitive conditions of complex markets in order to make out a case. It also ensured that conditions supporting lax antitrust enforcement in the analog era would persist in the digital one. The consequences have already played out in two major tech cases that the government saw tossed out by courts following the precedent of American Express: the review of the Sabre/Farelogix merger, and the monopolization case against Qualcomm.

The trio of cases exemplifies the failings of basing the antitrust laws on predictions of “actual competitive effects” using economic theories, and highlights the need for a different approach that can take on the challenges of regulating a complex modern economy.

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