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 law¹), 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)², 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?

From complacency to the precipice of a historic overhaul of the antitrust laws, in 2 years or less

Worldwide, you can trace the origin of the current wave of proposed US legislation to Europe’s aggressive enforcement of its competition laws. The modern era of tech enforcement only began in earnest about five years ago, with a series of antitrust cases against Google–one involving its Android iOS, another its Shopping service, and the third its Ad Sense platform–that returned massive fines (totaling nearly $10 billion) but unclear relief to the impacted markets as a result of the conduct remedies imposed by the European Commission.

What followed in the wake of the Google cases (which are still under appeal) has been nothing short of a tidal wave of studies, analyses, and investigations of large tech companies for alleged violations of the EU competition laws prohibiting abuses of a dominant market position. Boundary-pushing tech cases followed at the national level in Germany (which pushed the boundaries of how enforcers view the overlap in privacy and antitrust)³, France (where aggressive enforcement against Google brought it to the negotiation table with online publishers and imposed significant commitments on its ad tech business)⁴, and the UK (where proposed commitments with Google would create ongoing oversight and even involvement in product design related to certain privacy features and ad services)⁵.

On top of that, Germany went on to reform its national antitrust law with large tech platforms specifically in mind. Its revised laws greatly expanded the competition authority’s powers and have already led to sprawling probes of each of the GAFA players. And feeling constricted by the substantive requirements of competition laws and slowed by its procedures, the EU is now looking beyond antitrust as it crafts a one-of-a-kind regulatory framework called the Digital Markets Act which will supplement traditional antitrust enforcement with clear rules of do’s and don’ts for larger tech platforms.

Despite their history of alignment on key competition law and policy issues, most of Europe’s recent foray with tech enforcement and now regulation happened before US counterparts took any meaningful steps to do the same on the other side of the Atlantic. That is why there is no way to look at what is happening in the US now without considering the extensive experience that Europe has already had in wrestling with how to use traditional antitrust enforcement under existing competition laws to bring cases against the larger companies of the modern tech economy. That is also why, as discussed further below, what is happening in Europe now in the way of antitrust enforcement and in looking beyond antitrust to other regulatory changes is a good harbinger of what’s to come in the US.

Focusing on just the US experience, it has to be acknowledged that for most of the last two decade of the consumer tech revolution, federal and state antitrust enforcers took a mostly hands-off approach to Silicon Valley. Until several years ago, there was little discussion outside of academia about whether this was a good or bad thing, and no serious consideration given by policymakers or legislators to updating the antitrust laws for the digital era. In the last several years, there was growing talk in some academic and public policy circles (much of it based on what was happening in Europe) about whether more aggressive enforcement and legal reforms would be needed to target target tech markets in particular. But it was only in the summer of 2020 that the coming out party for pro-reform voices occurred in the form of a major hearing before the House Judiciary Committee, the Hollywood-esque climax of an investigation that had been going on for about the preceding year.

The House Antitrust Hearing was a lightning round of soundbite-seeking questions fired at the executives of four of the larger players in the digital economy (GAFA). It had a symbolic impact as the moment when antitrust and tech became intertwined on the main stage before the American public, but the more significant development in the way of legal and policy analysis followed in the publication of the Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations.

The House Antitrust Report is a summary of the committee’s massive probe of the consumer-facing tech economy. Its 450 pages provided a detailed accounting of the fact-finding undertaken by the committee and a roadmap of recommended actions for lawmakers to take. Much of it tracked similar reports and findings from government probes in Europe and elsewhere around the world, but it was comprehensive and historic in its own right. The House Antitrust Report took on three main three tasks:

analyzing the conditions of the consumer tech markets (its conclusion: they are concentrated and likely to remain so absent government intervention);
identifying the root causes of those prevailing market conditions (its findings: first-mover advantages solidified into consolidated market positions by the network effects inherent to platform markets, and a mix of exclusionary practices and acquisitions that prevented new rivals from emerging); and
proposing legislative fixes to make the markets more competitive (mainly, more resources for enforcers to run investigations and bring cases, more enforcement of monopolization and merger laws, new rules to target specific conduct and business structures considered unsuitable to achieving competitive outcomes, and a legislative override of several major Supreme Court decisions that had interpreted the antitrust laws in restrictive ways).

The nine separate antitrust bills that are currently being considered by the U.S. Congress are informed by and in no small part the direct result of the House’s investigation and report. In fact, there is little in these bills that should surprise anyone who has been following along and keeping score at home since last summer’s hearings. The core substantive and procedural reforms being proposed in Congress are driven by the concerns at the heart of the House investigation and, in the background, a new wave of academic and policy work that has swept through the antitrust world in recent years that has pushed for a rethinking of what competition laws should and should not do.

Go big or go home: two sweeping Senate bills and a suite of tech-targeted House bills propose major changes to antitrust law and beyond

The three Senate bills and six House bills are largely motivated by similar concerns, though their approaches differ in some meaningful ways. (There is a tenth bill in the Senate, the Journalism Competition and Preservation Act, which does not seek broad-based reforms and so is not discussed further here, but which would grant limited antitrust immunity to news publishers who collectively bargain with large online platforms for the licensing of their content.)

The Competition and Antitrust Law Enforcement Reform Act (CALERA) is being considered in the Senate and is co-sponsored by a Republican and a Democrat. It was the first bill to be announced after the House tech investigation and in some ways remains the most sweeping in its impact. It is on its face agnostic to industry and company, and proposes broad-based reforms to the antitrust laws. Also, as detailed below, the Senate bill seeks wholesale reversals of major Supreme Court decisions that had limited the reach of federal antitrust laws and it would rewrite key standards of review and burdens of proof in M&A and monopolization cases.⁶

Another Senate bill, sponsored by two Republicans, is called the Tougher Enforcement Against Monopolies (TEAM) Act. It also is industry-agnostic and proposes sweeping changes to existing antitrust laws. It is motivated by many of the same concerns from the House investigation and report that drove the crafting of CALERA, but in one major departure it seeks to consolidate federal antitrust enforcement with the Department of Justice. Currently, the DOJ shares the federal responsibility for enforcing antitrust laws with the Federal Trade commission (and, in some industries, the Federal Communications Commission). The idea of consolidating antitrust capacities into a single federal agency have been floating in Congress for many years, though it seems to have taken a backseat in recent policy debates to broader reforms of the antitrust laws. Many of the other aspects of the sweeping TEAM Act tackle substantive antitrust matters, with some noteworthy parallels to (and also departures from) the recommendations contains in the House Antitrust Report. ⁷

A third Senate bill, discussed briefly further below, deals with a narrow issue concerning choice of venue for state enforcement actions of federal antitrust laws. And two other bills, the Trust-Busting for the Twenty-First Century Act and Bust Up Big Tech Act, are not discussed further, although it is worth mentioning that while the populist pieces of legislation have few prospects for becoming law, they do further reflect the extent to which a bipartisan mood in Congress has emerged that bigness in tech is a problem that calls for legislative intervention.⁸

In the House of Representatives, six bills have been proposed. Five of them are co-sponsored by Democrat and Republican representatives. Combined they are nothing short of a massive rewriting of the rules and regulations governing bigness in tech, though with one important caveat. A key aspect of four of the House bills that sets them apart from the main two Senate bills is that they are more limited in their scope because they target only a select few of the largest tech companies which exceed a certain size (by revenue and user counts) and act as a “critical trading partner” (by controlling access to users or key infrastructure) to other tech businesses. These criteria currently appear to capture only GAFA (and maybe a few other other large consumer-facing tech platforms), though commentators have noted this could quickly change as markets continue to grow.⁹

That said, the Chair of the House committee conducting the tech investigations and crafting many of the bills, Representative David Cicilline, has made clear that more House bills are forthcoming which will have a wider impact and go beyond the largest tech platforms. Some of those bills may more closely align with the more comprehensive antitrust overhauls being contemplated by the Senate.

Another aspect of two of the House bills that sets them apart from the Senate bill is that they are not strictly antitrust reform laws. Rather than update or revise existing antitrust law and legal standards, two of the House bills look beyond the case-by-case enforcement mechanism of traditional competition laws and instead propose to put in place bright-line rules–some providing agencies with regulatory oversight to ensure compliance–for tech companies. This sets them apart from the Senate bills, which tweak and add to existing antitrust laws, but would continue to rely on individual case-by-case enforcement rather than setting out new tech regulations.

But despite those differences, the motivations and aims of the Senate and House bills are similar. They seek three major types of reforms:

reinvigorate enforcement of the monopolization laws governing single-firm conduct by dominant firms that has the potential to harm competition;
expand merger laws to reach more transactions and make it easier for government agencies to block M&A that they believe may harm competition; and
give enforcers more resources to bring a larger number, and more boundary-pushing types, of cases.

An expanded notion of monopolization law that puts more restrictions on how vertically-integrated firms conduct their business with rivals and partners

One of the main effects of the CALERA proposed in the Senate would be to override certain rulings of the U.S. Supreme Court which have, in recent decades, whittled down the reach of federal antitrust laws over so-called “monopolization.” This refers to single-firm conduct that is undertaken by companies with a dominant market position that restricts competition when, for example, it has the effect of excluding a rival from the market (so-called “exclusionary conduct”).

On the first element of a monopolization claim, which requires proving that a company has a dominant market position, CALERA would establish a presumption of market dominance for a company with a market share exceeding 50%, a level which under existing case law can often be deemed by enforcers and courts as too low to establish dominance.

On the second element of a monopolization claims, proving abusive conduct that eliminated competition, CALERA would lower the bar for proving unlawful exclusionary conduct, with the showing of a mere “appreciable risk of harming competition” sufficing to make out a claim. Moreover, exclusionary conduct by a company with “significant market power” or a market share exceeding 50% would be (rebuttably) presumed harmful to competition. In addition, conduct by a dominant firm that “materially disadvantages” a rival could be deemed unlawful, which goes beyond the current interpretations by courts of monopolization law as being largely limited to “exclusionary conduct”. This new standard could create, among other things, a cause of action for an antitrust “duty to deal” that has been rejected by federal courts in key decisions that the House Antitrust Report had recommended reversing with legislative action.

Also consistent with the recommendations in that report, CALERA would further override other major Supreme Court decisions that have reined in monopolization claims by making it clear that it would no longer be required of antitrust plaintiffs to prove: a prior course of dealing with a rival in “essential facilities” or “duty to deal” cases, a “dangerous probability of recoupment” of profit in the future in below-cost (“predatory”) pricing case, that conduct makes “no economic sense apart from its tendency to harm competition”, and that conduct occurring on one side of a multi-sided platform market must be shown to have negative effects overall across all sides of the market. Each of these seeks to un-do a particular line of cases in which federal courts imposed more stringent requirements on plaintiffs that made it more difficult for them to bring monopolization cases under federal antitrust laws.

Finally, another implication of CALERA which would have a major impact on monopolization claims is to expand the type of anti-competitive harm that is actionable under antitrust laws so that it goes beyond the half-century-in-the-making consumer welfare standard to include a wider range of harms to competition which were endorsed by the Antitrust House Report and reform-minded commentators. Such things could include harm to sellers (for example, in labor markets) and restrictions on innovation, quality, and choice.

The other Senate bill, the TEAM Act, would also expand monopolization laws, in some ways similarly and in other ways differently than CALERA. The TEAM Act includes a provision, similar to CALERA, that would prohibit vertically integrated companies from imposing different (“discriminatory”) terms on downstream customers. But going beyond what is proposed in CALERA, the TEAM Act would repeal two major Supreme Court decisions (Illinois Brick and Hanover Shoe) so that so-called “indirect purchasers” (mainly, those who bought an end-product containing a price-fixed input) are able to bring damages actions under federal antitrust laws. This could increase the size of antitrust class action lawsuits filed against companies under federal law.

The Team Act would also require that proof of anticompetitive intent be sufficient (i.e., without requiring proof of anticompetitive effect) to make out a prima facie showing of harm to competition that is often required by courts. This is also not in CALERA. And on the important issue of what type of competitive effects can be considered in cases alleging monopolization conduct, the TEAM Act would codify existing case precedent that applies a so-called “consumer welfare standard” which focuses largely on price and output effects felt by consumers, to the exclusion of other effects (as I’ve previously explained here). This seeks to preempt movements in academic and policy circles that are pushing courts to revisit their reliance on the more restrictive consumer welfare standard, and is another major difference with CALERA, which would broaden the competitive effects standard to consider non-price and non-output effects.

The American Innovation and Choice Online Act proposed in the House would prohibit certain types of “discriminatory” conduct by a large online platform in its dealings with third party business users on its platform. This would include a ban on various ways that large platforms can advantage their own downstream services over those of third party rival services, including: so-called “self-preferencing” (for example, through better positioning or ranking of a platform’s own services over those of third party rivals in search results), discriminatory treatment (such as restricted access to user data or interoperability features for a downstream rival), tying conduct (such as conditioning business user access to a core service on its use of an ancillary service), and vertical price restraints (such as imposing MFNs or price parity clauses on business users of the platform).

This bill seeks to take on the incentives that vertically integrated platforms may face to treat downstream users differently depending on whether they are owned or controlled by the platform or by a third party (in particular, an existing or potential rival). It also has the potential to impose on large tech companies a “duty to deal” with their rivals that is imposed only in very rare circumstances under current US antitrust laws, which otherwise resist forcing any company–no matter how big–from helping its rivals compete against it.

The Ending Platform Monopolies Act would go a step further, essentially making it unlawful for a large platform to own or operate a line of business downstream of its core platform. This sort of line of business restriction goes to–and tries to cut off at the source–business structures that could create the sort of conflicts of interest that might incentivize the discriminatory conduct covered by the American Innovation and Choice Online Act. This approach goes well beyond traditional case-by-case enforcement, and relies on blanket rules of what lines of business companies can operate in. And it seems premised on granting authorities the power to break-up a vertically-integrated company to eliminate the structural conflicts of interest. Although such powers do exist in some limited contexts under existing antitrust laws, what appears to be contemplated in this House bill is a greater level of intervention in the private markets by government authorities than has been seen in recent history in the US.

Finally, the Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act would deem it an “unfair method of competition” (and thereby a violation of federal antitrust laws) for a large platform to fail to make its systems interoperable with third party services and otherwise conducive to allowing users to transport their data from its platform to another (so-called “data portability”). This obligation would extend to competing platforms, imposing a duty to deal with one’s rivals, but it would also seem to extend to other business users, as well. ACCESS would give the FTC an ongoing role in oversight of large tech platform product development by requiring the companies to obtain government approval for changes that may impede interoperability. Therefore, this is another bill that goes beyond traditional case-by-case enforcement and envisions a more regulatory approach to dealing with the large tech platforms.

Reversing burdens and revising standards in merger review to enable enforcers to block more M&A

A major proposed reform under the CALERA proposed in the Senate is to expand the circumstances under which government agencies (mainly, the FTC and DOJ) can block M&A which they believe to be harmful to competition. This provision tries to tackle a key concern flagged in the House Antitrust Report surrounding the acquisition of existing or potential rivals by large tech incumbents, which is described in the report as having contributed to concentration of certain consumer tech markets. In that vein, the bill would expressly add competitive effects resulting from the exercise of “monopsony” power (market power that can be used to harm sellers, as opposed to buyers) as a valid concern to be addressed by merger enforcement. In addition, the standard of review in merger review would be revised so that mergers could be blocked even if they create only an “appreciable risk of materially lessening” competition, a lower bar for enforcers to get over than the current “substantially lessens” standard.

In addition, CALERA would also subject to government review acquisitions of small deals by large acquirers which do not cross existing merger filing thresholds. And for deals exceeding certain size thresholds that involve a buyer or post-merger market share exceeding a 50% market share and a target that is an existing or potential competitor, the bill would shift the burden onto the merging companies seeking government clearance to show that their transaction will not harm competition. This burden-shifting approach, also mentioned in the House Antitrust Report, would be a significant departure from current merger law, under which the burden always rests with the government to show that a deal is anti-competitive and should be blocked.

The other Senate bill, the TEAM Act, would also try to bolster federal oversight of mergers and acquisitions. It would impose a rebuttable presumption in favor of blocking mergers that result in combined market shares of 33% or more, and it would outright ban M&A that results in a combined market share of more than 66% unless it was shown that stopping the deal would cause “serious harm” to the US economy. The impact of these requirements would be material for deal making, as M&A resulting in such market share levels do currently sometimes get cleared by agencies (especially if they involve a small or relatively competitively insignificant target) under existing merger law. The TEAM Act would otherwise not alter the standards or burdens of proof for blocking mergers, and in that way is less aggressive in its merger law reforms than its counterpart in the Senate, CALERA.

In the House, the Platform Competition and Opportunity Act would create a blanket prohibition on acquisitions by large tech platforms unless it could be demonstrated, “by clear and convincing evidence”, that the acquired company does not currently or potentially compete with the platform or does not otherwise increase the platform’s “market position.” Depending on how broadly enforcers and courts interpret these standards, this House bill could possibly put up a significant and wide-reaching barrier to acquisitions by large platforms of any companies operating within their ecosystems. It would amount to a wholesale restriction on M&A that has not been seen in the US in modern times.

Empowering agencies to levy heavier fines and retrieve ill-gotten gains

Both Senate bills would expand the ability of the federal antitrust enforcers to seek monetary recovery from companies. The TEAM Act would allow for recovery of trebled damages on behalf of consumers (to be distributed to claimants), a power currently reserved to private plaintiffs alleging federal antitrust claims. In addition, the bill would also allow for imposing civil fines for certain antitrust violations of up to 15% of a company’s annual revenues. (This exceeds even the EU’s steep antitrust fine levels.) CALERA would also give federal authorities the power to impose civil penalties on antitrust violators of up to 15% of annual domestic revenues. Notably, authorities could seek disgorgement of ill-gotten gains resulting from an antitrust violation, a reform suggested in the House Antitrust Report and made more significant by a recent Supreme Court decision (AMG Capital Management) that took away the FTC’s ability to seek such relief.

In the House, the American Innovation and Choice Online Act prohibiting discriminatory conduct of platform users by large platform operators would empower a new Bureau of Digital Markets within the FC to seek disgorgement of profits resulting from violations of the law.

Giving government enforcers the resources to bring more and tougher cases

Both Senate bills (CALERA and TEAM) as well as the House’s Merger Filing Fee Modernization Act would increase funding of the FTC and DOJ, the two federal agencies sharing responsibilities for enforcing the nation’s antitrust laws. (In the Senate, the bill to increase merger fees made its way into the U.S. Innovation and Competition Act, which passed a vote already.) As the House Antitrust Report detailed, funding and staffing growth at the agencies have stagnated for many years, and the expectation is that more resources would help the agency review more M&A, investigate more single-firm conduct matters, support more compliance enforcement (such as enforcing conduct remedies imposed on prior M&A), and fund market studies or merger retrospective analyses.

It appears increased funding has bipartisan support in the Congress. This is no small thing, either, as it would mean even holding all else constant–with no other changes to the antitrust laws–enforcers would have more resources at their disposal to try to influence competition law and policy. They could do this through policy recommendations, filing boundary-pushing cases, weighing in (as parties or through amicus curiae briefs) on important court interpretations of antitrust laws, and in setting out guidelines on enforcement priorities and practices.

Giving states more control over the venue for their antitrust enforcement actions

The sole Republican-only sponsored bill in the house, the State Antitrust Enforcement Venue Act, would give state Attorneys General–who can already under existing laws bring their own enforcement actions alleging federal antitrust violations–more control over which courts hear their cases by making it more difficult for defendants to get courts to move them to other venues. In the Senate, a companion bill by the same name and with the same intended purpose and effect has been co-sponsored by a Democrat and a Republican. Therefore, this appears to be another area of consensus.

Both bills would put state enforcers on equal footing with federal enforcers when it comes to having more control over the venue of their enforcement actions. Given a recent up-tick in State-filed antitrust enforcement actions, both in the merger (T-Mobile/Sprint) and conduct (the pending tech platform cases) contexts, these bills could strengthen state enforcement by preserving a home-field advantage in some of their litigation.

The US Congress wrestles with historic antitrust reforms, while Europe moves beyond antitrust to regulation of tech

I’ve written extensively on the wave of antitrust enforcement and reform sweeping through Europe and its likely arrival on American shores. I’ve also written about the inevitable realization that US lawmakers would come to, again following in the footsteps of earlier movers in the EU, that they would find it necessary to go beyond antitrust and enact some sort of regulations and other rules specific to digital markets. But I never imagined it could all happen in the span of just a year or two.

Yet that is where things stand. The U.S. is on the precipice of a massive overhaul of the laws that govern the conduct, M&A, and transactional activities of the largest companies that drive its world-leading economy. Substantively, the reforms single out M&A and exclusionary conduct by vertically-integrated companies. Procedurally, they would make it easier for state and federal agencies to bring more cases. Symbolically, they would usher in a new age of enforcement of the antitrust laws in the trust-busting spirit from which they arose in the industrial age. It is a shocking turn of events, to say the least, for any practitioner (like me) or observer of competition law and policy, which for decades saw at most incremental changes, and even then ones that largely served to limit, rather than expand, the antitrust laws and the tools available to its enforcers.

Each of these proposals is still “just a bill.” Each will be subjected to scrutiny, industry opposition, lobbying, and political dealings–then, it will go to the other Congressional body to do it all over again. There is truly no telling what exactly comes out the other end of the legislative process. But something will, and the basic contours of it are likely to include:

more legal roadblocks for M&A. especially by larger digital players (even for deals that involve just incremental increases in concentration or vertical or conglomerate effects traditionally permitted under existing antitrust rules);
more prohibitions on how large vertically-integrated firms, especially large tech platforms, can conduct their business dealing with trading partners and rivals downstream (reversing Supreme Court precedent that have largely granted deference to private markets in such matters); and
more resources for enforcers to bring close-call cases, study markets and recommend policy changes, and influence court interpretations of the law to promote more expansive notions of antitrust policy and enforcement.

The changes will likely affect all industries, though digitals markets and its largest players will probably experience the biggest shock to their businesses. It’s a lot to take in. Especially in light of the breakneck speed at which it has all happened. But it’s important to consider that the US is playing catch-up given where it stands in comparison to the rest of the world, in particular Europe, the hands-down global leader in tech policy and enforcement.

And there is good reason not to overreact to these developments or overstate their significance to the running of large tech companies. Europe’s experience and recent legislative and regulatory reactions provide some useful clarity and insight into what’s going on in the US. It’s especially useful to consider where the two jurisdictions have spent most of their overlapping history: largely aligned on competition law and policy matters, with slight differences that were navigable for businesses and a prevailing stability and consistency that multinational companies in particular could count on to make strategic decisions and develop products without worrying about significant departures in the legal and regulatory framework from market to market (at least in the Western world).

So if history is any indication, a reasonable prediction of where US law is likely to settle after this wave of reform would put it not too far off from where Europe lands. And, for what’s worth, Europe–ostracized and accused by some in the US as singling out its tech darlings–has not even gone so far as to seriously consider hard line-of-business restrictions or bans on M&A like those currently being floated in some of the U.S. House of Representatives bills. And since it is difficult to imagine–indeed it would be a historic departure as far as competition policy is concerned–that the US would land in a place that is more restrictive of private market activity than Europe is, we might expect some of the House’s harsher proposals to fall by the wayside when these bills become laws.

This also suggests that advisors, in-house counsel, and businesses should find some solace in the reassurance that the pain they may be experiencing in front-running, aggressive jurisdictions like Germany, France, and UK is forcing their immune system to develop an antidote that positions them to better cope with what might follow in the US and elsewhere.