This week’s episode is all about the important report that was published this week in the investigation by the US House of Representative’s Judiciary Committee into antitrust issues in big tech. I discuss the proposed reforms contained in the report, and what it might mean for the legal landscape of the digital economy.
This week’s episode of the Weekly Wrap-Up covers the latest reports on Amazon’s dealings with third-party sellers, a sneak peek at the US Department of Justice’s antitrust “trial-of-the-century” against Google, and an update on the EU’s review of the tech giant’s acquisition of Fitbit.
This week’s episode of the Weekly Wrap-Up covers tech regulation updates including the latest on the future of TikTok’s operations in the US, a rare public spat involving two Big Tech giants–Facebook and Apple–in the context of the EU’s efforts to draft up a Digital Services Act, and the potential antitrust issues of NVIDIA’s acquisition of Arm.
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.Continue reading “Antitrust After American Express: Down a Competitive Effects Rabbit Hole”
This week’s episode of the Weekly Wrap-Up covers tech regulation updates in the sale of TikTok’s operations in the US, Epic Games’ antitrust lawsuit against Apple, Australia’s efforts to regulate digital platforms, and Germany’s digital reforms to its national competition law.