On March 24, 2020, the Antitrust Division of the Justice Department and the Bureau of Competition of the Federal Trade Commission announced that they are adopting expedited processes for reviewing potential collaborations or other activities for antitrust issues in response to the COVID-19 pandemic. The Agencies recognized the urgency of the coronavirus event and stated
Investigating Big Tech!
Elizabeth Warren is calling for aggressive enforcement of the antitrust laws. The House Judiciary is opening hearings on big tech, and the Justice Department and FTC have allocated amongst themselves responsibility for particular Big Tech companies. Pundits are saying it’s time for Big Tech to be broken up. So, should Big Tech be worried?
Elizabeth Warren Wants to Break Up Big Data – Could She Do It?
Presidential Candidate Elizabeth Warren thinks Big Tech is too big and wants it—and, in particular, Amazon, Facebook and Google—broken up and their past mergers and acquisitions unwound. And the FTC recently announced it was forming a Task Force to look into the technology markets. There do seem to be issues with Big Tech. But is antitrust, as currently practiced, the best tool to address them? Ms. Warren contemplates this by suggesting a new regulatory regime should be implemented to control Big Tech. Should we treat platforms like a regulated utility? Should we pass a new antitrust law that supplements current common law and allows for more vigorous enforcement? Or are there tools available to modern antitrust that can address Big Tech and the issues Ms. Warren identifies? We ask those questions and suggest some high-level responses to further the dialogue.
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Webtaxi: A Wrong Decision on “Algorithmic Price Fixing”
The Luxembourg Competition Authority recently handed down a decision that found an app-based taxi booking system, Webtaxi, was not a hardcore violation of the relevant competition law banning price fixing. The algorithm determined the precise fare the passenger would pay for a trip. The taxis remained competitors otherwise and the cabs on the app represented only 26 percent of the relevant taxi market. Fares were otherwise negotiable. The Authority found the efficiency gains material and the pricing reasonably necessary to obtain the gains. Specifically, they found the app would reduce fares, reduce empty taxis, reduce pollution, and reduce waiting times. They also found that the collective price setting was “necessary” to achieve these goals. Absent the price fixing, customers would not choose the nearest taxi but the one with the best price.
This “venture” would be condemned as naked price fixing in the States. The only integration the venture offers is the app. The only thing the app does is set the fare and allocate the customer to nearest physical taxi participating in the app. At 26 percent of the market, the conspiracy would likely fail as consumers could switch to non-participating taxis relatively easily, but that doesn’t mean it isn’t a conspiracy of “collusion.” The US has regularly, and for over a century, condemned price fixing agreements that set “fair prices.”
Uber and Lyft are different than Webtaxi. They are more than mere aggregations of independent drivers (notwithstanding what they may claim about the independence of their drivers and the view of the lower court). Uber sets their prices. Uber provides them with the technology and branding as well as a widely distributed app that is easy to use. They provide a rating system. And there is system competition. Incumbent taxi companies. Lyft.
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Courts Must Only Offer “Respectful Consideration” to Foreign Governments’ Statements Interpreting Their Laws in Antitrust Cases
On June 14, 2018, in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., the Supreme Court held that Courts are not obliged to accept statements from a foreign government agency on the meaning and effects of its laws but should consider other evidence in addition to such statements to judge their value. The
Ozzy Osbourne is an Antitrust Plaintiff
Ozzy Osbourne has filed an antitrust suit against against AEG, the operator of the O2 Arena in London and operator of the Staples Center in LA, among others. Ozzy is alleging that AEG is illegally requiring artists perform at Staples if they want to perform at O2, the “Staples Center Commitment.” It is a
Tronox v. FTC: Ingenious or an Exercise in Futility?
In what may be the first case ever, a party to an FTC administrative merger challenge has filed suit in U.S. District Court asking the court to halt the administrative proceeding and order the FTC to pursue a preliminary injunction motion in that court. The gravamen of their argument is that the outside date for the transaction is in May, and there is no way that they could conclude an administrative trial in that amount of time. They claim further that choice to proceed only with an administrative complaint is to delay deliberately the resolution of the suit so that the outside date passes and the deal breaks. They “deserve their day in court.” As a matter of substantive law, the case is unsound. The FTC is free, within the confines of the FTC Act, to choose where it wishes to pursue an action, and this has been so for more than 100 years. As a means to recapture some negotiating leverage from the FTC and perhaps save a few bucks, it’s probably not a bad strategy. Perhaps the chance of a loss, however remote, and the potential “embarrassment” of dragging enforcement out “needlessly” will prompt the FTC to settle on more favorable terms. The cost, however, is Tronox’s, and Tronox’s lawyers’, reputation at the Commission and may only prompt them to dig in their heels.
Tronox Limited and its target, Cristal, both make high purity titanium dioxide (TiO2), an input for products like paint. TiO2 makes paint white. Tronox announced its intent to acquire Cristal in February 2017. The FTC investigated the transaction under the HSR Act and purportedly allowed the waiting period to expire on December 1, 2017. Tronox noted this fact in a press release suggesting it was free to close under the HSR Act. Four days after that press release, on December 5, 2017, the FTC sued the companies alleging the combination would substantially lessen competition in the market for high purity TiO2. In their press release announcing the suit, the FTC asserted that the waiting period had in fact expired on October 7, 2017, but the parties had entered into a timing agreement whereby they would provide the Commission 10 days’ notice of their intent to consummate. The FTC suggested that the parties had not given adequate notice under the timing agreement. The transaction is still under review in other suspensory jurisdictions that prevent the parties from closing globally.
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CNN: Is There A First Amendment Defense to an Anticompetitive Merger?
Shortly after the Justice Department’s challenge to AT&T’s acquisition of Time Warner was announced, a rumor floated that AT&T had offered to divest CNN to assuage the Division’s concerns. The gist of the rumor was that the Division is suing to block an otherwise legitimate transaction as an act of revenge against CNN because CNN is critical of President Trump. In addition to the President’s remarks, the believers also point to statements by the Assistant Attorney General for Antitrust who, before his nomination, said that he didn’t think there was going to be an antitrust problem with the deal. The suit, according to the theory, is an affront to the First Amendment.
Randall Stephenson and the Division quickly denied the rumors. They do keep circulating, however. Partly because the President has tweeted his support of the suit. And, more recently, because of Carter Page. Mr. Page recently filed a pro se request for leave to file an amicus brief in the case arguing, basically, that the combination is illegal because it concentrates too much social power in the hands of a large corporation. Mr. Page was an advisor to Mr. Trump. Acknowledging the court has wide latitude to consider amicus, the Division did observe, in its half-page response, that the brief was not helpful suggesting it should be disregarded.
Where to Get Bad Advice on MAP Policies
Minimum advertised price (MAP) policies are becoming more and more popular. Especially with the rise of cutthroat competition in the online marketplace, many producers are hearing from their resellers that they want margin protection, and are getting concerned with the possible erosion of their brand equity from widespread promotion of low pricing. Naturally, many companies have turned to consultants and the internet for information on MAP policies.
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QVC/HSN :: A Deal You Probably Weren’t Thinking About
On July 6, 2017, QVC announced its intent to acquire the remaining 62 percent of Home Shopping Network it doesn’t already own. More so than DraftKings or Walgreens, this transaction will demonstrate whether Trump’s election has had any effect on antitrust enforcement, and should be watched carefully. HSN and QVC are very similar, and the ability to do the deal will turn on what product market definition wins the day. A very broad product market definition, that focuses on means of distributing products to consumers, and that includes the Internet, will suggest the transaction will have very little effect on competition, and should be allowed to close. A narrow product market definition that focuses, say, on television shopping as a unique form of entertainment to consumers, and therefore a unique channel in which to sell products, may very well result in a challenge.
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