The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2022”.
In the 2021 edition of this memo, we wrote that antitrust in 2020 received more political and media attention than at any recent time. 2021 beat that standard in multiple ways, and 2022 looks to continue that trend. In addition to continuing the major tech cases brought under the Trump administration, 2021 saw unprecedented levels of legislative activity in antitrust (both federal and state), competition policy taking a leading position across federal agencies and startling new approaches at the Federal Trade Commission (FTC) in particular – new approaches that, while they haven’t yet produced a wave of new enforcement actions, have required changes in thinking about and approaching antitrust issues. We expect these trends to accelerate in 2022.
Enforcement in the Biden Administration: The Progressives Take Control, and the Whole Government Joins the Party
Going into 2021, the consensus in the antitrust world was that President Biden’s election, combined with the 50-50 split in the Senate, signaled continuity and moderation, with key appointments likely coming from the Democratic Party’s antitrust mainstream. But that was not what happened; instead, the biggest antitrust story of 2021 was the sidelining of antitrust moderates, including long-time Biden advisors, as the progressives in antitrust took control of the administration’s agenda.
The takeover was headlined by the appointment of Columbia professor Tim Wu, a leading progressive antitrust thinker, as Special Assistant to the President for Technology and Competition Policy on the National Economic Council. With Wu in place, the Biden administration launched an expansive antitrust agenda, issuing a sweeping executive order on competition in mid-2021 that instructed multiple agencies (including but not limited to the FTC and the Antitrust Division of the Department Of Justice (DOJ)) to launch reviews and initiatives aimed at including competition policy across the landscape of the federal government.
Further widening its antitrust policy focus, the White House also established a Competition Council, consisting of eight cabinet secretaries and the heads of eight independent agencies. The Council notably includes agencies like the FDA, which have not traditionally focused on competition policy. Soon after the Council’s inaugural meeting, the FDA issued a first-of-its-kind proposed rule aimed at bringing increased competition to the market for the sale of hearing aids, a surprising move. In 2022, expect increased scrutiny and enforcement of competition practices by other federal agencies outside of the FTC and DOJ. Those are likely to include the Departments of Agriculture, Health, Labor and Transportation adopting antitrust-influenced frameworks, rules and regulations.
Radical Changes but Uncertain Impact at the Federal Trade Commission
The FTC in 2021 was characterized by staff and leadership turmoil, controversy and at least the appearance of a significant shift in agency priorities and practices. Initially, under Acting Chair Slaughter, the FTC largely continued its longstanding consensus-driven approach to antitrust, albeit with some aggressive statements on various issues from the Acting Chair and fellow Democratic Commissioner Rohit Chopra. That approach changed substantially with Lina Khan’s ascension to the position of FTC Chair.
Khan, a headliner antitrust progressive most famous for her criticism of Amazon and of the view that antitrust should focus on protecting consumers from higher prices or reduced output, was originally nominated by the President to be a Commissioner; no mention was made of her being Chair. Yet, to the surprise of observers and (as we understand it) much of the Senate, immediately after she was confirmed as a Commissioner the President designated her as Chair – an important distinction, because the FTC Chair controls the day-to-day administration of the FTC. Khan, with a three-Commissioner majority, moved swiftly to alter FTC practices in several areas:
- Streamlining the process of adopting trade regulation rules and initiating discussion of several possible rules, notably including unprecedented rules on competition (such as on exclusive contracts, discounts and other widespread contractual practices)
- Streamlining procedures for issuing compulsory process and eliminating the normal requirement of Commission votes for process in a wide range of cases
- Rescinding longstanding bipartisan FTC guidance on antitrust enforcement to reflect a more regulatory, aggressive philosophy
- Withdrawing from the recently adopted Vertical Merger Guidelines, leaving the FTC differently situated from the DOJ and with no clear guidance on vertical mergers.
Interestingly, though, these and other aggressive steps were not accompanied by an uptick in case filings (either initially under Acting Chair Slaughter or subsequently under Chair Khan); in fact, FTC case filings declined from the levels set under the Trump administration.
In any event, following this initial spate of activity, the progressive agenda has been slowed by the departure of Commissioner Chopra to serve as Director of the Consumer Financial Protection Bureau. While Commissioner Chopra cast a number of so-called “zombie votes” enabling the Commission to move forward on a limited number of issues after his departure, the Commission now has only four Commissioners, and so any controversial steps will have to wait until another Democratic Commissioner is confirmed, since the two Republicans can block new Commission actions they don’t support.
As a result, Commission action in the near future will either involve consensus – such as the study of supply-chain disruptions launched in December 2021, or the recently-filed challenge to the merger of NVIDIA and Arm – or areas in which the Chair and Bureau Directors can act without a vote, such as in issuing Second Requests triggering in-depth reviews of mergers (but actual challenges to mergers or consent decrees will require Commission votes, and thus at least some Republican support).
The President has nominated Alvaro Bedoya, a Georgetown law professor and privacy expert, to the Commission; however, his nomination (though supported by all four current FTC commissioners) drew significant opposition in the Senate and failed to advance in 2021. The President has just renominated Bedoya, re-starting the confirmation process. While we think it is still more likely than not that he will be confirmed, it may take several months for the process to play out.
So what will we see from the FTC in 2022? Initially, enforcement action in the form of consent decrees and litigated cases will likely be limited to consensus cases, given the 2-2 Commission split. Chair Khan has used the tools at her disposal to delay the review of some mergers, to launch full Second Request investigations of mergers that on their face don’t appear to raise competition issues and to issue threatening-sounding though legally insubstantial letters to merging firms reminding them that HSR clearance doesn’t mean that the merged firm is immune from antitrust scrutiny. We expect those trends to continue, even if they don’t result in enforcement action in the near term. While FTC staff has been subjected to a gag order and barred from public speaking since Chair Khan’s arrival, limiting insight into the FTC’s position and practices, we expect the limited public statements from the FTC to continue pushing for a progressive agenda. This will likely include criticizing large firms, touting the virtues of deconcentrating markets and expressing a general skepticism of mergers.
If Professor Bedoya is confirmed (or if his nomination fails to progress and another progressive Democrat is appointed and confirmed), we expect the FTC to move aggressively to advance Chair Khan’s original agenda. This will likely include:
- working with the DOJ to propose new, anti-merger vertical merger guidelines;
- revising the horizontal merger guidelines to make them more hostile to mergers;
- continuing attempts at competition rulemaking;
- challenges to mergers that might previously have been viewed as competitively neutral or even beneficial, with the pharmaceutical, technology, energy and retail industries particularly likely targets;
- dusting off the Robinson-Patman Act, a federal law that prohibits “price discrimination” and is so widely viewed as poorly designed and counterproductive that the federal agencies have essentially ignored it for decades. Chair Kahn, however, has specifically called for reinvigorating Robinson-Patman in order to, for example, prevent large firms from obtaining better discounts than smaller firms (which may have more symbolic than practical effect, as most businesses covered by the Act attempt to comply with it anyway due to the risk of private enforcement).
It’s worth noting that 2022 could also be a challenging year for the FTC. The FTC has already lost some enforcement tools as a result of court decisions addressing nuances of the FTC Act, and Chair Khan’s actions have jeopardized prior congressional consensus to restore the FTC’s authority. Moreover, current judicial skepticism of administrative agencies – including at the U.S. Supreme Court – could result in changes to or limits on the FTC’s independence, authority and procedures, as several cases raising these issues (with the FTC specifically or with other agencies) are winding their way through the courts.
U.S. Department of Justice
In 2021, DOJ antitrust enforcement largely took a back seat in the media to headline-generating FTC announcements. The antitrust bar viewed the DOJ as, at the very least, more predictable than the FTC – though it is worth noting that under Acting Assistant Attorney General Richard Powers, the DOJ quietly walked back some of the pro-intellectual property positions taken by former AAG Makan Delrahim and brought several significant cases, including a challenge to the AA/JetBlue domestic alliance (despite its clearance by DOT), and a lawsuit to block the merger of Penguin Random House and Simon & Schuster (particularly notable because it focuses on a “monopsony,” or buyer-power theory involving harm to bestselling authors).
The relatively low-key situation at DOJ will likely change in 2022 as recently confirmed antitrust chief Jonathan Kanter takes the helm. While (unlike FTC Chair Khan) Kanter is an experienced antitrust lawyer with a history of representing large companies such as Microsoft and Yelp, he was supported by progressives as an anti-Big Tech advocate, notably because of his substantial private practice work representing Google adversaries. Kanter, while only on the job for a few weeks, has already signed off on a major merger challenge in the sugar industry, and has also expressed support for the DOJ’s groundbreaking criminal cases involving so-called “no-poach” agreements, where businesses agree not to compete for each other’s employees. The exact direction of the DOJ under AAG Kanter is difficult to predict, and the first few months of 2022 will shed light on two important questions: (1) Will the DOJ under AAG Kanter follow FTC Chair Khan’s more radical positions, or serve as a moderating force reflecting Kanter’s experience and views?; and (2) Who will be appointed to the critical Deputy positions under AAG Kanter? – which, in a surprising and unprecedented development, remain vacant even though they do not require Senate confirmation and are normally filled early in an administration.
2021 was an extremely eventful year for introducing antitrust legislation – but not for passing it. At the federal level, a spate of bills proposing changes to general antitrust enforcement as well as specific bills aimed primarily at hobbling U.S. technology companies were introduced in both the House and Senate, but none advanced. The general antitrust bills run the gamut from relatively narrow changes to HSR filing fees and agency funding, to restoring FTC enforcement authority, to sweeping changes to merger law that would give the government (which already wins the majority of merger cases it brings) even more advantages in merger challenges. These bills have generated unusual legislative coalitions both in support and opposition, and they will be interesting to watch.
State legislatures are also worth watching. Notably, New York came fairly close to passing legislation that would have effectively turned the state of New York into a global merger enforcer with a pre-closing filing requirement that would apply to transactions around the world (even transactions with no apparent connection to New York), as well as prohibiting (and potentially criminalizing) routine business practices even when those practices would be procompetitive. The bill’s sponsors have pledged to reintroduce it; we will follow this with interest.
All in all, there is more antitrust legislation pending or promised today than at any time in nearly the last century. Close attention to this space is warranted.
On the other side of the Atlantic, antitrust in 2022 is likely to be even more eventful. We identify five points for attention.
First, the EU’s Digital Markets Act (DMA) will be adopted, likely before mid-2022. In response to a perception that traditional competition law doesn’t work when it comes to the digital economy, the DMA is designed to regulate digital platforms that are considered to be “gatekeepers.” On announcing the DMA, Commissioner Vestager explained: “We’ve come to a point where we have to take action. A point where the power of digital businesses – especially the biggest gatekeepers – threatens our freedoms, our opportunities, even our democracy . . . So for the world’s biggest gatekeepers, things are going to have to change.”
The DMA marks a dramatic shift from relying on ex post competition law to ex ante regulation. It’s the most notable of the new wave of global regulation – across the US, Europe and Asia – because of its broad geographic scope, the near-certainty that it will pass, the inflexibility of its rules, and the severe consequences of non-compliance. The DMA provides for a set of strict behavioral rules that apply directly to platforms (“do’s and don’ts”). Some of the DMA’s obligations are relatively non-controversial, such as the rule against wide most-favored nation clauses, or the rule against platforms using businesses’ non-public data to compete against them. Other provisions, in contrast, are far-reaching and novel. For example, the draft DMA includes a rule requiring gatekeeper search services to share Europeans’ search data with potentially unlimited rival search services. It also includes an unbounded and open-ended access and interoperability obligation.
The DMA’s rules are rigid and categorical. They don’t take account of competitive effects or harm; they do not explicitly allow for efficiency justifications; and they only provide for extremely narrow exemptions. The DMA’s penalties, in turn, are severe: fines of up to 10% of a gatekeeper’s annual global turnover and behavioral remedies, including breakup in the case of multiple infringements. Under amendments proposed by the EU Parliament, there would be a minimum fine of 4% of a gatekeeper’s worldwide revenue and a maximum cap of 20%; in other words, there would never be discretion to set a fine lower than 4% of global revenue.
Second, Germany has already introduced new rules to tackle perceived problems in the digital space. The 10th amendment of the German Act Against Restraints of Competition has given the German Federal Cartel Office (FCO) the power to prohibit certain conduct by digital companies with so-called “paramount cross-market significance” (PCMS). Under the new rules, the FCO can issue an ex ante prohibition order against certain conduct by PCMS companies, based on an open-ended list of practices (e.g., impeding interoperability, gaining unfair advantages, leveraging, or self-preferencing). There’s no need for the FCO to prove competitive harm, and the company bears the burden of proof to justify its practices. The FCO has already opened investigations against Amazon, Facebook, Apple and Google under the new rules. 2022 may see the FCO reach decisions in many of these cases and open new investigations.
Third, the traditional European system of merger control established over the past 30 years is undergoing significant reform and 2022 will be characterized by more merger control in Europe. In response to a critique that its jurisdictional scope has been too narrow and that anticompetitive transactions – in particular, in the digital sector – are escaping review, antitrust agencies across Western Europe have expanded (or are considering expanding) the jurisdictional reach of their merger laws. Germany and Austria have introduced transaction value-based thresholds. The UK has applied its “share of supply” test to assert jurisdiction over transactions involving companies with no or minimal UK revenues and proposed a mandatory notification regime for large digital platforms. The EU Commission (EC) has issued guidance encouraging Member State agencies to refer to it potentially anticompetitive transactions that would otherwise escape review because they do not meet national thresholds, while the European Parliament proposes to amend the DMA to allow the EC ban gatekeepers from engaging in any acquisitions at all. In addition, France and the Netherlands are considering new rules that would either include transaction value thresholds or require mandatory notification of all acquisitions by leading digital platforms.
Fourth, amid all these new rules, traditional antitrust will continue – and it will continue to focus on Big Tech. Amazon is reportedly seeking to settle two EC investigations regarding preferential treatment of its own retail offers and those of marketplace sellers that use its logistics and delivery services. The EC has opened an investigation into whether Facebook uses advertising data from its advertisers to compete with them in markets where Facebook is also active. And the EC issued a statement of objections (a formal charge sheet) against Apple, concerning its App Store policy – the EC objects to Apple requiring app developers to use Apple’s in-app payment for buying digital goods, and to Apple banning developers from communicating to customers that alternative subscription routes and payment options are available, e.g., subscribing through the developer’s website. The EC may also be emboldened by the EU General Court, in November 2021, partially upholding its Google Shopping decision and the €2.3 billion fine.
Fifth, the UK has now fully left the European Union and will “take back control” by adding red tape and compliance costs for companies in the competition space. In mergers, the Competition and Markets Authority (CMA) now has jurisdiction to investigate transactions that were previously subject to the EC’s exclusive jurisdiction. The CMA therefore expects to investigate many more transactions, including complex mergers that are subject to parallel investigation by other agencies around the world. While the UK’s voluntary regime means that not all these mergers will be notified or require investigation in the UK, the CMA has projected a 40-50% increase in its merger caseload. The CMA’s recent interventionist approach towards mergers suggests that securing UK merger approval for international transactions may be at least as arduous, protracted, and challenging as the EU process (if not more).
As to antitrust enforcement, the CMA has gained jurisdiction over international cartel and abuse of dominance cases that are today investigated by the EC, but not national authorities. In respect of cartels, companies applying for leniency at the EU level will need to consider whether to submit parallel applications to the CMA, while dominant companies may face parallel investigations of their unilateral conduct.
The CMA’s leadership has been quick to realize that Brexit provided an historic opportunity to strengthen the authority’s claim to being one of the world’s leading competition agencies. Over the last few years, the CMA has therefore grown in stature, authority, and confidence. Dr. Andrea Coscelli, the CMA’s Chief Executive, is determined to see the CMA “play an important role in helping the UK to continue, up to and beyond its Exit from the EU, to be a dynamic competitive economy for consumers and businesses.” The CMA has already flexed its muscles by taking increasingly-activist positions, such as ordering Facebook to divest Giphy, even though Giphy has no sales, assets, customers or employees in the UK. The CMA is also forging ahead with establishing a new regulatory framework for digital markets. While the precise scope and content of the new rules are presently uncertain, they could have far-reaching implications for digital platforms and the consumers and businesses that use them. In short: watch this space.