Competition Corner

A second Trump administration brings some uncertainty about the trajectory of non-merger antitrust enforcement. Under the Biden administration, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) took an aggressive approach to antitrust enforcement across several industries and were particularly hostile to mergers and acquisitions. President Trump’s nominees to lead the antitrust agencies signal that the new administration is likely to continue current levels of vigorous antitrust enforcement—particularly in Big Tech and other hot-button industries—but will likely relax M&A enforcement and return to more predictable and traditional tools and theories of harm.

On December 10, President-elect Trump announced that he will elevate current FTC commissioner Andrew Ferguson to be the next Chair of the Federal Trade Commission. In a follow-up post, Trump also announced his selection of antitrust lawyer Mark Meador to serve as a new Republican FTC commissioner.

Less than three weeks after the European Union’s (EU) Digital Markets Act (DMA) took effect on March 7, 2024, the European Commission announced on March 25, 2024 that it is opening investigations into Apple, Google, and Meta for suspected noncompliance with its new directives.

On June 2, 2023, the Ninth Circuit overturned a district court’s dismissal of a false advertising claim brought by Enigma Software Group USA LLC  under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). Enigma’s allegations against a competitor in the computer security space, Malwarebytes, Inc. (Malwarebytes), concern Malwarebytes’ designation of Enigma’s programs as “malicious” and a “threat.” 

In the age of big data and artificial intelligence, businesses are increasingly using algorithms to make important business decisions. This trend raises antitrust concerns that companies need to be aware of. 

This week, the FTC and DOJ along with the Consumer Financial Protection Bureau, and the Equal Employment Opportunity Commission released a joint statement pledging the agencies’ commitment to enforce their respective laws and regulations and to uphold their commitment to the core principles of fairness, equity, and justice in relation to emerging automated systems.

The collection, monetization, analysis, and use of consumer data have become ubiquitous aspects of modern business in the digital age. Companies, big and small, rely on consumer data to develop targeted advertising campaigns, enhance customer experiences, and create innovative products and services. However, the increasing reliance on consumer data also presents significant and growing antitrust risks for companies operating in the digital sphere.

The U.S. Department of Commerce (DOC) recently added to the pressure on Apple and Google to modify their app store practices. The DOC’s National Telecommunications and Information Administration (NTIA) released a 50-page report on February 1, 2023, criticizing the mobile app store model as harmful to developers and consumers and recommending policy changes to reform it.

In another example of heightened antitrust enforcement by the Department of Justice (DOJ) under the Biden administration, on January 24, 2023, DOJ and eight states filed a civil antitrust lawsuit accusing Google of monopolizing multiple digital advertising technology (“ad tech”) products. The lawsuit reflects the continued antitrust focus at both the state and federal levels on Google.

Congress is currently considering the American Innovation and Choice Online Act (AICO), which will enhance the antitrust regulations of certain online platforms. If enacted, AICO would prohibit certain covered online platforms from favoring their own products or services when doing so “would materially harm competition.” Winston has created an antitrust legislative tracker to monitor the progress of federal and certain state bills pending in the current legislative session. 

On June 14, 2022, the Senate passed a bill designed to give greater enforcement power to state attorneys general who bring suit under federal antitrust law. The State Antitrust Enforcement Venue Act passed the Senate by unanimous consent and now heads to a vote in the House, where it has already cleared committee. If passed, it will mark the first successful step in a broader bipartisan effort by lawmakers to introduce antitrust reform legislation aimed at regulating large technology companies.

On May 11, 2022, the Senate confirmed Alvaro Bedoya by a party-line vote as a commissioner on the Federal Trade Commission, giving the FTC a full complement of five commissioners for the first time in seven months. Commissioner Bedoya is expected to help push the Biden administration’s continued focus on aggressive antitrust and consumer protection enforcement. 

On January 18, 2022, the U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) jointly announced their intention to begin a sweeping rewrite of their merger guidelines and issued a request for public comment on specific questions that will drive this revision process. The review is expected to lead to the replacement of the existing joint Horizontal Merger Guidelines, which were last updated in 2010, and the Vertical Merger Guidelines, which were updated in 2020 but then withdrawn by the FTC in 2021 under new leadership.

On November 16, 2021, Jonathan Kanter was confirmed as the new Assistant Attorney General of the Department of Justice Antitrust Division after a bipartisan Senate voted 68-29 in favor of the appointment.  His appointment is yet another signal that the Biden administration will aggressively enforce antitrust laws and aligns with President Biden’s July 9, 2021 “Executive Order on Promoting Competition in the American Economy.”

Qualcomm Inc. has won another battle in the fight over its alleged monopoly of modem chips used in cell phones. On September 29, 2021, the Ninth Circuit vacated the district court’s class certification order and remanded the matter for reconsideration.

On September 22, Lina Khan, the recently confirmed chair of the Federal Trade Commission (FTC), released a memo to FTC staff and her fellow commissioners outlining her “Vision and Priorities for the FTC.” 

At its September 14, 2021 open meeting, the Federal Trade Commission (FTC) announced the passage of eight “omnibus” resolutions by a 3-2 party-line vote to authorize quicker investigations into prioritized issues. 

President Biden’s Executive Order promoting competition and the corresponding “Fact Sheet” include a number of directives with broad implications for the tech sector. Among other things, the Order seeks to address “excessive market concentration”; the exclusion of market entrants; supracompetitive pricing; exploitation of personal-use data by dominant internet platforms; and the contended charging of excessive rates for broadband, cable television, and other communications services.

On July 10, 2021, the State Administration of Market Regulation (SAMR) of the People’s Republic of China (China or the PRC) announced that it had denied the merger of online-game streaming companies Huya Company and Douyu International Holdings Co., Ltd., which are first and second in market share for online-game streaming in China.

On July 20, 2021, President Joe Biden nominated Jonathan Kanter to be Assistant Attorney General for the Department of Justice’s (DOJ) Antitrust Division. Mr. Kanter is well-known in the legal field as a strong advocate for federal and state antitrust enforcement and has been specifically critical of large technology companies.