NINETTE DODOO: Thank you very much, Tom. I’m delighted to have you all here today.
We thought we would begin our session by giving each of our panelists an opportunity to share with us their priorities certainly for this year but also looking ahead, talking to us about some of the policy changes that we as antitrust counsel, enforcers in other regions, and academics are actually seeing.
What I thought I might do is start in the order in which I introduced our guests, making sure that everyone gets an opportunity. So perhaps, Sarah, you would like to begin, please.
SARAH CARDELL: Thank you so much, and thank you very much for the invitation to speak today. It is fantastic to have the opportunity to speak with this great audience.
What I thought I’d start off with is a little bit of background and context because I am conscious that perhaps there are varying degrees of familiarity with the work of the UK CMA in the audience.
The first point is just to say that the CMA is an integrated competition and consumer protection authority. That is really important for us in the way that we work because we do take a really joined-up approach to thinking across both competition and consumer enforcement when we are looking at the particular issues that we are seeking to tackle.
But many of you, I suspect, will be most familiar with the CMA from an international perspective because of our role in relation to merger control.
I think it is fair to say that at an international level the role of the CMA has gained greater prominence and greater interest in recent years, and there are two principal reasons for that. The first is obviously the impact of the United Kingdom’s exit from the European Union, which has meant that the CMA has greater competence in terms of looking particularly at the impact of many more global transactions and the impact of those deals on UK markets. The second reason I think that the CMA’s work in merger control has gained particular interest internationally is that there is at least a perception that the CMA is a particularly tough merger control authority. I want to spend a few minutes exploring those a little bit and then I will come on to some of our broader priorities and areas of activity.
When it comes to merger control, I think from a jurisdictional perspective it is absolutely right and not at all surprising that the CMA is now looking at a greater number of global deals. Obviously, previously many global transactions that have an impact on the United Kingdom would have been considered by the European Commission, but now it is the role of the CMA to look at mergers and to protect UK consumers and UK businesses from anticompetitive mergers, and that is a responsibility that the CMA takes very, very seriously.
When it comes to jurisdiction, you may or may not be familiar with the particular jurisdictional tests that we have. Essentially, the CMA has the ability to look at transactions either where the target company has UK turnover of more than £70 million or where the deal hits our share-of-supply test.
I think for international parties and businesses perhaps there has been some surprise about the jurisdictional reach of UK merger control, but I really don’t think this should be a surprise. If we boil it down to basics, what we are doing is looking closely at transactions that may have a material impact on competition in the United Kingdom, and that is our responsibility.
We apply the share-of-supply test in a fairly broad way, and it has been upheld by our UK courts that there is a deliberate intent by the UK Parliament to make sure that the CMA can use that jurisdictional provision to give close scrutiny to deals that may impact competition in the United Kingdom.
Sometimes I am asked, “Why is it the case that the UK merger control authority is looking at deals between non-UK businesses, two U.S. companies merging? Why is it the case that the CMA has jurisdiction to look at that deal?”
The answer is quite simple: If the transaction is hitting our jurisdictional thresholds, if the transaction has an impact on UK markets, then it is clear that we are empowered to look at that deal, and that applies to deals that may have a center of gravity that sits outside the United Kingdom. So I don’t think that approach should come as a surprise.
What it doesn’t mean, though, is that our approach to jurisdiction is unpredictable or arbitrary. We have very clear guidance about how we apply our jurisdictional tests.
One thing I think that is particularly important to emphasize perhaps for this audience is that there is a very clear and accessible process where businesses and parties that are unsure whether or not the CMA will look at a particular deal can put in a short briefing paper to our Merger Intelligence Committee and can get a quick and early view from us on whether this is the kind of deal that we are likely to review.
I hope that gives some clarity about our approach to jurisdiction and the way that we look at deals.
When it comes to substance, I think we will probably come on later in the discussion to a little bit more discussion around our substantive approach to assessing mergers, but I did just want to touch on this point about the reputation of the CMA as a particularly tough—or, as it has been put to me this week, a particularly aggressive—merger control authority.
Again, I think it is really important to take this back to basics a little bit. The CMA does not have a sort of predetermined anti-merger agenda, but as I said, we have a very clear statutory responsibility to look closely at mergers that may have an adverse impact on competition in the United Kingdom, and we will do that thoroughly and carefully. We will undertake a careful, considered, objective, and evidence-based approach to reviewing each and every one of those deals and we will reach a conclusion on the basis of the facts and the evidence before us about whether or not in a particular case it gives rise to in our assessment a substantive lessening of competition.
But that doesn’t mean that we are fundamentally anti-merger. We recognize that very many mergers do not create competition concerns, and indeed some can well improve competition, but we will look very closely at those deals.
One of the benefits actually of the UK regime that is quite unusual is that, because we do not have a mandatory notification threshold, we also do not have to review many, many deals that do not have an adverse impact on competition. That enables us to be actually, I think, a very efficient merger control authority. If you look at the number of transactions we review year on year, they are proportionately perhaps quite a lot smaller than in other jurisdictions that have mandatory thresholds, but that does mean that we tend to focus in on those deals where we can see potential competition concerns.
What does that mean overall? If you look at the stats over the last few years, it varies year on year, but on average we have either prohibited or required divestments in around, say, five-to-six deals a year. Now, I think that is a sign of a robust and effective merger control authority, but I don’t think it is a signal that we are excessively aggressive.
Just to give a bit of a framing perspective on our approach to mergers.
Moving away from mergers for a minute, Brexit has actually had a big impact on a number of other areas of our work as well.
To give an example, we have some entirely new functions. We have a Subsidy Advice Unit, which to some extent replicates the State-aid regime that we used to be under when we were part of the European Union.
Also, in antitrust, a little bit similar to merger control, we now have an enhanced jurisdiction. Obviously, historically we used to have a shared competence with the European Commission when it came to antitrust cases. Again, the CMA now has sole responsibility for pursuing antitrust enforcement where that impacts on the United Kingdom. Actually, what I should say is that I think you will see many parallels in terms of the types of cases and the issues that we are taking on across the United Kingdom, across the European Commission, and indeed with the United States as well.
When we look at our antitrust portfolio over the last year, we have continued to have, and I think will continue to have, a very substantial focus on cases in digital markets. That is not surprising given the competition concerns that we see in those markets.
To give a few examples of our current cases, we are looking at both Amazon’s and Meta’s use of data; we have cases involving both Google’s and Apple’s approach to their in-app payment systems; we have a case where we are looking at Google’s position in the Ad Tech stack—I think all well understood issues in digital markets.
Our focus on digital markets isn’t just limited to antitrust cases. In the United Kingdom we have the ability to undertake broader market reviews as well, and those have been a really, really important tool for us to be able to do quite a deep and thorough investigation of the competition dynamics and the competition concerns that we see in a number of digital markets. A couple of years back we completed a market study in relation to digital advertising. Last year we completed one looking at mobile ecosystems.
But in the United Kingdom, like in a number of other jurisdictions, whilst we are using our full toolkit to furnish the facts in seeking to tackle issues in digital markets, there is also a recognition that there are limits to that toolkit.
The government has proposed the introduction of a new regulatory regime focused on digital markets. That will be more of an ex-ante regulatory regime, and it will give the CMA the ability to both designate and then regulate major platforms that have Strategic Market Status (SMS) in relation to digital markets. That requires a somewhat different approach to historic antitrust enforcement, so we will have the power there to designate specific companies where they have an entrenched position of market power in relation to specific digital activities; and once those designations are complete, we will be able to do two things: first of all, we will be able to impose conduct requirements, which are really about managing the exercise of market power in those digital markets; and then, secondly, we will be able to introduce what we term “procompetitive interventions,” and that is about tackling the underlying causes of market power, so for example introducing interoperability provisions.
That gives a little bit of a favor of our key focus on digital markets.
Finally, I want to close by taking a little bit of a step back and talking a bit more broadly about some of our priorities as an agency.
I think it is important in this kind of environment because whilst it is always fascinating to have really interesting discussions with antitrust practitioners, at the end of the day what really matters to us as a competition agency is that we deliver impactful, beneficial outcomes for the people and the businesses that we are here to serve. In the United Kingdom for the CMA that is about us serving UK people, UK consumers, and UK businesses, and playing our part to support the wider economy.
We have actually spent quite a bit of time over the last six months looking at how to frame our strategy with those objectives in mind and really looking at the outcomes that we are seeking to deliver across those groups, and we framed that in a broad ambition to promote competitive markets and to tackle unfair behavior. I thought I would just give a little snapshot of some of the examples of how we see that playing through in some of our cases.
When we are looking at the benefits that we are looking to deliver for people we focus particularly on areas of activity of core consumer need or core consumer harm and really making sure that we are lasering in and focusing our efforts and activities in that space.
For example, we have continued a very substantial portfolio of work on the antitrust side taking action against companies engaged in excessive pricing in core pharmaceutical products. That has been a key priority for the CMA for the last few years. We have continued to complete and are now defending some of those cases in court.
We have also taken action. We are investigating at the moment a case in relation to collusive wage fixing, which I think is really important particularly in the current climate where household budgets are under so much pressure, and we want to send a clear signal to businesses that they should not be colluding to suppress wages.
And we are using our consumer enforcement powers, as I mentioned, in particular tackling online pricing practices, things like fake urgency claims, and using consumer protection to tackle that.
When we focus on businesses, I think sometimes there is a bit of a perception that as a competition agency you have to choose whether you are pro-consumer or pro-business, and I don’t think that’s the case at all. I think that there is no tension between the two. So we have made it very clear that as well as supporting consumers our objective is to support fair dealing, competitive businesses, making sure that they can really innovate and thrive in the markets where they are active. I think you can see that very clearly in a lot of the digital markets work that we are pursuing.
Finally, we do think that the CMA has a really important role to play more broadly in supporting the UK economy, particularly again at a time of economic pressures that we all see and recognize at the moment.
One of things that we have done is establish a new Microeconomics Unit, which is focused on producing some very deep and thoughtful research looking at the connections between competition, innovation, investment, productivity, and growth, to try to take forward that agenda and understand both how we can advise the UK government but also inform our own work in that space.
We have also focused on other themes, including supporting the United Kingdom’s transition to the Net Zero economy and what we can do there.
Hopefully, that gives you a little bit of a flavor of the scale and the scope of our priorities and the kind of work that we are taking forward.
NINETTE DODOO: Thank you very much, Sarah.
I would like to pick up on a few of the points you’ve made. There are others that I’m sure we will come to later on.
One key question, though, it seems to me at any rate, is that certainly post-Brexit the CMA has established itself as a major player. You used the term “aggressive.”
SARAH CARDELL: I didn’t use that myself. That term was put to me.
NINETTE DODOO: That is certainly true. But I think one of the questions that it seems to me a lot of observers will ask themselves is: To what extent is it a concern, if at all, that there are sometimes significant divergences in the approach that the CMA might take in comparison to, for example, the European Union or other jurisdictions? Perhaps you could answer that question in the context of mergers, but you also touched upon digital markets as well because there is a lot of focus on digital markets, so I would be interested in your thoughts around that particular topic.
SARAH CARDELL: My first point is that I think when I hear that argument it is usually overstated, to be honest. I mean you will hear from other colleagues across the panel, but what I see day to day is, first, a huge amount of close working across agencies, and that can happen in a number of forms. That can happen both on individual cases and through broader fora. It happens both bilaterally and multilaterally.
I think it is certainly not the case from the CMA perspective that we see ourselves as operating in an international bubble. We are acutely conscious that many, many of the issues that we are looking at – whether as you say it is in relation to mergers or whether it is in relation to broader issues across digital markets—are global issues, they are issues that cut across a number of different jurisdictions, and there are many reasons in many cases to strive for an outcome that is aligned across those jurisdictions.
I can talk about more detail in relation to mergers. We can cover that now or we can come back to that later. But the sort of headline point I would make is that when you look at the cases where there have been international dimensions to those cases, where you’ve had a number of different jurisdictions looking at the same mergers in parallel, I think (a) on process there is a lot of alignment and a lot of close working; and (b) on substance and the substantive outcomes in the vast majority of cases I think you will also see that alignment.
Of course there will be some cases that ultimately end up in different outcomes, and I think that’s only to be expected. I would suggest in the majority of those cases that will be driven by actually differences in the evidence across different jurisdictions. You may well have a transaction that is being reviewed in a number of different jurisdictions, but it doesn’t mean that the competition assessment is exactly the same in those different jurisdictions.
And of course the processes, the procedures, and the tests that we apply are slightly different in different jurisdictions, so at the margin in a small set of cases that may produce different outcomes. But I really don’t think that there is a fundamental difference and a fundamental divergence of outcomes.
NINETTE DODOO: Thank you for that.
Gwendolyn, closer to home, what are you seeing as priorities from the state attorneys general level, please?
GWENDOLYN COOLEY: We have a number of different priorities. Just to dial it back, actually I would say for those with even a passing awareness of U.S. politics, who have watched the news in the last twenty-four hours, the idea that vastly differing attorneys general from vastly different states would band together to prosecute antitrust cases seems like an unlikely alliance. However, our Antitrust Task Force has shown that we are a resilient and formidable force in litigation and one that will be spending much of the next year doing that.
What are our priorities? At present count, we have four multistate cases—or five, depending on how you count—that are set for trial this year. In September we have the Google Search case, which is the joint DOJ case and the Colorado and Nebraska case. Also in September we have the case that I lead for the states, the Suboxone pharmaceutical product-hopping case. In October, we have the newly scheduled trial, again with my friend AAG Kanter, that attempts to block the merger of JetBlue and Spirit; and currently scheduled for November the Google in-app payments case led by Utah. So we should be quite busy this fall, though, my fellow AAGs around the country, litigation is what we do.
As we litigate in a variety of jurisdictions—even more now, as last winter Congress agreed that we should stand equal to my federal counterparts here on the stage with us in our choice of venue—we appreciate that both Chair Khan and AAG Kanter wrote letters of support in addition to the fifty-three attorneys general who successfully persuaded Congress to include the State Antitrust Enforcement Venue Act in the Omnibus Appropriations Bill.
The combination of again many diverse viewpoints coming together to support something for the common good is what makes the AGs and the NAAG Antitrust Task Force such a formidable force.
States have already put that law to good use.
First, earlier this month a Virginia federal court noted that Congress had expressed serious significant concerns about subjecting government enforcers to the delays caused by consolidation with private litigation and refused to let Google transfer the Justice Department and eight-state Google Ad Tech case to New York to join it to the similar Texas-plus-seventeen-state Ad Tech case.
In the Texas-led Ad Tech case just last week, the states filed a motion with the Judicial Panel on Multidistrict Litigation to send its case back to Texas, arguing that the Venue Act stripped the New York court of jurisdiction.
Another Google case—we have five—the Google in-app payments case, knows about the potential delays of being joined to private litigation. With trial currently set for November 6th of this year, the states’ trial may be delayed because Google is challenging class certification before the Ninth Circuit. Those delays are why Judge Brinkema will likely be quoted endlessly for both her denial of the removal motion and her quip for counsel to “get their running shoes on.”
State legislatures also have their running shoes on and, as I said before, they are fulfilling their role as laboratories of democracy.
They have been at the forefront of labor issues. In particular, many state legislatures have addressed the issue of non-competes. Labor has always concerned state attorneys general as workers and business owners navigate each other’s varying laws. Enforcing non-compete violations has been a signature project of many offices, including New York and Washington State amongst others.
New York’s successes last week included a settlement with two title insurers, AmTrust and First Nationwide, which allegedly engaged in no-poach violations. They recently settled that case for $1.25 million, and that builds on the million-dollar settlement that New York had negotiated with Old Republic. And then, only two days ago, New York—thank you very much, New York—settled with Fidelity National for $3.5 million for that same alleged no-poach conduct.
Washington State’s leading efforts on no-poach agreements were shown in a study last year to have increased wages 3 percent nationwide at firms subject to a “no no-poach” order. During the no-poach initiative Washington’s Attorney General prosecuted more than 185 chain franchises for agreeing not to poach from other franchisees.
States are not all of one mind on how to handle non-compete issues. Currently state statutes range from an outright ban on the enforcement of non-competes in California to states, like Wisconsin, whose courts consider only the geographic scope and time of a contract when considering the legality of a non-compete clause.
The proposed rulemaking by the FTC will preempt these varying state laws and move the enforcement regime to the federal government and away from these experienced state enforcers. As a result, I expect that you will see a variety of opinions from attorneys general in our various comments on the FTC’s proposed rulemaking.
On an issue where I think there is much more unity states are not automatically notified about merger challenges under Hart-Scott-Rodino (HSR). While we have seen huge improvements from merging parties approaching AG offices earlier and expediting waivers with our federal counterparts, many state legislatures and attorneys general are troubled by notification failures and delays.
To address this—and you’ve heard this throughout the week from probably some of the seventeen state panelists we have had during this conference—the state legislatures are trying to make HSR notices more straightforward on healthcare-related transactions, and some states are even considering broad HSR notification statutes. So, until there is a federal rule or law, if you practice merger work, you need to pay attention to which states are affected by your transaction as the fines in some states for noncompliance are severe and calculated by day.
Prompt notice is important for us and for merging parties and, as we have just heard from Chief Executive Cardell, it can be also good for business because it will save your clients time and money when we effectively coordinate, and we do effectively coordinate on both mergers and conduct cases.
It is nice to be able to go first because then I can steal some of your thunder.
The Google Search case filed here in the DDC, both the USDOJ/Texas case—that’s the one I’m on—and then the states-only case, as I said, are set for trial this fall. But while they are joined for the liability trial, the States filed a broader case than the DOJ complaint, and they believe that will reveal the full scope of Google’s monopoly maintenance conduct and set the stage for effective remedies that both stop and erase harm to competition.
Fortunately, this case has been tremendously fast-moving for a conduct case. However, too often conduct cases may drag on for years. Lengthy proceedings mean that the relevance of trade secrets and documents under seal diminishes with time.
As was pointed out on a panel yesterday, not all inconvenient facts are trade secrets. Considering this, a handful of years ago now in the Generic Drugs case, the State of Connecticut was successful in unsealing the complaint in that case. More recently, we saw the U.S. Department of Justice and states avoid this issue altogether when they filed the Google Ad Tech case on the public docket with no redactions. I hope this is a trend that will continue. States as law enforcement officials need to ensure that the public have access to the allegations against alleged wrongdoers.
Another trend I expect to continue is single-state antitrust cases filed in state courts. (Before I hear from states around the country after this panel, they only gave me seven minutes, so this is just a sampling of cases.)
On January 12th of this year, California’s Attorney General Office filed a lawsuit in state court against the nation’s largest insulin makers Eli Lily, Novo Nordisk, and Sanofi, and pharmacy benefits managers (PBMs) CVS Caremark, Express Scripts, and OptumRx for allegedly driving up the cost of insulin. This lawsuit asserts a claim under California’s Unfair Competition Law, which is broader than California’s Cartwright Act. Both Mississippi and Louisiana also have cases against insulin manufacturers and PBMs, and I’m sure there are others. There are definitely announced investigations from Texas and Michigan, and I’m sure other states as well.
This week, Ohio filed suit in state court against PBMs owned by Cigna, Humana, and Prime Therapeutics and their affiliated group purchasing organization Ascent Health Services for rebate practices in violation of Ohio’s Valentine Act, which Tom knows quite well. Uniquely, this suit includes the effects of PBM behavior on pharmacists’ actions.
With all of these state antitrust enforcement actions underway, I want to close with a nod to a recent article in Antitrust Magazine by John Mayo and Mark Whitener that noted that agency budget levels—and they just studied your agencies—have a positive and statistically significant effect on enforcement intensity. It seems obvious that a larger enforcement staff means that antitrust enforcers bring more cases, and this is certainly true for the state AGs’ Antitrust Task Force.
While our numbers have grown, we have room for more, so if you would like to join us as we continue litigating, commenting, and cementing our unlikely alliance, there are openings in many AGs’ offices, so please come over to the right side. In view of the locations across the country from New England to Hawaii—I’m not kidding—we are interested in having you join us fight the good fight.
NINETTE DODOO: Thank you very much, Gwendolyn.
I am going to resist the temptation of asking you about particular cases, not least because some of my colleagues are challenging those cases before the courts, but I would like to ask you a follow-up question around labor issues. Certainly I am seeing that not only in the United States but in the European Union, and I also see snippets of labor issues cropping up in Asia as well. What do you put it down to, this focus on antitrust and labor issues? Is there a particular reason that is driving this interest certainly at the state level?
GWENDOLYN COOLEY: I think almost certainly—and again there’s a variety of state views on this—because people who are workers are residents of our states, so we have a particular interest.
I have heard Trish Conners say many times that state AGs are not just antitrust enforcers. We have a broad array of concerns. Those concerns include things like: is there a factory in this town and is it going to close? I think there is a wide variety, but I think that is the real main reason.
NINETTE DODOO: That’s really helpful.
In the interest of time, I would like to shift to Jonathan. What are you seeing in terms of your progress towards the priorities that you set yourself at the Department of Justice?
JONATHAN KANTER: It’s a great question, but I’m still stuck on the job opening in Hawaii. I’d like to learn a little more about that. [Laughter]
GWENDOLYN COOLEY: I’m sure they’d give you consideration.
NINETTE DODOO: We might need to fight over that.
JONATHAN KANTER: Let me start, if you will indulge me. I did a lot of thinking this morning. Last year I had the pleasure of being on this panel; unfortunately, it was remotely, because, like many, I was down with Covid and I was recovering—with a very ill-advised Covid beard, I might add, which has been removed—so this is my first opportunity to be alongside my friends and colleagues in person. That is quite meaningful for me.
It caused me to think back to my very first ABA Spring Meeting, which—and I am going to date myself here—was at the Marriott Wardman in Woodley Park. I remember going to the enforcers’ panel, and at the time it was in a room that seemed impossibly large, which is probably a quarter of the size of the room today, and two luminaries for me, Joel Klein and Bob Pitofsky, were on stage talking. It seemed so far away and they seemed so large in personality and importance. To be here today, sitting in this very comfortable seat, is a very meaningful moment for me personally.
There have been some other changes too. For starters, I am joined by colleagues from around the world and around the country, and I think that speaks volumes about the importance of competition policy and competition enforcement.
Additionally, I am proud to say I think I am the only male enforcer on the panel, and I think that is real progress. [Applause]
When I was talking to you all last year I was just a few months into my position and now I am a little over a year, and I am happy to share some observations about where we have gone and where we are going.
For starters, again if you will indulge me, I love going to work every day, I love my job, and I love the people I work with. The team at the Antitrust Division—we often use the word “family” because it feels that way and we are family—from start to finish work so hard, impossibly hard, on complex matters, and they do it with a deep sense of passion and urgency and dedication to the public.
The issues confronting us today are more complex, more burdensome, and more widespread perhaps than at any time in a hundred years in the antitrust world, and our team shows up from start to finish, all nearly 800 of them, with that passion and that dedication every day. I am just moved, sometimes nearly to tears, by how amazing, how talented, and how successful they are.
I want to point out that, notwithstanding the gravity of this moment, the importance of the moment that we are confronting, which I think is probably an inflection point in antitrust enforcement on par with a hundred years ago in the trust-buster era, we are doing it with more than 220 fewer people than the Antitrust Division had in 1979. Stop and think about that for a moment, that given the complexity of our economy, the size of the monopoly problems we are facing, the team at the Antitrust Division is more than 220 fewer people than we had in 1979. That is something else and something that is worth reflecting on.
Let me talk a little bit about the work that we are doing.
I will start with our civil program. First and foremost, we are enforcing the law. We follow the facts and the law wherever it takes us and we are bringing cases that are consistent with legal precedent and the facts.
On the merger front there is no success greater for us than deterrence. Deterrence comes in many forms, but when we are ready to file a case and a party abandons a merger, that is success. We have had six public abandonments, but I can tell you there are many more nonpublic abandonments, and that is because of the hard work of our team uncovering issues and demonstrating the willingness to bring strong, formidable, and winning cases.
We have succeeded in winning the first litigated merger victory at the Antitrust Division since 2017, the Penguin Random House/Simon & Schuster case. That case was not just a victory in a standard merger matter. It was a victory in a merger matter, first, involving a product, in this case books and authors, that is vital to the public discourse and, thus, our democracy, but we did it on a theory of monopsony. It is essentially a labor theory: that the professional authors depend on advances to research and write books, often depending on that money for their livelihood, to support their families, to hire employees, to do the work, to bring the creativity necessary to bring our free speech to the masses. We protected competition, and we did so valiantly.
Section 8 of the Clayton Act has been the law since 1914, but never in our country has there been systematic enforcement of Section 8 of the Clayton Act until now. Now we have a vibrant Section 8 enforcement of interlocking directors. We have had nearly fifteen directors step off the boards of their companies due to Section 8 enforcement efforts. We have nearly twenty open investigations, and let me just say there are many additional opportunities out there for investigation and enforcement. It is the law, and we are going to enforce it, and in many respects it is probably the most effective way to deconcentrate the U.S. economy today.
Section 2: Until the Antitrust Division brought its case against Google along with our state AG counterparts in 2020, it had been over twenty years since the last filed standalone Section 2 litigation case, United States v. Microsoft. Now we have multiple Section 2 cases in litigation and we have many investigations underway.
Section 2 of the Sherman Act is the cornerstone of our antitrust laws—monopolization—and we are not going to hesitate to bring monopolization cases when supported by the facts and the law.
We are also recognizing that markets change and so do market realities, and so while many of our case precedents relate to poles and wires, many of our market realities today relate to ones and zeros. That changes the economics, that changes the market realities and the facts on the ground, and we are going to recognize those shifts, and we are going to bring cases again when the facts and the law support it.
On the criminal side we have more open grand jury investigations than at any time since 1989. We have brought for the first time, since I was probably this high, a criminal monopolization case. We had a sentencing hearing earlier this week.
Section 2 of the Sherman Act is both a civil statute and a criminal statute. Congress wrote it that way, Congress made it a felony, and when appropriate we are going to enforce the law when the facts and the law support it and consistent with the principles of criminal prosecution.
We have another criminal Section 2 case slated for litigation this summer. It is a vibrant, live area of the law.
When it comes to labor we are fighting for workers in both the civil and the criminal context. In the civil context I mentioned the Penguin Random House case on the merger side. We brought a major information-sharing case relating to workers in meatpacking processing plants. These are extremely important efforts.
On the criminal side we are fighting every day to protect workers from illegal behavior. This is extremely important. Let me pause on this for a moment.
We have now successfully litigated four motions to the courts, and those courts have said that as a matter of law, antitrust crimes dedicated to or focused on workers are just as important and just as actionable as antitrust crimes focused on consumers. That is extremely important.
When we think about labor antitrust cases we think about people. This is not an academic exercise. This is an exercise in criminal enforcement. Again, our cases are informed by the facts, they are informed by the law, and they are informed by the principles of federal criminal prosecution.
When companies engage in wage fixing or companies engage in agreements not to hire each other’s employees, that affects the ability of hard-working people to find jobs, to earn a living wage, to support their families, to save for retirement, to put their kids in school and save for college. Those are real harms and those are righteous cases, and we will continue when the facts and the law support it to bring those cases.
We are expanding our toolkit to improve detection of criminal and cartel behavior. We are modernizing the tools that we use to make sure that we are detecting, with or without leniency, antitrust crimes and bringing cases when appropriate, and we are doing so domestically and internationally alongside our international colleagues and enforcers.
But we are doing more than just that. On the policy front we have the wind in our sails with an Executive Order from President Biden that mandates a Whole-of-Government approach. That is exactly what we are doing.
In just this past year, we brought the first Antitrust Division Packers and Stockyards Act case perhaps ever. We have worked alongside our colleagues at the Department of Transportation, the Federal Communications Commission, the Federal Maritime Commission, and many others to make sure that we are enforcing the law effectively.
This Whole-of-Government approach is extremely important. We have signed MOUs with a number of key agency partners, including the Department of Labor and the National Labor Relations Board, and an extremely important historic MOU with our colleague, the Inspector General at the Department of Health and Human Services, that addresses exclusion orders when there are antitrust crimes committed by healthcare companies. This is extremely important.
We are filing more statements of interest and amicus briefs that help make sure that courts are aware of the Department of Justice’s position regarding the law.
This is just the tip of the iceberg. This is the work that we are doing.
I will also add that we are doing it by expanding our expertise. We agree on labor competition, and so we are hiring as well. I can’t compete with Hawaii, but I can say that we are hiring, and both the résumés and the talent at the Antitrust Division are off the charts, so you can join one of the finest antitrust enforcement teams ever assembled in the history of the world in my view.
We are also hiring experts. We have over fifty PhD economists in our Economic Analysis Group, and they are brilliant and they work extremely hard.
We are also recognizing that as market realities change so does the need for our expertise, and so we are expanding our expertise to include what we like to think of as a business school faculty that includes world-class economists, the best in the world, alongside data scientists, business strategy analysts, banking experts, and healthcare experts, because we need that expertise to make sure that we can understand the economics of the industries that we investigate and can bring our cases effectively. So I am extremely excited about the work we are doing on that front under the leadership of our Chief Economist Susan Athey.
With that, like I said, that was year one, and I am ready for year two.
NINETTE DODOO: Thank you very much, Jonathan.
You made a very interesting point that both on the criminal side and the civil side you only really take action when the facts and the law support it. Some may argue that the enforcement we are seeing is almost a step back—a slight step back, but a step back nonetheless—away from the Chicago School, or perhaps it also could be perceived as a departure from what was a specific or narrow interpretation of the consumer welfare standard. So my question to you: Is there a risk at all of overenforcement? Obviously, you have been very active, and that is to be welcomed, but again is there a risk of overenforcement?
JONATHAN KANTER: I think our job as law enforcers is to enforce the law when we see violations and we believe that is supported by the facts and the law.
There is a lot of doctrinal discussion, and that is healthy and fun, and I am sure reverberating through the halls of this great conference. You talk about the Chicago School; that was a radical departure from over a hundred years of antitrust enforcement when it came into being.
I think we need to be faithful to the intent of Congress, we need to be faithful to the text of the statute and we need to be faithful to a mandate from our legislators that competition matters. Why? Because they said so. Our Congress determined in its wisdom that a competitive economy and democracy go hand in hand. So we enforce the laws as written by Congress, we enforce the law as interpreted by courts, and then we follow the facts and the law, and if we see violations and we see harm to competition, we take action. I think that is entirely appropriate.
NINETTE DODOO: That is quite a strong statement there, which we will come to later on.
Perhaps I can turn to you, Lina, in terms of the priorities that you have set for the FTC and your progress towards achieving those priorities.
LINA KHAN: Thanks. It is terrific to be here and a really fantastic honor to share the stage with my fellow enforcers.
We at the FTC recognize that there are major competition problems across the U.S. economy and we are working with tremendous urgency to use all of our tools to make sure that we are protecting the American public from illegal business practices. There are a few key pillars of this work.
First of all, we are taking care to ensure that we are fully enforcing the laws that Congress has charged us with administering, and this means taking a close look at the Federal Trade Commission Act, it means taking a close look at the Clayton Act, again to make sure that we are being faithful to Congress’s instructions and fully enforcing the law. There have been a few key parts of this already.
First is Section 5 of the FTC Act. Congress created the FTC to be a complement to the Antitrust Division, not a substitute for it, and Section 5 of the FTC Act is really the heart of the FTC’s reason for being. Section 5 prohibits unfair methods of competition, and we take those words very seriously.
One of my first priorities once I joined the agency was to make sure that we were taking care to fully enforce Section 5. Last fall we were really pleased to be able to publish a Policy Statement that lays out our interpretation of Section 5. The Policy Statement is sixteen pages. It has eighty-nine footnotes. This document reflects a very deep study of sixty-plus years of jurisprudence and doctrine that lays out how the courts have applied standalone Section 5. We had a terrific cross-agency team that went through the case law, hundreds of cases across multiple decades, and laid out what courts have said about what Section 5 means.
The Policy Statement that we laid out reflects this research, and it is pretty straightforward: “Unfair methods of competition” means you have to be able to identify a method of competition that is unfair. The unfairness prong looks at a few dimensions, including whether the practice might be coercive, exploitative, predatory, as well as whether it may have certain exclusionary impacts. We also looked at whether there was a negative effect on competitive conditions. So the Policy Statement is the key pillar of our work.
I am really thrilled that we have been able to already move forward with enforcement on standalone Section 5, including some of our non-compete work. Several of the enforcement actions that we brought have been addressing illegal uses of non-competes. There are at least two instances that we have identified in which non-competes have been illegal in our enforcement.
The first is in the context of usage by Prudential Security. This was a security guard company that was applying non-competes with security guards who made pretty much little above minimum wage. The non-compete restricted them for a hundred miles and two years after they left, and the FTC determined that this was an unfair method of competition, required that these non-competes be voided, and that the company actually affirmatively tell the employees that these non-competes were no longer in effect.
We also brought an enforcement action addressing non-competes in the glass manufacturing industry. This is an industry that is tremendously concentrated, you have three big players, and the FTC found that all three of the players had been using non-competes. Unlike the security guard instance where our complaint noted that the use of the non-compete had been coercive, in the glass industry context it was really the aggregate effect on competition that our law enforcement was intended to address. We understood that you may have entrants that want to disrupt this concentrated industry, but if these entrants, even if they are able to secure financing and build factories, see that a lot of the talent—and this is highly skilled, technical talent—is locked up by non-competes, this was having an aggregate negative effect on competition market-wide.
We were thrilled that we were able to bring these four enforcement actions laying out one application of Section 5.
We have also been reactivating Section 6(g) of the FTC Act, which gives us the authority to promulgate rules under Section 5. In January we came out with our Non-compete Rule that would prohibit non-competes across the economy.
There are a few reasons we did this. Our economists undertook significant empirical research to understand what the net effects of non-compete clauses across the economy are.
As I am sure many of you know, non-competes over the last few years have no longer just been restricted to the boardroom, applied to highly paid executives, but have now proliferated across our economy in situations covering fast-food workers, gardeners, journalists, so the use of them has dramatically expanded across our economy, and the empirical literature shows that this is having a significantly negative effect on competition. It is impeding business dynamism, it is impeding new business formation, and economists calculated that eliminating non-competes would result in $300 billion back in the pockets of workers.
We have also seen the way that non-competes applied in some of the highly skilled workers, including some executives, is in fact impeding innovation and business dynamism, as the proposed Rule lays out, because it is oftentimes these workers who are best positioned to actually spin off and start their own new business. So we determined that there were economy-wide effects and it was really for the FTC to be addressing these through our rule.
Interestingly, there is a whole set of states that have already effectively prohibited the use of non-competes, including California and North Dakota. Interestingly, we saw—well, first of all, I think it would be difficult to argue that there has been a detrimental effect on innovation in California—but we have also seen how, even in states where non-competes are banned, non-competes are still included in contracts at roughly the same rate as they are in states where they are not. So there really is the role for a national federal rule here that would ensure that we are leveling the playing field and making sure that workers are free to take their talent where they wish and that this is going to have in the aggregate really beneficial effects on competition economy-wide.
In addition to Section 5, we have also been looking closely at the Clayton Act. One of the lawsuits that we brought last year was against Syngenta and Corteva, two massive pesticide manufacturers. The FTC’s lawsuit alleged that these companies had been engaging in illegal pay-to-block schemes where they were basically engaging in conduct that had blocked out generics from the market. We were really thrilled to sign on with ten state AGs on this lawsuit.
One of the counts in the complaint included Section 3 of the Clayton Act. The Clayton Act is distinct from the Sherman Act. In some instances they cover similar or the same conduct, but the legislative history shows and the Supreme Court’s precedent has supported that the Clayton Act was really designed to stop illegal behavior in its incipiency. Lawmakers recognized that unlawful conduct and unlawful anti-competitive conduct can be extremely difficult to reverse. Oftentimes you are talking about many years or decades in some instances during which entire alternative futures have been foreclosed. This is competition that was squashed, this is innovation that was forgone, and it can be extremely difficult for us as enforcers, even if we are able to ultimately stop that conduct, to actually be able to provide relief or remedy that ever brings that innovation back, and for that reason Congress was adamant that we have to have tools that enable us to stop illegal behavior in its incipiency.
Consequently, the standards in Section 5 are distinct from the standards in the Sherman Act, so we think it is incredibly important for us as enforcers to be honoring that distinction. In our pesticides complaint we made sure to include a count under Section 3 of the Clayton Act, and that is an area we are looking to continue building out.
We have also been using our policy tools. The FTC was created not just as a law enforcer but also as a policy body. We were given market study authority. We have been using 6(b) of the FTC Act to deepen our understanding of business practices in particular markets.
Two studies that we have launched over the last year included one study looking at supply chain disruptions. As we are all very familiar, in the wake of the Covid-19 pandemic there were major supply chain disruptions. A whole set of factors contributed to that, but we were hearing from market participants that there may have been underlying market structures or potential business practices that were really exacerbating the effects of those supply chain disruptions and having a disparate impact potentially on rural areas and certain communities.
We launched a 6(b) where we basically sent out information orders to significant wholesalers, and retailers, and distributors to understand what are some of the underlying competition dynamics that may have contributed to supply disruptions and what are particular business practices that need to be on our radar.
We also launched a 6(b) looking at the business practices of pharmacy benefit managers. Pharmacy benefit managers are major middlemen in the pharmaceutical supply chain, and we heard significant feedback from patients as well as from independent pharmacists about some of the business practices of these PBMs and how these business practices may be hiking prices for consumers and patients beyond what a competitive market should be providing, as well as potentially squeezing independent pharmacies through a whole set of business practices that are really creating a detrimental impact on local communities. We have been moving forward with that 6(b) and we think it is an incredibly important part of our work.
In addition to fully activating the Clayton Act and Section 5 of the FTC Act, we have also been continuing to vigorously enforce the merger laws. Just over the last few months the Commission filed to block Microsoft’s attempted acquisition of Activision as well as Intercontinental Exchange’s attempted acquisition of Black Knight. Both of these cases have vertical dimensions, which builds on the phenomenal work the FTC staff has been doing to aggressively block not just illegal transactions that have horizontal components, but to also make sure we are putting the market on notice about how we view vertical harm. This follows on our work earlier in Nvidia/Arm and Lockheed/Aerojet. This will remain an important part of our work.
In addition to fully reactivating these authorities we are also making sure that our tools and frameworks are fit for purpose. Markets evolve, business realities evolve, and we need to make sure that as enforcers we are fully adept for the business strategies of today. There are a few projects that we have underway here.
One is our joint effort with the DOJ to revise our Merger Guidelines. A key pillar of this effort is to make sure that the Guidelines are fully reflecting commercial realities, are fully responsive to the types of business incentives and business strategies that companies today face, including in digital markets. We are excited about some of the internal progress we have made and we are excited in short order to be able to share a draft publicly.
We have also been making sure that we are fully skilled up. We have a fantastic set of lawyers, a fantastic set of economists, but many of the markets that we are investigating these days have a digital component. This is not just limited to what are considered tech markets, but as we see digitization across the economy, many of our healthcare cases, for example, may include a digital component, as well as many of our agriculture cases or retail cases. So as we see more and more digitization, we need to make sure that we as enforcers have the skills and tools to fully understand how these technologies are working.
Since I joined we have managed to double the number of technologists that we have onboard, and in the first year that I was onboard we piloted a program where technologists were embedded across the agency, embedded across investigations, and working hand-in-hand with our lawyers and economists to craft CIDs, to be contemplating what effective relief would look like.
Just last month we were able to officially launch a new Office of Technology, which I am tremendously excited about, and there is an enormous interest in joining. Just in a few days of having the posting up we got 300 applications from technologists, and so we are well underway to bringing more folks onboard.
We also have been using our market study authorities to make sure we are understanding how some of these newer markets are functioning.
Just a few weeks ago we launched an RFI that is looking at cloud computing, looking at both competition issues in cloud computing as well as some of the data security issues. It is no secret that cloud computing is primarily dominated by a relatively small number of companies, and we want to make sure that we are fully understanding what is contributing to that, whether that is contributing to business practices that might be exacerbating potential competition implications, and also what the potential resiliency effects are here.
We have all seen how when you are concentrating production you can also be concentrating risk such that a single point of disruption can have cascading effects and lead the entire system to seize up. As we have more economic activity reliant on cloud computing we need to make sure that we are being very vigilant about what some of the systemic implications of that could be. So this cloud computing RFI is going to be critical for building out deeper understanding there.
We are also vigorously enforcing the law including in nascent markets. Last year the FTC filed a lawsuit seeking to block Meta’s acquisition of Within. Unfortunately, earlier this year we did not win the preliminary injunction, but the opinion set out a roadmap for the FTC to be continuing to build its work in this area.
The judge reaffirmed that potential competition is alive and well and that potential competition can apply in newer and nascent markets. The opinion is rife with explanations from the judge that really went the FTC’s way, including on market definition, including on affirming that it is entirely appropriate for the FTC to be using the practical indicia under Brown Shoe to be defining a relevant market, that we do not always have to be using qualitative as well as quantitative methods, and that in many instances qualitative methods may be best suited to actually explain what the state of competition is. The judge also adopted a reasonable probability standard for what governs under potential competition, which is a lower standard than what some other circuits have adopted.
So we saw this case as an important programmatic win that really lays out a path forward for us to be continuing to vigorously enforce not just in standard Industrial Age markets, but also in digital markets that provide so much opportunity for disruption and innovation, and we think it is critical that we as enforcers are safeguarding the potential for innovation.
NINETTE DODOO: Thank you very much.
I just wanted to pick up on your point about market studies. You said the focus has been very much on digital markets, and other studies you have done are well rehearsed in the media and so forth.
Are there particular other sectors that are of interest that you can foresee becoming priorities for market studies? And in answering the question perhaps you could also explain the underlying factors, the structures that you mentioned are informing whether or not you decide to conduct and launch a particular market study in a particular sector.
LINA KHAN: It’s a good question. I view our policy function and market studies function as a complement to our enforcement function. These really go hand-in-hand and historically have for the FTC.
If you go back and look at some of the major market studies that the FTC did, it included a major study of the meatpackers back in 1920, it included a major study of the public utility companies back in the 1930s, and both of these studies ultimately led to either major enforcement actions or actually legislative action. In the case of the public utilities, the FTC study led to the Public Utility Company Holding Act, which effectively broke up and restructured the entire industry.
We recognize that these studies can play an incredibly important role informing us as enforcers but also informing more broadly the public and policymakers who, if we don’t have the tools to address the problem, may be better suited to do so.
There are a few factors that go into how we decide whether to pursue a market study, one of which is: What are we hearing from the public?
One of the things that I am most proud of doing at the FTC since I have been there is starting open Commission meetings. These are Commission meetings where we are going through various agenda items that the Commission is voting on, but we also have a portion of the Commission meeting where anybody from the public can sign up and come speak to us.
Every time we have people sign up and come talk to us about a full variety of issues, be it hearing from franchisees about problems that they are facing with their franchisor; hearing from families about how their kids have had to ration insulin; we have heard from people about problems that they are facing in the retail markets; independent grocers; independent pharmacists. We have heard from farmers about problems that they are facing with right to repair where they haven’t been able to repair their equipment, and in farming, where time is of the essence, this has led to massive economic devastation in some cases.
It is really partly what we are hearing from the public about where the problems are in the economy that we are identifying: Do we have enough of an understanding about what is going on here?
The other thing we look at is: What is the potential impact? It is no secret that there are many ways in which the current healthcare system is not working well for patients, and so we are looking closely at: What are the different components of that in our wheelhouse that we could be making sure to be moving forward, because in healthcare more than anywhere else, the effects of the lack of competition can really be life or death in some instances, and so we take that very seriously.
NINETTE DODOO: That is helpful. Thank you very much.
Margrethe, last but not least, I would be interested to hear your thoughts around the priories that you have set and perhaps a critical assessment from your perspective as to your progress towards achieving those objectives that you have set.
MARGRETHE VESTAGER: First and foremost, I never thought I would say this, but oh my God I’m glad to be back in a room without windows with hundreds of lawyers! [Laughter]
I am very, very proud to be part of this law-enforcing community because competition has never been more important. In these times when we discuss resilience and geopolitics, to have competitive, contestable markets where you can find a new supplier if you lose the one you have, you can find a new customer if you lose the one you have, and you have the drive from competition to innovate, competition is absolutely crucial. I am very honored and proud listening to colleagues talk about all the work being done to secure that citizens in their role as consumers have the benefit of competitive markets.
We have been busy as well. If you look at our merger work, since we saw each other the last time we have had sixteen interventions in merger cases, ten conditional clearances in Phase 1, two conditional clearances in Phase 2, two prohibition decisions, and four deals that were abandoned; so I think effectively six prohibitions.
I think the one that has attracted the most attention is the Illumina/GRAIL case, both for the question of jurisdiction, because here the Illumina/GRAIL case does not meet our thresholds, it is not notifiable in any Member State, so it was on the basis of Article 22 that we assessed this case. The question of jurisdiction was appealed, and we were of course very happy that the General Court sided with us to say, “Yes, you do have jurisdiction both in general but also in this case.” That of course is under appeal before the European Court of Justice.
Also on substance I think it is an interesting case because it is the first purely vertical case that we have blocked on the basis of an innovation theory of harm. Illumina is the only credible supplier if you want to develop and test early-detection cancer tests, which is what GRAIL is doing. If Illumina is the only one to do that effectively, of course there is a really high risk that GRAIL’s competitors would not be able to have access to the technology necessary to develop and to test their early-detection cancer tests. We saw that here there was a risk of a loss of competition in innovation and for those reasons we blocked the deal. That is now of course also in front of the Courts. And we are preparing the gun-jumping case as well, so it is a multifaceted animal that we are dealing with here.
This will probably not be the last case that we will assess, even though it does not meet the thresholds and is not notifiable in a Member State, because with the implementation of the Digital Markets Act we will have much more information about acquisitions where a larger company is buying a smaller company. Companies designated as gatekeepers will have to tell us, “We are now acquiring this smaller company,” and we will assess this to see if there would be a loss of competition if that acquisition goes through.
A second thing that has given us direction this year is the judgment in the Google Android case. We were happy with the judgment of the General Court because I think it is a very important signal when it comes to tying practices. Google tried to protect its monopoly in search when we all went mobile by tying practices, preinstallation, anti-fragmentation clauses, to make sure there was basically no space for anyone else. We find this judgment to be very helpful in the direction that we are heading to.
Third, we have finalized our Amazon case with a settlement. This is a case where there are two sides, the Amazon Marketplace and Amazon Retail, with Amazon Retail having access to highly rich nonpublic data from all the many retailers that give it a huge competitive advantage. You also see that since Amazon Retail holds a majority of the products they take the lion’s share of the turnover. Here we agreed to a data silo commitment so that the data of the small retailers will not anymore be available for Amazon Retail.
The second thing we took was a commitment on access to Prime. Prime customers, who are returning customers, the highest-spending customers, are really important to get access to. Here the question was whether or not to use Amazon Fulfillment to allow retailers to choose themselves who should deliver their goods to their customers; and, last but not least, a second buy box will appear so that you have two different promoted products to choose from. We pushed forward this case.
Some will say, “Oh, but listen, part of this will be solved once the Digital Markets Act starts to affect this market.” But the thing is that we could change this market behavior now. As someone just told me, “Listen, one year in a digital market is like four years in the normal business cycle,” so every month that we gain in order to make sure that the market is contestable, that you have your own data, that you can make your business, will serve the consumer very, very well.
This is also reflected in the new Statement of Objections that we sent in the Apple App Store case, where we focus on anti-steering and the direct consumer impact in that case. It is a high-priority case for us. Now we are waiting for Apple’s responses to it.
And of course we have the Meta/Facebook case, where Facebook ties its social media to its Marketplace and combines them with unfair trading practices, which again is closing the market.
That will lead me to say just a few words about our policy priorities.
The main one is implementing the Digital Markets Act. Of course the Digital Markets Act is not a competition tool; it is a tool that will make the market open and contestable again. This is very important for us.
It was not easy to pass new legislation in Parliament and Council, but what you change by changing legislation is perception. What you change when you start implementing and enforcing is behavior. Picking up on what Lina just said about looking at legislation and how it is being used, that is still fresh, that is still out there, that is still useful in order to change behavior, and that of course is our focus.
We have very tight deadlines—first, to get the notification from potential gatekeepers, then to designate them, in order to have compliance early spring next year—and that is absolutely high priority because we need that change of behavior in the marketplace in order to get the benefits from competition to serve the consumer.
We have another new tool, which is the Foreign Subsidies Regulation. Again, we want to protect those who do business in the single market without subsidies on their books from foreign governments, in particular from non-market economies, so we are beefing up on that as well.
And then we have made a call for evidence in our Guidelines on Article 102 cases. It will take some time to get there, so we have also made a Communication to change our Guidance Paper from 2008 in order to reflect what have been the case practices.
All of this is just to say that we keep ourselves busy, but we do that whilst at the same time making our international cooperation a priority. We have different laws, we have different markets, we have different legal barriers to pass, but we are on the same mission: to make sure that we serve the citizens well in their role as consumers.
It is really important for us that we work well, that the teams have the time and priority to speak with one another, to share insights. I am very happy that we had the technology competition policy dialogue here yesterday because when we need the markets to serve us, we also need enforcers to work together, and this is why it is such a pleasure to be here.
NINETTE DODOO: Thank you very much, Margrethe.
At a recent conference I think you said—I am paraphrasing—that there are three challenges facing the world at large essentially: the geopolitical, the digital, and ESG (environmental, social, and governance). Perhaps we will touch on ESG later on, but it seems to me that the Digital Markets Act that you mentioned perhaps fits under the box of overseeing digital and maybe the foreign subsidies tool you mentioned also fits under the geopolitical tool.
You also mentioned you have been very busy. A question from my perspective is: Are there sufficient resources? Is the Commission fully prepared to be undertaking these quite radical changes and shifts in approach and in policy?
MARGRETHE VESTAGER: I only see them as “radical” in the original meaning of the word, which is going to the root causes of these problems. If you take the Digital Markets Act, the root cause of the problems we have is that the market is not contestable anymore, is not open.
Gwendolyn and Sarah took us through numerous cases, case after case after case. I admire what you say because as part of my speaking line I say, “I have not one, I have not two, I have three Google cases.” And then we have some like the ones Gwendolyn has filed with the states, and what you are doing here I think is also pushing the right way. So I don’t think that it is radical. I think it is completely in line with the mission that we have.
We will never have enough resources, never ever. Listen, you are literally on the dark side today—we can hardly see you [Laughter]—so the more who want to join, of course the better. But no matter the resources that we have, we have an obligation to use them in the best possible way.
I think what also was said previously is that we need to complement different approaches. We are now establishing the Office of the Chief Technology Officer to have more of those competences onboard. When we enforce the Digital Markets Act we can make common investigative teams with the national competition authorities who are also powering up with other competences. I think that is the trick for us to be as efficient as possible with the resources that we have.
The last thing is—they say it takes a village to raise a child—it takes a community to secure compliance, so we are talking with everyone and his sister to make sure that they will watch out for compliance with the Digital Markets Act—data protection agencies, consumer protection agencies, NGOs, business associations, unions—in order to make sure that we can use our enforcer resources in the best possible way.
THOMAS ZYCH: My takeaway right now is going to be that I think for the first time someone said I am sitting on the side of light as opposed to the dark side, so I feel good about that.
Let me pick up, if I can, on a word you used, Jonathan, and a concept you mentioned, Lina. It is going to sound very U.S.-federal-centric, but I would like to get everyone’s view.
You talked early on about deterrence, and one of the examples was abandoned transactions as opposed to litigated enforcement actions. In a sense, if I can oversimplify, at the retail level there is action and reaction.
Lina, you mentioned guidelines, or guidance more broadly, so I will start with you, but others may want to weigh in. Among the items in the toolbox that we look at in terms of advising businesses and helping them understand what they ought to be doing are agency guidelines and guidance. Your testimonial and endorsement guidelines are always at one’s fingertips because they are helpful. The Green Guides are quite helpful as well.
I thought comparatively I would like to get your view, and then maybe others’ as well, on the value of publishing guidelines and guidance to businesses so they can proactively say, “Here’s how we are going to operate ourselves, here is how we are going to make judgments about what we do, and know where the lines are to keep our toes on the right side.” Have you found those efficacious? Have you found those something in your toolbox where it is useful to maintain those and potentially increase their use?
LINA KHAN: The Federal Trade Commission has a long history of publishing guidelines and guidance on the competition side but especially on the consumer protection side. One initiative we have underway in a whole host of areas is to be revisiting some of those guidelines and updating the guidance where it is needed, including the Green Guides specifically.
In addition to the guidance documents, the FTC has also been making policy statements. The Commission since I joined has voted out several policy statements that articulate how a particular set of laws may apply in a particular context. In some instances they may highlight a particular legal provision that perhaps previously had been underappreciated.
One example of the latter is we published a Policy Statement noting that the Children’s Online Privacy Protection Act actually prohibits firms from conditioning access to certain services on endless collection of data. Oftentimes COPPA is thought of as kind of a notice-and-consent regime where you just check the box, but there are actually upon closer inspection substantive limitations on when firms can be collecting data. That was one thing that we thought the market should be on notice.
One thing that we are doing across our digital privacy work is making sure that we are fully enforcing the law including in areas where there are substantive protections, because I think we have all lived the reality of how in many cases you are forced to just kind of check the box and not really be expressing consent in the way that you think about what that word should be meaning. So we have been taking a closer look in particular at the privacy side.
We also issued a Policy Statement looking at some of the rebate practices that we have been hearing about between PBMs and drug manufacturers. As I mentioned, this is an area where we have received a lot of public input both at our open Commission meetings as well as some of the public dockets that we have opened. We set out in the Policy Statement a few ways that some of our existing legal authorities might apply to some of these practices. One provision that we highlighted included Section 2(c) of the Robinson-Patman Act, which prohibits commercial bribery and illegal kickbacks.
The policy statement tool has been one that we have also been activating to make sure that where needed we are putting the market on notice about how the law applies in a particular context or it gives them renewed appreciation for certain legal provisions that may not have been recently enforced.
THOMAS ZYCH: Any others? In other jurisdictions it may be less obvious, but how do you view the use of business guidance to industry in addition to individual enforcement actions.
MARGRETHE VESTAGER: Maybe not in individual enforcement actions, but we have had a very long discussion about sustainability and competition law enforcement. Here I think it is important that we give guidance.
On the one hand, we would like businesses to come to us if they have something that they think, Would this work; can we do something? Here I think it is important to give the guidance that we want to see cooperation that can enable sustainability, but we do not want the in-market consumers to be left completely without the benefits of that.
I think the discussion that we have had among competition law enforcers in Europe has been very helpful, first and foremost for ourselves to be clear in our head, but hopefully also to the business community to say, “There are things that we can do working together where they will not see collusion left, right, and center.” We are in a situation where it is really, really important that everyone who has just the slightest contribution to fight climate change gets onboard for that mission.
SARAH CARDELL: Very similar in the United Kingdom to both the EU and U.S. positions, we use guidance quite extensively I think for two reasons: one is to encourage the good behaviors that we want to see; and also to provide clarity about the way that we work.
Very similar to the European Commission, we have recently issued draft guidance on sustainability, again for exactly the same reasons. We have gone a bit further than in our usual practice in, exactly as Margrethe said, having a really open door here. We hear a lot of claims from businesses that competition law has a chilling effect on sustainability initiatives, so we want businesses to come to us and talk to us, give us those examples, and we will talk that through.
There is also reality. A number of us have talked about being resource constrained. We need to use guidance and we need to use advocacy as complements to effective enforcement so that we can really focus in on the areas where we need to take direct enforcement action. We see that quite a lot. Similar to the FTC, we see that both on the competition and on the consumer side.
To give an example on the consumer side, we put out a lot of guidance in the environmental space on misleading green claims and what you should expect good business practice to be when giving green credentials on products and services. We very much then followed that up with a very clear program of enforcement action where that guidance was not being followed to take action against specific companies. I think that worked in a very complementary way.
NINETTE DODOO: If I may, I would like to pick you up on the question of the sustainability guidelines that you recently published for public comment. I think one of the points that the consultation paper makes is that this is to ensure that businesses are not unnecessarily or mistakenly deterred from lawfully cooperating or collaborating to promote sustainability.
The European Commission has also published some draft guidelines for public comment. Japan has also done the same. There is talk of other jurisdictions doing the same. But I think amongst all the guidelines published there is a sense that it is really the Dutch competition authority that is sort of out there when it comes to assessing consumer benefits, when it comes to assessing whether there should or shouldn’t be full compensation.
We also talked briefly about international cooperation. To what extent is there the possibility to see greater convergence in terms of how one assesses consumer benefits? Granted this is perhaps more a debate in Europe, but I would be interested in the views from the United States as well.
How can we ensure that you are trying to give businesses a sense of direction so they can be assured that whatever works for the United Kingdom might also work in other parts of the European Union, certainly post-Brexit?
SARAH CARDELL: Maybe just a few thoughts from me and I am sure others will have comments.
I think there is quite a bit of parallel here when you look at the approach on environmental sustainability and when you look at the approach on digital markets.
In both cases the fundamental underlying issue that we are seeking to tackle is one that is of huge societal importance. One is about climate change and achieving Net Zero. The other is about ensuring that digital markets work in a positive way for society and are not dominated by companies that can distort the way that competition is working effectively. So I think there is an absolute commonality of objectives and recognition of the underlying concerns.
And then there is a process of working through jurisdiction by jurisdiction the best way to devise a toolkit and utilize a toolkit to address those issues. In some cases there will be entire alignment and in other cases there will be a degree of difference in approach, a degree of experimentation and learning.
I have no problem at all with saying as an agency, “We want to learn from other experiences across jurisdictions.” I think it is absolutely essential that we work in that way.
When I look at the approach that we have taken in relation to our guidance on environmental sustainability, we looked very closely at what the Dutch have done, we have looked obviously at the ongoing process for the European Union, and we thought very carefully about where we should strike the right balance in terms of looking in particular at this issue, which I think is more of a European one in terms of the analytical framework, but looking at how you trade off the potential harms from a restriction of competition against the wider benefits that may be derived in that case in terms of improving environmental sustainability.
The approach that we decided to take in the United Kingdom is specifically in relation to climate change agreements because of the enormity of that challenge that faces us. Because of the quite specific legislative commitments that the UK government has entered into, we felt that it was important to look at the broader benefit that could be derived from agreements that are legitimately entered into to seek to achieve Net Zero obligations.
But I don’t think there is a fundamental difference of approach there. We will learn from the cases that we take. One of the things that we said in the guidance is we want to be able to publish the case studies where we have people coming in so that we can share that learning not only for ourselves but for the wider community.
NINETTE DODOO: I think at a Senate hearing, Lina, last year you made it very clear there are no exemptions, there are no carve-outs, special rules as it were, for sustainability agreements. Do you anticipate that the FTC might at some point publish guidelines, or what sort of guidance in the absence of guidelines would you give companies in the United States or elsewhere seeking to promote sustainability through sustainability agreements? I would love to hear your thought as well, Jonathan, afterwards.
LINA KHAN: At the FTC we look squarely at our mandate, which Congress has said is “to prohibit unfair methods of competition and unfair or deceptive acts or practices,” so we look at all of these practices through that prism.
I should also say we recognize that the FTC’s tools are not going to be appropriate to solve all sorts of problems that other policymakers may want to fix; so we are very mindful of everything that our tools can do but also, critically, their limits.
One thing that we have shared publicly is instances in which firms come to us and say: “Hey, we are seeking to propose this merger. We understand it may raise traditional competition concerns and may be unlawful under the competition laws, but it has these certain sustainability benefits, it is going to permit us to engage in all sorts of ESG commitments.”
Those are instances where we have had to establish very clearly that we look at these deals through a competition prism and any types of ESG commitments or other types of sustainability commitments are really not key to our inquiry. We thought it was important to put the market on notice about that.
Of course, if some of our traditional tools around unfairness or deception apply, we will be using those. If firms are making untruthful claims about the sustainability of their products, if they are overhyping sustainability, that is work that we do. We have been focused on some of our “Made in USA” enforcement that I think also sets a nice baseline for what some of that work could look like.
GWENDOLYN COOLEY: I just want to add the states have such varying views on this issue I can’t not say something.
First of all, as a law enforcer, I am always skeptical of folks who need to collude in order to do something good. I wouldn’t come to me with that one certainly.
On ESG the AGs have really had very divergent views, and I will try to articulate both sides to the best of my ability. There is a group who think essentially that consideration of ESG factors does a disservice to especially state pensions. If you think about you are investing in oil and the price of gas goes up, then theoretically there is going to be a better return for those folks who are invested in those non-ESG funds. Some states have taken on, for example, Blackrock and others with their concerns about that.
Conversely, a different group of AGs have said that ESG has the potential to get us to the next stage, it is important to have those considerations, and they argue that if you do not consider ESG then you will do a disservice to shareholders because, if you look recently, when the banks collapsed those ESG funds did better than the average funds.
The great thing about being me is those are both the sides and I don’t have to take a position.
NINETTE DODOO: Jonathan, did you want to comment?
JONATHAN KANTER: It’s a fascinating discussion.
NINETTE DODOO: Thank you.
THOMAS ZYCH: Switching a bit in the time we have left, we have a couple of topics. In addition to choosing which cases to litigate and providing agency guidance, the ability to obtain remedies is critical to all the work that you do, and the challenges are obviously vastly different given the structures under which you are working, so this will be more of a question.
I know in light of what the Supreme Court has done with a long-beloved statute, Section 13(b), in a wish list sense, in looking out and scoping how to achieve in a meaningful way the goals you have laid out, what would you like to see in terms of remedial powers, remedial abilities, that would help make real the enforcement actions and the policies you have? What would you advise and ask for to augment whatever remedial powers you may have currently?
JONATHAN KANTER: To start, I guess I have a very pragmatic approach here, which is I truly believe it is the job of our Congress to write the laws and it is our job at the Antitrust Division and the Department of Justice to enforce them. So I really think about what are the tools that Congress has provided and how can we use them to the greatest effect possible consistent with the laws as set forth by Congress.
When it comes to antitrust, there is a wide range of remedies depending on the type of violation. Obviously, in the most extreme sense in a criminal antitrust case prison time is a suitable remedy in many instances as well as fines. In a civil monopolization case it can be everything from a behavioral remedy to address anticompetitive conduct to structural remedies and breakup.
And then obviously in the merger context it is complex, but restoration of competition and making sure that issues concerning an illegal merger are adequately addressed. One area we have become more attuned to in recent years is that some trends in merger remedies have resulted in perhaps goalposts moving out and risk of failure being borne on the shoulders of the American public. For example, if you have a merger remedy and the year after the firm goes out of business, goes bankrupt, decides to change business strategy, in many instances you are left with a monopoly and there is nothing you can do about it.
And so we have to be very careful to make sure that when we are enforcing an incipiency statute that we are enforcing it appropriately. We just want to make sure that if there are remedies, they are adequate. That is our concern. That is our mission.
We provide technical assistance to Congress, sometimes we will weigh in on legislation with an official letter, but more often than not our mission and my focus is to keep our head down, review the laws that Congress has written for us, and figure out how we are going to enforce them.
THOMAS ZYCH: Lina?
LINA KHAN: At the Federal Trade Commission we suffered a setback in the AMG decision, which had been our main tool of getting restitution or monetary equitable relief in antitrust cases. The Commission has told Congress that this is a tool we need back. Basically overnight after AMG came down, billions of dollars were on the table that would have been back in the pockets of consumers, including in pharma cases, evaporated. This is a really important tool that has now been defanged.
We have been thinking hard about: What does it mean to fully be able to effectuate a remedy when you have illegal anticompetitive conduct? The goals of a remedy are to prevent the illegal conduct, to cure the underlying harm that resulted from the illegal conduct, and to prevent a recurrence. We look at remedies through that prism.
In the merger context, we have also been taking a very close look, making sure that we are learning from the experience of the last decade, instances where particular remedies failed and the effects of those were borne by the American public, and making sure that we are placing a high bar to make sure that if we are going to be accepting a remedy that it is fully achieving the underlying goals and restoring the competition that would have occurred absent the acquisition. That is really what we are doing in the merger context.
In the consumer protection context, where the FTC had also heavily relied on 13(b) of the FTC Act, we have been reactivating other provisions of the FTC Act. This includes Section 19 of the FTC Act, which enables us after we have pursued a cease-and-desist order to go to court and get back money for consumers. We have been able to do that in several instances.
We have also activated our Notice of Penalty Offenses authority. Section 5(1)(m)(B) of the FTC Act basically establishes that in ordinary course there are no civil penalties that apply to first-time offenders. That said, if the FTC has condemned a particular business practice through a cease-and-desist order, it can then put companies on notice; and if companies then knowingly engage in a business practice that they know that the FTC has condemned, civil penalties can actually be activated.
We have been sending out these Notice of Penalty Offenses to put companies on notice, in particular around practices relating to false earnings claims. There has been a lot of fraud in the for-profit education sector where companies have overstated the opportunities that students would have. We have applied them in the context of false earnings claims, including gig companies that potentially may be overstating what drivers can be earning.
Those are all tools that we are using, but 13(g) no doubt was a big loss for the agency and one that we are hoping Congress will give back.
MARGRETHE VESTAGER: I think it is very good to have a discussion about remedies. I can fully echo what both Lina and Jon just said. We can only accept the remedy that is necessary in order to fix the concerns, so we don’t have a policing of remedies one over the other, but of course it must be something that we can actually see, that is viable, that is sufficiently simple, very often structural, so that the loss of competition in a merger actually can come back. It is not easy, which is why we have fix-it-first, standalone—we don’t very much like mix-and-match.
And of course we are very, very happy and thankful for the feedback from market participants when we market test, first when we do the market investigation, eventually if we do a market test, but even in the best of cases of results of market tests we do not shy away from our responsibility to assess whether a remedy will work or not. But of course if we have a very positive market test, then our arguments will have to be so much better if we do not accept it.
I think it is a crucial debate to have. I think in many recent mergers we have taken structural or quasi-structural remedies.
But we need also to discuss what is a remedy in a digitalized world; what does it look like if data is the thing in question? I said we have taken in the Amazon case a data remedy to have a data silo so that Amazon Retail does not anymore have access to other people’s data. Is that a behavioral remedy or a structural remedy? I think it is worth discussing and keep following what it is that we actually have ahead of us.
A different issue, because I think we are approaching the end of this, if anyone has wondered what is this wonderful red star balloon that I have behind me is about—first of all, I think there ought to be balloons at any ABA meeting. It is a great thing.
Obviously, it is there, first and foremost, to celebrate the wonderful team that has set all this up because it doesn’t come from nothing and it is really great that we can be here.
The second thing is that the color red signifies the need for more female leadership in law firms. [Applause] The legal community is so much more diverse than it was ten years ago, but if you look at the level of partners, oh my God you have a way to go. So red is to remind everyone to get it on.
THOMAS ZYCH: Margrethe, I will specifically take that message back to my managing partner Debbie Read, which will help her say that there is international support for everything we are trying to do.
MARGRETHE VESTAGER: Thank you, Tom. Good. You are on the bright side.
THOMAS ZYCH: Every now and then. Thank you.
LINA KHAN: Just quickly on the question of remedies, I would be remiss if I didn’t note that this is where the FTC’s partnership with the states is especially critical, because even though we are not able to get money back for consumers, the states can in many instances, and so some of those partnerships have been key.
We have also been pursuing industry bans where necessary, and we are really thrilled to get a court order that bans Martin Shkreli from the pharma industry. We are thinking about injunctive relief especially also when countering recidivists.
GWENDOLYN COOLEY: Yes. And I will just add in addition to our fabulous work with the FTC we have state disgorgement still available for us in many states and we have state civil penalties.
We also have criminal authority. This week in fact we formed a Criminal Enforcement Committee to help states work through those issues, and we will be working with your Procurement Collusion Strike Force to make sure that all that money that has gone out to the states to build those road contracts is actually spent properly and we don’t waste that 20 percent overage.
JONATHAN KANTER: Thank you for mentioning our Procurement Collusion Strike Force because it didn’t come up in my opening remarks, but it is in many respects a leading light and a gem of the Antitrust Division. With so much money being spent on infrastructure, so much money on government procurement, our Procurement Collusion Strike Force has been an innovative and extremely effective tool and we are really excited to work with the states.
I also would be remiss if I didn’t mention that the relationship with the state AGs is so critical, and I think in front of this group it is really absolutely essential for you all to hear we are co-equals. State enforcement actually predates federal antitrust enforcement, and there are many states that have anti-monopoly principles built in as fundamental rights in state constitutions.
So when I think about state enforcement, to me it represents how the concept of antitrust, how the concept of anti-monopoly, is so fundamental to our existence as a country and to our democratic ideals and federalism. In so many ways state enforcement and our work with our state enforcement partners is really a representation of that ideal and the importance to our country, our democracy, and our core values.
GWENDOLYN COOLEY: Thank you. I will say we really enjoyed the Enforcement Summit earlier this week where we got to work with our international counterparts. We don’t often get a chance to do it. Through our International Task Force subcommittee of our Legislative Committee we are, through our recent Rising Star Award winner Beatriz Marquez, monitoring what the CMA and the European Commission are doing and trying to get as many lessons from you as we can. There are abuse-of-dominance provisions in two states right now, again borrowing from the work that the European Commission has done.
We are all working well together, aren’t we?
THOMAS ZYCH: As always, we are left with so much more that we could continue, which means when we reconvene next year—and we will reconvene next year—there will be a lot more progress to talk about.
Before we finish, there is one official piece of Section business, but before we do that I want to thank our speakers for being here, for taking the time, for traveling to be with us.
The last piece of business is to close the 71st Annual Spring Meeting of the Antitrust Law Section by announcing that later today the report of the Nominating Committee will be online, so you will all see decisions made about the future leadership of this Section.
Officially the last act is to thank everyone who has come together. This is a great conference simply because we are all together, so many of us, and there will be even more next year. Thank you all. Safe travels to those who travel. Thank you for coming together.
We will see you next year, if not before.
