FTC pushes antitrust enforcement power heading into 2023


Federal regulators will continue to go after big tech companies on antitrust grounds in 2023 — and experts say some trends and lawsuits could change the course of antitrust law interpretation in the U.S.

Since 2020, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) have filed multiple lawsuits against major tech companies, alleging that they have relied on anti-competitive methods to maintain monopolies over social media platforms, search engines, advertising and app stores. The European Union has pursued antitrust cases against big tech as well.

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Along with filing antitrust lawsuits, the FTC and DOJ began to revise merger guidelines, which the agencies use to challenge anti-competitive mergers. The FTC also began to explore new data privacy rules and expand enforcement power to strengthen the agency’s antitrust law enforcement abilities — strategies that Colin Kass, a partner in international law firm Proskauer Rose LLP’s antitrust group, will be watching develop in 2023.

The agencies have started laying the foundations for a more interventionist stance over the last two years, and this year is when we’ll start to see some of those efforts come to fruition — or be stopped in their tracks by the courts.
Colin KassPartner, Proskauer Rose LLP

“The agencies have started laying the foundations for a more interventionist stance over the last two years, and this year is when we’ll start to see some of those efforts come to fruition — or be stopped in their tracks by the courts,” Kass said.

Antitrust trends to watch in 2023

The FTC will push the boundaries of its enforcement ability and the legal grounds the agency has to bring antitrust cases to court, Kass said.

To begin expanding its antitrust enforcement power, the FTC in 2021 rescinded a 2015 Statement of Enforcement Principles under Section 5 of the Federal Trade Commission Act, which limited the scope of the FTC’s antitrust inquiries to existing antitrust law known as the Sherman and Clayton Acts.

In November 2022, the FTC issued a policy statement that Section 5 “reaches beyond the Sherman and Clayton Acts to encompass various types of unfair conduct that tend to negatively affect competitive conditions.”

“They’ve attempted what could be viewed as a power grab to use Section 5 to dictate new rules of competition that either may not be authorized or may actually be contrary to the traditional antitrust laws,” Kass said.

He said the FTC will have to bring an antitrust case on those grounds to prove its claims of additional enforcement powers under Section 5.

Indeed, the leadership of the regulatory agencies, including FTC chair Lina Khan, believes that the antitrust laws have been underenforced, according to Logan Breed, a partner at Hogan Lovells, a law firm based in Washington, D.C. The agencies want to change that and be “more aggressive across the board in any way that they can,” including with the Section 5 policy statement, he said.

“This policy statement exists in a vacuum,” Breed said. “There is no real clarity on what it means, and we’re just going to have to wait and see what the FTC decides to do — how it decides to bring cases based on this new guidance. And that’s likely going to happen in 2023.”

2023 major antitrust cases

Some of the biggest existing antitrust cases to watch heading into 2023 include the following:

FTC v. Facebook

The FTC alleges that Meta — formerly Facebook — has relied on anti-competitive conduct to maintain its monopoly over social media platforms. The FTC originally sued Meta in December 2020, alleging that the company bought off competition including WhatsApp and Instagram. However, the FTC’s antitrust lawsuit was dismissed in 2021 due to lack of evidence. The FTC refiled its lawsuit following the dismissal and was allowed to proceed in January 2022.

FTC v. Meta/Within

The FTC is attempting to block Meta’s acquisition of virtual reality (VR) company Within. In a lawsuit filed in August, the FTC alleges that the acquisition would stifle competition. Instead of Meta building a VR app on its own — an action that would increase competition — the FTC argues that Meta’s attempt to purchase another VR developer would dampen “future innovation and competitive rivalry.”

FTC v. Microsoft

The FTC sued Microsoft in December to block its acquisition of video game developer Activision Blizzard, which owns gaming franchises such as Call of Duty. The FTC alleges that the $69 billion deal, which would be Microsoft’s largest acquisition in the video game industry, “would enable Microsoft to suppress competitors to its Xbox gaming consoles and its rapidly growing subscription content and cloud-gaming business.”

Epic Games v. Apple

Epic Games, owner of the popular video game Fortnite, sued Apple for its app store practices in 2020. Epic argued that the exorbitant commission fees and a requirement to use Apple’s in-app payment method rather than alternative payments cultivated an anti-competitive environment. While Judge Yvonne Gonzalez Rogers initially ruled that Apple’s conduct was not anti-competitive, Epic appealed the decision.

U.S. v. Google

The U.S. Department of Justice sued Google in 2020, alleging that it maintained a monopoly over the markets for online search services and search advertising through anti-competitive practices. The case will go to trial in September 2023.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget Editorial, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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FTC pushes antitrust enforcement power heading into 2023

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