By Jeffrey May, J.D.
Delrahim reiterates view that "antitrust is not a panacea for every policy challenge presented by the digital market."
Makan Delrahim, Assistant Attorney General in charge of the Department of Justice Antitrust Division, provided attendees of the Antitrust New Frontiers Conference in Tel Aviv, Israel, today with a list of anticompetitive conduct and types of transactions in digital markets that could trigger closer scrutiny by the Antitrust Division in some circumstances. In remarks, entitled "‘…And Justice for All’: Antitrust Enforcement and Digital Gatekeepers," Delrahim pointed to monopolization and price fixing, as well as certain acquisitions of nascent competitors as examples of conduct that would raise the Antitrust Division’s suspicions.
Delrahim noted that certain acquisitions of new companies can be procompetitive. However, in certain instances these acquisitions may harm competition in a digital market, "if the purpose and effect of an acquisition is to block potential competitors, protect a monopoly, or otherwise harm competition by reducing consumer choice, increasing prices, diminishing or slowing innovation, or reducing quality."
The antitrust chief discussed the government’s early cases against Standard Oil and AT&T over these companies’ acquisitions of rivals. The federal antitrust enforcement agencies have been called out by some critics for their decisions not to block tech companies from acquiring small firms that potentially posed a competitive threat to their dominance.
More generally, Delrahim told attendees that the antitrust laws were not the best tool for addressing the potentially negative impact of the growth of digital technologies on the broader economy. The antitrust laws should be focused on whether a defined market is competitive. But Delrahim warned: "Where there are credible concerns that a transaction or business practice is anticompetitive, timely and effective antitrust enforcement is imperative."
"The Antitrust Division will not shrink from the critical work of investigating and challenging anticompetitive conduct and transactions where justified," Delrahim said in closing. However, he reminded listeners that "antitrust is not a panacea for every policy challenge presented by the digital market."
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