Antitrust Law Daily Antitrust chief responds to House report on proposed antitrust overhaul
Thursday, October 8, 2020

Antitrust chief responds to House report on proposed antitrust overhaul

By Jeffrey May, J.D.

In remarks at Fordham Competition Law Institute, Makan Delrahim commended the House antitrust subcommittee for its effort but pointed to issues not raised in the recent report. He also stressed the need to champion policies that incentivize innovators.

Makan Delrahim, Assistant Attorney General in charge of the Department of Justice Antitrust Division, addressed the virtual Fordham Competition Law Institute conference today. Delrahim was given an opportunity to offer his thoughts on the recently-released House antitrust subcommittee staff report, entitled Investigation of Competition in Digital Markets . The report examines competition issued raised by online platforms Facebook, Google, Amazon, and Apple, and raises proposals for handling the antitrust issues and "reviving" antitrust enforcement. Delrahim’s remarks come as the Antitrust Division is reportedly readying an antitrust action against Google.

Delrahim congratulated the committee on the tremendous amount of work that was put into the report. He noted that the Antitrust Division had provided technical assistance to the subcommittee. He also agreed with the report’s call for more resources for antitrust enforcement. Delrahim, who is known for saying "Big is not bad. Big behaving badly is bad," did not specifically discuss the report’s findings. He did note that the agencies are paying more attention to Sherman Act, Section 2 in light of media interest and congressional attention on the tech sector. With the program coming to a close, Delrahim did not have an opportunity to provide too many specifics on the report’s proposals; however, he did say that he would favor changes that did not "throw the baby out with the bath water."

The antitrust chief pointed out some changes to the system that could have been considered, such as examining the need for two federal antitrust agencies. He quipped that he had a "personal bias toward one agency." He also suggested deferring more enforcement to state attorneys general where appropriate, as long as the state AGs do not contradict national policy.

In addition, Delrahim discussed the challenges faced by federal courts in resolving antitrust issues, pointing to how district courts are asked to be "clairvoyant" when determining whether a proposed merger will harm competition. As an example of an instance in which a federal district court erred, he cited an April 2020 decision of a federal district court in Delaware in the government’s challenge to Sabre’s proposed $360 million purchase of its airline booking service rival Farelogix. After the acquisition was abandoned, the U.S. Court of Appeals in Philadelphia vacated the district court’s decision.

In his prepared remarks titled—"Video Killed the Radio Star": Promoting a Culture of Innovation—Delrahim discussed the Antitrust Division’s "focus on improving processes that promote and sustain conditions for innovation to thrive, rather than directing specific outcomes in the marketplace." He shared specific examples of the Antitrust Division’s efforts to promote innovation in four broad categories: (1) better explaining the state of the antitrust laws relating to patent licensing practices—the AAG’s "New Madison" approach; (2) promoting substantive and procedural convergence with our international partners, including the International Competition Network’s Framework for Competition Agency Procedures; (3) modernizing the domestic enforcement program through the termination of legacy decrees and other initiatives; and (4) encouraging innovation within the Antitrust Division itself with efforts such as the creation of a Civil Conduct Task Force to focus full time on civil non-merger work.

Companies: Amazon, Inc.; Apple, Inc.; Facebook, Inc.; Google, LLC; Sabre Corp.; Farelogix Inc.

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