Antitrust Division Sets Sights on Global Enforcement Against Digital Economy Monopolies

You have to give Antitrust Division Assistant Attorney General Jonathan Kanter credit.  He sticks to his principles, his priorities and his integrity.  AAG Kanter has launched an aggressive antitrust enforcement program with mixed results so far.  AAG Kanter understands one important thing — it takes time to turn around antitrust law and precedent to reflect new theories and underpinnings of antitrust law.  AAG Kanter has bi-partisan support for building and promoting this new antitrust legal mission. 

Keep in mind in the 1980s and 1990s, the Chicago School of economic theory revolutionized antitrust law and enforcement.  Judicial decisions reflect this change in approach.  Economic theory, however, did not standstill and has challenged pristine Chicago School theories.  AAG Kanter has embraced this new view and pushed the envelope.

AAG Kanter has broad bi-partisan support to challenge the goliaths in the technology industry.  In an interesting speech, AAG Kanter spoke to the international meeting of antitrust enforcers about the unique problems created by global platform monopolization.  AAG Kanter’s intention was clear — to coordinate an aggressive enforcement response to monopolization of technology platforms.  In particular, AAG Kanter warned that unilateral exclusionary conduct — i.e. monopolization — is ascendant.

AAG Kanter outlined the tangible benefits of the digital economy — the power to create a worldwide network that drives growth and innovation. In his view, however, the digital economy has enabled monopoly power of a nature and degree not seen in a century.  Without competitive alternatives to technology access to business and personal connections, consumers are forced to waste time in endless ads, while algorithms manipulate our behavior without any competitive alternatives. According to AAG Kanter, the digital age is defined by market power but exploitation to individual freedom.

Digital economy monopolists influence and control customer interactions and influence the development of adjacent industries. They can pick winners and losers in adjacent markets, discourage switching to rival services, and punish businesses that seek to enter into competitive markets.  Digital businesses exploit their power to strengthen dominant positions and deepen the protection around the digital castle.

AAG Kanter described how dominant platforms are able to engage in a variety of exclusionary conduct. If one practice is addressed, the digital economy monopolist finds another practice to further its dominant position.  For antitrust enforcers, they are faced with a whack-a-mole enforcement approach, leaving monopolists with time to implement new, anti-competitive tactics.  To address the larger — to unplug the monopolist, digital platform itself — AAG Kanter offered four possible approaches.

First, antitrust enforcement agencies have to examine a monopolist’s course of conduct — its dominant position and the strategies it employed to protect its monopoly. In other words, antitrust enforcers have to review the combined effect of the monopolist’s exclusionary tactics, particularly in markets that exhibit network or feedback effects.

Second, AAG Kanter urged antitrust enforcers to expand their focus from the bad acts of years past to those happening now — to recognize the need to intervene against threats that are coming in the near term. In this respect, DOJ will seek preliminary injunctions against policies or practices with exclusionary impact.  AAG Kanter specifically cited the U.K. and Canadian antitrust enforcers for building out data units that share their learning with partner agencies.

Third, AAG Kanter suggested the need to stop mergers that “tend to create a monopoly.”  This standard articulated in Section 7 of the Clayton Act needs to be vigorously enforced unlike the past twenty to thirty years.  AAG Kanter specifically noted that the Antitrust Division was reviewing its merger guidelines to ensure appropriate consideration of market power and impact on adjacent markets.

Finally, AAG Kanter outlined the importance of effective remedies that allow real competition to dominant digital platforms. In particular, he mentioned potential legislation, such as non-discrimination requirements to discourage a wide range of exclusionary conduct. In addition, AAG Kanter noted the importance of global remedies and the importance of coordination with other countries and the European Commission as they implement the Digital Markets Act.

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