FTC pushes antitrust enforcement power heading into 2023

Federal regulators will continue to track tech giants on antitrust grounds in 2023, and experts say some trends and lawsuits could change the course of US antitrust law interpretation.

Starting in 2020, the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) will regulate social media platforms, search engines, ads and app stores. The European Union (EU) has also pursued antitrust lawsuits against large corporations.

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Along with filing antitrust lawsuits, the FTC and DOJ began amending the merger guidelines that agencies use to contest anticompetitive mergers. The FTC also began expanding its enforcement powers to explore new data privacy rules and strengthen the agency’s ability to enforce antitrust laws. It will watch a strategy developed in 2023 by Colin Kass, partner in the antitrust group of international law firm Proskauer Rose LLP.

Institutions have started laying the groundwork for a more interventionist stance over the past two years, and this year is when we begin to see some of those efforts come to fruition or be stopped by the courts.

Colin CassPartner, Proskauer Rose LLP

“Institutions have started laying the groundwork for a more interventionist stance over the past two years, and this year is when we begin to see some of these efforts come to fruition or be stopped by the courts.” Cass said.

Antitrust trends to watch out for in 2023

The FTC will expand the limits of its enforcement powers and the legal basis for agencies to bring antitrust cases to court, Kass said.

To begin expanding its antitrust enforcement powers, the FTC rescinded its 2015 Statement of Enforcement Principles under Section 5 of the Federal Trade Commission Act, which limited the scope of the FTC’s antitrust investigations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

In November 2022, the FTC issued a policy statement stating that Section 5 “goes beyond the Sherman and Clayton Acts to cover various types of unfair conduct that tend to adversely affect the conditions of competition.”

“They were attempting what could be seen as a power grab, using Section 5 to dictate new competition rules that may not have been sanctioned or actually violated traditional antitrust laws,” Kass said.

He said the FTC would have to file an antitrust lawsuit on these grounds to substantiate its claim to additional enforcement powers under section 5.

Indeed, according to Logan Breed, a partner at Hogan Lovells, a Washington, DC-based law firm, the regulator’s leadership, including FTC Chair Lina Khan, believes antitrust laws are not properly enforced. He said it was “more aggressive across the board in every way possible”, including a Section 5 policy statement.

“This policy statement exists in a vacuum,” said Breed. “It’s not clear what that means, and we’ll have to wait and see how the FTC decides to file cases under these new guidelines in 2023.”

Major Antitrust Cases of 2023

The largest existing antitrust lawsuits heading into 2023 include:

FTC vs. Facebook

The FTC alleges that Meta (formerly Facebook) relied on anticompetitive behavior to maintain its monopoly on the social media platform. The FTC originally sued Meta in December 2020, alleging that Meta acquired competitors, including WhatsApp and Instagram. However, the FTC’s antitrust suit was dismissed in 2021 for lack of evidence. After the dismissal, the FTC re-filed the suit and was able to proceed with the case in January 2022.

FTC vs meta/my

The Fair Trade Commission is trying to block Meta’s acquisition of virtual reality (VR) company Within. In a lawsuit filed in August, the FTC argues that an acquisition would stifle competition. The FTC argues that Meta’s attempts to buy out other VR developers instead of building VR apps on its own (a move that enhances competition) will undermine “future innovation and competitive competition.”

FTC v Microsoft

The FTC filed a lawsuit in December to block Microsoft from buying video game developer Activision Blizzard. call of duty. The FTC claims the $69 billion deal, which will be Microsoft’s largest acquisition in the video game industry, “will allow Microsoft to overwhelm competitors on the Xbox game console and the fast-growing subscription content and cloud gaming businesses.”

Epic Games vs Apple

Epic Games, owners of popular video games Fortnite, sued Apple over App Store practices in 2020. Epic argued that excessive fees and the requirement to use Apple’s in-app payment method rather than alternative payments created an anti-competitive environment. Judge Yvonne Gonzalez Rogers initially ruled that Apple’s conduct was not anti-competitive, but Epic appealed the decision.

US vs Google

The U.S. Department of Justice sued Google in 2020, alleging that Google maintained a monopoly on online search services and search advertising markets through anticompetitive practices. The case is scheduled for trial in September 2023.

Makenzie Holland is a news writer covering big tech and federal regulations. Before joining TechTarget Editorial, she Wilmington Star News crime and education reporter Wabash Plain Dealer.

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