FTC pushes antitrust enforcement power ahead of 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 interpreting antitrust law in the US.

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

Along with the filing of antitrust lawsuits, the FTC and DOJ began review merge guidelines, which agencies use to challenge anticompetitive mergers. The FTC also began exploring new data privacy rules and expand enforcement power to strengthen the agency antitrust law enforcement skills — strategies that Colin Kass, a partner in the antitrust group of international law firm Proskauer Rose LLP, will watch unfold in 2023.

Agencies have begun to lay the groundwork for a more interventionist stance in the last couple of years, and this year is when we will start to see some of those efforts come to fruition, or be stopped dead in their tracks by the courts.

colin kassPartner, Proskauer Rose LLP

“Agencies have started to lay the groundwork for a more interventionist stance in the last couple of years, and this year is when we’ll start to see some of those efforts come to fruition, or be stopped by the courts.” Kass said.

Antitrust trends to watch out for in 2023

The FTC will expand the limits of its enforcement power and the legal grounds the agency has to take antitrust cases to court, Kass said.

To begin expanding its antitrust enforcement power, the FTC rescinded in 2021 a 2015 Enforcement Statement under Section 5 of the Federal Trade Commission Act, which limited the scope of FTC antitrust investigations.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

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

“They have attempted what could be seen as a power grab to use Section 5 to dictate new competition rules that may be unauthorized or may actually be contrary to 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.

In fact, the leadership of regulatory agencies, including FTC Chair Lina Khan, believes that antitrust laws have not been sufficiently enforced, according to Logan Breed, a partner at Hogan Lovells, a Washington-based law firm, DC. The agencies want to change that and be “more aggressive across the board in any way they can,” including with the Section 5 policy statement, she said.

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

2023 major antitrust cases

Some of the most important existing antitrust cases to watch going into 2023 include:

FTC vs. 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 out competitors, including WhatsApp and Instagram. However the FTC’s antitrust lawsuit dismissed in 2021 due to lack of evidence. The FTC refiled its lawsuit following the firing and was allowed to proceed in January 2022.

FTC vs. Goal/Inside

The FTC is trying to block Meta’s acquisition of virtual reality (VR) company Within. In a lawsuit filed in August, the FTC alleges the acquisition would stifle competition. Rather than have Meta build a VR app of its own, a move that would increase competition, the FTC argues that Meta’s attempt to buy another VR developer would dampen “future innovation and competitive rivalry.”

FTC vs. Microsoft

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

Epic Games vs. Apple

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

United States vs. Google

The US 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. Before joining TechTarget Editorial, she was a general reporter for the Wilmington Star News and a crime and education reporter at the Wabash Plain Seller.

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