“Divestiture is always a bright idea for merging parties, and it’s not always a very good idea for consumers.,” he added.
Albertsons shares fell on Friday, a sign that investors are skeptical that the deal will get past regulators. By late morning, the stock was trading below $27 a share, more than 21 percent below Kroger’s $34.10 a share offer price.
In announcing the deal, Kroger also sought to ease concerns about the impact on consumers by saying that it expects to save about $500 million in costs, which it plans to use to “reduce prices for customers.” Whether it follows through with those plans will likely be a key focus for regulators.
Though cost savings in acquisitions often come from layoffs, the grocers may also point to fact that their workforces are unionized as part of their discussions with regulators. The Biden administration has been a significant proponent of unions. Neither Walmart nor Amazon are unionized on a large scale.
Consumer protection groups raised concerns about the deal following reports of a possible merger on Thursday. The American Economic Liberties Project, a nonprofit that promotes antitrust legislation, criticized it as a “bad deal for consumers, workers and communities.”
“There is no reason to allow two of the biggest supermarket chains in the country to merge — especially with food prices already soaring,” Sarah Miller, the group’s executive, said in a statement on Thursday.
As part of their pitch to regulators, Kroger and Albertsons will likely try to convince them that their scale is needed to compete against big box stores like Aldi, Lidl — two European chains that have been expanding quickly in the United States — and Costco, as well as Amazon.
The agency, though, has not always allowed retailers to use Amazon as a boogeyman to help clear their deals. In 2015, the F.T.C. successfully sued to block a merger between the retailers Office Depot and Staples, even after they had positioned the deal as an effort to take on Amazon and lower prices.
WASHINGTON — The Federal Trade Commission on Wednesday filed for an injunction to block Meta, the company formerly known as Facebook, from buying a virtual reality company called Within, potentially limiting the company’s push into the so-called metaverse and signaling a shift in how the agency is approaching tech deals.
The antitrust lawsuit is the first under Lina Khan, the commission’s chair and a leading progressive critic of corporate concentration, against one of the tech giants. Ms. Khan has argued that regulators must stop competition and consumer protection violations when it comes to the bleeding edge of technology, including virtual and augmented reality, and not just in areas where the companies have already become behemoths.
The F.T.C.’s request for an injunction puts Ms. Khan on a collision course with Mark Zuckerberg, Meta’s chief executive, who is also named as a defendant in the request. He has poured billions of dollars into building products for virtual and augmented reality, betting that the immersive world of the metaverse is the next technology frontier. The lawsuit could crimp those ambitions.
in its lawsuit, which was filed in the U.S. District Court for the Northern District of California. “Instead, it chose to buy” a top company in what the government called a “vitally important” category.
attack on innovation and that the agency was “sending a chilling message to anyone who wishes to innovate in V.R.”
Meta had said it would acquire Within, which produces the highly popular fitness app called Supernatural, last year for an undisclosed sum. The company has promoted its virtual reality headsets for fitness and health purposes.
The F.T.C.’s lawsuit is highly unusual and pushes the boundaries of antitrust law. Regulators mostly focus on deals between large companies in large markets, rather than their acquisitions of small start-ups in nascent tech areas. Courts have also been skeptical applying antitrust law to block mergers based on the hypothetical that the two companies involved would later become competitors if the deal was blocked.
Instagram, the photo-sharing app that has since grown to more than one billion regular users. Instagram has helped Meta dominate the market on social photo sharing, though other start-ups have sprung up since.
lawsuit against Facebook that argued the company shut down nascent competition through acquisitions. The Justice Department has also sued Google over whether the company abused a monopoly over online search.
More cases could be coming. The F.T.C. is investigating whether Amazon has violated antitrust laws, and the Justice Department has inquiries into Google’s dominance over advertising technology and into Apple’s App Store policies.
For Mr. Zuckerberg, the F.T.C. lawsuit is a setback. He has been pushing Meta away from its roots in social networking as its apps, like Facebook and Instagram, face more competition amid stumbles in privacy and content moderation. Instead, he has bet on the metaverse.
Mr. Zuckerberg has reassigned employees and put a top lieutenant in charge of metaverse efforts. He has also authorized executives to pursue some of the most popular games in the V.R. space. In 2019, Facebook purchased Beat Games, makers of the hit title Beat Saber, one of the top V.R. games on the Oculus platform. He has also authorized the purchase of roughly half a dozen other virtual reality or gaming studios over the past three years.
The F.T.C. filed suit on Wednesday hours before Meta reported its first decline in quarterly revenue since it went public in 2012. The company has recently trimmed employee perks and reined in spending amid uncertain economic conditions. John Newman, the deputy director of the F.T.C.’s Bureau of Competition, said the agency acted on the Within deal because Meta was “trying to buy its way to the top.” The company already owned a best-selling virtual reality fitness app, he said, but then chose to acquire Within’s Supernatural app “to buy market position.” He said the deal was “an illegal acquisition, and we will pursue all appropriate relief.”
The F.T.C.’s vote to authorize the filing was split 3 to 2. Christine Wilson, a Republican commissioner at the agency, said she was one of the two votes against the lawsuit. She declined to comment onher reasoning.
The F.T.C. said in its request that asking for an injunction was sometimes a prelude to filing a complaint against a merger, which could embroil Meta and the agency in a lengthy trial and appeals process. A F.T.C. spokeswoman said the agency had not filed such a complaint and declined to comment further on the agency’s strategy.
Ms. Khan, 33, who was appointed by President Biden last year to acclaim from the left, has tried to make good on expansive promises to rein in corporate power. She became prominent after she wrote an article in law school in 2017 criticizing Amazon. As F.T.C. chair, she has called for regulators to vigorously enforce antitrust laws and has said she may craft sweeping online privacy rules that would implicate Silicon Valley companies.
The lawsuit drew praise from Ms. Khan’s allies. Sandeep Vaheesan, the legal director of the Open Markets Institute, a liberal think tank, said in a statement that the lawsuit was a “step toward making building, not buying, the norm for Facebook.”
But tech industry allies assailed Ms. Khan’s actions. Adam Kovacevich, the chief executive of Chamber of Progress, an industry group funded partly by Meta, said that with the new lawsuit, “the agency is more focused on getting headlines than results.” He said Meta “isn’t any closer than pickleball or synchronized swimming are to locking up the fitness market.”
Meta said in a blog post that the F.T.C. would fail to prove that the Within deal would “substantially lessen competition,” which is the bar that is typically set to block a deal under federal antitrust law.
In its lawsuit, the F.T.C. said that if Meta bought Within’s Supernatural, it would no longer have an incentive to improve Beat Saber, the virtual reality fitness game it already owns. But Nikhil Shanbhag, an associate general counsel for Meta, said in the blog post that the games weren’t competitors.
“Beat Saber is a game people play to have fun and it has many competitors,” he said. “Supernatural couldn’t be more different.”
John Tye, the founder of Whistleblower Aid, a legal nonprofit that represents people seeking to expose potential lawbreaking, was contacted this spring through a mutual connection by a woman who claimed to have worked at Facebook.
The woman told Mr. Tye and his team something intriguing: She had access to tens of thousands of pages of internal documents from the world’s largest social network. In a series of calls, she asked for legal protection and a path to releasing the confidential information. Mr. Tye, who said he understood the gravity of what the woman brought “within a few minutes,” agreed to represent her and call her by the alias “Sean.”
She “is a very courageous person and is taking a personal risk to hold a trillion-dollar company accountable,” he said.
On Sunday, Frances Haugen revealed herself to be “Sean,” the whistle-blower against Facebook. A product manager who worked for nearly two years on the civic misinformation team at the social network before leaving in May, Ms. Haugen has used the documents she amassed to expose how much Facebook knew about the harms that it was causing and provided the evidence to lawmakers, regulators and the news media.
knew Instagram was worsening body image issues among teenagers and that it had a two-tier justice system — have spurred criticism from lawmakers, regulators and the public.
Ms. Haugen has also filed a whistle-blower complaint with the Securities and Exchange Commission, accusing Facebook of misleading investors with public statements that did not match its internal actions. And she has talked with lawmakers such as Senator Richard Blumenthal, a Democrat of Connecticut, and Senator Marsha Blackburn, a Republican of Tennessee, and shared subsets of the documents with them.
The spotlight on Ms. Haugen is set to grow brighter. On Tuesday, she is scheduled to testify in Congress about Facebook’s impact on young users.
misinformation and hate speech.
In 2018, Christopher Wylie, a disgruntled former employee of the consulting firm Cambridge Analytica, set the stage for those leaks. Mr. Wylie spoke with The New York Times, The Observer of London and The Guardian to reveal that Cambridge Analytica had improperly harvested Facebook data to build voter profiles without users’ consent.
In the aftermath, more of Facebook’s own employees started speaking up. Later that same year, Facebook workers provided executive memos and planning documents to news outlets including The Times and BuzzFeed News. In mid-2020, employees who disagreed with Facebook’s decision to leave up a controversial post from President Donald J. Trump staged a virtual walkout and sent more internal information to news outlets.
“I think over the last year, there’ve been more leaks than I think all of us would have wanted,” Mark Zuckerberg, Facebook’s chief executive, said in a meeting with employees in June 2020.
Facebook tried to preemptively push back against Ms. Haugen. On Friday, Nick Clegg, Facebook’s vice president for policy and global affairs, sent employees a 1,500-word memo laying out what the whistle-blower was likely to say on “60 Minutes” and calling the accusations “misleading.” On Sunday, Mr. Clegg appeared on CNN to defend the company, saying the platform reflected “the good, the bad and ugly of humanity” and that it was trying to “mitigate the bad, reduce it and amplify the good.”
personal website. On the website, Ms. Haugen was described as “an advocate for public oversight of social media.”
A native of Iowa City, Iowa, Ms. Haugen studied electrical and computer engineering at Olin College and got an M.B.A. from Harvard, the website said. She then worked on algorithms at Google, Pinterest and Yelp. In June 2019, she joined Facebook. There, she handled democracy and misinformation issues, as well as working on counterespionage, according to the website.
filed an antitrust suit against Facebook. In a video posted by Whistleblower Aid on Sunday, Ms. Haugen said she did not believe breaking up Facebook would solve the problems inherent at the company.
“The path forward is about transparency and governance,” she said in the video. “It’s not about breaking up Facebook.”
Ms. Haugen has also spoken to lawmakers in France and Britain, as well as a member of European Parliament. This month, she is scheduled to appear before a British parliamentary committee. That will be followed by stops at Web Summit, a technology conference in Lisbon, and in Brussels to meet with European policymakers in November, Mr. Tye said.
On Sunday, a GoFundMe page that Whistleblower Aid created for Ms. Haugen also went live. Noting that Facebook had “limitless resources and an army of lawyers,” the group set a goal of raising $10,000. Within 30 minutes, 18 donors had given $1,195. Shortly afterward, the fund-raising goal was increased to $50,000.
Apple is widely expected to ask a judge to keep the order from going into effect. Either company could also appeal to the U.S. Court of Appeals for the Ninth Circuit. In that court, a three-judge panel could review the decision, a process that could take a year or more. After a ruling there, Apple or Epic could appeal to the Supreme Court.
The ruling allows both sides to claim a partial victory. Apple now has a court ruling that says it does not run a monopoly in an important digital marketplace, which undercuts its opponents’ efforts to claim that it violates antitrust laws. But Epic’s lawsuit could also force Apple to crack open its airtight iPhone software to create an avenue for developers to avoid its commission.
Apple’s shares fell nearly 3 percent on the Nasdaq exchange after the ruling was announced.
“Today the court has affirmed what we’ve known all along: The App Store is not in violation of antitrust law,” Apple said in a statement. “As the court recognized, ‘Success is not illegal.’ Apple faces rigorous competition in every segment in which we do business, and we believe customers and developers choose us because our products and services are the best in the world.”
The ruling did uphold many of the principles of Apple’s App Store business, including that it can prohibit third-party iPhone app marketplaces and can continue to charge a 30 percent commission on many transactions. Epic had challenged those practices.
“It puts an economic question mark around the App Store, but at the same time, it affirms the principles” of the business, said Adam Kovacevich, a former Google lobbyist who now runs a tech-policy group that is in part sponsored by Apple.
Tim Sweeney, Epic’s chief executive, said on Twitter that he was not satisfied with the ruling because it did not go far enough in allowing companies to complete in-app transactions with their own payment systems, versus having to direct customers to outside websites. He said Fortnite would not return to the App Store until such rules were in place.
“Today’s ruling isn’t a win for developers or for consumers,” he said. “We will fight on.”
Mr. Rubin, the antitrust lawyer, said that Apple would feel relieved to dodge being labeled a monopoly, but that the judge’s verdict would most likely do little to strengthen its standing in other investigations because antitrust lawsuits can vary. He said Apple might also have to consider lowering its commission now that it will be easier for developers to send customers elsewhere to make purchases.
WASHINGTON — When the nation’s antitrust laws were created more than a century ago, they were aimed at taking on industries such as Big Oil.
But technology giants like Amazon, Facebook, Google and Apple, which dominate e-commerce, social networks, online advertising and search, have risen in ways unforeseen by the laws. In recent decades, the courts have also interpreted the rules more narrowly.
On Monday, a pair of rulings dismissing federal and state antitrust lawsuits against Facebook renewed questions about whether the laws were suited to taking on tech power. A federal judge threw out the federal suit because, he said, the Federal Trade Commission had not supported its claims that Facebook holds a dominant market share, and he said the states had waited too long to make their case.
The decisions underlined how cautious and conservative courts could slow an increasingly aggressive push by lawmakers, regulators and the White House to restrain the tech companies, fueling calls for Congress to revamp the rules and provide regulators with more legal tools to take on the tech firms.
David Cicilline, a Democrat of Rhode Island, said the country needed a “massive overhaul of our antitrust laws and significant updates to our competition system” to police the biggest technology companies.
Moments later, Representative Ken Buck, a Colorado Republican, agreed. He called for lawmakers to adapt antitrust laws to fit the business models of Silicon Valley companies.
This week’s rulings have now put the pressure on lawmakers to push through a recently proposed package of legislation that would rewrite key aspects of monopoly laws to make some of the tech giants’ business practices illegal.
“This is going to strengthen the case for legislation,” said Herbert Hovenkamp, an antitrust expert at the University of Pennsylvania Law School. “It seems to be proof that the antitrust laws are not up to the challenge.”
introduced this month and passed the House Judiciary Committee last week. The bills would make it harder for the major tech companies to buy nascent competitors and to give preference to their own services on their platforms, and ban them from using their dominance in one business to gain the upper hand in another.
including Lina Khan, a scholar whom President Biden named this month to run the F.T.C. — have argued that a broader definition of consumer welfare, beyond prices, should be applied. Consumer harm, they have said, can also be evident in reduced product quality, like Facebook users suffering a loss of privacy when their personal data is harvested and used for targeted ads.
In one of his rulings on Monday, Judge James E. Boasberg of U.S. District Court for the District of Columbia said Facebook’s business model had made it especially difficult for the government to meet the standard for going forward with the case.
The government, Judge Boasberg said, had not presented enough evidence that Facebook held monopoly power. Among the difficulties he highlighted was that Facebook did not charge its users for access to its site, meaning its market share could not be assessed through revenue. The government had not found a good alternative measure to make its case, he said.
He also ruled against another part of the F.T.C.’s lawsuit, concerning how Facebook polices the use of data generated by its product, while citing the kind of conservative antitrust doctrine that critics say is out of step with the technology industry’s business practices.
The F.T.C., which brought the federal antitrust suit against Facebook in December, can file a new complaint that addresses the judge’s concerns within 30 days. State attorneys general can appeal Judge Boasberg’s second ruling dismissing a similar case.
fined Facebook $5 billion in 2019 for privacy violations, there were few significant changes to how the company’s products operate. And Facebook continues to grow: More than 3.45 billion people use one or more of its apps — including WhatsApp, Instagram or Messenger — every month.
The decisions were particularly deflating after actions to rein in tech power in Washington had gathered steam. Ms. Khan’s appointment to the F.T.C. this month followed that of Tim Wu, another lawyer who has been critical of the industry, to the National Economic Council. Bruce Reed, the president’s deputy chief of staff, has called for new privacy regulation.
Mr. Biden has yet to name anyone to permanently lead the Justice Department’s antitrust division, which last year filed a lawsuit arguing Google had illegally protected its monopoly over online search.
The White House is also expected to issue an executive order this week targeting corporate consolidation in tech and other areas of the economy. A spokesman for the White House did not respond to requests for comment about the executive order or Judge Boasberg’s rulings.
Activists and lawmakers said this week that Congress should not wait to give regulators more tools, money and legal red lines to use against the tech giants. Mr. Cicilline, along with Representative Jerrold Nadler of New York, the chairman of the House Judiciary Committee, said in a statement that the judge’s decisions on Facebook show “the dire need to modernize our antitrust laws to address anticompetitive mergers and abusive conduct in the digital economy.”
Senator Amy Klobuchar, a Democrat of Minnesota who chairs the Senate Judiciary Committee’s subcommittee on antitrust, echoed their call.
“After decades of binding Supreme Court decisions that have weakened our antitrust policies, we cannot rely on our courts to keep our markets competitive, open and fair,” she said in a statement. “We urgently need to rejuvenate our antitrust laws to meet the challenges of the modern digital economy.”
But the six bills to update monopoly laws have a long way to go. They still need to pass the full House, where they will likely face criticism from moderate Democrats and libertarian Republicans. In the Senate, Republican support is necessary for them to overcome the legislative filibuster.
The bills may also not go as far in altering antitrust laws as some hope. The House Judiciary Committee amended one last week to reinforce the standard around consumer welfare.
Even so, Monday’s rulings have given the proposals a boost. Bill Baer, who led the Justice Department antitrust division during the Obama administration, said it “gives tremendous impetus to those in Congress who believe that the courts are too conservative in addressing monopoly power.”
Facebook and the tech platforms might like the judge’s decisions, he said, “but they might not like what happens in the Congress.”
President Biden named Lina Khan, a prominent critic of Big Tech, as the chair of the Federal Trade Commission, according to two people with knowledge of the decision, a move that signals that the agency is likely to crack down further on the industry’s giants.
A public announcement of the decision is expected Tuesday, one of the people said.
Earlier in the day, the Senate voted 69 to 28 to confirm Ms. Khan, 32, to a seat at the agency. The commission investigates antitrust violations, deceptive trade practices and data privacy lapses in Silicon Valley.
Ms. Khan did not immediately respond to a request for comment.
In her new role, Ms. Khan will help regulate the kind of behavior highlighted for years by critics of Amazon, Facebook, Google and Apple. She told a Senate committee in April that she was worried about the way tech companies could use their power to dominate new markets. She first attracted notice as a critic of Amazon. The agency is investigating the retail giant and filed an antitrust lawsuit against Facebook last year.
Her appointment was a victory for progressive activists who want Mr. Biden to take a hard line against big companies. He also gave a White House job to Tim Wu, a law professor who has criticized the power of the tech giants.
But Mr. Biden has yet to fill another key positions tasked with regulating the industry: someone to lead the Department of Justice’s antitrust division.
This is a developing story. Check back for updates.
This article is part of the On Tech newsletter. You can sign up here to receive it weekdays.
Hoo boy, this is a moment. A government authority in the United States has sued Amazon over claims that the company is breaking the law by unfairly crushing competition.
The lawsuit, filed on Tuesday by the attorney general for the District of Columbia, joins the recent government antitrust cases against Google and Facebook. These lawsuits will take forever, and legal experts have said that the companies likely have the upper hand in court.
The D.C. attorney general, Karl Racine, however, is making a legal argument against Amazon that is both old-school and novel, and it might become a blueprint for crimping Big Tech power.
It’s a longstanding claim by some of the independent merchants who sell on Amazon’s digital mall that the company punishes them if they list their products for less on their own websites or other shopping sites like Walmart.com. Those sellers are effectively saying that Amazon dictates what happens on shopping sites all over the internet, and in doing so makes products more expensive for all of us.
told me that he believed that those price claims were the strongest potential antitrust case against Amazon on legal grounds. (He has since been picked to advise the White House on corporate competition issues.)
I don’t know if any of these lawsuits against Big Tech will succeed at chipping away at the companies’ tremendous influence. And I can’t definitively say whether we’re better or worse off by having a handful of powerful technology companies that make products used and often loved by billions of people.
the price of power is scrutiny.
How to fight back against bogus online information: The comedian Sarah Silverman and three of my colleagues are hosting a virtual event Wednesday about disinformation and how to combat it. Sign up here for the online event at 7 p.m. Eastern. It’s open only to New York Times subscribers.
fine social media companies for permanently barring political candidates’ accounts. The measure is most likely unconstitutional and unenforceable, Democrats, libertarian groups and tech companies told my colleague David McCabe, but it’s a response to Facebook’s and Twitter’s suspension of former President Donald Trump.
Posting is life. My colleague Taylor Lorenz explains how social media invitations to a teenager’s birthday party spread on TikTok and drew thousands of people and a police crackdown. The event got big partly because it was an opportunity for attendees to post compelling material online. SIGH.
POTUS loves Apple News? I don’t like it when computers and smartphones come with the device makers’ apps already installed, but it’s effective — even with the president of the United States. The Washington Post reported that during the 2020 campaign Joe Biden shared with aides human interest stories from Apple News, which came on his iPhone and he apparently hadn’t deleted.
Hugs to this
The Linda Lindas are glorious. Here is the talented punk band of four girls between the ages of 10 and 16 — Bela, Eloise, Mila and Lucia — playing “Racist, Sexist Boy” at a Los Angeles public library. The Guardian interviewed them about their sudden internet fame.
We want to hear from you. Tell us what you think of this newsletter and what else you’d like us to explore. You can reach us at ontech@nytimes.com.
If you don’t already get this newsletter in your inbox, please sign up here. You can also read past On Tech columns.
The District of Columbia sued Amazon on Tuesday, accusing it of artificially raising prices for products in its ubiquitous online marketplace and around the web by abusing its monopoly power, a sign that regulators in the United States are increasingly turning their attention to the company’s dominance across the economy.
In the lawsuit, the D.C. government said that Amazon had effectively prohibited merchants that use its platform from charging lower prices for the same products elsewhere online. That, in turn, raised prices for those products not just on Amazon’s website but in other marketplaces as well, it said.
“Amazon has used its dominant position in the online retail market to win at all costs,” said Karl Racine, the attorney general for the District of Columbia. “It maximizes its profits at the expense of third-party sellers and consumers, while harming competition, stifling innovation, and illegally tilting the playing field in its favor.”
Jodi Seth, a spokeswoman for Amazon, said in a statement that Mr. Racine “has it exactly backwards — sellers set their own prices for the products they offer in our store.” She added that Amazon reserved the right “not to highlight offers to customers that are not priced competitively.”
others raise their prices elsewhere or choose to list solely on Amazon, the largest e-commerce site in the country, to avoid losing their listings. The complaint said “Walmart routinely fields requests from merchants to raise prices on Walmart’s online retail sales platform because the merchants worry that a lower price on Walmart will jeopardize their status on Amazon.”
Absent the policing, sellers “would be able to sell their products on their own or other online retail sales platforms for less than they sell them on Amazon’s platform,” it said.
“Most favored nation” contracts are common across industries, including the cable industry with media business partners. Mr. Racine’s office will have to prove how the price agreements harmed other sellers and were anticompetitive.
Tim Cook took the stand for the first time as Apple’s chief executive. The billionaire creator of one of the world’s most popular video games walked a federal judge through a tour of the so-called metaverse. And lawyers in masks debated whether an anthropomorphic banana without pants was appropriate to show in federal court.
For the past three weeks, Apple has defended itself in a federal courtroom in Oakland, Calif., against claims that it abused its power over the iPhone App Store, in one of the biggest antitrust trials in Silicon Valley’s history. Epic Games, the maker of the popular game Fortnite, sued Apple last year seeking to allow apps to avoid the 30 percent commission that the iPhone maker takes on many app sales.
On Monday, the trial — which covered esoteric definitions of markets as well as oddball video game characters — concluded with Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California pressing the companies on what should change in Apple’s business, if anything. The decision over the case, as well as the future of the $100 billion market for iPhone apps, now rests in her hands. Judge Gonzalez Rogers has said she hopes to issue a verdict by mid-August.
Yet even in an era of antitrust scrutiny of the world’s biggest tech companies, the trial showed how difficult it was to take on a $2.1 trillion corporate titan like Apple.
more than $1 billion in sales — from the App Store. Epic also spent millions of dollars on lawyers, economists and expert witnesses. Yet it still began the trial at a disadvantage because antitrust laws tend to favor defendants, according to legal experts who tracked the case.
While Judge Gonzalez Rogers signaled openness to Epic’s arguments during the trial, a ruling in favor of the video game maker might not lead to momentous changes in the market for mobile apps. Any verdict is also likely to be tied up in appeals for years, at which point rapid change in the technology industry could leave its effects obsolete.
“To mount a credible antitrust campaign, you need to have a significant war chest,” said David Kesselman, an antitrust lawyer in Los Angeles who has followed the case. “And the problem for many smaller companies and smaller businesses is that they don’t have the wherewithal to mount that type of a fight.”
The case focused on how Apple wields control over the iPhone App Store to charge its commission on app sales. Companies big and small have argued that the fee shows Apple is abusing its dominance, while Apple has responded that its cut of sales helps fund efforts to keep iPhones safe. Regulators and lawmakers have homed in on the issue, making it the center of antitrust complaints against the company.
Tim Sweeney, Epic’s chief executive and a longtime antagonist to big tech companies, has said he is “fighting for open platforms and policy changes equally benefiting all developers.”
30 percent number has been there since the inception. And if there was real competition, that number would move. And it hasn’t,” she said of Apple’s commission on app sales. She also said that it was anticompetitive for Apple to ban companies from telling customers that they could buy items outside of iPhone apps.
At other times on Monday, she appeared reluctant to force Apple to change its business. “Courts do not run businesses,” she said.
Judge Gonzalez Rogers also suggested that Epic’s requested outcome in the case would require a significant change in Apple’s business and questioned whether there was legal precedent for that. “Give me some example that survived appellate review where the court has engaged in such a way to limit or fundamentally change the economic model of a monopolistic company?” she asked Epic’s lawyers.
ripe for a legislative fix. Apple also faces two other federal lawsuits over its app fees — one from consumers and one from developers — which are both seeking class-action status. Judge Gonzalez Rogers is also set to hear those cases.
Similarly, a victory for Apple could deflate those challenges. Regulators might be wary to pursue a case against Apple that has already been rejected by a federal judge.
Judge Gonzalez Rogers may also deliver a ruling that makes neither company happy. While Epic wants to be able to host its own app store on iPhones, and Apple wants to continue to operate as it has for years, she might order smaller changes.
Former President Barack Obama nominated Judge Gonzalez Rogers, 56, to the federal court in 2011. Given her base in Oakland, her cases have often related to the technology industry, and she has overseen at least two past cases involving Apple. In both cases, Apple won.
She concluded Monday’s trial by thanking the lawyers and court staff, who mostly used masks and face shields during the proceedings. Months ago in the throes of the coronavirus pandemic, it was unclear if the trial could be held in person, but Judge Gonzalez Rogers decided that it was an important enough case and ordered special rules to minimize the health risks, including limits on the number of people in court.
Epic opted to include its chief executive over an extra lawyer, and Mr. Sweeney spent the trial inside the courtroom, watching from his lawyers’ table. Mr. Sweeney, who is typically prolific on Twitter, didn’t comment publicly over the last three weeks. On Monday, he broke his silence by thanking the Popeyes fried-chicken restaurant next to the courthouse.
While most of the provider aid has been distributed, the Biden administration is expected to begin doling out the remaining funds, estimated at $25 billion of the original $178 billion, said Kristen O’Brien, a vice president for McDermott+Consulting in Washington, D.C. Hospitals are asking for more time to spend the money.
How the aid was spent has not been fully documented. While the larger hospital networks aggressively sought the funds from the start, smaller organizations, children’s hospitals and those in rural areas or serving large numbers of low-income patients had more difficulty securing the aid because of the way the funding formula was structured.
In a later round of funding decisions, officials with the Department of Health and Human Services reviewed applications more closely, and in some cases, reduced or denied requests, Ms. O’Brien said.
Grants given after the initial rush were more targeted, to those hospitals in Covid hot spots or rural areas. A few large chains, including HCA Healthcare and the Mayo Clinic, returned at least some of the money, in the wake of disclosures that wealthier hospitals had received far more aid while reporting healthy profits.
Overall, the aid program did prevent hospital closings, said Ken Marlow, a lawyer with K&L Gates in Nashville, who advises hospitals. “We haven’t seen a real avalanche of these distressed hospitals coming on the market.”
But some may no longer be able to resist takeovers or mergers. “Those providers are potentially more distressed as a result of the stress of the pandemic and will have to be thinking hard about the future, their survival,” said Torrey McClary, a lawyer with Ropes & Gray who also counsels hospitals.
