Congress Faces Renewed Pressure to ‘Modernize Our Antitrust Laws’

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.”

Mike Isaac contributed reporting.

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Lina Khan Named F.T.C. Chair by Biden

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.

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Lina Khan, a progressive trustbuster, displays get-tough approach to tech in confirmation hearing.

Lina Khan, a Democratic nominee to the Federal Trade Commission, outlined strong concerns over competition in the tech industry during her confirmation hearing on Wednesday.

Ms. Khan, a law professor and a former staffer at the F.T.C. who President Biden nominated to the agency in March, warned of the cascading power of tech companies that has allowed them to easily expand their reach across markets.

At the Senate Commerce committee hearing, Ms. Khan, 32, said she was “seeing whole range of potential risks. One that comes up across board is that the ability to dominate one market gives companies, in some instances, the ability to expand into adjacent markets.”

She also focused on the online advertising market and how the consumer data mining that fuels it poses potential harms for consumers. The business model, she said, incentivizes more and more data collection.

In a 2017 Yale Law Journal article titled “Amazon’s Antitrust Paradox,” she questioned the bias of antitrust experts toward consumer prices as the key metric for antitrust violation. Even though Amazon offers consumers lower prices in many cases, she argued the company could harm competition by squeezing out small-business rivals who rely on its marketplace.

President Biden’s nomination of Ms. Khan to one of three Democratic seats at the F.T.C. has been taken as a sign of how the White House plans to be tough on tech. Tim Wu, a progressive critic of Facebook and other big tech companies, was also recently named to a role in the White House.

Ms. Khan said in Wednesday’s hearing that approvals of tech mergers during the Obama administration were a “missed opportunity” to slow the growth of the companies.

Tech mergers approved during that time underestimated the particular economics of tech companies, she said. Regulators that approved the deals may have also assumed the dynamics of the tech market would allow for new entrants to go up against the bigger companies, she added.

her past work investigating the tech giants for the House antitrust subcommittee. The House released a report in October that found the digital platforms were monopolies.

Ms. Khan said she would follow ethics rules that prohibit her involvement in investigations into companies where she has financial and personal ties. She said she did not have those ties to any tech giants.

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More Companies Are Standing Up for Civil Rights

Andrew here. Yesterday’s guilty verdict against George Floyd’s murderer, a former Minneapolis police officer, was a symbol of something profound: a demonstrable shift in the way this country, increasingly supported by business, has strived for civil rights.

As we ponder the meaning of this decision, it is worth recalling a moment in 1965, in the middle of that era’s civil rights movement.

A Wall Street bond firm, C.F. Securities, told Alabama that it would “no longer buy or sell bonds issued by the state or any of its political subdivisions.” Gov. George C. Wallace, who objected to desegregation, had said the state shouldn’t pay for the National Guard to protect Martin Luther King Jr. and protesters in the Selma-to-Montgomery march.

The investment firm’s executive vice president, Donald E. Barnes, wrote to the governor that his failure “to protect the citizens of Alabama in their exercise of constitutional rights” amounted to “discouragements to Alabama’s economic future.” He insisted that the move was based on economic risk, but the letter made clear it was about more than that.

paid time off on Juneteenth; the N.B.A. emblazoned the words “Black Lives Matter” on courts; Netflix steered its cash into local banks that serve Black communities; Wall Street banks announced programs worth billions to support Black communities; and just last week, in perhaps the greatest demonstration of the new responsibility business is feeling, 700 companies and executives signed a letter opposing laws that make it harder for people to vote.

“The murder of George Floyd last Memorial Day felt like a turning point for our country. The solidarity and stand against racism since then have been unlike anything I’ve experienced,” Brian Cornell, the C.E.O. of Target, wrote in a note to employees of the Minneapolis-based retailer yesterday. “Like outraged people everywhere, I had an overwhelming hope that today’s verdict would provide real accountability. Anything short of that would have shaken my faith that our country had truly turned a corner.”

You know what? Justice is good for business.

The European Super League has collapsed. Plans to create a closed competition of top soccer clubs fell apart yesterday when six English teams withdrew, bowing to outrage from fans and threats by lawmakers. Shortly after, an official at the Super League said the project had been suspended, ending an effort to upend soccer’s multibillion-dollar economics.

outweigh a small risk of blood clots, but wants a warning added. U.S. regulators will decide whether to end a pause on the vaccine in the coming days.

Goldman Sachs releases worker diversity data. The Wall Street bank disclosed for the first time how many of its senior U.S. executives are Black: 49 out of more than 1,500. Banks agreed last year to publish more information about their work forces; Morgan Stanley has an even smaller share of Black executives than Goldman.

Apple’s new products raise competition concerns. The tech giant unveiled new iPads and iMacs, and a revamped podcast app. But its new AirTags, which attach to items to help find them, was criticized by the C.E.O. of Tile, which makes a similar product. Apple also said it would roll out new iOS privacy features — criticized by Facebook and other app makers — next week.

Lina Khan’s nomination to the Federal Trade Commission is one of the clearest signs of progressive influence in the Biden administration. A Columbia University scholar who worked on a major congressional report about Big Tech and antitrust last year, Ms. Khan is a star in the constellation of competition law experts known as “antimonopolists.” Her confirmation hearing with the Senate Commerce Committee is today.

power of internet giants, which could win her some conservative support. Having a “strong” perspective probably isn’t an obstacle to confirmation, Mr. Hoffman said.

Big Tech will be a likely focus at the hearing. But this would be a “disservice” to Ms. Khan, according to Mr. Hoffman. “At the F.T.C., a lot of the agenda is reactive,” he said. Companies file merger paperwork and regulators respond, whatever the industry. Ms. Khan has a broad perspective on competition law, Mr. Hoffman said, and today would be “a fair time” to ask what “objective standards” she’d apply.


— Ari Emanuel, the outspoken C.E.O. of the entertainment conglomerate Endeavor, speaking in a New Yorker profile about returning an investment from Saudi Arabia after the killing of Jamal Khashoggi. Separately, Endeavor disclosed yesterday that it hopes to be valued at more than $10 billion in an I.P.O.


Canadian National Railway yesterday offered to buy Kansas City Southern for $33.7 billion, topping a $29 billion bid last month by its rival Canadian Pacific. They’re jockeying over the chance to create the first railroad connecting major ports from Canada to Mexico. The bidding war reflects bullishness about an industry poised for growth if a post-pandemic boom ushers in this generation’s “Roaring Twenties.”

antitrust concerns made the counterbid “illusory and inferior.” Kansas City Southern said it would evaluate the new bid in accordance with its agreement with its original suitor.

mixed reception from freight shippers, who suffered in the last round of consolidation. And we haven’t yet heard from Senator Amy Klobuchar, who heads the antitrust subcommittee and represents key industrial interests in Minnesota.


The public listing of Coinbase, the largest crypto exchange in the U.S., generated a wave of excitement that competitors aim to ride. Among them is Binance.US, the third-ranked domestic crypto exchange, which yesterday named Brian Brooks — formerly Coinbase’s chief counsel and most recently acting U.S. comptroller of the currency — as C.E.O., beginning in May. “There’s a lot of buzz about my former employer, which is well-deserved,” Mr. Brooks told DealBook about Coinbase. “But it’s in everybody’s best interest if there’s more competition.”

Mr. Brooks’ first task is building trust with regulators. He says “managing reputation” is his biggest concern. Binance has shifted its operations throughout Asia since it was founded in 2017, and some say it played fast and loose with rules. The C.F.T.C. was reportedly investigating the company for allowing U.S.-based customers to trade crypto derivatives, which is banned (the agency declined to comment). Mr. Brooks insists he did “a lot” of due diligence on his new employer and dismisses “loose talk” about the exchange flouting regulations.

Binance.US sees potential to lead in undeveloped areas of the American crypto landscape, like derivatives and lending. Mr. Brooks said the company can learn from competitors like Coinbase and Kraken — and challenge them. That is, if he can convince regulators to bless its efforts to bring crypto into the financial mainstream, a preoccupation of players across the industry.


Yesterday, JPMorgan Chase’s co-heads of investment banking, Jim Casey and Viswas Raghavan, announced policies aimed at improving working conditions amid record deal volume and banker burnout. The company has attempted similar things before. DealBook spoke with Mr. Casey about the latest plan — and whether this one will stick.

JPMorgan has recently hired 65 analysts and 22 associates, and plans to add another 100 junior bankers and support staff, Mr. Casey said. It’s targeting bankers at rival firms, as well as lawyers and accountants interested in a career switch.

similar efforts to protect junior bankers’ hours in 2016, but “it wasn’t stringently enforced,” Mr. Casey said. Why not? “Laziness.” This time, junior bankers’ hours and feedback will figure in senior manager performance evaluation and compensation.

“It’s not a money problem,” Mr. Casey said, so there won’t be one-time checks or free Pelotons after a rush. Junior bankers will get their share of the record $3 billion in fees JPMorgan earned in the first quarter.

Some things won’t change. Because banking is a client-service job, managers sometimes have limited control over workloads and hours. “You might do 100 deals a year, but that client only does one deal every three years,” Mr. Casey said.

How the bank will measure success: “Ask me what our turnover ratio has gone to and I will tell you,” Mr. Casey said. The goal, he said, is “lower.”

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Biden nominates Lina Khan, a vocal critic of Big Tech, to the F.T.C.

President Biden on Monday nominated Lina Khan to the Federal Trade Commission, installing a vocal critic of Big Tech into a key oversight role of the industry.

If her nomination is approved by the Senate, Ms. Khan, 32, would fill one of two empty seats earmarked for Democrats at the F.T.C.

Ms. Khan became recognized for her ideas on antitrust with a Yale Law Journal paper in 2017 called “Amazon’s Antitrust Paradox” that accused Amazon of abusing its monopoly power and put a critical focus on decades-old legal theories that relied heavily on price increases as the underlying measure of antitrust violations.

She served as a senior adviser to Rohit Chopra when he was F.T.C. commissioner. Most recently, she was a leading counsel member to a 16-month-long investigation of online platforms and competition by the House antitrust subcommittee. As a result, Democratic leaders on the subcommittee called for the breakup of Big Tech and legislation to strengthen enforcement of competition violations across the economy.

said in an interview with The New York Times in 2018. “But as citizens, as workers, and as entrepreneurs, we recognize that their power is troubling. We need a new framework, a new vocabulary for how to assess and address their dominance.”

Ms. Khan is the second prominent advocate of breaking up the large tech companies placed by the Biden administration in top antitrust roles. Also this month, Mr. Biden picked Tim Wu, a prominent critic of Google, Facebook and Amazon, as special assistant to the president on competition policy.

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Lina Khan Would Bring a Tough Antitrust Voice

The Teamsters asked the F.T.C. to pause review of the deal. In a letter sent today to the agency’s acting chairwoman, Rebecca Slaughter, the union requested that the agency wait for one of two things:

There are other issues at play. Marathon has locked out 200 union workers at a refinery in Minnesota. And unions have had an often tense relationship with activist hedge funds like Elliott, whom they have accused of calling for layoffs that affect union members. (In its letter to the F.T.C., the Teamsters union criticized what it called “Elliott’s singular desire to liquidate Marathon’s assets to fund enormous share buybacks and special dividends.”)

But the agency is already far along in its review. Marathon executives, who hope to close the deal by the end of the first quarter, confirmed on a call with analysts last month that they had responded to a second request for information from the F.T.C. and were working on solutions. (The proposed buyer of Speedway, Seven and I, is reportedly looking to sell up to 300 gas stations to ease the agency’s concerns.)


David Nussbaum, the investment banker who co-created the SPAC in 1993, on how his financial innovation has become a hot trend on Wall Street


Companies are increasingly under public pressure to be more open, with political spending getting particular attention since the Jan. 6 riot at the Capitol. Proponents of greater transparency say that demand is growing: “The disclosure train will be leaving the station,” Bruce Freed, the president of the nonprofit Center for Political Accountability, told DealBook.

The SEC is all about E.S.G. Transparency around political giving is considered a governance issue. Last week, the Securities and Exchange Commission said it would form a task force focused on issues around climate and environmental, social and governance concerns, making both priorities for its examinations division. And corporate disclosures — particularly around political spending — were a recurring theme in the testimony of Gary Gensler, President Biden’s pick to lead the S.E.C., in his Senate confirmation hearing.

This year “is going to be really transformative,” said Josh Levin, the C.E.O. of the investment platform OpenInvest, which lets financial advisers adjust client portfolios based on companies’ openness on political spending. The platform uses an annual ranking of S&P 500 companies based on their politics and lobbying disclosure policies.

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Lina Khan, a Big Tech critic, is expected to be nominated to the Federal Trade Commission.

WASHINGTON — President Biden is expected to name Lina Khan, a law professor and leading critic of the tech industry’s power, to a seat on the Federal Trade Commission, a person with knowledge of the decision said on Tuesday.

An appointment of Ms. Khan, the author of a breakthrough Yale Law Journal paper in 2016 that accused Amazon of abusing its monopoly power, would be the latest sign that the Biden administration planned to take an aggressive posture toward tech giants like Amazon, Apple, Facebook and Google. Last week, the administration said Tim Wu, another top critic of the industry, would join the National Economic Council as a special assistant to the president for technology and competition policy.

Ms. Khan recently served as legal counsel for the House Judiciary’s antitrust subcommittee and was among aides who conducted a 19-month investigation into the tech giants’ monopoly power. The committee produced a report advocating major changes to antitrust laws. Before that, she served as an aide to a member of the Federal Trade Commission, Rohit Chopra, a champion of her ideas on antitrust policy.

Ms. Khan, an associate professor at Columbia Law School, would fill one of three Democratic seats on the five-member F.T.C. In December, the commission sued Facebook, accusing it of antitrust violations, and called for breaking up the company. The agency is also investing Amazon for antitrust violations.

Rumors of Ms. Khan’s appointment, which were reported earlier by Politico, immediately sparked strong reactions on Tuesday. Public Citizen, a left-leaning nonprofit public advocacy group, cheered the possibility. The organization and many progressive groups have denounced the F.T.C.’s history — particularly during the Obama administration — for lax enforcement of technology companies. They argue that the federal government’s permissive attitude toward mergers by the tech giants, including Facebook’s acquisition of Instagram in 2012 and WhatsApp in 2014, helped the Silicon Valley companies grow quickly and dominate their rivals.

“The F.T.C. has failed to take on corporate abuses of power including rampant antitrust violations, privacy intrusions, data security breaches and mergers, and Khan’s appointment as a commissioner at the agency hopefully will herald a new day,” Public Citizen said in a statement.

Senator Mike Lee of Utah, the ranking Republican on the Senate antitrust subcommittee, said Ms. Khan would be a bad fit for the job, however.

“Her views on antitrust enforcement are also wildly out of step with a prudent approach to the law,” Mr. Lee said in a statement. “Nominating Ms. Khan would signal that President Biden intends to put ideology and politics ahead of competent antitrust enforcement, which would be gravely disappointing at a time when it is absolutely critical that we have strong and effective leadership at the enforcement agencies.”

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