Antitrust Update: Despite Administration Rhetoric, No Major App Changes Imminent | Stinson LLP
In recent weeks, the Biden administration has released two high-profile posts on antitrust law enforcement. These messages received considerable media attention, with major news organizations reporting the administration’s commitment to “crack down on big tech” and “tackle corporate abuse.” We are issuing this customer alert to warn against overreacting.
The first message came from the Federal Trade Commission (FTC), one of two federal agencies responsible for enforcing antitrust laws. The other is the Department of Justice (DOJ), Antitrust Division. On July 1, the FTC voted to rescind a 2015 bipartisan policy statement regarding the application of Section 5 of the FTC Act, which prohibits “unfair competition methods.” The 2015 policy statement envisioned a case-by-case application with the aim of promoting consumer welfare, thereby aligning the application of Section 5 with the DOJ and FTC’s approach to consumer welfare. ‘other antitrust laws. The July 1 FTC vote repealed the 2015 policy statement, but did not replace it with anything else.
The second message came from President Biden himself. At the end of last week, the president signed an executive order promoting competition in the US economy. The executive decree contains 72 directives to more than a dozen federal agencies. These guidelines target anti-competitive practices perceived in almost all major segments of the industry, including agriculture, technology, healthcare, telecommunications and transportation. The decree-law calls for legislative action. It also requires executive branch agencies – and ‘encourage[s]”independent agencies like the FTC – to explore regulations to promote competition.
The FTC’s July 1 vote and President Biden’s executive order received extensive media coverage – and for good reason. These statements by the federal government signal a more aggressive enforcement attitude. Perhaps more importantly, they predict future changes to antitrust laws through regulatory or legislative action. But to date, nothing has changed. The FTC has simply repealed a policy statement relating to a law (section 5) that it rarely invokes as a stand-alone basis for enforcement. And President Biden’s executive order is just an affirmation of long-standing antitrust policies and a call for future action; this does not change any applicable law.
The administration’s commitment to antitrust enforcement will not be defined by policy statements or executive orders. Rather, it will be measured by enforcement measures and future legislation. Whether the administration will make a material change to US antitrust laws therefore remains an open question.