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Antitrust reform is uncertain despite bipartisan support

Strong bipartisan support for antitrust reform has resulted in the introduction of numerous antitrust reform bills that may face a tough road toward being enacted into law.

Bipartisan support in Congress for antitrust reform might not be enough to get new laws enacted.

Six bipartisan antitrust reform bills passed in June by the U.S. House Committee on the Judiciary aim to do everything from ensuring interoperability between large online platforms to breaking up tech giants like Apple, Google, Amazon and Facebook. Meanwhile, Sen. Amy Klobuchar (D-Minn.) and co-sponsors have introduced companion bipartisan antitrust reform bills such as the American Innovation and Choice Online Act to "establish rules of the road for dominant digital platforms."

The show of bipartisan support for antitrust reform is significant, but it doesn't guarantee passage, said Pamela Gilbert, partner at Cuneo Gilbert & LaDuca LLP, at a recent antitrust conference. She is a former executive director of the U.S. Consumer Product Safety Commission.

There are issues facing some of the antitrust reform bills, like the American Innovation and Choice Online Act, which experts said are too targeted at specific companies -- namely, Google, Apple, Amazon and Facebook.

Other antitrust reform bills focusing beyond the big four tech giants, such as the Merger Filing Fee Modernization Act that would increase merger filing fees for large transactions, could be more successful down the road.

Still, the outlook on any of these bills is mixed, Gilbert said.

"They have good bipartisan support, but whether they get over the finish line is difficult [to say]," Gilbert said at the American Antitrust Institute's 15th annual Private Antitrust Enforcement Conference, where she serves as chair of the board of directors.

Getting over the finish line

Although the House Judiciary Committee passed the six antitrust reform bills in June, they have not advanced to the floor of the U.S. House of Representatives.

Seth Bloom, president and founder of Bloom Strategic Counsel PLLC and former general counsel of the U.S. Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights, believes there's a reason for that.

"Speaker Nancy Pelosi has famously said, 'I don't bring up bills for a vote that are going to lose,'" he said during the conference. "I think there's a real problem getting those bills passed on the House floor."

The problem is that while there is bipartisan support for the bills, Bloom said there is also bipartisan opposition. He questions whether there is enough Republican support for the proposed legislation to overcome Democratic opposition.

Some of the antitrust reform bills' specific targeting of big tech companies based on thresholds the bills set, such as market capitalization of $600 billion or higher, are a "radical departure" from traditional antitrust legislation that Congressional leaders from both sides of the aisle may oppose, he said.

You have this unique combination of Democrats and Republicans and a consensus emerging from the left and the right that you need to step up antitrust enforcement and do antitrust reform.
Seth BloomPresident and founder, Bloom Strategic Counsel PLLC

"There are a number of Democrats from California where some of these companies are, there's the new more moderate Democrats, and other Democrats that will oppose it," he said. "I think these bills, because they're so specifically targeted, raise real questions."

A similar concern was raised by experts last week during a Center for Strategic and International Studies (CSIS) webinar discussing the European Commission's proposed Digital Markets Act. Based on thresholds the DMA sets, the legislation would specifically apply to Google, Apple, Amazon and Facebook.

Although Bloom said the probability of success for the proposed antitrust reform bills is cloudy, the desire for antitrust reform could be enough for legislation to win passage. Yet he doesn't expect to see progress on any of the antitrust reform bills until spring 2022.

"You have this unique combination of Democrats and Republicans and a consensus emerging from the left and the right that you need to step up antitrust enforcement and do antitrust reform," Bloom said.

Also this week

  • U.S. District Judge Yvonne Gonzalez Rogers denied Apple's request Tuesday to stay her order to allow app developers to market external payment options outside of Apple's in-app payment mechanism in the App Store for their products. The order was a result of Epic Games' antitrust lawsuit against Apple that concluded earlier this year. Epic Games accused Apple of anticompetitive behavior when it removed the company's popular Fortnite game from the App Store. Apple has until Dec. 9 to comply with the judge's order but could appeal to the U.S. Ninth Circuit Court of Appeals for a temporary stay.
  • Google lost an appeal against a $2.8 billion fine issued by Europe's competition chief Margrethe Vestager for favoring its price comparison shopping service to the disadvantage of smaller rivals. It's the first of three fines issued against Google by Vestager. Google's loss of the appeal reinforces the European Union in its attempts to use antitrust law to crack down on tech giants.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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