Klobuchar, Blumenthal, Booker File Bill Shifting Antitrust Burden of Proof
Democratic Sens. Amy Klobuchar (Minn.), Richard Blumenthal (Conn.) and Cory Booker (N.J.) introduced legislation Tuesday that would require dominant companies to prove their exclusionary conduct doesn’t harm competition. Klobuchar, ranking member of the Senate Antitrust Subcommittee, announced the legislation during a subcommittee hearing (see 2003090037). Yelp Senior Vice President-Public Policy Luther Lowe said he knows dozens and dozens of CEOs who don’t speak publicly about Google’s anticompetitive behavior due to fear of retaliation.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Congress should act to protect companies from “retribution or retaliation, which is a violation of law,” Blumenthal told us. “We have to treat them as whistleblowers, give them anonymity if necessary and other kinds of protections.” Google didn't comment.
The Anticompetitive Exclusionary Conduct Prevention Act would shift the burden of proof. That's “so that powerful companies that have a market share of greater than 50% or that otherwise have substantial market power would have to prove that their exclusionary conduct in the markets they dominate does not present an ‘appreciable risk of harming competition,’” said an announcement.
Companies should be born free, not born into captivity, said Chairman Mike Lee, R-Utah, during the hearing. He questioned Yelp’s claims that Google’s self-preferencing leads to degraded Search results for consumers. He suggested Amazon selling products that compete with rivals on its platform helps cut prices.
Courts have rendered antitrust enforcement “toothless” regarding self-preferencing, Klobuchar said. Her bill amends the Clayton Antitrust Act to “prohibit ‘exclusionary conduct’ that presents an ‘appreciable risk of harming competition.’” The legislation would clarify antitrust laws don’t “require definition of a relevant market, unless the statutory language explicitly requires it to resolve the case.” It would limit courts’ ability to “imply antitrust immunity for regulated conduct.”
If Google is self-preferencing, it risks losing users to competitors like Bing and DuckDuckGo, said Clemson University economist Thomas Hazlett. Google rose to dominance because it offered products consumers desire, he said. He argued that antitrust enforcement against Microsoft in the late 1990s didn’t achieve the competition it envisioned because Netscape didn’t end up competing. Microsoft continued to dominate the browser market for 10 years, Hazlett said. Google integrated with Gmail, Chrome and other products, allowing it to compete, he said. The same could be said about Apple with Safari. New platforms are capable of uprooting incumbents, he said.
As long as platforms are competing to outdo one another, things are working for the consumer, said ACT|The App Association President Morgan Reed. Consumers can’t afford to have platforms engaging in harmful and deceptive self-preferencing, he said.
Antitrust cases need to be simpler, cheaper and faster so enforcers can bring more cases, said Open Markets Institute Enforcement Strategy Director Sally Hubbard. She called Klobuchar’s bill a step in the right direction because bringing more cases will help correct antitrust law. She said the federal government shouldn’t pre-empt stronger state privacy laws. Reed disagreed, arguing a patchwork of state laws is one of the most important anticompetitive issues. Small businesses don’t have resources to handle that compliance burden, he said.
Sen. Josh Hawley, R-Mo., and Blumenthal wrote DOJ Tuesday, asking Attorney General William Barr to include Google Search, not just advertising tech, in the department's antitrust review of the company. Google is manipulating Search results to privilege its own services, Hawley alleged. There’s an overarching feeling the antitrust framework isn’t working when applied to big tech, said Blumenthal. Google didn't comment.
Blumenthal is glad Lowe mentioned the fear of retaliation. Enforcement is hampered by market power but also the threat of retaliation, which is somewhat invisible, Blumenthal said.