DOCSLIB.ORG

Ftc Stakeholder Perspectives: Reform Proposals to Improve Fairness, Innovation, and Consumer Welfare

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Ftc Stakeholder Perspectives: Reform Proposals to Improve Fairness, Innovation, and Consumer Welfare S. HRG. 115–541 FTC STAKEHOLDER PERSPECTIVES: REFORM PROPOSALS TO IMPROVE FAIRNESS, INNOVATION, AND CONSUMER WELFARE HEARING BEFORE THE SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, INSURANCE, AND DATA SECURITY OF THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE ONE HUNDRED FIFTEENTH CONGRESS FIRST SESSION SEPTEMBER 26, 2017 Printed for the use of the Committee on Commerce, Science, and Transportation ( Available online: http://www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 35–459 PDF WASHINGTON : 2019 VerDate Nov 24 2008 07:37 Mar 18, 2019 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\DOCS\35459.TXT JACKIE SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION ONE HUNDRED FIFTEENTH CONGRESS FIRST SESSION JOHN THUNE, South Dakota, Chairman ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking ROY BLUNT, Missouri MARIA CANTWELL, Washington TED CRUZ, Texas AMY KLOBUCHAR, Minnesota DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts DEAN HELLER, Nevada CORY BOOKER, New Jersey JAMES INHOFE, Oklahoma TOM UDALL, New Mexico MIKE LEE, Utah GARY PETERS, Michigan RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada NICK ROSSI, Staff Director ADRIAN ARNAKIS, Deputy Staff Director JASON VAN BEEK, General Counsel KIM LIPSKY, Democratic Staff Director CHRIS DAY, Democratic Deputy Staff Director RENAE BLACK, Senior Counsel SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, INSURANCE, AND DATA SECURITY JERRY MORAN, Kansas, Chairman RICHARD BLUMENTHAL, Connecticut, ROY BLUNT, Missouri Ranking TED CRUZ, Texas AMY KLOBUCHAR, Minnesota DEB FISCHER, Nebraska EDWARD MARKEY, Massachusetts DEAN HELLER, Nevada CORY BOOKER, New Jersey JAMES INHOFE, Oklahoma TOM UDALL, New Mexico MIKE LEE, Utah TAMMY DUCKWORTH, Illinois SHELLEY MOORE CAPITO, West Virginia MAGGIE HASSAN, New Hampshire TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada (II) VerDate Nov 24 2008 07:37 Mar 18, 2019 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\DOCS\35459.TXT JACKIE C O N T E N T S Page Hearing held on September 26, 2017 ..................................................................... 1 Statement of Senator Moran .................................................................................. 1 Prepared statement .......................................................................................... 2 Statement of Senator Blumenthal .......................................................................... 3 Letter dated September 25, 2017 to Hon. Richard Blumenthal from Paul Zurawski, Senior Vice President, External Affairs, Equifax ..................... 61 Statement of Senator Inhofe ................................................................................... 63 Statement of Senator Capito .................................................................................. 64 Statement of Senator Young ................................................................................... 66 Statement of Senator Hassan ................................................................................. 68 Statement of Senator Klobuchar ............................................................................ 70 Statement of Senator Markey ................................................................................. 72 Statement of Senator Cortez Masto ....................................................................... 74 WITNESSES William MacLeod, Partner, Kelley Drye & Warren LLP ..................................... 5 Prepared statement .......................................................................................... 7 Lydia Parnes, Esq., Partner, Wilson Sonsini Goodrich & Rosati PC .................. 12 Prepared statement .......................................................................................... 14 Jessica Rich, Vice President, Consumer Policy and Mobilization, Consumer Reports .................................................................................................................. 18 Prepared statement .......................................................................................... 19 Berin Szo´ka, President, TechFreedom ................................................................... 23 Prepared statement .......................................................................................... 25 APPENDIX Joshua D. Wright, Professor, George Mason University School of Law and Director, Global Antitrust Institute, prepared statement ................................ 79 Scott Smith, President, Precious Metals Association of North America, pre- pared statement ................................................................................................... 94 Report dated May 2016 from Berin Szo´ka and Geoffrey A. Manne entitled, ‘‘The FTC Trade Commission: Restoring Congressional Oversight of the Second National Legislature—An Analysis of Proposed Legislation ............... 96 Presidential Transition Report: The State of Antitrust Enforcement dated January 2017 from the American Bar Association Section of Antitrust Law . 162 Comments dated September 11, 2017 from Cory L. Andrews and Richard A. Samp of the Washington Legal Foundation to the Federal Trade Com- mission concerning Proposed Consent Agreements and Request for Public Comments in Zero-VOC Paint Claims Cases ..................................................... 205 Letter dated September 26, 2017 to Hon. Jerry Moran and Hon. Richard Blumenthal from Marc Rotenberg, EPIC President; Caitriona Fitzgerald, EPIC Policy Director; and Christine Bannan, EPIC Policy Fellow ................. 213 (III) VerDate Nov 24 2008 07:37 Mar 18, 2019 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\DOCS\35459.TXT JACKIE VerDate Nov 24 2008 07:37 Mar 18, 2019 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\DOCS\35459.TXT JACKIE FTC STAKEHOLDER PERSPECTIVES: REFORM PROPOSALS TO IMPROVE FAIRNESS, INNOVATION, AND CONSUMER WELFARE TUESDAY, SEPTEMBER 26, 2017 U.S. SENATE, SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, INSURANCE, AND DATA SECURITY, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. The Subcommittee met, pursuant to notice, at 2:20 p.m. in room SR–253, Russell Senate Office Building, Hon. Jerry Moran, Chair- man of the Subcommittee, presiding. Present: Senators Moran [presiding], Blumenthal, Inhofe, Capito, Young, Hassan, Klobuchar, Markey, Cortez Masto, Booker, and Fischer. OPENING STATEMENT OF HON. JERRY MORAN, U.S. SENATOR FROM KANSAS Senator MORAN. The hearing will come to order. Good afternoon, and welcome to today’s hearing on FTC Stakeholder Perspectives: Reform Proposals to Improve Fairness, Innovation, and Consumer Welfare. This is our second attempt at this hearing, and many of our pan- elists have been polite and kind enough to return. In fact, last Sep- tember, the full Committee heard testimony from the FTC’s three sitting Commissioners at the time: Chairman Ramirez, Commis- sioner Ohlhausen, and Commissioner McSweeny. We had planned to convene a Subcommittee hearing on that same day, but had to cancel due to scheduling conflicts. The canceled hearing would have consisted of a panel of stakeholders offering their own perspectives about the Commission. Today we will hear from Berin Szo´ka, President of TechFreedom, one of the witnesses who was scheduled to testify last September, as well as three former directors of the FTC’s Bureau of Consumer Protection: William MacLeod, Lydia Parnes, and Jessica Rich. We thank these former FTC officials for their public service and all the witnesses for appearing today to offer their insights on how we can improve the work of the Commission. For over a century, the FTC has been protecting competition and consumers by enforcing the Nation’s antitrust laws and combating deception and unfairness in a wide variety of industries. Through its efforts, the FTC has often helped to prevent anticompetitive practices that stifle innovation, lower quality, or raise prices. It has (1) VerDate Nov 24 2008 07:37 Mar 18, 2019 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\35459.TXT JACKIE 2 also helped to ensure that consumers can make informed decisions based on accurate advertising and avoid injury from fraud and un- fair trade practices, such as unauthorized credit card charges. Although the FTC’s efforts have produced many benefits for con- sumers and the economy, this Committee and others have ques- tioned the way it sometimes exercises its authority under Section 5 of the FTC Act, which addresses unfair and deceptive acts in commerce. Others have argued that the FTC sometimes conducts investigations and issues orders that impose unnecessary costs, and it does not always provide adequate guidance to businesses seeking to comply with the laws the FTC enforces. These concerns have sparked numerous proposals for reforming the FTC. For example, last December, the House Energy and Com- merce Committee reported H.R. 5510, the FTC Process and Trans- parency Reform Act of 2016, a bill incorporating eight separate re- form bills designed to clarify the FTC’s unfairness authority, im- prove the way the FTC operates, foster greater transparency, and reduce unnecessary costs. Similarly, in January 2017, earlier this year, the American Bar Association Antitrust
Load more

Recommended publications
  • V16 FTC Reform
    Consumer Protection & Competition Regulation in a High-Tech World: Discussing the Future of the Federal Trade Commission December 2013 Report 1.0 of the FTC: Technology & Reform Project Consumer Protection & Competition Regulation in a High-Tech World: Discussing the Future of the Federal Trade Commission December 2013 Report 1.0 of the FTC: Technology & Reform Project This document represents the combined input of several authors and commentators, and has been compiled to ask questions and prompt discussion about the Federal Trade Commission. It is, by design, over-inclusive, so that it may foster broad discussion. At the same time, it is also certainly not complete. This document does not necessarily represent the views of its principal authors or other contributors to the drafting process, nor the members of the FTC: Technology & Reform Project. The FTC: Technology & Reform Project was convened by the International Center for Law & Economics and TechFreedom. It is not affiliated in any way with the FTC. I. Introduction ........................................................................................................................................... 2 A. What this Report is About ................................................................................................................. 4 B. The (Not-So-Unique) Role of Technology .......................................................................................... 4 C. Some Historical Context: Constraining & Reasserting FTC Power ...................................................
    [Show full text]
  • Topic 11: the Agency’S Investigation, Enforcement and Remedial Processes
    Comments of TechFreedom Hearings on Competition & Consumer Protection in the 21st Century Topic 11: The agency’s investigation, enforcement and remedial processes Berin Szóka,1 Graham Owens2 & James E. Dunstan3 Overview TechFreedom is a non-partisan think tank dedicated to promoting the progress of technol- ogy that improves the human condition. To this end, we seek to advance public policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes the ultimate resource: human ingenuity. Wherever possible, we seek to empower users to make their own choices online and elsewhere. 1 Berin Szóka is President of TechFreedom, a nonprofit, nonpartisan technology policy think tank. J.D. Univer- sity of Virginia School of Law; B.A. Duke University. He can be reached at [email protected]. 2 Graham Owens is a Legal Fellow with TechFreedom. J.D. George Washington University School of Law; B.A. University of Virginia. He can be reached at [email protected]. 3 James Dunstan is General Counsel of TechFreedom. J.D. Georgetown University Law Center; B.A. Claremont McKenna College. He can be reached at [email protected]. 1 Since its launch in 2011, TechFreedom has spoken often on the FTC’s regulation and en- forcement of antitrust, unfairness, and consumer protection laws. We welcome the oppor- tunity to once again interact with FTC staff as it works through these issues in a changing world where technological innovation has brought huge benefits to consumers, but has also raised novel questions related to privacy, data security, and unfair business practices. On June 20, 2018, the FTC announced that the agency will hold a series of public hearings on whether broad-based changes in the economy, evolving business practices, new tech- nologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.4 In preparation for those hearings, the FTC seeks public comment on eleven (11) issues, through the filing of separate comments on each topic.
    [Show full text]
  • The FTC's Consumer Protection Program During the Miller Years: Lessons for Administrative Agency Structure and Operation
    Catholic University Law Review Volume 46 Issue 2 Winter 1997 Article 3 1997 The FTC's Consumer Protection Program During the Miller Years: Lessons for Administrative Agency Structure and Operation Mark E. Budnitz Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Mark E. Budnitz, The FTC's Consumer Protection Program During the Miller Years: Lessons for Administrative Agency Structure and Operation, 46 Cath. U. L. Rev. 371 (1997). Available at: https://scholarship.law.edu/lawreview/vol46/iss2/3 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE FTC'S CONSUMER PROTECTION PROGRAM DURING THE MILLER YEARS: LESSONS FOR ADMINISTRATIVE AGENCY STRUCTURE AND OPERATION Mark E. Budnitz* The conventional wisdom is that the Federal Trade Commission (FTC) under President Carter's Chairman, Michael Pertschuk, turned the FTC into a renegade agency which engaged in runaway consumer protection, hamstringing business with excessive regulation to such an extent it be- came known as the "national nanny." 1 According to this popular view, Congress ultimately was compelled to rein in the agency to force it to return to the role Congress intended for it. The conventional wisdom portrays the FTC under Pertschuk's successor, President Reagan's ap- pointee James Miller, in very different yet equally immoderate terms. Miller supposedly went to the opposite extreme, acting as the puppet of the industry he was supposed to regulate by virtually halting the agency's consumer protection activities.2 This Article demonstrates that the reality was far more interesting, complex, and problematic than these generalities suggest.
    [Show full text]
  • APPOINTEE FILES: Records, 1981- 1989 – REAGAN LIBRARY COLLECTIONS
    COUNSEL TO THE PRESIDENT, OFFICE OF THE: APPOINTEE FILES: Records, 1981- 1989 – REAGAN LIBRARY COLLECTIONS Material noted in bold within this collection is currently available for research use. If a folder is available for research use it may still have withdrawn material due to Freedom of Information Act restrictions. Most frequent withdrawn material is national security classified material, personal privacy, protection of the President, etc. Any non-bolded folder is closed for research. The non-bolded folders are subject to Freedom of Information Act (FOIA) requests under the provisions of the Presidential Records Act (PRA). If you are interested in submitting a FOIA request for access to any of the unavailable records or have any questions about these collections or series, please contact our archival staff at 1-800- 410-8354, outside the US at 1-805-577-4012, or email [email protected] COUNSEL TO THE PRESIDENT, OFFICE OF THE: APPOINTEE FILES: Records, 1981-1989 The Appointee File consists of four series: SERIES I: Appointee Files by Position; SERIES II: Appointee Files by Individual; SERIES III: The President's Private Sector Survey on Cost Control, and SERIES IV: Appointment Memoranda Within Series II, we are using the following organizational abbreviations for all unprocessed folder titles: ACDA - Arms Control & Disarmament FBI - Federal Bureau of Investigation Agency FCC - Federal Communications ACTION Commission AID - Agency for International FDIC - Federal Deposit Insurance Development Corporation CIA - Central Intelligence Agency FEMA - Federal Emergency Management DOAg - Dept. of Agriculture Agency DOC - Dept. of Commerce FNMA - Federal National Mortgage DOD - Dept. of Defense Association DOE - Dept.
    [Show full text]
  • Chartcommissioners and Chairmen of the Federal
    COMMISSIONERS AND CHAIRMEN OF THE FEDERAL TRADE COMMISSION MARCH 2013 CHAIRMEN OF THE FTC AND THE DATES SERVED Chairmen Selected by Commissioners 1915 1920 1925 1930 1935 1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010 2015 2020 2025 2030 2035 2040 2045 2050 1. Davies (D) Mar 16, 1915 to Jun 30, 1916 2. Hurley (D) Jul 01, 1916 to Jan 31, 1917 GEORGE RUBLEE (P) 03/16/15-09/08/16 3. Harris (D) Feb 01, 1917 to May 06, 1918 JOHN F. FORT (R) 03/16/17-11/30/19 4. Colver (D) May 07, 1918 to Jun 30, 1919 NELSON B. GASKILL (R) 02/01/20-02/24/25 5. Fort (R) Jul 01, 1919 to Nov 30, 1919 WILLIAM E. HUMPHREY (R) 02/25/25-10/07/33 6. Murdock (P) Dec 01, 1919 to Nov 30, 1920 GEORGE C. MATHEWS (R) 10/27/33-06/30/34 7. Thompson (D) Dec 01, 1920 to Nov 30, 1921 ROBERT E. FREER (R) 08/27/35-12/31/48 8. Gaskill (R) Dec 01, 1921 to Nov 30, 1922 9. Murdock (P) Dec 01, 1922 to Nov 30, 1923 JOHN CARSON (IND) 09/28/48-03/31/53 10. Thompson (D) Dec 01, 1923 to Nov 30, 1924 EDWARD F. HOWREY (R) 04/01/53-09/12/55 11. Van Fleet (R) Dec 01, 1924 to Nov 30, 1925 SIGURD ANDERSON (R) 09/12/55-02/29/64 12. Nugent (D) Dec 01, 1925 to Nov 30, 1926 WILL H.
    [Show full text]
  • Using the "Consumer Choice" Approach to Antitrust Law Neil W
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 2007 Using the "Consumer Choice" Approach to Antitrust Law Neil W. Averitt Bureau of Competition, Federal Trade Commission Robert H. Lande University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Antitrust and Trade Regulation Commons, and the Law and Economics Commons Recommended Citation Using the "Consumer Choice" Approach to Antitrust Law, 74 Antitrust L.J. 175 (2007) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. USING THE "CONSUMER CHOICE" APPROACH TO ANTITRUST LAW NEIL W. AVERITT ROBERT H. LANDE* The current paradigms of antitrust law-price and efficiency-do not work well enough. True, they were an immense improvement over their predecessors, and they have served the field competently for a genera­ tion, producing reasonably accurate results in most circumstances. Accu­ mulated experience has also revealed their shortcomings, however. The price and efficiency paradigms are hard to fully understand and are not particularly transparent in their application. Moreover, in a disturbingly large number of circumstances they are unable to handle the important issue of nonprice competition. In this article we suggest replacing the older paradigms with the somewhat broader approach of "consumer choice." 1 The choice framework has several advantages.
    [Show full text]
  • Download Our Brochure
    Antitrust Writing Awards 2018 Washington, DC April 10, 2018 US Court of Appeals, DC Circuit, Judge awards.concurrences.com JURY The Jury is comprised of the Board, the Academic and Business Steering Committees, the Editorial Committee and the Readers. Each of these contributed to the selection process of academic and business articles as well as soft laws. The Editorial Committee of Concurrences Review selected a pool of 220 articles out of more than 500 submissions from the two Steering Committees and the Readers. Then, the Steering Committees and the Readers voted for their favorite articles, resulting in a short list of 40 finalists (20 Academic and 20 Business). Finally, the Board nominated 20 award-winning articles. As for soft law, the Editorial Committee invited competition agencies to submit their soft law documents. The Steering Committees members and the Readers then voted for the 5 best documents. Board Academic Steering Committee • Andrea COSCELLI, Competition and Markets Authority UK • Pinar AKMAN, University of Leeds • Alison JONES, King’s College London • John ASKER, University of California, Los Angeles • Marina LAO, Seton Hall University, School of Law • Douglas GINSBURG • David BAILEY, King’s College, London • Ioannis LIANOS, University College London US Court of Appeals, DC Circuit • Caron BEATON-WELLS, Melbourne Law School • Sandra MARCO COLINO, The Chinese University • Christian BOVET, University of Geneva Law of Hong Kong • Frédéric JENNY School • Douglas MELAMED, Stanford Law School OECD Competition Committee •
    [Show full text]
  • The Washington, DC Antitrust Bar
    Americas The Washington, DC antitrust bar As Washington, DC is roiled by political turmoil, its antitrust bar remains deeply rooted and largely stable – as well as the biggest and arguably most important in the world. Pallavi Guniganti and Charles McConnell review the merits of more than 40 competition practices in the US capitol Washington, DC is unquestionably a different place – Walgreen Boots Alliance’s acquisition of rival retail than it was two years ago, when GCR last surveyed pharmacy chain Rite Aid – has been cut down to a the city’s antitrust bar. Most obviously, the election of purchase of fewer than half of the shops after a lengthy Donald Trump has changed the leadership of the US FTC investigation. The presumption of laxer treatment Federal Trade Commission and US Department of of business under a conservative president has been Justice’s antitrust division, as well as other government complicated by Trump’s emphasis on retaining jobs departments that can affect competition through and campaign rhetoric against NBCUniversal, Time regulation. At the time of writing, the nomination Warner and Amazon. While the Committee for of Makan Delrahim as assistant attorney general Foreign Investment in the US vets deals for their effect for antitrust awaits a vote by the full Senate, and the on national security and not competition, an increas- president has yet to name a permanent head of the ing number of antitrust lawyers in Washington, DC FTC; the commission’s sole Republican, Maureen say they are hearing anxiety from Asian clients about Ohlhausen, has been acting chairman. the president’s “America First” slogan, interpreted as Many observers have said they expect the change potential hostility toward acquisitions of US compa- in political party to affect antitrust enforcement only nies by foreigners.
    [Show full text]
  • 90Th Anniversary Program
    Federal Trade Commission 90th Anniversary Symposium September 22-23, 2004 Federal Trade Commission Conference Center Acknowledgments It took many people to plan, organize, and stage the celebration of the 90th anniversary of the Federal Trade Commission. Foremost among them are all the participants of the Anniversary Symposium, listed in this Program, who include current and former Commissioners, current FTC management and staff, FTC alumni, and other friends of the agency. In addition, many other individuals made major contributions to the celebration. Special thanks go to Erin Malick, who created the graphics for the Symposium, and Joshua Budich, Gregory Hales, and Barri Hutchins, who designed the related Web materials. Others who worked to make this a special occasion for the entire FTC community include FTC staff members Judy Armstrong, Marie Barrett, Donald Clark, Anna Davis, Lesley Fair, Melissa Farmer, Kanithia Felder, Rhondia Garris, Keith Golden, Maame Gyamfi, James Hamill, Alice Saker Hrdy, Dawne Holz, Bruce Jennings, Brenda Johnson, Gracie Johnson, Judy Jones, Nancy Ness Judy, Maryanne Kane, Spencer Kiggins, James Murray, Carolyn Riley, Derick Rill, Jennifer Schwartzman, Carolyn Shanoff, Janet Silva, Claudia Simons, Virginia Smith, Elaine Sullivan, Heather Thomas, and Christian White. We also express deep appreciation to Caswell O. Hobbs, Margaret Stafford, Esther Brewer Martinson, the American Bar Association Section of Antitrust Law, and the FTC Alumni Society for organizing a reception and dinner in honor of the FTC’s 90th anniversary. Judith Bailey Chair, 90th Anniversary Events The FTC also wishes to acknowledge the Woodrow Wilson House for its permission to use a photograph of President Wilson on event materials.
    [Show full text]
  • In Defense of Breakups: Administering a “Radical” Remedy
    Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship 2020 In Defense of Breakups: Administering a “Radical” Remedy Rory Van Loo Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Antitrust and Trade Regulation Commons, and the Business Organizations Law Commons ***DRAFT *** IN DEFENSE OF BREAKUPS: ADMINISTERING A “RADICAL” REMEDY Cornell Law Review (Forthcoming, 2020) Rory Van Loo† Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that past acquisitions of companies like Whole Foods, Instagram, and YouTube were anticompetitive. But scholars have paid insufficient attention to another major obstacle that also explains why the government in recent decades has not broken up a single large company. After establishing that an anticompetitive merger or other act has occurred, there is great skepticism of breakups as a remedy. Judges, scholars, and regulators see a breakup as extreme, frequently comparing the remedy to trying to “unscramble eggs.” They doubt the government’s competence in executing such a difficult task, pointing to decision-making flaws dating back to the breakups of Standard Oil in 1911 and AT&T in 1984. Even many scholars calling for more vigorous antitrust enforcement recommend alternative remedies. This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies—too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable. The intellectual foundations for the anti-breakup stance are weak, relying on outdated, anecdotal evidence. Moreover, antitrust would benefit from a methodological shift toward paying greater attention to the breakup insights yielded by other disciplines.
    [Show full text]
  • Antitrust Modernization Commission: Report and Recommendations
    Sherman Act, Section 1 (15 U.S.C. § 1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a cor- poration, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. Sherman Act, Section 2 (15 U.S.C. § 2) Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceed- ing three years, or by both said punishments, in the discretion of the court. Clayton Act, Section 7 (15 U.S.C. § 18) No person engaged in commerce or in any activ- ity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.
    [Show full text]
  • Comments of R Street Institute
    1212 New York Ave., N.W. Suite 900 Washington, DC 20005 Free Markets. Real Solutions. 202.525.5717 www.rstreet.org ________________________________________________ ) ) In the Matter of ) ) Docket No. 180821780-8780-01 Developing the Administration’s ) Approach to Consumer Privacy ) ) ________________________________________________ ) Comments of R Street Institute Respectfully submitted, /s/ Charles Duan Tech Policy Director Joe Kane Tech Policy Fellow Tom Struble Tech Policy Manager Caleb Watney Tech Policy Fellow Jeff Westling Tech Policy Associate November 9, 2018 2 | R Street Institute Table of Contents Comments of R Street Institute ………………………………………………………………………………………… 1 Table of Contents …………………………………………………………………………………………………………….. 2 Introduction …………………………………………………………………………………................................................ 4 Summary of RSI Works on Various Privacy Issues ...…………………………………………………….......... 4 Conclusion ...……………………………………………………......................................................................................... 9 Appendix A: Tom Struble & Joe Kane, “New Internet Privacy Bill Would Bring European-Style Regulations,” The Daily Caller (May 31, 2017)……………………………….................................. 10 Appendix B: Tom Struble & Joe Kane, “A Three-Step Plan to Promote Consumer Privacy,” Morning Consult (June 26, 2017) ……………………………………………………................................ 12 Appendix C: Tom Struble, “For Internet Gatekeepers, Consumer Protection Laws are Better than Utility-Style Regulation,” Brookings TechTank (Sept. 26, 2017).…………………….
    [Show full text]