Competition Corner

In the age of big data and artificial intelligence, businesses are increasingly using algorithms to make important business decisions. This trend raises antitrust concerns that companies need to be aware of. 

This week, the FTC and DOJ along with the Consumer Financial Protection Bureau, and the Equal Employment Opportunity Commission released a joint statement pledging the agencies’ commitment to enforce their respective laws and regulations and to uphold their commitment to the core principles of fairness, equity, and justice in relation to emerging automated systems.

How are disruptive technologies impacting competition and what are regulators doing in response? In the latest episode of Winston & Strawn’s limited podcast series, Women in Antitrust, Partner and Host Diana Leiden is joined by Partners Sofia Arguello and Susannah Torpey to discuss how companies—from tech giants to fashion labels—are using blockchain and Web3.0 technologies and its effect on competition within their respective industries.

On April 21, 2021, the Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights held a hearing to explore competition in Apple’s App Store and Google Play. Representatives from Apple Inc., Google Inc., Spotify, the Consumer Federation of America, Tile, Inc., and Match Group, Inc. testified about competition within the two app stores.

The nomination of Columbia Law Professor Lina Khan to the Federal Trade Commission last month raised speculation as to whether there might be a new era of antitrust enforcement under the Biden Administration.

Republican Senator Josh Hawley of Missouri introduced a bill on April 12 designed to “crack down on mergers and acquisitions by mega-corporations” and make it easier to break up dominant firms through antitrust enforcement.

Japan’s Study Group on Competition Policy in Digital Markets (Study Group) recently published a Report on Algorithms/AI and Competition Policy (Report) to assist the Japan Fair Trade Commission (JFTC) with competition issues in the digital sector.

During a panel hosted by the Organization for Economic Cooperation and Development on February 24, 2021, acting Federal Trade Commission Chair Rebecca Kelly Slaughter said that the agency is focused on “opportunistic economic conduct” as businesses attempt to recover from the COVID-19 pandemic.

As part of an ongoing effort by the Japanese government to promote economic growth through open innovation, late last year, the Japan Fair Trade Commission (JFTC) and Ministry of Economy, Trade and Industry (METI) jointly released draft Guidelines on Business Collaborations with Startups.

Recently, antitrust law and regulations have made their way to the center stage of politics in the United States.

As is now becoming customary of Federal Trade Commission chairs with a change in administration, FTC Chairman Joseph J. Simons announced his resignation from the Commission early this week.

Antitrust, data privacy, unfair competition, and class actions are among the pillars of consumer protection law. At the same time that federal government agencies and state attorneys general launch investigations and litigations targeting “Big Tech,” the plaintiffs’ class action bar is brainstorming and testing novel theories of competitive harm that unite antitrust and data privacy. In light of these recent activities, companies that use consumer data in their business operations must take heed of the uncertain legal landscape that is evolving to meet technological advances in data analytics.

Digital platforms are under ever-increasing regulation across the globe, with Japan being among the latest countries to pass new legislation concerning their operations. On May 27, 2020, the National Diet of Japan enacted the Act on Improvement of Transparency and Fairness in Trading on Specified Digital Platforms (the Act).

While much of the impact of the new administration is still up in the air pending President-Elect Biden’s appointments of key personnel and the results of the Senate run-offs in Georgia, we are likely to see changes to the focus of the Department of Justice and Federal Trade Commission, and increased antitrust enforcement in several key industries, including tech, health care, and agriculture, over the next several years. 

In recent remarks at the University of Michigan Law School, Deputy Assistant Attorney General Michael Murray announced that the Department of Justice is ramping up its focus on antitrust enforcement in the financial services sector.

On October 6, 2020, the Democratic Majority of the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law released a report following their investigation into large technology platforms including Amazon, Apple, Facebook, and Google.

This Q&A offers insight into the global investigations and lawsuits scrutinizing the antitrust implications of Apple’s App Store policies and practices, as well as broader implications for app developers and others impacted by a technology industry in flux.

On September 14, 2020, the New York Senate Standing Committee on Consumer Protection held a hearing to discuss New York’s antitrust laws, and specifically the Twenty-First Century Antitrust Act (S. 8700-A), which was introduced in July by Senate Deputy Leader Michael Gianaris and Senator Rachel May. As Senator Gianaris noted discussing S. 8700-A, New York’s current antitrust law, the Donnelly Act, was “written over a century ago,” and was “intended to deal with an economy that no longer exists.” 

The U.S. Department of Justice’s Antitrust Division is reorganizing its civil enforcement program with the goal of improving enforcement of judgments and consent decrees, prioritizing civil non-merger enforcement, and creating deeper expertise within the various sections. The Antitrust Division announced on August 20, 2020, that it had created the Office of Decree Enforcement and Compliance, and a Civil Conduct Task Force.

Epic Games, Inc., developer of the wildly popular online videogame Fortnite, has kicked off a real-life battle royale with Apple and Google over their respective application marketplaces and digital payment processing platforms. Specifically, in separate complaints filed on August 13, Epic accused Apple of monopolizing the iOS app distribution market and iOS in-app payment processing market, and accused Google of monopolizing the Android mobile app distribution market and the Android in-app payment processing market.