From political leaders to common voters, Americans agree that Big Tech has gotten too powerful.[1] The Trump administration, “in its waning days, filed two of the most important monopoly cases in history against Google and Facebook;”[2] cases the Biden administration has continued to prosecute.[3] Despite differences in justifications for curbing the power of Big Tech,[4] the majority of Americans believe that “Big Tech companies are too powerful and abuse their market power.”[5] Antitrust laws provide a solution to America’s dissatisfaction with Big Tech, but not as the law currently stands.[6]
The House of Representatives has recently passed two bills highlighting issues with antitrust law, which have bipartisan support.[7] This article will discuss the current merger fee scheme and venue limitations that the two bills are looking to revise, as well as how these proposed bills relate to antitrust enforcement in the context of Big Tech.
The Merger Fee Modernization Act
The Merger Fee Modernization Act (the “Merger Act”) is the antitrust bill with the most bipartisan support.[8] Cosponsored by Chairwoman Klobuchar (D-MI) and Senator Grassley (R-IA), the Merger Act aims to provide more resources for federal antitrust enforcement via the Department of Justice and Federal Trade Commission.[9] Although the Merger Act has broad implications for antitrust law, reporters from both sides of the aisle endorse the Act as an opportunity to target Big Tech.[10]
The Merger Act fixes an out-of-date merger fee scheme.[11] Merger fees provide “the primary sources of [federal]antitrust funding.”[12] Currently, “midsize deals provide a disproportionate amount of the funding, but larger deals (more than $5 billion) trigger a disproportionate percentage of antitrust investigation.”[13] As part of its solution to this funding mismatch, the Merger Act revises the fee scheme by increasing the fees from $280 thousand to $2.25 million on deals more than $5 billion as well as other revisions.[14] This series of revisions is expected to provide an extra $1.4 billion in federal antitrust funding over the next five years.[15] With Amazon, Microsoft, and Alphabet hitting record numbers of acquisitions in 2021[16] and a downward trend in federal antitrust funding,[17] the Merger Act could not come at a better time.
The State Antitrust Venue Act
A bill closely related to the Merger Act is the State Antitrust Venue Act (the “Venue Act”).[18] Endorsed by 52 state and territory attorney generals, the Venue Act attempts to strengthen state enforcement of antitrust law.[19] Similar to the Merger Act, the Venue Act has implications broader than Big Tech antitrust, but reporters from both sides endorse the Venue Act as a tool to fight Big Tech.[20]
The Venue Act “updates the transfer rules for multi-district antitrust litigation when a state is a complainant.”[21] As antitrust law currently stands, multi-district antitrust litigation brought by multiple states in federal court is subject to review or consolidation by the Judicial Panel on Multi-district Litigation (the “JPML”).[22] The problem with the current scheme is readily apparent by looking to how the JPML recently granted Google’s request to transfer venue and consolidate multiple states’ antitrust suits.[23] The JPML ignored both the delays caused by the consolidation as well as the sovereign interest of the states.[24] The Venue Act would prevent the forum shopping and delay tactics of companies like Google[25] by granting the state attorney generals exemptions from the JPML, similar to the exemptions already granted to federal prosecutors.[26]
Conclusion
Most Americans believe that Big Tech has become too big.[27] One solution to this problem is revising antitrust law. These two bills—the Merger Act, which will increase appropriations for federal antitrust enforcement,[28] and the Venue Act, which empowers state attorney generals to bring antitrust suits[29]—have bipartisan support.[30] Hopefully, these bills can pass the senate and go on to address America’s dissatisfaction with Big Tech.
[1] See Roger P. Alford, The Bipartisan Consensus on Big Tech, 71 Emory L. J. 893, 894 (2022) (“This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful.”).
[2] Id. at 894.
[3] Id. at 921-23 (“There are currently two major government cases against Facebook. The first was brought on December 9, 2020, by the Trump administration’s FTC and amended under the Biden administration. . . . There are several government cases against Google, reflecting strong bipartisan support for curtailing Google’s monopoly practices. The first government case filed against Google was filed in October 2020 by the Trump administration’s DOJ . . . [T]he Biden administration has continued to prosecute the case.”).
[4] Id. at 896 (“Traditional conservatives are deeply concerned about Big Tech’s ideological bias and ability to silence conservative voices. Liberals are troubled by Big Tech’s misinformation and political power to sway elections.”).
[5] Id. at 901.
[6] See id. at 904-21 (discussing how “current laws are inadequate to curb Big Tech”).
[7] See Klobuchar Bipartisan Legislation to Strengthen Antitrust Enforcement Passes House, U.S. Sen. Amy Klobuchar (Sept. 29, 2022), https://www.klobuchar.senate.gov/public/index.cfm/2022/9/klobuchar-bipartisan-legislation-to-strengthen-antitrust-enforcement-passes-house.
[8] See Alford, supra note 1, at 908 (“Such a proposal is among the least controversial proposals in the package of antitrust legislative reforms.”).
[9] See id.
[10] See Lauren Feiner, House passes antitrust bill that hikes M&A fees as larger efforts targeting tech have stalled, CNBC (Sept. 29 2022, 4:17 PM), https://www.cnbc.com/2022/09/29/house-passes-antitrust-bill-raising-ma-fees.html; Jake Denton, Merger Filing Fee Modernization Act Is a Strong Step Toward Big Tech Accountability, Heritage Found. (Sept. 30, 2022), https://www.heritage.org/technology/commentary/merger-filing-fee-modernization-act-strong-step-toward-big-tech.
[11] See Alford, supra note 1, at 908.
[12] Michael Kades, The state of U.S. federal antitrust enforcement, Wash. Ctr. for Equitable Growth (Sept. 17, 2019), https://equitablegrowth.org/research-paper/the-state-of-u-s-federal-antitrust-enforcement/?longform=true.
[13] See id.
[14] H.R. 3843, 117th Cong. (2022).
[15] See Denton, supra note 10.
[16] See Alex Sherman & Lauren Feiner, Amazon, Microsoft and Alphabet went on a buying spree in 2021 despite D.C.’s vow to take on Big Tech, CNBC, (Jan. 22, 2022, 10:42 AM), https://www.cnbc.com/2022/01/22/amazon-microsoft-alphabet-set-more-deals-in-2021-than-last-10-years.html.
[17] See Kades, supra note 12. Figure 11, “U.S. antitrust resources have fallen recently,” demonstrates the recent decline in antitrust funding from 2011 to 2019. Id. The data was gathered from the DOJ Antitrust Division Operations, which has not been updated with new appropriations data since 2019. Id.
[18] See Alford, supra note 1, at 909.
[19] See id.
[20] See Feiner, supra note 10; Denton, supra note 10.
[21] H.R. Rep. No. 117-494, at 2 (2022).
[22] See id.
[23] See Alford, supra note 1, at 909.
[24] See id.
[25] See id.
[26] See H.R. Rep. No. 117-494, at 2-3.
[27] See Alford, supra note 1, at 901.
[28] See Denton, supra note 10.
[29] See H.R. Rep. No. 117-494, at 2.
[30] See supra text accompanying notes 8, 19.
