Technology and innovation

1. What is in the Executive Order?

The Executive Order sets forth the Biden Administration's vision of a whole-of-government antitrust policy and commits the federal government to aggressive enforcement of the antitrust laws. In particular, the Executive Order:

• Calls on the federal antitrust enforcers, the US Department of Justice, Antitrust Division ("DOJ") and the US Federal Trade Commission ("FTC"), to enforce the antitrust laws more vigorously.
• Recognizes that the federal antitrust enforcers may lawfully challenge consummated mergers that previous Administrations did not challenge.
• Directs the antitrust enforcers to focus on labor, agriculture, healthcare, and technology sectors.
• Establishes a White House Competition Council, led by the Director of the National Economic Council, to monitor progress on the initiatives set forth in the Executive Order and coordinate implementation between agencies.

In addition to the above, the Executive Order seeks to introduce new rules and/or guidelines for specific economic sectors. We include below takeaways for various industry-specific mandates.

2. What's pending?

To date, there are several proposals pending from Federal and State legislatures, US agencies, and the Executive Branch. Some of the more prominent proposals are listed below:

Federal proposals

In October 2020, the US House Subcommittee on Antitrust issued a Report and Recommendation titled, "Investigation of Competition in Digital Markets," which resulted from a bipartisan investigation into the state of on-line competition. In brief, the 449-page report recommended three areas for further action: (1) restoring competition in the digital economy, (2) strengthening the antitrust laws, and (3) reviving antitrust enforcement.¹ This Report and Recommendation, co-written by now FTC Chair Lina Kahn, has fueled a spate of legislative and administrative proposals.

There presently are six bills introduced in the House that, in sum, would change US monopoly laws to make it more difficult for major tech companies to buy nascent competitors, prohibit them from giving preference to their own services on their platforms, and ban them from using their dominance on one business to gain leverage in another business.² These bills also propose a broader definition of consumer welfare that goes beyond lower prices. At present time, the bills still need to pass the full House of Representatives and then get introduced into the Senate. We do not expect these bills to be enacted without some political compromise.

There currently are also three proposed antitrust bills in the Senate.³ Although they differ somewhat in approach, all three bills seek to amend the Clayton Act to (1) relax the standards to determine whether an acquisition is anticompetitive; (2) restrict mergers by "extremely large" companies; and (3) enhance the antitrust enforcement powers of both private plaintiffs and the federal government. While all three bills seek to increase the enforcement powers of the DOJ, the Klobuchar and Hawley bills also increase the FTC's enforcement powers—the TEAM Act seeks to consolidate all federal antitrust authority at the DOJ. All three bills would have a chilling effect on Big Tech companies by restricting acquisitions, even unrelated to the core technology business, of companies with large market capitalization. While the target of the three bills may be Big Tech, the proposed modifications would also negatively impact the business activities of other types of large companies considering potential acquisitions.

Recent court decisions applying traditional antitrust laws in favor of dominant companies have fueled bipartisan support for the need to "modernize our antitrust laws to address anticompetitive mergers and abusive conduct in the digital economy."⁴

FTC administrative proposals

Subsequent to her appointment as FTC Chair on June 15, 2021, Lina Khan has announced almost daily administrative changes designed to strengthen and broaden the FTC's enforcement powers. Most of these changes have been approved based on party line voting. Among those changes are:

• Repealing the long-standing policy of requiring prior approval of certain future acquisitions only in certain limited situations as part of a merger remedy;
• Reviewing the existing merger guidelines with a goal of implementing a rigorous analytical approach;
• Promoting the use of compulsory process to investigate seven specific enforcement priority targets including repeat offenders; technology companies and digital platforms; and healthcare businesses such as pharmaceutical companies, pharmacy benefits managers, and hospitals. The agency is also prioritizing investigations into harms against workers and small businesses, along with harms related to the COVID-19 pandemic. Finally, at a time when merger filings are surging, the agency is ramping up enforcement against anticompetitive mergers, both proposed and consummated; and
• Rescinding limits on the FTC's use of Section 5 of the FTC Act, which authorizes the FTC to investigate and bring enforcement actions for "unfair methods of competition," which is not defined and could be used more broadly than existing federal antitrust laws.

DOJ administrative proposals

As we await President Biden's appointment of an Assistant Attorney General to lead the Antitrust Division, the DOJ has taken some modest steps recently toward more vigorous antitrust enforcement. These include:

• Declaring support of the US Department of Agriculture's proposed rules strengthening enforcement of the Packers and Stockyards Act;
• Participating in (along with the FTC) the Multilateral Pharmaceutical Merger Task Force, which seeks to identify concrete and actionable steps to refresh and update the analysis of pharmaceutical mergers;
• Planning to launch a joint review with the FTC of the existing merger guidelines; and
• Following the issue of Biden's Executive Order, signing an interagency Memorandum of Understanding with the Federal Maritime Commission to foster cooperation and communication between the agencies to enhance competition in the maritime industry.

State proposals

New York State is presently the only state to propose legislative antitrust reform measures. On June 7, 2021, the New York State Senate passed the "Twenty-First Century Antitrust Act," which seeks to expand New York's antitrust laws by establishing first-of-its-kind US state premerger notification requirements for mergers with as low as a $9.2 million threshold in New York, prohibiting "abuse of dominance" by companies with market shares as low as 30%, authorizing private class actions, and raising criminal penalties. We expect other states to follow this trend.

3. What does all this mean?

The Executive Order and the legislative proposals are not binding law—however they presage a change in the scope of antitrust law that is certainly underway. How far these proposals go remains to be seen. But right now, one thing is certain: merger reviews in all industries—but especially in technology, pharmaceuticals/healthcare and banking/finance—will take longer and be more in-depth. Moreover, it is certain that complaints from competitors and customers involving transactions will be taken very seriously by the agencies and will be carefully considered as part of the merger review. In connection with potential anticompetitive conduct, this provides new opportunities for companies that wish to bring complaints to the agencies about conduct undertaken by competitors to have their complaint heard and taken seriously. And it should serve as a wake-up call to those dominant companies to reconsider aggressive positions that impact competition and result in harm to social welfare—no longer will a focus on price and output suffice to determine anticompetitive impact.

4. How does this affect my industry?

Longer investigations for all transactions

Although the Order contains specific references to several industries, we believe that transactions in virtually all industries will be affected by this more aggressive antitrust enforcement regime. Where previously routine merger investigations may have taken between 2-6 months, with more in-depth investigations taking 6-12 months, most investigations going forward can be expected to take longer. Moreover, we expect both agencies to raise a wide range of theoretical economic issues that go beyond traditional investigations as they test the boundaries of a more aggressive and holistic approach to antitrust enforcement. We further expect the agencies to more aggressively solicit information from non-party market participants. In addition, parties may be required to offer broader divestiture packages than comparable transactions have in the past. Parties should plan accordingly.

Labor markets

For the past several years, the FTC and DOJ have focused on restrictions that employers impose on their workforce and rooting out anti-poaching and anti-solicitation agreements among employers that prevent worker mobility. Picking up on this theme, the Order encourages the FTC to ban or limit non-compete agreements and to ban unnecessary occupational licensing restrictions that impede economic mobility. The Order further encourages the FTC and DOJ to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another.

Technology and innovation

It is not an overstatement to say that the major overhauls proposed by the Biden Administration are, in large part, due to the belief that certain dominant tech firms are undermining competition and reducing innovation. Counsel should keep in mind these major takeaways from the Executive Order viewed in light of current antitrust trends:

1. Be prepared to face thorough merger and conduct investigations.

Under the current Administration, all indications point to a more rigorous merger review process in the technology space. The Order announces a policy of greater scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by 'free' products, and the effect on user privacy. Parties should be prepared for prolonged review periods and to grapple with new theories of competitive harm. In the same vein, technology companies should be prepared to respond to civil investigative demands, whether as the target of an investigation or as a third party, as the antitrust enforcers ramp up conduct investigations.

2. Data matters.

We expect the collection, use, and aggregation of data will be increasingly relevant to antitrust law. In line with the Administration's emphasis on both competition and consumer protection goals, the Executive Order further calls on the FTC to "establish rules on surveillance and the accumulation of data." It remains to be seen whether courts will adopt a consumer welfare standard that takes into account consent, privacy, and data rights, but these considerations will likely play into the FTC's enforcement actions and potentially merger investigations.

3. The FTC is adding to its enforcement toolkit to match its expanded mandates.

The Order spotlights Big Tech platforms and "encourages the FTC to establish rules barring unfair methods of competition on internet marketplaces." In light of the FTC's recent withdrawal of any limits on its interpretation of "unfair methods of competition" under Section 5 of the FTC Act, we expect the FTC to accept this as a mandate to create broad rules that expand present day limits. FTC Chair Lina Khan has discussed exploring the bounds of powers under Section 5 and potentially new enforcement mechanisms under older statutes such as the Packers and Stockyard Act. We expect the FTC to explore new methods to advance its competition and consumer protection goals. The latter encompasses hot-button issues such as the collection, use, and aggregation of consumer data, but also issues such as the "right to repair." The Order specifically "encourages the FTC to issue rules against anticompetitive restrictions on using independent repair shops or doing DIY repairs of your own devices and equipment."

5. Where do I get guidance?

The Norton Rose Fulbright US Antitrust and Competition group is following all these developments as they happen. We can assist you with your strategic plans and counsel you through these important times. Please contact us if you have any questions or need further information.