Antitrust’s Most Wanted
We live in a time of both extreme politics and extreme economics. The political side is familiar, but the economic side may be less so. It is represented by new concentrations of personal wealth and unprecedented levels of industrial concentration, both in the United States and globally. That means that an increasing number of industries are dominated by oligopolies and monopolies, with repercussions felt in terms of higher prices, poor treatment of consumers, barriers for entrepreneurs, and suppressed wages for employees.
In the United States, the classic antidote to such excessive concentration has been the antitrust law, enacted during the first Gilded Age to fight the monopolization of the American economy by the trusts. Yet it is a law whose enforcement has weakened over the last 40 years, prompting many to ask if the law has failed in its prime directive. These are the questions asked in my new book, The Curse of Bigness: Antitrust in the New Gilded Age.
But if antitrust is due for a revival, just what should the antitrust law be doing? What are its most obvious targets? Compiled here, and based on discussions with other antitrust experts, is a collection of the law’s most wanted — the firms or industries that are ripe for investigation.
Disclaimer: Nothing stated below should be taken as a definitive legal conclusion in the absence of a full investigation nor should the exclusion of a company or industry be taken as implying a lack of potential antitrust concerns.
(in alphabetical order)
Amazon has taken a dominant share of online retail — clearing nearly 50 percent of the entire e-commerce market — in part through the acquisition of competitors. Its practice of aggressively copying successful marketplace products has similarly raised questions as has its bullying of smaller brands, its efforts to control pricing on competing platforms through “most favored nation” contracts, and aggressive use of 18-month noncompete agreements.
Investigation questions: Does Amazon have buying power in the employee markets in some areas of the country? Does it have market power? Is it improperly favoring its own products over marketplace competitors?
AT&T, the one-time telephone monopolist broken up in the 1980s, has moved into television. Since acquiring Time Warner and HBO for $85.4 billion this year, AT&T has begun using HBO as a club against Dish and Dish Sling — the primary competition to its DirecTV services, whose executives opposed the merger — leading to a blackout for 2.5 million Dish customers who were HBO subscribers.
Investigation question: In light of this, was the trial court’s approval of the AT&T and Time Warner merger clearly in error?
3. Big Agriculture
Over the last five years, the agricultural seed, fertilizer, and chemical industry has consolidated into four global giants: BASF, Bayer, DowDuPont, and ChemChina. According to the U.S. Department of Agriculture, seed prices have tripled since the 1990s, and since the mergers, fertilizer prices are up as well.
Investigation question: Were these mergers wrongly approved in the United States and Europe?
4. Big Pharma
The pharmaceutical industry has a long track record of anticompetitive and extortionary practices, including the abuse of patent rights for anticompetitive purposes and various forms of price gouging. To their credit, the Federal Trade Commission and New York attorney general’s office have put the brakes on “pay for delay” and “patent hopping,” but other practices remain, including exclusive dealing contracts. In addition, price gouging on out-of-patent drugs, despite much outcry, remains uncontrolled. Consider that Daraprim, the antiparasitic drug whose price was hiked under the leadership of Martin Shkreli, who is now in prison, remains at $750 a pill.
Investigation and legislative questions: Are there abuses of the patent system that are still ripe for investigation? Can something be done about pharmaceutical price gouging on drugs that are out of patent or, perhaps more broadly, the extortionate increases in the prices of prescription drugs?
Facebook is a poster child for what Louis Brandeis called the “Curse of Bigness.” Having acquired competitors Instagram and WhatsApp in the 2010s in mergers that were arguably illegal, it has repeatedly increased its advertising load, incurred repeat violations of privacy laws, and failed to secure its networks against foreign manipulation while also dealing suspicious blows to competitor Snapchat. No obvious inefficiencies attend its dissolution.
Investigation questions: Should the Instagram and WhatsApp mergers be retroactively dissolved (effectively breaking up the company)? Did Facebook use its market power and control of Instagram and Instagram Stories to illegally diminish Snapchat from 2016–2018?
On its way to becoming the search monopoly, Google acquired advertising competitors iMob and DoubleClick along with rival Waze and other potential competitors. It copied (or, according to some, stole) the reviews from “local” competitor Yelp while giving its own vertically linked sites search priority to doom a generation of would-be rivals. Europe has fined Google billions of euros for bundling its search engine with Android and paying phone makers to exclusively bundle its search product.
Investigation question: Has Google anticompetitively excluded its rivals?
7. Ticketmaster/Live Nation
Live Nation, which holds a veritable monopoly on the promotion of major music acts, acquired ticketing giant Ticketmaster in 2010. Since then, new and innovative entrants, like Songkick/CrowdSurge, have gone out of business. Now, the events behemoth is being investigated for punishing venues that replace Ticketmaster with cheaper or better entities as well as Ticketmaster helping entities like the NFL maintain price floors on ticket resale.
Investigation questions: Has Live Nation used its power as a promoter to protect Ticketmaster’s monopoly on sales? Was Songkick the victim of an illegal exclusion campaign? Should the Ticketmaster/Live Nation union be dissolved?
In what appears to be a straightforward anticompetitive merger, the two carriers are attempting to merge to reduce the wireless market to three major firms (AT&T, Verizon, and Sprint/T-Mobile). Despite Sprint CEO Marcelo Claure’s suggestion that the merger will help create “millions” of jobs, the merger seems likely to be blocked.
Investigation question: Would the merger between T-Mobile and Sprint likely yield higher prices and easier coordination among the three remaining firms?
9. U.S. Airline Industry
The U.S. airline industry is the exemplar of failed merger review. Over the 2010s, the agencies allowed it to consolidate to three major players (four airlines control 85% of the industry), yielding tiny seats, packed cabins, regular overbooking, higher fees, and other well-known unpleasantries. Since that time, the industry has also engaged in a suspicious coordination of capacity and ticket prices, parallel change fees, and the joint deployment of new “basic” fares. A symptom of the problem is the well-publicized episodes of customer abuse — like the violent removal of a ticketed United passenger after he refused to leave an overbooked flight.
Investigation and regulatory questions: Should one or more of the major mergers be reconsidered in light of new evidence? Alternatively, given the return to previous levels of concentration, should firmer regulation be imposed, including baggage and change-fee caps, minimum seat sizes, and other measures?
10. U.S. Hospitals
After years of consolidation, the number of independent hospitals in most cities and towns has decreased significantly. A series of retrospective studies have found that post-merger, prices increased while the quality of service, measured by mortality rate, decreased. Other studies claimed mergers reduced administrative costs, however. The Federal Trade Commission attempted but failed to block a major Chicago-area merger between Advocate Health Care Network and NorthShore University HealthSystem in 2016.
Legislative question: Should Congress or the states impose higher levels of scrutiny for health care and hospital mergers?