Klobuchar unveils extended antitrust bill, outlining vision for new subcommittee chair

Senator Amy Klobuchar, D-Minn., On Thursday unveiled a comprehensive bill on antitrust reform, setting a tough tone in her new role as chair of the Senate Judiciary Subcommittee on Antitrust.

Klobuchar frequently criticized what she and other lawmakers saw as lax enforcement of existing antitrust laws and called for strong action against some of the big tech companies. While in the past it has introduced several bills seeking reforms to various aspects of antitrust law, the “Law on Competition Reform and Antitrust Law Enforcement” is a comprehensive proposal that calls for a major overhaul of enforcement standards. If adopted, it would pose a much higher risk for companies such as Facebook and Google, which are already facing federal lawsuits, and for any dominant firm that wants to acquire another company.

With this bill, Klobuchar draws his line in the sand on antitrust reform, signaling that he will use his post to call for major changes to the status quo. Broadly speaking, the bill seeks to reform the antitrust law in three main ways: 1) resetting the enforcement standard and transferring the burden of proof to dominant firms in merger cases; 2) requesting the agencies to periodically study the markets and the effects of mergers, with the help of additional funds; and 3) providing new tools to antitrust authorities, such as imposing civil sanctions.

In Parliament, the chairman of the antitrust subcommittee, David Cicilline, DR.I., similarly called for extensive reforms during an investigation into Amazon, Apple, Facebook and Google. This investigation culminated last year with a nearly 450-page report on the companies’ alleged monopoly power and suggested reforms to restore competition in the digital market.

While Republicans on the House subcommittee did not fully agree with the Democrats’ far-reaching proposals, they were particularly keen to see market issues and the need for reform. This could give some hope for Klobuchar’s proposals to be adopted, at least in part.

Klobuchar’s bill will seek to strengthen antitrust enforcement in the following ways, among others:

• Increasing the bar for dominant companies wishing to merge with other companies, including by transferring the burden of proof to the merging parties.
• Adding a ban on “exclusionary conduct” to the Clayton Act, which governs mergers, to make it more difficult for dominant firms to demonstrate that their mergers will not affect competition if they engage in such acts. Exclusive conduct would include acts that disadvantage actual or potential competitors or limit rival’s ability or incentives to compete.
• Authorize increases of $ 300 million in the annual budgets of the Antitrust Division of the Department of Justice and the Federal Trade Commission, which enforce antitrust laws.
• Allowing antitrust law enforcement to seek civil sanctions for violating the law on monopoly and the offense of exclusive conduct created by the bill, in addition to other remedies they may already seek, such as separations and claims.
• Create an independent competition lawyer’s office within the FTC that can conduct market analysis to inform enforcement and help raise consumer complaints.
• Request merged companies to update the agencies on the results of their transactions and for the agencies to study the impact of previous mergers.
• Extending incentives for whistleblowers to report potential civil violations.

Klobuchar blamed faulty judgments for weakening the meaning of existing antitrust laws, an opinion shared by members of both sides, including former President Donald Trump’s antitrust chief at the DOJ. Its bill seeks to reset the standards for determining the existence of a breach that will give both government law enforcement and private applicants more chances to fight dominant companies.

This could be useful as agencies prepare to face some of the largest companies in the world. Federal agencies and state enforcement authorities are already in full action against Facebook and Google, which will take years to resolve if they go to trial. The law enforcement agencies also looked at both Amazon and Apple, reporting several outlets. All companies denied engaging in anti-competitive behavior.

In the meantime, these companies would probably not be surprised if they received an invitation to testify before the Klobuchar subcommittee this year.

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SEE: How US antitrust law works and what it means for Big Tech