Welcome to The Corner. In this issue, we review the historic series of lawsuits targeting Google and Facebook the past two weeks and discuss why these moves don’t go far enough. We also explain our recent amicus brief to the Supreme Court to head off a legal threat to the FTC’s authority.

🔊 ANTI-MONOPOLY RISING:

• A federal judge approved class-action status for a group of about 1,200 mixed martial arts fighters last week, allowing the fighters to sue the Ultimate Fighting Championship over abuses of its alleged monopoly power. The fighters charge that the promotion company's parent "engaged in an illegal scheme to eliminate competition" and substantially drove down fighters’ wages for years. (Bloomberg)
   

• The German Federal Cartel Office announced last week that it's investigating Facebook for requiring users of its virtual reality product, Oculus, to have a Facebook account. According to German regulators, Facebook’s “tying arrangement” may constitute an abuse of dominance, given the company's dominant position in Germany and its growing footprint in the market for virtual reality products. (TechCrunch)

• Barry Lynn wrote the cover article in the new issue of the Washington Monthly, explaining how President-elect Joe Biden can break up and rein in monopoly without Congress. “An anti-monopoly agenda would enable Biden to frame, direct, and drive deep structural reforms tailored to deliver everything from better health care to better jobs to real solutions to the climate crisis, and to create opportunity and stimulate investment and innovation across the entire economy. Such an agenda would even offer ways to steer political debate in a more constructive and civil direction.”
   
• Claire Kelloway published a piece in The Intercept cataloguing Agriculture Secretary nominee Tom Vilsack’s record of aggressive corporatism and USDA failures during his tenure in the same post under former President Barack Obama. “Vilsack had eight years and numerous opportunities to right historic wrongs within the USDA and put protecting farmers, workers, and the environment ahead of agribusiness profiteering, but he chose not to.” She was also quoted in Washington Monthly commenting on Vilsack.


• Garphil Julien and Daniel Hanley wrote an article in American Banker arguing that Visa’s attempted acquisition of Plaid highlights the need for more merger enforcement. “The DOJ’s lawsuit against Visa’s acquisition of Plaid represents a vital reversal of a decadeslong trend of anemic merger enforcement in the financial industry. But the agency must also pursue a vigorous merger enforcement environment as Congress intended — the Biden administration should instruct the DOJ to implement bright-line merger rules.”
   
• Daniel Hanley published a piece in Washington Monthly critiquing the FTC’s lawsuit against Facebook, examining two FTC decisions that substantially weakened the suit. “The FTC decided to restrict its claims to fit within the Sherman Act rather than its Section 5 authority … [and] the FTC made an additional error by bringing the case in federal court rather than initiating its suit against Facebook in its own administrative forum.”
   
• Sandeep Vaheesan published a piece in WIRED about the Facebook lawsuit, this time articulating the flaws of the litigation and pushing for President-elect Joe Biden to do more. “Litigation, while important, is … costly, complicated, and time-consuming… even with a potentially divided government through 2022, the Biden administration — through the FTC — can begin fixing the law immediately.”
   
• Rachel M. Cohen published a piece in The New Republic proposing that local journalism be treated by the federal government as a public good. “If we believe local journalism is a public good, essential for citizens in every democratic community, then we need to ensure everyone has access to it.”
   
• Open Markets Institute published a new paper, “Scrambled Eggs and Paralyzed Policy: Breaking Up Consummated Mergers and Dominant Firms,” authored by the economists John Kwoka and Tommaso Valletti, demonstrating how to break up consummated mergers and dominant firms such as Facebook. “The usual response to the idea of breaking up dominant firms or consummated mergers is to argue that the costs and difficulties are overwhelming,” the authors write. But “many of these experiences with actual breakups are in fact successful restructurings, with major widely recognized benefits in terms of price, innovation, and investment.” 
   
• Barry Lynn was featured in The New York Times’ DealBook policy roundtable on privacy, competition, and Big Tech. “Barry Lynn of the Open Markets Institute sees privacy and competition on a continuum. By focusing on what companies can do with data and restricting it, the competitive threat they present lessens, he said, so enhancing privacy rights also promotes competition.” He was also quoted in New Statesman making a similar statement.
   
• Barry Lynn was quoted in The Washington Post and Los Angeles Times emphasizing that it is possible to break up Facebook. “Folks figured out how to break AT&T apart, which had a far more complicated physical network,” said Lynn. He called Facebook’s claims about insuperable integration “spin.”
   
• Sally Hubbard was quoted on WAMU American University Radio saying that the Facebook lawsuit shows that the surging anti-monopoly movement has fundamentally changed how enforcers approach corporate concentration. “This is a big deal. I think we’re finally turning the tide and reinvigorating our antitrust laws. Everybody is going to benefit when we have markets that are competitive and functioning.” She was also quoted speaking about the Facebook lawsuits in Vox Recode, Yahoo! Finance Live, MSN, ProMarket, Protocol, Bloomberg TV, KPFA Radio, BBC Business Matters podcast, New York Attorney General Letitia James’ press release.
   
• Sandeep Vaheesan was quoted in S&P Global examining the impact of consolidation on the wireless market. “Consolidation, on the other hand, usually leads to large-scale job losses," as companies seek to eliminate redundancies, he said.
   
• Open Markets’ Twitter account was quoted in BBC and India Narrative for asserting that although the Facebook lawsuits are a critical step forward, regulators must still take a more aggressive stance against tech companies. “There's still more to do, but this is a big moment," Open Markets tweeted.
   
• Open Markets Institute’s statement in response to the lawsuits against Facebook filed by attorneys general and the FTC was featured in The Washington Post, MediaPost, Washington Times, and Adweek. “The Open Markets Institute was among the first to call for the breakup of Facebook, and we are happy to see America’s law enforcers have embraced our thinking.”
   
• Johnny Ryan was mentioned in The Irish Times for his work to stop surveillance capitalism. “Johnny Ryan noted that the widespread targeted advertising business model of the web [is] toxic, unacceptable and at the root of many of the web’s worst anti-democratic, disinformation-pushing, discriminatory and threatening norms.”
   
• Open Markets was mentioned in The American Prospect for joining a coalition of 20 groups in sending a letter to President-elect Biden urging him not to put tech lobbyists in the Office of the U.S. Trade Representative (USTR). “David Roth and Arrow Augerot have previously held roles at USTR, when top USTR priorities were the passage of trade agreements like T-TIP and TPP.”

📈 VITAL STAT:

$39 billion

The amount pharmaceutical corporation AstraZeneca is paying to acquire biopharmaceutical company Alexion. The deal is the largest takeover in the health care industry in 2020. AstraZeneca would expand into the rare disease drug market, in which Alexion is a leader. Alexion manufacturers Soliris, a blood disorder drug that is one of the world’s most expensive drugs. 

📚 WHAT WE'RE READING:

• “The Political Face of Antitrust,” by Spencer Weber Waller, Brooklyn Journal of Corporate, Financial, and Commercial Law: Waller, one of the premier antitrust scholars in the United States, provides an important and well-reasoned review of the rise of antitrust as a central topic in public discourse.

• “Monopolization Remedies and Data Privacy,” by Erika Douglas, Virginia Journal of Law and Technology: Douglas argues that antitrust analysis should consider effects on user privacy when courts or enforcers consider and implement remedies to monopolization cases.

St. Martin’s Press has published Open Markets Executive Director Barry Lynn’s new book, Liberty from All Masters. 

Liberty is Lynn’s first book since 2010’s Cornered. In his new work, Lynn warns of the threat to liberty and democracy posed by Google, Amazon, and Facebook, because of their ability to manipulate the flows of information and business in America. Barry then details how Americans over the course of two centuries built a “System of Liberty,” and shows how we Americans can put this system to work again today. Lynn also offers a hopeful vision for how we can use anti-monopoly law to rebuild our society and our democracy from the ground up.

Liberty from All Masters has already made waves for its empowering call to restore democracy by resurrecting forgotten tools and institutions. “Very few thinkers in recent years have done more to shift debate in Washington than Barry Lynn. In Liberty from All Masters, he proves himself as a lyrical theorist and a bold interpreter of history. This book is an elegant summoning of a forgotten tradition that can help the nation usher in a new freedom,” says Franklin Foer, author of World Without Mind and national correspondent for The Atlantic.

You can order your copy of Lynn’s book here. 

Simon & Schuster published Monopolies Suck by Sally Hubbard on Oct. 27. The book is the first by Hubbard, who is Open Markets’ director of enforcement strategy. Hubbard examines how modern monopolies rob Americans of a healthy food supply, the ability to care for the sick, and a habitable planet, because monopolies use business practices that deplete rather than generate. Monopolists also threaten fair elections, our free press, our privacy, and, ultimately, the American Dream, Hubbard shows. In Monopolies Suck, Hubbard reminds readers that antitrust enforcers already have the tools to dismantle corporate power and that decisive action must be taken before monopolies undermine our economy and democracy for generations to come. In Monopolies Suck, Sally provides an important new view of America’s monopoly crisis and of the political and economic harms of concentrated private power. Order your copy here. 

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