From Barry C. Lynn, Open Markets Institute <[email protected]>
Subject The Corner Newsletter: Open Markets Discusses a Letter Sent to the DOJ to Block Bertelsmann's Roll Up of the Book Market and Whether Rebecca Slaughter Make the FTC an Antimonopoly Powerhouse
Date January 29, 2021 10:30 PM
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Welcome to The Corner. In this issue, we discuss a Letter sent to the DOJ to block Bertelsmann's roll up of the book market and whether Rebecca Slaughter make the FTC an antimonopoly powerhouse

Open Markets and 7 Writers Groups Call on DOJ to Block Bertelsmann’s Roll Up of the Book Market

This morning, the Open Markets Institute and the Authors Guild asked the Department of Justice [[link removed]] to block Bertelsmann's plan to take control of the book publisher Simon & Schuster. In the letter, we argue that the deal is dangerous for democracy and freedom of expression in America, and for the interests of America's authors, editors, independent booksellers, readers, and the public as a whole. We also believe the deal would clearly violate the antitrust laws of the United States.

In addition to Open Markets and the Guild, the letter has been signed by six other writers groups: the Horror Writers Association, the National Writers Union, the Western Writers of America, the Romance Writers Association, Novelists Inc., and Sisters in Crime.

You can read the full letter here [[link removed]].

Will Slaughter Make the FTC an Antimonopoly Powerhouse? Her Words Promise Big Change.

Last week the Biden Administration named Commissioner Rebecca Slaughter as acting chair of the Federal Trade Commission. The move came soon after the administration named Slaughter’s fellow FTC Commissioner Rohit Chopra to head the Consumer Financial Protection Bureau.

Slaughter first joined the FTC in May 2018 after serving on the staff of Sen. Chuck Schumer. Since then, Slaughter has proven to be a powerful voice in favor of stronger antimonopoly enforcement by the agency. This played out perhaps most importantly in the FTC’s three to two decision last December to sue Facebook for illegal monopolization of the market for social networking.

A close look at Slaughter’s writings in office indicates that, if her appointment is made permanent, an FTC under her direction may become an even more powerful force in addressing the increasingly extreme concentration of private power in the United States. Three areas of debate especially stand out:

Vertical integration. In January 2019, Slaughter based her dissent in In the Matter of Sycamore Partners, Staples, and Essendanton a vigorous critique of the FTC’s approach to vertical mergers. Slaughter said that corporate claims that a merger will prove to be “efficient” – however unverified – had become an almost magic key for approval of a deal. “I am particularly concerned that the current approach to vertical integration has led to substantial under-enforcement,” she wrote.

Slaughter developed this argument in June 2020 when she strongly objected to new guidelines for vertical merger enforcement adopted by the FTC and Justice Department. The new guidelines, she wrote, amount to a “false assertion that vertical mergers are almost always procompetitive” and would make it even harder to block such deals. Slaughter also made clear lax enforcement against vertical mergers affected “every American” and was especially disruptive in the “health care, agriculture, digital, and telecommunications markets.”

Protection for Workers. In October 2020, Slaughter wrote a letter to the Department of Labor condemning a plan to allow corporations to more easily classify their workers as independent contractors. In the letter, Slaughter made two separate competition-based arguments against relaxing the rules.

First was that such “misclassification harms the ability of workers to compete for better wages and working conditions.” The new rule, she said, “only adds to the legal uncertainty surrounding which independent contractors qualify for the collective bargaining antitrust exemption.” Second was that the new rule would give firms that ‘misclassify their workers as independent contractors an unfair competitive advantage” against rivals who “properly classify similar workers as employees.”

Social Justice. In a September 2020 interview with CNBC, Slaughter argued that competition policy is entirely intertwined with social justice and that it is vital for law enforcers to take social justice into account in structuring markets. Antitrust enforcement, she said, “isn’t neutral.” Enforcers “should be much more open-eyed about what values we are advancing or what priorities we are advancing with our enforcement decisions.”

Over the last two years, Slaughter also made important arguments against relying on post-merger regulation of monopolies and in favor of structuring corporations and markets to ensure compliance with the law, as well as for the FTC to engage in more retrospective analyses.

Slaughter’s record is not perfect. In an October 2019 case on wage-fixing, she agreed to a settlement that required no monetary relief and no admission of fault. But overall, Slaughter’s writings demonstrate that she may prove to be an important leader in the struggle to address America’s monopoly crisis.


Connecticut Attorney General William Tong earlier this month launched an investigation into potential anticompetitive conduct by Amazon in its e-book division. Days later, the law firm Hagens Berman filed a private class action lawsuit in New York accusing Amazon of price fixing e-books through its distribution agreements with the nation’s top five publishing companies. ( The [[link removed]] Hill [[link removed]])

Tyson Foods last week agreed to pay $221.5 million to settle claims by their customers of price-fixing. The class action lawsuit against Tyson began in 2016 when restaurants, supermarkets, food distributors, and end users accused the company of inflating chicken prices by lowering chicken production and collusion through sharing nonpublic data. According to the lawsuit, the company had been engaging in these practices since 2008. Last year the Department of Justice also sued Tyson and other poultry producers on charges of price-fixing. ( Reuters [[link removed]])

The EU’s antitrust watchdog this week opened an investigation into Chicago-based confectionary company Mondelez. The Directorate General for Competition accused Mondelez of using illegal agreements to block cross-border trade of its products within the European Union. ( Financial [[link removed]] Times [[link removed]])


Open Markets Institute issued a statement [[link removed]] asserting that Google’s threat to stop providing search services to the people of Australia, and Facebook’s threat to block Australians from sharing links to news, proves the platforms pose a fundamental threat to the world’s democracies. "These autocratic actions show why Americans across the political spectrum must work together to break the power that Google, Facebook, and Amazon wield over our news and communications, and over our political debate. They show why citizens of all democracies must work together to build a communications infrastructure safe for all democracies in the 21st Century.”

Sally Hubbard was quoted in The New York Times [[link removed]] commenting on the disclosure of a deal between Google and Facebook to close off competition in online advertising. “This idea that the major tech platforms are robustly competing against each other is very much overstated,” said Sally Hubbard, a former assistant attorney general in New York’s antitrust bureau who now works at Open Markets Institute, a think tank. “In many ways, they reinforce each other’s monopoly power.” The story also appeared in many other publications, including The Baltimore Sun [[link removed]], The Hartford Courant [[link removed]], CBNC [[link removed]], and NewsExpress [[link removed]]. Hubbard was also quoted in a similar story by Freeport Press [[link removed]].

Barry Lynn was mentioned in Foreign Policy [[link removed]] and The Business Standard [[link removed]] in a story about the history of John Kenneth Galbraith. “As U.S. industrial corporations have declined, a new group of self-styled progressives has come to prominence in the United States. They include the writers Barry Lynn and Matt Stoller, the lawyer Zephyr Teachout, and their leading political representative, Sen. Elizabeth Warren.”

Sandeep Vaheesan was included in a story in Common Dreams [[link removed]] and RawStory [[link removed]] about the role of the Senate Budget Committee. “ @sandeepvaheesan [[link removed]] Imagine being horrified by the prospect of spending more money on things that make life better for people everywhere and less on things designed to kill people outside the U.S.”

The Open Markets’ three-step action plan to rein in Big Tech's concentrated control while safeguarding free online expression was quoted in Salon [[link removed]], FlickPrime [[link removed]], and EthicsinTech [[link removed]]. “First, Congress must enact clear rules that protect free speech while also barring incitements to violence, libel, and other restricted speech on all public debate forums hosted by any corporation providing essential communications services…”

Open Market’s statement about Google’s takeover of FitBit was published by Common Dreams [[link removed]]. “To Protect Democratic Rule of Law, Privacy, and Public Health, the Biden Administration Should Immediately Move to Block Google’s Takeover of Fitbit”

A letter signed by Open Markets Institute urging President Biden not to appoint anyone with Big Tech ties to key antitrust enforcement positions was cited in Politico [[link removed]]. The letter was also mentioned in Yahoo News [[link removed]], Newsmax [[link removed]], GoodWordNews [[link removed]], Day Update [[link removed]], Comps Mag [[link removed]], and BollyInside [[link removed]].

Sally Hubbard was quoted in Bloomberg Businessweek [[link removed]] emphasizing that Apple and Amazon will likely be the next Big Tech corporations to face antitrust lawsuits. “The fact that cases were filed against Google and Facebook doesn’t mean Apple and Amazon are off the hook,” she said.

Johnny Ryan co-authored a piece in Euractiv [[link removed]] with Cristina Caffarra about why privacy is a competition issue. “Privacy is a competition issue, but privacy regulators’ failure to enforce privacy rules is the persistent failure that holds back progress – even more than the slow turning of the antitrust wheels.” Also mentioned in TechCrunch [[link removed]], California News Times [[link removed]], Estate Dispatch [[link removed]], and Internet Cloning [[link removed]].

Daniel Hanley was quoted in The National Journal [[link removed]] urging the Biden administration to break from the norms of the Obama administration and appoint strong, anti-monopoly nominees for key positions at the FTC, FCC and DOJ. “Now is not the time for centrism,” said Daniel Hanley, a policy analyst at the Open Markets Institute, a left-wing tech-policy think tank pushing for the break-up of most major tech firms.”

Barry Lynn participated in a good-hearted debate with Zach Carter in The American Prospect [[link removed]] about some fundamental questions about how to assess and remedy the problem of economic concentration, and whether free markets once purged of monopoly power are in fact efficient. “[R]ecognizing the extreme anti-republican nature of Reagan-era libertarianism brings us only partway to restoring democracy in America. To reckon honestly with the origins of our nation’s monopoly crisis, we must also examine the role played by two non-republican beliefs common among many progressives.”

Open Markets Institute joined Food & Water Watch [[link removed]] in calling on the White House to enact a merger moratorium in food and agriculture industries. The letter was mentioned in Common Dreams [[link removed]]. “America's monopolistic free-for-all has unleashed agricultural and slaughterhouse giants that routinely put profits ahead of the lives of their own employees, even during a deadly pandemic,” said Barry Lynn, Open Markets Institute Executive Director.

Barry Lynn joined Representative Ro Khanna and Minnesota Attorney General Keith Ellison in an Our Revolution [[link removed]] event about what’s next for fighting corporate monopolies. “We can win many more victories in taking on corporate power and we can do it a lot faster if the Biden team chooses to do so right now,” he said.

Sally Hubbard was included in a group of tech experts surveyed by The Washington Post [[link removed]] about the decision by social media companies to remove former president Donald Trump from their platforms following the Capitol attack. “I think it was necessary because of the threat of imminent violence, but going forward decisions about the boundaries of the First Amendment should be made by the people, through democratically elected bodies — not by a few executives,” she said.”

Sandeep Vaheesan appeared on a New York State Bar Association [[link removed]] panel discussion about antitrust law and racism. “Antitrust laws say that workers who are classified as independent contractors cannot organize,” Vaheesen said. “Workers cannot come together and build power through unions, collective bargaining, or striking. So this gives a largely white group of business owners and venture capitalists the ability to control groups of Black and brown workers and prevent them from organizing.”

Daniel Hanley and Beth Brodsky published an article in Common Dreams [[link removed]] showing that the FCC’s push to restructure America’s broadcast communication ownership would be a crushing blow to the already deficient levels of female and minority ownership in the broadcast industry. “The lack of diversity among broadcast station owners leads to a lack of diversity among reporters, editors, and others who decide what is news, what content is broadcasted, and how different demographic groups are depicted in the media.”

Barry Lynn was featured in a discussion Zephyr Teachout hosted by St. Martin's Press [[link removed]] about how we can protect democracy from monopoly. The event was also published on the Open Markets [[link removed]-] website. “With a new presidential administration, a new Congress, and new Facebook and Google antitrust legislation, 2021 is an opportunity to reshape our economy and recover our freedom from corporations.”

We appreciate your readership. Please consider making a contribution to support the continued publication of this newsletter.

DONATE [[link removed]] 📈 VITAL STAT: $65 million

The amount [[link removed]]Big Tech spent on lobbying the U.S gov.

📚 WHAT WE'RE READING: “ Puppet Entrepreneurship: Technology and Control in Franchised Industries [[link removed]]” (Data & Society, Brian Callaci): Callaci explains the corporate construction of franchises and how they allow the franchisor to exercise control over franchisees and workers. The author examines various franchise agreements and details some of the digital surveillance tools franchisors use to rob franchisees of their ability to make independent decisions.



Liberty From All Masters

The New American Autocracy vs. The Will of the People

St. Martin’s Press has published Open Markets Executive Director Barry Lynn’s new book, Liberty [[link removed]] f [[link removed]] rom All Masters [[link removed]].

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 [[link removed]].




7 Ways Big Corporations Rule Your Life and How to Take Back Control

Simon & Schuster published Monopolies Suck [[link removed]] 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 [[link removed]].


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Written and edited by: Barry Lynn, Phil Longman, Jackie Filson, Daniel A. Hanley, and Garphil Julien

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