Klobuchar unveils broad antitrust bill, exposing his vision as new subcommittee president

Senator Amy Klobuchar, D-Minn., Unveiled a broad antitrust reform bill on Thursday, setting a harsh tone in her new role as chairman of the Senate judiciary’s antitrust subcommittee.

Klobuchar has been a frequent critic of what she and other lawmakers see as a loose application of existing antitrust laws and called for strong measures against some of the leading technology companies. Although it has submitted several bills in the past seeking reforms in various aspects of the antitrust law, the “Competition and Antitrust Law Enforcement Reform Act” is a comprehensive proposal that calls for a major overhaul of enforcement standards. If enacted, it would bring significantly more risk to companies like Facebook and Google, which are already facing federal lawsuits, and to any dominant company looking to acquire another company.

With this bill, Klobuchar is drawing his line in the sand about antitrust reform, signaling that she will use her post to call for major changes in the status quo. In general terms, the bill seeks to reform the antitrust law in three main ways: 1) redefining the standard of enforcement and transferring the burden of proof to dominant companies in mergers; 2) requiring agencies to study the markets and the effects of mergers regularly, with the help of additional funds; and 3) giving new tools to those responsible for applying the antitrust law, such as the imposition of civil penalties.

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

Although Republicans on the House subcommittee did not fully agree with the Democrats’ far-reaching proposals, they mainly saw market problems and the need for some reforms. This may give some hope that Klobuchar’s proposals will be approved, at least in part.

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

• Raise the bar for dominant companies looking to merge with other companies, including shifting the burden of proof to the merging parties.
• Add a ban on “exclusionary conduct” to the Clayton Act, which governs mergers, to make it more difficult for dominant companies to prove that their mergers will not harm competition if they engage in such acts. The exclusionary conduct would include acts that put current or potential competitors at a disadvantage or that limit rivals’ ability or incentive to compete.
• Authorize $ 300 million increases in the annual budgets of the Department of Justice’s Antitrust Division and the Federal Trade Commission, which enforce antitrust laws.
• Allow antitrust enforcement officials to seek civil penalties for violations of the monopoly law and for the offense of exclusionary conduct created by the project, in addition to other remedies they may already request, such as separations and injunctions.
• Creation of an independent Competition Lawyer Office within the FTC that can conduct market analysis to inform the application and help to raise consumer complaints.
• Require merged companies to update agencies about the results of their business and for agencies to study the impacts of previous mergers.
• Extending reporting incentives to those who signal potential civil violations.

Klobuchar blamed erroneous court decisions for weakening the meaning of existing antitrust laws, an opinion shared by members of both parties, including former President Donald Trump’s antitrust chief at the DOJ. His bill seeks to redefine standards to determine the existence of a breach that will give both government enforcers and private claimants more chances to fight dominant companies.

This can be useful, as the agencies are preparing to face some of the largest and most affluent companies in the world. Federal agencies and state officials are already in the midst of lawsuits against Facebook and Google that will take years to resolve if they go to trial. And the executors also watched both Amazon and Apple, several media reported. All companies denied involvement in anti-competitive conduct.

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

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