Trump’s FTC pick expected to stay tough on Big Tech but relax on mergers
President-elect Donald Trump has picked his competition cop. He’s appointing Andrew Ferguson as the next Federal Trade Commission chair, replacing antitrust firebrand Lina Khan.
In a post, Ferguson wrote, “…we will end Big Tech’s vendetta against competition and free speech.”
“Andrew has a proven record of standing up to Big Tech censorship, and protecting Freedom of Speech in our Great Country … [he] will be the most America First and pro-innovation FTC Chair in our Country’s History,” Trump posted.
Ferguson is already an FTC commissioner and sworn in earlier this year. That means he does not need confirmation to become the chair.
Before his time at the FTC, he was solicitor general in Virginia, a congressional aide, an antitrust litigator and once clerked for Supreme Court Justice Clarence Thomas.
Trump’s pick for Ferguson’s commissioner seat is Mark Meador, a former Senate antitrust aide. This will give Trump the conservative majority he’s looking for at the FTC and push Khan out the door.
“Her term expired in September, but she is allowed by law to remain on the commission until her successor is confirmed and comes to take office,” former FTC Chair William Kovacic explained. “So the speed with which she departs the commission will depend on her own personal preferences. Does she want to stay as part of a loyal opposition maintaining a three-vote block that could operate to retard the roll back of her program? On a personal level, it’s not enjoyable to go through that kind of demotion.”
Straight Arrow News interviewed Kovacic after the election about the direction Trump would take in antitrust enforcement.
“I think with respect to the Big Tech cases, those carry on without interference,” Kovacic said. “In other areas, he may back off some. I expect a more permissive approach towards mergers than the Biden enforcement agencies have taken, and that was one of the big irritants that even the Democratic donors expressed concern about, is that the deal-making environment has been made so much more difficult.”
Kovacic said, “without question,” Trump will relax merger enforcement.
How Trump 2.0 could change the landscape of Big Tech antitrust
With two months until President-elect Donald Trump’s inauguration, his policy plans are clear in many areas. But what do the next four years of antitrust regulation look like after the Biden administration’s aggressive enforcement?
Unlike trade, immigration and energy policy, it’s not expected that Trump’s goal is to undo the previous administration’s work. And a lot has happened over the past four years. But when it comes to Big Tech, experts point out that there’s no love lost between Trump and Silicon Valley.
“It’s a sector he doesn’t particularly like,” former Federal Trade Commission Chair William Kovacic told Straight Arrow News. “So my general intuition is that in that area, he says, ‘Carry on.’”
When it comes to Khan, her term as chair and commissioner expired in September 2024.
“My instinct would be that on the day of the inauguration, that evening or the next day, President Trump will sign a letter that designates one of the two Republicans on the commission to be the chair, probably as acting chair,” Kovacic said.
Even after the incoming president replaces Khan as chair, she could remain a commissioner until her replacement clears the confirmation process.
“The speed with which she departs the commission will depend on her own personal preferences,” Kovacic said. “Does she want to stay as part of a loyal opposition, maintaining a three-vote bloc that could operate to retard a rollback of her program?”
Meanwhile, the Department of Justice recently won a landmark case against Google when a judge ruled it monopolized the search space. The government is now asking the judge to force Google to sell off Chrome as the most severe remedy. The DOJ started the case under Trump’s first administration.
In the specific case of Google, Kovacic doesn’t believe the Trump administration will stand in the way of any action.
“I think at a minimum that means that DOJ will have a pretty broad remit to proceed with wrapping up the case as it sees fit, without the White House jumping in and saying, ‘Don’t do that,’” he said.
With a new administration set to take charge of antitrust, Kovacic said the antitrust legacy under Biden won’t disappear, especially when it comes to Khan, who has received support from incoming Vice President JD Vance.
“What she leaves behind, in part, is a renewed debate about what antitrust should be all about, and that’s going to be durable,” Kovacic said.
Antitrust expert on Visa case: ‘It’s not enough to be big, you have to be bad’
The Department of Justice filed a federal antitrust lawsuit against Visa Tuesday, Sept. 24. The suit alleges the payments processor took part in anticompetitive practices in the debit card market that hurt merchants and consumers alike.
“Visa deploys a web of unlawful anti-competitive agreements to penalize merchants and banks for using competing payment networks,” Attorney General Merrick Garland said Tuesday. “At the same time, it coerces would-be market entrants into unlawful agreements not to compete by threatening high fees if they do not cooperate and promising big payoffs if they do.”
The government’s complaint centers around allegations that Visa makes deals with vendors to prevent them from using other processors. The DOJ claims this practice hinders other issuers from scaling up their business. Meanwhile, if a merchant doesn’t adhere to Visa’s “volume commitments” to use it for most of their transactions, they will reportedly incur fees.
“Attaining a monopoly by itself is not illegal under antitrust laws,” said Bill Kovacic, a former FTC commissioner and Global Competition Professor of Law and Policy at George Washington University. “It’s not enough to be big. You have to be bad as well.”
Garland pointed to a situation where Visa had a contract with Square, the operator of Cash App, to stop it from becoming a competitor. The attorney general cited an email where a Visa executive said, “We’ve got Square on a short leash.”
“The essential argument is that you buy off rivals to stay out of the way and that you impose exclusivity arrangements in your own contracts that make it harder for existing rivals to gain broader scale,” Kovacic said. “Those arguments have been arguments that the DOJ has used with considerable success.”
“Today’s lawsuit ignores the reality that Visa is just one of many competitors in a debit space that is growing, with entrants who are thriving,” Visa’s General Counsel Julie Rottenberg said in a statement emailed to Straight Arrow News.
“Visa gets a chance to contest whether or not it is so powerful,” Kovacic said. “But second, to present evidence that saying, ‘Everything we do is good for our users. We give users a better experience. It’s good for the merchants in our network. It’s good for the end users, the consumers. So to the extent that we’ve succeeded, we have only succeeded by doing things that make our merchant partners and our consumers better off.’”
The Justice Department said more than 60% of debit transactions in the U.S. are done on Visa’s network. As a result, the company makes more than $7 billion annually in fees.
“Visa’s unlawful conduct affects not just the price of one thing, but the price of nearly everything,” Garland said as the DOJ claimed those fees are passed on to consumers.
The Justice Department did not offer any remedies for Visa if it were to be ruled against.
“The logical step would be first to prohibit the specific conduct that they’re complaining about, which would be to dissolve contractual provisions that create exclusivity that tends to dampen the competitive significance of rivals,” Kovacic said. “And the second might be to challenge or forbid the payments that are being made to other potential significant market players, to say, ‘The partnerships that you are pointing to are partnerships to suppress rivalry, rather than to increase it. You can’t do that anymore.’”
The lawsuit comes months after Capital One announced a $35 billion acquisition of Discover in February 2024. That deal, which would create the sixth-largest bank by assets, still faces regulatory approval. Capital One and Discover argue joining forces will allow it to better compete with Visa.
Is Google just better? Company defends advertising tech after losing search case
Court is back in session and Google is back on the defense. A month after a federal judge ruled Google is a monopoly because of its search engine, the Big Tech firm is defending its advertising practices. The cases could multiply calls to break up Google.
In a new antitrust trial starting Monday, Sept. 9, the Department of Justice will argue that “Google has used anticompetitive, exclusionary, and unlawful means to eliminate or severely diminish any threat to its dominance over digital advertising technologies.”
Essentially, the government is arguing Google has an unlawful monopoly as the leading buyer and seller of digital ads.
The case centers around Google Ad Manager, which websites use to sell advertising space on their sites. The tech comes from Google’s $3.1 billion acquisition of DoubleClick in 2008.
“DoubleClick, which was founded in 1996, provides display ads on Web sites like MySpace, The Wall Street Journal and America Online as well as software to help those sites maximize ad revenue.”
While MySpace and AOL are irrelevant today, the DoubleClick acquisition helped make Google a display ad powerhouse in a space that was just getting started. Back then, the Federal Trade Commissionapproved the DoubleClick acquisition, saying it was unlikely to substantially lessen competition. The European Commission also approved the deal.
Today, the government is trying to walk back that approval. Google is now more than 10 times the size it was when it bought DoubleClick. Additionally, ad business generated more than $30 billion in revenue in 2021, according to the government.
“In court, we will show that ad buyers and sellers have many options, and when they choose Google they do so because our ad tech is simple, affordable, and effective,” Google’s vice president of Regulatory Affairs wrote in a blog post Sunday, Sept. 8. “In short – it works.”
It is similar to the argument Google made defending its search engine practice; that its product is just better than the competition. And while Google lost that case, it’s appealing it.
When the search ruling came down, Straight Arrow News asked antitrust expert and former FTC Chair Bill Kovacic about the merits of Google’s argument.
“In making that argument, they are appealing directly to a policy position that has appeared in a number of earlier decisions; that you can’t take a successful enterprise and punish it for offering a better product,” Kovacic said. “So through the trial and certainly through the appeals, they will say, we may not be the perfect company, but there’s no way to explain our position except for our ability to provide our users a better and better experience, and certainly superior to anyone else’s.”
“That’s a very important argument,” Kovacic continued. “But there are still limits on the steps they can take to reinforce the preeminence. But their overriding theme is going to be, ‘We are successful because we have a good product, and not because we use improper business tactics, the very proper tactic we use is offering users a better experience.’”
The advertising trial will not be as financially consequential as the search case: search is more than half of Google’s annual revenue. On Friday, Sept. 6, federal judge Amit Mehta, who ruled Google is a search monopoly, said he’d decide on a remedy by next August.
Google’s antitrust loss ‘a warning’ to Big Tech: The government can win
Pressure is building on Big Tech after a federal court ruled Google is a monopoly. Google isn’t the only one the government is going after. Apple, Meta and Amazon are actively fighting lawsuits.
While Google’s appeal plays out, tech firms will be eyeing the courts, Federal Trade Commission and Department of Justice for clues to a shift in the regulatory landscape.
For how Google’s ruling might impact current and future antitrust cases, Straight Arrow News interviewed former FTC chair and commissioner Bill Kovacic.
This interview has been edited for length and clarity. Watch the interview in the video above.
Simone Del Rosario: Does this serve as a flashing red light for other Big Tech firms?
Bill Kovacic: It does indeed. They’ve seen the light flashing yellow for several years because, not only in the United States but around the world, we find competition authorities and individual jurisdictions beginning new investigations, initiating cases, and in the case of the European Union adopting new regulatory frameworks, theirs called the Digital Markets Act.
The Big Tech sector has seen gathering storm clouds now for a number of years, going back to, I’d say, the middle of the previous decade. But we’re now seeing the delivery of policy measures that foreshadowed evermore significant forms of intervention. And this is an indication, not only that the government can win, it can marshal the resources to do this kind of work well, it can bring the cases to a successful conclusion at the trial.
It’s a warning that the government can prevail. The government can make well-founded arguments.
Bill Kovacic, former FTC chair and commissioner
But also it means that there will be more to come and there are other significant matters in the pipeline: another Department of Justice case involving Google involving ad serving; a case by the FTC challenging Meta for its acquisition of Instagram 10 years ago; an FTC case against Amazon; a Department of Justice case against Apple; state government cases attacking a number of these large enterprises.
I think for the business community, especially for the tech community, it’s an indication of things to come and that the successful defense of their position is not going to be something they can take for granted.
Simone Del Rosario: How does [the Google ruling] measure up to the Amazon situation where they’re being accused of having self-preference for their own products?
Bill Kovacic: This involves, I think in some ways, a harder case for the Federal Trade Commission. The FTC is arguing that you’ve given your own products, your own services, a better display compared to others, that you’re favoring them. I think the FTC is going to have a somewhat harder time dealing with the argument [of], ‘I’m a successful firm, don’t I have the freedom to offer consumers not only the better product, but to put my product first? To say, look at my product. Why should I have to display the products of my rivals in a better light?’
Amazon would not have unlimited freedom to make certain choices that are going to be the subject of the case. But Amazon’s arguments are arguably more within the framework of Supreme Court jurisprudence that has been encouraging of the ability of dominant firms to decide who they’ll deal with and how they’ll deal. And a concern on the part of judges that they shouldn’t be involved in making technical decisions about how companies operate, determining who they can deal with, the terms on which they can deal with other parties. So I think the FTC in some ways faces a somewhat harder challenge in the light of this existing jurisprudence.
But from Amazon’s point of view, watching the outcome in this first important [Google] case, it’s a warning that the government can prevail. The government can make well-founded arguments. They can present them capably. They’re probably going to be found to be a dominant enterprise and the real question will be, is this self-preferencing behavior acceptable?
I think what all leading firms learn from the experience we’ve just observed is you can take absolutely nothing for granted in this process. And it’s an environment in which judges might well be persuaded that you made an incorrect judgment about where the line of illegality is and you stepped over it. At a very basic level, this is an important caution that says you can lose these cases if you’re a defendant.
Simone Del Rosario: I’m curious what your take is on the types of cases against Big Tech that current FTC Chair Lina Khan has been taking. What do you make of her strategy when it comes to going after Big Tech?
Bill Kovacic: She has put in motion one significant case on her own watch: that’s the Amazon case we mentioned before. The other major case that she has she inherited from the Trump administration. That’s the challenge to Meta for its acquisition of Instagram.
But the Amazon case is a very ambitious case. It is trying to define a new conception of what dominant firms can do, especially dominant firms that act as the owners of a platform on which products are sold, but their own products and the products of other parties operate on the same platform; to identify what a dominant firm can do by way of featuring its own products and perhaps treating the products of third parties on its platform, its competitors, differently.
That would be a significant development in the jurisprudence. I guess to put it in a very general way, it is a riskier case than the case that the DOJ is running against Google, the case that’s running against Apple, the other case that’s running against Google. And this is consistent, I think, with the chair’s philosophy, that a major role of the FTC should be to take on cases that involve more ambiguity, to take on cases that aren’t squarely within a framework where liability has been routinely found, but to move the frontiers outward.
So there’s a greater risk appetite at work there. The DOJ cases are very ambitious as well, but I’d say a signature element of the chair’s own program is to be willing to push the frontiers and to accept the risk that there will be judicial resistance and to accept the risk that there’ll be judicial rejection.
But for the sake of provoking the conversation with the courts and bringing these issues to the courts on a repeated basis, there’s a willingness, not simply in the area of Big Tech, but in other areas of the commission’s jurisdiction, to try to move the frontiers of enforcement outward and to acknowledge and accept the risk that these are hard cases to win. And [she does] not expect to prevail every time, but the very fact of bringing the cases, continuing the conversation with the courts, will have real value.
FTC Chair Lina Khan got under Big Tech’s skin. Now they want her gone.
In the wake of a federal judge ruling that Google is a monopoly for its search business practices, all eyes are turning to other antitrust cases in the works. But even before the Google decision brought by the Justice Department, the Federal Trade Commission and its celebrity chair were feeling the political heat.
FTC Chair Lina Khan has made a name for herself by placing a target on massive tech companies in the United States. The 35-year-old was appointed by President Joe Biden to shake up antitrust enforcement. But some Democratic megadonors are hoping Vice President Kamala Harris will ease the regulatory scrutiny and appoint a more moderate chair.
Last month, LinkedIn co-founder Reid Hoffman called on the vice president to replace Khan if she is elected in November. The billionaire previously donated $10 million to the Biden campaign before the president dropped out of the race and has since thrown his support behind Harris.
“I do think that Lina Khan is a person who is not helping America in her job and what she’s doing,” Hoffman told CNN in July. “And so I would hope that Vice President Harris would replace her.”
Hoffman has since clarified that his position on Khan is not a condition for supporting Harris. But his comments, and similar ones made by IAC Chair Barry Diller, are catching attention.
“Hoffman’s comment is highly provocative and I think [it is] unusual to say, ‘Bring me the head of the FTC chair, get her out of the chair’s position,’” former FTC chair and commissioner Bill Kovacic told Straight Arrow News. “A new president could not literally fire her. She can’t be removed from the commission but she can be demoted simply by the president signing a letter saying, ‘You are the former chair now, now you’re a commissioner.’”
But the opinion of Khan is split and that split doesn’t happen on political lines. Earlier this year, vice presidential candidate J.D. Vance said the FTC chair was “doing a pretty good job.”
The following transcript has been edited for length and clarity. Watch the full response in the video above.
Simone Del Rosario: To hear that an FTC chair is being brought up in the conversation of a presidential election and donations to the Democratic candidate for president, what do you make of this environment? What does it tell you about how [Khan has] been received in this world and the direction she’s decided to take?
Bill Kovacic: I suppose in the modern world, nothing should surprise us, but Hoffman’s comment is highly provocative and I think unusual to say, ‘Bring me the head of the FTC chair, get her out of the chair’s position.’ A new president could not literally fire her. She can’t be removed from the commission, but she can be demoted simply by the president signing a letter saying, ‘You are the former chair now, now you’re a commissioner.’
As a footnote, Lina Khan is the most famous competition policy enforcer in the world today, globally. There’s no part of the world you can go to without people knowing who she is. And if you identify yourself as a U.S. citizen, you will be asked immediately, ‘Do you know about Lina Khan?’
So to step forward and say, ‘I want her out of there, in fact, her departure by suggestion is a condition of our support and our enthusiasm for your campaign,’ is quite extraordinary. It does show how Lina Khan has touched a nerve. And I’d say a very sensitive nerve within that community to the degree that no other regulator in my lifetime – going back into the 1970s since Michael Pertschuk who was the chair of the FTC and a strong advocate of powerful competition and consumer protection intervention – nobody has aroused that kind of specific condemnation in that period of time.
I suppose the chair can look at that and say, ‘Good, it’s working. If they loved me, I’m not doing my job.’ And I think in part, she defines her effectiveness, a rough measure of her effectiveness is the vocal exuberant statement of firms in the sector who are saying these things because here we have an agency that’s doing things that really do hurt in some ways.
So I find it an extraordinary comment, but it truly is a testament to how she has changed the debate, changed the focus of attention, and has brought to bear the resources of her agency in a way that has aroused their concern.
A fascinating question is how much will Vice President Harris respond to this if she becomes President Harris. What would happen in a President Harris administration with regard to policy and Big Tech? Would she, in small steps, walk away from the approach that the Biden administration has taken? Will she quietly seek appointments to bring a more moderating influence into the Federal Trade Commission or the Department of Justice? Or will she say, ‘This is why we are in the White House. This is why we have power. We’re gonna exercise it this way.’
Would elected officials such as [Sen.] Elizabeth Warren, [Sen.] Bernie Sanders, as well as some of their counterparts in the Republican Party, the [Sen.] Josh Hawley team, for example, would they rise up and say, ‘You will not touch these programs? We demand that these programs go ahead. This is crucial to the larger progressive agenda and you will not undercut it.’
I suspect if [Harris] took visible steps to retreat from the Khan program or the program that Jonathan Kanter has laid out in the Department of Justice, she could very well face the wrath of the progressives, left and right, in Congress. I don’t think she’d want to provoke that fight openly, so the means of adjustment might be far more subtle and less visible to the naked eye.
The appointment of individuals who have a somewhat more cautious approach to applying the law; one approach would be to say with respect to these Big Tech cases, ‘We already have a very full plate and part of my job is to bring them home, to make sure that they land safely and that the projects work. I’m going to do that. I’m going to worry less about initiating new path-breaking measures. I’m going to make sure that those are brought to a successful conclusion.’ That could be one approach she takes.
Another area where she could back off is merger control. And I think for the Big Tech companies, for [Marc] Andreessen, for Hoffman, for others, they are less disturbed by the big monopolization cases than they are by the aggression with which the FTC and the Department of Justice have gone after deal making. And that might be an area where the Harris team, after January of 2025, backs off a bit and isn’t quite so aggressive as the FTC and DOJ have been.
That would be the barometer for me. That’s the real indication of whether we’re seeing an adjustment in attitude towards tech is the question of merger control. I would not expect her to tamper with these big cases.
I wouldn’t expect [former President Donald] Trump to do it either. The DOJ search case that we’ve been talking about began in his presidency. The FTC case against Meta began in his presidency. The investigation of Apple that led to a case began in his presidency. And he has no fondness for that sector. His vice presidential candidate partner, Senator [J.D.] Vance, has no fondness for that sector. He said, ‘I think Khan’s doing a good job.’
I could imagine that both of them would say, ‘What’s the right remedy in this case? It’s to break them up. We have to de-concentrate these sectors to take their power away because we don’t trust them,’ for different reasons.
With regard to these Big Tech monopolization cases, I think those carry on where we could see a change in both a Harris administration and, maybe more visibly in a Trump administration, is a change in merger control. And maybe that’s what Hoffman and his counterparts have been complaining [about]. That’s their real grievance here is that we can’t do deals.
Break up Google? How the search giant might be punished for antitrust ruling
The antitrust ruling against Google on Monday, Aug. 5, is groundbreaking. By declaring Google is a monopoly, it marked the biggest tech antitrust ruling since Microsoft in the ’90s.
It’s not that the government never takes up these cases; it’s that the government doesn’t often win. And to be fair, it hasn’t won yet. Google plans to appeal and the tech world is closely watching how this one shakes out.
For what punishments Google could face to how long this case will drag out, Straight Arrow News tapped the expertise of Bill Kovacic, a former FTC chair and commissioner.
This interview has been edited for length and clarity. Watch the interview in the video above.
Simone Del Rosario: What do you make of Google’s assertion that its product is just better?
Bill Kovacic: The language and the music of earlier decisions from the Supreme Court has been one that’s very solicitous of the successful firm that achieves prominence through superior performance. So in making that argument, they are appealing directly to a policy position that has appeared in a number of earlier decisions that you can’t take a successful enterprise and punish it for offering a better product.
Through the trial and certainly through the appeals, they will say, “We may not be the perfect company, but there’s no way to explain our position except for our ability to provide our users a better and better experience and certainly superior to anyone else’s.”
That’s a very important argument, but there are still limits on the steps they can take to reinforce the preeminence.
Simone Del Rosario: Let’s say that this judgment stands. What’s going to happen to Google? What are the likely punishments that Google will face?
Bill Kovacic: Judge Mehta, who is the trial judge in the Google case, decided to split the proceedings into two parts. The first part was going to be the trial on whether the law had been broken. That part has been concluded with his opinion that finds that yes, indeed, in some respects, the law was broken.
The second part was that if there was a finding of liability, we’re going to have a separate proceeding on remedies. He’s going to have a meeting with the parties in early September to schedule the hearing or hearings that will take place to address the remedy.
We’re a good two years away from a final answer with respect to liability and to remedies.
Bill Kovacic, former FTC Chair and Commissioner
We probably will see, I suppose, several days of testimony by experts who lay out their views about what the remedy should be. Should it simply be an injunction that tells Google not to engage in the same behavior? Should it mandate that the company take affirmative steps to correct the effects of the behavior that it’s engaged in so far? Will the court go further to say a restructuring of the company is important? That a divestiture of some kind, say, for example, divesting the Android franchise would be an appropriate solution.
The judge is going to have a significant proceeding on the remedy, I suspect, by the end of this calendar year. He will reach his decision about what that remedy should be. We’ll see the final opinion on remedy come out, again, by the end of 2024 with inevitable appeals to the U.S. Court of Appeals to the District of Columbia, which would be step one. That would take up most of 2025.
The Supreme Court is not obliged to review this case. It has complete discretion over its docket with respect to antitrust matters. My intuition is that this will be a compelling case for them to review. This will be a case that they want to review to come in on these basic questions about the application of the antitrust law to Big Tech, to dominant firms generally. So my own quiet wager is that the Supreme Court would take the case. That takes us through most of 2026.
So if all of these appeals come about, we’re a good two years away from a final answer with respect to liability and to remedies. And for a case that began in 2020, in the second half of 2020, I guess all of us can look at that and say, “Is that a sensible way to make decisions about such fundamental matters of economic policy and operation,” a case that lasts the better part of seven years? But that’s what we’re in for going ahead. That’s roughly the timeline that might unfold.
Simone Del Rosario: And just to clarify, the remedies can be prescribed before this appeal process goes through even if they can’t be enforced, is that correct?
Bill Kovacic: Correct. The appeal would take place after the decision on remedies so that the parties would be filing their appeals with respect to decisions about whether the law was broken and with respect to the judge’s decision about what the appropriate remedy will be. It’s proceeding on remedies next, then the parties can appeal any part of what’s taken place before.
Simone Del Rosario: And you mentioned some relatively low-level remedies, an injunction, fines. Would that be enough to stop this behavior that the courts found was monopolistic?
Bill Kovacic: This is a point of enormous and contentious debate. I would say if you go back to the beginning of the U.S. antitrust system, the remedy that generally has been seen to be, by many observers, the necessary remedy for illegal monopolization, is structural relief, simply put, a breakup. You force the company to make major divestitures.
That is the big visible solution that many observers look for. By contrast, the injunction that you referred to is seen as often being too timid a solution, too difficult to oversee and apply, too easily evaded by companies that will adapt immediately to any control on conduct that you put before them.
Part of what makes up the debate today is a more sympathetic view about these injunctions. And the more sympathetic view basically goes like this. One is that the injunction forces the company to change its decision-making process. It means that more matters are run by the lawyers first. And instead of the business people simply acting immediately and impulsively on ideas they have, it’s got to go through the legal department.
The legal department, being somewhat more inherently cautious as a matter of culture, applies the brakes a bit to this process so that there’s an internal decision-making process that means that the company is less aggressive in the way in which it operates.
A second consequence is that there’s an awareness on the part of other firms that they have a bit more room to maneuver. They take advantage of the hesitation and limits on the dominant firm to find crevices in the market in which they can enter to expand their operations over time.
Now one theory is that when the government settled its monopolization case against Microsoft, a case brought in the late ’90s and settled in the early 2000s – in parallel with a case that was settled by the European Union, also involving claims of illegal conduct against Microsoft – initially the conduct-related remedies were heavily criticized as being too weak.
A new reinterpretation of that is that those remedies actually gave breathing room for what were then nascent tech competitors named Google, for example, and that it opened the path for Google to prosper.
So I’d say there’s an important strand of modern commentary that says conduct remedies can be a lot more potent than you might think. They may take longer to unfold. They don’t have the big bang explosion of a giant fireworks display. They’re less visible in that respect. But then they can have a powerful impact on the way that the market operates.
I think that even the specialists in the field would say there’s a lot of uncertainty about what the best solution is. You make your best judgment. It’s partly an act of faith that you’ve got the right solution in place. But I’d say that there’s a somewhat more sympathetic view of conduct remedies emerging that might incline the judge to say, that would be enough.