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NEWS FEBRUARY 1, 2021 ¦ 21

An Antitrust Law Update Looms in
President Biden’s First Term

By Jennifer Fischell

There is growing bipartisan
frustration with “Big Tech”
giants such as Amazon,
Apple and Facebook leveraging
their market power into control
over consumers and even the in-
ternet itself. President Joe Biden’s
first term will certainly see
changes in the executive branch’s
antitrust enforcement priori-
ties on that front. But that’s not
all. For the first time in years, a
consensus around modernizing
competition regulation sets the
stage for a sea change in antitrust
law itself. Facebook CEO Mark Zuckerberg testifies before the House Financial
Services Committee on Capitol Hill on Oct. 23, 2019.

Historically, Democrats—now Photo: Diego M. Radzinschi/ALM

in power after Biden’s inauguration and Geor- responded to the House report by stating their
gia’s Senate runoff elections—have advocated for commitment to working “in a bipartisan fashion
strengthening antitrust laws. But there are signs that to help enact the legislative solutions where [they]
Republicans will also support significant reforms. can agree.” And their response indicates they agree
Late last year, the Democrat-controlled House on quite a bit, including that Congress “can make
Subcommittee on Antitrust, Commercial and Ad- a meaningful difference” by enacting legislation to
ministrative Law published a nearly 450-page “reinforc[e] presumptions that certain behaviors
report based on an investigation of competition in are likely to reduce competition, lower[] eviden-
digital markets. That report sets forth an ambitious tiary burdens in litigated cases, and emphasiz[e]
agenda for change, including the “[p]resumptive that anticompetitive effects are not limited to price
prohibition against future mergers and acquisi- effects and include innovation competition, qual-
tions by the dominant platforms,” requirements for ity, output, and consumer choice.” They also agree
nondiscrimination and interoperability, and other on other reforms such as “shift[ing] the burden of
restrictions on platforms’ abuse of market domi- proof for companies pursuing mergers and acquisi-
nance. The report also proposes eliminating barriers tions.”
to private enforcement, as well as strengthening and Until recently, the pressures of COVID-19,
clarifying Section 7 of the Clayton Act and Section 2 economic relief, and Senate confirmation and
of the Sherman Act, which relate to anti-competitive impeachment proceedings have suggested that an-
mergers and abuses of monopoly power. titrust reform might not be a priority in the first 100
It is far from clear whether the Republicans—in days of the Biden administration. But that appears
the Senate, especially—will be interested in all of to be changing, especially as to Big Tech.
those changes. But some Republican representatives
¦ Continued on PAGE 22

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