Archives For state antitrust enforcement

AG Paxton’s Google Suit Makes the Perfect the Enemy of the Good

Eric Fruits & Geoffrey Manne —  14 December 2022

Having just comfortably secured re-election to a third term, embattled Texas Attorney General Ken Paxton is likely to want to change the subject from investigations of his own conduct to a topic where he feels on much firmer ground: the 16-state lawsuit he currently leads accusing Google of monopolizing a segment of the digital advertising business.

The segment in question concerns the systems used to buy and sell display ads shown on third-party websites, such as The New York Times or Runner’s World. Paxton’s suit, originally filed in December 2020, alleges that digital advertising is dominated by a few large firms and that this stifles competition and generates enormous profits for companies like Google at the expense of advertisers, publishers, and consumers.

On the surface, the digital advertising business appears straightforward: Publishers sell space on their sites and advertisers buy that space to display ads. In this simple view, advertisers seek to minimize how much they pay for ads and publishers seek to maximize their revenues from selling ads.

The reality is much more complex. Rather than paying for how many “eyeballs” see an ad, digital advertisers generally pay only for the ads that consumers click on. Moreover, many digital advertising transactions move through a “stack” of intermediary services to link buyers and sellers, including “exchanges” that run real-time auctions matching bids from advertisers and publishers. 

Because revenues are generated only when an ad is clicked on, advertisers, publishers, and exchange operators have an incentive to maximize the likelihood that a consumer will click. A cheap ad is worthless if the viewer doesn’t act on it and an expensive ad may be worthwhile if it elicits a click. The role of a company running the exchange, such as Google, is to balance the interests of advertisers buying the ads, publishers displaying the ads, and consumers viewing the ads. In some cases, pricing on one side of the trade will subsidize participation on another side, increasing the value to all sides combined. 

At the heart of Paxton’s lawsuit is the belief that the exchanges run by Google and other large digital advertising firms simultaneously overcharge advertisers, underpay publishers, and pocket the difference. Google’s critics allege the company leverages its ownership of Search, YouTube, and other services to coerce advertisers to use Google’s ad-buying tools and Google’s exchange, thus keeping competing firms away from these advertisers. It’s also claimed that, through its Search, YouTube, and Maps services, Google has superior information about consumers that it won’t share with publishers or competing digital advertising companies. 

These claims are based on the premise that “big is bad,” and that dominant firms have a duty to ensure that their business practices do not create obstacles for their competitors. Under this view, Google would be deemed anticompetitive if there is a hypothetical approach that would accomplish the same goals while fostering even more competition or propping up rivals.

But U.S. antitrust law is supposed to foster innovation that creates benefits for consumers. The law does not forbid conduct that benefits consumers on grounds that it might also inconvenience competitors, or that there is some other arrangement that could be “even more” competitive. Any such conduct would first have to be shown to be anticompetitive—that is, to harm consumers or competition, not merely certain competitors. 

That means Paxton has to show not just that some firms on one side of the market are harmed, but that the combined effect across all sides of the market is harmful. In this case, his suit really only discusses the potential harms to publishers (who would like to be paid more), while advertisers and consumers have clearly benefited from the huge markets and declining advertising prices Google has helped to create. 

While we can’t be sure how the Texas case will develop once its allegations are fleshed out into full arguments and rebutted in court, many of its claims and assumptions appear wrongheaded. If the court rules in favor of these claims, the result will be to condemn conduct that promotes competition and potentially to impose costly, inefficient remedies that function as a drag on innovation.

Paxton and his fellow attorneys general should not fall for the fallacy that their vision of a hypothetical ideal market can replace a well-functioning real market. This would pervert businesses’ incentives to innovate and compete, and would make an unobtainable perfect that exists only in the minds of some economists and lawyers the enemy of a “good” that exists in the real world.

[For in-depth analysis of the multi-state suit against Google, see our recent ICLE white paper “The Antitrust Assault on Ad Tech.”]

In Antitrust & Competition, Google, Monopolization, Platforms, Truth on the Market , , , , , , ,
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Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook

George L. Paul, Jaclyn Phillips, & Andrew Black —  15 April 2022

The following post was authored by counsel with White & Case LLP, who represented the International Center for Law & Economics (ICLE) in an amicus brief filed on behalf of itself and 12 distinguished law & economics scholars with the U.S. Court of Appeals for the D.C. Circuit in support of affirming U.S. District Court Judge James Boasberg’s dismissal of various States Attorneys General’s antitrust case brought against Facebook (now, Meta Platforms).

Introduction

The States brought an antitrust complaint against Facebook alleging that various conduct violated Section 2 of the Sherman Act. The ICLE brief addresses the States’ allegations that Facebook refused to provide access to an input, a set of application-programming interfaces that developers use in order to access Facebook’s network of social-media users (Facebook’s Platform), in order to prevent those third parties from using that access to export Facebook data to competitors or to compete directly with Facebook.

Judge Boasberg dismissed the States’ case without leave to amend, relying on recent Supreme Court precedent, including Trinko and Linkline, on refusals to deal. The Supreme Court strongly disfavors forced sharing, as shown by its decisions that recognize very few exceptions to the ability of firms to deal with whom they choose. Most notably, Aspen Skiing Co. v. Aspen Highlands Skiing is a 1985 decision recognizing an exception to the general rule that firms may deal with whom they want that was limited, though not expressly overturned, by Trinko in 2004. The States appealed to the D.C. Circuit on several grounds, including by relying on Aspen Skiing, and advocating for a broader view of refusals to deal than dictated by current jurisprudence. 

ICLE’s brief addresses whether the District Court was correct to dismiss the States’ allegations that Facebook’s Platform policies violated Section 2 of the Sherman Act in light of the voluminous body of precedent and scholarship concerning refusals to deal. ICLE’s brief argues that Judge Boasberg’s opinion is consistent with economic and legal principles, allowing firms to choose with whom they deal. Furthermore, the States’ allegations did not make out a claim under Aspen Skiing, which sets forth extremely narrow circumstances that may constitute an improper refusal to deal.  Finally, ICLE takes issue with the States’ attempt to create an amorphous legal standard for refusals to deal or otherwise shoehorn their allegations into a “conditional dealing” framework.

Economic Actors Should Be Able to Choose Their Business Partners

ICLE’s basic premise is that firms in a free-market system should be able to choose their business partners. Forcing firms to enter into certain business relationships can have the effect of stifling innovation, because the firm getting the benefit of the forced dealing then lacks incentive to create their own inputs. On the other side of the forced dealing, the owner would have reduced incentives to continue to innovate, invest, or create intellectual property. Forced dealing, therefore, has an adverse effect on the fundamental nature of competition. As the Supreme Court stated in Trinko, this compelled sharing creates “tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities.” 

Courts Are Ill-Equipped to Regulate the Kind of Forced Sharing Advocated by the States

ICLE also notes the inherent difficulties of a court’s assessing forced access and the substantial risk of error that could create harm to competition. This risk, ICLE notes, is not merely theoretical and would require the court to scrutinize intricate details of a dynamic industry and determine which decisions are lawful or not. Take the facts of New York v. Facebook: more than 10 million apps and websites had access to Platform during the relevant period and the States took issue with only seven instances where Facebook had allegedly improperly prevented access to Platform. Assessing whether conduct would create efficiency in one circumstance versus another is challenging at best and always risky. As Frank Easterbook wrote: “Anyone who thinks that judges would be good at detecting the few situations in which cooperation would do more good than harm has not studied the history of antitrust.”

Even assuming a court has rightly identified a potentially anticompetitive refusal to deal, it would then be put to the task of remedying it. But imposing a remedy, and in effect assuming the role of a regulator, is similarly complicated. This is particularly true in dynamic, quickly evolving industries, such as social media. This concern is highlighted by the broad injunction the States seek in this case: to “enjoin[] and restrain [Facebook] from continuing to engage in any anticompetitive conduct and from adopting in the future any practice, plan, program, or device having a similar purpose or effect to the anticompetitive actions set forth above.”  Such a remedy would impose conditions on Facebook’s dealings with competitors for years to come—regardless of how the industry evolves.

Courts Should Not Expand Refusal-to-Deal Analysis Beyond the Narrow Circumstances of Aspen Skiing

In light of the principles above, the Supreme Court, as stated in Trinko, “ha[s] been very cautious in recognizing [refusal-to-deal] exceptions, because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm.” Various scholars (e.g., Carlton, Meese, Lopatka, Epstein) have analyzed Aspen Skiing consistently with Trinko as, at most, “at or near the boundary of § 2 liability.”

So is a refusal-to-deal claim ever viable?  ICLE argues that refusal-to-deal claims have been rare (rightly so) and, at most, should only go forward under the delineated circumstances in Aspen Skiing. ICLE sets forth the 10th U.S. Circuit’s framework in Novell, which makes clear that “the monopolist’s conduct must be irrational but for its anticompetitive effect.”

  • First, “there must be a preexisting voluntary and presumably profitable course of dealing between the monopolist and rival.”
  • Second, “the monopolist’s discontinuation of the preexisting course of dealing must suggest a willingness to forsake short-term profits to achieve an anti-competitive end.”
  • Finally, even if these two factors are present, the court recognized that “firms routinely sacrifice short-term profits for lots of legitimate reasons that enhance consumer welfare.”

The States seek to broaden Aspen Skiing in order to sinisterize Facebook’s Platform policies, but the facts do not fit. The States do not plead an about-face with respect to Facebook’s Platform policies; the States do not allege that Facebook’s changes to its policies were irrational (particularly in light of the dynamic industry in which Facebook operates); and the States do not allege that Facebook engaged in less efficient behavior with the goal of hurting rivals. Indeed, Facebook changed its policies to retain users—which is essential to its business model (and therefore, rational).

The States try to evade these requirements by arguing for a looser refusal-to-deal standard (and by trying to shoehorn the conduct as “conditional dealing”)—but as ICLE explains, allowing such a claim to go forward would fly in the face of the economic and policy goals upheld by the current jurisprudence. 

Conclusion

The District Court was correct to dismiss the States’ allegations concerning Facebook’s Platform policies. Allowing a claim against Facebook to progress under the circumstances alleged in the States’ complaint would violate the principle that a firm, even one that is a monopolist, should not be held liable for refusing to deal with a certain business partner. The District Court’s decision is in line with key economic principles concerning refusals to deal and consistent with the Supreme Court’s decision in Aspen Skiing. Aspen Skiing is properly read to severely limit the circumstances giving rise to a refusal-to-deal claim, or else risk adverse effects such as reduced incentive to innovate.  

Amici Scholars Signing on to the Brief

(The ICLE brief presents the views of the individual signers listed below. Institutions are listed for identification purposes only.)

Henry Butler
Henry G. Manne Chair in Law and Economics and Executive Director of the Law & Economics Center, Scalia Law School		Daniel Lyons
Professor of Law, Boston College Law School
Richard A. Epstein
Laurence A. Tisch Professor of Law at NY School of Law, the Peter and Kirsten Bedford Senior Lecturer at the Hoover Institution, and the James Parker Hall Distinguished Service Professor Emeritus		Geoffrey A. Manne
President and Founder, International Center for Law & Economics, Distinguished Fellow Northwestern University Center on Law, Business & Economics
Thomas Hazlett
H.H. Macaulay Endowed Professor of Economics and Director of the Information Economy Project, Clemson University		Alan J. Meese
Ball Professor of Law, Co-Director, Center for the Study of Law and Markets, William & Mary Law School
Justin (Gus) Hurwitz
Professor of Law and Menard Director of the Nebraska Governance and Technology Center, University of Nebraska College of Law		Paul H. Rubin
Samuel Candler Dobbs Professor of Economics Emeritus, Emory University
Jonathan Klick
Charles A. Heimbold, Jr. Professor of Law, University of Pennsylvania Carey School of Law; Erasmus Chair of Empirical Legal Studies, Erasmus University Rotterdam		Michael Sykuta
Associate Professor of Economics and Executive Director of Financial Research Institute, University of Missouri Division of Applied Social Sciences
Thomas A. Lambert
Wall Chair in Corporate Law and Governance, University of Missouri Law School		John Yun
Associate Professor of Law and Deputy Executive Director of the Global Antitrust Institute, Scalia Law School
In Antitrust & Competition, Barriers to Entry, Exclusionary Conduct, Facebook, Platforms, Truth on the Market, Vertical Restraints , , , , , , , ,
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What is the Appropriate Role for State Antitrust Enforcement?

Alden Abbott —  8 November 2021

In the U.S. system of dual federal and state sovereigns, a normative analysis reveals principles that could guide state antitrust-enforcement priorities, to promote complementarity in federal and state antitrust policy, and thereby advance consumer welfare.

Discussion

Positive analysis reveals that state antitrust enforcement is a firmly entrenched feature of American antitrust policy. The U.S. Supreme Court (1) has consistently held that federal antitrust law does not displace state antitrust law (see, for example, California v. ARC America Corp. (U.S., 1989) (“Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies”)); and (2) has upheld state antitrust laws even when they have some impact on interstate commerce (see, for example, Exxon Corp. v. Governor of Maryland (U.S., 1978)).

The normative question remains, however, as to what the appropriate relationship between federal and state antitrust enforcement should be. Should federal and state antitrust regimes be complementary, with state law enforcement enhancing the effectiveness of federal enforcement? Or should state antitrust enforcement compete with federal enforcement, providing an alternative “vision” of appropriate antitrust standards?

The generally accepted (until very recently) modern American consumer-welfare-centric antitrust paradigm (see here) points to the complementary approach as most appropriate. In other words, if antitrust is indeed the “magna carta” of American free enterprise (see United States v. Topco Associates, Inc., U.S. (U.S. 1972), and if consumer welfare is the paramount goal of antitrust (a position consistently held by the Supreme Court since Reiter v. Sonotone Corp., (U.S., 1979)), it follows that federal and state antitrust enforcement coexist best as complements, directed jointly at maximizing consumer-welfare enhancement. In recent decades it also generally has made sense for state enforcers to defer to U.S. Justice Department (DOJ) and Federal Trade Commission (FTC) matter-specific consumer-welfare assessments. This conclusion follows from the federal agencies’ specialized resource advantage, reflected in large staffs of economic experts and attorneys with substantial industry knowledge.

The reality, nevertheless, is that while state enforcers often have cooperated with their federal colleagues on joint enforcement, state enforcement approaches historically have been imperfectly aligned with federal policy. That imperfect alignment has been at odds with consumer welfare in key instances. Certain state antitrust schemes, for example, continue to treat resale price maintenance (RPM)  as per se illegal (see, for example, here), a position inconsistent with the federal consumer welfare-centric rule of reason approach (see Leegin Creative Leather Products, Inc. v. PSKS, Inc. (U.S., 2007)). The disparate treatment of RPM has a substantial national impact on business conduct, because commercially important states such as California and New York are among those that continue to flatly condemn RPM.

State enforcers also have from time to time sought to oppose major transactions that received federal antitrust clearance, such as several states’ unsuccessful opposition to the merger of Sprint and T-Mobile merger (see here). Although the states failed to block the merger, they did extract settlement concessions that imposed burdens on the merging parties, in addition to the divestiture requirements impose by the DOJ in settling the matter (see here). Inconsistencies between federal and state antitrust-enforcement decisions on cases of nationwide significance generate litigation waste and may detract from final resolutions that optimize consumer welfare.

If consumer-welfare optimization is their goal (which I believe it should be in an ideal world), state attorneys general should seek to direct their limited antitrust resources to their highest valued uses, rather than seeking to second guess federal antitrust policy and enforcement decisions.

An optimal approach might focus first and foremost on allocating state resources to combat primarily intrastate competitive harms that are clear and unequivocal (such as intrastate bid rigging, hard core price fixing, and horizontal market division). This could free up federal resources to focus on matters that are primarily interstate in nature, consistent with federalism. (In this regard, see a thoughtful proposal by D. Bruce Johnsen and Moin A. Yaha.)

Second, state enforcers could also devote some resources to assist federal enforcers in developing state-specific evidence in support of major national cases. (This would allow state attorneys general to publicize their “big case” involvement in a productive manner.)

Third, but not least, competition advocacy directed at the removal of anticompetitive state laws and regulations could prove an effective means of seeking to improve the competitive climate within individual states (see, for example, here). State antitrust enforcers could advance advocacy through amicus curiae briefs, and (where politically feasible) through interventions (perhaps informal) with peer officials who oversee regulation. Subject to this general guidance, the nature of state antitrust resource allocations would depend upon the specific competitive problems particular to each state.

Of course, in the real world, public choice considerations and rent seeking may at times influence antitrust enforcement decision-making by state (and federal) officials. Nonetheless, the capsule idealized normative summary of a suggested ideal state antitrust-enforcement protocol is useful in that it highlights how state enforcers could usefully complement (assumed) sound federal antitrust initiatives.

Great minds think alike. A well-crafted and much more detailed normative exploration of ideal state antitrust enforcement is found in a recently released Pelican Institute policy brief by Ted Bolema and Eric Peterson. Entitled The Proper Role for States in Antitrust Lawsuits, the brief concludes (in a manner consistent with my observations):

This review of cases and leading commentaries shows that states should focus their involvement in antitrust cases on instances where:

· they have unique interests, such as local price-fixing

· play a unique role, such as where they can develop evidence about how alleged anticompetitive behavior uniquely affects local markets

· they can bring additional resources to bear on existing federal litigation.

States can also provide a useful check on overly aggressive federal enforcement by providing courts with a traditional perspective on antitrust law — a role that could become even more important as federal agencies aggressively seek to expand their powers. All of these are important roles for states to play in antitrust enforcement, and translate into positive outcomes that directly benefit consumers.

Conversely, when states bring significant, novel antitrust lawsuits on their own, they don’t tend to benefit either consumers or constituents. These novel cases often move resources away from where they might be used more effectively, and states usually lose (as with the recent dismissal with prejudice of a state case against Facebook). Through more strategic antitrust engagement, with a focus on what states can do well and where they can make a positive difference antitrust enforcement, states would best serve the interests of their consumers, constituents, and taxpayers.

Conclusion

Under a consumer-welfare-centric regime, an appropriate role can be identified for state antitrust enforcement that would helpfully complement federal efforts in an optimal fashion. Unfortunately, in this tumultuous period of federal antitrust policy shifts, in which the central role of the consumer welfare standard has been called into question, it might appear fatuous to speculate on the ideal melding of federal and state approaches to antitrust administration. One should, however, prepare for the time when a more enlightened, economically informed approach will be reinstituted. In anticipation of that day, serious thinking about antitrust federalism should not be neglected.

In Antitrust & Competition, Federal Trade Commission, Federalism, Justice Department, Merger Guidelines, Resale Price Maintenance, Truth on the Market, Wireless , , , , , , , , , , ,
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