The Corner Newsletter: July 30, 2021
Welcome to The Corner. In this issue, we applaud the nomination of Jonathan Kanter as head of the Department of Justice’s Antitrust Division and a House committee’s move to limit the threats posed by family-controlled investment funds.
To read previous editions of The Corner, click here.
Nomination of Kanter to Lead DOJ Antitrust Proves Biden Plans to Go Hard Against Monopoly
Last week, President Joe Biden named Jonathan Kanter to be the next director of the Antitrust Division within the Justice Department. Kanter is a longtime close friend and ally of the Open Markets Institute and has appeared at many of our most important events over the years. In a statement about the nomination, Open Markets’ Executive Director Barry Lynn said:
“In naming Jonathan Kanter to run the Antitrust Division of the Department of Justice, the Biden administration proved that they are truly serious about fully restoring American democracy. As Open Markets has long made clear, today’s monopolists pose the greatest domestic political threat to Americans since the Civil War. Jonathan Kanter is the right person for this moment — someone who knows how to break the fist of private power and build a rule of law for the digital age.
“Jonathan Kanter is also a true leader who will be able to rebuild an Antitrust Division that has been dangerously stripped down and demoralized in recent decades. He understands how to help the White House restore America’s traditional democratic-republican approach to competition. He understands how to help the White House implement its new “whole of government” approach to competition policy.
Lynn’s statement was cited in The New Republic: “As Open Markets has long made clear, today’s monopolists pose the greatest domestic political threat to Americans since the Civil War. Jonathan Kanter is the right person for this moment—someone who knows how to break the fist of private power and build a rule of law for the digital age.” It was also cited in Vox Recode, Yahoo! News, Common Dreams, The World News, and News Block.
House Committee Advances Bill to Limit Threats Posed by Family-Controlled Investment Funds
The House Financial Services Committee — chaired by Rep. Maxine Waters (D-Calif.) — this week voted 27-22 in favor of passing a package of bills aimed at tackling the problems revealed by the GameStop volatility and the collapse of Archegos. One of the bills, H.R. 4620, “Family Office Regulation Act of 2021,” would bring new, much-needed transparency to the $6 trillion in investment funds directly controlled by wealthy families. In a statement after the vote, Open Markets’ Financial Policy Director Alexis Goldstein said:
“The meltdown of Archegos Capital Management earlier this year showed the urgency of bringing transparency to such family-controlled funds — often called ‘family offices.’ Archegos exploited derivatives and leverage extended by Too-Big-To-Fail banks to transform $200 million in investments in 2013 into a reported $20-billion position before its failure. Archegos’ collapse caused over $10 billion in losses across some of the world’s largest banks.
“The 2010 Dodd-Frank Act brought crucial transparency to hedge funds and private equity firms, but it carved out family offices from the measures. Unlike these other private funds, family offices do not have to register with the Securities and Exchange Commission, file public reports on their positions, or report to regulators details about the leverage they employ. The result is massive and a dangerous loophole in the U.S. regulatory system. The over 10,000 private family offices manage nearly $6 trillion dollars in assets— more than all U.S. private equity firms put together.”
Read the Open Markets’ fact sheet outlining the dangers of keeping such “family offices” in the shadows. Rep. Alexandria Ocasio-Cortez (D-N.Y.) used the fact sheet in her discussion of the bill and entered it into the record.
🔊 ANTI-MONOPOLY RISING:
Last week the Committee on Justice in the Oireachtas, the Irish legislature, announced its intent to reform the Data Protection Commission (DPC) responsible, for ensuring compliance with the General Data Protection Regulation (GDPR) in Europe. The committee noted that the DPC has produced only two out of 196 decisions when dealing with complaints involving GDPR enforcement. The committee emphasized the need for the DPC to shift from a culture of GDPR guidance to enforcement. (Oireachtas)
The European Commission is launching an antitrust investigation into Facebook’s acquisition of customer service startup Kustomer. The investigation is set to begin next month after a preliminary review of the deal is completed. German antitrust authorities are also deciding whether to investigate the proposed deal, citing the potential effects on the German market. (Reuters)
Last week, French antitrust regulators fined eyewear maker EssilorLuxottica $147 million for anti-competitive practices involving “surveillance and retaliation mechanisms” against opticians. The company was found to be forcing opticians to accept prices on its eyewear products and preventing the sale of products online. LVMH and Chanel were also fined €500,000 and €130,000, respectively, for these same practices. (Reuters)
Last week, the FTC voted 5-0 to enforce laws that forbid companies from imposing restrictions on repairing products. The FTC will investigate restrictions that are illegal under federal antitrust laws governing consumer product warranties, such as the Magnuson-Moss Warranty Act. (CNN)
The FTC voted 3-2 last week to rescind a 1995 statement that allowed acquisitions to be considered without prior review. The vote requires companies pursuing a transaction to give the FTC prior notice if they attempted a similar deal that had been blocked in the past. The vote will prevent the FTC from wasting resources by starting new investigations on already unlawful transactions that have already been attempted. (MarketWatch)
This week, insurance broker giants Aon and Willis Towers Watson called off their $30 billion merger announced in March 2020. The Justice Department sued to block the merger in June, arguing that the deal would reduce competition and innovation. The DOJ also pointed out how the deal would lead to higher prices in markets for risk and reinsurance brokering, health and pension brokering, actuarial services, and exchanges offering benefits for retirees. (The New York Times)
📝 WHAT WE'VE BEEN UP TO:
Open Markets signed a letter to the House of Representatives along with 32 consumer, labor and privacy organizations in strong support of the Consumer Protection and Recovery Act, H.R. 2668, to clarify the FTC’s longstanding ability to pursue restitution and money refunds, as well as the return of property and other relief for victims. In December, Open Markets filed an amicus brief in AMG Capital Management, LLC v. FTC. In the case, the Supreme Court’s ruling removed the FTC’s remedial powers and led to the present action to restore them.
Open Markets was featured in an article by HuffPost on the Biden administration’s strong anti-monopoly stance. The article,“How Joe Biden Became a Trust Buster,” recounted Open Markets’ role in elevating Lina Khan and Jonathan Kanter to leading roles in the anti-monopoly movement. It also recounted the importance of Barry Lynn’s December article in the Washington Monthly — “How Biden Can Transform America”— in shaping the new administration’s strategy and its understanding of how executive power can be used to promote a “whole of government” approach to fighting concentration of power and control.
Open Markets Institute continued to receive coverage about FTC Chairwoman Lina Khan’s work at Open Markets. Recent reporting included Politico, CNBC, Los Angeles Times, The Washington Post, CNET, Slate Magazine, Yahoo, The Hill, Bloomberg, Wccf Tech, Ars Technica, and New York Post.
Daniel Hanley published a piece in Common Dreams about how Amazon’s latest surveillance ploy to release an Alexa-enabled tracking device for children showcases the urgent need to restructure the corporation and prevent it from using these harmful practices. “A plethora of evidence shows that Amazon will relentlessly expand its surveillance infrastructure to monopolize markets. Now, with even children as a potential target for collecting more data, Congress and federal regulators must act to stop Amazon's harmful practices.” The piece also ran in The Defender.
The Washington Monthly published Claire Kelloway’s article in Food & Power about what President Joe Biden’s antitrust executive order does for farmers. “The action represents a historic departure from decades of laissez-faire antitrust doctrine in the executive branch, but it will be up to federal agencies to turn these directives into meaningful protections for farmers, workers, and small businesses.”
Daniel Hanley published an article in The Washington Monthly about how enforcers can use compulsory licensing to promote fair competition in the marketplace, especially when it comes to Google. “Antitrust enforcement is an arduous, complex business, but compulsory licensing is simplicity itself. All it takes is for the government to make Google open up the vaults and share a few secrets.”
Nikki Usher was interviewed in ProMarket about her book, News for the Rich, White, and Blue: How Place and Power Distort American Journalism. Usher discussed how place and privilege came to define America’s news media, the role of Big Tech, and why large international outlets like The New York Times increasingly appeal to a global, “placeless” elite.
Alexis Goldstein’s House testimony on the systemic risks of cryptocurrency was cited in an MSN piece about the volatility of the crypto market. “In written testimony to a congressional committee exploring crypto risks to the economy, Alexis Goldstein, a spokeswoman for the Open Markets Institute, a think tank funded by billionaire George Soros, cited an Intervest survey showing that a group of mid-sized hedge funds had allocated an average of 11% of their assets to crypto. ’Extreme volatility in cryptocurrency markets could spread to other financial markets,’ she wrote.” Her testimony was also mentioned in CryptoVantage and Money.com.
Barry Lynn was quoted in the Economist speaking about the possibility of taking down the consumer welfare standard. “Mr. Lynn thinks that the judiciary can be brought round. ‘We’re going to get them into the 21st century. We’re going to get them out of Bork’s garage. Justices of the Supreme Court, judges in the US judiciary—these people don’t read! They just bask in the adoration of lesser people. Educating these people, it ain’t easy. But we will.’”
Sally Hubbard was quoted in Android Central, Gamers Grade, and PhoneArena commenting on the lawsuit that the New York attorney general and 37 other state attorney generals filed against Google for unfairly controlling app distribution on Android with its Play Store, and discouraging the use of third-party app stores in general. “Hubbard, whose work focuses on Big Tech, explained that unlike Apple, Google licenses its entire operating system to third-party companies, and ‘no phone maker can sell their phones without the Android operating system, without the Google Play Store and so, therefore, they have to accept whatever terms and conditions Google puts on.’”
Open Markets’ research on hearing aid manufacturing consolidation was cited in a Vox article about how far America’s monopoly problem stretches. “Take the example of the hearing aid market, which according to the Open Markets Institute is largely controlled by four companies. An estimated one in eight people in the US have hearing loss, which amounts to about 30 million people.”
Sally Hubbard was featured in a Bloomberg podcast called “UnChecked” about what cracking down on large tech companies would do. “It’s important that we proceed on both fronts when going after monopolization; through litigation and with a faster and more whole-sale fix solution through legislation.”
Barry Lynn was featured in a “We the People” podcast hosted by Jeffrey Rosen, who directs the National Constitution Center in Philadelphia. Lynn discussed Biden’s recent executive order on competition with former FTC Chairman Bill Kovacic, who is now a professor of law at George Washington University.
Alexis Goldstein was quoted in The Financial Times in a piece about BlockFi’s cryptocurrency accounts. “The BlockFi opposition has been interesting because it involved states on both sides of the current political divide. While New Jersey is a Democratic state, Alabama and Texas are both Republican, which Alexis Goldstein, director of Financial Policy at the Open Markets Institute in Washington said indicates a real concern from both sides about investor protection.” Goldstein’s comments were also cited in Bolly Inside and PYMNTS.com.
Barry Lynn was quoted in the Financial Times commenting on why Big Tech corporations are seeing massive profit surges as the global economy reopens after the coronavirus pandemic. “They were able to answer the door because they have their hands on every single doorknob,” he told the FT. “That’s the thing about having a monopoly. You win when things are good, you win when things are bad, you’re going to win. Always.” Lynn’s comments were also republished in The Irish Times.
Open Markets was mentioned in a Barron’s piece about how GameStop’s stock plummet is related to Netflix.
Open Markets was mentioned in a JD Supra piece about the Biden administration’s support for banning or limiting harmful non-compete agreements. “Newly confirmed FTC Chair Lina Khan is widely expected to support the new rulemaking. She was the legal director of the Open Markets Institute, which signed a petition filed with the FTC in 2019, along with several other signatories, for rulemaking that prohibits worker non-compete clauses.” Open Markets was also mentioned in a Law 360 opinion piece about how the FTC should approach non-compete regulations.
📈 VITAL STAT: $34 Billion
The valued amount of Kansas City Southern’s plan to sell/consolidate itself to Canadian National Railway Co. in a Big Railroad takeover.
📚 WHAT WE'RE READING:
“Open Access, Interoperability, and the DTCC's Unexpected Path to Monopoly” (Dan Awrey and Joshua Macey): The authors discuss how critical components of America’s financial infrastructure have become “too big to fail” and how interoperability and open access remedies are not likely to prevent some financial markets from being controlled by monopolies.
Nikki Usher’s New Book:
News for the Rich, White, and Blue: How Place and Power Distort American Journalism
Nikki Usher, a senior fellow at Open Markets Institute’s Center for Journalism & Liberty, has released her third book, News for the Rich, White, and Blue: How Place and Power Distort American Journalism. In her latest work, Usher offers a frank examination of the inequalities driving not just America’s journalism crisis but also certain portions of the movement to save it.
Barry Lynn’s New Book:
Liberty From All Masters
The New American Autocracy vs. The Will of the People
St. Martins Press will publish Open Markets Executive Director Barry Lynn’s new book, Liberty From All Masters, on September 29. The book is Barry’s first since Cornered, in 2010. In it, he details how Google, Amazon, and Facebook developed the ability to manipulate the flow of news, information, and business in America, and are transforming this power into autocratic systems of control. 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. Purchase your copy here.
Open Markets Employment Opportunities
You can find the full job listings here.
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