He added the government would have had a better chance of success if it had instead targeted contracts that these companies have signed that could constitute unlawful “restraint of trade” stifling future competition under section 1 of the Sherman Act.
Biden’s overlooked campaign to protect Americans from Big Business
Many Americans are focused on inflation, but from Big Tech to junk fees, Biden is advancing a pro-consumer agenda.
At the same time, Stacey Dogan, a professor of antitrust law at Boston University School of Law, said the lawsuits are a “healthy development,” even if some of them fail.
“Many of the claims are targeting behavior that on its face appears to reduce consumer choice and harm competition,” she said. “Sometimes advances in technology improve outcomes for consumers, and sometimes they don’t. Sometimes, the effects are mixed. Existing antitrust law struggles with those cases, and some of these lawsuits will give courts an opportunity to develop that law.”
That may take a long time. Except for the Google Search lawsuit, judgments in these cases aren’t expected for years, with likely lengthy appeals if the government prevails. Given that the FTC is made up of five members who each serve a seven-year term, they will remain in their positions and continue to pursue these lawsuits even if Trump is elected.
Aside from the Big Tech cases, the Biden administration has also notably filed a lawsuit seeking to break up Ticketmaster’s parent company Live Nation, accusing it of operating an illegal monopoly through anti-competitive behavior that has harmed everyone from consumers to venues to artists. The lawsuit claims that Live Nation controls about 60 percent of the market for concert promotions and manages more than 400 artists. Through Ticketmaster, it also controls about 70 percent of the market for ticketing and live events and more than 80 percent of major concert primary ticketing.
The Biden administration has also been active on antitrust outside the courts. Notably, it unveiled stricter guidelines under which the FTC will not approve a merger that may stifle competition, hurt wages and working conditions, or increase consumer prices.
The Biden administration is contemplating further consumer protection policies
The Biden administration is planning further pro-consumer actions in the coming months:
- The CFPB has announced that it will issue more stringent regulatory requirements to protect consumers in “earned wage access” programs, in which workers pay for the ability to access their paycheck early. “It mimics some of the same concerns that we had around payday lending, which is that you put people into a cycle of debt,” Wilson-Spotser said. “This is an area where we see [the CFPB] being bullish.”
- The Treasury Department is weighing reforms to title insurance, which home buyers who take on a mortgage are forced to purchase to protect against financial loss due to defects in a property's title. This is part of Biden’s push to lower the costs of homeownership.
- Some of the changes Biden is seeking require congressional action. Biden has called on Congress to end student loan origination fees, which range from 1 to 4 percent of the total amount of each federal student loan, as part of his 2025 federal budget proposal. He has also pushed for a right-to-repair law that would make expensive devices such as iPhones easier and cheaper to fix by empowering independent repair shops to do the work.
The outcome of the November election may determine whether any of these policies survive, Wilson-Spotser said. “If President Biden were to lose, it’s obvious that the candidate he's facing would not have the same take on consumer protection,” she said. “I did not see from the prior Trump administration an emphasis on consumer protection.”