House Antitrust Chief Aims To End Tech Probe By Late Spring

By Matthew Perlman
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Law360 (May 7, 2020, 8:35 PM EDT) -- Rep. David Cicilline, head of the U.S. House's antitrust subcommittee, said Thursday the congressional investigation into large tech companies is progressing despite challenges from the COVID-19 pandemic and that he expects to issue a report in the coming weeks.

The Rhode Island Democrat spoke to Politico over a video livestream about the pandemic's impact on antitrust issues, including Congress' efforts to rein in large digital platforms. Lawmakers launched a probe last year, holding a series of hearings and requesting information from companies including Facebook, Apple, Google and Amazon to better understand digital markets and hunt for anti-competitive behavior.

During Thursday's livestream, Cicilline said the issue of digital dominance has gained importance in recent weeks as the coronavirus pandemic furthers people's reliance on technology platforms.

"It makes the work we're doing to make certain that there's actual competition in the digital marketplace even more important," he said. "It has raised the importance of the work that we're doing."

The congressional inquiry is one piece in a constellation of scrutiny the tech giants are facing in the U.S., with the U.S. Department of Justice, Federal Trade Commission and a coalition including nearly all of the country's state-level enforcers currently investigating them for potential antitrust violations.

Cicilline said Thursday the hope was to have the House's probe completed and a report of its findings issued by the beginning of April, but the pandemic has delayed the timeline. He now hopes to issue a report "by the end of spring at the latest" so that legislation based on its recommendations can be drafted.

"The decision about whether or not we'll be able to enact [the legislation] in both chambers before the end of the year, in the context of an election, I guess is an open question," he added.

Cicilline also said that the dominance of digital platforms will likely be a hot topic on the presidential campaign trail later this year and that the report will help inform the debate.

Last week, the House Judiciary Committee sent a letter to Amazon founder and CEO Jeff Bezos asking him to testify about the e-commerce giant's business practices and warning that he could face a subpoena if he refuses. The move followed press reports that Amazon used business information from third-party sellers to develop competing products, contradicting a company executive's sworn testimony last year during the course of the antitrust probe.

Cicilline said Thursday that he expects to hear from the heads of all the major technology platforms, whose perspectives he called "very important" to the investigation. He also said Bezos has not yet committed to testifying and reiterated that Congress can compel him to if he doesn't comply voluntarily.

"No one in this country is above the law. Nobody is above answering a congressional subpoena," Cicilline said. "This is a very important investigation that affects the daily lives of American people and we have a responsibility to do it thoroughly, and properly, and to collect all the information we need to answer our questions."

Last week, Cicilline said he was considering making a perjury referral based on the apparently false testimony given by the Amazon executive, associate general counsel Nate Sutton, denying Amazon's alleged use of seller data to create its own products. Cicilline said Thursday he's still considering it and stressed the importance of congressional committees being able to rely on witnesses testimony.

Cicilline was also asked about his recent calls for the next coronavirus relief package to include a temporary moratorium on mergers and acquisitions involving companies that are not in dire financial straits. Democrats also plan to introduce a separate bill that would prohibit most mergers during the pandemic.

The idea has received some blowback, including from Republican FTC Commissioner Noah Phillips, who has argued that merger activity is down because of the pandemic and its economic impact, making a moratorium unnecessary. Phillips has also pointed to data from the last financial crisis showing a dearth of mergers reviewed by federal agencies as further evidence that a prohibition is not needed now.

On Thursday, Cicilline said the last financial crisis resulted in "tremendous market consolidation" that hurt consumers, particularly in the airline and banking industries. He also said he's heard reports that investors are already being advised about opportunities arising from the pandemic and said that kind of consolidation often hurts consumers and reduces competition.

"All we're suggesting is just pause, take a breath, do not jam through mergers at a time when the enforcement agencies should really have their attention focused on the things that are harming Americans right now," he said. "Whatever worthwhile mergers that need to happen can happen once we get through this period."

He pointed to the FTC settlement earlier this week allowing drugmaker AbbVie Inc. to move ahead with its planned $63 billion buyout of pharma giant Allergan PLC after the companies agreed to sell several treatments, a deal opposed by the commission's Democratic minority. Cicilline said the transaction's approval is "very detrimental to consumers," especially in the context of broader consolidation in the pharmaceutical industry and the impacts consolidation could have on efforts to develop potential treatments for COVID-19.

--Additional reporting by Bryan Koenig, Khorri Atkinson, Anne Cullen and Lauren Berg. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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