Barrett Says Antitrust Law Mostly 'Controlled By Precedent'

Law360 (October 14, 2020, 7:57 PM EDT) -- Seventh Circuit Judge and U.S. Supreme Court nominee Amy Coney Barrett offered a rare, brief glimpse Wednesday into her thinking on federal antitrust law at a time when concerns over big technology companies are drawing attention to the role of competition policy.

In an exchange during her confirmation proceedings with Sen. Amy Klobuchar, D-Minn., the ranking member of the Senate's antitrust subcommittee, Judge Barrett focused specifically on the Sherman Act, the oldest of the United States' competition laws and a central focus for those who say current policy has been too lax.

"The text of the Sherman Act, as the court has determined over time, essentially permits the court to develop a common law," Judge Barrett said. "So I think, you know, I haven't really had occasion to decide very many antitrust cases on the Seventh Circuit, but it's an area, because it's largely been left to judicial development, that is controlled by precedent for the most part."  

Judge Barrett has not yet inked her name to any competition law opinion or dissent. However, she has sat on several Seventh Circuit panels handling antitrust cases in which the opinions were written by other judges.

That means Wednesday's comments, during the third day of her highly contentious confirmation hearings, were one of the few times the judge has offered any hint into how she might consider competition law cases.

That includes cases decided in recent years that were targeted for potential legislative override by the House Antitrust Subcommittee report released last week, which pushed for antitrust reforms to combat the monopoly powers exerted by big technology companies, with a particular focus on Facebook, Google, Amazon and Apple.

One of the cases named is Ohio v. American Express , the 2018 ruling in which the high court said that antitrust cases involving so-called two-sided markets need to consider competitive impacts on both sides.

The AmEx decision is likely one of the cases Klobuchar was alluding to Wednesday when the senator spoke of recent Supreme Court cases that she said "have made enforcing our antitrust laws even more difficult." In terms of the Sherman Act, Klobuchar wanted to know if Judge Barrett agreed that the law is a "broad charter," as described by the late Justice Ruth Bader Ginsburg.

"The Sherman Act is broadly worded, insofar as it prevents contracts, combinations and conspiracies in restraint of trade. And because that language is broad, courts have developed a robust doctrine of common law to enforce and bring about its promise of eliminating contracts, conspiracies and combinations that restrain trade," Judge Barrett said.

Judge Barrett kept her comments focused on the broad nature of the Sherman Act and the power of precedent over the law, even as Klobuchar asked about the apparent disconnect between that breadth and what the lawmaker called "recent judicial precedent that has substantially narrowed the application of the statute in practice."

Antitrust law came up at the high court as recently as Tuesday, when Justice Clarence Thomas said the court should "in an appropriate case" narrow the immunity granted technology companies under Section 230 of the Communications Decency Act.

Some courts, the justice said, have "departed from the most natural reading of the text" and expanded immunity protections far beyond the terms of Section 230 itself, although his focus was much broader than antitrust liability.

Reining in technology companies and their liability protections has become a rallying cry on both sides of the political aisle.

The U.S. Department of Justice has called for a broad rollback of Section 230 immunity. When it comes to antitrust protections, it cited the case to which Justice Thomas attached his rallying cry, the rejection of a petition from security software company Malwarebytes Inc. for review of a Ninth Circuit order last year allowing its rival Enigma Software Group USA LLC to sue the firm over its filtering tool, which allegedly flags Enigma's products as potential threats.

Malwarebytes isn't accused of violating federal antitrust law, but rather state law business tort and Lanham Act unfair advertising violations. But the Ninth Circuit nevertheless held Section 230 immunity from lawsuits for content moderation and filtering doesn't cover conduct "driven by anticompetitive animus."

That decision has raised concerns from advocacy groups who warned that the appellate court could drive filtering tool makers to water down their software for fear of lawsuits.

--Additional reporting by Dave Simpson, Khorri Atkinson and Matthew Perlman. Editing by Alanna Weissman.

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