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Sheppard Mullin's Nota Bene

Mar 10, 2021

The U.S. Senate has introduced legislation that presents dramatic changes to the current state of U.S. antitrust law, driven by the assumption that Big Tech as it has evolved currently constitutes a series of defined market monopolies.  But the Economist recently questions whether that assumption should be reconsidered given the rise in shares of second and third firms in these markets over the past five years. Adding to any reconsiderations is the intensifying and game-changing competition among the Big Tech industries and the abundance of Big Tech newcomers which poses the question of whether the current market structure is really one of hyper-competitive Big Tech oligopolies rather than monopolies.  

In this context, Tom and Bill join me in discussing the question of whether America’s 125 year old competition policy, developed through common law applied to actual controversies sorting the American experience, isn’t the more appropriate enforcement mechanism to apply in the American marketplace. We assess the current adequacy of those laws to address Big Tech concerns, the political source of those concerns, the legitimacy of those concerns, and the impacts of the antitrust reforms the American Congress has presently proposed.

Thomas Dillickrath is an Antitrust & Competition partner in Sheppard Mullin’s Washington, D.C. office, focusing on antitrust litigation and merger investigations. Prior to joining the firm, he served as Deputy Chief Trial Counsel at the Federal Trade Commission’s Bureau of Competition. During his time at the FTC, Tom litigated antitrust cases brought by the FTC involving mergers and acquisitions and other business practices affecting U.S. consumers.

Bill Margeson is an associate in the Antitrust and Competition Practice Group in Sheppard Mullin’s Washington, D.C. office. Bill has litigated antitrust, intellectual property, and other disputes in federal and state court and in the International Trade Commission under Section 337.  Bill also has criminal litigation experience, including in grand jury investigations related to price fixing and fraud.  Prior to law school, Bill worked in the public policy field.

What We Discussed in This Episode:

  • Are the courts the most qualified to deal with the unique developments in antitrust laws in the U.S.?
  • How are current economic, social, and political climates affecting antitrust laws?
  • Is the notion that “big is bad” a belief held by both governmental parties?
  • How should monopolies be dealt with? Should the government regulate? Should any type of regulation be industry specific?
  • What new rules is the American Congress attempting to impose in this area?
  • What is Senator Klobuchar’s antitrust bill proposing? How will it affect competition if passed?
  • Has the Supreme Court completely abandoned the application of the essential facilities doctrine?

Resources Mentioned:

The Curse of Bigness: Antitrust in the New Gilded Age by Tim Wu 

 Goliath: The 100-Year War Between Monopoly Power and Democracy by Matt Stoller 

Monopolies Suck: 7 Ways Big Corporations Rule Your Life and How to Take Back Control by Sally Hubbard 

Verizon Communications, Inc. v. Law Offices of Curtis Trinco, LLP 

Contact Information:

Tom’s Sheppard Mullin attorney profile 

Bill’s Sheppard Mullin attorney profile 

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