RECENT DEVELOPMENTS

Reining in Big Tech 

• • • US V. APPLE KICKS OFF. Apple controls 70% of the premium smart phone market. The DOJ and 16 bipartisan attorney generals are suing claiming Apple maintains this dominance illegally through anticompetitive tactics like blocking rivals from offering apps on iPhones, making it hard for consumers to switch products. Fourteen conservative think tanks called the case “appropriate and necessary.” EU antitrust enforcers also recently fined Apple $2 billion for similar conduct.  Three US class action lawsuits were filed following the DOJ’s case. Follow USvApple.org for further case updates. In other news, Jon Stewart recently revealed on The Daily Show that Apple blocked him from discussing tech issues with FTC Chair Khan.
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    • TIKTOK IN THE HOTSEAT.  150 million Americans, nearly half the country, use TikTok, which still trails usage rates for Meta and YouTube. But last month, bipartisan members of the House passed legislation to force TikTok’s Chinese parent company, ByteDance, to divest the social platform with the intent of protecting U.S. data for national security purposes. President Biden expressed support for the sale, and now, Speaker Mike Johnson is trying to tuck the bill into a foreign aid package and give ByteDance one year to effectuate the divestment to accelerate the bill’s passage. In response, Politico reports the Chinese government has launched a lobbying campaign to derail the legislation.

Airlines

• • • BOEING’S TROUBLES GROW. The fallout from Boeing’s safety crisis continues. Two congressional hearings, including with a new whistleblower, highlighted the company’s longstanding pursuit of money over safety. The National Transportation Safety Board reports Boeing’s has disregarded their investigation, even going so far as to overwrite video surveillance footage connected to the Alaska Airlines incident. The DOJ has also opened a criminal investigation into whether Boeing’s recent safety incidents violate commitments made years ago after two fatal airline crashes. Additional ly, Reps. Crenshaw (R-TX-02) and Nehls (R-TX-22) are urging Secretary Buttigieg to investigate United Airlines, citing several safety problems with Boeing planes and the airline’s monopoly over Houston travel.
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    • STATE AGS/DOT UNITE. Since deregulation in the 1970s, state attorney generals have not been able to sue airlines on behalf of their constituents. AGs have asked Congress to restore this authority, and Economic Liberties released model legislation to effectuate that change. Though Congress hasn’t acted, the Department of Transportation and 18 bipartisan attorney generals have signed a memorandum of understanding fast-tracking consumer complaints states receive to the DOT for resolution under federal law.

Improving Health Care

• • • UNITED/CHANGE HACK CHAOS. In 2023, United Health acquired Change Healthcare, a payments clearinghouse processing over 30% of insurance claims in the U.S., despite DOJ opposition. This spring, Change was attacked by ransomware group ALPHV, or Blackcat, which given its size, crippled the healthcare payments system, affecting 94% of hospitals, and left many payers and providers unable to meet payroll. In response, advocacy organizations are demanding HHS change federal healthcare payment standards so providers can use multiple payment file types. In a House E&C hearing, Chair Rodgers and Ranking Member Pallone both pointed to United Health’s vertical integration for exacerbating the hack’s harms. Next up, UnitedHealth’s CE O Andrew Witty will testify before Senate Finance on April 30th. Check out Economic Liberties’ fact sheet to learn more about Change, the cyberattack, and United Health’s abuses.
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    • INHALERS… ANOTHA ONE. The Administration keeps racking up wins to lower drug prices. GlaxoSmithKline (GSK), one of the four largest U.S. inhaler manufacturers, is now joining AstraZeneca and Boehringer Ingelheim (BI) in lowering monthly inhaler costs to $35, regardless of insurance status. GSK will implement the price cap January 1, 2025, and BI will implement new prices by June 2024. Just last month, Senator Warren (D-MA) grilled GSK for artificially raising the price of its g eneric inhalers. And previously, the FTC challenged 100 improperly listed patents on the Orange Book, including the three aforementioned. The Senate HELP Committee also sent letters to each of the inhaler manufacturer CEOs for charging unfair prices. Teva is now the only inhaler major manufactu rer that has not committed to lowering their prices.

Blocking Mergers

• • • CAP ONE-DISCOVER MERGER UNDER MICROSCOPE. Capital One’s proposed merger with Discover would create the sixth-largest bank and largest credit card issuer by loan volume. But the deal’s prospects are murky. Economic Liberties predicts both the DOJ and the banking regulators will likely oppose the merger given the risk for furthering concent ration and increasing financial risk. Nearly 30 advocacy organizations have called on regulators to block the deal, and Senate Majority Leader Schumer (D-NY) has also spoken out against the merger. The Fed is requesting comments until April 26th.
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    • DOJ EYES US STEEL. Consolidation led to the quadrupling of steel prices in recent years, impacting critical markets like auto manufacturing and infrastructure. In December, U.S. Steel agreed to a purchase by Nippon Steel, a Japanese steelmaker, but they are likely to face regulatory headwinds. President Biden has publicly opposed Nippon’s takeover, and the DOJ is reportedly investigating the $14.1 billion deal.
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    • DOLE/CHIQUITA DEAL DUMPED. Dole terminated its attempted acquisition of Chiquita’s packaged salad brand subsidiary, Fresh Express, in response to an alleged DOJ investigation. Over 85% of households purchase Dole and Chiquita products, and the deal would have consolidated two of the top three s ellers in a $3.2 billion packaged salad market, threatening to raise prices. AAG Kanter heralded the abandonment for keeping grocery prices lower.
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    • CHOICE HOTELS ABANDONS HOSTILE TAKEOVER. 80% of all hotel rooms are operated under one of six franchise chains, including Choice and Wyndham. Choice attempted a $7.8 billion hostile takeover of Wyndham, a deal that would have created the largest hotel franchisor. Hotel owners expressed concerns about the merger, expecting higher franchise fees. The FTC was scrutinizing the deal, and Wyndham shareholders ultimately rejected the offer, citing regulatory risk.
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    • NO MORE TAX-FREE MERGERS. Since 2007, roughly 30-40% of mergers overall and half of merger deals over $1 billion in 2021 exchange stock to purchase another company. A legal loophole spares such transactions from being taxed. Senators Vance (R-OH) and Whitehouse (D-RI) introduced the Stop Subsidizing Mergers Act to close this loophole by requiring all mergers, regardless of deal structure, with firms combined average value over $500 million be taxed.

Lowering Prices

• • • JUNK FEES ARE POLITICAL WINNERS. Junk fees cost U.S. consumers $102.8 billion in 2022. New research indicates 9 in 10 constituents in battleground states would support legislation to ban or limit these fees. Consistent with the Administration’s priority to tackle junk fees, the FCC recently voted to require “all-in” cable and satellite pricing on promotional materials to prevent surprise charges. The rule follows the FCC’s new standardized broadband pricing disclosures. In October, the FTC issued a proposed rule to ban junk fees across the economy, and the final rule could drop at any time.
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    • GROCER GREEDFLATION EXPOSED. Grocery prices have jumped 25 percent in the last four years, vastly outpacing inflation. A recent FTC report suggests dominant grocers used pandemic-related supply chain disruptions to hike prices and anti-competitive tactics to secure supply over smaller rivals. Recently, Senator Warren (D-MA) and Representative Scanlon (D-PA-05) led a letter urging the FTC to revive enforcement of the Robinson-Patman Act, which outlaws giving more favorable terms to dominant market participants over smaller firms. Check out Economic Liberties’ report on reviving the RPA.
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    • CC LATE FEE RULE IN LIMBO. Credit card late fees cost consumers $14 billion a year. The CFPB finalized a rule to limit late fees to $8, saving consumers $10 billion annually. The Chamber of Commerce quickly challenged the rule in the Fifth Circuit, and the CFPB unsuccessfully attempted to change the venue to D.C. The Judge assigned to the case, however, has faced calls to recuse based on financial conflicts of interest, but ultimately can decide whether the rule will go into effect on May 14th despite the lawsuit. Rep. Barr’s (R-KY-06) CRA to overturn the rule has passed out of committee, but Sen. Schumer has signaled Dems will not support the bill.

Building Worker Power

• • PHARMACY UNION PUSH GROWS. CVS and Walgreens control 40% of all pharmacies across the U.S. Their pharmacists have voiced concerns about suppressed wages and deteriorating working conditions, leading to a nationwide walkout in Fall 2023. The outcry led to the creation of the Pharmacy Guild, an organization helping stores unionize, now represented by the International Association of Machinists and Aerospace Workers. Two CVS stores in Rhode Island and Nevada-based, CVS-owned Omnicare, which fills prescriptions for nursing homes, are the first to file petitions to join the Pharmacy Guild. Separately, 900 Chicago Walgreens pharmacists represented by the National Pharmacists Association-Liuna have launched a “Phed Up” tour to call for better wages and working conditions.

ICYMI

• The WSJ reported the DOJ could sue Live Nation/Ticketmaster for harming competition as soon as next month.
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• HHS, DOJ, and the FTC have launched a portal for anyone to submit a healthcare competition complaint.
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• The DOJ is investigating whether private equity firms intentionally withheld information from antitrust enforcers on merger filing forms
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• Economic Liberties has created a tracker of lawsuits questioning the constitutionality of federal agencies and their rulemaking authority.
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• Sen. Schumer (D-NY) and Rep. Khanna (D-CA-17) led a letter from nearly 50 members of Congress urging the FTC to investigate the recent gas and oil merger wave. Global Partners later abandoned its deal with Gulf Oil Limited Partnership.
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• A judge denied Meta’s request for a preliminary injunction, which would have prevented the FTC from moving to ban Meta from monetizing children’s data until the resolution of Meta’s challenge regarding the constitutionality of the FTC’s in-house court system.
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• The FTC’s lawsuit to block the Kroger-Albertsons merger will begin hearings on August 26, 2024.
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• Check out Rep. Velazquez’s (D-NY-07) op-ed in The Hill discussing the need to protect small businesses from consolidation.
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• Check out Chair Khan’s interview breaking down the role of the FTC and their recent investigations in her CBS interview. She also recently published a  Foreign Policy op-ed and delivered a speech at the Carnegie Endowment, explaining why competition is necessary in emerging technology markets for the U.S. to compete globally, challenging the “national champion” model.
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• USDA finalized new standards for meats labeled as “Product of USA,” which now require live-stock born, raised, slaughtered, and processed to receive the label, though the labels remain voluntary due to trade rules
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• General Electric voluntarily separated into two companies, GE Aerospace and GE Vernova, skyrocketing the firms’ value.
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• Wal-Mart has refiled its merger paperwork for its attempted acquisition of Vizio, smart TV producer, giving the DOJ more time to review the deal.
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• The National Association of Realtors (NAR) agreed to pay $418 million to home sellers for price fixing realtor commissions.
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• The DOJ is rumored to be conducting a criminal investigation into Real Page’s rental price fixing scheme.
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• The FTC and DOJ filed a statement of interest in a New Jersey case, clarifying that algorithmic price-fixing is illegal.
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• For more information on why funding for antitrust agencies is critical for protecting consumers and lowering prices, check out The Hill.

BRIEFINGS & EVENTS

• Join Economic Liberties for our second annual Anti-Monopoly Summit on May 21, 2024 from 9:15am – 5.30pm ET. RSVP here!
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• FTC, DOJ, and HHS have requested information regarding the effects of consolidation in health care. Comments can be submitted until May 6.
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• The FTC scheduled a Open Commission Meeting regarding the noncompete rule on April 23rd, 2:00 PM ET. Join virtually here.