Mexico City “Haters gonna hate” is the line that we’ve all heard by now. Lina Kahn, the legal antitrust scholar who was Biden’s surprise appointment to head the Federal Trade Commission (FTC), has been a controversial nominee. She has also been the target of all manner of businesses and their lawyers, especially in the tech world, where she has mounted huge cases against Google and others for antitrust restraints of trade. In the early going on the FTC attack on monopolists, they have been winning the day and beating her soundly. The tide may be finally turning, which would be a good omen for stopping deep pocketed corporates and their avarice.
Amazingly, here in the dog days of 2023, the FTC won one, and it’s a big coup in a shocking venue, the arch-conservative, MAGA-favorite, New Orleans-based Fifth Circuit Court of Appeals. Just to set the context, if you’re a heavy-breathing far-right, social and political conservative with axes to grind, getting your case in the footprint of the Fifth Circuit is your go-to play. Want to take a shot at the administrative state or deep-state as the Qanon-ers call it, you’re going to file in south or west Texas with a Trump-appointee, so you can have the Fifth Circuit give it the high-ho up to the Supreme Court and make or break laws. This is the same strategy for abortion, gun rights, anti-LGBTQ, and the like.
Taking you into the weeds, this was a case on a merger effort by the big biotech company, Illumina, which was trying to buy a company for over $7 billion called Grail that makes cancer tests. The FTC argued a breakthrough expansion of the existing watered down antitrust legal theories that even if this merger were not in the same field or sector, if the merger decreased competition in the sector where it was making the purchase, it would still be an antitrust violation. This had been their Microsoft argument against acquiring huge game operation, Activision Blizzard for $69 billion, when the FTC had raised alarms but did not succeed. This time, the FTC prevailed, and did so in the Fifth Circuit, where the panel agreed that the merger would so decrease competition in the critical cancer testing area that it violated antitrust. They didn’t give the FTC a greenlight on all of its theories, but on the bottom line, it was a big winner. Illumina has now announced that it is abandoning and unwinding the Grail merger PDQ.
This is potentially huge. The ripple effects are going to be significant on both sides of the Atlantic, since the EU is on to these bums as well. Almost immediately, Adobe, the tech-PDF master, has announced that it is paying a $1 billion breakoff fee and walking away from a $20 billion merger with design software maker Figma, because the regulatory climate has finally changed.
The tech-libertarians only mouth the words about supporting competition and free market capitalism, but worship at the throne of monopoly. We need the FTC and EU to put lots of boulders in front of them and others. Decisions like this and continued aggressiveness of the FTC should mean more competition, lower prices, and fewer fat-wallet billionaires, and that’s good for the rest of us.