FTC Official ‘Leery’ of Calls to Revamp Antitrust Law

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By Liz Crampton

A top Federal Trade Commission official Oct. 17 brushed off a push from consumer advocates to make it easier for the government to go after big companies that disrupt markets like Google Inc. or Facebook Inc.

Referring to a populist movement to bolster antitrust laws, Bruce Hoffman, acting director of the FTC’s competition bureau, said it’s a good thing that U.S. antitrust enforcers can’t impose fines or block mergers on their own, as it works in some countries.

The current judicial system “causes us to think carefully and critically about our own views of things,” Hoffman said at a conference sponsored by the Association of Corporate Counsel.

Regulators need to have “a coherent case that we could claim to a neutral and uninterested judge,” he said. “I’m very skeptical and leery of calls to change that and make it easier for us to win or to lower the standards that we impose on ourselves.”

Hoffman’s comments echo prior statements from acting FTC Chairman Maureen Ohlhausen, who says antitrust laws are flexible enough now to tackle anticompetitive behavior.

Narrow Standard?

Sen. Amy Klobuchar (D-Minn.) last month introduced legislation (S. 1812) to shift the burden onto companies to prove that their mergers are pro-competitive and don’t harm for consumers. The legislation is intended to beef up antitrust enforcement at the FTC and Justice Department. It’s also seen as nod to voices in the left who say the antitrust agencies have fallen short of their mission of reining in dominant tech companies.

Liberal think tanks such as the Roosevelt Institute and Open Markets Institute believe that the current “consumer welfare” standard is unable to police technology giants because it’s limited to price effects and doesn’t tackle other factors, like wages or privacy, that may be harmed by these companies’ market power.

But Hoffman said the government has a winning track record in nabbing conduct that harms the marketplace. The DOJ and the FTC have won 17 of their past 20 legal fights. “Winning 85 percent of the time, I think we’re doing pretty well and it’s unclear to me why we would need help,” he said.

“There’s a perception out there that it’s hard for the government to win cases. We don’t win a lot and therefore it should be made easier for the government to win,” Hoffman said.

Criticism of the government’s track record on antitrust cases is “a little bit odd,” he said.

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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