Antitrust

S H E A R M A N & S T E R L I N G L L P | 1 1 smaller competitors. They argue that a refusal to share data by a dominant firm is anticompetitive. In the United States, however, we do not generally require firms, even dominant ones, to deal with competitors. I am not yet convinced that we should have different rules for data." In September 2018, in connection with comments regarding Amazon, Delrahim noted that, "Just because somebody is big does not mean they have violated the laws nor should we in any way just [target them] just because they've succeeded." Barry Nigro, Deputy Assistant Attorney General of the Antitrust Division, has similarly made comments suggesting that he does not view data as an asset meriting special regulatory treatment, but rather as one for which he favors letting a competitor that has invested in innovation reap the benefits of that investment. In addition to enforcement interest at the federal level, regulation of online platforms has also caught the attention of state enforcers in the United States as attorneys general from 14 states met with former U.S. Attorney General Jeff Sessions in September 2018 to discuss cooperation with regards to privacy and antitrust investigations of online platforms. As in the EU, various legislative proposals addressing both privacy- and antitrust-related concerns with the online platforms have been released, though at the time of writing such proposals are in the early stages of the legislative process. T H E D O J A P P E A R S T O B E A D H E R I N G T O T R A D I T I O N A L A N T I T R U S T E N F O R C E M E N T P R I N C I P L E S A N D E X I S T I N G A N A LY T I C A L F R A M E W O R K S A N D A N T I T R U S T T O O L S I N C O N S I D E R I N G D I G I T A L M A R K E T S A N D P L A T F O R M S CONCLUSION Calls for regulation of the FANGs are not expected to abate on either side of the Atlantic, and continued enforcement by the EC and national competition authorities seems almost guaranteed. While enforcement by antitrust authorities in the United States has been less active to date, the FTC's significant interest and investment in examining consumer protection and competition issues in digital markets suggest that enforcement may be forthcoming. Whether, and the extent to which, antitrust enforcement by antitrust authorities will regulate the conduct of the FANGs so as to impact the competitive landscape in the quickly evolving digital markets remains to be seen.

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