Protecting Competition, 'Rivalry' Top Antitrust Goals, Says DOJ's Mekki

Mekki was responding to a question from moderator Eleanor Fox, NYU professor emerita- trade regulation. Fox had referenced some views in the legal community -- not hers, she said -- that DOJ and the FTC were expanding their antitrust enforcement goals beyond proper bounds, “delving in areas that have no relation to consumers and economic efficiency.”

Competition “begets untold benefits to consumers” and buyers and sellers that transact business, Mekki said. It yields better prices, better innovation and higher quality goods and services, so the goal is “protecting the rivalry among firms.” There's some concern about what’s “good enforcement and bad enforcement,” especially for mergers. Will a particular transaction "promote competition, or suppress it, or even destroy it?” she asked.

Addressing unilateral anticompetitive conduct and the challenge of adjusting to the realities of new, digital markets, Mekki referenced “remarkably flexible” congressional statutes “that were meant for broadly applicable treatments.” What’s different about modern markets “is that competition may present differently,” she said. She referred to the move away from manufacturing and the economics of digital platforms being “a little bit different.”

The job of agencies is not “what we wish to be different about the antitrust laws,” she said: “We enforce the law as it’s written.” The DOJ has “taken very seriously our obligation to understand” markets, she said, noting DOJ's economists and technologists spend “a lot of time thinking about digital markets” to “make plain the kinds of competition that maybe were less obvious to us in the past.” She cited a need for “business school approaches,” saying DOJ also has experts on business strategy and labor economics.

Another difference in digital markets is the fast pace of change, Mekki said, citing 1990s Google search technology: “We’re just kind of getting after it today.” It’s important for DOJ to watch markets grow and be confident it understands them before acting, which involves getting expertise in relevant areas and applying flexible statutes, she said.

The DOJ hasn’t enforced the Sherman Act's Section 2 much in the tech industry, Mekki said. The last case DOJ brought before the current Google search litigation was the 1998 antitrust suit against Microsoft. “Twenty years is a long time to go without filing a significant Section 2 case,” she said, saying it’s “too soon to tell” whether laws need changes.

Mekki made special note of the antitrust complaint that DOJ and eight states brought last month against Google for allegedly monopolizing multiple advertising technology products in violation of the Sherman Act's sections 1 and 2 (see 2301240055). The Google search and ad cases “will tell us things about how courts are reacting to our theories and the evidence that we put forth,” along with tech company defenses to allegations, she said.

The DOJ’s Google ad tech lawsuit includes a challenge to the company's DoubleClick and AdMeld acquisitions. Allegations aren’t just that the transactions happened and shouldn’t be let through, Mekki said. There's a “richness of allegations, not only about the initial acquisition,” she said. The DoubleClick acquisition gave Google a “dominant position in third-party ad serving,” she said. But it “actually helped it along a broader course of combat that the complaint alleges is problematic,” because it violates Section 2 of the Sherman Act, she said.