Josh Hawley Expresses Concern Over America's 'Somewhat Suspect' Antitrust Law

2 days ago

During Tuesday's Senate Judiciary Committee hearing, Sen. Josh Hawley (R-MO) expressed concern over whether antitrust laws are effective against big tech.

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Transcript

00:00You're up to bat. Thank you. Thank you so much. Thank you. Mr. Chairman. Thanks for holding this hearing

00:04Thanks to all the witnesses for being here miss Harper if I could just start with you

00:07I want to thank you for the great work that you do on antitrust enforcement

00:11You've we've worked a lot your organization my office

00:14So thank you for everything that you do and something that you are very focused on is revitalizing antitrust

00:20enforcement

00:22because

00:23revitalizing antitrust enforcement is really about

00:26Protecting our markets promoting competition and getting a good result for consumers and workers. Is that fair to say?

00:34Very fair and other businesses as well and other businesses as well. Yeah, well said

00:39Let's just talk though about some of the the barriers to antitrust enforcement effective enforcement

00:44This is something in just my short time in the Senate that I've seen over and over and over again

00:47Is that antitrust suits that you would think should be brought don't get brought by the government?

00:53Suits that you think should be pursued don't get pursued

00:56So what can you speak to some of the barriers to effective antitrust enforcement that you see out there that you're familiar with?

01:03Well, I mean I do think big tech is an area where we've been quite impressed with just the wide range of suits that have

01:10been brought by enforcers and bipartisan enforcers across multiple administrations at this point and

01:16You know that that's encouraging and something that we've already discussed a bit today at the hearing

01:20But usually what is most challenging for enforcers is having enough resources. I mean these guys are often out

01:27Gunned by the big tech firms that have unlimited budgets the former chief legal officer at Google said publicly that they had about a billion

01:34Dollars to manage any sort of legal risk that was presented to them as a company and we have enforcers that even in these trials

01:40Will have about a tenth of the resources that any individual

01:44Defendant that they're taking on might have so

01:47Put all of that on turbo speed when it comes to big tech and the inequity and resources is quite stark

01:52Yeah, that is that's startling a billion dollars and that's versus

01:56Government enforcers who have the resources of the government

01:59I noticed that in the Clayton Act anybody who's familiar with our antitrust statutes knows is the Clayton Act 15 USC

02:06Section 15 a the statute says that any person I emphasize any person

02:11Who shall be injured in his business or property by reason of anything forbidden in the antitrust laws

02:16May sue therefore in any district court of the United States. That's a private right of enforcement

02:21I mean, so the Clayton Act allows private suits and yet it's

02:26Usually there are private antitrust suits out there, but usually it's government suits that we see

02:30Is that because of the the resource imbalance? Do you think yeah

02:33I mean it can be difficult to find a plaintiff's attorney that's willing to take on the risk and and again when we're looking at

02:39Bringing a suit against big tech, you know

02:42You are taking on not just the biggest Giants of the United States the biggest Giants of the world

02:47That have unlimited resource that can be quite intimidating for anyone who's running their own law firm. Absolutely. Mr. Boswell's

02:52Let me just ask you in this respect your company has suffered

02:55I would say maybe more than anybody at the hands of Google and their anti-competitive conduct

03:02Did you bring a did your company bring an

03:06Enforcement suit a private enforcement suit under the Clayton Act and if it's not why not

03:12No, I don't believe we have as

03:16we were just talking about it's very resource intensive and time intensive and you know as a

03:23Startup and you know over the our 15-year course of existing you have to make trade-offs, you know, we're trying to run a profitable company

03:31Which DuckDuckGo is and so we're not just trying to raise more and more money and build up more and more

03:37equity and debt over time and so you have to sort of pick your battles a little bit and

03:43So that's not one thing that we've prioritized. Yeah, that makes total sense. And I'm sure is an entirely rational

03:49Decision on your part. Here's what I'm where I'm going towards. Here's what I'm getting at

03:53I just wonder if it's time that we took a little bit different approach to antitrust enforcement

03:58I wonder if it's time that Congress in addition to pursuing some of the other goals and goods that we've been talking about today

04:04I wonder if it's time we revisited the power of private suits and antitrust enforcement and began to make those viable again

04:12Courts have closed down

04:14access by private parties to antitrust enforcement suits by imposing

04:20Injury and standing requirements that I think frankly are somewhat suspect we could fix that

04:25We could allow class-action suits in the antitrust context

04:28We could open up the courtroom doors and allow private parties

04:32Access in such a way that it would make economic sense to bring a suit and you'd have a better chance of prevailing

04:39I just wonder if it's if we if it's time we start thinking outside the box a little bit

04:43Or maybe it's not outside the box

04:45Maybe it's getting back to first principles because this is after all how the Clayton Act was written

04:48I mean it was written to allow not just government enforcers

04:51We understand the importance of that

04:53but it was also meant to allow

04:55Injured private parties to get into court and have a real shot at enforcing the law and recovering damages treble damages

05:02Under current law. Maybe we ought to increase those damages awards. Maybe we ought to

05:08Change some of the injury and standing requirements that the courts have imposed that I think frankly are not there in the text

05:14the history of

05:16Of the Clayton Act. Did I see you raising your hand professor? I was

05:20Thank you, I was gonna say where you were ending up which is we need to increase the incentives and rewards for bringing these lawsuits

05:27We have bounties in other areas such as securities laws. We could bring that into antitrust

05:31So and that's good on both sides, by the way, it's good for incentivizing the lawsuits to be brought

05:36It's also good for deterring anti-competitive conduct because the penalties are greater. Yes, exactly terrific point terrific point

05:42And there's something that is I think particularly

05:44Market reinforcing about private suits because you have private actors who in real time are responding to harms if they are

05:51Properly incentivized and able to get into court to enforce their rights. That's good for the company

05:58That's good for all of the other people who are in a similar position

06:01It's good for the government. The government is not expending resources. It's good for the market

06:06There's as it turns out the people who dran it drafted the Clayton antitrust law. We're pretty smart

06:10Actually, they had a good intuition a hundred years ago and maybe it's time that we made better on that promise

06:16Do you want to say something miss Harper? I'll give you the last word

06:18I was just gonna add I mean one I love the creativity of different ideas of how we can take on the power of

06:22Big tech. I think it's an all-hands-on-deck situation in every approach that we can adopt

06:27We should be to stop their lawlessness

06:28I will just add though and we hear this from a lot of market players that it can also be quite scary to take on

06:34That public lawsuit for fear of retaliation

06:37We know it's happening behind the scenes

06:39But once you become the named party in a lawsuit that can also

06:43Heighten quite a bit that risk and so I do think it's a both and

06:46Funding the antitrust enforcers making sure they have the resources to bring these suits on

06:50Behalf of a lot of the businesses who can't for themselves, but then also encouraging private suits as well. Yeah, absolutely

06:55I agree with all of that and that's absolutely correct. I think absolutely correct. I'll just end with this

06:59It's a it's a point I've been making recently in other contexts

07:02But there is something that is uniquely attention-grabbing to these companies about facing a jury

07:10having to face a jury maybe and with a private with a competitor who's sitting on the other side of the table and

07:17Facing a judgment that will run into the billions of dollars

07:20I mean it really gets the attention of these CEOs and frankly their shareholders

07:25I remember the FTC find Google not that or sorry find meta not that long ago

07:30It was a pretty large fine

07:31Meta didn't meaningfully change their conduct their stock price went up the next day after the fine was announced. I mean, it's ridiculous

07:39How would they like to face like a billion lawsuits?

07:42That could run into two damage totals of tens of billions hundreds of billions of dollars

07:46I don't know seems like that was the intuition of the drafters of the Clayton Act. I'm way over my time. Mr

07:52Chairman, you've been super patient. Thank you. Thank you very much. Good. Good to have you with you and

07:56And senator Welch will turn it back over

Josh Hawley Expresses Concern Over America's 'Somewhat Suspect' Antitrust Law

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