RECENT DEVELOPMENTS

Building Worker Power

• BYE BYE NONCOMPETES. One in five American workers are subject to a noncompete agreement, which restricts employee mobility, reducing wages and hindering entrepreneurship. On April 23rd, the FTC finalized a rule to create a near blanket ban on future noncompetes and renders existing agreements, except for some senior execs, unenforceable. The ban will increase worker annual wages by several hundred dollars across all states. The effort to curb non-competes received bipartisan support, including from members Rep. Gaetz and Senator Brown. Lawsuits challenging the rule, including from the Chamber of Commerce, were filed immediately. The rule is expected to take effect September 4, 2024. Check out Chair Khan’s interview on CNBC for more info.

Airlines

• AIRLINE REFUNDS ON THE WAY. The Department of Transportation (DOT) received nearly 47,000 complaints in 2022, and more than half of those involved flight delays and refunds. The DOT finalized a rule in April requiring airlines to provide passengers with a cash refund after a canceled flight or “significant” delay, which will save passengers $500 million annually. Building off an amendment introduced by Sen. Warren and Sen. Hawley, the FAA Authorization legislation in Congress includes language mirroring the DOT’s action. The rule will go into effect in late October 2024.
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• COMPETITION AT TAKEOFF? Commercial air carriers depend on access to slots and gates to take off, land, and board planes.  The supply of both is limited in many large U.S. airports. Dominant airlines are not fully using gates they control to block smaller rivals from accessing them and operating more flights. Recently, Sen. Warren and Sen. Hawley introduced the Airport Gate Competition Act to break up dominant airlines’ control of airport gates. The bill would increase the amount of “common use” gates shared among several carriers, an idea Economic Liberties recommended in a recent paper. Ultra low cost carriers like Spirit Airlines support the bill.
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• WHAT’S IN YOUR WALLET? Airline and credit card rewards have become big business. Delta alone boasts over 100 million members in its loyalty program and earns $7B from its partnership with American Express. Airlines and credit card issuers are, however, free to change the terms a nd value of points at any time without any consumer recourse. Senators Durbin (D-IL) and Marshall (R-KS) asked the CFPB and DOT last year to review potentially deceptive practices in airline rewards. The CFPB and DOT held a joint hearing in May to hear from ul tra low-cost carrier airlines, banks, and advocates to learn more about reward programs. Listen to Sec. Pete Buttigieg on Marketplace Morning Report discussing DOT’s concerns.

Reining in Big Tech 

• CURTAINS CLOSE ON GOOGLE SEARCH TRIAL. Closing arguments wrapped in the DOJ’s case against Google for monopolizing internet search, the biggest antitrust trial in more than two decades. At issue is whether Google used anti-competitive tactics, like exclusive agreements with Apple, to dominate search. In closing hearings, the judge questioned both parties about whether advertisers could substitute other platforms like TikTok and Facebook for Google. He also sought more information about Google’s policy of destroying hundreds of thousands of chat sessions, potentially containing information relevant to the case. Check out this PBS interview for more on closing arguments, and follow Big Tech on Trial for further updates.
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• EPIC‘S APP BATTLES WAGE ON. Apple and Google force app developers to use their app stores and payment processing systems, while collecting 15-30% of every in-app purchase. In 2020, Epic, Fortnite’s developer, successfully brought cases against Google and Apple claiming they are unlawful monopolies. A judge found Apple viol ated a state competition law and ordered them to accommodate alternative payment systems, a directive Apple has ignored brazenly. The judge in Epic v. Google is currently deciding remedies for federal antitrust violations, including allowing Epic’s own game store to operate inside Google Play.
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• FTC V. AMAZON. The FTC’s two lawsuits against Amazon continue to progress. Amazon lost its motion to dismiss the FTC’s “dark patterns” case claiming Amazon illegally lured customers into signing up for Prime and made it difficult to unsubscribe. In the monopolization case against Amazon for inflating prices on their marketplace, the FTC is asking a judge to force Amazon to reveal their polici es regarding employee preservation of messages on encrypted chat applications that could be relevant to the lawsuit.

Improving Health Care

• CONSOLIDATED HEALTHCARE UNDER FIRE. Stakeholders across government are increasingly focused on the impacts of consolidation in healthcare. The DOJ created a new task force on Health Care Monopolies and Collusion to guide enforcement and policy strategy and is accepting public input at HealthyCompetition.gov. The DOJ, FTC, and HHS also extended the deadline for their RFI into private-equity and other corporations’ impact on health care until June 5. In recent hearings, House and Senate members questioned UnitedHealth CEO Andrew Witty on how consolidation worsened the Change Healthcare cyber attacks that crippled the healthcare system. Sen. Warren is also demanding information from the Centers for Medicare & Medicaid Services about how their lack of data collection could allow big insurance companies to raise costs and pocket profits.
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• BIG MEDICINE’S GOVERNMENT PAYDAY. As a share of GDP the United States spends nearly twice as much on health care as the average OECD country. As detailed in a new report from Economic Liberties, government financing policies used for Medicare, Medicare Advantage, and Medicaid have contributed to these high costs. Government reimbursement has shifted from “fee-for-service,” giving a specific amount for each medical service performed, to a “capitation-based” model where insurers are given a lump sum to manage a patient’s care. The capitation financing model incentivizes large insurers, like UnitedHealth, to vertically integrat e with doctor practices to capture larger government payments and minimize spending on patient care. This vertical consolidation harms patients and clinicians, and drives out independent practices and pharmacies. The report includes policy solutions like a Glass-Steagall for healthcare and banning private insurers from owning providers.  Economic Liberties also released a tracker of UnitedHealth Group abuses stemming from its dominant market power.

Promoting National Security

• NDAA & COMPETITION. The Department of Defense (DoD) budget has ballooned to $842B and almost half goes to defense contractors. Policy decisions over the last 25 years have facilitated consolidation in the industry and a lack of oversight that enables contractors to price gouge the government. The 2025 National Defense Authorization Act presents an opportunity to begin changing course.  Economic Liberties released policy proposals to reintroduce co mpetition in the defense industry, including limiting the kinds of products that can be categorized as “commercial” and not required to submit pricing data to DoD. House Committee on Rules is scheduled to meet the week of June 10th to consider the 2025 NDAA.

Blocking Mergers

• DOJ SUES TICKETMASTER.  The DOJ approved the Live Nation-Ticketmaster merger in 2010, giving the company significant control over the live events industry, including venue operation, artist management, concert promotion, and ticketing. Increasing consumer and advocate outrage led to the creation of the Breakup Ticketmaster Coalition in 2022, which sent 100,000 letters to the DOJ to unwind the merger.  The DOJ and 30 bipartisan attorneys general sued Live Nation-Ticketmaster in May, claiming the company illegally exercised monopoly power across these market areas and calling for a break up. A trial is a long way off, but check out Economic Liberties‘ brief on potential re medies the SDNY court could pursue down the line.
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• SPORTS STREAMING RIGHTS UNDER ATTACK. In 2023, sports TV and streaming rights were a $25 billion market, and it is projected to reach over $34 billion in value by 2027. The dominant companies are making moves to capture more market share.  ESPN, Fox, and Walt Disney Company, and Warner Bros. Discovery, each with exclusive rights over different sports league broadcasting, are proposing a joint venture to combine 80% of national live sports broadcasting in one app. In response, Fubo, a live sports streaming app, has sued the companies, claiming it would be an anticompetitive cartel that would raise consumer prices. The DOJ is expected to review the deal. A coalition including Economic Liberties, Fubo, and DirectTV sent a letter to House and Senate Commerce and Judiciary Committees calling for a hearing on the deal’s risks.
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• CU IN COURT, U.S. ANESTHESIA. Private equity (PE) firms spent $200 billion on health care acquisitions in 2021, raising alarms for enforcers. In September 2023, the FTC sued private equity firm Welsh Carson and the company it created, U.S. Anesthesia Partners (USAP), for monopolizing the Texas anesthesia market. USAP and Welsh Carson attempted to dismiss the case, but only Welsh Carson dodged liability, as the court claimed the PE firm didn’t presently exercise sufficient control over USAP. Overall, the judge’s decision did suggest a PE firm with a different ownership stake could be liable, suggesting support for enforcers’ renewed focus on PE “roll up” schemes. The FTC is expected to appeal the Welsh Carson dismissal decision.
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• KROGER-ALBERTSONS LAST-DITCH EFFORTS CONTINUE. The proposed Kroger and Albertsons merger would combine over 5,000 grocery stores,  causing significant harm to consumers and workers. Kroger and Albertsons unsuccessfully attempted to dismiss the FTC’s lawsuit to block the merger, so trial will begin September 16, 2024. Kroger proposed an additional divestiture of Safeway and C&S stores, despite previously debunked divestiture attempts. Separately, the FTC’s and Colorado AG’s civil antitrust lawsuits revealed Kroger and Albertsons engaged in wage-fixing, no-poach, and non-solicitation activities that carry criminal penalties. Economic Liberties and the UFCW Locals Stop the Merger Coaliti on sent a letter to the DOJ to open a criminal investigation into Kroger and Albertsons’ conduct.
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• CAN T-MOBILE GET BIGGER? T-Mobile is the second largest cell service carrier in the U.S after its 2020 acquisition of Sprint. A class action lawsuit alleges the acquisition led to higher prices and is asking a court to unwind the merger. Despite these challenges, the FCC approved T-Mobile’s purchase of Mint, a low-cost carrier that leased T-Mobile’s network infrastructure, for $1.35 billion. T-Mobile is now trying to purchase U.S. Cellular, the U.S.’s fifth-largest carrier and a major provider in rural areas. Advocates are sounding the alarm about competitive harms stemming from the deal.

Lowering Prices

• BIG OIL PRICE-FIXING. During the gas price surge of 2022, many claimed climate policies were driving high gas prices, which are partly determined by the price of oil. Recent revelations from the FTC, however, suggest Scott Sheffield, former Pioneer Natural Resources’ CEO, colluded with OPEC to decrease oil output and keep prices artificially high during this period. Economic Liberties estimates this collusion cost American families between $2,000 to $4,000 annually. As a result of this research, Rep. Pallone (NJ-06) launched an investigation into the allegations. Sen. Majority Leader Schumer and 23 other senators called on the DOJ to investigate, and House Dems heralded the FTC’s work and pressed for criminal charges. Check out More Perfect Union‘s interview with Chair Khan for more information about these explosive revelations.

ICYMI

• The Supreme Court upheld the CFPB’s funding structure in a 7-2 decision led by Justice Thomas, allowing dozens of actions to move forward. And for a second time, a Fifth Circuit judge transferred the case to block the CFPB’s credit card late fees rule to DC, whi ch is still stayed pending resolution of a preliminary injunction.
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• Google attempted to pay off the DOJ to avoid a jury trial in the adtech case.
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• The FTC sent letters to 10 companies disputing 300 health care patents on diabetes, weight loss, asthma, and COPD drugs, including Ozempic.
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• The DOJ filed a proposed consent decree to prohibit the National Collegiate Athletic Association from limiting college athletes’ ability to transfer schools.
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• Jim Cramer is obsessed with bashing FTC Chair Lina Khan. Check out this tracker.
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• Majority Leader Schumer launched an AI roadmap to propel AI legislation. Last week, the DOJ joined Stanford Business School for a conversation on promoting competition in AI, and the FTC Office of Technology outlined research questions on issues from AI to algorithmic price fixing. Though not a formal comment period, anyone can reach out with possible responses.
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• Economic Liberties, Consumer Reports, and US PIRG sent an objection letter to oppose a Visa-Mastercard class action settlement that would only minimally reduce swipe fees. In addition, a coaliti on of advocates sent a letter to Senate Banking and Judiciary leadership reaffirming support for the Credit Card Competition Act and urging leadership to host a hearing.
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• ReThink Trade Research Director Daniel Rangel testified in front of USTR on why competition is needed to restore supply chain resilience in the semiconductor and chips industry.
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• HomeServices of America, a Warren Buffett real estate brokerage, reached a $250 million nationwide settlement for price fixing real estate agent commissions.
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• American Compass released a publication and More Perfect Union released a video on the falsehoods pushed by Visa, Mastercard, and the financial industry surrounding swipe fees, points programs, and the Credit Card Competition Act.
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• The FBI raided Cortland Management, a real estate company, as part of the DOJ’s investigation into rental price fixing.

BRIEFINGS & EVENTS

• The Federal Reserve and OCC are hosting a public hearing on the proposed Capital One-Discover merger on July 19. Deadline for anyone from the public to register to testify is June 28.
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• Economic Liberties hosted its second annual Anti-Monopoly Summit. The event included remarks from Sen. Murphy (D-CT,) Jared Bernstein, Council of Economic Advisers Chair, and Symone Sanders-Townsend, Co-Host of MSNBC’s The Weekend. Check out a full video of the Summit here!