The man heading up any potentially US government antitrust probes into tech giants like Apple and Google used to work for… Apple and Google.
In the revolving-door world that is Washington DC, that conflict may not seem like much but one person isn’t having it: Senator Elizabeth Warren (D-MA) this week sent Makan Delrahim a snotagram in which she took issue with him overseeing tech antitrust efforts.
“I am writing to urge you to recuse yourself from the Department of Justice’s (DOJ) reported antitrust investigations into Google and Apple,” she wrote. “Although you are the chief antitrust attorney in the DoJ, your prior work lobbying the federal government on behalf of these and other companies in antitrust matters compromises your ability to manage or advise on this investigation without real or perceived conflicts of interest.”
Warren then outlines precisely what she means by conflict of interests: “In 2007, Google hired you to lobby federal antitrust officials on behalf of the company’s proposed acquisition of online advertising company DoubleClick, a $3.1 billion merger that the federal government eventually signed off on… You reported an estimated $100,000 in income from Google in 2007.”
It’s not just Google either. “In addition to the investigation into Google, the DoJ will also have jurisdiction over Apple. In both 2006 and 2007, Apple hired you to lobby the federal government on its behalf on patent reform issues,” Warren continues.
She notes: “Federal ethics law requires that individuals recuse themselves from any ‘particular matter involving specific parties’ if ‘the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter.’ Given your extensive and lucrative previous work lobbying the federal government on behalf of Google and Apple… any reasonable person would surely question your impartiality in antitrust matters…”
This is fine
Delrahim has also done work for a range of other companies including Anthem, Pfizer, Qualcomm, and Caesars but it’s the fact that he has specific knowledge and connections with the very highest levels of tech giants while being in charge of one of the most anticipated antitrust investigations of the past 30 years that has got people concerned.
This is ridiculous, of course, because Delrahim is a professional and works for whoever hires him. It’s not as if he would do something completely inappropriate like give a speech outside the United States in which he walks through exactly how he would carry out an antitrust investigation into tech giants and the holes that would exist in such an investigation, thereby giving them a clear blueprint to work against.
He definitely did not do that. What he actually did was talk about how it was possible to investigate tech giants, despite some claiming it wasn’t – which is, you’ll understand, quite the opposite.
“The Antitrust Division does not take a myopic view of competition,” Delrahim said during a speech in Israel this week. “Many recent calls for antitrust reform, or more radical change, are premised on the incorrect notion that antitrust policy is only concerned with keeping prices low. It is well-settled, however, that competition has price and non-price dimensions.”
Instead, he noted: “Diminished quality is also a type of harm to competition… As an example, privacy can be an important dimension of quality. By protecting competition, we can have an impact on privacy and data protection.”
So that’s diminished quality and privacy as lines of attack. Anything else, Makan?
“Generally speaking, an exclusivity agreement is an agreement in which a firm requires its customers to buy exclusively from it, or its suppliers to sell exclusively to it. There are variations of this restraint, such as requirements contracts or volume discounts,” he mused at the Antitrust New Frontiers Conference in Tel Aviv.
So it looks as though he is ignoring most of what is making this antitrust predatory as he’s mainly looking at price, then a bit at quality and privacy. Except he’s not looking at quality and privacy. Or leverrage. Or the waterbed effect. Or undercutting. Or product copying. Or vertical integration. Or aggression.
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