Under Biden, expect more scrutiny of Big Tech and mergers

December 29, 2020, 2:00 PM UTC

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The Biden administration is expected to take a tougher stance against acquisitions than President Trump’s while continuing a recent flurry of antitrust cases against Big Tech.

“Antitrust law and policy are poised for a course correction,” says Andrew Gavil, an antitrust expert at Howard University School of Law. “The degree of that correction remains to be seen and will be influenced by both politics and the composition of the courts.”

Trump’s antitrust regulators, led by Assistant Attorney General Makan Delrahim, loudly tried stopping AT&T from acquiring Time Warner in 2017—only to suffer a stinging defeat in court. Overall, however, Trump’s Justice Department made 19% fewer requests for data about mergers—which delay closings to allow regulators to take a closer look—and filed 18% fewer cases to block mergers than the prior administration.

From time to time, the Trump administration even wrote legal opinions opposing antitrust lawsuits from other agencies, like the Federal Trade Commission’s case against Qualcomm. On the other hand, at the end of its tenure, Delrahim’s team did file high-profile antitrust suits against Google and Facebook, signaling that the concentrated power of big tech companies was alarming to Republicans as well as Democrats.

“The approach we took—that this is legitimate, to look at it and not be afraid of the tech companies—opened up the ability of the staff to investigate,” the outgoing assistant AG said at Fortune’s Brainstorm Tech conference earlier this month. Delrahim added that he hopes under the Biden administration the battle against Big Tech “continues, but is not overzealous.”

Biden didn’t make antitrust or cracking down on Big Tech major parts of his campaign, but he has named to his transition a few lawyers who worked on antitrust cases during the Obama administration, notes Stanford Law professor Mark Lemley. Bill Baer, who had Delrahim’s role under Obama, is part of Biden’s transition team for the FTC, along with Laura Moy, a privacy expert and professor at Georgetown Law School. Gene Kimmelman, senior adviser at nonprofit Public Knowledge and an Obama Justice Department veteran, is on Biden’s DOJ transition team.

“Based on these early steps, it looks like they will take a more expansive view of antitrust than the Trump administration,” Lemley says. “But this is not the radical ‘break them all up’ view you might associate with Sen. Elizabeth Warren. This is not the full swing towards populism.”

The Trump administration has done little to slow the wave of tech mergers. Large deals like Intel’s $15 billion Mobileye purchase and IBM’s $34 billion RedHat buy garnered no opposition, and even T-Mobile’s $24 billion merger with Sprint won approval eventually. Similarly, there have been no tough reviews of smaller acquisitions by Microsoft, Adobe, PayPal, Salesforce, and others.

Wall Street expects continued scrutiny of the four or five largest tech companies but not all out warfare, says analyst David Heger, at Edward Jones. “It seems to be the one issue that is bipartisan in nature,” he says. “And at least for now, investors are not anticipating something dramatic out of these cases, which are going to take years to play out.”

For example, Google has been hit with three separate antitrust cases over the past three months, but its stock is up 16% during that period.

Biden taking over from Trump won’t change that calculus much, Heger says. “Both sides feel action needs to be taken, so the flavors may be slightly different in the finer points, but I don’t see a dramatic change,” he says. “Certainly no one is pulling back on these cases.”

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