Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Virtual Remarks for the 2022 International Bar Association Competition Conference

Remarks as Delivered

Hello Florence and good morning. I really wish I could be with you today in person – I was hoping to be with you in person. Florence is a magical city with great food, wonderful people and a rich culture and history. I sincerely hope I have the opportunity to be with you again in the future, but for today I will be joining you from D.C., but I will be with you in spirit. I am so delighted to address my colleagues in the International Bar Association. The IBA’s contribution to the administration of justice over the past 75 years is substantial, and this conference is an absolute important event in driving forward the dialogue around international competition policy.

That dialogue is more important now than ever. Today, we are facing a competition crisis. For more than 40 years, antitrust enforcement has not kept pace with the need to rein in anticompetitive mergers and business conduct. As a result, in too many sectors a few powerful companies dominate products and services – many of which are core to the everyday experience of the American people and the global economy. We see this in higher consumer prices, lower wages, and fewer new businesses being created. The digital revolution in particular has brought us many great things, but it has also enabled the emergence of extractive gatekeepers in critical parts of our economy. Dominant companies deprive the people of their hard-earned money and economic opportunity, at the same time that they control the flow of information and public discourse, and exert outsized influence in our political processes.

This is a kind of tyranny that the antitrust laws in the United States were designed to prevent.

Yesterday, I understand you discussed the limits of competition policy and where they might lie, particularly in the digital economy. I am of the view that competition policy and enforcement are critical to addressing concerns regarding digital platforms. The new problems of the digital economy have arisen in tandem alongside dominant firms. As a result, we cannot separate out their effects, but we do know that more competition would help in every respect. For example, would more competition and competitive markets better protect user privacy? Given consumer demand for it, that seems likely. Would more competitive markets better secure our data and our systems? Security is a key product feature, so competition would drive it forward. Would more competitive markets respect limits on using algorithms to steal our time and attention, delivering more content with less scrolling? Time is a precious commodity, so that’s a safe bet as well.

I raise these questions because digital gatekeepers have an incentive to answer them differently. As long as there have been monopolies, monopolies have sought to protect themselves with trojan horse regulation and scare tactics arguments.  

In the United States right now, we see an even more perverse version of this approach. We are hearing dominant firms argue against new competition laws, because they say only they can protect privacy or secure data. New competition, they argue, might not protect user security quite as well as them, or might not develop new products as well as they do. They suggest we should not trust an unknown potential new competitor to drive privacy or security forward. Instead, we should trust the dominant firms, the incumbents, who have overseen the emergence of this era that is fraught with challenges. It ignores that competition works to improve all aspects of a product, and the challenges we face are at least in part the result of the absence of competition. That is the premise of our free market system. I strongly support passage of the non-discrimination legislation in the United States proposed by our Congress that would help break up the monopoly power of dominant tech platforms and restore competition to this much needed and important area of our economy.

As we confront these and other challenges, I would like to focus on the exciting work that the Antitrust Division is undertaking to enforce the law and promote sound competition policy.

Separately, I understand you will also be discussing today whether enforcement is dead in the water. I am here to report that it is alive and well, as to not only monopolization but every aspect or of our work. At the Antitrust Division here at the Department of Justice, we are firing on all cylinders, working to use every tool we have available to promote competition and meet the moment. I am now about ten months into my time at the Antitrust Division, and as I come up on my first anniversary I am absolutely amazed every day at the incredible work that the Division is doing. Our people are tireless and talented and devoted to the mission, and they inspire me all the time.

We are litigating more than we have in decades. Since I was confirmed in November, the Division has filed civil lawsuits to challenge or obtained merger abandonments in six cases. Several other transactions were abandoned after parties were informed they would receive second requests. We currently have pending six civil antitrust lawsuits, the largest number of civil cases in litigation in the last 20 years. We will litigate more merger trials this year than in any fiscal year on record. Notably, this litigation occurs against the backdrop of nearly 3,000 notified transactions in FY 2022 – which follows FY 2021 as the largest number of filings any year since the reporting thresholds for Hart Scott Rodino were adjusted in 2000.

At the same time, we have indicted 20 criminal cases since November, more than any time since the 1980s. We ended FY 2021 with 146 pending grand jury investigations, the most in 30 years. The Division has prosecuted anticompetitive crimes in industries ranging from construction, defense contracting, transportation, poultry, aerospace, and health care. Simply put: we are just getting started.

We have also dedicated ourselves to vigorously protecting the powerless against the powerful. For example, we stepped in to protect chicken growers – farmers – against anticompetitive practices in the Cargill, Sanderson, and Wayne lawsuit. Our success there is returning $85 million to growers, but more importantly it requires structural changes to the industry that will shift the balance of power back toward the workers that are the real engine of the market.

We have filed to oppose non-compete agreements restricting truckers, anesthesiologists, and other workers from switching jobs, and to address the misclassification of workers as independent contractors that deprives them of organizing rights.

Last month, we completed the trial of a challenge to the Penguin-Random House merger to help protect competition for authors. That was one of two merger trials to open on the same day in the same courtroom in downtown Washington D.C., a first for the Division that reflects our growing commitment to litigating cases and to vindicate the antitrust laws.

It’s an incredibly exciting time at the Antitrust Division, and every day I am humbled by the team and their work here.

The Antitrust Division is not alone, of course. We have incredible enforcement partners within the United States and around the globe, and we are committed to deepening those partnerships. The global challenges of monopolization, in particular, require a shared commitment to aggressive enforcement and effective, complementary remedies.

We must deepen cooperation among jurisdictions committed to the shared values that underlie free and open markets. I have already seen firsthand that monopolists and merging parties seek to engage in regulatory arbitrage, attempting to play jurisdictions off against each other. This demands and requires increasing collaboration from enforcers.

That is why one of the first inquiries we make in merger enforcement matter is what other jurisdictions were notified about the transaction, and we regularly seek waivers from the parties to enable information sharing with our international counterparts. The exchanges between our case teams on timing, theories of harm, and economic analyses helps us refine our thinking, and it is particularly important in the changing economy. We are learning together, and this results in better global enforcement.

An excellent, and recent, example of case cooperation in the merger space is our work Germany as we both evaluated the proposed acquisition of Maersk’s refrigerated container business by China International Marine Containers (“CIMC”). The merger would have combined two of the world’s four suppliers of refrigerated shipping containers, a critical component of our supply chain. And worse yet, Chinese entities would have controlled over 90% of the market after the merger.  It would have cemented China International Marine Containers’ dominant position in an already consolidated industry, and fostered coordination as a result of common ownership.

The Bundeskartellamt and Division collaborated closely throughout their reviews of the merger. Ultimately, we both recognized the anticompetitive nature of the acquisition and took a stance against it. I am so thankful for the partnership of Andreas Mundt and the entire German team. The matter was a terrific example of international case cooperation.

We can still do more, however. For example, we hope to break down barriers to sharing confidential information with trusted enforcement partners. We are calling on our Congress to extend our International Antitrust Enforcement Assistance Act (IAEAA) to include information from merger notification reviews and to protect the sharing of internal agency work product with our international partners. We hope to work with other agencies as they seek similar changes, as I believe we need to increase information sharing among enforcers worldwide in order to maximize our effectiveness.

Digital markets are an area where collaboration on approaches and techniques appears particularly fruitful. The UK’s CMA has led the way in developing data units with specialized technical knowledge. The OECD working party that I chair – Competition Committee Working Party 3 on Enforcement and Cooperation - will discuss data screens in November, and DOJ is actively building its own capabilities in this area, and we are really excited to collaborate and learn from our partners oversees.

We also have very productive high-level digital discussions through the G7, hosted in Berlin next month by our friends in Germany , and through our Technology Competition Policy Dialog (TCPD) meetings of the EC, FTC, and DOJ. The cross-fertilization of approaches is essential to learning the best ways to address market power and anticompetitive conduct in these markets.

As I approach a one-year-mark in my tenure as the Assistant Attorney General of DOJ’s Antitrust Division, I can say without a doubt that enforcement is not dead: it is alive and well. Competition policy is as limitless as the ingenuity and effort of entrepreneurs in a free market. The Antitrust Division and its capable counterparts throughout the world are mobilizing to reshape competition policy and enforcement. I am just so excited and grateful, for the progress we are making together.

Thank you!