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The Biden administration is expected to take a tougher stance on acquisitions than President Trump’s while continuing a recent wave of antitrust cases against Big Tech.
“Antitrust law and policy are about to change course,” says Andrew Gavil, an antitrust expert at Howard University School of Law. “The degree of this correction remains to be seen and will be influenced by both policy and the composition of the courts.”
Trump’s antitrust regulators, led by Assistant Attorney General Makan Delrahim, tried to loudly shut down AT&T for acquiring Time Warner in 2017, only to suffer a scathing defeat in court. Overall, however, Trump’s Justice Department makes 19% fewer requests for merger data – which delays closings to allow regulators a closer look – and filed 18% fewer files to block mergers than the previous administration.
Occasionally, the Trump administration even wrote legal opinions opposing antitrust lawsuits by other agencies, such as the Federal Trade Commission case against Qualcomm. On the other hand, at the end of his tenure, Delrahim’s team filed high-level antitrust lawsuits against Google and Facebook, signaling that the concentrated power of big tech companies was alarming to Republicans and Democrats alike.
“The approach we’ve taken – that it’s legitimate to watch and not be afraid of tech companies – has opened up the ability of staff to investigate,” outgoing assistant AG told Fortune’s Brainstorm Tech Conference earlier this month. Delrahim added that he hoped that under the Biden administration the battle against Big Tech “would continue, but was not overzealous.”
Biden did not antitrust or crack down on major parts of his big tech campaign, but he did appoint a few attorneys who worked on antitrust cases under the Obama administration on his transition, the Stanford law professor notes. Mark Lemley. Bill Baer, who served as Delrahim under Obama, is part of Biden’s transition team for the FTC, alongside Laura Moy, a privacy expert and professor at Georgetown Law School. Gene Kimmelman, senior advisor to the nonprofit Public Knowledge and veteran of the Obama Department of Justice, is part of Biden’s DOJ transition team.
“Based on these early steps, it looks like they’ll take a broader view of antitrust than the Trump administration,” Lemley says. “But that’s not the radical ‘break them all’ view that you might associate with Senator Elizabeth Warren. It is not the full rise of populism.
The Trump administration has done little to slow the tide of tech mergers. Large deals like Intel’s $ 15 billion Mobileye purchase and IBM’s $ 34 billion purchase of RedHat have gone unopposed, and even the $ 24 billion merger between T-Mobile and Sprint was finally approved. Likewise, there has been no rigorous review of small acquisitions by Microsoft, Adobe, Pay Pal, Salesforce, and others.
Wall Street expects continued scrutiny of the four or five biggest tech companies, but not war, analyst David Heger says, at Edward Jones. “It appears to be the only problem of a bipartisan nature,” he said. “And at least for now, investors don’t anticipate anything dramatic in these cases, which will take years to materialize.”
For example, Google has been hit by three separate antitrust cases in the past three months, but its action has risen 16% during that time.
Biden succeeding Trump won’t change that calculation much, Heger says. “Both sides feel there is a need to act, so the flavors may be slightly different in the finer spots, but I don’t see a dramatic change,” he says. “No one is backing down on these matters.”
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