In a recent address to the International Association of Privacy Professionals, Principal Deputy Assistant Attorney General Roger Alford outlined the Department of Justice (the DOJ or Department)’s evolving strategy for antitrust enforcement in digital markets.
Alford’s remarks highlighted recent landmark actions against major technology companies, including the Antitrust Division’s two recent wins against Google. Alford also highlighted the expansion of the consumer welfare standard to include privacy and innovation, and the DOJ’s forward-looking agenda targeting algorithmic collusion and digital sector mergers. Businesses operating in digital markets, as well as those in sectors increasingly shaped by digital platforms, are encouraged to take note of the DOJ’s priorities and enforcement philosophy.
Redefining consumer welfare in digital markets
Alford emphasized a modernized approach to antitrust enforcement, moving beyond traditional price and output metrics. Alford explained that the Google cases show that, in digital markets, the consumer welfare standard is more than just price – it also encompasses quality, output, privacy, data protection, innovation, and consumer choice, among other things.
Alford made clear, however, that while the consumer welfare standard is broad, it is not unlimited. Antitrust analysis remains focused on economic competition within relevant markets, and the DOJ rejected calls to expand enforcement to a generalized public interest standard.
The Antitrust Division’s priorities
Alford emphasized the DOJ’s obligation to protect markets that most directly impact Americans, including healthcare, housing, agriculture, education, and insurance. In line with those priorities, Alford highlighted the Division’s recent win in a Las Vegas nursing case in which the Division successfully prosecuted a three-year conspiracy to fix the wages of nurses – capping their wages. Alford also pointed to the DOJ’s recent statement of interest in In re Multiplan Health Insurance Provider Litigation. In Multiplan, the plaintiffs allege that competitors used a common pricing algorithm to share confidential information to set prices in the health insurance industry.
Algorithmic collusion and digital cartels
Alford also reiterated that a key area of focus for the Department is the potential for algorithmic collusion and digital cartels. Alford warned that it is the DOJ’s position that without strong enforcement, algorithmic collusion could undermine competition across a wide range of digital markets. Looking ahead, the Department is also preparing for challenges posed by artificial intelligence and autonomous pricing algorithms, which Alford explained may enable new forms of collusion that are difficult to detect and address with traditional antitrust tools.
Mergers and innovation: Supporting “Little Tech”
Alford also signaled that the DOJ could take a nuanced approach to digital sector mergers. While the Department remains vigilant against acquisitions by dominant players that entrench market power, Alford expressed support for pro-competitive mergers, particularly those involving innovative startups, or so-called “Little Tech.” This approach is in line with Assistant Attorney General for the Antitrust Division Gail Slater’s April remarks outlining her “America First Antitrust” agenda. Alford explained that the Department aims to foster a competitive environment where venture capital can support new entrants, and where startups have viable exit opportunities beyond acquisition by the largest incumbents. Alford emphasized that the DOJ is committed to providing clear guidance to merging parties and resolving most transactions through negotiation or consent decrees, reserving litigation for the most contentious deals.
Implications for businesses
- Digital platforms and technology companies can expect continued and vigorous antitrust scrutiny, especially regarding conduct that impacts privacy, innovation, and user choice.
- Businesses using algorithms for pricing or market coordination are encouraged to stay abreast of the heightened risk of enforcement actions targeting algorithmic collusion.
- Companies considering mergers in digital sectors are encouraged to prepare for detailed merger review, particularly where transactions may affect competition or innovation.
- The Department’s expansion of the consumer welfare framework means that qualitative factors – such as privacy and data practices – will play a larger role in antitrust analysis.
Conclusion
Alford’s remarks signal a robust and modernized antitrust enforcement agenda for digital markets. Businesses are encouraged to closely monitor these developments and assess their practices and strategies in light of the Department’s evolving enforcement priorities.
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