Second Request: Recent Episodes
The Capitol Forum
Exploring Solutions to Monopoly Problems
Following forty years of laissez-faire antitrust enforcement and industry consolidation, the White House is considering a fundamental rethink of how to interpret, enforce, and rewrite antitrust law, and many questions remain unanswered for the antitrust community.
On the heels of federal and state litigation against Google and Facebook, is Amazon next? Will the new administration put big agriculture, big banks, and big pharma in its crosshairs? Will the courts stop antitrust enforcers in their tracks? Will the Biden administration get cold feet?
Second Request provides in-depth discussions with antitrust experts about the answers to these questions and about proposed solutions to the biggest monopoly problems of our time. Backed by the investigative resources and intellectual rigor of The Capitol Forum, Executive Editor and host Teddy Downey examines the effects of the current concentrations of market power across a vast array of industry verticals as he and his guests analyze the potential responses from the federal government. Offering thoughtful conversations with analysts and decision makers, Second Request provides everyone from C-Suite executives to policymakers, and all those in-between, strategic antitrust insights at the intersection of law, policy, and markets.
On this episode of Second Request, Teddy Downey and the FTC’s Shaoul Sussman discuss the new draft merger guidelines from the FTC and DOJ. Shaoul describes some of the market dynamics, economic conditions and case law reflected in the new guidelines, and why the agencies thought it was time for an update: The agencies “have a mandate to make the guidelines more accessible and provide clear rules of the road, both for CEOs that contemplate a merger and also for the public to understand what goes into how we think about cases.”
Listen to the podcast to hear them delve into some of the language and intentions of individual guidelines, including:
- Guideline six and market structures
- Guideline seven and the concept of dominance
- Guideline eight and concentration trends
On July 20, Capitol Forum Executive Editor Teddy Downey spoke with Diana Moss, President of the American Antitrust Institute (AAI), about what a LiveNation-Ticketmaster monopoly breakup could look like. The AAI recently published a deep dive on vertical integration of Live Nation and Ticketmaster as well as proposed remedies. On the podcast, Diana describes the legal climate around vertical mergers in 2010 when the two companies first merged: “We had this whole gestalt around vertical mergers being viewed as pro-competitive, getting a lot of deference in enforcement cases, no case law. And that merger, Live Nation/Ticketmaster, was especially egregious because Ticketmaster had about 80 percent share in primary ticketing.”
To put that statistic in perspective, Diana sites the new, proposed merger guidelines, which describe 50 percent share as a presumption of anti-competitive outcomes. The current result, she points out, is a lack of choice for everyone involved: “Venues have no choice, or very little choice, but to go to Ticketmaster.
Artists have very little choice but to go to Ticketmaster for ticketing. Even Taylor Swift had to do this. She was promoted by AEG, which is a competing concert promoter, but AEG didn't have the ticketing services. So Ticketmaster was the only option.”
Listen to the full podcast to hear about:
The complications of secondary markets
Retaliation fears from artists and independent venues
Historical breakup precedents
Potential remedies, including the drawbacks to conduct remedies
In the latest episode of Second Request, Teddy interviews Bob Lande on the impact of textualism on merger analysis. Bob Lande is Venable Professor of Law Emeritus at the University of Baltimore School of Law and a board member for the American Antitrust Institute who has written about the use of textualism in antitrust enforcement and the way it affects statutory interpretation in a recent article for the Utah Law Review and a presentation to the FTC.
Due to its emphasis on “precise language,” Bob argues that rather than leading to more conservative antitrust decision making by the courts, textualism should lead to the exact opposite: “Textualism should lead, if anything, to more aggressive antitrust enforcement….This is because the Sherman Act, the FTC Act and the Clayton Act are all products of the progressive era. It's not surprising that their precise language is very pro-consumer and very anti-monopoly.”
Listen to the podcast to hear Teddy and Bob discuss:
• Section 7 language
• The express efficiencies defense
• Monopolization
On April 23, 2021, Rob Bonta was sworn in as the 34th Attorney General of the State of California, the first person of Filipino descent and the second Asian-American to occupy the position.
Attorney General Bonta's passion for justice and fairness was instilled in him by his parents, who served on the frontlines of some of America's most important social justice movements. Instilling in him the lessons they learned from the United Farm Workers and the civil rights movement, Attorney General Bonta's parents lit a fire inside him to fight against injustice — to stand up for those who are taken advantage of or harmed. It's why he decided to become a lawyer — to help right historic wrongs and fight for people who have been harmed. He worked his way through college and graduated with honors from Yale University and attended Yale Law School.
In the State Assembly, Attorney General Bonta enacted nation-leading reforms to inject more justice and fairness into government and institutions. As the People's Attorney, he sees seeking accountability from those who abuse their power and harm others as one of the most important functions of the job. In elected office, he has taken on powerful interests and advanced systemic change — pursuing corporate accountability, standing up for workers, punishing big polluters, and fighting racial injustice. He has been a national leader in the fight to transform the criminal justice system, banning private prisons and detention facilities in California, as well as pushing to eliminate cash bail in the state. He has led statewide fights for racial, economic, and environmental justice and worked to further the rights of immigrant families, renters, and working Californians.
Stacy Mitchell is Co-Executive Director of the Institute for Local Self-Reliance, a research and advocacy organization that challenges concentrated corporate power and works to build thriving, equitable communities. ILSR has been a pioneering leader in the growing anti-monopoly movement and has a long track record of working alongside grassroots groups to develop better alternatives, from community-owned broadband, to independent businesses, to distributed solar.
Stacy recently wrote an opinion piece in the New York Times titled The Real Reason Your Groceries are Getting More Expensive, and has advocated for the FTC revitalizing the anti chain store legislation known as the Robinson Patman Act.
Stacy has also produced pivotal research and reporting on the policies driving the decline of small businesses and the economic and political consequences of monopoly power. In 2020, she was profiled by the New York Times for her analysis of Amazon’s power and her leadership in building a broad coalition to counter it. Her reports and articles about the tech giant have drawn a wide and influential readership. The House Judiciary Committee cited her research extensively in its “Investigation of Competition in Digital Markets.” In 2022, political strategy firm Baron named her an “Antitrust Super Influencer” for her role in shaping the policy debate.
Alvaro Bedoya was sworn in May 16, 2022 as a Commissioner of the Federal Trade Commission. President Joe Biden named Bedoya to a term that expires on Sept. 25, 2026.
Bedoya was the founding director of the Center on Privacy & Technology at Georgetown University Law Center, where he was also a visiting professor of law. He has been influential in research and policy at the intersection of privacy and civil rights, and co-authored a 2016 report on the use of facial recognition by law enforcement and the risks that it poses to privacy, civil liberties, and civil rights. He previously served as the first Chief Counsel to the Senate Judiciary Subcommittee on Privacy, Technology and the Law after its founding in 2011, and Chief Counsel to former Senator Al Franken, of Minnesota. Prior to that, he was an associate at the law firm WilmerHale.
This week on Second Request, our host Teddy Downey is joined by Luke Slindee, Senior Pharmacy consultant at Myers and Stauffer LC. In this role, Luke helps facilitate the data collection, data analysis, and public posting of pharmacy actual acquisition cost benchmarks, reducing NADAC and multiple State AACs. Luke is widely recognized for his expertise in pharmacy policy and competition rules.
Steven Salop is a Professor of Economics and Law (Emeritus) at the Georgetown University Law Center in Washington, DC, where he teaches antitrust law and economics. His research and consulting focuses on antitrust, competition and regulation. He has written numerous articles in various areas of antitrust and competition which take a modern “Post-Chicago” approach.
He recently co-wrote a paper with Jennifer E. Sturiale laying out a proposal for how antitrust enforcers and courts can fix "Litigating the Fix."
Heather Vogell is a Propublica journalist currently investigating the rental housing market. Her recent article, “Rent Going Up? One Company’s Algorithm Could Be Why,” has resonated with citizens, antitrust enforcers, and policymakers across the country.
Neeva is an ads-free search engine that Sridhar co-founded after overseeing advertising at Google. We discuss big tech, competition policy, and how his views on data have shifted since creating Neeva.
Daniel Sherwood, Energy Team Editor at the Capitol Forum, and his colleague Sharon Kelly discuss their investigation into the Natural Gas Liquids market, where they found indications that dominant producers in Appalachia are encouraging each other to keep prices high by producing less.
Lisa Epstein and Vikas Kumar from the Capitol Forum’s corporate investigations team discuss their reporting on the aggressive marketing tactics and sales strategies of Signify Health on the eve of its proposed $8 Billion acquisition by CVS.
Dr. Caffarra is a world-renowned competition economist with over two decades of experience. She’s served as a top advisor and expert before the European Commission and has provided guidance to multiple companies and agencies on mergers, conduct cases and regulatory issues.
In this episode of Second Request, Dr. Caffarra dives into the latest in European antitrust regulation and enforcement and voices concerns about the influence of economists on competition.
Gilad Edelman is a senior writer for WIRED, covering the intersection of tech, politics, and law. Before that, he was executive editor of the Washington Monthly. He has a degree from Yale Law School.
His recent article, “The Weak Argument Jeopardizing Tech Antitrust Legislation” is having an outsized impact on the conversation happening on Capitol Hill.
Niko Lusiani is the co-author of the Roosevelt Institute’s recently published paper, “Prices, Profits, and Power: An Analysis of 2021 Firm-Level Markups.
How to understand and respond to inflation has become one of the central debates of this economic recovery. In “Prices, Profits, and Power: An Analysis of 2021 Firm-Level Markups,” Roosevelt’s Director of Macroeconomic Analysis, Mike Konczal, and Director of Corporate Power Niko Lusiani, conduct original research to show that we need an all-of-government administrative, regulatory, and legislative approach to tackling inflation that includes demand, supply, and market power interventions.
U.S. Representative Buddy Carter is a pharmacist by trade and a lifelong resident of the First District of Georgia, which he represents. He recently wrote a letter to the FTC calling for an investigation into the ways Pharmacy Benefit Managers (PBMs) spike consumer drug prices and reduce access to life saving drugs.
He discusses the monopoly problems that PBMs present and what the FTC and Congress can do to stop anticompetitive conduct in the industry and protect independent pharmacies.
Moe Tkacik is a Senior Fellow at the American Economic Liberties Project. She’s a former journalist who has worked for the Wall Street Journal and Time, and she discusses the supply chain crisis behind the Baby Formula shortage and possible solutions to the problem.
Maurice Stucke is the Douglas A. Blaze Distinguished Professor of Law at the University of Tennessee and recently wrote Breaking Away: How to Regain Control Over Our Data, Privacy, and Autonomy.
Breaking Away sounds a warning call alerting readers that their privacy and autonomy concerns are indeed warranted, and the remedies deserve far greater attention than they have received from our leading policymakers and experts to date. Through the various prisms of economic theory, market data, policy, and law, the book offers a clear and accessible insight into how a few powerful firms - Google, Apple, Facebook (Meta), and Amazon - have used the same anticompetitive playbook and manipulated the current legal regime for their gain at our collective expense.
While much has been written about these four companies' power, far less has been said about addressing their risks. In looking at the proposals to date, however, policymakers and scholars have not fully addressed three fundamental issues: First, will more competition necessarily promote our privacy and well-being? Second, who owns the personal data, and is that even the right question? Third, what are the policy implications if personal data is non-rivalrous?
His recent report, “To Stem the Tide of Rural Decline, Stop the Bank Merger Wave” is making its own waves in the antitrust community as regulators look to revamp the banking merger guidelines.
Basel shares with us how big the merger wave has been since the 1980s, why it happened, the effect it’s had on farmers, entrepreneurs, and rural communities, and his solution for fixing the problem.
Josh Kosman has been covering the financial industry for twenty-five years. He is a reporter for the New York Post, a former editor at Mergermarket.com and a former senior writer for The Deal and Buyouts Newsletter.
Josh also literally wrote the book on private equity – his The Buyout of America: How Private Equity is Destroying Jobs and Killing the American Economy, published in 2009, made a big political impact at the time, with Obama advisor David Axelrod reportedly using it as the basis for his attacks on Mitt Romney during the 2012 presidential campaign.
Private equity and mergers. The FTC and DOJ are, according to Capitol Forum reporting, taking a harder stance on private equity firms as potential divestiture buyers for assets companies are proposing to sell in their attempts to cure anticompetitive mergers.
Private equity and rising interest rates. Josh’s website details how “Moody’s in May 2020 reported that two-thirds of the companies with the lowest debt ratings” were private equity-owned. “Standard & Poor’s in February 2020 reported $1.5 trillion in speculative-grade US corporate debt matures through 2024…Roughly 60 percent of the money has been borrowed by private equity firm-owned companies. With interest rates rising this poses a big risk.” Josh adds.
Private equity’s political power. Josh is also expert on private equity’s political influence, and has written about Senator Kyrsten Sinema’s (D-AZ) support for the industry and President Joe Biden’s ties to Carlyle Group Co-Founder David Rubenstein.
Baron Public Affairs recently issued a report naming the top 10 antitrust super influencers, and they share their findings in this episode.
Baron Public Affairs is a unique firm that “combines objective strategy development with groundbreaking research platforms” to help corporate clients “identify, understand and surmount” regulatory threats. They developed their list of antitrust super influencers by sifting through “approximately 27,000 references made by members of Congress, executive branch officials, and others.”
Baron’s top 5 antitrust super influencers are:
1) William Kovacic, George Washington University
2) Sarah Miller, American Economic Liberties Project
3) Charlotte Slaiman, Public Knowledge
4) Adam Kovacevich, Chamber of Progress
5) Matt Stoller, American Economic Liberties Project
See Baron’s full report for the top 10.
The report is full of insights, and worth noting in particular are Baron’s conclusions that “antitrust super influencers prioritize practical achievements over intellectual purity” and that “economics is losing authority in the political arena.”
Shahid Naeem is a policy analyst at the American Economic Liberties Project and the author of a memo calling for the Department of Justice and Department of Transportation to block the merger between Spirit and Frontier.
Tahir Amin is an attorney with more than 25 years of experience in intellectual property law and the co-founder of I-Mak, which seeks to build a more just and equitable medicine system for all via patent reform.
Jason Kint is CEO of Digital Content Next, the only trade association to exclusively serve the unique and diverse needs of high-quality digital content companies that manage trusted, direct relationships with consumers and marketers. Jason guides DCN’s diverse and powerful group of members — established brands such as The New York Times, Conde Nast and ESPN, and digital natives, such as Vox, Politico and Insider — into the future, setting the agenda on a range of issues.
Jason produces must-read analysis of ongoing litigation against the big tech platforms, primarily Google and Facebook. In this episode, Jason tells us what he’s focused on in the tech platform battles in the courts, and what we can expect to see going forward.
Ted Tatos is Managing Director of EconOne and co-author of the recent report, “Protecting the U.S. Postal Service from Amazon’s Anticompetitive Assault.” In the conversation, we get into a lot of different aspects of Amazon’s ongoing effort to dominate the postal service.
A quick note: Ted’s report was funded by a conservative group called The Family Business Coalition, which includes small family-owned businesses that ship parcels. For the report, Ted also interviewed a couple of prominent voices in the antimonopoly movement whom we’ve had on the show before—Matt Stoller from the American economic liberties project and Stacy Mitchell from the Institute for Local Self Reliance.
Matthew Jinoo Buck is a fellow at the American Economic Liberties Project and a first-year student at Yale Law School.
His article in the American Prospect, “How America’s Supply Chains Got Railroaded” tells the history of how deregulation and consolidation gave us a railroad industry that is now a weak link in our supply chain. He also tells how the industry is more dangerous for workers and less reliable for customers even as it produces outsized profits for investors.
Jeff Horwitz is a Wall Street Journal technology reporter who covers Facebook. He is the lead reporter on the groundbreaking series of articles titled The Facebook Files. The conversation covers myriad issues facing Facebook and we ask Jeff why, when facing choices between the public interest and growth on the platform, Mark Zuckerberg always chooses growth.
Evan Starr, Associate Professor of Management & Organization at the Robert H. Smith School of Business at the University of Maryland, discusses the likely economic benefits of the FTC banning non-compete agreements, including a boost to wages and worker mobility.
Matt Stoller, Director of Research at the American Economic Liberties Project, discusses the debate around monopoly and inflation. Matt also shares his predictions for the antimonopoly movement in 2022.
Luke Herrine, author of “The Folklore of Unfairness.” Herrine’s article, published recently in the New York University Law Review, argues that conventional wisdom – which holds that the FTC in the 1970s pursued an expansive notion of its unfairness authority but failed spectacularly – “gets the law and the history wrong.”
Instead, argues Herrine, the commission’s actions in the 1970s were quite popular, and the FTC Act’s ban on “unfair…acts and practices” is therefore “more potent than commonly assumed.” That argument could take on new urgency as current FTC Chair Lina Khan seeks to push the boundaries of the commission’s authority.
Stacy Mitchell is co-director of the Institute for Local Self-Reliance and directs its Independent Business Initiative, which produces research and designs policy to counter concentrated corporate power and strengthen local economies.
ILSR’s new report, Amazon’s Toll road, finds that “Amazon is exploiting its position as a gatekeeper to impose steep and growing fees on third-party sellers” and that “even as these exorbitant fees bankrupt sellers, they are generating huge profits for Amazon, a fact that the tech giant conceals in its financial reports.”
Jeff Hauser is the founder and director of the Revolving Door Project, which is an influential organization that scrutinizes executive branch appointees to ensure they serve the public interest rather than large corporations’ interests.
The Revolving Door Project’s newest polling and analysis memo, “Corporate Crackdown” concludes that there is broad, bipartisan support for a President who is willing to stand up to entrenched corporate power and illegal corporate conduct.
Brendan Ballou is a trial attorney at DOJ’s antitrust division and author of “The 'No Collusion' Rule,” published earlier this year in the Stanford Law & Policy Review. In that article, Ballou proposes that the FTC, under its unfair methods of competition authority, should pursue a “no collusion” rulemaking , which would seek to prevent companies from raising prices simply because their competitor has done so.
Barry Lynn has literally written the book on two of the hottest economic and policy topics right now—monopolies and supply chain fragility. His book on monopoly is called Cornered: the new monopoly capitalism and the economics of destruction and his book on supply chains is called End of the Line.
On a previous podcast, former FTC Chair Bill Kovacic said that Barry Lynn’s work on launching the antimonopoly movement is “one of the most successful efforts to develop a new intellectual framework and to get it into the bloodstream of the policymaking process.”
In this episode, Barry talks about the importance of the President's executive order on competition and where the antimonopoly movement is headed next.
The Honorable Bill Kovacic gives his outlook for antitrust enforcement in the Biden administration and distinguishes between antitrust Transformationalists and Traditionalists and their struggle for influence. He also discusses antitrust rulemaking, antitrust legislation, and Robinson-Patman enforcement.
Teddy talks with Claire Kelloway, a senior reporter with the Open Markets Institute. She’s also the primary writer for Food & Power, a website providing original reporting and resources on monopoly power in the food system.
Claire gives her outlook for antitrust enforcement in the meat industry during the Biden administration.
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Teddy chats with Seth Bloom, founder of Bloom Strategic Counsel and former General Counsel of the Senate Antitrust Subcommittee, to get his thoughts on which antitrust bills can pass Congress and get signed into law and which will be left on the cutting room floor.
Seth and Teddy also talk about
- new priorities at the FTC,
- which already-consummated mergers the FTC might investigate and try to break up, and
- other parts of the FTC’s agenda that are being overlooked.
Teddy chats with Ron Knox, senior researcher and writer at The Institute for Local Self-Reliance, about his recent article in Wired Magazine, Big Music Needs to Be Broken Up to Save the Industry. He tells stories about
- why music is worse now than it was when the industry was more competitive,
- how Sweet Jane Recordings is actually owned by a big conglomerate,
- how independent record stores ended up with prescription cough syrup instead of indie records,
- how YouTube effectively sets a floor on streaming royalty rates, and how big radio pays no royalty rates for playing music.
Lastly, he talks about how he is optimistic that new antitrust leadership and new legislation in Congress will reshape the industry.
Teddy chats with Bill Baer about antitrust being at an inflection point, the consumer welfare test as "not even a useful construct anymore," antitrust rulemaking as a new tool in the enforcer toolbox, stepped up criminal antitrust enforcement, and a likely increase in focus on buyer power concerns from antitrust enforcers.
Following forty years of laissez-faire antitrust enforcement and industry consolidation, the White House is considering a fundamental rethink of how to interpret, enforce, and rewrite antitrust law, and many questions remain unanswered for the antitrust community.
On the heels of federal and state litigation against Google and Facebook, is Amazon next? Will the new administration put big agriculture, big banks, and big pharma in its crosshairs? Will the courts stop antitrust enforcers in their tracks? Will the Biden administration get cold feet?
Second Request provides in-depth discussions with antitrust experts about the answers to these questions and about proposed solutions to the biggest monopoly problems of our time. Backed by the investigative resources and intellectual rigor of The Capitol Forum, Executive Editor and host Teddy Downey examines the effects of the current concentrations of market power across a vast array of industry verticals as he and his guests analyze the potential responses from the federal government. Offering thoughtful conversations with analysts and decision makers, Second Request provides everyone from C-Suite executives to policymakers, and all those in-between, strategic antitrust insights at the intersection of law, policy, and markets.