State AGs building teams that can continue antitrust investigations after they're gone

10 Feb 2020 12:00 am by Amy Miller

State attorneys general are trying to build teams that will continue their bipartisan antitrust investigations into the tech industry, even if they don't win reelection, Colorado Attorney General Phil Weiser told MLex.

These teams can acquire a base of institutional knowledge so that the investigations don't "rise or fall based on who the attorney general is," Weiser said at a conference he helped found 20 years ago.

"We're going to keep building and making progress and whoever comes in, I think, needs to know that they are coming in where things are," he said.

Last fall, state AGs announced they had begun broad multi-state investigations into potential anticompetitive behavior by Google and Facebook.

At the same time, the US Department of Justice announced its own antitrust investigation into Google.

Since then, states and the DOJ have been meeting to make sure they are avoiding redundancies in their investigations.

States can bring new ideas and perspectives when they work with the DOJ on investigations, something Weiser said he learned as an assistant attorney general for the DOJ's antitrust division in 2009 and 2010, and as a senior counsel for telecom policy with the division from 1996 to 1998.

"I've often found that collaboration produces better results, and that would be the mindset that I would bring to this or any other such collaborations," he said.

For their part, state AGs have put aside their geographic and political differences as the investigations move forward, Weiser said. Regardless of political party, they committed to finding out if and how consumers are being hurt by the tech industry, and how they can be protected, he said.

As state AGs, "we are working in the world of law, the world of facts, and that's a discipline and a rigor which helps us work together to solve problems," he said.

But one of the biggest challenges they face is determining what predatory conduct may have occurred for no other purpose than to handicap a competitor, Weiser said.

It's not enough to say that it's difficult to enter a market, he added. "That's what we have to be looking at."

It's may be too soon to discuss specific remedies, but whatever remedies are considered, he said, they must address the specific alleged harms. They also shouldn't create unintended consequences for consumers, he said.

An antitrust remedy could potentially conflict with privacy concerns, he said. "Antitrust enforcers have to design remedies that take into account legitimate privacy concerns," Weiser said.

For example, antitrust authorities could err by forcing a platform to make data available to app developers even when consumers didn't agree to the information being shared, Weiser said.

"The best solutions are going to require interdisciplinary teams working together to solve problems," he said.

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