The Federal Trade Commission is working on antitrust probes of Facebook and Amazon. The Department of Justice is believed to be investigating Google and Facebook, and perhaps Apple as well. Some are official investigations. Some are at earlier stages — essentially unofficial fact-finding probes. The FTC can sue companies to stop anti-competitive behavior, as well as take them to court or agree to a settlement that may include a financial penalty.
From Vox: “The House hearings created an atmosphere and were one important part of making it impossible for the Federal Trade Commission and the Department of Justice not to bring cases, including against Amazon,” William Kovacic, a former chairman of the FTC and a law professor at George Washington University, told Recode in an interview. https://www.vox.com/recode/2020/2/6/21125026/big-tech-congress-antitrus…
The Hill: The Federal Trade Commission (FTC) on Tuesday announced that it is reviewing a decade's worth of acquisitions by the country's largest technology firms, allowing the agency to home in on whether companies like Facebook and Google harmed competition as they gobbled up hundreds of smaller rivals. The agency is requesting a slew of documents from Facebook, Google, Google's parent company Alphabet, Microsoft and Amazon as it works to learn more about the "terms, scope, structure, and purpose" of the many acquisitions the companies have made since 2010. The review process will allow the FTC to probe the litany of smaller acquisitions that enabled the Big Tech firms to become global powerhouses over the past decade.
Bill Kovacic, a former FTC chairman and current professor with the George Washington University law school, said the companies could challenge the special orders in court. But, he added, it would likely be a "fruitless battle" because the FTC's authority to subpoena documents about antitrust issues is well-established.
"I would imagine there will be some public outcry and expression of outrage, but I think [the companies] understand that going to court to try to block this probably will not be successful," Kovacic told The Hill. https://thehill.com/policy/technology/482546-ftc-to-review-past-tech-ac…
In 2018, the Department of Defense (DoD) began soliciting proposals for the Joint Enterprise Defense Infrastructure (JEDI), a cloud procurement initiative. The proposal promised a coveted $10 billion contract for a 10-year term, drawing the attention of Amazon Web Services, Microsoft, IBM, Oracle, and Google.
Since then, the department's procurement process has been highly scrutinized for both its controversial winner-take-all and fixed-price-for-undefined-requirements strategies. Nor did attention wane after two of the main competitors, Oracle and Amazon Web Services (AWS), opened suits citing improper handling of the acquisition.
Throughout the course of the JEDI controversy, Professor Steven L. Schooner provided legal analysis of government procurement law with news organizations such as the Associated Press, Bloomberg, and The Washington Post, as well as with industry news sources like the Federal News Network, Federal Computer Week, and Breaking Defense.
"It is difficult to recall any prior procurement of this scale, value, and significance in which two of the four leading competitors had compelling conflicts of interest or bias allegations," he told Bloomberg. "This is extraordinary."
Oracle's ongoing court battle alleges two DoD officials, who played a potential role in the development and acquisition of the JEDI solicitation, were offered jobs at AWS. Complicating the case, Amazon is also citing bias allegations against the DoD after President Trump openly criticized CEO Jeff Bezos and DoD surprised the competitors and the community by awarding the contract to Microsoft. Both cases are still ongoing; Oracle has appealed to the US Court of Appeals for the Federal Circuit, and Amazon filed a motion to halt work on JEDI.
"No one seems to deny that these were actual conflicts and the players affirmatively attempted to conceal them," Professor Schooner told the Associated Press. "That simply cannot be tolerated."
Within legal scholarship, Professor Schooner published an article on the alleged manner in which the DoD conducted the disappointed offeror's post-award debriefing following the award of the $10 billion cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for "enhanced debriefings," he writes.
Before joining the law school in 1999, William E. Kovacic was the George Mason University Foundation Professor at the George Mason University School of Law. From January 2006 to October 2011, he was a member of the Federal Trade Commission and chaired the agency from March 2008 to March 2009. He was the FTC’s General Counsel from June 2001 to December 2004. In 2011 he received the FTC’s Miles W. Kirkpatrick Award for Lifetime Achievement.
Follow Professor Schooner on Twitter at @ProfSchooner.