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Ryan Quillian

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after eight years of public service with the FTC, where he worked on antitrust investigations in a variety of industries, including technology, pharmaceutical and life sciences, retail, distribution, consumer goods, and healthcare. In addition to his investigation experience, Ryan also developed strong relationships with staff throughout the agency, routinely interacted with agency leadership, communicated directly with foreign competition agencies, and provided technical assistance on proposed legislation.

As a manager of the FTC’s Technology Enforcement Division, Ryan supervised complex investigations into potentially anticompetitive mergers and conduct involving technology companies. Prior to joining the Technology Enforcement Division, Ryan served as Counsel to the Director of the Bureau of Competition, Attorney Advisor to Commissioner Noah Joshua Phillips, Acting Deputy Assistant Director of the Mergers IV Division, and a staff attorney in the Mergers IV Division.

In recent years, there has been increasing antitrust scrutiny around the world of large technology companies. The increased attention on competition in the digital economy started outside of the United States. Since 2019, however, the U.S. antitrust enforcers—the U.S. Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) as well as numerous state attorneys general—have closely scrutinized and brought enforcement actions against some of the largest tech companies. This client alert provides an overview of the recent competition enforcement trends, specifically: (1) key topics at issue in many tech investigations; (2) the increased focus on competition in labor markets; and (3) the U.S. FTC’s new, expansive interpretation of Section 5 of the FTC Act. In view of this uncertain landscape, tech companies should stay on top of these enforcement trends and potential risks they face.

Key Topics at Issue in Investigations of Tech Companies

Investigations of technology companies follow similar principles to investigations in other industries, but there are some concepts that the antitrust authorities have been considering more closely in the context of the tech industry. First is the concept of “gatekeepers,” which the government agencies have used to describe any entity that sits between users and suppliers/merchants. The agencies have shown a particular interest in large intermediaries and have expressed concern that certain intermediaries may be able use their position to increase fees, obtain restrictive terms, and extend their position in the marketplace. At the same time, intermediaries in the tech industry have generated significant benefits, including by lowering transaction costs, helping sellers and customers to more easily find each other, and enabling new business models and innovations.

Another concept that sometimes arises in tech investigations related to intermediaries is “zero-price” products, where a company makes its products or services free to certain users and makes money either through different products, different consumers (like advertisers), or at a different point in time. The notion of “free” products is not unique to the tech industry. Ad-supported media – including radio, broadcast television, and newspapers – existed long before the rise of the digital economy. Nevertheless, the agencies are currently grappling with how to define relevant markets and measure competitive harm in the absence of price competition. For example, the traditional test applied by enforces to define relevant markets that looks at a small but significant and non-transitory increase in price (or “SSNIP”) does not directly translate to zero-priced goods. Similarly, alleged non-price harms to consumers are often harder to prove than an increase in price.Continue Reading Antitrust Enforcement Trends in the Digital Economy

The U.S. Federal Trade Commission issued a policy statement that dramatically expands the scope of what it considers “unfair methods of competition” under Section 5 of the FTC Act, 15 U.S.C. § 45. This represents an aggressive and unprecedented interpretation of the agency’s authority, and indicates that the Commission plans to use rulemaking and enforcement actions to police a broad set of conduct beyond the scope of the antitrust laws (i.e., the Sherman Act and the Clayton Act).

According to the agency’s press release, the policy statement – issued pursuant to a party-line vote of 3-1 – is intended to “restore the agency’s policy of rigorously enforcing the federal ban on unfair methods of competition” with the stated goal of allowing the agency “to exercise its full statutory authority against companies that use unfair tactics to gain an advantage instead of competing on the merits.” And Chair Lina Khan suggested that the agency will enforce Section 5 to “crack down on unfair methods of competition,” as commanded by Congress when it created the FTC.

The policy statement lays out two elements to a Section 5 violation: (1) the conduct must be a method of competition (2) that is unfair. Most of the action will be around the second prong – unfairness – which the policy statement defines as conduct that goes “beyond competition on the merits.” To determine whether the alleged conduct is fair or unfair, the Commission will evaluate two criteria on a sliding scale (i.e., the more evidence of one, the less the Commission believes that there is need for evidence of the other):Continue Reading The FTC Signals an Unprecedented Expansion in Its Definition of Unfair Methods of Competition

On September 29, 2022, the U.S. House of Representatives passed a package of three antitrust bills (H.R. 3843) by a vote of 242-184. The package includes: (1) the Merger Filing Fee Modernization Act; (2) the Foreign Merger Subsidy Disclosure Act; and (3) the State Antitrust Enforcement Venue Act.

The Merger Filing Fee Modernization Act updates the structure and amounts of premerger filing fees that the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) collect pursuant to the Hart-Scott Rodino Antitrust Improvement Act of 1976. The Merger Filing Fee Modernization Act reduces fees for smaller transactions, increases fees for mergers valued at $1 billion or greater, and adjusts the filing fee amounts for each future year based on changes in the Consumer Price Index. Finally, the bill requires the FTC and DOJ to report each year on the total revenue generated from premerger notification filing fees, broken out by tier, and the FTC must also include in the report a list of all actions the agency took or declined to take based on a 3-to-2 vote.

The Foreign Merger Subsidy Disclosure Act requires parties submitting premerger notifications to disclose detailed information on subsidies from a “foreign entity of concern.” A foreign entity of concern is defined under 42 U.S.C. § 18741(a) and includes those designated foreign terrorist organizations, on the Specially Designated and Blocked Persons List, and alleged to be involved in espionage or unauthorized conduct detrimental to the national security or foreign policy of the United States. The definition further covers entities owned by, controlled by, or subject to the direction of the governments of the Democratic People’s Republic of North Korea, the People’s Republic of China, the Russian Federation, or the Islamic Republic of Iran.Continue Reading U.S. House of Representatives Passes Antitrust Legislative Package