Key takeaways
- DOJ and FTC recently hosted first meeting of Biden administration's multiagency Strike Force on Unfair and Illegal Pricing
- Agencies touted various steps they've taken to reduce consumer prices and vowed to root out and take action against antitrust violations that raise them
- While the work of the Strike Force could be viewed as driven by both politics and policy, the meeting serves as reminder that clients should be vigilant about identifying and preventing potential antitrust violations in the current highly charged antitrust enforcement environment
On August 1, 2024, the Federal Trade Commission (FTC) and Department of Justice (DOJ) hosted the first meeting of the Strike Force on Unfair and Illegal Pricing (Strike Force), a multiagency initiative sitting at the intersection of antitrust and consumer protection enforcement. President Biden launched the Strike Force in March 2024, promising to "crack down on companies who break the law while keeping prices high for American consumers." The Strike Force, aiming to root out anticompetitive, unfair, deceptive and fraudulent business practices, also includes the Department of Agriculture (USDA), Department of Health and Human Services (HHS), Department of Transportation (DOT), Securities and Exchange Commission (SEC), Federal Communications Commission (FCC), and Consumer Financial Protection Bureau (CFPB). The public portion of the meeting featured remarks from senior officials from each agency, discussing enforcement actions and rulemaking efforts intended to lower consumer pricing and combat inflation – expected to be a critical concern for American voters this November.
FTC Chair Lina Khan keyed into these concerns in her opening remarks, describing the FTC's "laser focus" on the effects felt by Americans from illegal pricing. Chair Khan called upon the FTC to open an inquiry into grocery store prices and noted the FTC's efforts to finalize the click-to-cancel rule that would simplify cancelling recurring subscription payments – two issues near and dear to consumers. Chair Khan also described the FTC's power to curtail a wide range of issues that can lead to higher prices, such as anticompetitive behavior and deceptive bait-and-switch tactics. Associate Attorney General Benjamin C. Mizer also weighed in, noting the importance of both the Antitrust Division and the Civil Division of the DOJ to the Strike Force. Assistant Attorney General for the Antitrust Division Jonathan Kanter agreed, noting the DOJ's intention to hold corporations accountable for illegal behaviors that "rip off Americans."
Member agencies noted their recent accomplishments and previewed future priorities, including:
- USDA making investments aimed at increasing competition in the food supply chain
- HHS working to reduce prices for prescription drugs
- DOT proposing a rule aimed at banning fees for parents traveling with young children
- SEC looking to hold AI companies responsible for the models they deploy
- FCC lowering costs associated with using prison pay phones by 90 percent
- CFPB working to end "junk fees" and credit card collusion
Conclusions
The Strike Force is a strong reminder of the increased cross-agency collaboration in antitrust enforcement. Undoubtedly, these agencies agencies will continue to use the tools available to them to constrain inflation and, where possible, to lower consumer prices. Yet, while the agency officials' comments touted a large and diverse toolbox to address high prices, the reality remains that those tools are limited by the scope of the agencies' powers and that consumer prices are largely dictated by macroeconomic trends and policy (e.g., trade and Federal Reserve policy). Thus, while Assistant Attorney General Kanter touted that "antitrust enforcement is one of [the] best and most effective tools to lower prices, spur innovation and promote sound business practices," those tools can be brought to bear only to curb anticompetitive business practices and transactions that violate the antitrust laws. While no one can doubt the Administration's desire and efforts to stabilize and, where possible, lower consumer prices, including through antitrust enforcement, the work of the Strike Force could be fairly viewed as largely old wine in a new bottle.
Still, the Strike Force has just been launched, and should it extend into the next Administration, we can expect that the agency members will continue to hunt aggressively for ways to stabilize and lower consumer prices across a wide range of industries, including pharmaceuticals, communications, transportation and financial services, and to coordinate their efforts to do so. What remains to be seen is whether the efforts of the DOJ and FTC to expand the scope of antitrust laws and enforcement will continue past November. In the meantime, companies should be reminded that they face an aggressive antitrust enforcement environment today and that the need to carefully evaluate their business practices and transactions to assess antitrust risk – with the help of a robust antitrust compliance policy – is more important than ever.
Client Alert 2024-169
This article is presented for informational purposes only and is not intended to constitute legal advice.