COVID-19 Could Delay Tech Antitrust Investigations

The coronavirus pandemic could delay Federal Trade Commission (FTC) and Department of Justice (DOJ) antitrust investigation of tech companies because of workplace changes in both agencies.

The FTC is conducting investigations into big tech companies, including reviews of a decade’s worth of acquisitions for Apple, Amazon, Facebook, Microsoft and Alphabet. These purchases were too small to warrant review at the time of acquisition. The DOJ is also looking at the practices of online platforms. Currently, work for these investigations will be occurring remotely.

“It’s just impossible for FTC lawyers and economists to work at the same pace from home — and that’s necessarily going to slow the progress of the inquiries down,” former Federal Trade Commission chair and current George Washington University law professor, William Kovacic told Protocol. “I would expect all of the timetables that authorities have developed are going to be stretched out.”

An FTC spokesperson stated it “is adjusting to these new and challenging circumstances” and the vast majority of employees are working from home. Agency employees, much like millions of others, are adjusting to the new normal, juggling work and other needs, such as taking care of children who are now home because schools are closed.

Tad Lipsky, director of the Competition Advocacy Program at the Global Antitrust Institute at George Mason University, stated that the “ubiquity of digitization” indicates that “it shouldn’t be too difficult for many forms of antitrust enforcement to occur without requiring physical proximity of human beings.” However, “key points in the process” could be challenging to do from home, including tasks requiring physical access to records and offices.  

“Almost all internal and external meetings will be handled by telephone or videoconference, and parties should assume that meetings will be held remotely, rather than in person, until further notice,” FTC Executive Director David Robbins said. “Despite these procedural changes, the FTC will be conducting the business of the Commission without interruption.”

The FTC has canceled “noncritical” travel, prohibited unplanned visitors, and the vast majority of employees are working remotely with “limited exceptions.” There have also been some deadline shifts, such as postponing depositions to ensure they occur over secure videoconferencing and adding 30 days for pending or proposed mergers for review. The deadline shifts show this is impacting efficiency. “Agencies around the world are basically indicating that the various measures to keep people out of the office and in their homes will slow the efficiency of enforcement and investigation,” Kovacic said.

Litigation could slow down as companies wait for the crisis to improve and circumstances to change. Additionally, courts are moving typically in-person events online. However, advocacy groups are concerned that the pandemic is creating an influx of privacy concerns that would need regulatory review. “We’re keeping our eyes open,” Electronic Frontier Foundation senior staff attorney Adam Schwartz said. This comes after reports of the government exploring the use of location and facial recognition data to track the spread of COVID-19. “EFF is skeptical that such techniques could actually bolster public safety in this crisis — but even if proven effective, the organization still believes that it should be carried out with stringent oversight and transparency, which would mean additional regulation.”

The FTC and DOJ both recently released a joint statement announcing guidance for antitrust investigations during the COVID-19 crisis. They noted they would review public health questions within a week and offered guidance for business practices and scenarios; this is to help speed business decision making during this time. The agencies did state they would still pursue civil violations at this time.