How to Structure Remedies in Abuses of Dominance in Digital Markets – Ryan Struve, US DOJ - October 2019 OECD-AGCM Workshop on Abuse of Dominance in Digital Markets

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OECD Directorate for Financial and Enterprise Affairs

This presentation by Ryan Struve, US DOJ, was made during the panel IV “How to Structure Remedies in Abuses of Dominance in Digital Markets” held at the OECD/AGCM Workshop on Abuse of Dominance in Digital Markets on 10-11 October 2019. More information on this event can be found at www.oecd.org/daf/competition/oecd-agcm-workshop-on-abuse-of-dominance-in-digital-markets.htm

Government & Nonprofit

Panel IV – Remedies in Digital Markets
Ryan Struve
October 11, 2019
Views expressed do not necessarily reflect those
of the United States Department of Justice.

2
Overview of U.S. Monopolization Law
• Section 2 of the Sherman Act
– “Monopolize, or attempt to monopolize”
– “any part of the trade or commerce”
• Elements of Proof
– Monopolization
• Monopoly power
• “Willful acquisition or maintenance of that power”
– Attempted monopolization
• Anticompetitive conduct
• Specific intent to monopolize
• Dangerous probability of success

3
Historical Section 2 Remedies – Microsoft
• District Court found for government that Microsoft had maintained monopoly
– Relevant market operating systems for Intel-based personal computers
– Monopoly maintenance in preventing competition from distant threats
• Judgment originally broke company into two parts
– Separate operating system and software companies
• Upon appeal, judgment overturned
• DOJ and Microsoft ultimately settled
• Extensive conduct settlement including overseeing technical committee

4
Other Potential Remedies – Google/ITA
• Proposed merger of Google and ITA Systems in 2011
• ITA was the leading software solution for flight search
– Powered many of the online flight search companies
• Complaints that Google would launch its own flight search service and
disadvantage rivals
– Google had no flight search product at the time
• Merger allowed to proceed with a consent decree
– Required continuing access to the most modern version of ITA’s software
– Could not disadvantage rivals in use of the software
– No provisions affecting search results

5
Other Potential Remedies – Thomson/Reuters
• Proposed merger of Thomson and Reuters in 2008
• Competing providers of certain types of financial data
– Fundamentals, Earnings Estimates, Aftermarket Research
• Data was not replicable at the scope maintained by Thomson and Reuters
• Merger allowed to proceed with divestiture of data sets

6
Issues In Crafting Remedies
• Structural vs. Behavioral remedies
• Access to data
• Preserving incentives to invest by tech firms
• Preventing dependence by the market on dominant firm’s
technology

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