A Modest Proposal for Antitrust Enforcement

Stephen D. Houck, Special Counsel to Offit Kurman, P.A., previously served as the Chief of the Antitrust Bureau in the New York State Attorney General’s Office. He also served as lead trial counsel in the government’s Section 2 monopolization case against Microsoft. Houck has previously contributed posts to DisCo on antitrust enforcement action against Android here and here. 

What antitrust enforcers should do about large tech companies, if anything, has been the subject of much recent commentary. The most widely publicized proposal is that of Senator Elizabeth Warren which calls for the breakup of all “platform utilities” with an annual global revenue of $25 billion or more. In this blog post and in my new article, I consider under what circumstances government enforcement agencies should seek remedial relief and what form that remedy should take. 

The bottom line, for those who want to cut to the chase, is that the breaking up of companies is a logistically difficult matter with potential adverse harms to consumers. Given that such an extreme antitrust remedy could severely impair incentives to innovate and create economic inefficiencies, I present a modest procedural change that would have the effect of strengthening antitrust enforcement: allowing a trial court to request appellate review of its liability decision before a remedial hearing.

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