Breaking Down the House Judiciary Antitrust Bills and Amendments
The majority has scheduled a full-committee mark-up less than two weeks after unveiling the bills and less than 48 hours after disclosing new versions to be offered as substitute amendments. The majority is selling out conservatives in order to ram their whole package through. These are serious changes to a broad area of law that deserve serious consideration. It is clear that House Democrats never intended to allow that to be the case.
In fact, they have even admitted to such strategies. For example, Chairman Cicilline told the New York Times that in the markup, he’ll take up measures with the most agreement first and worse legislation later. At least the quiet parts are sometimes said out loud.
Contrast this with the fact that this was preceded by a more than 16-month investigation, about a dozen hearings, a 450+ page report, and the fact that there have been nine months following the report’s publication. Now that the details to proposed solutions have been drafted without meaningful Republican collaboration, the committee is moving about a month after a partisan report was reported out of committee without a single GOP vote.
Explainer: Senator Klobuchar's Antitrust Bill
How would the bill adjust the definition of "exclusionary conduct"? What would it mean for the government's ability to seek civil fines for antitrust violations? And how does the bill fit into the larger conversation about antitrust law in Washington?
Shifting the Burden of Proof in Competition Law
The House Committee on the Judiciary recently released a report on the state of competition in the digital marketplace that was the result of a 16 month long investigation. The report describes itself as being “an attack on how America has approached antitrust for the past 40 years.” One of the recommendations in the report inverting the evidentiary burden of proof and shifting it away from the plaintiff to the defendant, particularly in civil mergers challenges.
This episode lays out the current framework used in U.S. courts for meeting the burden of proof in competition law cases, the role of presumptions in antitrust litigation, and the implications of shifting the burden to the defendant.