No Slowing Government’s Antitrust Efforts

As President Joe Biden’s only term in the White House draws to a close, the federal government’s antitrust lawyers might be hoping its next occupant will give them a breather.

The latest target of the administration’s antitrust campaign: The $20 billion merger of the Kroger and Albertsons grocers, which was announced in 2022 and is now on hold. Squaring off in court with the Federal Trade Commission, the chains have made the case that the combination will give them more scale to compete with other players in the grocery sector. It’s an understandable position when your competitors include behemoths like Costco and Amazon.

The FTC contends the grocers are making an apples-to-oranges comparison. According to the agency, because buy-in-bulk retailers such as Costco require membership fees and offer limited selections of items, they are different from supermarkets. And Amazon doesn’t have physical stores, which separates it from supermarkets in the eyes of the FTC. Meanwhile, the agency says discount chains and premium grocers (including Amazon-owned Whole Foods) don’t count as supermarkets, either. (The FTC’s definition of a supermarket is apparently narrower than the thinnest cut of fresh-sliced deli meat.)

While the FTC is contesting the Kroger-Albertsons union, the Department of Justice is taking on Google over antitrust concerns. Most recently, the DOJ argued in September in federal court that Google holds a monopoly over the market for online advertising. Essentially, regulators charged the company with monopolizing the technology to pair publishers with advertisers. Google contends the government’s characterization of the online ad market rests on an antiquated idea of life online.

If the legal system sides with the DOJ in the advertising case, it could force Google to split up. But in case you forgot, Google already got tagged earlier this year for violating antitrust laws with regard to its online search function. Breaking up the company has come up as potential remedy in that case, too.

Other proposed mergers and acquisitions that have come under the scrutiny of regulatory authorities in the U.S. include Microsoft’s $69 billion purchase of video game company Activision Blizzard. This, of course, was nothing new to the personal computing pioneer, whose run-ins with antitrust enforcement date to the late 1990s and early 2000s when the federal government sought to break-up Microsoft and its alleged monopoly on personal computer operating systems. Microsoft ultimately settled that case with the DOJ for far less than the break-up the government had originally sought.

The FTC is also suing to stop mattress company Tempur Sealy from acquiring retailer Mattress Firm, charging the deal raised concerns about prices and product quality. In yet another sign the FTC is keeping a close eye on activity in the technology industry, an FTC investigation into Amazon’s announced purchase of robotics firm iRobot was followed by a decision on the part of the online retailer to scuttle the deal.

U.S. authorities aren’t the only regulators taking a longer look at potential antitrust law violations. The European Union underwent an antitrust campaign of its own in recent years against the technology industry, with companies such as Google and Apple drawing fire from regulators.

Such developments suggest the ongoing scrutiny of big business in the U.S. and abroad won’t abate just because someone new takes over the Oval Office. So don’t schedule those vacations just yet, antitrust lawyers.