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antitrust
Lina Khan’s FTC Legacy Is A Lesson In Successful Progressive Leadership
Khan’s FTC has scored historic victories for consumers and workers—even as she’s faced powerful industry opposition and obstruction from right-wing judges.
Jan 09, 2025
In June 2021, just months into the Biden era, Zephyr Teachout argued that Lina Khan’s appointment to the Federal Trade Commission “may be the best thing Joe Biden has done” in office. With a firm reputation as a leader in the anti-monopoly movement, her nomination to the FTC was a clear victory for progressives in an administration otherwise primarily staffed by moderates.
Three years on, it’s clear that this optimistic outlook about a Khan-run FTC has been vindicated. In her position, Khan’s FTC has scored historic victories for consumers and workers—even as she’s faced powerful industry opposition and obstruction from right-wing judges.
Understanding the significance of Khan’s tenure means understanding how antitrust enforcement has been sabotaged in recent decades by right-wing ideologues. The federal government adopted antitrust laws beginning in 1890, which would become a crucial tool for reining in corporate abuses for decades to come. But beginning in the 1970s, federal courts would embrace a right-wing reimagining of antitrust law under the guise of promoting “consumer welfare.” Unsurprisingly, this hands-off approach helped create an economy defined by extreme corporate concentration, leading to fewer and worse choices for American consumers.
While the leadership of both agencies are set to change under President-elect Donald Trump, the new merger guidelines mean that Khan’s pro-competition vision will help shape FTC decision-making well past her tenure.
While still in law school, Khan rose to prominence in 2017 for her critique of laissez-faire antitrust enforcement. Given her reputation, observers were quick to speculate on how she’d be able to put her principles to action at the FTC. For one, the commission in recent decades has built a track record of being deferential to the very monopolies it’s tasked to regulate. Additionally, the commission has long suffered from inadequate funding, which has hindered its capacity to police monopolies. But despite these institutional constraints, Khan’s FTC has secured major wins for American consumers, all while facing down hostile corporate actors and their allies in the judiciary.
Monopolistic behavior in the food industry over the past few decades has robbed consumers of choice while increasing grocery costs. Two years ago, grocery giants Kroger and Albertsons announced a massive merger deal that quickly raised alarms among consumer advocates. While such a merger may have gone through unscathed a decade or so prior, the Khan-led FTC filed suit to block the deal. Last month, the FTC won one of its biggest victories in recent years by blocking the merger in court. This victory, along with the FTC’s successful effort to block Tapestry’s acquisition of Capri, shows that Khan’s view of antitrust is increasingly finding support in court.
Sharing jurisdiction on antitrust matters with the Department of Justice (DOJ) Antitrust Division, the two agencies successfully modernized merger guidelines to help identify illegal mergers in their tracks. Observers have credited both the FTC and DOJ Antitrust Division’s aggressive enforcement efforts with a recent decline in merger efforts. And while the leadership of both agencies are set to change under President-elect Donald Trump, the new merger guidelines mean that Khan’s pro-competition vision will help shape FTC decision-making well past her tenure.
These developments, of course, only scrape the surface of the FTC’s accomplishments under Khan. The commission notably blocked an effort by Nvidia to acquire Arm, which was set to be the biggest merger deal in semiconductor industry history. The ultimate failure of Amazon to acquire iRobot, which caused concern among various international antitrust regulators, has been at least partially credited to the FTC’s scrutiny. Among the most meaningful impact of renewed FTC antitrust scrutiny may be felt on private equity firms, a welcome development given said firms’ harms to competition and American society at large.
The Khan-led FTC’s ability to build bipartisan support for efforts such as recent rulemaking on junk fees, as well as on merger guidelines, should be seen as a model for Democratic governance. Moreover, the Khan-led FTC should be applauded for using long-neglected tools at the commission’s disposal, such as its ability to police price discrimination as interlocking directorates.
With Khan set to be succeeded by Andrew Ferguson, Trump’s pick to lead the FTC, it's likely that the FTC will soon shift its approach on antitrust and consumer protection. Nevertheless, it’s clear that Khan will leave behind a legacy that will influence antitrust enforcement for decades to come. And in doing so, Khan will also leave behind a track record that shows what successful progressive governance looks like.
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Biden DOJ Sues Major Landlords Over Algorithmic Price Fixing
"If you mess with the price of rent, be prepared to meet the DOJ on the other side of that scheme!" wrote the American Economic Liberties Project.
Jan 07, 2025
The U.S.Justice Department on Tuesday announced that it has added six landlords as defendants in an antitrust lawsuit that the agency initially filed against the real estate software company RealPage, which the DOJ accused of engaging in a price fixing scheme that allows reduced competition between landlords so they can increase rents.
At the center of the case is RealPage's "algorithmic pricing software," which generates rent price recommendations using software based on their and their rivals' "competitively sensitive information," which they submit to RealPage, according to an August statement from the Department of Justice regarding the initial complaint.
The new complaint alleges that the six companies—Greystar Real Estate Partners LLC; Blackstone's LivCor LLC; Camden Property Trust; Cushman & Wakefield Inc and Pinnacle Property Management Services LLC; Willow Bridge Property Company LLC; and Cortland Management LLC—"participated in an unlawful scheme to decrease competition among landlords in apartment pricing, harming millions of American renters," according to a Tuesday statement from the Department of Justice.
The landlords collectively operate more than 1.3 million units in 43 states and the District of Columbia, according to the agency.
The Department of Justice alleges that in addition to using RealPages's "anticompetitive pricing algorithms," the companies coordinated in a number of ways, including "communicating with competitors' senior managers about rents, occupancy, and other competitively sensitive topics" and participating in "user groups" hosted by RealPage, during which landlords would discuss, for example, how to modify the software's pricing methodology and the companies' own pricing strategies.
"While Americans across the country struggled to afford housing, the landlords named in today's lawsuit shared sensitive information about rental prices and used algorithms to coordinate to keep the price of rent high," said Doha Mekki, acting assistant attorney general for the Justice Department's Antitrust Division, in the Tuesday statement.
Two states, Illinois and Massachusetts, have also joined the suit as plaintiffs.
The American Economic Liberties Project, a group that urges government to confront corporate concentration, touted the updates to the lawsuit, writing Tuesday, "If you mess with the price of rent, be prepared to meet the DOJ on the other side of that scheme!"
Tony Carrk, executive director of the watchdog Accountable.US, said in a Tuesday statement that "corporate landlords like Camden Property Trust, one of the landlord companies included in today's complaint, have reaped hundreds of millions in profits while using RealPage's algorithm, and that's just the tip of the iceberg."
According to the Tuesday release from the Department of Justice, pending a consent decree which must be approved by the court, the DOJ may resolve its claims against one of the landlords, Cortland, which would then cooperate with the Justice Department's investigation and litigation.
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A Message for the Holidays: We the People Will Prevail
You have every reason to be worried about what happens after January 20. Many people could be harmed. Yet I continue to have an abiding faith in the common sense and good-heartedness of most Americans.
Dec 25, 2024
Friends,
The holidays provide an apt time to pause and assess where we are.
You have every reason to be worried about what happens after January 20. Many people could be harmed.
Yet I continue to have an abiding faith in the common sense and good-heartedness of most Americans, despite the outcome of the election.
Many traditional Democratic voters did not vote — either because they were upset about the Biden administration’s support for Benjamin Netanyahu or they were unmoved by Kamala Harris. Others chose Trump because their incomes have gone nowhere for years and they thought the system needed to be “shaken up.”
An explanation is not a justification.
There have been times when I doubted America. I think the worst was 1968, with the assassinations of Martin Luther King Jr. and then Bobby Kennedy, the riots and fires that consumed our cities, the horrific Democratic convention in Chicago along with protests and violent police response, the election of the dreadful Nixon, and the escalating carnage of Vietnam.
It seemed to me then that we had utterly lost our moral compass and purpose.
But the Watergate hearings demonstrated to me that we had not lost it. Democrats and Republicans worked together to discover what Nixon had done.
I had much the same feeling about the brilliant work done by the House’s special committee to investigate January 6, 2021, including chair Bennie Thompson and vice chair Liz Cheney.
I think it important not to overlook the many good things that happened under the Biden-Harris administration — the most aggressive use of antitrust and most pro-union labor board I remember, along with extraordinary legislative accomplishments.
When I think about what’s good about America, I also think about the jurors, the prosecutors, and the judge in Trump’s trial in Manhattan, who took extraordinary abuse. Their lives and the lives of their families were threatened. But they didn’t flinch. They did their duty.
I think about our armed services men and women. Our firefighters and police officers. Our teachers and social workers. Our nurses who acted with such courage and dedication during the pandemic. I think about all the other people who are putting in countless hours in our cities and towns and states to make our lives better.
A few days ago, I ran into an old friend who’s spending the holidays running a food kitchen for the unhoused.
“How are you?” she asked, with a big smile.
“Been better,” I said.
“Oh, you’re still in a funk over the election,” she said. “Don’t worry! We’ll do fine. There’s so much work to do.”
“Yes, but Trump is …”
She stopped me, her face turning into a frown. “Nothing we can do about him now, except get ready for his regime. Protect the people who’ll be hurt.”
“You’re right.”
After a pause she said, “We had to come to this point, you know.”
“What do you mean?”
“Biden couldn’t get done nearly enough. The reactionary forces have been building for years. They’re like the pus in an ugly boil.”
“That’s the worst metaphor I’ve heard!” I laughed.
“The boil is on our collective ass,” she continued, laughing along with me. “And the only way we get up enough courage to lance the boil is for it to get so big and so ugly and so mean that no one can sit down!”
“I don’t know whether you’re an optimist or a pessimist,” I said, still laughing.
“Neither,” she explained, turning serious. “A realist. I’ve had it with wishy-washy Democratic ‘centrists.’ A few years of the miserable Trump administration and we can get back to the real work of the country.”
“I hope you’re right.”
“And now I have to get back to work. Lots of people to feed! Merry Christmas, Happy Hanukah, Happy New Year!”
With that, she was gone.
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