Pod Insights Decoder Monopoly isn’t a game (with Lina Khan) About this episode Hey everyone, it’s Nilay. Decoder is on a short summer break right now, but we’ll be back starting June 23 with new episodes, and we’re very excited for what we have on the schedule.
In the meantime, we have an episode from the excellent podcast Stay Tuned with Preet, with host and former U. S. Attorney Preet Bharara. Last month, Preet sat down with former FTC Chair Lina Khan for a pretty high-level discussion about antitrust, monopoly power, and the ongoing shift from both political parties in the United States toward more aggressive, bipartisan regulation of Big Tech. I think you’ll find it really interesting.
Links:
Stay Tuned with Preet | Apple Podcasts
Google loses ad tech monopoly case | Verge
Judge greenlights FTC’s antitrust suit against Amazon | Verge
Judge rules that Google ‘is a monopolist’ in US antitrust case | Verge
Illegally fired FTC commissioners on Meta, bribes, and fighting for privacy | Decoder
The case for breaking up Google has never been stronger | Decoder
DOJ antitrust chief is ‘overjoyed’ after Google monopoly verdict | Decoder
DOJ’s Kanter says the antitrust fight against Big Tech is just beginning | Decoder
Credits:
Decoder is a production of The Verge and part of the Vox Media Podcast Network.
Our producers are Kate Cox and Nick Statt. Our editor is Ursa Wright.
The Decoder music is by Breakmaster Cylinder
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Transcript 10,007 words · 12 speakers
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1:26 Speaker 04 Hey, everybody. It's Neelai. Decoder's on a short summer break right now, but we'll be back starting June 23rd with some new episodes. And we are very excited for what we have on the schedule. In the meantime, we have an episode from the excellent podcast, Stay Tuned with Preet. Host Preet Bharara sat down with former FTC Chair Lina Khan for a pretty high-level discussion about antitrust, monopoly power, and the ongoing shift from both political parties in the United States towards more aggressive bipartisan regulation of big tech. We've covered Lina's tenure at the FTC pretty closely here at The Verge. And as Decoder listeners know, we've had former DOJ antitrust chief, Jonathan Kanter, who worked in tandem with Lina on some of the biggest monopoly cases the government has ever brought against big tech, as a guest a number of times here on Decoder. Here, Preet really dives into the history of how Lena's philosophy in antitrust evolved
2:10 Speaker 04 from her time at law school and her perspective on the current slate of cases facing companies like Amazon, Google, and Meta. I think you're really going to find this one interesting. Okay, here's Preet Bharara interviewing former FTC Chair Lina Khan on Stay Tuned with Preet. Here we go.
2:25 Speaker 05 From Cafe and the Vox Media Podcast Network, welcome to Stay Tuned. I'm Preet Bharara.
2:33 Speaker 06 One of the biggest ways that we've seen anti-monopoly make such advances is because the evidence has been on our side. We had a shortage of infant formula in this country in the year 2022 from a single contamination in a single factory.
2:52 Speaker 05 That's Lina Khan. She made history in 2021 when President Biden appointed her as the youngest ever Chair of the Federal Trade Commission at age 32. During her time at the FTC, Khan accused big companies of using their power to push out competitors and hurt small businesses. Today, Lina Khan joins me to discuss the influential paper she wrote in law school that launched her into the spotlight and paved her path to the FTC. We'll also explore the nature of fair competition, what she says defines a monopoly, and some of Khan's key cases. Later in the show, I'll answer your questions about the proper qualifications for Surgeon General, Kid Rock's restaurant, and Bruce
3:35 Speaker 05 Springsteen. That's coming up. Stay tuned.
3:46 Speaker 05 How does monopoly power shape innovation and competition? Former FTC Chair Lina Khan joins me to discuss.
3:56 Speaker 04 Lina Khan, welcome to the show. It's really an honor to have you.
3:58 Speaker 06 Thanks so much for having me.
4:00 Speaker 04 So this seems an odd thing to ask, given your relative youth. How's retirement?
4:07 Speaker 06 It's been pretty low key. It's been quiet. It's been, you know, obviously, I wish we'd had more time in government, but it's been nice. I have a two-year-old, so it's been pleasant to just get to be around more.
4:17 Speaker 05 It's not relaxing. Are you teaching antitrust law to your two-year-old?
4:22 Speaker 06 I'll be teaching antitrust law in the fall to law students, and my son has picked up on a lot of ambient meeting noise and that sort of thing, so.
4:33 Speaker 05 Does he think there's an unlawful tying arrangement in the house?
4:37 Speaker 06 I think he is working on physical tying right now, but I'm sure we'll get there.
4:40 Speaker 05 Now, I've exhausted all my knowledge of buzzwords in antitrust law, so he'll ask you to explain some things. So I want to get into your biography, how you got to where you got relatively quickly in life, and talk about your views on antitrust enforcement for a lay audience. But, you know, let me start with this, and I'm sure this is how some people come at you. You were obviously, you know, a very high-profile chair of the FTC. And in any government role, I had a government role for a long time, there are detractors and there are supporters. And often, in our current sort of tribal environment, you can guess in advance who the supporter will be and who the detractor will be. They
5:23 Speaker 05 line up sort of tribally. But if I said, what do the following people have in common? Alexandria Ocasio-Cortez, Elizabeth Warren, the senator from Massachusetts, J.D. Vance, and Matt Gaetz, what would they all have in common that would cause me to ask you that question, Lena?
5:42 Speaker 06 Well, they all profess to support for the work we were doing at the FTC and have shared real skepticism about extreme concentrations of economic power and monopoly power. So that is a through line that we've seen across people who otherwise have very different politics.
5:58 Speaker 05 Right. And just to put a point on it, because you're modest in your answer, supportive of your work and particularly supportive of you, which is an unusual thing to see from that spectrum of folks. Do you think that antitrust enforcement naturally falls along ideological lines, or the fact that you have this Strange set of bedfellows indicate that that's not the case or shouldn't be the case.
6:21 Speaker 06 Historically, we've seen pretty significant bipartisan support for antitrust, and that's gone in multiple directions. You know, Senator Sherman, who was one of the authors of the Sherman Act, was Republican. We saw, especially in the early decades of federal enforcement, strong support from both sides to take on the trusts, take on the robber barons. And as we then, in the 80s, saw a reversion from aggressive antitrust, there eventually was another bipartisan consensus, a bipartisan consensus around, you know, the view that we should be enforcing the law with a very different set of goals and values.
7:02 Speaker 06 And so we have seen significant bipartisan consensus on different sides of how you should be doing antitrust.
7:09 Speaker 05 So and where do you think we are today at this moment?
7:12 Speaker 06 It's an interesting question because it's too early to know what the full policy of the Trump administration is going to be on antitrust. One question for me when I was there was, how long will we have? Because the last time we had seen such a sharp pivot in antitrust was during the Reagan years, where we saw radical reorientation of how they approached antitrust laws. And they had eight years of Reagan plus four years of Bush to really create institutional durability for the project that they were pursuing. I had three and a half years, and so there was a real question around the institutional durability of what we were going to be able to achieve.
7:54 Speaker 06 But strikingly, we have seen less of a retreat from this administration on antitrust than we have in almost any other policy arena. They made a series of decisions to keep the merger guidelines, keep several of our major antitrust lawsuits going. So far, we haven't really seen any major break at all. Who knows if that will stay in place for the full, for the full administration, or whether we'll see pretty overt weaponization of the antitrust laws, so they're rewarding friends and punishing enemies. But so far, we have seen more continuity than I think anybody expected.
8:36 Speaker 05 Does aggressive antitrust enforcement fall comfortably within a populist ideology in government?
8:44 Speaker 06 Well, if you step back, the antitrust laws were founded on the view that extreme concentrations of economic power pose a threat to people's freedoms and liberties, much in the same way that we understand extreme concentrations of political power or state power to pose. There was a recognition that if what we really want is to create freedom for people in their day-to-day lives, you can't just have checks and balances in your sphere and governance and then allow monopolies or autocrats of trade, as they were called, to govern. And, you know, there was a recognition that here Americans had overthrown a monarch and they weren't going to instead sign up to be ruled by monopolists.
9:28 Speaker 06 And so there has been a real, original understanding of how antitrust, but more broadly, an anti-monopoly ethos is absolutely critical for some of our most cherished values.
9:40 Speaker 05 Did you play Monopoly as a kid?
9:42 Speaker 06 I did.
9:43 Speaker 05 And did you like the game?
9:46 Speaker 06 It was, it was fine. You know, it's been interesting to learn.
9:50 Speaker 05 It was fine. It was, the anti-monopolist says it was fine.
9:52 Speaker 06 It was fine. I mean, as a board game, it was fine.
9:54 Speaker 05 Do you think it's like gaming propaganda? Do you think we should, we should eliminate? Obviously, you're not a censor, but I know it's a semi-serious question. Do we teach the wrong things about money and concentrations of power in this country?
10:08 Speaker 06 Well, you know, antitrust and anti-monopoly as a philosophy fits comfortably within a capitalist system that we have, right? And, and so much of the productivity and the innovations and America's competitive advantage have been the results of the fact that you have an economy where people are able to pursue a good idea, bring it to market, and then enjoy a great success, right? If you're undertaking the risk of bringing a product to market, you should be able to reap the reward. And so that type of motivation and thinking is absolutely critical. I do think that, and it's especially true for, for my generation and generations since, there has been a real disillusionment and a real question
10:52 Speaker 06 about who our economy is really working for. You know, of course, during the financial crisis, we saw an initial inflection point, and I think since then, we've seen, you know, episode after episode where, for a lot of young people... What our policy and politics have shown is that our economy is really designed to work primarily for very wealthy, very well-connected people, as those who are trying to make rent, trying to make sure that they're not going bankrupt from medical bills are having a much harder time. And so I do think that there is a real skepticism and questioning about who our current economic order is really serving.
11:29 Speaker 05 As a matter of political rhetoric, when people oppose antitrust enforcement, and when you say as an antitrust enforcer, that monopolies are not good, they're not good for the mass of people for various reasons, and we'll get into that in a moment, the people on the other side don't say we love monopolies, right? Nobody goes forth and waves the banner of monopoly happily, right?
11:53 Speaker 06 Well, some people actually do. Some people think monopolies are great, that, you know,
11:57 Speaker 05 Who are those people?
11:59 Speaker 06 You know, they span thinkers, you know, people kind of lineage of the Chicago School that thought, you know, monopolies oftentimes would actually deliver great benefits to people. And then you have people in the kind of policy advocacy community, you could call them lobbyists or others, who are often advocating for those views. So you do have a legitimate pro-monopoly camp.
12:23 Speaker 05 How large is that camp, though? How large is that camp?
12:26 Speaker 06 I mean, it's gotten much smaller over the last decade, I would say, as anti-monopoly has really made great advances in our politics and as a mode of governing. And I think one of the biggest ways that we've seen anti-monopoly make such advances is because the evidence has been on our side, right? I mean, I think we have, as a country, seen evidence after evidence about how extreme concentrations of economic power actually lead to major problems for Americans. I mean, that can range from shortages of things like IV bags or gunpowder that arise from extreme concentration of production. We had a shortage of infant
13:09 Speaker 06 formula in this country in the year 2022 from a single contamination in a single factory. We've seen problems around planes falling apart in the sky, right? Some of the challenges that we're seeing in Boeing, you can see trace back to a major merger that they did in the late 90s, where they were allowed to buy out their their major competitor in the US, and that fundamentally changed their incentives. And as a general matter, we've just seen market after market become more consolidated. Prices have become higher, wages have fallen. It's become much harder for new businesses and entrants to actually enter and compete on a level playing field. And so I think as that evidence has become much more difficult to ignore and contest,
13:54 Speaker 06 we have seen the pro-monopoly advocacy community grow smaller, but they're still out there.
14:01 Speaker 05 Can we define a term, which is difficult in antitrust law? What is a monopoly? How do you define a monopoly? And how should laypeople understand what a monopoly is?
14:10 Speaker 06 So there are different ways to define what a monopoly is. And in court, you know, there are different methods and mechanisms that enforcers use. Some are primarily trying to define what is the relevant market, right? Who is in and who is out of this market? And then how do you calculate effectively the percentage that this one company has? And is it enough to trigger monopoly status? Which itself is can range from, you know, 60% to say 90%. And courts have come out different ways on what the kind of right cutoff point is. To my mind, you know, one of the most effective ways to be able to show a monopoly is through its behavior, what we call direct evidence of monopoly power.
14:55 Speaker 06 And in short, a firm can behave like a monopoly when it's able to make its products worse or raise its prices for its customers without facing real consequences in the marketplace. And so you can understand this in some ways as a firm becoming too big to care, that they have amassed not just a size, but have also cut out competitors such they can get away with making products more expensive or making products or services worse for their customers without the ordinary checks that you would expect in a competitive marketplace. And so those are both just two ways of being able to show monopoly power, even market power.
15:40 Speaker 06 And when we were bringing our cases, we would routinely deploy both methods.
15:45 Speaker 05 And what's an example of an entity about which there would be consensus that they have monopoly power?
15:51 Speaker 06 Well, there are major cases underway. We just saw a verdict from a judge in DC a few months ago, a ruling that Google had monopolized the market for generalized online search. The Justice Department in that instance used both indirect and direct forms of evidence to make that showing. And so, Google has now been found to be a monopoly in online search.
16:19 Speaker 05 I want to talk about Amazon, because Amazon looms large in your origin story as well. So in 2017, you wrote what people call an article in the Yale Law Journal that had quite a response. Amazon's antitrust paradox. For people who are not from or of law school, I will note for them that even though in the popular press, your piece is called an article, it is in fact among law students and lawyers called a note, because you were just a law student at the time, and obviously, not just a law student, but thinking about these big issues. But I'll note for the record, that when you're a law student and you write something that's important or not, it's called a note.
17:03 Speaker 05 When you're a law professor, it's called an article. Just want to put that little piece of business beside us. As I understand it, the thesis of the article, the note, was in part that ordinarily, when we're thinking about what is good or bad with respect to monopoly power, as you were saying a few minutes ago, one of the things you look at is consumer welfare, right? And whether or not consumers are being helped or undermined in various ways, including with respect to price. So if one measure of monopoly power, as you were describing a few minutes ago, is the ability to with impunity increase prices such that people are at the mercy of those price increases, that indicates monopoly power.
17:48 Speaker 05 And one of the things you say is, well, in the modern world, especially as epitomized by Amazon, prices are low. And they have the ability to keep prices low. And so this focus on consumer welfare, defined in part as a focus on price, doesn't actually uncover the monopolistic power of a big company like Amazon, which has other features that it can take advantage of and actions that it can engage in, including predatory pricing. And you mentioned, I will say, in various places, a company near and dear to my own heart. My brother and his best friend from high school started diapers.com, which was the subject of a lot of discussion
18:29 Speaker 05 and angst in my family and also in the public at large, because Amazon was engaging in a certain price tactic with respect to diapers.com. Anyway, that's a very long-winded, probably imperfect summary of your article. How did you come to think about it that way? And why was that such a revelation?
18:49 Speaker 06 So one of my jobs after college was as a researcher and reporter, where I was basically doing deep dives into various markets across the US economy. And so I would do, you know, deep research into chicken farming, the aluminum market, rental cars, book publishing, and really document the ways that market after market had become so much more consolidated and how there were real gaps between how antitrust enforcers were thinking about market power and consolidation and what was really happening on the ground for everyday people. One of the last areas that I started looking into before I went to law school was online commerce. And I spent several months talking to two sets of market participants
19:34 Speaker 06 about how they viewed Amazon in particular. One was the set of businesses that were selling through Amazon. And the other was investors and financial analysts and people who were viewing Amazon through a more long-term proposition. And it became clear just through those conversations that Amazon was amassing structural power in the marketplace that was not being cognized through the antitrust prism that enforcers were using at that time, where there was, you know, a very charitable view of Amazon, where, you know, that people thought, well, its prices are generally low and so therefore it must be good for competition.
20:14 Speaker 06 Not fully tracking the business practices that Amazon was using to establish real structural dominance in the marketplace, both predation, predatory pricing, as you were noting, as well as vertical integration in various parts of the market that allowed them to then exploit certain conflicts of interest and certain information asymmetries. But I really wrote the article and really focused on Amazon more as a way to tell a broader story about the evolution in antitrust and this major reorientation and pivot that happened in the late 70s and early 80s that I believed had departed from what Congress intended when it wrote these laws, departed from what the laws actually said, and now
20:59 Speaker 06 was also creating major blind spots between how enforcers and potentially even courts were understanding what monopoly power looked like and how it was actually being exercised, and that that blind spot was especially acute in digital markets where you just have a different set of economic dynamics. And so that's really what the article was looking to set out.
21:21 Speaker 05 So what's interesting to me is, you know, Amazon began as nothing, right? It was an idea in a guy's head of relatively recent vintage. I don't know the exact year in which it started. And it very quickly got to the point that you're describing, and as you wrote in, I guess, a parallel New York Times piece in 2017, talking about Amazon, quote, "In building this vast empire, Amazon chased growth over paying dividends, pricing key goods and services below cost to chase out competitors. It invested heavily to buy out innovators like diapers.com, my brother's company. After waging price wars,
22:00 Speaker 05 Amazon followed its acquisition by raising prices," end quote. You know, at the time, is there some argument that if you had the foresight to chase growth at the expense of paying dividends and if the market, the capital markets like that, and want to invest in your company? Because not everyone thought it was going to be a winning bet. I am old enough to remember lots and lots of people thought this was a losing proposition ultimately, and that Amazon was overpriced and Amazon would fail because all it was doing was losing money and not making a profit as it, you know, added products and services and goods to its lineup. Is there some argument that that they didn't cheat and steal to do that?
22:45 Speaker 05 And they deserve a place of dominance by chasing growth over paying dividends? And that was a smart, innovative way to think about building a company? Or is that totally absurd?
22:57 Speaker 06 Well, chasing growth over profits is not illegal. Companies do it all the time, especially in digital markets, given, you know, the real premium of establishing scale, establishing the network effects, establishing the entry barriers that really pay off. It was specific practices that Amazon engaged in that ultimately the FTC and a whole bunch of state AGs determined were illegal. You know, I think the predatory campaign that we saw from Amazon against a whole set of companies, including diapers.com, clearly could have been in that bucket. The Supreme Court jurisprudence has come to take a much more skeptical view of what counts as predation. You know, they view predation itself as irrational and unlikely to ever exist.
23:39 Speaker 06 So practically, it's become very difficult to bring a predatory pricing case. But the lawsuit that the FTC ended up filing in 2023 laid out a whole set of business tactics where Amazon had not just become big, but they had actively blocked out competitors, which has now allowed them to actually make things worse for their customers, both the businesses that sell through Amazon as well as the consumers. The complaint details some of these practices. For example, Amazon had a policy that basically punished any business for listing a lower price on a website other than Amazon.
24:22 Speaker 06 And it was doing this at the same time that it was dramatically hiking the fees that a business had to pay to sell through Amazon. So say you're selling coffee mugs and selling them for $10 and on Amazon's website, you have to pay Amazon $5 for every $10 you make. There's a rival website where you only have to pay that company $2 for every $10 you make. And you want to list your mugs for a lower price on that other website because it's cheaper to sell there. If you did that, Amazon could make you disappear from its webpage, or it could punish you in all sorts of ways. And that really matters for businesses because they rely on Amazon for so much volume, for so many sales.
25:06 Speaker 06 And it was these types of practices that basically blocked out rivals, kept rivals from ever being able to achieve the same scale and momentum to really become a meaningful competitor to Amazon. And Amazon does now take up to one out of every $2 from businesses who sell through it. We also uncovered a whole set of pricing practices that have been inflating how much customers pay. It was very deliberately littering its search page with irrelevant ads. And we uncovered documents from, you know, top executives saying, basically, yes, you could make search results worse for consumers because basically we know they don't have anywhere else to go.
25:47 Speaker 06 So, you know, the complaint details a whole set of specific practices that are different from just taking a long-term view or chasing growth over profits. But specific anti-competitive acts that we believe ultimately violated the law and have made Americans worse off.
26:04 Speaker 05 And how do you, how do you square that with the fact, if you go back to the classic way of looking at consumer harm and consumer conditions, that I, like many other people, when I have my druthers, I order from Amazon. So you're talking about particular ways in which the government has alleged they've engaged in anti-competitive practices. But if you're a bread and butter consumer, just buying random stuff for your house or for your office, and you have low prices and you have immediate delivery and good customer satisfaction, and the company has not taken advantage of those things that you're describing with respect to the bread and butter consumer of stuff, does that not matter? Does that, is that not a point in their favor?
26:49 Speaker 05 Or is part of the issue, well, at any moment, they can do something deleterious even in that landscape? I'm not sure how to think about how that thing, which is in that good, which you argued is maybe too much the focus, but it still should be some focus or not the focus or of even focus? How do you think about that?
27:09 Speaker 06 So I'll answer this in two ways. One is, you know, I think especially in digital markets, there's actually a life cycle of being a monopolist and exploiting your monopoly power. And phase one is when you're, when you are achieving and chasing scale. And the goal at that moment is really to bring on as many sellers and as many buyers onto your marketplace as you can. And in that mode, your incentives are to oftentimes make your service really great for both the sellers and the buyers. And, you know, even if, if that's done in the goal of achieving dominance that you may later exploit.
27:50 Speaker 06 Mode two is once you've achieved that structural power and coupled that with tactics that are blocking competitors from the market, then you can make things worse. And you can make things worse, yes, through higher prices, but also through coercion and bullying. And a lot of the, the businesses and the market participants that the FTC heard from did allege all sorts of bullying tactics, candidly, as well as customer service for them getting worse. Antitrust is not about identifying some absolute price levels that we think are, are good or, or bad. It's really about competition. The assumption is that competition in markets is really what's going to drive firms to
28:32 Speaker 06 make products better for people and, and really innovate. And that's been a key driver of America's growth and our innovation as, as a country. And what Amazon did when it blocked out those competitors was interfered with that free enterprise system and with that competitive process. The lawsuit actually does allege that people are paying more because of this. And, you know, products could be even cheaper. You could have more innovative, say, interfaces. You could have search results that are not cluttered with irrelevant ads. And so this is more about the alternatives that were foregone and lost because of Amazon's anti-competitive tactics.
29:15 Speaker 06 And it can be, you know, difficult concretely to point to those counterfactuals. And Amazon's case is interesting, and the lawsuit actually points to other rivals that were on the cusp of taking off, that could have taken off, but for Amazon's tactics. So it's really about what could have been and how things could have been even better for Americans with more competition.
29:40 Speaker 05 I'll be right back with Lina Khan after this.
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31:09 Speaker 05 I think one of your criticisms of monopoly power is that ultimately innovation gets stifled there because you have monopoly power and you don't have to innovate because you have a huge set of customers or clients or buyers or whatever the market would call you. And I think you have given examples of cases, maybe you can give some examples for us here where, and you talk about AI, for example. You can have somebody or a company in a place of complete dominance, but then some other innovative technology is overlooked or bypassed or given short shrift. And then this other thing happens. What's confusing about that is some people might take that as an admission
31:53 Speaker 05 that monopolies don't last forever even without involvement and interference from the government. That even the most dominant figure is ultimately, the pejorative you can apply to that is they're ultimately not going to innovate and someone else will. And that will naturally reduce the non-innovators' market power and become less monopolistic. Is that fair or not?
32:18 Speaker 06 Well, the innovator is going to need to know that if they produce something that is better, they actually have a chance of reaping the rewards of that innovation. And that's what can get distorted when you have a monopolist that's running amok. That these monopolists often have all sorts of levers that they can deploy to cut out that innovator from the market. And that's what antitrust is about policing. And if you don't have antitrust enforcers policing that, then that innovator may have that idea but may not think it's worth it, right? Why take on the big investment? Why take on the risk if ultimately you're just going to get locked out of the market?
33:00 Speaker 06 And at the FTC, you know, I would frequently talk to startups, talk to founders, and we would hear this, them grappling with this time after time. You know, we would hear from, say, founders that were creating various types of apps that were needing to get access to the App Store on, say, you know, Apple or Google's devices. They would have to navigate all sorts of bureaucracy. Sometimes there would be a conflict of interest if, say, one of these companies had their own app that they wanted to favor, and that would just create all sorts of problems for these innovators that were trying to get access to market. Similarly, you know, this is something that we see in merger enforcement.
33:40 Speaker 06 So one of the mergers that the FTC blocked was Sanofi's attempted acquisition of Mays. Sanofi is a major player in the pharmaceutical market. And they had been given an FDA granted monopoly on treatments for Pompe disease. This is a really awful disease where basically your muscles degenerate. It exhibits in young kids and you need pretty expensive medicines. Mays was coming into the market and they had an alternative treatment for this same disease. And whereas Sanofi's treatment required basically going and getting hooked up to an IV, you know, bi-weekly, Mays' treatment could have been taken orally ultimately and could have really been a game changer.
34:24 Speaker 06 And this was really good, healthy competition, right? This is the kind of competition, the kind of innovation that we expect to see in our markets. And Sanofi was trying to buy out Mays. And we thought that that was anti-competitive, that that clearly violated the antitrust laws because here you had the existing monopolist that had not innovated this treatment and they were trying to buy out the company that had. And it would not really have the same incentive, right? Because it would risk cannibalizing its own sales, maybe would slow down this alternative treatment or bring it out in a way that was much more favorable to it, but not its patients. And so that type of active policing of anti-competitive conduct, but also anti-competitive mergers,
35:06 Speaker 06 is absolutely critical to make sure that the people who have an incentive to innovate actually have access to markets. And then ultimately, it's the public that gets to benefit from that innovation.
35:17 Speaker 05 Yeah, I guess all I'm saying is, maybe this is a silly point, and maybe it's not a good point, that monopolists are not immortal, even in the absence of enforcement. Is that fair? Are there natural reasons in the life cycle of a company that becomes a monopolist? Not enforcement-based, but natural, ultimately, over time, competitive reasons why a monopolist falls off their pedestal? And if that's so, I mean, I don't know, maybe that's an argument that the Chicago folks make, that ultimately, the market, in certain circumstances, not every circumstance, is able to right itself. Because otherwise, you would predict that once you achieve monopoly power, you persist
36:02 Speaker 05 in that monopoly power position in eternity, but that doesn't happen. Why doesn't that happen?
36:08 Speaker 06 Well, this is exactly the argument that the Chicago people made. They basically said that, look, monopolies are unlikely to ever be able to fully exercise monopoly power because there's so much competition in markets. But say even if they do, if, once they start exploiting that monopoly power, they are ultimately going to be disciplined in the market because you are going to see these new entrants that come in, you're going to see new innovations that displace them. There's just been reams of evidence over the last few decades that have shown that that's not actually how markets work in reality, that oftentimes there are actually meaningful barriers to entry in those markets, some of which are controlled by the existing monopolist.
36:48 Speaker 06 I think the other thing is, even if, say, you know, after 20 years of incumbency, a monopolist could ultimately, you know, lose its throne because there is some innovator in the market, that could have happened much sooner if the monopolist's illegal tactics were checked. And, and as enforcers, you know, we have an obligation to, to ensure that the public is not being denied those benefits of a free enterprise system of competitive markets while we sit on the sidelines and just see, hey, maybe it'll be a few decades and, and this monopolist will naturally meet its end.
37:22 Speaker 05 Is there such a thing as a perfectly lawfully operating and lawfully achievable monopoly status? We're talking a lot, obviously, given the job that you had, about companies engaging in monopolistic behavior and predatory pricing and all of that. And maybe there's not an example of this because naturally people engage in, in conduct that can be characterized that way. But, but are there or have there been examples of companies that just got to that status just by doing things well and better than everybody else and innovating better than everybody else and not running afoul either legally or in principle of anti-monopolistic thinking?
38:03 Speaker 06 Well, you do see companies that enjoy monopoly status because, for example, they've been given a license from the government. So you see this in the pharma space routinely. You see this in areas like utilities where firms are given certain privileges or certain exemptions or certain licenses to operate. And you see kind of a very active market making role by the government in that instance. You know, those are monopolies that are clearly sanctioned and oftentimes that comes with other obligations or other prohibitions on their behavior that's supposed to act as the check that competition will not be serving in that instance.
38:41 Speaker 05 Yeah, I'm just, look, this is not my main expertise as a lawyer. But I just wonder if the theory is that a company can't really attain and persist in being a monopoly absent some conferral of a benefit or a license by the government or absent some nefarious conduct because the market will always topple that kind of monopolist.
39:06 Speaker 06 Yeah, and maybe that's an interesting question or thought experiment. I mean, as an enforcer, that's not something you need to have a view on because the law doesn't, you know, say being a monopoly itself is illegal. It's only when it's attached with certain types of monopolistic behaviors that the law kicks in.
39:26 Speaker 05 So, obviously, your tenure was not without controversy. And I mentioned a set of strange bedfellows that was not only supportive of your work but supportive of you. And as always happens, I used to be an enforcer of a different type. The one kind of work that we didn't do in the Southern District of New York and that we deferred to the main justice on, the only area we deferred to main justice on, even in our own district, was antitrust enforcement, preceded my time there. Is there a particular criticism or category of criticism that you took more seriously than others, even if you disagreed with it?
40:04 Speaker 06 Well, I think one charge that would sometimes get levied at the FTC was that the FTC was somehow categorically antagonistic to corporate America, or somehow it was anti-business, which was really surprising to me because oftentimes, some of the biggest supporters of the FTC's antitrust work was the business community. And I think sometimes in DC, there can be this tendency to view business as a monolith, not recognizing that, say, you know, the Fortune 100, or even the Fortune 500, are not representative of the full panoply of businesses in America. And so, we would hear a lot of concerns from, say, independent
40:45 Speaker 06 grocers, or independent pharmacists, or startups and founders, really people who make up the majority of businesses in America, about how they too often felt like they were not facing a level playing field, that they were really struggling to compete because of the potentially predatory or coercive or abusive tactics of some of the existing incumbents. And so, that was a disconnect that I worried sometimes was not appreciated, especially in kind of some of the, how the FTC was discussed or portrayed, that that strong support among businesses, both for our antitrust work, but also candidly for our consumer protection
41:23 Speaker 06 work. You know, one example here is the FTC's work taking on made in USA fraud. Made in USA fraud had been rampant. This was an area where the FTC had been holding some of its, keeping some of its powder dry, really not using the full set of tools that it had to disincentivize companies from lying about their products being made in America. And this really hurt consumers who were being deceived about where their products were being made, but it also really hurt honest businesses, right? If you're a business that wants to produce in America, you're investing in a factory here, you're taking on the additional costs of doing that. If you're then ultimately just going to lose business to a company that's shipping stuff from China or somewhere else, and then just slapping a made in USA
42:07 Speaker 06 label, that's unfair. And so, that was just one example of how the FTC's work was really about creating a level playing field in worries that benefited consumers and workers, but also honest businesses.
42:21 Speaker 05 Do you have a view of the president's firing of the two democratically appointed commissioners? And the legality of that and how that will play out?
42:31 Speaker 06 Well, the president's firing of Commissioner Bedoya and Commissioner Slaughter is directly and clearly in contravention of prevailing Supreme Court precedent. In Humphrey's executor, you had FDR fire an FTC commissioner. And ultimately, that FTC commissioner sued and said, hey, look, the FTC Act says we can only be fired for malfeasance, inefficiency, neglect of duty. None of those things is being charged here. And ultimately, the Supreme Court held that those removal protections in the FTC Act were lawful, were legal. Since then, the Supreme Court has had several opportunities to revisit Humphrey's executor,
43:13 Speaker 06 including cases implicating the CFPB and their removal protections of the CFPB director, which ultimately were changed. And the court has, you know, stuck by Humphrey's executor, no matter what kind of dicta they may have been in various types of footnotes. So the law of the land is Humphrey's executor, and the administration's decision to fire these two commissioners is clearly at odds with that. I know they have filed suit. They are contesting their firing. There are also some parallel cases involving the firing of NLRB commissioners. So we're going to have to see how this shakes out. But it's, there's no debate around the fact that Humphrey's executor, the law of the land, says one thing, and the administration has done another.
43:54 Speaker 05 But do you believe that will remain the law of the land?
43:57 Speaker 06 I don't know. I mean, you know, clearly this is-
43:59 Speaker 05 Roe v. Wade was the law of the land for a while, too.
44:02 Speaker 06 Yeah, sure. Yeah, the Supreme Court is very comfortable revisiting precedent and, you know, throwing out the window, even a 90-year-old precedent in this sort of way. So I don't know. I don't know what's going to happen. I do think there are strong arguments for why these removal protections are not only good, but lawful, but we'll have to see what happens.
44:21 Speaker 05 What do you think of the new chair? And how do you think that this reconstituted, partly constituted FTC will handle issues? And what their priorities will be for the next three and a half years?
44:35 Speaker 06 Well, you know, the current FTC, as well as the antitrust division, has continued with several of the initiatives that we had pursued on the antitrust front. You know, we had promulgated new merger guidelines, for example, that laid out a more rigorous approach to viewing whether a merger would violate the Clayton Act. They had kept those on the books despite a lot of speculation from the deal making community that those would be rescinded right away. We have major lawsuits against not just Amazon, but also Facebook. There's a current trial underway. There was a lot of speculation as well as reporting that Mark Zuckerberg was trying to convince the administration
45:19 Speaker 06 to pull the suit, to settle the suit on the eve of trial. They did not do that. They are still litigating that case. So again, we are seeing a whole bunch of continuity. I do worry about the consumer protection side. That is where we have seen some real retrenchment. And I do worry that we're going to see, you know, people suffer all sorts of unfair deceptive practices if this FTC becomes much less vigilant. For example, they just decided to delay a rule that was set to go into effect last week. This is a rule that would require that companies make it as easy to cancel a subscription as it is to sign up for one, taking issue with a lot of these unfair and deceptive subscription traps that have proliferated.
46:04 Speaker 06 We had finalized this rule last October. The rule was set to go into effect last week. And then they just announced on the eve of it that they were going to delay it by another two months. I don't know what's going on there. And we'll have to kind of monitor closely to make sure we don't see further retrenchment there, too.
46:20 Speaker 05 What's next for you?
46:22 Speaker 06 Well, you know, I'm figuring out what is the next phase of a lot of this work and movement. You know, the, the speed with which a lot of this work went from kind of reformist ideas on the outside to being given the opportunity to govern was breathtakingly fast. So there is actually still a lot of work and infrastructure to be built. One thing that I'm really excited about is just the enormous amount of energy and enthusiasm among young people for this work. I get dozens of emails weekly about, you know, even from high schoolers who say, you know, they want to be a trust buster and are studying Ida Tarbell, let alone from college students and law students who really want to enter the arena and, and make sure we're
47:06 Speaker 06 using the laws to take on illegal monopolies and check unfair methods of competition. And so I'm going to be figuring out how do we make sure we can fully harness and direct that energy so that if there is another opportunity, we have a real standing army to, to kind of be ready to, to come in and help with that.
47:23 Speaker 05 You use the word arena. Was that a deliberate callback to Teddy Roosevelt?
47:27 Speaker 06 Not deliberately, but maybe some consciously.
47:30 Speaker 05 Oh, my gosh, is this on your brain? Teddy Roosevelt is on your brain.
47:38 Speaker 05 I've been very generous with your time, Lina Khan. It's been a real pleasure to speak with you. Thanks so much.
47:42 Speaker 06 Thanks for having me.
47:48 Speaker 05 My conversation with Lina Khan continues for members of the Cafe Insider community. In the bonus for insiders, we discuss how companies grow into monopolies.
47:58 Speaker 06 In order to be able to exploit your monopoly power in mode two, you need to figure out how to keep out competitors.
48:05 Speaker 05 To try out the membership, head to cafe.com/insider. Again, that's cafe.com/insider. Stay tuned. After the break, I'll answer your questions about the proper qualifications to become Surgeon General, Kid Rock's restaurant, and Bruce Springsteen.
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49:47 Speaker 05 Now, let's get to your questions.
49:52 Speaker 05 This question comes in a tweet from Lillian, who asks, "How can someone be nominated to be Surgeon General with no medical license?" And the record will reflect that the question has three question marks. Thanks for the question, Lillian. You're referring, of course, to the controversial appointment of Dr. Casey Means to be Surgeon General. After Means's appointment was announced, the internet, as it is wont to do, exploded with articles dissecting whether she is eligible for the role. So it's a good question, but first, let's take a look at what the Surgeon General actually does. Most of us know the Surgeon General from health warnings on products like cigarettes, but the position encompasses far more than that, though not surgery.
50:34 Speaker 05 The Surgeon General technically serves as the operational leader of what's called the U.S. Public Health Service Commissioned Corps, one of America's eight uniformed services. Its primary mission is to protect, promote, and advance public health and safety across the country. Their responsibilities include things like providing healthcare to medically underserved communities, preventing and controlling diseases, and ensuring the safety and effectiveness of drugs and medical devices, just to name a few. In prior episodes of Stay Tuned, if you've listened, you know that we've discussed appointed positions like the Attorney General and Supreme Court Justice. Under the laws that authorize those appointments, there are no specific professional qualifications required, which may seem odd.
51:17 Speaker 05 But the Surgeon General is different. There, the law actually outlines the qualifications an appointee must meet. The law states, "The Surgeon General shall be appointed from individuals who, one, are members of the regular corps, and, two, have specialized training or significant experience in public health programs." So to go to your actual question, does Dr. Casey Means meet those qualifications? Well, let's see. Dr. Means arguably has an unconventional medical background. According to NPR, she earned her medical degree from Stanford University, but left her surgical residency partway through, citing, among other things, her disillusionment with mainstream medicine. She went on to open a functional medicine practice, a form of alternative medicine,
52:02 Speaker 05 and later co-founded a company called Levels, which focuses on continuous glucose monitoring. So although she didn't complete her residency, she did complete enough postgraduate training to qualify for a medical license in the state of Oregon. However, according to public records, that license is at this moment, while her nomination is pending, inactive. So does Dr. Means meet the first legal requirement, being a member of the regular corps, the formal name for the Public Health Service Commissioned Corps, which the Surgeon General is supposed to oversee? Now, in the past, some Surgeon General appointees were not already members of the Corps, but they used a workaround. They were first appointed to the Corps just before being named Surgeon General. But that loophole may not work in Dr. Means's case.
52:46 Speaker 05 To be appointed to the regular Corps and to even utilize the loophole, you need a valid medical license. And Dr. Means's license in Oregon, as I mentioned, is currently inactive and needs to be renewed, which can sometimes take a while. And does she meet the second requirement requiring specialized training or significant experience in public health programs? Well, she does have a medical degree, and she does have experience running a functional medicine practice. But is that enough? Well, I'm a lawyer, not a physician, but some physicians, including former surgeons general, have said it's not enough. So based on the law and past precedent, unless Dr. Means can demonstrate sufficient public health experience and probably quickly renew her
53:30 Speaker 05 medical license, she probably doesn't meet the qualifications to serve as surgeon general. But will the Trump White House try to push the nomination through anyway? That remains to be seen. Stay tuned. This question comes in an email from Rick, who writes, "Last weekend, Kid Rock temporarily shut down his Nashville Steakhouse because many of his workers are undocumented and didn't show up for work because they were scared of ICE raids. But why is law enforcement targeting the undocumented workers and not their employers? Shouldn't they be held accountable? Isn't it illegal to hire undocumented workers?" That's a great question, Rick, and I want to state at the outset that Nashville has
54:14 Speaker 05 become one of my favorite cities in the country, and I've actually been briefly, briefly, to Kid Rock's restaurant. So in any event, I believe you're referring to a recent report in the Nashville scene about a wave of temporary restaurant closures across that city due to fears of ICE raids. One of the most notable was Kid Rock's restaurant, which is, of course, called Kid Rock's Big Ass Honky Tonk Rock and Roll Steakhouse. It reportedly shut down last Saturday, typically its busiest night, because many of its workers who are undocumented stayed home out of fear of being detained. Interestingly, the article makes no mention of ICE investigating the owners or management of the restaurants for hiring undocumented workers in the first place, which is probably
54:59 Speaker 05 what sparked your question. So Rick, if you take a look across presidential administrations, different presidents have approached illegal immigration enforcement in different ways. Some have focused primarily on punishing undocumented immigrants themselves, believing it would deter others from entering illegally. Others have emphasized targeting employers, arguing that holding businesses accountable for hiring undocumented workers would be more effective and also be a deterrent. Because if there are no jobs available, immigrants would lose the main incentive to come here illegally. Now, George W. Bush's administration focused primarily on the immigrants, conducting numerous workplace raids aimed at arresting and deporting undocumented workers.
55:41 Speaker 05 The Obama administration took a very different approach. Obama's team moved away from workplace raids, instead opting for what they called "paper raids", which were audits of employer paperwork to verify compliance with employment eligibility laws. Under Obama, the number of physical workplace raids dropped sharply, while paperwork audits increased significantly. These audits resulted in consequences for employers. One paperwork raid led to a $1 million fine against Abercrombie & Fitch for failing to properly verify their employees' eligibility. The Biden administration continued in the same vein. Now, Donald Trump's two administrations, on the other hand, took the George W. Bush's policy of workplace raids
56:25 Speaker 05 and turned them up to 11. Trump has focused primarily on immigrant workers rather than employers, often conducting highly-publicized, attention-grabbing operations, like the ones we've recently seen making headlines, including in the Nashville scene. So Rick, to answer your original question, yes, the law clearly allows for punishing employers who hire undocumented workers, and that's been done in the past. However, I doubt that this administration plans to aggressively pursue those penalties, and I think even less likely against Kid Rock, given his vocal support of Donald Trump. By the way, what did Kid Rock have to say about this story? Kid Rock himself responded by saying, quote, "I 100% support getting illegal criminals
57:07 Speaker 05 out of our country, no matter where they are," end quote. So, you know, one might be able to say to Kid Rock, "Listen, it was your restaurant's management who chose to hire those quote-unquote 'illegal criminals' to work in your kitchen and might have broken the law when it did so." And you could also ask him, "When will you hold those people accountable, since the restaurant has your name on it?" This question comes in a tweet from Hannah, who asks, "Can you please break down Trump's latest rant about Bruce Springsteen? #AskPreet." Well, Hannah, based on the timing of your tweet, because there have been a couple of things that Trump has said about Bruce Springsteen, but based on the timing of your tweet, I
57:49 Speaker 05 assume you're referring to Trump's post on Truth Social, where he called Bruce Springsteen things like "highly overrated," "a pushy, obnoxious jerk," and "a dried-out prune of a rocker." My response is this: Who are you calling a dried-out prune, you [bleep]? Let me say also, compared to Bruce Springsteen, you're a [bleep]. And finally, [bleep]. Now, more seriously than childish name-calling, after you tweeted this, Hannah, Donald Trump put out a post that says he wants to order a major investigation of Bruce Springsteen for reasons that don't make much sense.
58:33 Speaker 05 If you want to hear a substantive conversation about that threat, that crazy threat by the President of the United States against the boss, Joyce Vance and I did a livestream for Substack, which you can find for free on Substack or on our YouTube page.
59:01 Speaker 05 Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Lina Khan. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Blue Sky, or you can call and leave me a message at 833-997-7338. That's 833-99-PRIET. Or you can send an email to [email protected] .
59:43 Speaker 05 Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamaris Sepper. The technical director is David Tadashor. The deputy editor is Celine Rohr. The editorial producers are Noah Azalai and Jake Kaplan. The associate producer is Claudia Hernandez. And the Cafe team is Matthew Billy, Nat Weiner, and Leanna Greenway. Our music is by Andrew Dost. I'm your host, Preet Bharara. As always, stay tuned.
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