Antitrust Nominee Eyes EU Efforts to Clamp Down on U.S. Tech Firms

Makan Delrahim, President Donald Trump’s nominee to lead the antitrust division of the Department of Justice, spoke Wednesday about the need to change how antitrust laws are enforced abroad.

In an abbreviated confirmation hearing shared with two other Justice Department nominees, Delrahim pointed to his prior experience heading up international antitrust applications in the department during the George W. Bush administration. Asked by Sen. Mike Lee (R-Utah), who chairs a subcommittee on antitrust issues, what he would do differently in his role, Delrahim said he would focus on stopping U.S. companies operating abroad from being treated unfairly.

That approach could benefit companies like Apple and Google Inc., which the European Union is targeting for what it calls anti-competitive behavior.

“One of the greatest exports out of the United States has, unfortunately, been antitrust laws,” Delrahim said. “We now have over 130 agencies around the world who are new to the antitrust regime. I’ve heard reports that there might be protectionism or discrimination in the application of the laws, to U.S. companies in particular.”

Delrahim has the support of some former Obama administration officials.

“What we have seen is that there are certain foreign competition authorities that are using the antitrust laws to advance protectionist agendas and policies,” said Jim Tierney, former chief of the DOJ’s Networks and Technology Enforcement Section and now a partner at Orrick, Herrington & Sutcliffe LLP specializing in antitrust and competition law, via phone interview Wednesday. Tierney once oversaw all civil antitrust enforcement in the tech sectors. “That’s a misuse of the antitrust laws, especially where they use the merger context to force companies to give up intellectual property rights.”

In his opening statement, Delrahim spoke of antitrust laws in hallowed terms.

“Hard-nosed competition, free from inappropriate restraints, leads to lower prices, higher quality of goods and prices for the American consumer, and it also helps encourage technological innovation,” he said. “The Supreme Court has recognized the Sherman Act as the Magna Carta of the free enterprise system.”

But Delrahim’s previous statements and history of lobbying on behalf of telecom companies have made him suspect in the eyes of activists concerned about the pending $85 billion merger between AT&T Inc. and Time Warner Inc.

Like the other nominees before the committee, Delrahim swore he would conduct his duties without political influence.

Martin Gaynor, an economics professor at Carnegie Mellon and former director of the Federal Trade Commission’s bureau of economics, said in a phone interview Wednesday that, by all accounts, Delrahim is supremely knowledgeable and qualified. But he’s hoping Delrahim can keep his promise, given the current political environment.

“With the Trump administration, the question is really the independence of a nominee and whether they’ll go where the evidence takes them,” Gaynor said. “I would hope that that Delrahim will do what he and the antitrust division thinks [sic] best and not what the president or someone in Congress has to say.”

Morning Consult