On March 5, 2024, the White House announced the establishment of a new “Strike Force on Unfair and Illegal Pricing” (the “Strike Force”) stating that the Biden administration will hold accountable “corporations . . . when they try to rip off Americans . . . while keeping prices high.” Business media gave wide coverage to the announcement and quoted the heads of the Department of Justice (DOJ) and Federal Trade Commission (FTC), who will co-chair the Strike Force, as saying that aggressive price enforcement is coming. However, as the end of the month of its announcement approaches, the Strike Force has taken little action, details remain scarce, and even the makeup of the Strike Force remains undisclosed. We predict that the Strike Force will be only an incremental continuation of Biden administration antitrust and pricing actions, not a major enforcement expansion or change of policy.
Big Quotes, Few Details
The Biden administration announced the Strike Force as a single paragraph in a longer White House Fact Sheet that discusses several actions by the President’s Competition Council. The previous day, the Strike Force co-chairs gave quotes to the media: FTC Chair Lina Khan said, “We’re excited to be co-chairing the president’s new Strike Force on Unfair and Illegal Pricing, which builds on the FTC’s far-reaching work to promote competition and tackle unlawful business practices that are inflating costs for Americans”; and DOJ Antitrust Division head Jonathan Kanter said “Here at the Justice Department, we are confronting some of the world’s most powerful corporations so that we can improve the lives of American families.”1 As of this writing, no other members of the Strike Force have been disclosed, and the administration has not explained how the Strike Force will differ from previous enforcement efforts. The announcement explained only that:
This Strike Force will strengthen interagency efforts to root out and stop illegal corporate behavior that hikes prices on American families through anti-competitive, unfair, deceptive, or fraudulent business practices. DOJ and FTC, along with other agencies on the Strike Force, will focus their collaborative efforts on key sectors where corporations may be violating the law and keeping prices high, including prescription drugs and health care, food and grocery, housing, financial services, and more.2
Increased Focus on Pricing
If there is anything new here, it is a more intense focus on price increases and high profits, as opposed to general unfair or deceptive conduct. In remarks that accompanied the release of the Fact Sheet, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra stated, “Whether it’s a credit card bill, Internet bill, grocery bill, or anything else in a monthly budget, President Biden has been focused on promoting competition, lowering costs, and stopping profiteering.”3 President Biden followed those remarks by saying, “Here’s what’s happening [with inflation]: The pandemic disrupted the supply chains . . . It drove up costs on everything from smartphones to automobiles. But . . . now those costs . . . have come down, but the prices haven’t come down. They’ve stayed up. They’ve stayed high, and the profits have soared. And it’s time for those prices to come back down.”4 “[E]ven as supply chains are back to normal,” said the President, “some companies are still not passing along the savings to their consumers. Many corporations are raising their prices to pad their profits, charging folks more and more for less and less.”5 If the Strike Force primarily targets industries where price hikes have been notable, that would fit a recent Biden administration pattern.
Continued Scrutiny of Health Care and Housing Sectors
The same day the President established the Strike Force, the FTC, DOJ, and HHS announced a “cross-government public inquiry into private equity and other corporations’ increasing control over health care.”6 This announcement follows a long line of interagency work in the health care space, such as DOJ’s Memorandum of Understanding with the Department of Health and Human Services (HHS) and HHS’s recent appointment of its first Chief Competition Officer.
The administration also continues to focus on the housing industry. Over the last several months, the DOJ filed “statement[s] of interest” in multiple consumer class actions brought against multifamily property owners and/or managers and certain technology companies.7 And in the State of the Union address, President Biden specifically mentioned antitrust enforcement in the rental market.8
Pricing Cases Remain Difficult to Enforce
High prices and high profits alone — however they may be defined and regardless of the industry — have never been enough by themselves to establish an antitrust violation. “Profiteering” and excessive pricing are not recognized legal theories under federal law, and the Supreme Court in the recent past has reversed a plaintiff’s judgment that was based on jury instructions about “higher price[s] . . . than necessary” and “fair price.”9 One of the more famous case quotes in antitrust is Judge Learned Hand’s statement, “[t]he successful competitor, having been urged to compete, must not be turned upon when he wins.”10 Such “winning” has always been understood as the ability to set whatever price the market will bear. Although the Biden administration has advanced a number of novel pricing and antitrust theories,11 courts have been skeptical, and case law has remained largely stable.
Given these realities, the creation of the Strike Force is unlikely to herald a sea change in enforcement. But pricing rhetoric may signal somewhat increased scrutiny — particularly in an election year — and it should be noted that high profitability does have an official place in antitrust analysis. The federal courts have long defined “market power” as the ability to keep prices higher or output lower than the “competitive level,”12 and Biden administration officials ranging from antitrust enforcers to parts of the Federal Reserve13 continue to use that test. Determining the competitive level is always an industry-specific, fact-intensive process, but historical profitability is one of the elements. There is some danger that historically high levels of profitability could lead agencies to allege market power, and market power is a key threshold condition for many antitrust claims. Accordingly, companies with historically high profits should take note of the Strike Force and the Biden administration’s concerns, and should take particular care to avoid conduct that could be alleged to be anticompetitive.
1 Rebecca Picciotto, Biden to launch joint FTC-DOJ task force to crack down on ‘unfair and illegal pricing’, CNBC (Mar. 5, 2024), https://www.cnbc.com/2024/03/05/biden-to-launch-joint-ftc-doj-task-force-to-crack-down-on-unfair-and-illegal-pricing-.html
2 Press Release, White House, Fact Sheet: President Biden Announces New Actions to Lower Costs for Americans by Fighting Corporate Rip-Offs (Mar. 5, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/05/fact-sheet-president-biden-announces-new-actions-to-lower-costs-for-americans-by-fighting-corporate-rip-offs/.
3 Remarks by President Biden and Members of the Competition Council Announcing New Actions to Lower Costs for Hardworking Families by Fighting Corporate Rip-offs, The White House (Mar. 5, 2024), https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/05/remarks-by-president-biden-and-members-of-the-competition-council-announcing-new-actions-to-lower-costs-for-hardworking-families-by-fighting-corporate-rip-offs/.
4 Id.
5 Id.
6 Press Release, Fed. Trade Comm’n, Federal Trade Commission, the Department of Justice and the Department of Health and Human Services Launch Cross-Government Inquiry on Impact of Corporate Greed in Health Care (March 5, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/03/federal-trade-commission-department-justice-department-health-human-services-launch-cross-government.
7 See Statement of Interest of the United States, McKenna Duffy v. Yardi Sys., Inc., No. 2:23-cv-01391-RSL (W.D. Wash. Mar. 1, 2024), Dkt. No. 149 (the FTC also signed onto DOJ’s Statement of Interest in this case); Statement of Interest of the United States and Memorandum of Law in Support of the Statement of Interest of the United States, In Re RealPage, Inc., Rental Software Antitrust Litigation (No. II), No. 3:23-md-3071, Dkt. Nos. 627, 628 (M.D. Tenn. Nov. 15, 2023).
8 Remarks of President Joe Biden – State of the Union Address As Prepared for Delivery, The White House (Mar. 7, 2024), https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/07/remarks-of-president-joe-biden-state-of-the-union-address-as-prepared-for-delivery-2/.
9 Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312, 317 (2007).
10 United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945).
11 The agencies have advanced some of these theories with respect to information sharing allegedly affecting pricing in their statements of interest in Yardi Systems (Dkt. No. 149) and In Re RealPage (Dkt. Nos. 627, 628), in addition to several enforcement actions. See, e.g., United States v. Cargill Meat Sols. Corp., No. 1:22-cv-01821 (D. Md.) and United States v. Agri Stats, Inc., No. 0:23-cv-03009 (D. Minn.).
12 Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 235 (1993); see also Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 109 (1984) (“Market power is the ability to raise prices above those that would be charged in a competitive market.”).
13 Chen Yeh, How Costly Is Rising Market Power for the U.S. Economy?, Fed. Rsrv. Bank of Richmond (July 2023), https://www.richmondfed.org/publications/research/economic_brief/2023/eb_23-24.
