The Legacy of Biden's Anti-Monopoly Enforcers Will Endure

By Helaine Olen, Managing Editor

Donald Trump entered the White House seemingly determined to wipe out as much of the Biden legacy as he can as quickly as possible. But when it comes to the anti-monopoly movement, undoing the memory of the past four years will be more complicated than simply saying, “No more.”

Thanks to the combination of AAG Jonathan Kanter and Acting AAG Doha Mekki at the Department of Justice Antitrust Division, Lina Khan at the Federal Trade Commission, and Rohit Chopra at the Consumer Financial Protection Bureau, the Biden administration offered up the the most aggressive anti-monopoly enforcement in half a century, demonstrating what what responsible government and serving in the public interest actually looks like in practice. As a result, the Trump administration could find its bit off more than it bargained for if it attempts to do a complete 180 — or even if it makes sweetheart settlements with the tech giants and other giant corporations pursued by Biden’s anti-monopoly regulators.

Americans are increasingly leery of big business. Gallup’s annual survey tracker found that last year, more than 70 percent of Americans said they were dissatisfied with the size and influence of major corporations—little wonder. Corporations have been behaving with near impunity for decades.

Biden’s antitrust regulators got in their way. Their vigorous enforcement came as an unwelcome surprise to corporations, used to a hands-off approach to regulation that allowed them to get away with both abusing their customers and trampling over smaller businesses in the pursuit of profit.

Take 2022’s infamous Ticketmaster imbroglio. Everyone might hate Live Nation-Ticketmaster – as I once wrote – but it was Kanter’s office that took the complaints of Taylor Swift music fans seriously after they found themselves gouged when they sought to buy tickets to her Eras tour. The Justice Department, already investigating the large company when Ticketmaster turned itself into a national cause celebre, sued the dominant live entertainment monopoly in 2024, seeking to break up the company. Live Nation-Ticketmaster’s dominance doesn’t only impact concert goers, but it also gives the company a stranglehold over the live entertainment business, putting pressure on musicians and rival venue owners alike. The contretemps introduced millions of Americans who didn’t follow the news of day-to-day politics to the anti-monopoly cause. (If you want to nerd out on the legal solutions, read our paper, “The Case Against Live-Nation Ticketmaster.”)

Ticketmaster was, of course, hardly the only antitrust lawsuit. The DOJ Antitrust Division filed a groundbreaking case against housing software algorithm RealPage and six of the nation’s biggest landlords, alleging the software company effectively acted as a collusion tool for landlords, allowing them to cooperate in setting prices and was, in part, responsible for the fact the rent, for all too many of us, is too damn high.

Then there is the Biden-era record on taking on the technology giants. The Trump administration initially filed a lawsuit against Google in 2020, alleging the company’s payments to Apple and other companies allowed it to maintain an illegal monopoly over search. The Justice Department’s Antitrust Division successfully prosecuted that case and has since sought to force the company to sell its Chrome browser. Not done, the Antitrust Division, with a bipartisan group of state attorneys general, sued Google again in 2023, claiming it maintained an illegal monopoly over digital advertising, and a ruling is expected this year. They also filed a case against Apple, while the FTC, along with 18 states attorney general, is suing Amazon, alleging it uses anticompetitive strategies to maintain dominance over the online marketplace.

If you want an explanation for why tech oligarchs threw their support behind Trump, these lawsuits are a good place to start. Another would be over at the Consumer Financial Protection Bureau, where Director Chopra kept a relentless eye on financially protecting Americans, sometimes taking on the tech giants his mission. (In fact, Mark Andreesen’s ire at the agency quite possibly originates in the fact it took out a dodgy Silicon Valley lending platform called LendUp, which Andreesen was invested in via his eponymously named venture fund Andreessen Horowitz.) As I wrote late last year:

Under Chopra, the CFPB has moved in on the Wild West environment of digital payment and wallet apps, including Venmo and PayPal, Google, and Apple. It has subjected them to federal oversight and issued regulations governing their behavior regarding fraud — not dissimilar to how traditional banks are treated.

At the same time, Chopra monitored financial abuses by big banks and credit bureaus, even as the Biden administration ended. He coined the now ubiquitous term “junk fees,” which he used to describe credit card late fees exceeding $30—which he capped for the largest issuers at $8.

But nowhere, perhaps, is America’s disillusionment with big business easier to see than in the healthcare sector. Biden’s antitrust warriors brought public attention to the baleful influence of Pharmacy Benefit Managers—organizations that began as a way to save consumers money on prescription medicines but are now consolidated under the ownership of healthcare monopolies and are running up our medical bills—on our pocketbooks and medical care.

Under the leadership of Khan, the FTC began investigating PBMs and published multiple reports on them, showing how they contributed to the soaring price of pharmaceuticals. The most recent, released last week, found that the three largest PBMs generated more than $7.3 billion in profit between 2017 and 2002 by marking up generic drugs needed to fight cancer and HIV, among other illnesses. The movement to reign in pharmacy benefit managers is now a bipartisan one in Congress. Late in the last session, legislation demanding healthcare conglomerates sell their PBMS within three years was co-sponsored by Democratic Sen. Elizabeth Warren and Republican Senator Josh Hawley.

The other antitrust enforcers took action in the healthcare space, too. In the last week of the Biden administration, Chopra banned the mention of medical debt on credit reports. The CFPB made the common sense point that people hardly rack up hospital bills because they are irresponsible shoppers. Moreover, 40 percent of medical debt isn’t even accurate. Patients might well be paying bills they don’t owe, fearing the consequences of a credit report ding. In any other circumstance, we’d call this a shakedown. As for Justice, it was reportedly investigating United Healthcare for a range of monopoly law violations.

Meanwhile, Khan was aggressively revamping the FTC, which had gone from a New Deal-era marketplace watchdog to a neo-liberal era corporate lapdog. The agency collaborated with the Justice Department to revise the Hart-Scott-Rodino reporting requirements for companies seeking to merge, giving the federal government more information to determine whether a proposed merger could result in an illegal monopoly (While the incoming Trump administration could seek to hit pause, it seems unlikely, as the FTC voted unanimously in favor, with commissioners of both parties giving the thumbs up to the changes).

The FTC was aggressive about enforcing “Made in the USA” rules. It looked out for America’s kids, filing a lawsuit against Epic Games for tricking kids playing its Fortnite video game into making purchases, ultimately securing a $245 million settlement, which it used, in part, to refund consumers. It banned most non-compete employment contracts, now tied up in the courts and subscriptions that were all but impossible to cancel. And the waning days of the Biden administration, the FTC filed a lawsuit against farm giant John Deere, alleging it forced farmers – in violation of FTC regulation – to get broken company products fixed by the company or company-authorized repairmen. Though it’s worth noting Andrew Ferguson, the Republican Commissioner who Trump nominated to succeed Khan, voted against it.

The Khan era FTC also racked wins in court. It successfully blocked the merger of grocery store giants Kroger and Albertsons, which would have created not just the largest supermarket chain in the United States but one so dominant it could have pushed up grocery store prices for many communities. Khan also bagged another victory when the FTC successfully fought off what was derisively called “Big Handbag,” a proposed merger between Tapestry, the parent company of such popular handbag brands as Coach and Kate Spade, with Capri Holdings, which owns the Michael Kors fashion line. The merged company would have controlled more than 50% of the market for the so-called accessible luxury handbag market. Critics scoffed, seemingly unable to take women’s concern seriously, but the judge hearing the case found the logic compelling. “Antitrust has come into fashion,” she declared, while citing the DOJ and FTC’s 2023 Merger Guidelines in her decision.

It has, indeed. When companies – healthcare conglomerates, technology giants, or simple goods providers – fail to deliver or satisfy, Americans often look to the government to solve the problem. If that doesn’t happen, it breeds cynicism and anger. Democrats seeking a way back to power as well as Republicans hoping to remain in office would be wise to heed this lesson.

Democracy, it turns out, isn’t simply about the right to free speech and adhering to constitutional norms. It’s also about ensuring we are all treated fairly. The anti-monopoly movement does that and it’s why it’s legacy will resonate and endure.