0:00

Leah, where have

0:04

we reached you? I

0:08

am hiding on the fourth floor of

0:10

the DC District Courthouse during

0:13

a lunch break in USB Google.

0:18

Leah Nyland is a reporter for Bloomberg

0:21

News who covers antitrust. She's

0:24

also kind of my lawsuit buddy, the

0:26

person who helps explain what it means

0:28

when the government files a case against big tech,

0:31

which has happened a lot lately with

0:34

Google and Amazon and yet

0:36

again, Amazon. I

0:38

mean, I feel like at this

0:41

point, I have you on antitrust

0:44

speed dial. Yeah, I

0:47

don't mind, you know. Leah

0:49

was kind enough to take a break from one antitrust

0:52

case to talk to us about another.

0:53

The suit the Federal Trade

0:55

Commission and 17 states filed

0:58

this week against Amazon, saying

1:00

the company broke the law in order to

1:02

keep its monopoly position in e-commerce.

1:05

Where does it stack up in the pantheon

1:08

of big tech cases? I

1:10

have been telling people that we can't call USB

1:13

Google like the antitrust trial of

1:15

the century anymore because now we have

1:17

FTCV Amazon and that might, you

1:20

know, displace it. I don't know.

1:25

Would you say this is the case that Lena Khan has been

1:28

waiting for? This is definitely

1:30

the case that Lena Khan has been waiting for. She

1:34

has been making the media rounds a little bit

1:36

this week, which she doesn't do that

1:38

often. So, you know, it was a little

1:40

bit special and

1:43

talking a lot about why they think

1:45

that this is like a really important

1:47

landmark case for them to bring and how

1:49

it's actually different from the paper

1:51

that she sort of rose to fame

1:54

after writing in 2017.

1:58

Back in 2017, Lena Khan

2:00

was just a law student writing in the

2:02

Yale Law Journal about Amazon and antitrust.

2:06

Now, she's the chair of the FTC

2:08

and the company is in her sights. Today

2:11

on the show, FTC versus Amazon

2:14

could change everything. How you

2:16

and I shop, that the company does,

2:18

even whether it gets the stay in one piece.

2:21

I'm Lizzie O'Leary and you're listening to What

2:23

Next TBD, a show about technology,

2:26

power, and how the future

2:27

will be determined. Stick around.

2:37

The FTC's lawsuit

2:39

is big and it's broad. The

2:41

suit alleges that Amazon is a monopoly

2:44

in two different but equally

2:46

important ways.

2:47

One of them is online marketplace

2:50

services. So that is websites where

2:53

third party sellers, just about anyone,

2:55

can go online and sell products.

2:58

That's going to be things like Amazon, things

3:00

like Etsy, things like eBay,

3:03

a site where

3:04

you can go and sell your goods to other

3:06

people.

3:07

The FTC alleges

3:09

that they have a very high share of that market

3:12

and that they have

3:15

illegally tied access to that

3:17

marketplace with another

3:19

of Amazon's services called

3:21

Fulfilled

3:22

by Amazon. This is the

3:24

sort of logistics service that Amazon

3:26

offers to sellers where they'll do

3:28

the warehousing and all of the shipping and such

3:31

for them for a fee.

3:32

The other half of this suit centers

3:35

around something called an online superstore.

3:38

The fact that you can go to Amazon and get

3:40

a pair of shoes, but also cleaning

3:42

products, send a book, and oh wait, we need dog

3:44

food,

3:45

that kind of thing.

3:47

It's much more convenient for you to do

3:49

one-stop

3:49

shopping than it

3:51

is for you to have to go multiple places.

3:54

This actually fits in

3:56

with a long line of the FTC's cases. They have

3:58

often argued that in

3:59

know, one stop shopping is important,

4:02

for example, in a supermarket, right?

4:03

Like you go to the supermarket

4:05

because you want to buy your cereal and your

4:07

milk and your vegetables, as opposed to

4:09

just going to like the butcher where you can only

4:11

get meat. So it's sort of like an

4:13

interesting evolution

4:14

of like the offline

4:16

world to the online world that you might want

4:18

one place online where you can get all this stuff.

4:21

And they say that, you know, by being the online

4:24

superstore, Amazon has had this ability to

4:26

raise prices on consumers and

4:28

sellers who want to be offered in the superstore.

4:30

They had an interesting statistic

4:33

that one out of every $2 that

4:36

sellers

4:36

on the platform

4:38

make, they now pay to Amazon because

4:40

they have to pay for a

4:42

commission for being on the site. They have to pay

4:45

for logistics and shipping.

4:47

They have to pay for advertising to even be

4:49

found on Amazon's site. And so the fees

4:52

that sellers have had to pay on Amazon

4:55

have just increased a lot over time.

4:57

That was something that struck me in what

5:00

Lena Kahn had to say to reporters. It sounded like she

5:02

was saying,

5:02

this isn't just a monopoly in

5:05

the way that it's bad for consumers, but it's also

5:07

bad for the small businesses, the sellers,

5:10

what have you that are working with Amazon.

5:12

Yeah. And that's a little bit of an evolution

5:15

that she has brought to it too, because oftentimes

5:17

the antitrust enforcers have focused very, very

5:20

much on consumers. Like does this raise

5:22

consumer prices? And

5:25

by bringing the sellers into it, they're saying,

5:27

look, those are people who are also buying Amazon

5:29

services. They're using Amazon's marketplace

5:32

services. They're raising the prices

5:34

to them, the sellers, who

5:36

in turn sort

5:37

of have to raise prices to consumers.

5:39

So the higher price for consumer is

5:41

still the end result, but

5:43

we're now focusing sort of on how this

5:46

company's behavior has also increased

5:48

prices to like the middlemen who are

5:51

selling those products to us anyway.

5:53

What does Amazon say to all this?

5:55

Amazon, unsurprisingly,

5:58

does not

5:58

think that this is a very good animal.

5:59

trust case.

6:02

You know they have argued that they

6:04

only highlight on their website what is

6:07

the lowest offer. So when you go to Amazon's

6:09

website and pick a product the thing

6:11

that's going to be there on the buy box is whatever

6:14

is the lowest price and that they

6:16

shouldn't be required to highlight

6:18

a higher price. So Amazon argues

6:20

that you know their entire thing is about focusing

6:23

on the customer. They want to offer consumers

6:25

the lowest prices and that's why they require

6:29

that

6:30

sellers not offer lower prices elsewhere.

6:32

If you want to sell on Amazon you have to offer

6:35

the lowest price that you can and

6:37

they're going to only you know show you

6:40

the lowest price. What it

6:42

is a slight nuance there is like Amazon's

6:46

price includes the price of the product,

6:49

the advertising and the shipping and

6:52

that's all wrapped up into the one price that you see.

6:54

What the sellers are saying is yeah but we might have

6:56

been able to get the advertising and the shipping

6:58

for cheaper elsewhere. That's why we can

7:00

sell on these other sites. We're not paying all

7:03

this extra money to Amazon. You

7:05

know listening to this I mean you are describing

7:08

Amazon's business model and

7:11

Lina Khan has not gone so far as to

7:13

say well break it up but

7:16

why that

7:17

kind of seems like that's the implication.

7:19

Yeah as I said

7:22

she made a lot of public comments this week

7:24

after the case was filed and

7:26

she was very mum on what exactly

7:28

they want to happen. So

7:30

the complaint lays out a set of tactics

7:32

that we believe are illegal and that are

7:34

illegally elevating and inflating

7:37

prices for the American people.

7:39

So at the very least any relief

7:41

would require that the company halt

7:43

those tactics but as I noted effective

7:46

relief also needs to be restoring competition

7:49

to this market which we'll

7:51

be asking the judge to do as well. So

7:53

in the suit itself it has this phrase

7:57

down at the end it says that they want structural relief.

8:00

which in antitrust lingo means that they want

8:02

to break up. But they won't say what exactly

8:04

it is that they want broken up. Is it that they

8:06

want Amazon to sell off its logistics

8:08

arm and just be a marketplace? Is

8:12

it that they think that some

8:15

of the things that Amazon

8:16

offers that are not sort of core to

8:18

the marketplace

8:18

should be broken

8:20

off? It's not very clear. And

8:23

so when people were asking her, well,

8:25

what is the remedy that you want here? And she's like,

8:27

we want Amazon to stop

8:29

using these illegal tactics, which,

8:32

okay. But

8:34

answer the question. Yeah.

8:37

Yeah, antitrust enforcers

8:40

love to say, yeah, well, we'll get to that down the

8:42

road. But you sort of do have

8:44

to have in mind when you bring a case what it is you

8:46

want to change. Otherwise,

8:48

that plays a lot into how you

8:50

frame the case, obviously, because the

8:53

judge is going to have to, at some point in time, decide

8:55

how to remedy this illegal conduct.

9:00

When we come back, who competes

9:03

with Amazon, the store down the street or

9:05

just the ones online?

9:12

I really want to dig into this online marketplace

9:14

question because one of the central

9:17

things here in this case is just how

9:19

much of the market Amazon controls.

9:23

And that seems to depend a lot on

9:26

how you define the market. Can

9:28

you unravel that for me a little bit?

9:30

Yes, this is such

9:32

an antitrust question. What is our market here?

9:35

Because Amazon says,

9:37

well, if you consider us as

9:40

just a retailer, we only have like 1%

9:43

of all retail. And I'm

9:44

like, okay, but

9:47

you are 1% of all retail because

9:49

I can go down the street and buy shoes in person

9:51

at the Nike store. But you're

9:54

actually an online only seller. So if you

9:56

think of them as only online commerce,

9:59

their share goes up. even more. I think

10:01

there are about 30% of online sales in the

10:03

US. But then, as I said, if

10:07

you get into either this online superstore

10:09

or this online

10:12

marketplace services, we're talking about an Amazon

10:14

show that's much, much higher, maybe something in the 70s

10:16

to 80s, which

10:18

is sort of what we think of

10:20

as a monopoly. Under US law, there's not

10:23

actually a definition of what is a

10:25

monopoly. But people generally

10:27

think definitely above 50%, maybe

10:30

it requires about 60%. So if

10:32

we're talking something in the 70s to 80s,

10:34

that's definitely in monopoly territory.

10:37

But

10:37

it seems to depend on how you define store, basically.

10:40

Yes,

10:40

it depends entirely on how you define

10:42

a store and how you, whether you're

10:44

limiting it to online, whether it's online

10:47

and offline. Yeah, Amazon

10:50

keeps pointing out, you know, when you go to a supermarket,

10:52

nobody is upset that like, the

10:55

cereal company pays more to be on

10:58

the end cap or or, you know, the

11:00

specific eye level shelf. That's

11:03

sort of what we're doing. We're giving people

11:06

the opportunity to have advertising so that they

11:08

get seen first by the consumer. The

11:10

difference, of course, is if you're in a store,

11:13

you can like go to the next aisle

11:16

if you need to, to see the other types of

11:18

cereal, you don't have to like scroll 15 pages.

11:21

In one of your stories, you

11:23

noted that among other things, Amazon

11:25

basically forbids sellers from

11:27

offering lower prices on other

11:30

sites. And the

11:32

FTC says that hinders competition because

11:35

it means that sellers would have to raise their

11:37

prices on a different platform, say Walmart,

11:40

so that they wouldn't get buried in search results.

11:42

And I wonder, like, how does that part fit

11:44

into this antitrust argument?

11:47

Yeah, that's really interesting, because this is actually

11:49

what some of the state AGs had picked

11:51

up on before the FTC.

11:54

So a couple years ago, DC's Attorney General

11:56

had sued Amazon and then California's

11:59

Attorney General

11:59

already

11:59

has their own case against Amazon

12:02

that's ongoing.

12:03

And what they argued is

12:05

Amazon has this policy

12:07

that you can't sell for lower prices

12:09

elsewhere. You have to give whatever

12:12

is your lowest price on Amazon. It's

12:14

their low price guarantee that you can't get it

12:16

cheaper somewhere else.

12:18

But the FTC says because it's

12:20

adding on all of these additional fees,

12:22

the fee to sell on its platform,

12:24

the fee for advertising, the fee

12:26

for the logistics,

12:28

that's making the price go up. And because

12:30

people can't sell for cheaper elsewhere, it's

12:33

raising the prices across the internet, not just

12:35

on Amazon. So

12:38

we had some really interesting conversations with

12:40

some retailers about how Amazon

12:43

actually monitors their prices elsewhere.

12:45

And they get these alerts sometimes if

12:48

their price is lower, even by as

12:50

much as a nickel on another site. They'll

12:52

get these alerts rooms on being like, we found

12:55

a lower price elsewhere, and so we're

12:57

not going to give you the buy box anymore unless you

12:59

adjust your prices down by a nickel. And

13:02

oftentimes they can't. They have to

13:04

pay these fees on Amazon. That's the cheapest they can

13:06

offer it there. So what they do is they go and they raise

13:08

their price on the other website.

13:10

And so therefore, the

13:12

thinking goes, if you spin it out a bit, consumers

13:14

lose because the prices go up kind

13:17

of across the board.

13:18

Yes, that's the whole idea. If they

13:20

didn't have to pay all of these extra fees to Amazon,

13:23

if they could go with the cheapest logistics

13:25

option, the cheapest advertising

13:28

option, they could sell their products more cheaply.

13:31

And maybe it costs

13:33

five cents less to do that on this other website,

13:36

but because of Amazon, it costs five cents more.

13:38

And they're being penalized if Amazon finds

13:41

out.

13:41

If the government wins and

13:44

let's say the marketplace changes, do

13:46

we have any idea about how this might

13:49

impact consumers, people who shop on

13:51

Amazon all the time?

13:53

That was a question a lot of people ask about

13:56

the FTC chair, Lena Khan. And she said, we think that

13:58

this will

13:59

lead to low income. prices for consumers.

14:02

You know, they will be able to finally buy these products

14:04

online for the cheapest price, not just

14:07

under Amazon's low price guarantee, but because

14:09

on these other websites, it might be cheaper. We'll

14:12

sort of see, you know, a lot of retailers

14:15

use Amazon because it is like, it's

14:18

the online superstore where everybody goes, you

14:20

know, to do their shopping. I mean, it's

14:22

come up so much in this USB Google trial

14:24

about how many people start their

14:26

searches for products on Amazon versus

14:29

back in the day you might have gone to Google first. You

14:32

know, so it is certainly a gateway

14:34

to a lot of commerce.

14:37

You're sort of also raising the question of like, how

14:39

the public is going to think about this.

14:42

And presumably, Amazon is also

14:44

thinking and maybe capitalizing on fears

14:47

of losing same

14:49

day delivery or the ease of

14:52

putting six different kinds of things

14:54

in your cart and clicking on them.

14:56

And I wonder, like,

14:58

do we have any sense of what people think

15:00

about this? Yeah, that

15:02

was interesting because I think most of

15:05

the like negative reactions, negative questions

15:08

that the FTC got about this were like

15:10

people fearing that like

15:13

the convenience provided by Amazon

15:15

might have to go away because it is really convenient

15:17

to be able to buy, you know, something

15:19

and know that it'll be there two days later. It is

15:22

super convenient to be able to go to one place

15:24

and get your

15:25

groceries and your electronics

15:27

and maybe, you know, even throw in some extra

15:30

hair bands or something, some diapers, whatever.

15:32

Yeah.

15:33

So you know, people

15:36

don't want that to go away. And you

15:38

know,

15:39

Lena Kahn said, you know, we don't want that to go

15:41

away either. Amazon has a great

15:43

business. It's very convenient for consumers.

15:45

But what we don't want them to do is engage

15:47

in these illegal tactics that make it harder for

15:50

other businesses to compete with them.

15:52

Every time I talk to you about one of these

15:54

big cases, whether it was the Google case or

15:56

this Amazon case, we bring

15:59

back the ghost.

15:59

of

16:01

USV Microsoft. And

16:03

Bill Gates was famously combative

16:06

during that entire process. What

16:09

are we expecting from Amazon

16:12

in terms of tactics here? Is this all

16:14

softly softly or are they coming out swinging? I

16:17

think Amazon is much more likely to come out swinging.

16:19

I mean, they have always been very

16:22

aggressive, both in their media strategy

16:24

and in their legal strategy on antitrust.

16:27

You know, the Europeans

16:30

have recently implemented some new legislation

16:32

that allows them to designate companies as

16:34

gatekeepers that have special responsibilities

16:37

in the market to not

16:39

preference their own products, things like that. Amazon

16:41

is challenging its designation as a gatekeeper

16:44

in Europe. You know, within

16:46

minutes of this lawsuit

16:48

being filed, Amazon said that

16:50

they thought it was wrong on the facts and the law and

16:53

they intend to vigorously contest it. So

16:55

I think we will see, you know, a

16:58

lot of heat

16:59

and litigation over

17:01

the next couple of years.

17:02

The one interesting thing that Lena Khan

17:05

did say is that they feel the urgency

17:07

of this. You know, their investigation

17:09

went on for four years. It's

17:12

not really new any of the things

17:14

that they were alleging with Amazon. They

17:16

said they want to move this quickly. Of course, quickly

17:19

in antitrust world is like, maybe

17:21

we'll have a trial in two years, not

17:23

tomorrow. The

17:26

FTC, for all of

17:27

Lena Khan's clearly muscular stance

17:29

toward

17:33

these tech companies, does not have the greatest

17:36

track record lately in

17:38

its legal cases. And I wonder, like,

17:41

what's the mindset for the agency going

17:43

into this case?

17:44

Yeah, this was another thing that came up in

17:46

front of the conversations over the past two days,

17:49

because as you mentioned, the FTC

17:51

has lost two of the big cases that they brought

17:53

this year. One was against Microsoft

17:56

over the Activision deal, and the other one

17:58

was involving meta platforms. over its

18:00

acquisition of a virtual

18:02

reality startup. In both of those cases were mergers.

18:05

Mergers tend to move a lot faster. So

18:08

like the FTC brought suit and then had

18:10

to go to court, you know, only a

18:12

couple months later.

18:13

As I mentioned here, they've been investigating

18:16

for four years. They have, you know,

18:18

obviously sort of plotted out their legal strategy.

18:21

But, you know, this kind of a case

18:24

takes a lot of resources, a lot of money. They

18:26

will have to hire experts who are going

18:28

to sit there debating about the exact definition

18:30

of the market. And

18:33

it will be, you know, a slog to win,

18:35

a long slog. Because

18:37

as I mentioned, these cases do not happen.

18:39

Quick and antitrust is like this

18:41

case might be done in five

18:43

years. So

18:47

that was a question that a lot of people had for Lita

18:49

Khan, like what if you don't win here?

18:52

And, you know, her point and like

18:54

the one that has been raised by Jonathan Cantor, the

18:56

head of the antitrust division right now is

18:59

that. At the Justice Department. Yeah, he

19:01

is sort of the head antitrust enforcer at the Justice

19:03

Department is one, you lose 100% of

19:06

the shots you don't take. And

19:08

two, you know, like

19:10

even when we don't win, we can move the

19:12

law a little bit. So, you know, the FTC

19:14

likes to point out that even though they didn't

19:16

win on that case involving META, they

19:19

sort of were able to revive this idea about

19:22

a big incumbent buying up a nascent company

19:24

and how that can

19:25

be a problem. And, you know, so

19:27

if,

19:28

you know, even if they don't win, they

19:30

could also push for greater legislation

19:32

in Congress, which didn't bring

19:34

or didn't actually end

19:36

up passing new legislation

19:38

last year, but those efforts haven't died

19:41

completely. So if it

19:43

turns out that the FTC can't win against

19:45

Amazon, that seems like a pretty good argument

19:48

that we need to change the law.

19:50

I was curious whether the fact that fewer

19:52

states have joined onto this suit

19:54

than the DOJ's antitrust

19:57

case against Google or, you know,

19:59

earlier case against Google. against meta, like does

20:02

that tell you anything or is

20:04

that just politics?

20:06

I think it's a little bit of both.

20:09

One, you know, as I mentioned, this is a long-running

20:12

case and so

20:14

in both of the other ones, the Google case and

20:16

the Facebook case, the states were

20:19

involved the whole time. Like they had been bringing

20:21

their own investigations and

20:23

then they filed

20:24

their own suits sort of alongside

20:26

the Justice Department and the FTC.

20:28

In this case, you know, the FTC

20:30

had been investigating for four years and

20:32

in that time period we already had a couple other

20:34

states bring their own suits. As I mentioned, California

20:37

has one pending. DC brought

20:40

one, it was dismissed and is now on appeal. So,

20:43

you know, the states had been looking at

20:46

this issue even before the FTC got around to

20:48

it, is one point. The other is, yeah,

20:50

Amazon is a little bit different than Google

20:53

and Facebook

20:53

who,

20:54

I guess if you're going to like point fingers at

20:56

the most hated of the tech giants, those would be the two.

20:59

There is the entire like convenience factor

21:02

of Amazon. There's also the factor

21:04

that like Amazon is the largest

21:07

US employer. So all of these states

21:09

probably have a big presence of Amazon

21:12

in their state. You know, there are probably a lot of people

21:14

who work at their warehouses and

21:16

they may, you know, be less inclined

21:20

to see them for being a monopolist

21:22

in a way

21:22

that might hurt their state economy.

21:24

Lina Khan, as you and I have discussed

21:26

before, a very famous paper

21:29

about Amazon and antitrust when she was

21:31

in law school. And so

21:33

there's this part of me that's

21:35

wondering like, she

21:38

has wanted this for so long.

21:40

It's hard to imagine that the FTC did

21:42

not cross every P

21:45

dot every I to get this case as

21:47

watertight as possible. Yeah,

21:50

a lot of people said

21:52

that this is why it took so long, you know, the

21:56

case was going on for four years, the investigation.

21:59

You know, it was pretty much done

22:02

last year,

22:03

but then it took them sort of another let's

22:05

see we're in September so another nine months to finally

22:08

file the case because they were sort of honing

22:11

all their arguments deciding exactly what

22:13

they wanted to say and getting state partners on

22:15

board because Somebody as

22:17

somebody who put it to me this case is going to be written about

22:19

on Lena Kant's tombstone So

22:21

you can bet that she

22:22

wants to make sure that it is absolutely

22:24

okay and

22:27

so

22:29

Yeah, I mean If

22:32

if this is going to be your legacy

22:33

you want to make sure it's a good one

22:36

maybe I'm spinning too far ahead into the future,

22:38

but if The FTC

22:41

and DOJ lose their big cases against Google

22:43

and Amazon Is that

22:45

the last chance for consumer regulation

22:48

against big tech? Is it all eyes on

22:50

Congress like how how pivotal

22:52

are these cases?

22:53

I think for the US These are pretty important,

22:56

you know Congress was considering

22:58

legislation last year and it didn't happen Unlike

23:01

in some

23:01

other places in the world as I mentioned in Europe

23:03

There was some pretty major

23:06

legislation overhauling the way that they look

23:08

at digital markets same in the UK

23:10

and same You know a little

23:13

bit in South Korea and Japan

23:14

A lot of countries

23:16

are rethinking their relationship with

23:18

the tech giants

23:20

We haven't as much here, you know Land

23:23

of the free market Congress

23:26

couldn't sort of get its act together in fairness

23:28

Congress can't even fund the federal government right

23:30

now. So So,

23:33

you know, they've got some stuff going on they have

23:35

some other things going on But

23:38

that's why I think a lot of people are sort of pinning

23:40

their hopes on the courts, you know

23:42

This is so the one avenue

23:45

that is the biggest clear

23:47

shot at big tech And so

23:49

if the Justice Department and the FTC can't win,

23:51

you know We're gonna have to rethink things maybe

23:54

there will be another big legislative push to

23:56

change the law so that antitrust

23:59

enforcers here have

23:59

have a better chance.

24:02

As I mentioned, a lot

24:04

of these tech giants are gonna have to be changing a

24:06

bunch of the things that they do for Europe. And

24:09

I wonder, it has been a big question,

24:12

if they're gonna change it for Europe, are they gonna change

24:14

it everywhere? Because it's sort of annoying

24:16

for them to have to do business in multiple

24:19

countries in different ways. That's sort

24:21

of what they did around privacy regulations. Yeah,

24:24

but then that is what we see with privacy.

24:26

In

24:27

Europe, they do things one way, here they

24:29

do things another way.

24:37

Leah Nyland, thank you so much

24:39

for taking the time to talk to me. And

24:42

I'm sure the next time something happens

24:44

with big tech and antitrust, we'll just call you up again.

24:47

Yeah. Happy to talk

24:49

about it anytime.

24:51

Leah Nyland, Hoover's Antitrust for

24:54

Bloomberg.

24:55

And that is it for our show today. What

24:57

Next TBD is produced by Evan Campbell and

24:59

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right. We'll be back tomorrow with another

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episode and one on Sunday, a

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bonus episode to get you ready

25:31

for Sam Bankman-Fried's trial, which starts

25:33

next week. All right. I'm Lizzie

25:35

O'Leary. Thanks for listening.