Legislation: The bipartisan American Innovation and Choice Online Act, S. 2992, would prohibit platforms from self-preferencing and represent substantial progress in advancing ROCC’s key principles.
Antitrust Enforcement: The District of Columbia Attorney General and the California Department of Justice have brought proceedings alleging that Amazon’s policies block price competition and increase prices for consumers who choose to shop elsewhere. Amazon successfully filed a motion to dismiss in March 2022 and the D.C. Attorney General is appealing the dismissal. The California Department of Justice filed a lawsuit on similar grounds on September 14, 2022. There is also a class action against Amazon pending in the U.S. District Court for the Western District of Washington on a similar subject matter. According to public reports, the Federal Trade Commission has several active and ongoing investigations into Amazon’s potential violation of U.S. antitrust law, so further cases are expected.
Agency Guidance: The FTC issued a new policy statement in November 2022 regarding the scope of Section 5 of the FTC Act, which prohibits “unfair methods of competition.” The Statement makes clear that, Section 5 reaches beyond the Sherman and Clayton Acts to encompass various types of unfair conduct that tend to negatively affect competitive conditions.
Antitrust: The European Commission is implementing commitments arising from two investigations into: (1) Amazon’s use of non-public data from independent retailers selling in its marketplace, which are said to be used in Amazon’s own retail decisions, and (2) the rules and criteria for the Buy Box and Prime, which are said to unduly favor Amazon’s own retail business, as well as marketplace sellers that use Amazon’s logistics and delivery services.
Regulation: The EU’s Digital Markets Act has been passed and is now in force. There will be a designation process for Amazon during 2023, and then the details of the new requirements will be decided over the next couple of years. The German Federal Cartel Office has also designated Amazon as an undertaking of paramount significance, meaning that it will be subject to the new regulatory regime.
Antitrust: The UK’s Competition and Markets Authority (“CMA”) is investigating substantially the same subject matter as the Commission (note that the EU commitments do not apply to the post-Brexit UK). Further cases are rumored.
Regulation: The UK Government will publish its draft bill for the Digital Markets Unit regime in the current session of Parliament and it is expected to become law during 2023. In parallel, the Digital Markets Unit is drafting the new rules that will apply to the digital gatekeepers.
Market Study: We expect the CMA to conduct a market study into e-commerce, focusing on Amazon, which will feed directly into the new Digital Markets Unit rules and other regulatory initiatives. This follows on from the CMA’s previous market studies on digital advertising and mobile ecosystems.