27 Feb 2020

Big tech antitrust probes could impact companies in every industry, report finds

Crowell & Moring says digital transformation efforts mean tech regulation is becoming critical for all businesses

A photograph of a Google office

Crowell & Moring's report on big tech regulation comes after Google appealed an EC fine of €2.4bn earlier this month Shutterstock

Increased regulatory scrutiny into big tech’s alleged anti-competitive behaviour could have far reaching implications beyond the technology industry, according to Crowell & Moring’s 2020 Regulatory Forecast.

The report — which flags the key trends corporate counsel need to watch in the year ahead — says that antitrust investigations into big tech could potentially impact mergers, acquisitions, and business practices in almost every sector given that many companies are embarking on digital transformation programmes that are dependent on data and disruptive technologies.

Shawn R. Johnson, partner and co-chair of Crowell & Moring’s antitrust group, said: “The regulatory environment has not kept pace with the rapid growth of technology. In the antitrust arena, big tech is at centre stage as the government works to address potential abuses.”

He added: “But this is not just about big tech. In the end, all companies are becoming digital. From how we view the role of data privacy to acquisitions, these investigations are going to impact a wide range of businesses for the foreseeable future."

The report highlights a debate about whether or not current laws are sufficient to tackle the alleged challenges created by big tech platforms, with critics suggesting weak antitrust enforcement has allowed those companies to grow unimpeded and dominate the market.

A raft of antitrust investigations are now underway in the US. The Federal Trade Commission, for instance, has set up a dedicated technology enforcement division that will review mergers or conduct in any market where digital technology might impact competition. The Department of Justice is also conducting a review into leading online platforms.

Philip T. Inglima, the chair of Crowell & Moring, said: “Despite the current administration’s stated focus on deregulation, both the federal and state regulatory regimes are alive and well; they are just manifesting in different ways. Our report demonstrates that technological changes in industry are fuelling an evolution in regulation, with positive and negative outcomes.”

The report also provides an outlook on issues ranging from administrative law to international trade, and government contracts to advertising.

Dan W. Wolff, chair of Crowell & Moring’s administrative law and regulatory practice, added: “Not only is there no rest for those watching the regulatory front, but, driven by uncertainty, that front is larger and perhaps more active than ever.”

Earlier this month, the General Court in Luxembourg heard Google's appeal against a €2.4bn European Commission fine which was imposed in 2017 over alleged abuse of power in promoting its own shopping comparison services.

A judgment isn't expected until the second half of the year.