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Comment by artemisyna | Hacker News Reader

Not a lawyer, but I'm really curious to see how this plays out. This case has a lot of confounding factors:

* other companies/entities that can be considered "competitors" (Twitter, TikTok, LinkedIn, etc)

* the acquisitions in question (Instagram and WhatsApp) being approved by the suing entity (namely, the FTC) themselves back in the day

I wouldn't be surprised if an outcome of this were to be say, limits against cross-linking acquisitions together or the like in the future. However, having existing companies be forced to be spun out in their entirely... I have a hard time imagining that being the outcome, given the chilling effect it could have on the rest of the industry.

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> However, having existing companies be forced to be spun out in their entirely... I have a hard time imagining that being the outcome, given the chilling effect it could have on the rest of the industry.

What's hilarious is that breakups and divestiture were considered a completely commonplace occurrence up until a generation ago. It was just a matter of course for the FTC and DOJ to deal with companies that had gotten too big or were engaging in questionable behavior and forcing them to break up into pieces.

This, of course, was generally a good thing. Then we just sort of stopped. Now we're at a point where your point of view, which is that this is "hard to imagine" is a completely reasonable one.

It shouldn't be though. The current situation of consolidation at the top of our economy is wildly unstable and harmful to workers, consumers, and fledgeling entrepreneurs alike, and we should never have let it get this out of control.

This is the thing I have a hard time understanding, as far as I'm aware the FTC approved all this, these were not forceful takeovers.

What would be the precedent if regulatory approvals could be challenged with a change in administration?

> What would be the precedent if regulatory approvals could be challenged with a change in administration?

That's like someone is approved for a license to own a gun, then that person uses the gun to commit a crime, and then their license is revoked. Then someone points the finger at whoever it was that approved that person for a gun license.

What would be the precedent if a merger approval gave you a free pass to be anti-competitive?

I suppose the question then becomes "should the things that FB did with WhatsApp and Instagram since acquiring them be considered a crime"?

I could see eyebrows being raised around interop work, but I'm not sure about the rest.

The FTC is an executive agency with the enforcement equivalent of prosecutorial discretion. It's not a court.

I'm also not a lawyer, but this sounds unconstitutional. This lawsuit sounds even more extreme than ex post facto laws, since antitrust laws haven't changed.

My pet theory is that the legislature is so divided and incompetent that laws are horribly outdated. The other two branches of government need to compensate. Google v. Oracle is another example of this.

Unconstitutional? How?

Article 1, §9 specifically forbids the Congress from passing any ex post facto laws, and §10. does the same for the states. Since the FTC already gave consent the first time around, this hinges on whether the FTC as an independent agency is considered a proxy for Congress. Note that the attorney generals' separate suit does not have this concern.

Not a lawyer question:

Does that prevent Congress from passing laws criminalizing ongoing behavior by corporations, or just from prosecuting acts from before the law was passed?

Not a lawyer answer: the latter. Note, though, that a law criminalizing behavior specific to one person or corporation could be considered a bill of attainder, which is prohibited by the same clauses in the constitution.

You bring up an interesting point, but the Sherman and Clayton laws were passed over a century ago. Perhaps the FTC went against the will of Congress by approving them in the first place, which brings up its own questions around administration of the laws by the executive branch.

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