The U.S. Senate Judiciary Committee announced this week its plan to vote on the American Innovation and Choice Online Act (S. 2292), antitrust legislation that would impose obligations on certain online platforms regarding the treatment of their own goods and services relative to competing services on their platform.  This will be the third antitrust bill considered by the Committee this year, and it will be the most the controversial of the three.  The vote is expected to take place on January 27.

The bill defines an online platform as “a website, online or mobile application, operating system, digital assistant, or online service” that allows users to interact with other users or to generate content seen by other users; facilitates the sale, payment, or shipping of goods or services by third parties; or “enables user searches or queries that access or display a large volume of information.”  For a platform to be covered by the bill, it must have at least 50 million monthly active users or 100,000 monthly active business users; and sales or market capitalization of more than $550 billion.  It also has to be a “critical trading partner for the sale or provision of any product or service offered on or directly related to the online platform.”  Senator Amy Klobuchar introduced the bill, and it has support from Senators from both parties, including Judiciary Committee Chair Dick Durbin and Ranking Member Chuck Grassley.

Based on how the Committee dealt with the previous two pieces of antitrust legislation that it recently considered, the bill will almost certainly be altered before the vote, and some Committee members will still raise concerns about it.  For example, the last time the Committee considered a far less controversial piece of antitrust legislation, members raised concerns about the bill’s retroactivity before voting in favor of it.  Relatedly, some technology firms have raised issues with the substance of the bill and have voiced concerns that its consideration is being rushed without more process, such as a full Committee hearing which often takes place for important legislation.  That mix of concerns is likely to make the bill’s path to final passage more difficult.

Last June, the House Judiciary Committee approved companion legislation to the American Innovation and Choice Online Act (H.R. 3816).  The full House of Representatives, however, has yet to consider that bill or related ones partially because of issues raised by the California Congressional delegation about their scope and about the possibility that they may cause more economic harm than good.  The path to passage by the full Senate is similarly unclear.  What is more certain is that the next two weeks are a key window for stakeholders to try and offer any changes to the bill before the Committee approves it.  Any changes after that will be more difficult to make.

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Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (D-CA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

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