CEO of Alphabet and Google Sundar Pichai in Warsaw, Poland on March 29, 2022.
Mateusz Wlodarczyk | Nurphoto | Getty Images
The Department of Justice’s latest challenge to Google’s tech empire is an ambitious swing at the company with the potential to rearrange the digital advertising market. But alongside the possibility of great reward comes significant risk in seeking to push the boundaries of antitrust law.
“DOJ is going big or going home here,” said Daniel Francis, who teaches antitrust at NYU School of Law and previously worked as deputy director of the Federal Trade Commission’s Bureau of Competition, where he worked on the agency’s monopoly case against Facebook.
The DOJ’s antitrust chief Jonathan Kanter has indicated he’s comfortable with taking risks, often saying in public remarks that it’s important to bring cases that seek to challenge current conventions in antitrust law. He said he prefers more permanent remedies like breakups compared to promises to change behavior. That sentiment comes through in the DOJ’s request in its latest lawsuit for the court to force Google to spin off parts of its ad business.
Antitrust experts say the Justice Department paints a compelling story about the ways Google allegedly used acquisitions and exclusionary strategies to fend off rivals and maintain monopoly power in the digital advertising space. It’s one that, if the government gets its way, would break apart a business that’s generated more than $50 billion in revenue for Google in the last quarter, potentially opening up an entire market in which Google is currently one of the most important players.
But, they warn, the government will face significant challenges in proving its case in a court system that progressive antitrust enforcers and many lawmakers believe has taken on a myopic view of the scope of antitrust law, especially when it comes to digital markets.
“If they prove the violations they allege, they’re going to get a remedy that’s going to shake up the market,” said Doug Melamed, a scholar-in-residence at Stanford Law School who served at the Antitrust Division, including as acting assistant attorney general, from 1996-2001 during the landmark case against Microsoft. “But it’s not obvious they’re going to win this case.”
Challenges and strengths
Experts interviewed for this article said the DOJ will face the challenge of charting relatively underexplored areas of antitrust law in proving to the court that Google’s conduct violated the law and harmed competition without benefitting consumers. Though that’s a tall order, it could come with a huge upside if the agency succeeds, possibly expanding the scope of antitrust law for digital monopoly cases to come.
“All antitrust cases are an uphill battle for plaintiffs, thanks to 40 years of case law,” said Rebecca Haw Allensworth, an antitrust professor at Vanderbilt Law School. “This one’s no exception.”
But, Allensworth added, the government’s challenges may be different than those in many other antitrust cases.
“Usually the difficulty, especially in cases involving platforms, is market definition,” she said. In this case, the government argued the relevant market is publisher ad servers, ad exchanges, and advertiser ad networks — the three sides of the advertising stack Google has its hand in, which the DOJ said it’s leveraged to box out rivals. “And here, I think that that is relatively straightforward for the DOJ.”
“One way to look at the latest complaint is that it is the newest and most complete draft of a critique that antitrust agencies in the U.S. and abroad have been building against Google for over a decade,” William Kovacic, who served on the Federal Trade Commission from 2006 to 2011 and is now a professor at George Washington Law, said in an email.
Google, for its part, has said the latest DOJ lawsuit “tries to rewrite history at the expense of publishers, advertisers and internet users.” It claims the government is trying to “pick winners and losers” and that its products have expanded options for publishers and advertisers.
Compared to the DOJ’s earlier lawsuit, which argued Google maintained its monopoly over search services through exclusionary contracts with phone manufacturers, this one advances more nontraditional theories of harm, according to Francis, the NYU Law professor and former FTC official. That also makes it more likely that Google will move to dismiss the case to at least narrow the claims it may have to fight later on — a move it did not take in the earlier suit, he added.
“This case breaks much more new ground and it articulates theories, or it seems to articulate theories, that are right out on the border of what existing antitrust prohibits,” Francis said. “And we’re going to find out, when all is said and done, where the boundaries of digital monopolization really lie.”
High risk, high reward?
CEO of Alphabet and Google Sundar Pichai in Warsaw, Poland on March 29, 2022.
Mateusz Wlodarczyk | Nurphoto | Getty Images
DOJ took a gamble with this case. But if it wins, the rewards could match the risk.
“In terms of the potential impact of the remedy, this could be a bigger case than Microsoft,” said Melamed.
Still, Francis cautioned, a court could order a less disruptive remedy, like paying damages if it finds the government was harmed as an advertising purchaser, or simply requiring Google to stop the allegedly illegal conduct, even if it rules in the DOJ’s favor.
Like all antitrust cases, this one is unlikely to be concluded anytime soon. Still, a key decision by the Justice Department could make it speedier than otherwise expected. The agency filed the case in the Eastern District of Virginia, which has gained a reputation as the “rocket docket” for its relatively efficient pace in moving cases along.
“What that signals to me is that, given the timeframe for antitrust litigation is notoriously slow, DOJ is doing everything that they can in their choice of venue to ensure that this litigation moves forward before technological and commercial changes make it obsolete,” Francis said.
He added that the judge who has been assigned the trial, Clinton appointee Leonie Brinkema, is regarded as smart and fair and has handled antitrust cases before, including one Francis litigated years ago.
“I could imagine that both sides will feel pretty good about having drawn Judge Brinkema as a fair, efficient and sophisticated judge who will move the case along in an expeditious way,” Francis said.
Still, there are hardly any judges who have experience with a case like this one, simply because there haven’t been that many digital monopolization cases decided in court.
“So any judge who would be hearing this case is going to be confronting frontier issues of antitrust theory and principle,” Francis said.
Outside of the courts, the case could have a more immediate impact in other ways.
“From the point of view of strategy, the case adds a major complication to Google’s defense by increasing the multiplicity and seriousness of public agency antitrust enforcement challenges,” said Kovacic, the former FTC commissioner. “The swarming of enforcement at home and abroad is forcing the company to defend itself in multiple fora in the US and in jurisdictions such as the EU and India.”
Regardless of outcomes, Kovacic said the sheer volume of lawsuits and regulation can create a distraction for top management and will likely lead Google to more carefully consider its actions.
“That can be a serious drag on company performance,” Kovacic wrote.
The suit could also lend credence to lawmakers’ efforts to legislate around digital ad markets. One proposal, the Competition and Transparency in Digital Advertising Act, would prohibit large companies like Google from owning more than one part of the digital advertising system, so it couldn’t own tools on both the buy and sell side as it currently does.
Importantly, the bill is sponsored by Sen. Mike Lee, R-Utah, the ranking member of the Senate Judiciary subcommittee on antitrust. Lee has remained skeptical of some other digital market antitrust reforms, but his leadership on this bill suggests there may be a broader group of Republicans willing to support this kind of measure.
“An antitrust lawsuit is good, but will take a long time and apply to only one company,” Lee tweeted following the DOJ’s announcement, saying he would soon reintroduce the measure. “We need to make sure competition works for everyone, and soon.”
Rep. Ken Buck, R-Colo., who has backed the House version of the bill, called the digital ad legislation “The most important bill we can move forward” in a recent interview with The Washington Post.
“This is clearly the blockbuster case so far from the DOJ antitrust division,” Francis said. “And I think it represents a flagship effort to establish new law on the borders of monopolization doctrine. And at the end of it — win, lose or draw — it’s really going to contribute to our understanding of what the Sherman Act actually prohibits in tech markets.”
WATCH: Here’s why some experts are calling for a breakup of Big Tech after the House antitrust report
How Fanatics and MLB are planning to keep the trading card boom going
Julio Rodríguez of the Seattle Mariners was the American League Rookie of the Year in 2022. MLB trading card partner Fanatics has plans for new rookie card features this season as part of a bigger plan to increase the value of Topps baseball cards for collectors.
Diamond Images | Diamond Images | Getty Images
Fanatics made waves in the sports and collectibles industries when it pried the rights to make trading cards for Major League Baseball from incumbent Topps in August 2021, ending a partnership that dated back to 1952. The sports platform company made another huge splash last January when it acquired Topps outright for roughly $500 million.
Now, after releasing its first major Topps set alongside the start of the 2023 MLB season, Fanatics is starting to show how it plans to elevate the trading cards and collectibles space.
“Fanatics is focused on the best experience for the fan, and collectibles is focused on the best collector experience,” said Fanatics Collectibles CEO Mike Mahan. “That means having the most innovative, thoughtful, authentic products possible.”
Mahan, who joined Fanatics in June to lead the company’s trading cards and digital collectibles business after serving as CEO of Dick Clark Productions, said the “the collector experience in 2023 will be the best collector experience ever, and 2024 will be even better.”
That belief is driven from Fanatics Collectibles’ main focus areas so far, Mahan said: educating new collectors and better onboarding them into the hobby, building out the marketing around collectibles, enhancing the existing collector ecosystem and experience, and innovation.
Rookies play a big role in increasing baseball card value
Innovation drove one of the new initiatives Fanatics is adding this year around typically one of the biggest points of excitement, and value, for card collectors: the debut cards of highly touted rookies.
“One of the central questions that we’ve been trying to answer is how do we get cards to really capture the big moments,” Mahan said. “Baseball cards have been about the rookies for so long, so if rookie cards are the biggest things in sports, how do we make the best possible card? How do we bring people closer to that moment?”
That led to the creation of MLB Debut Patches, which Fanatics is touting as the first-ever memorabilia made in partnership with a pro sports league specifically for the inclusion on trading cards. Working with MLB and the MLB Players Association, every player who makes their debut this season will have a patch on their jersey. After the game, the patch will be authenticated and placed directly onto their rookie card in a future Topps set.
MLB chief revenue officer Noah Garden said that is the sort of the thing that will continue the momentum among collectibles and trading cards.
“It’s that emotional connection that drives the hobby, and brings fans closer to the game,” said Garden, who described himself as an avid baseball card collector. “They want to feel like a part of the game, and what is a better way to do that than to have something that was actually a part of it?”
While the sports trading card industry had seen growth in recent years, the pandemic put the hobby into overdrive. Cards across sports have been selling for record prices, including a $12.6 million sale for a 1952 Topps Mickey Mantle rookie card, the highest price ever paid for a trading card.
U.S. Google searches for “best sports cards to buy right now” increased by 680% between January 2020 and February 2023, according to data provided to CNBC by online visibility management SaaS platform Semrush. During the same period, average U.S. monthly visits to Topps.com grew by 218.5% to nearly 1.2 million, Semrush data showed.
But even as other collectibles that boomed during the pandemic have fallen out of favor like NFTs and Funko Pops, trading cards have looked to maintain their momentum.
Jeff Owens, editor of Sports Collectors Digest, the largest trade publication covering sports trading cards, said that the resurgence of the hobby was “primarily due to a resurgence in buying and selling during the pandemic and a large group of wealthy investors looking for alternative assets.”
The softening of the economy led a decline in the market of modern cards last year, but values and demand are still “well above” what they were before the pandemic, Owens said, adding that the market for vintage cards like the Mantle rookie card is “very, very strong.”
Owens also pointed to the growth and support of card shows across the U.S. – nearly 1,000 planned for 2023, which is a significant increase compared to previous years.
Mahan said that from Fanatics’ perspective, “it’s a very strong time for the hobby right now.”
The global sports trading card market is valued at $44 billion and is expected to approach $100 billion in 2027, according to data from Verified Market Research.
“We think very firmly that the best days are in front of it; we can’t control the broader economy and like any consumer good there’s some correlation with broader spending but go to any card show or shop right now, this is a very vibrant and healthy marketplace,” Mahan said.
When Topps was considering going public in a SPAC deal that would have valued it at $1.3 billion in April 2021, the company reported that it had record sales of $567 million in 2020, a 23% year-over-year increase. That SPAC deal was later canceled after Fanatics acquired the MLB rights, which ultimately led to Fanatics’ acquisition of the company.
Mahan declined to comment on Topps sales today, but he said that “the business and the industry continues to be in a great, great place.”
What MLB gets from the Topps deal
For MLB, the return of trading cards has also served as a boon, which Garden said has parallels to video games or other ways that the league looks to bring in new fans and turn casual fans into diehards.
Garden noted fans like his son, who is an avid baseball fan but may not know every player on a West Coast team besides their stars. “When these players start to break through nationally, you already know who to look for” based on the rookie cards and other cards in the set, he said.
“The importance of cards in the evolution of fandom I’ve always thought was important,” said Garden, noting that’s how he got into baseball. “But the business hadn’t seen innovation in forever and in many ways, it had gotten harder to collect. … What Fanatics has done so far to innovate the product and support the ecosystem has been nothing short of fantastic.”
While MLB cards remain the crown jewel for Topps, Mahan said that Fanatics is excited for what the future holds not only for baseball cards, but also for the other rights the company holds, which includes the ability to produce NBA and NFL cards in the coming years.
“The good news is trading cards and sports cards have been vibrant for a long time, they’ve mattered for a long time, they’ve been meaningful for a long time,” Mahan said. “It’s a business that has traditionally been cyclical and had its ups and downs. … We’re focused on education, innovation, marketing, and community, and bringing all of those together – given where we sit today with all of these good things yet to come, we feel our best is firmly in front of us.”
Earlier this year, Fanatics hired former Snap global head of content and partnerships Nick Bell to head its new Fanatics Live business, which will focus on building a digital customer shopping experience where you can buy trading cards and other collectibles via curated and personality-driven content and entertainment.
Bell told CNBC that one of the first focuses of this new business division will be around “breaking,” a form of social trading card buying. Similar to a blind raffle, a set number of individuals purchase an entry from a seller — called a “spot” — and the seller then opens an entire case of trading cards live online and allocates each of them. Fanatics would receive a cut of each card sale.
Fanatics raised $700 million in December to bring its valuation to $31 billion, capital that it planned to use on potential merger and acquisition opportunities across its collectibles, betting and gaming businesses, according to CNBC.
The company estimates its revenue for Fanatics, including its Lids segment, will be approximately $8 billion in 2023.
Fanatics is a three-time CNBC Disruptor 50 company, and ranked No. 21 in 2022.
Tesla has only installed 3,000 Solar Roof systems in the U.S., far below forecast, study finds
Tesla vehicles parked outside a home with a Tesla Solar Roof on Weems Street in Boca Chica Village, Texas, U.S., on Monday, June 21, 2021.
Veronica G. Cardenas | Bloomberg | Getty Images
Tesla has only installed 3,000 of its Solar Roof systems in the U.S. since touting the technology seven years ago, according to new research from Wood Mackenzie.
That installation rate falls well shy of Tesla’s guidance and ambitions for what it previously called its “solar glass” roof tiles. Wood Mackenzie notes that in late 2019 the company said it was aiming to manufacture 1,000 Solar Roofs weekly, and to install 1,000 per week in the first half of 2020.
The report offers the latest glimpse into Tesla CEO Elon Musk’s struggle to integrate a solar energy business into his electric car company following the 2016 acquisition of SolarCity, a solar installer founded and run by his cousins Peter and Lyndon Rive with his help.
Average weekly Tesla Solar Roof installations reached just 21 in 2022, Wood Mackenzie said. Tesla hit a high of 32 average weekly installations in the U.S. in the first quarter of last year, according to the study.
Musk first promoted a shingle-style solar panel in October 2016, as he was trying to garner shareholder enthusiasm for Tesla’s $2.6 billion purchase of SolarCity. The shingle he showed at a marketing event was not even a working prototype, it was later revealed. Musk had invested significant capital in SolarCity, and served as board chairman while also helming Tesla and SpaceX.
A group of Tesla shareholders eventually sued Tesla and Musk over the deal. Last year, the Delaware Court of Chancery ruled in favor of Musk in a bench trial. But the shareholders’ lawyers on Wednesday made their opening arguments in pursuit of an appeal in Delaware Supreme Court.
Shareholders alleged that Tesla’s SolarCity purchase amounted to a bailout and was pushed by Musk because his personal wealth and reputation were at stake. Musk has denied that he pressured the Tesla board to go through with the SolarCity deal. Had he lost, Musk could have been forced to pay upwards of $2 billion, CNBC previously reported.
While Tesla’s Solar Roof effort has struggled, the company’s traditional solar panels have seen some improved traction in the market.
The traditional solar-panel installations shrank considerably from 2016 to 2020, but volumes have been on the rise along with broader growth in the residential solar industry, Mackenzie Wood researchers told CNBC in an e-mail. Tesla installed traditional solar panel systems with a power generating capacity of 156 megawatts in 2021, and 248 megawatts in 2022, the researchers said.
The 3,000 Solar Roof systems that are installed in the U.S. have an estimated capacity of around 30 megawatts.
While Tesla intended to manufacture all of its solar roof tiles initially, it has instead procured photovoltaic glass from Chinese supplier, Almaden. Residential roofing company GAF Energy began manufacturing and selling a competing solar shingle to residential roofers in 2022.
The Tesla Solar Roof commanded less than .03% of the approximately 5 million new rooftops built in the U.S. in 2022, according to Wood Mackenzie.
Tesla didn’t respond to a request for comment.
After a more than $1 trillion rout, Beijing appears to be warming to Chinese tech giants
Beijing’s regulatory crackdown on the Chinese tech sector began in late 2020, wiping off more than a combined $1 trillion from the country’s biggest companies.
There are now signs that the central government is softening its stance towards internet titans like Alibaba, in a move that could prove positive for Chinese tech stocks.
“The regulatory headwinds that we had in the past two years … that’s now becoming from a headwind to a tailwind,” George Efstathopoulos, portfolio manager at Fidelity International, told CNBC’s “Street Signs Asia” on Wednesday.
On Tuesday, Alibaba announced a major reorganization, looking to split its company into six business units, in an initiative “designed to unlock shareholder value and foster market competitiveness.”
Over the past two years, China’s government has often railed against the “disorderly expansion of capital” of tech firms that have grown into large conglomerates. Part of Alibaba’s announcement noted that these splintered businesses could raise outside capital and even go public, seemingly heading in a contrary direction to Beijing’s concerns.
Efstathopoulos said that the move could indicate a green light from the upper echelons of the Chinese government.
“You have senior leadership blessing for unlocking value, and, to me, that is a fantastic indication where we are now essentially moving from regulation not being the issue that it was,” Efstathopoulos said.
Jack Ma’s return
Alibaba’s restructure isn’t the only sign that Beijing could be easing up its scrutiny of the tech sector. Jack Ma, the founder of Alibaba, returned to public view in China for the first time in months.
Some credit Ma with sparking the start of the tech crackdown in October 2020, when the billionaire made comments that appeared critical of China’s financial regulator. A few days later, Ant Group, the financial technology affiliate of Alibaba that was controlled by Ma, was forced to scrap its massive Hong Kong and Shanghai dual listing, after regulators said it did not meet the requirements to go public.
Following this, the Chinese government doled out huge antitrust fines to Alibaba and food delivery giant Meituan, introducing a slew of regulation in areas from data protection to the way in which companies can use algorithms.
Ma’s reappearance in Hangzhou, where Alibaba is headquartered, has been read as another sign of Beijing’s more positive view toward the tech sector and entrepreneurs.
“Jack just didn’t show up in Hangzhou because he was tired of traveling around. I think it was well orchestrated and fits with the government’s campaign to demonstrate that, you know, they are relaxing pressures on their private sectors and are welcoming the rest of the world,” Stephen Roach, a senior fellow at Yale University, told CNBC’s “Squawk Box Asia” on Tuesday.
Economic growth in focus
There have been further signs of regulatory easing over the past few weeks.
The gaming sector was hard hit in 2021, as authorities grew concerned about addiction among young people in China. Chinese regulators froze the approval of new game releases for several months. Last April, authorities began to green light new games, mainly from domestic firms. This month, the video game licensing regulator gave its stamp of approval to a batch of foreign titles for release in China.
Meanwhile, Chinese ride-hailing giant Didi — one of the companies caught up in the regulatory overhaul — announced plans to expand its business. Didi went public in the U.S. in June 2021, but found itself subjected to a cybersecurity review by Chinese regulators within days of listing. It eventually delisted from the New York Stock Exchange and plans to float in Hong Kong.
Over the last few days, foreign technology executives including Apple CEO Tim Cook and Qualcomm CEO Cristiano Amon visited China and met with government officials.
Jack Ma, founder of Alibaba, reappeared in the public view in China for the first time in months. Alibaba then announced a huge reorganization of its business. Experts see the move as a signal that the Chinese government is softening its stance toward tech giants after a crackdown that began in late 2020.
Jean Chung | Bloomberg | Getty Images
In addition to warming to the domestic tech sector, China is also courting foreign business. Its economy has been battered over the past two years, thanks in part to the country’s strict Covid policies and regulatory tightening. The government now aims for around 5% economic growth this year.
To achieve that, it will need the help of private businesses — including the tech sector.
“China is facing both weak economic growth and rising tech competition from the U.S. It’s a pretty tough position to be in. So they need the economy to fire on all cylinders. Tough regulations on big tech platforms just doesn’t make sense at this juncture,” Linghao Bao, tech analyst at Trivium China, told CNBC via email.
Is China tech out of the woods yet?
While there are promising signs for investors, there is also reason to be cautious, warned Xin Sun, senior lecturer in Chinese and east Asian business at King’s College London.
Sun describes the Alibaba reorganization as a move to “break up Alibaba’s business empire and to reduce its huge influence that could potentially pose a threat” to the Chinese Communist Party’s rule.
“After restructuring, the organizational structure of Alibaba will become more decentralized, and the control over its assets, data and resources will be less concentrated. The Party could then impose stronger political control over each of the new entity more easily,” Sun added.
He cautions against too much optimism around the Chinese technology sector. While the latest moves bring some regulatory certainty, many questions remain about how other tech giants might fare.
“In the short run, Alibaba’s restructuring might be perceived as the routinization of the government regulatory actions and provide some regulatory certainty for the sector,” Sun said.
“In the long run, however, it raises more questions about the fate of other tech giants. Will Tencent, Meituan, and ByteDance be broken up too? If so, do they make their own decisions or do they just wait for the order from the government? Such uncertainty will keep weighing on entrepreneurs and investors, undermining their confidence.”
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