Comment by Amanda S. Kim
Microsoft recently closed the biggest acquisition by a U.S. tech company to date. At a cost of $69 billion, Microsoft acquired Activision Blizzard, a gaming company that “holds some of the most valuable gaming IP in existence.”2 And several months before that, Meta, the parent company of Facebook and Instagram, acquired Within Unlimited, a virtual reality startup company valued at $400 million. Just in the past two years, there were several major “big tech” acquisitions that have raised antitrust concerns both in the United States and abroad. Consequently, regulatory agencies, such as the U.S. Federal Trade Commission (FTC), the U.K. Competition and Markets Authority, and the European Commission, sought to block deals and posed legal challenges to these agreements. These agencies are worried about the perpetuation of monopolistic business practices that harm consumers and stifle competition.
In response to such massive acquisitions, the European Union is now taking sweeping antitrust action against so-called “gatekeeper” tech companies by enacting the Digital Markets Act (DMA).7 The DMA is a novel piece of legislation; it provides rules to which gatekeeper platforms must conform in their daily operations. Its objective is to “creat[e] room for new entrants and foster[] more competition” by prohibiting the “boxing in” of users. Notably, the DMA stands in stark contrast to the United States' lack of legislation in this area. While U.S. regulators have filed antitrust cases against some of the same gatekeeper companies, the United States has not enacted any new federal laws to address big tech's threat to competition. The notable absence of congressional action has prompted the question of whether legislation similar to the DMA would be desirable, or even feasible, in the United States' current political and economic climate.
This Comment compares Europe's digital policy to the United States' approach to big tech regulation and determines whether the United States could enact similar legislation to Europe's DMA. While existing scholarship considers the differences between the DMA and the United States' enforcement tactics thus far, this Comment approaches the big tech issue from a novel perspective, considering specific potential barriers the United States faces in implementing similar legislation. Such roadblocks to the feasibility and desirability of the DMA in America include case law from the United States Supreme Court, the United States' dominant economic position in the tech industry, and positive public and political attitudes toward competition. Due to the United States' singular position as a world tech leader, the DMA would be neither feasible nor desirable to adopt in the United States.
About the Author
Amanda S. Kim. J.D. Candidate 2025, Tulane University Law School; B.A. 2022, University of Virginia.
Citation
99 Tul. L. Rev. 1073