How Would President Biden Approach Corporate Power?
The war over monopolies will define the next administration.
|Oct 19, 2020||34||15|
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Today I’m going to write about how Joe Biden will approach monopoly power and big tech if he wins. For this essay, I interviewed a number of experienced antitrust experts and thinkers. The key take-aways are (1) Biden will probably be much stronger than Obama was on big tech in particular, and (2) much of what happens depends on the interest, independence and aggressiveness of Congress.
First, housekeeping. On Wed, my organization is hosting a Zoom event with Congressman David Cicilline on the House Big Tech Antitrust report. You can join by RSVP’ing here. Also, I was on a few podcasts, notably Azeem Azhar’s excellent newsletter Exponential View to talk about how lawmakers are going to tackle big tech, as well as Francesca Rheannon’s Writer’s Voice podcast on the craft of writing. Finally, if you haven’t read it, my book Goliath is now in paperback. You can get it at a bunch of different retailers, and the paperback version has some new stuff on the pandemic and monopolies.
A Sharp Break from the Obama Era
On September 20, 2016, near the end of the Obama era, Acting Assistant Attorney General of the Antitrust Division Renata Hesse gave an intriguing speech on antitrust enforcement. “Antitrust is making headlines again, and I don’t just mean in antitrust publications,” Hesse said.
Today it’s evident that monopolies are a problem, but in 2016 at the time she gave the speech, popular interest in monopolies was just starting, and the antitrust establishment had tried to ignore it. At this event, Hesse acknowledged popular dissatisfaction with big business and the status quo, pointing the way for a Hillary Clinton administration. Given Clinton lost, it’s a mere footnote. What’s interesting today about the speech is that Hesse apparently wasn’t the sole author; some of the speech draft came from Vice President Joe Biden’s office.
That same year, the White House issued a little noticed executive order encouraging stronger competition policy across government. The order didn’t apply to the main antitrust enforcers, but to everyone else, from the Department of Transportation to Health and Human Services. “Agencies shall also identify specific actions that they can take in their areas of responsibility to address undue burdens on competition,” said the order. Again, this order didn’t amount to much, coming in the final year of the Obama administration, but it pointed the way to what Clinton might have done. And once again, this order had involvement from Biden staff.
I’ve been making phone calls over the past few days to a lot of people in Democratic circles who understand antitrust to try to get a sense of how Biden will operate. Almost uniformly, the answer is “I don’t know, but Biden will be stronger than the Obama was.” And these examples illustrate one reason why; Joe Biden’s people generally were more populist than Obama’s.
Now, this is a relative statement, not an absolute one. Biden is not some fire-breathing anti-monopolist. But by comparison, it will be very different, because Obama, himself a corporate friendly guy, was President during an era with a pro-monopoly consensus. During his time in office, Google, Facebook, Amazon, Apple, and Microsoft bought hundreds of companies, without a merger challenge. Despite aggressive promises at the beginning of the administration to elevate antitrust enforcement, Obama’s DOJ didn’t bring a single monopolization claim. Not one. Why? Well, according to Obama enforcer Carl Shapiro, they simply “found precious few cases that warranted an enforcement action.” There apparently weren’t any monopolies in America from 2009-2017.
The Obama White House, as well as the Democrats and Republicans in Congress during his administration, had an unrecognized pro-concentration philosophy, and so what people normally chalk up to ineffectiveness or corruption was actually by design. Airlines and telecoms consolidated with the permission of the Obama Department of Transportation and FCC. Obama pledged to go after ag monopolies, but dropped the case against Monsanto and didn’t do anything on meatpackers until 2016. Both the Affordable Care Act and Dodd-Frank were oriented around concentrating power in banks, hospitals, health insurers, and so on, while putting a regulatory overlay on top of them. Top White House advisor Larry Summers did his best to block anti-monopolization efforts. At some points it got comical, with the cartoonishly evil Ticketmaster merging with Live Nation without a real challenge. And on and on.
To put it a different way, the Obama White House intentionally concentrated corporate power, because he and his advisors thought it was the right thing to do. Though today they pretend otherwise, at the time they were straightforward about how awesome a job they did. In 2016, several of his enforcers - including FTC Chair Jon Leibowitz and DOJ official Fiona Scott Morton - helped co-author an antitrust transition report for Donald Trump in which they dismissed popular critiques of lax enforcement, and noted that “competition enforcement has been in good hands” for decades.
Only at the end of his administration, prodded by a different set of arguments, did a few officials start to re-imagine what might be possible. I don’t want to be too harsh to Obama, as the overall environment was corrosively pro-monopoly in a way that’s hard to remember. After all, Obama’s attitude of disinterest wasn’t unique. Republicans were fiercely pro-monopoly, and the left was completely uninterested; in 2011, Occupy Wall Street protesters honored billionaire Steve Jobs with a moment of silence. In other words, it’s been four years and a lot of shifting norms since then. So for a lot of reasons, the consensus is that Joe Biden is likely to break from what Obama did.
A Tale of Two Biden’s
There are a couple of important elements in thinking through influences over competition policy in a Biden administration. There’s the overall intellectual environment, new populists in the Republican Party, a structurally more concentrated economy, new interest in Congress, a new Democratic Party consensus, and global enforcement. But we have to start with Joe Biden himself.
Let’s begin with the optimistic take. Biden, as odd as it might sound, does have a populist streak. It’s not super aggressive or apparent, but it’s there. For example, in 1994, Joe Biden was the Chair of the Judiciary Committee overseeing the nomination of Supreme Court nominee Stephen Breyer. Through a Democrat, Breyer was known as extremely favorable to big business, and he was particularly obsessed with cost/benefit analysis in striking down regulations. Joe Biden really let him have it in the hearings, telling Breyer that his views were “presumptuous and elitist,” saying he found it offensive to presume Americans “would change their cultural values if” they knew the true costs. In a later interview, Biden then called Breyer’s ideas “"Harvard-ese ... that offends me." Of course, Biden voted for Breyer, showing that his instincts and his political choices didn’t always align. But it’s a remarkable, and little noted, nugget from Biden, a genuine chip on his shoulder disdain for economic egghead experts.
Now the pessimistic take. As a Senator, Joe Biden had a fairly orthodox Democratic economic policy framework, often tilting towards Wall Street. This was particularly true for policies like the Bankruptcy Bill in 2005, which Biden sponsored. That law made it much harder to escape credit card debts, and allowed big banks to take more risk through derivatives. Biden also supported free trade agreements like NAFTA and the entrance of China to the World Trade Organization. During his time in the Obama White House, he negotiated with Republicans around austerity and tax cuts in ways that progressives did not like, and he helped open the door to Chinese control over the NBA with some negotiations over film exports.
But though his policy track record tilts towards corporate power than away from it, that doesn’t say as much about his ideological views as one might assume. Biden largely treated domestic economic interests as parochial questions, not as substantive ones. Delaware houses the credit card industry and corporate chartering, and Biden just did their bidding to represent his state and to raise campaign money. His real passions were in foreign policy and things like crime, gun control, violence against women, and so forth. He’s a Watergate Baby-style politician, just not particularly focused on political economy, responding to voters and using the corporations around him as transactional mechanisms to get to what he really cared about. This style is different than that of Obama, a hard-core Hamiltonian who believed in the essential nature of Wall Street and the progressive destiny of an America guided by Google and Facebook.
In the White House, Biden often sat on the left of policy disputes, and he headed up the administration’s middle class task force. Biden and Elizabeth Warren get along, whereas Obama looked at Warren with disdain. Biden’s best friend is Ted Kaufman, and Kaufman was a Senator who very much did try to break up the banks in 2010. Kaufman is apparently interested in antitrust, and he’s heading up Biden’s transition team. Now, I don’t want to overstate Biden’s populist streak; ex-Biden aide Jeff Connaughton wrote a tell-all making it clear Biden didn’t do anything to break up the banks in 2009 or work to investigate Wall Street executives. But Biden tended to have more sympathy and interest in the lives of working people than Obama, as well as a sense that something had gone wrong in 2016.
Biden’s mild populism has continued since he left office. In 2018, at an Economic Policy Institute event, he came out against mandatory arbitration for workers, and against non-compete agreements restraining employees from leaving their jobs. On tech policy, Biden just has different instincts than Obama. Obama loved Silicon Valley, even musing that after he left office he might become a venture capitalist. Biden, by contrast, is not a fan of Silicon Valley, calling big tech CEOs "little creeps." He has also called for the repeal of Section 230 of the Communications Decency Act, which would have been mind-boggling ten years ago. (It’s also now party wide, Democrats simply *despise* Facebook.) But my sense is that Biden’s populism will most clearly emerge in his desire to spend a lot of government money and make things in America, not in taking on corporate power.
Biden, despite his less trusting attitude towards big tech than Obama, is an institutionalist, and as such, is bringing back a lot of Democrats who have been renting themselves out to powerful corporations. Apple lobbyist Cynthia C. Hogan is high up in Biden-world, and Amazon’s VP of Public Policy, Jay Carney, worked for Biden. The same Renata Hesse who gave the speech in 2016 later represented Amazon for its Whole Foods acquisition, and she has influence. Obama antitrust retreads like ex-FTC Chair Jon Leibowitz, ex-DOJ official Fiona Scott Morton, and ex-FTC and OIRA official Howard Shelanski are likely to be involved at some level. Shelanski represents Facebook for its antitrust investigation by the FTC, Scott Morton is an Amazon and Apple consultant, and it’s hard to find a powerful monopoly Leibowitz doesn’t work for.
Biden’s institutional links, the industries he knows and likes, are more old-line, not big tech, but Hollywood studios and telecom. One potential chief of staff is Steve Ricchetti, a corporate lobbyist who represented a swath of industries, but is basically aligned with AT&T. Chris Dodd, a close friend, repped Hollywood studios. Another close advisor is Tom Vilsack, Obama’s Ag chief turned dairy lobbyist, and a friend of large agri-businesses.
So that’s Biden’s background. He’s no movement guy, but a transactional regular Democrat. What this means is that there’s a strong element of establishmentarianism and randomness to the Biden’s choices; he will choose his friends and allies for policy roles, and these have no ideological coherence. These picks will tilt older and towards the black political establishment, with Jim Clyburn having a lot of influence. Biden’s no friend of Google, but he’s also no friend of the new Brandeis types.
The best one can expect is old Biden hands trying to do anti-monopoly work, awkward and ill-fitting ideological clothing, but useful. The worst one can expect is a Jimmy Carter-like mix, with attempts at spending government money controlled by Wall Street and monopolists, with confused progressives wondering why nothing is working, and huge imports as Biden attempts to repair global relationships by sacrificing domestic industries to diplomats and the World Trade Organization. Biden’s relatively good relationship with Elizabeth Warren suggests the populist path, his pick of a Silicon Valley and Wall Street friendly Kamala Harris for VP suggests otherwise.
So that’s a pretty wide spectrum, and it’s wide because we simply don’t know what Biden will do. That isn’t to say that the campaign isn’t doing much about anti-monopoly policy, it is in fact doing a great deal. And that’s where I’ll turn next.
“Bullshit” Working Groups
So Joe Biden isn’t Obama, and 2020 will not look at all like 2020. What does that actually mean in terms of a policy path?
It’s hard to know, because in all likelihood Biden himself has not decided. His inner circle is largely focused on two things: (1) winning the election and (2) making sure he doesn’t get Covid. They do not want to repeat Hillary Clinton's mistake, which was to focus on how to govern before she had won the election. There’s a great deal of policy on JoeBiden.com, but to the extent that they are thinking about policy priorities around corporate power, it is largely how to address the twin crises of Covid, which is to say, the health crisis and a package for an economic recovery called “Build Back Better.”
This isn’t to say Biden doesn’t have antitrust advisors; former FTC Commissioner Terrell McSweeny is close to him, and she has a slightly center left bent, though is generally an antitrust traditionalist. Ron Klain, who works for AOL founder and billionaire Steve Case, is also a close Biden advisor. It’s also not to say that the campaign is ignoring antitrust. It isn’t. The campaign is using policy to unify the party. That means anyone in elite Democratic policy circles who wants to be involved can be involved in the main mechanism to drive consensus, which are campaign working groups.
The number of policy groups is big. There are policy working groups involving innovation, regulation, administrative procedure, and platforms, and a bunch of other related topics. These groups typically have a large number of participants, in some cases hundreds. There are progressives on these committees, as well as big tech representatives. The New York Times, for instance, reported on how they operate. A typical example of a bad participant is Facebook’s director of global competition policy, Anant Raut. Raut is your basic Democratic policy busybody, who circles from the Obama administration to Capitol Hill to Facebook, generally doing little while trying to generally get in the middle of as many American Bar Association conference calls as possible. He will likely not matter, but he’s there, so who knows?
Working groups have an endless number of these types, as well as former Justice Department officials, big law representatives, nonprofit execs and academics, and Hill staffers. They put together recommendations and send that to the campaign, and it disappears into a black hole. Doing policy through these groups is like walking through tar, and several people told me, these groups are ‘bullshit.’ The groups seem to exist so everyone feels heard, and as a fundraising tool. They are a way to keep Democrats unified, as the lack of decision-making leaves open the possibility that Biden may side with any particular faction.
Meanwhile, the actual transition team where decisions clearly matter is apart from the campaign, but anyone on that team is being extremely quiet about the work they are doing. If I had to guess, I would say that it is likely that Biden will put populists and corporatists together all across his administration, and pick and choose issue by issue. But he will lean towards institutionalists, mostly people who now preach reform but in prior career slots did anything but that. Keep in mind, Biden’s old.
The most important change since 2008, however, isn’t about the campaign. It’s that the America of 2020 is just a very different place than it was twelve years ago, economically, politically, and intellectually.
A Monopolized America
Roughly every week, a major newspaper comes out with a story or oped on just how concentrated the American economy has become. Yesterday it was the Wall Street Journal, in an article starting out with “technology companies are set to end the year with their greatest share of the stock market ever…” All over the world, policymakers are seeing that economies are swollen and misshapen, with big business dominant. At this point, there are so few companies that the Wilshire 5000 stock index has fewer than 3500 companies in it, because there have been so many mergers.
Wages are down, inequality is up, and it’s evident every day that large powerful firms are making choices best left to governments, such as Mark Zuckerberg’s now routine apologies for allowing destructive things to happen on Facebook. Moreover, antitrust traditionalism has become embarrassing, with anyone against reform routinely shown up as fools and idiots by Wall Street capital allocators who unwittingly mock them daily. Take Goldman Sachs’s President John Waldron announcing a new merger wave and talking up his excitement at helping big business buy competitors and fire people.
“Politicians are going to be faced with the uncomfortable reality that you’re going to have more big business doing better and that there’s going to be more losses of jobs along the way,” Goldman Sachs Group Inc. President John Waldron said at a conference Friday. “You are going to see a fairly sizable amount of large-cap M&A coming with stronger, healthier companies being the acquirer and taking advantage of weaknesses in their industry or elsewhere.”
“Our clients are more desirous of playing offense and doing deals. That’s a good thing,” he told the virtual gathering. But that includes large companies “looking to consolidate smaller companies, and that will be complicated societally.”
Waldron is saying this publicly, recognizing that the public is unhappy, and that the economy is creating serious social dysfunction. So we’re in a very different environment from 2008. Back then, bankers and businessmen were panicking as their Reagan-era ideological assumption that markets were natural phenomena clashed with a collapsing financial system requiring political action. Today, the illusions are gone. We are in a slow motion crisis, and everyone understands that this economic questions are rooted in political choices.
And this brings me to the last point of distinction: a significant faction - in Congress, in both parties (but especially among Dems), among global enforcers, in academia, and in business - has turned against monopolies.
Congress - and Everyone Else - Hates Monopolies
In 2008, Americans faced their first major financial panic-induced recession since the 1970s, with the Wall Street and housing bubble collapse. Academics, Congress, bankers, lobbyists, and Federal Reserve officials were unprepared, and had not thought about what to do or even what was happening. In that moment, the most recent Democrats in office were elected in 2006 and 2008, running against Bush and the war in Iraq; they did not really have any strong views about corporate power.
Because of this intellectual and political emptiness, Congress subordinated itself to the executive branch and the Fed. As a staffer, I sat in Financial Services Committee meetings where Rahm Emanuel and Tim Geithner presented legislation to the committee, and that legislation ultimately ended up as the Dodd-Frank reform package passed in 2010. Barney Frank, the Chair of that committee, distrusted his own members, and wanted them to have as little authority as possible; the adults in the room, in his view, were those at the Fed and in the administration.
This time, by contrast, Congress is full of intellectually confident leaders within both parties. In the Senate, Elizabeth Warren, Mark Warner, Josh Hawley, Richard Blumenthal, and Amy Klobuchar have ideas - strong ones in some cases - on how to address concentrated power. Both Klobuchar and Hawley questioned Amy Coney Barrett on antitrust law. Most importantly, Congressman David Cicilline has put forward a very strong baseline with a powerful House Antitrust report, with recommendations on how to break up platforms, reform antitrust law, and rejuvenate enforcement. In some areas, he has Republican support. Moreover, the report embarrassed the Obama era enforcers like Edith Ramirez, Christine Varney, and Jon Leibowitz. As one person told me, “This report had lots of documented evidence about problematic tech mergers… How could you let those deals through?” It’s evident that the Obama people failed, and though they still have tremendous influence over Biden, the Democratic Party consensus has moved away from them.
There is also a new generation of leaders in non-legislative institutions. The Federal Trade Commission, traditionally slothful and somewhat thought of as a second-tier slot for hack Democrats looking for administrative positions, is now a center of power for ambitious young leaders. FTC Commissioner Rohit Chopra in particular is aggressive, and has pulled the FTC away from its pro-monopoly consensus with a series of dissents questioning whether the status quo approach fits an economy dominated by a handful of powerful players. Chopra has finally woken the commission from its slumber. The FTC is proud of its bipartisan comity, so the dissents have shaken the institution. Rebecca Kelly Slaughter is the other Democratic commissioner, and she has followed Chopra with strong dissents in the weak FTC settlements over Facebook and YouTube.
Even going beyond Congress, the environment is transitioning rapidly. There have been a lot of impacts of House Antitrust Subcommittee report on big tech, one of the biggest is in Europe. Last Thursday, both France and the Netherlands, traditionally at odds on tech policy, agreed to push a law that would allow the EU to break up tech giants. It’s likely the House report gave a spur to such action.
There’s also a lot of new research from academics, and interest from young lawyers and economists, all on the problem of market power. I get emails all the time from people in government and business who are beginning to rethink how they do their jobs, now that they recognize the problem of monopoly.
Most notably, there’s also a war within big business, a sort of everyone in the economy against big tech. Companies like Epic Games, Oracle, AT&T, Walmart, Newscorp and Microsoft are going at Apple, Google, Amazon, and Facebook. In that sense, Biden’s institutionalist leanings cut both ways. Richetti, for instance, is an an AT&T guy; AT&T, as well as other Biden allies like Comcast, are interested in putting more regulation on Google, Facebook, and Amazon, so that they are on an equal playing field. Hollywood studios, another strong Biden support group, are deeply embittered towards Google for copyright violations. In other words, in the war within corporate America, which I’ve written about, Joe Biden instinctively is on the opposite side from big tech.
So the Biden administration may be facing a strong Congress, as well as institutional pressure from other sectors. Still, none of this is set in stone. Under Trump, the Democrats, especially Cicilline, have been aggressive. The risk is that these efforts will collapse, much as nascent Congressional moves to investigate Wall Street in 2008 fell apart as soon as Obama took office and effectively said ‘don’t worry, I got this.’ Will Congress reassert itself? It’s an open question.
So what does all of this mean? Well, I got a deep sense of both hope and cynicism from every single person I spoke with. “There is a real consensus around antitrust,” one person told me. Democrats have decided to “to rethink how things have been done and move away from the institutionalist perspective of the past.”
At the same time, there’s a deep concern, almost paranoia, that antitrust traditionalists will push back aggressively against major actions, as will bureaucrats at the FTC or DOJ. In addition, the courts have erected a “brick wall” against antitrust action, in particular the American Express decision that I wrote about when discussing the Google case, but also a series of other decisions that make it hard to bring monopolization charges. With a 6-3 conservative majority on the Supreme Court, the statutes will need to be changed. There’s also, and this probably deserves its own post, increasing interest in the national security world around monopoly power, as Biden is in his core a foreign policy guy.
Given competing priorities for Biden, the entrenched antitrust bar, and a hostile judiciary, “the muscle for a Biden administration on antitrust,” one experienced advocate told me, “will have to come from Congress.” Without an aggressive set of advocates from the legislative branch (and probably state attorneys general), antitrust could be something of an administrative backwater.
So that’s one key question. Will Congress continue aggressive advocacy and oversight? Another key question is personnel. Who will Biden pick as the chair of the FTC? Who becomes the Assistant Attorney General for Antitrust? How much influence does Elizabeth Warren have over that position? And the final question is competition policy outside of antitrust. There’s authority to address anti-competitive practices spread throughout government. What kinds of competition policy choices can happen beyond the FTC and DOJ, such as at the Federal Reserve, the Department of Transportation, the Pentagon, etc? And how interested will the Biden administration, and Congress, be in that?
I’m as scarred by the total breakdown of the rule of law as anyone else thinking about policy. Nothing seems possible. Yet, it’s important not to lose sight of the remarkable transformation in our politics around corporate power questions. This week, the Trump administration is likely to file an antitrust suit against Google, one of the most powerful corporations in the world. The rumor is that a suit against Facebook will soon follow. It would have been inconceivable ten years ago for the most aggressive anti-corporate progressive to do anything like that, yet here we are, with a very right-wing Republican administration moving forward to break the power of a trillion dollar corporation. That is truly extraordinary.
So I don’t know what Biden will do. It’ll likely be something of a mess. But it’s going to be a break from what we’re used to.
Anti-Competitive Behavior from Spotify: Well this is an interesting announcement from Songshift about Spotify refusing to let people transfer their song lists out of the service.
The Spotify Developer Platform Team reached out and let us know we'd need to remove transferring from their service to a competing music service or have our API access revoked due to [a Terms of Service] violation. While this is not the news we wanted to hear, we respect their decision.
A terms of service violation to move song lists? Hmmmm. Let’s go over to their developer agreement.
Do not use the Spotify Platform, Spotify Service or Spotify Content in any manner to compete with Spotify or to build products or services that compete with, or that replicates or attempts to replace an essential user experience of the Spotify Service, Spotify Content or any other Spotify product or service without our prior written permission.
I’ve been watching Spotify for some time, and the corporation’s strategic moves increasingly look like a monopoly story. But this clause, which just says ‘you can’t compete with us,’ is comically anti-competitive.
Rite Aid Merger Party Saying the Quiet Part Out Loud: Several BIG readers sent me this story about Rite Aid drug chain buying a regional chain Bartell Drugs in Washington state. The public rationalizations are jaw-dropping.
Donigan also says the publicly traded company will give Bartell Drugs more power, noting that "We have scale, we have purchasing power. And, you know, we obviously purchase a lot of drugs, merchandise and also the other synergies that would come with this kind of opportunity…"
"Pharmacy benefit managers that have made it harder for a mid-sized drugstore chain to survive in this environment, and somebody the size of a company, the size of Rite Aid, can bring things to us that we would not be able to have otherwise."
The comments are just openly ‘we’re merging to gain market power,’ an increasing recognition that antitrust is a dead-letter.
Song Baron Merck Mercuriadis: I got interested in a music business official named Merck Mercuriasis, who has raised billions of dollars for his company Hipgnosis to buy music rights to songs, so as to gain market power against streaming services and record companies. I don’t know that much about how the industry works, so if you do, send me your thoughts. Concentration often begets concentration, and that’s what it looks like is happening here.
Market Power in Home Vacation Rentals? I’m told HomeAway has begun monopolizing the platforms used to rent homes for vacation after buying its rival VRBO. If you know about this market, send me thoughts.
AI and Ethics: A good article from BIG reader Dave Lauer.
Vista Equity Criminals: I’ve written about Vista Equity Partners, a private equity firm that buys software companies and raises prices. It turns out the billionaire owner is a tax cheat who masked his crimes with philanthropy. What a shocker. Meanwhile, the Wall Street Journal does a glowing profile of a Vista Equity competitor, billionaire Orlando Bravo of Thoma Bravo LP.
Like Vista, Thoma Bravo identifies software companies with a loyal customer base but middling profits and transforms them into moneymaking engines by retooling pricing, shutting down unprofitable business lines and adding employees in cheaper labor markets.
The firm then guides its companies to use the profits they generate to do add-on acquisitions, snapping up smaller rivals with offerings that they could spend months and millions of dollars trying to replicate.
Retooling pricing? So that’s what they call it? Bravo admits that his wealth comes from buying niche software companies, combining them with competitors, offshoring work, and raising prices. He’s a monopolist and a predator, but that’s no reason not to write a lovely story about him. After all he plays tennis and doesn’t wear a tie. So there’s that.
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