A year ago, antitrust officials from Australia, Brazil, China, Japan and eight other countries enjoyed $110-a-plate steak dinners and unlimited pours from $70 bottles of wine at a beachfront hotel surrounded by panoramic views of the sun setting over the Pacific Ocean.
The opulent meal was the culmination of a weeklong conference in scenic Huntington Beach, Calif., for 30 foreign government officials who enforce competition laws. The trip was organized and mostly paid for by the Global Antitrust Institute, a part of the Antonin Scalia Law School at George Mason University in Fairfax, Va.
Regulators spent the days in classes with the institute’s staff, which included a senior federal judge and a former commissioner at the Federal Trade Commission. The program was presented as continuing education for antitrust regulators — a way to learn more about the economic underpinnings of competition law.
But critics and past attendees of similar conferences run by the institute said the sessions were more about delivering a clear message to international officials that benefited the companies paying for the event: The best way to foster competition is to maintain a hands-off approach to antitrust law.
The Global Antitrust Institute is bankrolled in large part by tech companies — corporate donors like Google, Amazon and Qualcomm — that are facing antitrust scrutiny from some of the regulators who attended its programs, according to hundreds of pages of emails and documents obtained through open records laws, interviews with four past conference participants, and observation of a conference last year in Huntington Beach.
The documents included donation checks for hundreds of thousands of dollars from Google and Amazon, as well as a three-year, multimillion-dollar donation agreement from Qualcomm. Those checks were a key component of the institute’s $2.1 million budget in the year that ended in June 2019.
The emails illustrated how the institute’s leaders, including Joshua Wright, who has longstanding ties to Google, have worked closely with tech companies to fend off antitrust criticism. And they showed how the institute cultivated and tapped relationships with top competition officials — even, in an aggressive courtship, asking Brazil’s top antitrust regulator to recruit the country’s judges to attend its conferences with offers of business-class flights.
“This is not a significant expenditure for these companies. And the potential benefits, even making it moderately less likely to be on the losing end of an ambitious antitrust case is worth that price many times over,” said Michael Carrier, a professor at Rutgers University’s law school.
It’s difficult to determine the impact of the institute. But in Brazil, a tribunal last year dismissed three separate investigations into Google, which controls 97 percent of the country’s search traffic, for a lack of evidence.
Regulatory scrutiny is, unquestionably, a global issue for tech companies. Until recently, Europe was the main threat of antitrust action. Google has lost three competition cases there since 2017. Amazon is now the target of an inquiry in Europe for abusing its dominance in online commerce to squeeze smaller rivals. Qualcomm has paid more than $1 billion in fines to Europe for its anticompetitive behavior.
Now other countries are also starting to take a more aggressive approach. Australia and Brazil are investigating Google, while Amazon is also facing an antitrust probe in India.
The companies are also facing investigations at home. After years of a hands-off approach to monopoly enforcement, Google, Amazon, Facebook and Apple are under investigation from federal watchdogs, state attorneys general and Congress. The Justice Department is expected to bring a case against Google in the coming months in what would be one of the biggest antitrust actions in the United States since the 1990s.
The chief executives of Amazon, Google, Facebook and Apple will appear before lawmakers soon as part of a congressional antitrust investigation into their market powers.
Mr. Wright, the institute’s executive director, said its mission, curriculum and lectures were available online for the public to assess and that “open-minded observers” will see the quality of its instruction from legal academics and economists with experience enforcing antitrust laws and prosecuting cases.
“That combination of academic and practical experience is one reason enforcement agencies’ officials from around the world consistently choose to send their staff to our programs,” Mr. Wright said in a statement.
The long era of restraint in antitrust enforcement in the United States can be traced back, in part, to an ideology that tied economic analysis to legal cases. The view was that it’s not enough for a company to dominate a market and crush competitors, there must be evidence of so-called consumer harm — usually in the form of higher prices. That notion permeated through the American judicial system with the aid of economics seminars for federal judges funded by corporate donors.
The Manne Economics Institute for Federal Judges, which ran from 1976 to 1999, was organized by the Law and Economics Center — now housed at George Mason University’s law school. By 1990, about 40 percent of all sitting federal judges had attended one of these seminars, according to the program’s director.
Researchers found that judges who attended the seminars were more likely to approve mergers, rule against environmental protections and organized labor, and use economic language in rulings compared to judges who did not attend, according to an academic study looking at the effects of the program.
The Global Antitrust Institute, which was established in 2014 as part of George Mason University’s Law and Economics Center, has taken a page from the success of the federal judges program and adapted it for an international audience. It is also starting to offer an economics program for U.S. federal judges, with one scheduled for October in Napa, Calif.
Mr. Wright said it had already trained more than 850 foreign judges and regulators. It has hosted a senior judge at Supreme People’s Court, China’s top judicial body, as well as the current and former superintendent of Brazil’s top competition regulator as “visiting scholars.”
The institute does not disclose the source of its funding, but The New York Times obtained copies of the group’s annual budgets and donation checks in document requests. It is funded almost entirely by companies and foundations affiliated with companies.
Tech companies have been major backers of the institute for several years. In 2017, Google, for example, donated $200,000 to the group and it contributed an additional $300,000 in 2018.
On its website, Google discloses a long list of organizations that receive money from its government affairs and public policy team. On that list is George Mason University’s Law and Economics Center and the George Mason University Foundation, which is where donations to the Global Antitrust Institute are directed. Google does not mention the Global Antitrust Institute by name.
“We’re committed to transparency about the academic organizations to whom we make grants. Such organizations aren’t acting on our behalf, and we expect and require our grantees to disclose their funding,” said Julie Tarallo McAlister, a Google spokeswoman.
Amazon, whose dominant shopping site and cloud computing unit are the target of antitrust inquiries, has donated at least $225,000 to the group, according to copies of donation checks. Amazon also listed the George Mason University Foundation among “trade associations, coalitions, nonprofits and social welfare organizations” that received more than $10,000 in payments from the company. It did not mention the Global Antitrust Institute.
In thanking Amazon last year, Mr. Wright told Pat Bajari, Amazon’s chief economist and vice president, that its donation would support the institute’s mission to provide competition enforcers and foreign judges with the “economic foundation for rigorous antitrust analysis.”
“Like most large companies, we support a broad range of organizations doing research in areas connected to our business. That does not mean we always agree with their viewpoints or that we direct the work that they do,” an Amazon spokesman, Jack Evans, said in a statement.
Another company secretly committed to donating $2.9 million over three years until 2020. While the company’s name was redacted in grant documents, one of the agreements directed questions about the donation to a manager who has worked at the chip maker Qualcomm for the last 14 years.
Qualcomm has spent years fighting regulators around the world and incurred billions of dollars of fines over accusations of anti-competitive practices.
In 2017, after the F.T.C. filed an antitrust lawsuit against Qualcomm, Koren Wong-Ervin, a director at the institute at the time, emailed an executive at the company to express that a recent debate about the technology licensing terms at the heart of the case was one-sided and not favorable to Qualcomm.
“I’m considering a GAI panel on the hill to counter this one,” Ms. Wong-Ervin wrote. The Qualcomm executive responded that she would appreciate that.
Ms. Wong-Ervin, a former legal adviser to Mr. Wright at the F.T.C., left her position at the Global Antitrust Institute in September 2017 to become the director of antitrust policy and litigation at Qualcomm. Ms. Wong-Ervin, who left her position at Qualcomm this year, declined to comment. Clare Conley, a Qualcomm spokeswoman, also declined to comment.
Though it’s not clear how much, if any, impact the group’s education programs have had on the decisions of international regulators or judges who attended, “nobody would be paying for this stuff if they didn’t think it had an effect,” said Suresh Naidu, a professor of economics and public and international affairs at Columbia University and one of the authors of the academic study on the economics seminars for federal judges.
Success is not final, failure is not fatal. It is the courage to continue that counts.