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Is Amazon Violating U.S. Antitrust Laws?

260 points| walterbell | 7 years ago |inthesetimes.com | reply

147 comments

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[+] nanoscopic|7 years ago|reply
Amazon has a team called "Amazon Profitability Group". I used to work for said team, albeit only briefly.

The purpose of the team is to calculate the proper price to sell items for, the "discount" to vendors, and the items to put in the "buy box" in order to make the most profit for Amazon. I think the what is described here in the article is only the tip of the iceberg. Amazon isn't doing something as simplistic as cutting out the competition with low prices... they are feeding all the numbers into neural networks and analyzing and predicting competition and profits, and then doing what the systems tell them is the most profitable.

That is, anything that Amazon can predict will make them more money or gain more market share... they are doing. I have full confidence that they are doing all of the terrible things outlined and more. The bigger question is whether government and law allow them to continue doing this. I think that it will continue to be allowed, despite being super shady and destroying both small and medium size businesses.

It cannot easily be proven that there is anyone orchestrating the monopolistic processes, because Amazon has essentially turned the process of dominating the market into an equation and they just do what the equation tells them to.

Amazon will claim "we are just being smarter; we mean no harm", and without providing open minutes of their internal discussions it will be impossible to prove wrongdoing.

What is needed is open accountability for internal plans, but that is against the "American way" so I doubt it will happen anytime soon.

[+] tyingq|7 years ago|reply
I do believe these sorts of "Amazon is amazingly smart" posts.

But they are hard to reconcile with why Amazon keeps showing me a rice cooker ad, after I buy a rice cooker from them.

[+] thedailymail|7 years ago|reply
I'm not sure offloading its decision-making to the neural network will be an effective legal protection for Amazon against anti-trust claims. The key question in the US is whether "predatory" pricing results in financial harms (higher prices) to US consumers. As I understand the logic put froth by Bork in the 70s, the general idea is that "the market" will solve this problem in most cases, under the assumption that if a single big company tries to gouge consumers, rival firms will emerge that are able to outcompete them, thus restoring (or at least reapproaching) the idealized price equilibrium.

The law article cited in ths news story seems to be saying that even though Amazon's practices haven't visibly hurt consumers in terms of retail prices, this is due to the ability to play legal games with corporate accounting that conceal the present and future anticompetitive effects of Amazon's business model, and that its status as the dominant platform for online retailers presents some degree of threat to competition.

Lina Khan published a very informative and influential review on Amazon and antitrust in 2017. https://www.yalelawjournal.org/note/amazons-antitrust-parado...

[+] ajhurliman|7 years ago|reply
"and then doing what the systems tell them is the most profitable."

...so, not predatory pricing then?

[+] brobdingnagians|7 years ago|reply
IIRC, there was a science fiction story where a supercomputer that humanity used for efficient logistics took over the world simply by changing the orders and sending things to the appropriate places. Can't remember the book, but might have been by Heinlein or Clarke... Seems like the Amazon AWS servers could do that quite nicely if they were sentient... or just had enough data.
[+] amelius|7 years ago|reply
What is it that enables companies to seek the boundary of what is allowed by law, whereas when humans do it they are called assholes?
[+] rorykoehler|7 years ago|reply
It's a pretty interesting example of the pitfalls of ML. It's a clever and exciting use of ML and when observed in a silo is the correct thing for any company to do. The law wasn't designed for such sophisticated modelling of the domain. Screwing over small and medium businesses was never the goal, it's just an inevitable consequence. The flip side is the algorithm cannot model what happens once they screw over businesses so badly that it causes a mass migration away from Amazon (because they've not seen that data before). Fascinating to see how this plays out.
[+] hbosch|7 years ago|reply
What is different — generally — between the way Amazon determines prices, in your example, and the way Google determines the best search results? It seems they both use massive knowledge and technology advantages to determine something that’s in the best interest of the company...

In fact almost all large businesses use these types of data to maximize profits, I would assume. Is there a functional difference between changing a digital page to optimize return and changing a store shelf configuration at Wal Mart to do the same? Because of course Wal Mart uses analytics to determine their store layouts and deal placements etc.

[+] d4nt|7 years ago|reply
I think the problem might be even more complex than that. From what you’ve said they seem to be training AI to predict what people want and how valuable it is to them. This problem used to be the role of the giant distributed computational process know as the Free Market. Communism/Socialism famously found that problem too hard to solve and collapsed as a result. If there’s a new way to solve it, it’s both hard to argue that’s a bad thing, and a major threat to many of society’s institutions.
[+] c3534l|7 years ago|reply
As an accounting student, the idea that Amazon is using capital leases as way of manipulating their financials is hilarious. That's the exact opposite of what everyone else does. Most companies try to hide debt they incur to buy infrastructure by claiming that they're actually renting it. This is why there are complicated rules about what kind leasing agreements count as debt and which count as expenses.

The claim repeatedly and misleadingly made in the article that Amazon doesn't post a profit is easily debunked by the fact that they're a publicly traded company that legally has to have it profits made publicly available. They make a profit. They have for a long time. It goes up and it goes down as they expand and reinvest, but they're definitely not intentionally taking a loss.

And they have to have their accounting methods and control systems used to be audited by an independent third party annually to ensure compliance with generally accepted accounting principles. As far as I'm aware, they've never had an adverse opinion issued against them. The whole point of making public companies undergo an audit every single year is to make sure they're doing any shenanigans that make their annual statements in some way not comparable to the financial statements of other companies in that industry.

It's incredibly annoying to see an article like this get shared because it's incredibly obvious the author doesn't know what the heck he's talking about, but just enough to fool readers into thinking he does.

[+] munk-a|7 years ago|reply
Yes, via vertical integration[1] - this should be obvious to anyone outside of the FTC[2].

[1] For people unaware of Amazon's practice of pushing out middlemen who conduct high volumes of business: http://fortune.com/2016/04/20/amazon-copies-merchants/

[2] People inside of the FTC are almost certainly aware, but happily continue to shove their fingers in their ears and sing "la la la I can't hear you la la la".

[+] mr_toad|7 years ago|reply
Vertical integration, or cutting out the ‘middle-man’ is not in and of itself illegal.

What might be illegal would be selling products at a loss to drive others away.

[+] stale2002|7 years ago|reply
But cutting out the middlemen is a good thing, not a bad thing.

It means that less groups take a cut of the profits, and prices.can be reduced because of it.

[+] _4vew|7 years ago|reply
(Disclaimer: I work for Amazon, but not in the retail, legal, or finance departments, and I have no inside information about what the company is doing with respect to its pricing. Opinions are my own and not of the company.)

Yet another sensationalist headline that is unsubstantiated by the article.

"This law student" has a theory. He does not have evidence -- and, in fact, much ink in the article is spilled on the fact that the evidence needed to sustain an antitrust case against Amazon isn't readily available to the public or to the Government.

Nor has any Court ever held, to my knowledge, that an antitrust action can be sustained without consumer prices going up - merely keeping them the same is not enough.

Key quotes (emphasis mine):

"Sussman believes that if Amazon gave the full picture, it would show negative cash flow."

"No current accounting rules force full disclosure of itemized costs. Considered highly confidential, they’re typically redacted from public legal documents, even when a company is sued. More definitive cash flow numbers could help prove whether Amazon sells items below cost."

"Sussman believes that the Federal Trade Commission should force companies to break down their costs in confidential examinations."

"Right now, anti-competitive conduct like predatory pricing is judged under the “consumer welfare standard,” which has been interpreted to mean simply whether a market dominated by a single company results in higher or lower prices. But even though prices are the same on Amazon, consumers are arguably missing out, Sussman explains, because they’re not benefiting from Amazon’s soaring profits." (This is not my understanding of an actionable situation under current antitrust law.)

[+] int_19h|7 years ago|reply
The "consumer welfare standard" is a relatively recent thing, as the article points out, and there were antitrust actions (e.g. blocking of mergers) that were sustained without direct evidence of consumer prices going up as a result prior to that standard being enshrined.

And many people don't think it's a valid standard. So you might be correct in that this is currently legal - or, perhaps, unenforceable because there's no way to prove that it is illegal to the requisite standard of proof. But if so, then to me that would be yet another argument in favor of getting back to antitrust that we used to have before it got Borked [1], since what we have right now is very clearly not working.

[1] https://www.theamericanconservative.com/articles/robert-bork...

[+] ikeboy|7 years ago|reply
There is, in fact, evidence that

1. Amazon occasionally sells below cost (hence existence of CRaP products)

2. Amazon has pushed some vendors to 3p

3. Amazon directly or indirectly dictates allowable 3p prices

The progression from Amazon selling at a loss to them pawning the product off to 3p sellers and taking a larger cut is reasonably argued in the source article to be harmful to consumer welfare.

[+] dang|7 years ago|reply
I haven't looked closely enough to see if there's evidence, but we can finesse the matter by just taking the law student part out of the title above.
[+] lvs|7 years ago|reply
You're clearly engineering on how to evade antitrust law. But the better argument is simply that if antitrust law doesn't sufficiently cover Amazon's business, then it needs to be changed to ensure that it does.
[+] lvs|7 years ago|reply

[deleted]

[+] jondubois|7 years ago|reply
The root of the problem is that corporations have fooled governments into mixing up 'consumers' with 'people'. Governments should serve people, not consumers. This is a big mistake because people spend most of their lives working; this means that the average person spends the vast majority of their time producing value instead of consuming it. So the average person is not a consumer, they're a producer. The biggest consumers are rich people. Whenever you make laws to protect consumers, you're mostly protecting rich people. As wealth becomes increasingly centralized, this statement becomes increasingly true and it becomes a vicious cycle.
[+] markwkw|7 years ago|reply
Interesting piece from the article: "Sussman points to evidence that Amazon has already flipped the switch, moving from dominating the market by undercutting rivals to reaping the profits from that dominance."

So according to Sussman, Amazon is already making money. I wonder what point in time the author thinks Amazon started making money.

If the author claims that happened e.g. in 2016, them Amazon was actually losing money for the first 20 years of its operation. That would require Amazon to have been raising capital for a long, long time. Can that be verified? Are there stock market metrics on total amount of capital raised/net borrowed in a given year?

Has anyone been able to access the actual article to check the details of authors claims?

[+] Despegar|7 years ago|reply
They haven't needed outside capital because Amazon has been generating free cash flow since 2002 or 2003. They were losing money on a GAAP basis because they were investing in capex heavy things like warehouses and data centers.

Looking at Amazon's aggregate financials doesn't tell us anything about whether they're doing something anticompetitive.

[+] Mikeb85|7 years ago|reply
It's not illegal to drive down prices in a competitive environment. In fact, economic theory says that in a sector that has 'perfect' competition, prices will essentially be the cost of production.

What Amazon is currently doing isn't illegal. In the future, if they abuse their dominant position to jack up prices, they might be in some trouble. But running on thin margins isn't illegal, and it seems Amazon has created avenues to produce profit without increasing prices, thus falling within the law and also with what economic theory predicts should happen.

[+] munk-a|7 years ago|reply
It is illegal to do this when you slip below the cost of production line - at that point your lost profit becomes an investment (if you're doing it right) in either securing long term profits[1] (printers and toner) or driving competitors out of business (predatory pricing[2] or possibly dumping[3] if done for market control)

[1] https://en.wikipedia.org/wiki/Loss_leader

[2] https://en.wikipedia.org/wiki/Predatory_pricing

[3] https://en.wikipedia.org/wiki/Dumping_(pricing_policy) Dumping is a particularly interesting instance since there isn't a direct realized economic gain.

[+] rdlecler1|7 years ago|reply
The real danger is in debasement—something we’ve seen with product over the past 40-50 years and it’s no different than Walmart putting pricing pressure on it’s suppliers. If suppliers can’t increase costs and they’ve maxed out economies of scale then they need to debase their product to Suppliers need to cut corners to generate additional profits.
[+] ThrustVectoring|7 years ago|reply
This squeeze on suppliers is a big part of why Amazon has such a problem with counterfeit goods, IMO. If you start blindly optimizing on supplier prices, counterfeiters can often win those price competitions.
[+] rdlecler1|7 years ago|reply
Companies achieving a kind of monopoly status should be subject to additional financial disclosures and reporting. The benefit here is (1) not all companies need to meet this compliance standard (2) we get a much better look into the books to determine if there is something illegal/nefarious going on (3) this additional reporting gives upstarts an insight to chip away at any monopoly by having access to data that sustains that monopoly in the first place. Let’s not use a heavy hand of busting up a company, just let capitalism do the work.
[+] rdlecler1|7 years ago|reply
>Sellers can use “Fulfillment by Amazon,” so Amazon handles storage and shipping of its products through its vast logistics network. But Amazon also charges for that privilege.

We used to call this kind of activity a ‘service’ but apparently it’s now called a ‘privilege’

[+] jgowdy|7 years ago|reply
Right? I wonder if we take storage out of it...

>Sellers can use “Fulfillment by UPS,” so UPS handles shipping of its products through its vast logistics network. But UPS also charges for that privilege.

Spooky!

[+] ClassyJacket|7 years ago|reply
"Privilege" in this context is sarcastic or exaggerated. It's a common figure of speech.
[+] thesumofall|7 years ago|reply
For me, this is difficult to reconcile with my experience that there is barely any product left on Amazon where they really are the cheapest. You’ll almost always find well rated smaller online shops across all categories that sell substantially below Amazon’s prices. This is even more so true if you want something sold and fulfilled by Amazon.
[+] TulliusCicero|7 years ago|reply
Yes, but it's unlikely that they have fast, free/cheap shipping. And Amazon's customer service/return policy/overall UX is top notch compared to smaller retailers.
[+] jasonsync|7 years ago|reply
A little late.

Amazon launched a product called "Amazon Drive" in 2015 ...

Unlimited cloud storage! $11.99/year for photos and $59.99/year for everything:

https://venturebeat.com/2015/03/26/amazon-launches-two-new-c...

At the time, anyone familiar with cloud storage (Dropbox, Sync.com, Box etc.) knew that Amazon was undercutting their rivals (selling at a loss) to enter the consumer market.

Worse, many cloud providers resell AWS storage (Dropbox did at the time, and was an Amazon customer).

Amazon ran this "loss leader" for almost 2 years, hoping to drive the competition out.

In the end all they did was upset existing AWS customers, and eventually duped their own newly minted Amazon Drive customers, because they shuttered the service 2 years later (the losses started adding up on both sides):

https://techcrunch.com/2017/06/08/amazon-ends-its-unlimited-...

https://www.geekwire.com/2018/dropbox-saved-almost-75-millio...

[+] 0815test|7 years ago|reply
Economically speaking, the question should boil down to "is Amazon operating in a contestable market, and/or are they engaging in abusive behavior to raise barriers to entry in the market, lowering its contestability". The notion of predatory pricing per se, in contrast, is not really well-defined. Is there some inherent reason why the suppliers and wholesalers who are supposedly being harmed by this monopoly could not simply move to an established competitor, e.g. eBay, Alibaba or whatever, or even start a platform of their own along more favorable principles?
[+] int_19h|7 years ago|reply
It should, but the "consumer welfare standard" explicitly repudiates such approach. In US, a company can be a complete monopoly, wiping out all competition, and still not cross the line for anti-trust purposes.

This is actually kinda ironic, given that US is generally considered to be more on the side of the spectrum that strongly believes in the "invisible hand of the market" - and so it would make more sense for anti-trust to be defined in terms that would protect that hand from being "broken". And indeed, it was so defined originally, until this new standard came to be. Since then, we've seen steadily increasing market concentration [1], and the corresponding decline in competition, all while being assured that it's not harmful to us as consumers, and with some people even openly extolling the virtues of monopolies for consumers (e.g. Thiel).

To me, these sound very similar to the arguments that are used to justify "benevolent dictatorships", except here we're talking about economic power rather than political (and, of course, the two are not independent).

[1] https://concentrationcrisis.openmarketsinstitute.org/

[+] munk-a|7 years ago|reply
And that's the question that seems pretty clear cut as a violation - not currently provable but highly indicated by evidence. The portion of Amazon that sells things to consumers provides a clear incentive to raise barrier to entry in the market that they sell those things in - and Amazon also happens to own the market that these things are sold over.

This is part of the reason I think there should be concern over Amazon, Google & Apple's profitability (and to a lesser extent Microsoft and Valve) creating a walled garden app store opens up all sorts of crazy anti-trust exposure, just because the FTC is currently declawed doesn't mean that exposure doesn't exist, that risk is just being deferred.

In cases like Amazon where they are actively competing against competitors on their own platform... the question of how their suggestion algorithm works is a huge can of legal liability.

[+] skookumchuck|7 years ago|reply
Reminds me of the astonishing anti-trust case against Microsoft arguing that giving consumers free stuff was harming them.
[+] licnep|7 years ago|reply
What about Uber and Lyft?

Aren't they known to operate at a loss to undercut the competition, and couldn't taxi drivers bring them to court for that?

[+] ajross|7 years ago|reply
Maybe. But the fact that Uber and Lyft are actively competing (both with taxis and each other) using that model would be a pretty strong argument to the contrary.

At the end of the day, antitrust legislation exists to protect consumers and markets, not established businesses. Prices under cost, in isolation, pretty much can't be antitrust violations by definition. They have to be used to effect a harm to the market in other ways.

[+] astura|7 years ago|reply
The article touches on this briefly

>The paper could also spur the Federal Trade Commission to make a simple rule change that would lay bare Amazon’s practices. And, it could blow up a scheme that Uber, Lime, and numerous other startups have been accused of undertaking.

[+] Guest42|7 years ago|reply
Article was written about a specific incident rather than every incident.
[+] mars4rp|7 years ago|reply
according to the article, if the company is operate at loss and it benefit customers, it is fine!

"Both of these outcomes reflect consumers failing to share in Amazon’s bounty, which is key for current antitrust law. Right now, anti-competitive conduct like predatory pricing is judged under the “consumer welfare standard,” which has been interpreted to mean simply whether a market dominated by a single company results in higher or lower prices. But even though prices are the same on Amazon, consumers are arguably missing out, Sussman explains, because they’re not benefiting from Amazon’s soaring profits. “It’s illegal and even the most conservative neoclassical thinker would agree,” he says."

[+] imglorp|7 years ago|reply
That seems like you could easily circumvent by claiming the underpriced service is a loss leader, routing customers towards more profitable upsells at other points in the relationship. Printers and toner, handles and razors, banks and toasters.
[+] elamje|7 years ago|reply
Regardless of law, they are profitably delivering a very wide variety of items to my door for significantly cheaper than anywhere else I look. I cannot ignore that
[+] PorterDuff|7 years ago|reply
Does antitrust law apply to a monopsony?