Melissa Holyoak’s bid for a vacant GOP seat on the Federal Trade Commission could face a fresh hurdle as critics blast the weak terms of Google’s $700 million settlement over anticompetitive Android app store practices, sources told On The Money.
Holyoak, the Republican solicitor general of Utah, played a key role in negotiating the deal after US states alleged Google’s monopolistic tactics, including charging fees of up to 30% on major developers within its “Play” store – had resulted in higher prices and less choice for consumers.
The settlement, which Epic Games CEO Tim Sweeney blasted as an “injustice to all Android users and developers,” could rankle Republicans who want any FTC nominee to be “appropriately skeptical of Big Tech” — and even cause some to rethink their support, an industry source who requested anonymity to discuss the situation told The Post.
“If she’s the tip of the spear in an embarrassing settlement, that’s not a good look,” the source added.
As The Post previously reported in June, some Washington insiders fretted that Holyoak didn’t have the antitrust bona fides they’d like to see in a new commissioner — with one source quipping that FTC chief Lina Khan will “run circles” around GOP nominees on antitrust.
The GOP-backed litigator needs approval in a full floor vote after clearing the Senate Commerce Committee in October.
A second source said she “will get confirmed” even if some Republicans raise a stink – but the process may not be smooth one.
“If [Sen. Josh Hawley] or someone on the Republican side wants, she could get delayed,” a second source said. “I think that’s a likely scenario that she gets delayed, but not getting confirmed is unlikely. But it’s fair to say her nomination is delayed or jeopardized.”
Hawley’s office declined to comment.
On Wednesday, Hawley sent a letter indicating he planned to block the effort to confirm another GOP FTC nominee, Andrew Ferguson, before the end of the year so that he can ask him “additional questions on his philosophy concerning Big Tech.”
The Missouri senator also opposes the fast-tracked confirmation of Todd Inman for a post with the National Transportation Safety Board. Both Ferguson and Inman are former aides of Senate Majority Leader Mitch McConnell (R-Ky.).
Capitol Hill insiders have attributed Hawley’s move to a well-documented rift with McConnell. The letter did not mention Holyoak.
Utah held top billing in the lawsuit targeting Google’s Android app store practices and was one of a handful of states – alongside New York, North Carolina, Tennessee and California – that spearheaded the case. Holyoak’s name appears on court documents detailing the terms of the settlement.
Holyoak highlighted her work on Utah’s behalf in prepared remarks for her FTC nomination hearing on Sept. 20, telling the Senate panel that she “led our office’s work” on the high-profile legal fight. Her testimony came just days after Google’s settlement was first announced.
“This is a tremendous win for consumers,” Holyoak said at the time.
The Utah attorney general’s office did not immediately return a request for comment.
The Google settlement was first announced in September, but the specific details were held until after the conclusion of Epic Games’ stunning court victory against Google in a related trial. Epic notably rebuffed a potential settlement.
In the US states’ case, Google agreed to pay $630 million to consumers – or a paltry $6 per eligible US user – and another $70 million to cover state penalties and legal costs, according to court filings this week.
The company also agreed to a series of time-limited changes to its app store policies. That includes allowing developers to use other in-app billing and dialing back its use of so-called “scare screens” when Android users try to use competing app stores.
Critics, including Sweeney, pointed out that the states’ earlier filings had “made a strong case for $10.5 billion in damages.” The Epic Games CEO called it an “unfortunate outcome.”
Meanwhile, Utah Attorney General Sean Reyes noted the deal included “many of the injunctive remedies we sought that will change Google’s behavior” and called the consumer payouts an “added bonus.”
“Holyoak is still trying to figure out what antitrust law is… she’s not equipped to figure out how to enforce it,” one longtime antitrust expert said.
“As to her actually going after Big Tech?” the source added. “I’ll believe it when I see it.”
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