Our Curious Amalgam (American Bar Association)

For decades, Section 8 of the Clayton Act--which prohibits two competing corporations from sharing a common director--was rarely enforced by the U.S. antitrust agencies, and corporations were for the most part left to regulate themselves. In this episode, Alicia Downey and Sergei Zaslavsky talk to antitrust practitioner Diane Hazel about how the U.S. Department of Justice and the Federal Trade Commission have recently been focusing a lot more attention on identifying Section 8 violations based on an expansive view of the scope of the statute. Listen to this episode to learn about recent enforcement trends and what companies can do to avoid potentially unlawful interlocking directorates.

With special guest:

Diane Hazel, Foley & Lardner LLP

Related Links:

Benjamin R. Dryden, Diane Hazel & Richard L. Flannery, An Analysis of the “Deputization” Theory of Section 8 of the Clayton Act, Antitrust Source (August 31, 2023)

Diane Hazel, Richard L. Flannery & Benjamin R. Dryden, How To Assess Interlocking Directorates In Antitrust Ramp-Up, Law 360 (October 25, 2022)

ABA Antitrust Law Section, Interlocking Directorates Handbook (2011)

Hosted by:

Alicia Downey, Downey Law LLC and Sergei Zaslavsky, O'Melveny & Myers LLP

Corporate criminal investigations can be enterprise threatening due to the significant fines, criminal prosecution of company executives, and potential follow-on litigation. For years, companies have invested in corporate compliance programs and now are evaluating the effectiveness of these programs in light of new DOJ guidance. In this episode, Richard Powers and Eyitayo ("Tee") St. Matthew-Daniel speak with John Roberti and Wendy Huang Waszmer about how companies can design a compliance program to detect violations. Listen to this episode to learn more about DOJ's compliance guidance.

Related Links:

Remarks as Prepared for Delivery
Guidance Document

Hosted by:

John Roberti, Allen & Overy and Wendy Huang Waszmer, Wilson Sonsini Goodrich & Rosati

Where do plaintiffs get the information they put into their pleadings? Melinda Coolidge, a leading lawyer who represents plaintiffs, will explain how she researches, develops and diligences antitrust complaints.

Private enforcement plays an important role in antitrust law, and private enforcement starts with the complaint. Our guest is leading plaintiffs’ lawyer Melinda Coolidge, who has developed a number of complaints. In this episode, Melinda talks with John Roberti and Sergei Zaslavsky about how she researches, develops and diligences antitrust complaints. Listen to this episode to learn where plaintiffs get the information they put into their pleadings (hint: if a press release announces you plan to fix prices, Melinda will probably find it).

Related Links:

Chinese Vitamin C Antitrust Litigation 

Research on Effects of Twombly and Iqbal 

Hosted by:

John Roberti, Partner, Allen & Overy and Sergei Zaslavsky, Counsel, O'Melveny & Myers

The COVID-19 pandemic has forced many aspects of our everyday lives to go virtual, and the surge in demand for videoconferencing technology has come with a variety of problems when it comes to privacy, cybersecurity, and consumer protection. Do we finally have a handle on the problems that came with this "Zoom Boom"? From connectivity and consumer choice to misleading claims of data security and cyber attacks, privacy and cybersecurity experts Claudia Rast and David Turetsky join Kayla Odom and Christina Ma to discuss the gambit of issues we have faced surrounding videoconferencing technology. Listen in to learn more about these issues and about what other issues we might expect to encounter when it comes to the use of videoconferencing platforms.

Related Links:

FTC Gives Final Approval to Settlement with Zoom over Allegations the Company Misled Consumers about Its Data Security Practices

Federal Prosecutors Accuse Zoom Executive of Working with Chinese Government to Surveil Users and Suppress Video Calls

Why Insider ‘Zoom Bombs’ Are So Hard to Stop

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Kayla Odom, Freitas & Weinberg LLP

Extreme inequality of wealth and income has been identified as a societal failure and a threat to democracy all over the world. Is competition law the cause or the cure for that inequality? In this episode, we talk with Professor Eleanor Fox of New York University School of Law about her research into the deep connections between wealth and income inequality and competition law in the U.S. and other jurisdictions. Listen to this episode to learn about these connections and the case for including an "equality value" in antitrust analysis.

Related Links:

Abstract: Antitrust and Inequality: The History of (In)equality in Competition Law and Its Guide to the Future, by Eleanor M. Fox and Philipp Bazenov

W.L. Esquire (1977), a novel by Eleanor M. Fox

Hosted by:

Alicia Downey, Downey Law LLC and John Roberti, Allen & Overy LLP

U.S. merger enforcement has been active in recent years, involving legal challenges pursued under some newer theories. But can it go too far to bring certain challenges under Section 2 of the Sherman Act? Koren Wong-Ervin, partner at Axinn, Veltrop, & Harkrider LLP, and a recognized thought leader in the antitrust bar, speaks with Anora Wang and John Roberti on the critical differences and issues involved in merger challenges brought under Section 2 of the Sherman Act, as compared to Section 7 of the Clayton Act. Listen to this episode to learn about the most recent development in U.S. merger enforcement.

Related Links:

Douglas H. Ginsburg & Koren Wong-Ervin, Challenging Consummated Mergers Under Section 2, Competition Policy International (May 2020)

Our Curious Amalgam, #69 Another Way to Unring the Bell? Private Litigation Challenging Consummated Merger

Hosted by:

Anora Wang, Davis Wright Tremaine LLP and John Roberti, Allen & Overy LLP

The U.S. Department of Justice Antitrust Division recently updated its guidance regarding the division’s “Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations.” What are the key changes? In this episode, Alicia Downey and Anora Wang talk to Emma Burnham, Antitrust Division Director of Criminal Enforcement, about how prosecutors assess the effectiveness of corporate antitrust compliance programs against the backdrop of the increasing utilization of artificial intelligence and ephemeral messaging technology. Private practitioner Tee St. Matthew-Daniel of Paul Weiss joins the conversation with her insights on the elements of the updated guidance that companies and their antitrust counsel need to consider, as well as a preview of the Section's biannual Women's Antitrust Roundtable.

With special guests:

Emma Burnham, Director, Antitrust Division, Department of Justice and Tee St. Matthew-Daniel, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Related Links:

U.S. Department of Justice Antitrust Division, Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Nov. 13, 2024)
Antitrust Magazine Interview with Emma Burnham, Director, Antitrust Division, Department of Justice, Antitrust, Vol. 39, Issue 1, Fall 2024 (Dec. 13, 2024) 

Hosted by:

Alicia Downey, Downey Law LLC and Anora Wang, Arnold & Porter Kaye Scholer LLP

Market definition plays a central role in antitrust analysis. Is it appropriate for the U.S. antitrust agencies to identify "overlapping markets" and "submarkets" as relevant markets for antitrust purposes? Keith Klovers, Counsel at Latham & Watkins and former advisor to FTC commissioners Christine S. Wilson and Maureen K. Ohlhausen, talks to Blair Matthews and Anora Wang about why, in his view, the concepts of overlapping markets and submarkets are unsupported by judicial law and economics. Listen to this episode to learn about the alternative approach to market definition that Keith and other practitioners believe are better suited for antitrust analysis.

With special guest:

Keith Klovers, Counsel, Latham & Watkins LLP

Related Links:

Keith Klovers & Jonathan Jacobson, The Overlapping Markets Fallacy, 86 Antitrust Law Journal No. 2 (ABA 2024)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Blair West Matthews, Cleary Gottlieb

When it comes to your health, having digitized information available for seamless sharing across multiple healthcare providers and other stakeholders -- including patients themselves -- is a clear benefit. But can certain actors disrupt the goal of interoperability? David Schwartz, a healthcare-focused antitrust lawyer, joins Jeny Maier and Matt Tabas to introduce us to the challenge of healthcare information blocking and what avenues are available to enforcers to address this behavior. Listen to this episode if you're curious about how competition law principles play a part in ensuring that patients receive more effective care through seamless exchange of electronic medical records.

With special guest:

David Schwartz, Partner, Bryan Cave Leighton Paisner

Related Links:

Everson J, Patel V, Adler-Milstein J., Information blocking remains prevalent at the start of 21st Century Cures Act: results from a survey of health information exchange organizations

2015 Information Blocking Report 

HHS Assistant Secretary for Technology Policy (a/k/a the Office of National Coordinator) webpage on information blocking

HHS ASTP/ONC webpage on information blocking exceptions

Hosted by:

Jeny Maier, Axinn, Veltrop & Harkrider LLP and Matt Tabas, Arnold & Porter Kaye Scholer LLP

There is a long history of competition law impacting sports, from the early days of the baseball exemption to the antitrust laws to present-day amateur athletic challenges. But how do these rules apply to e-gaming, which has many elements of physical sports but with other aspects thrown in? In this episode, Derek Ludwin and Alex Simon speak with John Roberti and Michele Lee about the competition law issues raised by e-gaming and the new challenges they bring. Listen to this episode to learn more about the nuance of sports competition law applied in an innovative context.

Related Links:

Note on E-Sports and Antitrust

Link to the ABA Antitrust Law Section Trade, Sports and Associations homepage

Hosted by:

John Roberti, Allen & Overy LLP and Michele Lee, Twitter

It's often said that patent protection rewards innovation and benefits consumers. But are there competition law issues with having "too many" patents? Kate Swisher, an antitrust litigator at White & Case, joins co-hosts Alicia Downey and Lijun Zhang to discuss the tension between patent law and antitrust law in the context of so-called "patent thickets," particularly in the pharmaceutical industry. Listen to this episode to learn how courts are treating claims that obtaining a large number of patents for a single product may be an anticompetitive practice.

With special guest:

Kate Swisher, White & Case LLP

Hosted by:

Alicia Downey, Downey Law LLC and Lijun Zhang, Freshfields Bruckhaus Deringer LLP

The 2024 edition of the ABA Antitrust Law Section’s Spring Meeting in Washington, D.C., offered the Our Curious Amalgam team a chance to speak with competition law regulators from around the world. While on site at the meeting, we sat down with several of them to discuss their enforcement priorities and other issues, while also getting to know them a little better as people. This episode features interviews conducted by three of our OCA hosts. First, Anora Wang discovers what's happening in France with Benoît Cœuré, the president of the French Competition Authority. Next, Jeny Maier speaks with Nuno Cunha Rodrigues, the president of the Portugese Competition Authority, about his agency's competition enforcement priorities, as well as sightseeing recommendations for Jeny's upcoming visit to Portugal. And finally, Barry Nigro hears about what's going on in Poland with Martyna Derszniak-Noirjean Director of the International Cooperation Office of the Polish Office of Competition and Consumer Protection.

With special guests:

Benoît Cœuré, President, Autorité de la concurrence (France), Nuno Cunha Rodrigues, President, Autoridade da Concorrência (Portugal), and Martyna Derszniak-Noirjean, Director, International Cooperation Office, Office of Competition and Consumer Protection (Poland)

Related Links:

Autorité de la concurrence (France)

Autoridade da Concorrência (Portugal)

Office of Competition and Consumer Protection (Poland)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP, Jeny Maier, Axinn, Veltrop & Harkrider LLP, and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

Major League Baseball ("MLB") is big business, with revenues that exceeded $10 billion in 2019. How and why is MLB immune from liability under the U.S. federal antitrust laws? Co-hosts Alicia Downey and Melissa Maxman invited guests Julian Perlman and Sathya Gosselin to debate the pros and cons of the Baseball Exemption from a policy and practical perspective. Listen to this episode to learn about recent efforts under way in Congress and the courts to eliminate MLB's special exemption.

With special guests:

Julian Perlman, BakerHostetler and Sathya Gosselin, Hausfeld LLP

Related Links:

Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs et al., 259 U.S. 200 (1922) 

Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) 

Flood v. Kuhn, 407 U.S. 258 (1972)

Hosted by:

Alicia Downey, Downey Law LLC and Melissa Maxman, Cohen & Gresser LLP

In recent years competition agencies in several jurisdictions have undertaken studies to assess the state of competition within their borders. Canada now joins the list. In this episode, co-hosts Alicia Downey and Barry Nigro speak with economist Matthew Osborne about the Canadian Bureau of Competition’s 2023 report, “Competition in Canada from 2000 to 2020: An Economy at a Crossroads.” Listen to this episode to learn about how Matthew and his team analyzed competition across the Canadian economy during a critical decade.

With special guest:

Matthew Osborne, University of Toronto Mississauga

Related Links:

Competition in Canada from 2000 to 2020: An Economy at a Crossroads

More about Matthew Osborne

Hosted by:

Alicia Downey, Downey Law LLC and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

Our Curious Amalgam explores topics in antitrust, consumer protection, and privacy law around the world, discussed by leading experts in the areas. It is an amalgam because it is a group of diverse topics all in one place; it is curious because it gets the experts and asks them the in-depth questions.

There has been a ton of antitrust litigation involving the NFL over the past 70 years. What have these cases been about, and what can they teach us about the doctrine and practice of antitrust more broadly? Stephen Ross, a Penn State law professor and an expert on sports antitrust law, joins Sergei Zaslavsky and Christina Ma to discuss the history of NFL (and other sport) antitrust litigation and the key lessons for antitrust practitioners. Listen to this episode to learn about the key antitrust concepts that sports litigation helped develop and sharpen, from intra-enterprise agreement doctrine to the application of the rule of reason.

Related Links:

American Needle v. National Football League Supreme Court Opinion

Stephen Ross bio and publications

Stephen Ross, The Single-Entity Doctrine of Antitrust as Applied to Sports Leagues

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Sergei Zaslavsky, O'Melveny & Myers

This special episode is the audio of a program that ran during the ABA Antitrust Section’s popular Virtual Spring Meeting April 20-May 1, 2020 – enjoy!

Please join us for a TED-talk style keynote from a recognized physician expert from the UCLA Cannabis Research Initiative discussing the latest on the science and structure of the explosive cannabis and CBD industries, which are raising challenging competition, consumer protection, and regulatory issues across the country.

MODERATOR
Kathleen E. FOOTE, Senior Assistant Attorney General & Antitrust Chief, Office of the Attorney General, San Francisco, CA

SPEAKER
Jeff CHEN, MD/MBA and Director of the University of California Los Angeles Cannabis Research Initiative, Jane and Terry Semel Institute for Neuroscience and Human Behavior, Los Angeles, CA

A discussion of the increasing impact of Chinese companies on the EU and worldwide and how if at all EU competition law should adapt to take this into account.

Can and should EU competition law react to the rise of China? Our guest, Georgios Petropoulos, is an economist who has written extensively on the role of competition law in ensuring fair competition. In this episode, Georgios speaks with John Roberti and Matthew Hall about whether EU competition law and policies should be modified to allow for European champions to compete more robustly, and what other changes might be made. Listen to this episode to learn more about the options—and potential risks—to creating competition law exceptions to meet Chinese competition and the other EU law mechanisms that can be used instead.

Related Links:

Georgios Petropoulos blog 15 July 2019 "How should the relationship between competition policy and industrial policy evolve in the European Union?"

European Commission press release 6 February 2019 "Mergers: Commission prohibits Siemens' proposed acquisition of Alstom"

Statement by Commissioner Vestager on the proposed acquisition of Alstom by Siemens and the proposed acquisition of Aurubis Rolled Products and Schwermetall by Wieland 6 February 2019

Commission Vestager speech 1 April 2019 "Finding the right European industrial strategy"

A Franco-German Manifesto for a European industrial policy fit for the 21st Century

EU Industrial Policy After Siemens-Alstom 18 March 2019

Hosted by:

John Roberti, Allen & Overy LLP and Matthew Hall, McGuireWoods London LLP

Do AI algorithms have the ability to conspire and collude? Join us as we dive into the black box of algorithm pricing with Dr. Ai Deng, a principal in the consulting firm Charles River Associates. We will discuss the implications of AI technology on competition, two types of algorithmic collusion, and how AI approaches economic incentives. Don't miss this fascinating discussion about AI and pricing algorithms!

With special guest:

Dr. Ai Deng, Principal, Charles River Associates

Related Links:

Ai Deng, What Do We Know About Algorithmic Collusion Now? New Insights from the Latest Academic Research (2023)

Ai Deng & Cristián Hernández, Algorithmic Pricing in Horizontal Merger Review: An Initial Assessment, Antitrust, Vol. 36, No. 2 (Spring 2022)

Ai Deng, Algorithmic Collusion and Algorithmic Compliance: Risks and Opportunities, The Global Antitrust Institute Report on the Digital Economy 27 (2021)

Las Vegas hotels accused of rental price conspiracy in class action, Reuters (Jan. 26, 2023)

Algorithmic Price Fixing Leads to Antitrust Class Action Lawsuit, Natlawreview.com (Dec. 6, 2022)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Panos Dimitrellos, Secretariat Economists

By its name, a non-compete agreement restricts competition. But can non-competes be procompetitive or otherwise designed to minimize the competition concerns? Dr. Paul Wong, Economist and Director at National Economic Research Associates, Inc. (NERA), speaks with Anora Wang and Christina Ma about the interests and tradeoffs involved in a non-compete agreement and relevant enforcement and legal developments in this space, especially at the state level. Listen to this episode to get the economic story behind non-competes.

Related Links:

Paul Wong, Yun Ling, Emily Walden, Non-Compete Agreements: Might They be Procompetitive in Healthcare?, CPI (May 11, 2020)

Comments of the Antitrust Law Section of the ABA in connection with the FTC workshop on "Non-competes in the workplace: Examining antitrust and consumer protection issues" (April 24, 2020)

Hosted by:

Anora Wang, Davis Wright Tremaine LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

How do advertising investigations come to be and how can they be prevented? Our guest, Chris Cole, is an expert in advertising law and has helped numerous companies get through these investigations. Chris will talk to John Roberti and Ricardo Woolery about the different types of investigations and how they come to be. Listen to this episode to learn more about the different types of advertising investigations and the steps that can be taken to avoid them.

Related Links:

National Advertising Division

International Association of Better Business Bureaus

Federal Trade Commission's Consumer Sentinel Network

Federal Trade Commission, Division of Advertising Practices

Hosted by:

John Roberti, Partner, Allen & Overy LLP and Ricardo Woolery, Associate, Skadden, Arps, Slate, Meagher & Flom LLP

From mergers to monopolization investigations, state attorneys general are playing a more active role in antitrust enforcement. How are states complementing or filling the gaps in federal antitrust enforcement? Phil Weiser, Colorado Attorney General, joins Tammy Zhu and John Roberti to discuss his office's efforts and strategies to promote competition and protect consumers in Colorado. Listen to this episode to learn more about the interplay between state and federal antitrust enforcement today.

Related Links:

Press Release on Colorado Attorney General’s Challenge and Settlement to the UnitedHealth Group and Davita Merger, June 19, 2019

Prescription Insulin Drug Pricing Report, Colorado Department of Law, November 2020

Press Release on FitTurf Settlement for Misleading Consumers on Automatic Renewal Services, September 23, 2020

Philip J. Weiser, The Enduring Promise of Antitrust

Hosted by:

Tammy Zhu and John Roberti

Antitrust class actions are rarely tried all the way through to a jury verdict. How did a team of lawyers from Columbus, Ohio and Washington, D.C. win a defense verdict in not one, but two antitrust trials in an 18-month period? Jim King and Jay Levine talk with Alicia Downey and John Roberti about how the cases were won. Hear from their younger colleagues about the lessons they learned and the most memorable moments in the courtroom. Listen to this episode to catch up with a case that has been ongoing since 2008, with yet more twists and turns to come.

Featured Guests: Allen Carter, Senior Associate, Porter Wright Morris & Arthur LLP and Arlene Boruchowitz, Associate, Porter Wright Morris & Arthur LLP

Related Links:

In re Processed Egg Products Antitrust Litigation, No. 19-1088 (3d Cir. June 22, 2020)

Hosted by:

Alicia L. Downey, Downey Law LLC and John Roberti, Partner, Allen & Overy LLP

Small chicken farmers are being pitted against each other by giant processing companies. Does the chicken industry have a concentration problem? Craig Watts, a contract poultry farmer for 22 years, joins Food & Power writer Claire Kelloway and the former head of the USDOJ Antitrust Division's criminal section, Brent Snyder, to discuss consolidation and price-fixing in the industry. Listen to this episode to learn more about the life of a chicken farmer, the state of concentration in the meat industry, and whether the Biden Administration's plans to fix it will help.

Related Links:

Why This Chicken Farmer Is Growing Mushrooms 
Addressing Concentration in the Meat Processing Industry to Lower Food Prices for American Families
Biden Meatpacking Reforms Lack Punch, Say Critics
Obama's Game of Chicken

Hosted by:

Anant Raut and Christina Ma

States play an important role in enforcing the antitrust laws in the United States. How do they work together among themselves and with federal antitrust agencies? How does the National Association of Attorneys General (NAAG) lead or facilitate relevant efforts? Sarah Oxenham Allen, Chair of the NAAG’s Antitrust Task Force, and a Senior Assistant Attorney General and Antitrust Unit Manager with the Virginia AG’s office, joins John Roberti and Anora Wang, for a discussion on the federal-state inter-agency work for antitrust enforcement. Listen to this podcast to learn more about how more than 50 antitrust enforcers in the United States work together to try to develop a coherent enforcement policy.

Related Links:

NAAG's Antitrust Committee

Hosted by:

John Roberti, Allen & Overy LLP and Anora Wang, Winston & Strawn LLP

At its most basic, marketing often consists of simply explaining a product's qualities relative to its alternatives. Can this go too far and amount to a competition law infringement? Isabelle de Silva, President of the French Competition Authority (FCA), and Bill Batchelor join John Roberti and Matthew Hall to discuss product denigration by reference to the FCA's cases in the pharma sector. Listen to this episode to learn more about these cases and how to draw the line between illegal disparagement of rivals and factual communication of differences.

Related Links:

FCA's AMD (Avastin) decision September 2020

FCA's Subutex decision December 2013

FCA's Plavix decision May 2013

FCA's Durogesic decision December 2017

Hosted by:

John Roberti and Matthew Hall

How can you tell if a review is truly genuine? Learn about who is regulating online reviews and influencers, and how these regulations affect what you see online. Lauren Aronson, an expert in the regulation of online reviews and influencers, speaks with John Roberti and Elyse Dorsey about these issues.

We all read – and often rely on – online reviews. But how can you tell if a review is truly genuine? Our guest, Lauren Aronson, is an expert in the regulation of online reviews and influencers. Lauren speaks with John Roberti and Elyse Dorsey about who is regulating online reviews and influencers, and how these regulations affect what you see online. Listen to this episode and you may learn more about what a trustworthy review looks like.

Some interesting links:

The FTC Endorsement Guides

FTC’s FAQs on the Endorsement Guides

Hosted by:

John Roberti, Allen & Overy LLP and Elyse Dorsey, Federal Trade Commission

The United States v. Apple “eBooks” case was very strong in doctrinal terms—it involved a horizontal price-fixing cartel with overwhelming evidence proving the conspiracy and the harm it caused, and to antitrust lawyers it was a case that the government couldn’t lose. If it is true that Americans believe in markets and competition, then the case should have had strong support. But to the broader public it was not an easy case at all, and Apple and the publishing company defendants found supporters all across the political spectrum. Chris Sagers, distinguished professor and author of United States v. Apple: Competition Policy in America, joins us in taking a closer look at the eBooks case and the public’s perception of the role of antitrust laws.

Related Links:

Chris Sagers, United States v. Apple: Competition in America (Harvard University Press, Sept. 17, 2019)

United States v. Apple, Inc., 952 F. Supp. 2d 638 (S.D.N.Y 2013)

United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015)

More from our guest, Chris Sagers

Hosted by:

John Roberti, Allen & Overy LLP and Kayla Odom, Freitas & Weinberg LLP

In criminal cartel actions, individual executives face prosecution and potential jail time. Defending whose life and liberty are at stake in these matters creates unique challenges. Former prosecutor Doug Tween speaks with John Roberti and Wendy Huang Waszmer about the strategy and psychology necessary to defend individual defendants when everything in their lives is in jeopardy.

Hosted by:

John Roberti, Partner, Allen & Overy and Wendy Huang Waszmer, Partner, Wilson Sonsini Goodrich & Rosati

Screening out potential collusion and manipulation is the key to corporations’ antitrust compliance by flagging suspicious activities early and accurately, and also at a later stage of investigations or private actions. But what exactly is in a screen? The relevant economic tools are very sophisticated and evolving. There are also practical considerations in designing and applying screens, especially as more entities are embracing them. Dr. Rosa Abrantes-Metz, a Principal at The Brattle Group and leading economist in this area, joins Anora Wang and Christina Ma to discuss recent advances and the defense side’s use of these tools. Listen to this episode to get a deeper understanding of screening.

Related links:

Abrantes-Metz, Rosa M. and Metz, Albert, WHY SCREENING IS A “MUST HAVE” TOOL FOR EFFECTIVE ANTITRUST COMPLIANCE PROGRAMS (November 20, 2020). 

Hosted by:

Anora Wang, Davis Wright Tremaine LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

The United States International Trade Commission (ITC) may have been a familiar forum to parties in international trade to address disputes over intellectual property rights. But can the ITC also be an alternative adjudication body for private antitrust litigation? The Honorable F. Scott Kieff, Professor of Law at the George Washington Law School and former USITC commissioner speaks with Anora Wang and Christina Ma on the ITC’s design, the agency’s Section 337 docket, and ITC proceedings involving antitrust. Listen to this episode to learn about the ITC as an agency and its relevance to competition.

With special guest:

F. Scott Kieff, Fred C. Stevenson Research Professor of Law, George Washington University Law School

Related Links:

1. F. Scott Kieff, Private Antitrust at the U.S. International Trade Commission, 14 J. Comp. L. & Econ. 46 (2018)

2. F. Scott Kieff, "A Soup to Nuts Overview of a Job Search: A Common Sense Primer for Law Students" (2009)

Hosted by:

Anora Wang, Arnold & Porter and Christina Ma, Wachtell, Lipton, Rosen & Katz

U.S. antitrust dealing with tech ranges from early government cases involving punch cards to the current government probe into various platforms. But while the tech evolves, has the antitrust concern with monopolization by big tech changed? Prof. Randy Picker, a leading scholar studying antitrust and tech, joins Anora Wang and John Roberti to discuss the once epic, 13-year-long, U.S. antitrust case against IBM, and whether antitrust actions could have impacted the tech landscape for decades to come. Listen to this episode if you wonder whether the antitrust past will repeat itself in the tech world.

Related Links:

United States' Memorandum On The 1969 Case

Hosted by:

John Roberti, Allen & Overy LLP and Anora Wang, Winston & Strawn LLP

Illumina's acquisition of GRAIL is the first deal caught by the European Commission's reinterpretation of its jurisdictional reach under the EU merger control laws. Why is it so controversial and what are the broader implications? Salomé Cisnal de Ugarte, partner at law firm King & Spalding in Brussels, joins Christina Ma and Matthew Hall to discuss the Commission's jurisdictional grab under Article 22 of the EU Merger Regulation, which other deals might be affected and the practical implications for dealmakers. Listen to this episode to learn more about this new uncertainty in merger control in the EU and how to identify and mitigate the risk.

Related Links:

European Commission Guidance on the application of Article 22 of the EU Merger Regulation to certain cases (March 2021)

European Commission case page Illumina/GRAIL merger investigation

European Commission case page Illumina/GRAIL interim measures

Hosted by:

Christina Ma, partner, Wachtell, Lipton, Rosen & Katz and Matthew Hall, partner, McGuireWoods London LLP

Private equity and health care are important aspects of the U.S. economy. Why are antitrust enforcers focused on the intersection of these two areas? Carla Hine, an antitrust attorney well-versed in both industries, joins Jaclyn Phillips and Jeny Maier to discuss the role PE plays in health care transactions and what antitrust enforcers' recent focus means for such transactions. Listen to this episode to learn more about everything from the benefits of PE investment to legal theories underlying the current conversation.

With special guest:

Carla Hine, Counsel, Weil, Gotshal & Manges LLP

Hosted by:

Jaclyn Phillips, White & Case LLP and Jeny Maier, Axinn, Veltrop & Harkrider LLP

As Chinese courts and authorities take on active roles in resolving FRAND disputes, China has become a key jurisdiction for the consideration of FRAND issues globally. But how does the system work? Jing He, founding partner of GenLaw and a leading practitioner with decades of experience in intellectual property, antitrust, and complex litigation, speaks with Anora Wang and Christina Ma about FRAND litigation and arbitration in China. Listen to this episode to explore the frontier of global FRAND wars.

Related Links:

1. He Jing, The Science of China’s Frand Rate-Setting, CPI (March 2020)

2. Jing He, Annie Xue, Melissa Feng, Could (China-Based) Arbitration Save the FRAND Rate Setting Game?, CPI (March 2021)

Hosted by:

Anora Wang, Davis Wright Tremaine LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

Latin America is an increasingly important region for antitrust enforcement. Are there similarities across the region and with other parts of the world? Julián Peña, partner at Allende & Brea, joins Anant Raut and Matthew Hall to discuss LATAM antitrust history and trends. Listen to this episode to learn more about antitrust in Latin America, how it developed and how to approach it.

With special guest:

Julián Peña, partner, Allende & Brea, Buenos Aires

Related Links:

Competition Law in Latin America is Facing New Challenges

Hosted by:

Matthew Hall, partner, McGuireWoods London LLP and Anant Raut, Antitrust and Privacy Law Expert

Mediation is a tool that litigants can use to resolve disputes. What are the advantages of using a mediator, particularly in high-stakes antitrust class actions? Judge Vaughn Walker, retired Chief Judge of the Northern District of California and now mediator, joins John Roberti and Kayla Odom to discuss how mediation can help parties reach certainty and finality, the best timing for mediation, and strategies mediators use to help participants. Listen in to learn why people should choose mediation, and to learn the "do's" and "don'ts" when it comes to mediation and making settlement possible.

Related Links:

#112 What Can AI Do? Examining the Possibilities of Using Artificial Intelligence in the Law

Hosted by:

John Roberti, Partner, Allen & Overy LLP and Kayla Odom, Associate, Freitas & Weinberg LLP

Section 230 of the 1996 federal Communications Decency Act immunizes online platforms from civil liability based on third-party content as well as for removing such content in certain circumstances. Twenty-five years after its enactment, has this immunity gone too far in protecting the behemoth internet companies from accountability and facilitating their pervasive growth and online presence? In this episode, co-hosts Alicia Downey and Christina Ma talk to O’Melveny partner Tod Cohen, a former in-house legal and public policy counsel for a number of prominent social media and e-commerce companies, about the connection between Section 230 and antitrust concerns regarding certain Internet platforms, and why Section 230 has become such a focal point of controversy. Listen to this episode to learn why Section 230 will likely continue to be making headlines in the world of antitrust and consumer protection.

Related Links:

CDA Section 230: Its Past, Present, and Future

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Alicia Downey, Downey Law LLC

During this time of unprecedented divergence between state and federal antitrust enforcers, the panel will examine the legal framework and context for different investigation and enforcement perspectives, recent cases and settlements, and how to navigate investigations, negotiations, or enforcement actions where the procedural posture or relief sought by federal and state enforcers differs.

SESSION CHAIR / MODERATOR
Melanie A. HALLAS / Assistant Vice President – Senior Legal Counsel, AT&T Services, Incorporated, Washington, DC

SPEAKERS

• Michael COWIE / Dechert LLP, Washington, DC
• David I. GELFAND / Cleary Gottlieb Steen & Hamilton LLP, Washington, DC
• Elinor R. HOFFMANN / Acting Chief, Antitrust Bureau, Office of the Attorney General, New York, NY
• Amanda P. REEVES / Latham & Watkins LLP, Washington, DC

The European Commission's EU State aid investigations into the tax ruling practices of EU countries are highly controversial - none more so than its ruling, overturned in court, that Apple pay back multi-billion Euros to Ireland. What is EU State aid law and what are these cases about? Alfonso Lamadrid, Brussels-based lawyer with Garrigues, joins Christina Ma and Matthew Hall to discuss the background to the Apple/Ireland case, the findings in the case, why it was overturned and the implications of this. Listen to this episode to learn more about the critical area of EU State aid law and its application to tax rulings in the EU.

Related Links:

European Commission 2016 press release on Apple/Ireland State aid decision

European Commission 2016 Apple/Ireland State aid decision

European Commission 2020 statement (Commissioner Vestager) on General Court judgment overturning 2016 Apple/Ireland State aid decision

General Court of the European Union 2020 press release on Apple/Ireland judgment

General Court of the European Union 2020 Apple/Ireland judgment

Hosted by:

Christina Ma, Associate, Wachtell, Lipton, Rosen & Katz and Matthew Hall, Partner, McGuireWoods London LLP

Merger trials are always fascinating, and Sprint-T-Mobile was a particularly interesting and important case. How did the merging parties rebut the Government's case and convince the district court to allow the merger to proceed? Two lawyers who played a key part in engineering the defense, George Cary and Lindy Bernhardt from Cleary Gottlieb, join hosts John Roberti and Sergei Zaslavsky to provide an insider's view of this merger defense. Listen to this episode to learn about how to defend a merger when the Government has the structural presumption on its side.

Related Links:

Sprint - T-Mobile merger district court opinion

Hosted by:

John Roberti, Partner, Allen & Overy and Sergei Zaslavsky, Counsel, O'Melveny & Myers

Global cartel enforcement saw a resurgence in 2021, but throughout the globe, we saw a continued focus on domestic matters. Do last year's developments tell us anything about the areas that are likely to come into focus in 2022? John Terzaken, Partner and Global Co-Chair of Simpson Thacher's Antitrust and Trade Regulation Practice, joins Matthew Hall and Jaclyn Phillips to discuss the rise in cartel enforcement activity and what trends to look out for in 2022. Listen to this episode to learn more about enforcement priorities that may be on the rise and whether we can expect to see the growing globalization of enforcement in 2022.

Related Links:

Simpson Thacher's 2022 Global Cartel Forecast

Hosted by:

Matthew Hall, Partner, McGuireWoods London LLP and Jaclyn Phillips, Associate, White & Case LLP

Web3 is being touted as the future of the internet. The vision for this new version of the web revolves around the notion of decentralization, driven by blockchain-based technologies including cryptocurrencies and NFTs. User privacy is central to these advances, but what does all of this mean for decentralized finance compliance and identity verification? How does a small tech company navigate the overlapping web of privacy, competition, and other regulations? And what are the implications for user data access? In this episode, co-hosts Elyse Dorsey and Jana Seidl speak with Matt McGuire, General Counsel of Violet, about all things Web3, crypto, and privacy, including what’s happening with the California Privacy Protection Agency’ CPRA implementation.

With special guest:

Matt McGuire, General Counsel, Violet

Related Links:

CPPA Rulemaking

Matt McGuire, Violet Comments to CPPA

Where’s Ooki? CFTC’s Lawsuit Delivery Via Chatbox Raises Eyebrows

Violet

Hosted by:

Elyse Dorsey and Jana Seidl

The amount of private antitrust litigation outside the U.S. continues to increase dramatically. This is no longer confined to the traditional jurisdictions of the UK, Germany and the Netherlands, but is now worldwide. Follow-on claims, which rely on a regulatory decision to prove an infringement, and stand-alone claims, where the infringement must be shown, are common. In the EU, virtually every cartel decision by a regulator is now followed by a damages claim from customers. However, cartel damages claims are far from the only types of claim being brought. Mat Hughes, a leading London-based economist with AlixPartners, discusses the key issues raised when valuing and arguing loss in private antitrust litigation outside the U.S., from both the claimants’ and defendants’ points of view.

Hosted by:

John Roberti, Allen & Overy LLP and Matthew Hall, McGuireWoods London LLP

Privacy and competition both have been hot subjects, especially when discussing the new digital economy. But will the two doctrines inevitably converge, or are they in fundamental tension with each other? FTC Commissioner Noah Phillips joins Sergei Zaslavsky and John Roberti to discuss this timely subject and share his views on when privacy should (and should not) play a role in antitrust analysis. Listen to this episode for Commissioner Phillips' take on privacy considerations in merger review, differences between privacy and price competition, federal privacy legislation, and more.

Related Links:

Commissioner Phillips' January 30, 2020 Speech - "Should We Block This Merger? Some Thoughts on Converging Antitrust and Privacy"

Hosted by:

John Roberti, Allen & Overy and Sergei Zaslavsky, O'Melveny & Myers

Digital platforms host more and more of our daily activities. Many are free and seem to cost nothing other than the users’ attention. How do we understand the economics of the “free” and its antitrust implications? Prof. John Yun, Director of Economic Education at the Global Antitrust Institute (GAI) at George Mason University, joins John Roberti and Anora Wang, for a discussion on concepts including “disutility,” “diversion ratio,” “attention market,” and “contestable market,” all put in layman’s terms. Listen to this podcast to learn more about the price of something in our daily lives that appears to be free.

Related Links:

The Global Antitrust Institute (GAI) at George Mason University

Hosted by:

John Roberti, Allen & Overy LLP and Anora Wang, Winston & Strawn LLP

Generics and biosimilars are an important part of the pharmaceutical landscape in Europe. What are the competition law issues faced by suppliers of those products? Adrian van den Hoven, Director General of trade association Medicines for Europe, joins John Roberti and Matthew Hall to discuss the key concerns of generic and biosimilar suppliers and also the dramatic impact of COVID-19 on them. Listen to this episode to learn more about the application of competition law to pharmaceuticals and the background to the 2020 comfort letter granted by the European Commission at the request of Medicines for Europe.

Related Links:

Medicines for Europe White Paper on Barriers to Generic and Biosimilar Market Entry

Medicines for Europe Paper on Patent Linkage

Medicines for Europe Paper on Divisional Patents

Hosted by:

John Roberti, Partner, Allen & Overy and Matthew Hall, Partner, McGuireWoods London LLP

The pricing of pharmaceuticals, and in particular whether prices are "too high" or “excessive”, is a contentious topic in the EU, as elsewhere. What is "excessive" in this context and what other antitrust arguments are used in this key sector? Paul Csiszar, Director, European Commission, DG Competition and Bill Batchelor, Partner, Skadden, Arps, Slate, Meagher & Flom LLP join Matthew Hall and John Roberti to discuss recent cases and policy directions, including several cases based on allegations of abuse of dominance by pharmaceutical companies. Listen to this episode to learn more about how EU competition/antitrust law can be one part of the toolbox available to investigate and deal with the issue of excessive pricing in pharmaceuticals.

Related Links:

European Commission opens formal investigation into Aspen Pharma's pricing practices for cancer medicines

UK Competition and Markets Authority: Phenytoin sodium capsules: suspected unfair pricing

European Court of Justice: Case C-307/18 Generics (UK) and Others

UK Competition and Markets Authority: Remicade: alleged abusive discount scheme

Hosted by:

John Roberti, Partner, Allen & Overy, LLP and Matthew Hall, Partner, McGuireWoods London LLP

In recent years, the consumer welfare standard has been heavily criticized by some as too weak or simply inadequate to address the complex antitrust issues raised by the modern economy. But what alternatives exist? Tim Wu, author of The Curse of Bigness: Antitrust in the New Gilded Age and Julius Silver Professor of Law, Science and Technology at Columbia Law School, joins Christina Ma and John Roberti to discuss what hipster antitrust is and its potential for reshaping how we think about the consumer welfare standard or replacing it. Listen to this episode if you want to think critically about the changes needed, if any, to antitrust policy.

Related Links:

https://www.law.columbia.edu/news/2018/11/tim-wu-curse-of-bigness-antitrust

https://www.wired.com/story/tim-wu-says-us-must-enforce-antitrust-laws/

Hosted by:

Christina Ma, Associate, Wachtell Lipton and John Roberti, Partner, Allen & Overy

The UK merger control system provides for voluntary filings but that does not mean parties to deals can hide from the regulator, the UK Competition and Markets Authority (CMA). But how does the CMA's Mergers Intelligence Committee (MIC) identify deals to ask about and review the informal briefing papers which can be submitted by parties hoping to avoid a full filing? Eleni Gouliou, a Director of Mergers at the CMA, who has chaired MIC, joins Anora Wang and Matthew Hall to discuss the work of MIC and its place within the CMA's merger review processes. Listen to this episode to learn more about this area of the CMA's merger control work, which is increasingly important now that the UK is outside the EU merger control regime.

With special guest:

Eleni Gouliou, Director of Mergers, UK Competition and Markets Authority

Related Links:

UK Competition and Markets Authority "Guidance on the CMA's mergers intelligence function" (December 2020)
UK Competition and Markets Authority merger inquiry outcome statistics

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Matthew Hall, McGuireWoods London LLP

Privacy law has become increasingly relevant and important with the advent of the internet and all things digital and most agree that these laws should protect children's privacy, in particular. But what are the tradeoffs? James Cooper, Professor of Law and Economics at Scalia Law School at George Mason University, joins Christina Ma and Anora Wang to discuss the Children's Online Privacy and Protection Act, proposed changes to the rules enforcing the Act, and the potential tradeoffs to certain proposals. Listen to this episode of Our Curious Amalgam if you want to learn more about how the U.S. regulates online privacy for kids and its impact.

With special guest:

James Cooper, Antonin Scalia Law School

Related Links:

Garrett Johnson, Tesary Lin, James Cooper and Liang Zhong, COPPAcalypse (2023)

Comment on FTC's Proposed COPPA Rulemaking, Program on Economics & Privacy, George Mason University Scalia Law School (2024)

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Anora Wang, Arnold & Porter Kaye Scholer LLP

Under the U.S. Supreme Court case FTC v. Actavis (2013), antitrust analysis of “reverse settlements” of IP litigations between makers of branded small molecule drugs and generics requires an analysis under the rule of reason. Are there distinct challenges presented by settlements between branded biologics and biosimilars? Sean Sheridan and Archan Ruparel, principals at Charles River Associates, speak with Anora Wang and Christina Ma on the complexities of negotiating patent settlements involving biosimilars. Listen to this episode to learn about pharmaceutical entry, price erosion, and more.

With special guests:

Sean Sheridan, Principal, Charles River Associates and Archan Ruparel, Principal, Charles River Associates

Related Link:

Sean Sheridan and Archan Ruparel, FDA Biosimilar Approval Foreshadows IP Litigation Issues (September 15, 2021)

Hosted by:

Anora Wang, Arnold & Porter and Christina Ma, Wachtell, Lipton, Rosen & Katz

Digital platforms are under immense public scrutiny, in the United States and elsewhere, leading to investigations and cases likely to be filed. But how to understand the complex antitrust analysis relevant to platforms including the measurement of power and relevant markets? And if an antitrust case is made against platforms, what’s the fix? Prof. Herbert Hovenkamp, a leading scholar, joins Anora Wang and Christina Ma to discuss the U.S. congressional investigation of platforms as reported in October 2020 and considerations that should go in the design of antitrust remedies involving platforms.

Related Links:

U.S. House Report on Competition in Digital Markets (October 2020)

Herbert Hovenkamp, Antitrust and Platform Monopoly

Hosted by:

Anora Wang, Winston & Strawn LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

The Spring Meeting brings together thousands of antitrust practitioners and enforcers and this year was no exception. What did the attendees have to say? Anant Raut and Anora Wang speak with Olivier Guersent, Director General of Competition at the European Commission and Martin Coleman, Panel Chair and Panel Inquiry Chair of the UK Competition and Markets Authority, on their priorities for the year and advice for practitioners. Listen to this episode to hear from these international enforcers "live" from the Spring Meeting.

With special guests:

Olivier Guersent, Director General, European Commission Competition and Martin Coleman, Panel Chair and Panel Inquiry Chair, Competition and Markets Authority

Hosted by:

Anant Raut and Anora Wang

This special episode is the audio of a program that ran during the ABA Antitrust Section’s popular Virtual Spring Meeting April 20-May 1, 2020 – enjoy!

You won’t want to miss this annual session where you will hear directly from the Federal Trade Commission Directors of the Bureau of Competition, Bureau of Consumer Protection, and Bureau of Economics about the latest in antitrust and consumer protection enforcement and policy initiatives.

SESSION CHAIR
Shylah R. ALFONSO, Perkins Coie LLP, Seattle, WA

MODERATOR
Jonathan I. GLEKLEN, Arnold & Porter, Washington, DC

SPEAKERS
Ian R. CONNER, Director, Bureau of Competition, Federal Trade Commission, Washington, DC Andrew SMITH, Director, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC Andrew SWEETING, Director, Bureau of Economics, Federal Trade Commission, Washington, DC

The 2023 Annual Spring Meeting of the ABA Antitrust Law Section offered the Our Curious Amalgam team a chance to speak with international competition law enforcers from around the world. In this episode--one in a series of episodes featuring interviews recorded live at the 2023 Spring Meeting--host Sergei Zaslavsky speaks with Willard Mwemba, the Director and CEO of the COMESA Competition Commission. Listen to this episode to hear about COMESA's enforcement priorities, what trends Director Mwemba sees on the horizon, and what advocates appearing before the Commission should do to be most effective. Listeners will also hear about COMESA's special challenges and opportunities as the agency enters its second decade.

With special guest:

Willard Mwemba, Director and Chief Executive Officer, COMESA

Related Links:

COMESA Competition Commission 

Hosted by:

Sergei Zaslavsky, O'Melveny & Myers LLP and Alicia Downey, Downey Law LLC

Market definition is a core concept in antitrust law. While product markets are usually defined based on substitutability, are there situations where products that are not substitutes belong in the same market? Kevin Hahm, a partner at Hunton Andrews Kurth and a long-time FTC enforcer, joins Sergei Zaslavsky and Christina Ma to discuss bundle and cluster markets --- those unique situations where products that are not substitutes are grouped in the same market. Listen to the podcast to learn what bundle and cluster markets are and why they matter.

Related Links:

ProMedica Sixth Circuit Opinion 

Staples II District of DC Opinion

Whole Foods DC Circuit Opinion

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Sergei Zaslavsky, O'Melveny & Myers

Many companies already use or are introducing "pay or OK" models for targeted ads on the Internet. What legal issues does this raise in the EU? Frithjof Michaelsen, Digital Policy Officer at UFC-Que Choisir, the French Federation of Consumer Associations, joins Matthew Reynolds and Matthew Hall to discuss Meta's introduction of pay or OK, otherwise known as pay or consent, on its Facebook and Instagram platforms in the EU, the relevant law and the implications of this for the wider adtech ecosystem. Listen to this episode to learn more about the application of EU consumer and data protection rules and the EU Digital Markets Act to this model.

With special guest:

Frithjof Michaelsen, Digital Policy Officer, UFC-Que Choisir (France)

Related Links:

"Choose to lose with Meta" document; BEUC’s assessment of Meta’s subscription model (pay or OK) from a consumer law perspective (source: European Data Protection Board)

BEUC "Choose to Lose With Meta" webpage (source: European Data Protection Board)

BEUC Press Release "Consumer groups file complaint against Meta’s unfair pay-or-consent model" (source: European Data Protection Board)

Timeline of Meta and GDPR (source: European Data Protection Board)

NOYB GDPR Withdrawal Complaint (source: noyb.eu)

NOYB GDPR Pay or OK Complaint (source: noyb.eu)

NOYB Press Release "Instagram & Facebook: 28 civil rights organisations urge European DPAs to reject “Pay or Okay” in pending case over € 250 “privacy fee”" (source: noyb.eu)

EU Digital Markets Act (source: European Commission)

BEUC and EU consumer group complaints against Meta under EU GDPR February 2024

Hosted by:

Matthew Reynolds, Huth Reynolds LLP and Matthew Hall, McGuireWoods London LLP

Developing a robust and effective corporate compliance program can be daunting. Given the sheer size of many enterprises, it is necessary to make choices about how to apply resources. Data can help companies to make good choices and also to make their compliance programs more effective by allowing for better modeling. In this episode, Liban Jama and Chris Wall speak with John Roberti and Wendy Huang Waszmer about how companies can use data that is in their systems. Listen to this episode to learn more about how to design a more effective compliance program.

Related Links:

AAG Speech on Compliance

DOJ Antitrust Division Corporate Compliance Guidance 

Hosted by:

Wendy Waszmer, Wilson Sonsini Goodrich & Rosati and John Roberti, Allen & Overy LLP

Are you curious about issues related to competition and geopolitical concerns in the global semiconductor sector? In this episode, Barry Nigro and Alicia Downey talk to Arnold & Porter partner David Emanuelson, formerly in-house M&A counsel for Intel Corporation, about how the Chinese government's State Administration for Market Regulation (SAMR) approaches merger clearance. Listen to this episode to learn about the geopolitical pressures on the semiconductor industry and what antitrust counsel can do to improve the chances of getting a deal cleared in China.

With special guest:

David Emanuelson, Arnold & Porter

Related Links:

David Emanuelson & Danielle Drory, "The Potential Chilling Effects of Lowering Standards for Tech M&A Enforcement," 34 Antitrust 14 (2020)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Alicia Downey, Downey Law LLC

Antitrust is usually focused on consumers, but increasingly, effects of competition on workers have been a focus of scholarship, policy, and enforcement. What is behind the growing prominence of labor antitrust, and what can we expect going forward? Hiba Hafiz, a professor at BC Law, joins Sergei Zaslavsky and John Roberti to discuss how labor antitrust applies in different contexts and the tensions courts are grappling with in applying consumer-focused antitrust doctrine to cases involving workers. Listen to this episode for an engaging introduction to this important topic.

Hiba Hafiz, Labor's Antitrust Paradox 

Todd v. Exxon Corporation 

DOJ and FTC 2016 Antitrust Guidance for HR Professionals 

Hosted by:

John Roberti, Allen & Overy and Sergei Zaslavsky, O'Melveny & Myers

In the antitrust bar, there are many litigations but few trials. Many antitrust cases are settled and some of the highest damages are obtained through class actions. In practice, how do antitrust class actions settle and what's involved in the process? What are some important actors and tools in reaching the settlement?

Megan Jones, partner at the law firm Hausfeld, speaks with John Roberti and Anora Wang about the risks on both sides in a settlement and the difficulties to get to a common place. Listen to this episode to learn about the ways to successfully settle antitrust class actions.

Hosted by:

John Roberti, Partner, Allen & Overy LLP and Anora Wang, Associate, Winston & Strawn LLP

In our “Three to Keep, Three to Change” series, we ask antitrust thought leaders a simple yet provocative question. What three things do you like about antitrust law and would keep, and what three things would you change? In this episode, law and economics scholar and former FTC Commissioner Josh Wright speaks with John Roberti and Sergei Zaslavsky about independent economic analysis at the FTC, merger retrospectives, the value of dissents, the use of presumptions in merger cases, and more. Listen to this episode for an entertaining and wide-ranging discussion of everything from agency clearance battles to wrestling holds.

Related Links:

Edith Ramirez Speech on FTC Merger Retrospectives

Josh Wright Ardagh Dissent

Josh Wright Dollar Tree Dissent

Hosted by:

John Roberti, Allen & Overy and Sergei Zaslavsky, O'Melveny & Myers

The Department of Justice Antitrust Division enjoys many tools to hone its criminal investigations, including many designed to incentivize cooperation from potential defendants. But how do Deferred Prosecution Agreements differ from the leniency program, and when might the Antitrust Division choose to negotiate one? Jon Jacobs, a seasoned antitrust trial lawyer and DOJ alumnus, joins Christina Ma and Matt Harper to examine how Deferred Prosecution Agreements factor into the Antitrust Division’s criminal investigation and when Deferred Prosecution Agreements might be expected in the future. Listen to this episode to learn more about Deferred Prosecution Agreements and how the Antitrust Division uses them.

Related Links:

DOJ Antitrust Division - Evaluation of Corporate Compliance Programs in
Criminal Antitrust Investigations

Hosted by:

Christina Ma and Matt Harper

The 2023 Annual Spring Meeting of the ABA Antitrust Law Section offered the Our Curious Amalgam team a chance to speak with international competition law enforcers from around the world. In this episode, we ask Matthew Boswell, Commissioner of the Canadian Competition Bureau, Alexandre Cordeiro Macedo, President of CADE in Brazil, and Dr. Chih-Min (Andy) Chen, Vice Chairperson of the Taiwan Fair Trade Commission, about their respective agencies' enforcement priorities, what trends they see on the horizon, and what advocates with matters before their agencies should do to be most effective. As a bonus, listeners will also get to know our distinguished guests a little better on a personal level.

With special guests:

Matthew Boswell, Commissioner of Competition, Competition Bureau Canada, Alexandre Cordeiro Macedo, President, Conselho Administrativo de Defesa Econômica (CADE), and Dr. Chih-Min (Andy) Chen, Vice Chairperson, Taiwan Fair Trade Commission

Related Links:

Competition Bureau Canada
Conselho Administrativo de Defesa Econômica (CADE)
Taiwan Fair Trade Commission

Hosted by:

Alicia Downey, Downey Law LLC and Anora Wang, Arnold & Porter Kaye Scholer LLP

In September 2023, the Federal Trade Commission and 17 states filed a massive, landmark antitrust lawsuit against Amazon, alleging that Amazon engaged in anti-competitive and unfair practices to expand and maintain an illegal monopoly in two online markets, the market for marketplace services, where sellers buy services from Amazon, and the consumer-facing market for online superstores. The complaint focuses on two main theories: anti-discounting and tying Prime eligibility to Amazon's fulfillment services. Adam Kovacevich, Founder and CEO of Chamber of Progress, speaks about the potential consequences of this suit for antitrust enforcement, consumers, and other companies. Tune in to find out more about the complaint, its potential consequences for antitrust enforcement, consumers, and other firms competing in the online marketplace.

With special guest:

Adam Kovacevich, Founder and CEO, Chamber of Progress

Related Links:

FTC Sues Amazon for Illegally Maintaining Monopoly Power

Complaint

Amazon: The FTC’s lawsuit against Amazon would lead to higher prices and slower deliveries for consumers—and hurt businesses

Hosted by:

Jana Seidl, Baker Botts LLP and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

Demand for diverse economists has exploded, but institutions still fail to recruit, retain, and promote women long term. Are issues of abuse and harassment deterring women from the field? In this episode, co-hosts Elyse Dorsey and Jana Seidl speak with Paola Valenti, Professor of Professional Practice at Columbia Business School, and Kellie Kemp, Senior Counsel at Uber about the struggles women face in the economics profession today. Listen to this episode to learn about why it’s difficult to find women economists, why the antitrust community needs to promote women economists, and tools for confronting gender discrimination and sexual misconduct.

With special guests:

Paola Valenti, Professor of Professional Practice at Columbia Business School

 and Kellie Kemp, Senior Counsel at Uber

Related Links:

Alison F. Del Rossi and Joni Hersch, Gender and the Consulting Academic Economist

Report of the Committee on the Status of Women in the Economics Profession

Elizabeth M. Bailey, Gender Diversity in Experts: A Reply to and Extension of Rafkin and Kuykendall

Hosted by:

Elyse Dorsey, Kirkland & Ellis LLP and Jana Seidl, Baker Botts LLP

Privacy law is developing quickly in the United States and is becoming all the more important with the development of California's Privacy Law. Our guest, Alysa Hutnik, is the Consumer Protection Officer for the Antitrust Section and an expert on privacy law. In this episode, Alysa speaks with John Roberti and Anora Wang about privacy law generally and California’s new privacy law, its substance and relationship to other laws. Listen to this episode to learn more about how California and other states are shaping an expansive privacy regulatory regime in the United States.

Hosted by:

John Roberti and Anora Wang

Although there is little question as to the need for affordable, accessible, and high-quality pharmaceuticals, there is immense disagreement as to how best to achieve that end. What are the key issues facing pharmaceutical antitrust enforcement today? Michael Kades, Director of Markets and Competition Policy for the Washington Center for Equitable Growth, joins Christina Ma and John Roberti to discuss the current state of pay-for-delay, the FTC's Daraprim case, FTC restitution before SCOTUS, and biologics. Listen to this episode for a quick primer on things to pass and things to come in pharmaceutical antitrust enforcement.

Related Links:

https://equitablegrowth.org/competitive-edge-underestimating-the-cost-of-underenforcing-u-s-antitrust-laws/

https://equitablegrowth.org/congress-adopts-historic-prescription-drug-pricing-reform/

https://www.ftc.gov/system/files/documents/cases/2020.01.27_daraprim_complaint_final_redacted.pdf

https://www.supremecourt.gov/DocketPDF/19/19-825/126165/20191219140044609_No.%2019-__%20PetitionForAWritOfCertiorari%20and%20Appendix%20FTC%20v.%20Credit%20Bureau%20Center.pdf

Hosted by:

Christina Ma, Associate, Wachtell Lipton Rosen & Katz and John Roberti, Partner, Allen & Overy

In April 2024, the Our Curious Amalgam team interviewed international competition law regulators while on site at the ABA Antitrust Law Section's Annual Spring Meeting in Washington, D.C. In this episode, Anora Wang talks to Samuel Chan, Chairman of the Hong Kong Competition Commission, and Commissioner Reiko Aoki of the Japan Fair Trade Commission. Listen to what they had to say about their respective agencies' major achievements of the past year and current and future enforcement priorities, while also getting to know them a little better as people.

With special guests:

Samuel Chan, BBS, JP, Chairman, Hong Kong Competition Commission and Reiko Aoki, Commissioner, Japan Fair Trade Commission

Related Links:

Hong Kong Competition Commission

Educational short videos produced by the Hong Kong Competition Commission

Japan Fair Trade Commission

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP

Influential writers, from Ida Tarbell to John McGee to Lina Khan, have inspired sweeping changes to antitrust laws, but not all influential writing should be relied upon as the basis for change. What happens when we rely on the wrong argument? Antitrust scholar Christopher Leslie goes back 100 years in antitrust law history with Tammy Zhu and John Roberti to dissect the work of influential writers who have shaped the course of antitrust law. Listen to this episode to learn about the fascinating collision courses between facts and theory in antitrust law history.

Related Links:

Christopher Leslie, Revisiting the Revisionist History of Standard Oil
Christopher Leslie, Faculty webpage

Hosted by:

John Roberti, Allen & Overy LLP and Tammy Zhu, Sourcegraph

The bases for the enhanced antitrust enforcement programs at the Antitrust Division have been discussed often but understood rarely. What are the key assumptions that are being challenged as part of the new antitrust regime? David Lawrence, Policy Director at the Department of Justice Antitrust Division, joins John Roberti, Anant Raut and Aaron Yeater to discuss four key assumptions that new enforcers view with skepticism. Listen to this episode to understand better what is animating enforcement at the Antitrust Division.

With special guest:

David Lawrence, Policy Director, U.S. Department of Justice Antitrust Division

Related Link:

https://www.justice.gov/opa/speech/antitrust-division-policy-director-david-lawrence-delivers-keynote-hal-white-antitrust

Hosted by:

John Roberti, Cohen & Gresser LLP, Aaron Yeater, Analysis Group, and Anant Raut

The U.S. passenger airlines have been active in mergers and acquisitions since last year or so, with the Alaska/Hawaiian acquisition, the failed JetBlue/Spirit merger, and more being proposed. But how are these deals and airline competition in general analyzed from an economic perspective? Dr. Gautam Gowrisankaran, Professor of Economics at Columbia University and Senior Advisor at Cornerstone Research, speaks with Anora Wang and Kelsey Paine on market definition, calculation of market share, entry, and beyond. Listen to this episode to learn how economic analyses lay out in specific airline transactions.

With special guest:

Dr. Gautam Gowrisankaran, Professor of Economics, Columbia University; Senior Advisor; Cornerstone Research

 Related Links:

Chris Bruegge, Gautam Gowrisankaran, & Alex Gross, A Policy Function Approach to Price Effects: an Application to the JetBlue-Spirit Merger (Nov. 13, 2024)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Kelsey Paine, Baker Botts LLP

Employment data is a critical component of the financial ecosystem—it’s required documentation if you want to rent or buy a home, purchase a car, apply for a new job, or get a loan. As digital technology is transforming the manner in which payroll information is collected and leveraged, we’re faced with important questions, the answers to which will shape the framework going forward. In this episode, we speak with Nick Lawson, General Counsel at Argyle, about all things employment data, including the current framework, what’s happening with the CFPB's rulemaking on personal financial data rights, and predictions for what might be ahead.

With special guest:

Nicholas Lawson, General Counsel, Argyle Systems Inc.

Related Links:

CFPB Newsroom - CFPB Kicks Off Personal Financial Data Rights Rulemaking

Argyle - Let’s Make Consumer Permissions Fundamental to Payroll Data

Hosted by:

Jana Seidl, Senior Associate, Baker Botts LLP and Elyse Dorsey, Partner, Kirkland & Ellis LLP

U.S. bank mergers are on the rise and so are claims that agencies “rubber stamp” merger applications and need stricter standards. But seen through the history of U.S. banking, does the existing merger review of bank mergers actually need reform? David Neill, Of Counsel at Wachtell, Lipton, Rosen & Katz and a leading bank merger practitioner, speaks with Anora Wang and Christina Ma on whether modernization is needed or not. Listen to this episode to learn about U.S. bank merger reviews.

Related Links:

Revising The Bank Merger Guidelines Part I, The Banking Law Journal (Jan. 2021)

Revising The Bank Merger Guidelines Part II, The Banking Law Journal (Feb. 2021)

Keep Politics Out of Bank Merger Antitrust Policy, Columbia Law School Blue Sky Blog (August 12, 2021)

Hosted by:

Anora Wang, Davis Wright Tremaine LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

For 30 years, companies in healthcare and other industries have relied on agency guidance immunizing certain kinds of information exchanges with competitors. How does DOJ's recent withdrawal of these safe harbors change the landscape? Leslie Overton, former DOJ official and currently a partner at Axinn, Veltrop & Harkrider, joins Sergei Zaslavsky and Jaclyn Phillips to discuss DOJ's policy change. Listen to this episode to learn more about the antitrust agencies' approach to information exchanges and what the withdrawal of prior policy statements means for practitioners and in-house counsel.

With special guest:

Leslie Overton, Axinn, Veltrop & Harkrider

Related Links:

DOJ announcement of withdrawal of healthcare policy statements

Principal Deputy Assistant Attorney General Doha Mekki's speech regarding withdrawal of policy statements

Hosted by:

Sergei Zaslavsky, O'Melveny & Myers and Jaclyn Phillips, White & Case

Are prescription drug prices too high and can antitrust and competition law be used to regulate the “right” price? NYU professor Harry First and Lauren Rackow will talk to John Roberti and Ricardo Woolery about the recent trend of increasing prescription drug prices, whether the “right” price exists, and whether antitrust and competition law have tools to regulate these prices. Listen to this episode to learn more about how competition experts think about high drug prices and calls for greater antitrust and competition law enforcement to regulate them.

Related Links:

Harry First, Excessive Drug Pricing as an Antitrust Violation, 82 Antitrust Law Journal 701 (2019)

U.S. Dep't of Justice, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, Chapter 1 (2008) 

A Brief Overview of the Federal Trade Commission's Investigative, Law Enforcement, and Rulemaking Authority, Section II(2)

Overview of Article 102 of the Treaty on the Functioning of the European Union

Hosted by:

John Roberti and Ricardo Woolery

The implications of a merger are measured against the situation without the transaction going ahead. But what happens when the business being taken over is in difficulties? Courtney Dyer of O'Melveny & Myers in Washington, DC and Nicholas Levy of Cleary Gottlieb in London join Matthew Hall and John Roberti to discuss the application of the merger control rules to failing firms, including the impact of the coronavirus pandemic. Listen to this episode to learn more about the failing firm "defense" in merger control in the U.S., EU, UK and elsewhere.

Related Links:

Summary of UK CMA’s position on mergers involving ‘failing firms’ (April 2020)

UK CMA investigation of Amazon's investment in Deliveroo (2020)

EU Guidelines on the assessment of horizontal mergers under the Council Regulation on the control
of concentrations between undertakings (2004)

U.S. DoJ and FTC horizontal merger guidelines (2010)

Hosted by:

Matthew Hall, Partner, McGuireWoods London LLP and John Roberti, Partner, Allen & Overy LLP

The EU's merger control law--the Merger Regulation--was revised in 2004, and 2024 is therefore the 20th anniversary of the changes. What prompted those changes? Sir Philip Lowe, Director-General of the European Commission's Directorate-General for Competition from 2002-2010, joins Matthew Reynolds and Matthew Hall to discuss the background to the changes and what else in EU merger control changed at the time. Listen to this episode to learn more about the basis for the current EU regime and Sir Philip's views on other topical merger control issues.

With special guest:

Sir Philip Lowe, Partner, Oxera Consulting

Related Links:

European Commission Mergers Website Page
Court of First Instance judgment in Airtours
Court of First Instance judgment in Tetra Laval/Sidel
Court of First Instance judgment in Schneider/Legrand

Hosted by:

Matthew Reynolds, Huth Reynolds LLP and Matthew Hall, McGuireWoods London LLP

Legal textbooks have always been expensive but these days, the cost of a new commercially-published antitrust law casebook can range from $300 to $500. What if a high-quality casebook were available at little or no cost? With the support of the ABA Antitrust Law Section, NYU Law School Professors Christopher Sprigman and Daniel Francis recently completed the world’s first openly-licensed antitrust law casebook. Listen to this episode as they talk with co-hosts Alicia Downey and Sarah Zhang about this important project and whether eliminating the expense of traditional casebooks might lead to an increase in law students taking antitrust and potentially pursuing careers in the field.

With special guests:

• Daniel Francis, Assistant Professor of Law, New York University School of Law
• Christopher Jon Sprigman, Murray and Kathleen Bring Professor of Law, New York University School of Law, and Co-Director, Engelberg Center on Innovation Law and Policy

Related Links:

Daniel Francis & Christopher Jon Sprigman, Antitrust Principles, Cases and Materials

Hosted by:

Alicia Downey, Downey Law LLC and Sarah Zhang, Baker Botts L.L.P.

Plaintiffs in consumer data privacy class action lawsuits may demand money damages for the loss of the value of their personal information. But how much money is that personal information really worth? And what was lost? In this episode, hosts Alicia Downey and Aaron Yeater talk to economist Mike Kheyfets of Edgeworth Economics about these and other questions to which there are no simple answers, whether from an economic or legal perspective. Listen to this episode to learn about approaches to valuing personal information in data privacy lawsuits.

With special guest:

Michael Kheyfets, Edgeworth Economics

Related Links:

Michael Kheyfets, "Value of Personal Information Theories in Data Privacy Class Actions," Bloomberg Law (Sept. 19, 2022)

Hosted by:

Alicia Downey, Downey Law LLC and Aaron Yeater, Analysis Group

This special episode is the audio of a program that ran during the ABA Antitrust Section’s popular Virtual Spring Meeting April 20-May 1, 2020 – enjoy!

This exciting, challenging, and humorous game show will examine the application of the Model Rules of Professional Responsibility to ethical questions confronting antitrust and consumer protection lawyers, and will address issues such as conflicts of interest, informed consent, multiple representation, joint defense agreements, preservation of client confidences, and others.

SESSION CHAIR/MODERATOR
Douglas M. TWEEN, Linklaters LLP, New York, NY

SPEAKERS
Patricia A. CONNERS, Deputy Attorney General, Office of the Attorney General, Tallahassee, FL Danielle S. HAUGLAND, Global Director, Business Development, Integreon, Seattle, WA
Eric M. MEIRING, Winston & Strawn LLP, Washington, DC
Patrick S. THOMPSON, Perkins Coie LLP, San Francisco, CA

Regulators around the world have raised antitrust concerns over concentrated control of key inputs into AI development and deployment, with access to cloud computing as one area of focus. What are the key concerns and proposed actions? A panel of experts from Argentina, Brazil, and the U.S. speak with Koren Wong-Ervin and Anora Wang on thoughts on the theories of harm, as well as possible efficiencies and benefits to various business arrangements and other conduct. Listen to this episode to hear from Gustavo Augusto Freitas de Lima (Commissioner of Brazil’s CADE), Alexis Pirchio (President of Argentina’s CNDC), Helder Agostinho (Deputy Assistant Director of the U.S. FTC’s Technology Enforcement Division), and Thomas DeMatteo (Chief Counsel on the U.S. Senate Judiciary Committee to Senator Mike Lee).

With special guests:

• Gustavo Augusto Freitas de Lima, Commissioner, CADE
• Alexis Pirchio, President, CNDC
• Helder Agostinho, Deputy Assistant Director of Technology Enforcement Division, FTC
• Thomas DeMatteo, Chief Counsel on the U.S. Senate Judiciary Committee to Senator Mike Lee

Related Links:

Full Panel Discussion (Dec. 8, 2024) 

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Koren Wong-Ervin, Jones Day

The European Commission has opened a formal antitrust investigation into Amazon in order to assess whether its use of data from independent retailers who sell on its marketplace is in breach of EU competition rules. This raises interesting issues about the intersection of competition law and data collection issues. What precisely are the potential concerns and what are the wider implications?

Hosted by:

John Roberti, Allen & Overy LLP and Matthew Hall, McGuireWoods London LLP

The European Commission has dramatically increased its level of competition law enforcement against vertical agreements. Distribution agreements have in particular been in the spotlight, but other arrangements such as licensing are also at risk. The focus is on ensuring that manufacturers and licensors do not unreasonably ban or restrict online selling and is replicated at national level in the EU. Jennifer Marsh, a London-based partner with law firm K&L Gates discusses the recent cases and their implications with Matthew Hall of McGuireWoods and John Roberti of Allen & Overy.

Hosted by:

Matthew Hall of McGuireWoods and John Roberti of Allen & Overy

The FTC's enforcement program has long included the remedy of disgorgement, which requires that a defendant found liable return ill-gotten gains. Will the Supreme Court take this authority away? Michael Kades, Tim Muris, Maureen Ohlhausen and John Villafranco join Gerald Stein for a discussion of the Supreme Court's oral argument and what may happen to the FTC's disgorgement. Listen to this special episode to learn more about the future of this important FTC remedy.

Related Links:

Stein Antitrust Magazine article

Muris Antitrust Source Article

Luib Antitrust Magazine Article

Ohlhausen speech on disgorgement

Ohlhausen dissent in Cardinal Health

Villafranco Blog Entries on oral argument

Hosted by:

Gerald Stein, Norton Rose Fulbright LLP

Millions of us use mobile apps to help manage our physical and mental health and wellbeing. How well does existing law protect the private health data collected by these apps? In this episode, hosts Alicia Downey and Kelsey Paine talk to privacy and cybersecurity law expert David Turetsky about the issues posed by healthcare apps that collect sensitive data relating to a user's mental health, reproductive cycle, dietary habits, or fitness, to name only a few examples. Listen and catch up on U.S. federal and state enforcement challenges to app companies that engage in the unauthorized disclosure of personal health data, and how a changing legal landscape may be posing an increased threat to health data privacy rights.

With special guest:

David Turetsky, Professor of Practice, College of Emergency Preparedness, Homeland Security and Cybersecurity, SUNY Albany

Related Links:

David Turetsky, "Health Privacy: Identifying Some Key Issues" (Feb. 6, 2025)

Hosted by:

Alicia Downey, Downey Law LLC and Kelsey Paine, Baker Botts LLP

Many discussions on U.S. merger control focus on proposals of drastic changes. But can U.S. merger enforcement be improved by just having the agencies committed to making better use of their exiting tools? John Kwoka, a leading economist and antitrust scholar, joins Anora Wang and John Roberti to discuss the weaknesses of U.S. merger enforcement, the role of the merger guidelines as tools available to the agencies, and specific areas for improvement. Listen to this episode to learn about the past, present, and future enforcement of U.S. antitrust agencies as measured against their merger guidelines.

Related Links:

Horizontal Merger Guidelines (08/19/2010)

Hosted by:

John Roberti, Allen & Overy LLP and Anora Wang, Winston & Strawn LLP

In recent years, efforts by state attorneys general to enforce the antitrust laws have been in the news far more than in the past, as state AGs have taken the lead in challenging no poach agreements and pursuing cutting edge theories in prosecutions of Big Tech companies. How and why are the states making competition an enforcement priority? In this episode, hosts Melissa Maxman and Alicia Downey talk with Milton Marquis, an antitrust practitioner with decades of experience representing clients in state investigations and enforcement proceedings. Listen to this episode to learn about the current enforcement scene and sectors of interest to state enforcers.

With special guest:

Milton A. Marquis, Partner, Cozen O'Connor

Hosted by:

Melissa Maxman, Partner, Cohen & Gresser and Alicia Downey, Downey Law LLC

The editorial staff of Our Curious Amalgam is teaming up with substantive ABA Antitrust Law Section committees to summarize the main antitrust and consumer protection events of 2020 and preview the trends to watch in 2021. In Part Three of a three-part series, Legislation, Federal Civil Enforcement, and Exemptions and Immunities committees provide incisive analysis of the key happenings and issues within their respective areas of expertise. Regular Our Curious Amalgam hosts Sergei Zaslavsky, John Roberti, Christina Ma, and Anora Wang, and special guest host, Ricardo Woolery, join to provide commentary and make sense of the year that was. Listen to this episode for a summary of the key antitrust and consumer protection themes of 2020.

Related Links:

Legislation Committee
Federal Civil Enforcement Committee
Exemptions and Immunities Committee

Hosted by:

Sergei Zaslavsky, Anora Wang and Ricardo Woolery, Christina Ma and John Roberti

The European Commission's draft guidelines on exclusionary abuses of dominance will, once adopted, be a key document when applying EU competition law. But what is in the draft? Rona Bar-Isaac, head of competition at Addleshaw Goddard in London, joins Matthew Hall and Derek Jackson to discuss the draft guidelines and a controversial European Court of Justice judgment which was released soon after the publication of the guidelines. Listen to this episode to learn more about the components of the draft, including the Commission's two-stage approach for analysing potential exclusionary abuses of dominance and the available defences, as well as the implications for the guidelines of the Google Shopping ECJ judgment that deals with self-preferencing as an abuse.

With special guest:

Rona Bar-Isaac, partner, Addleshaw Goddard LLP

Related Links:

• European Commission press release 1 August 2024 consultation on draft antitrust guidelines on exclusionary abuses
• European Commission consultation webpage including draft guidelines
• European Court of Justice press release 10 September 2024 Google Shopping judgment
• European Court of Justice 10 September 2024 Google Shopping judgment
• Addleshaw Goddard 8 August 2024 briefing on draft antitrust guidelines on exclusionary abuses
  
  

Hosted by:

Matthew Hall, McGuireWoods London LLP and Derek Jackson, Cohen & Gresser LLP

Compared to other proposals to reform the U.S. antitrust regime, the State Antitrust Enforcement Venue Act has shown greater potential of being passed. What is at stake here? Yee Wah Chin, Counsel at Ingram Yuzek, speaks with Anora Wang and Alicia Downey about the arguments for and against exempting antitrust cases brought by state attorneys general from transfer and consolidation in a single venue. Listen to this episode to learn about the complexities in the proposed legal change and the potential implications if and when it is enacted.

With special guest:

Yee Wah Chin, Counsel, Ingram Yuzek Gainen Carroll & Bertolotti, LLP

Related Links:

Yee Wah Chin, The State Antitrust Enforcement Venue Act of 2021: A Counterproductive Solution in Search of a Problem (January 10, 2022), New York Law Journal Vol. 267 No. 6 (2022)

Hosted by:

Anora Wang, Arnold & Porter and Alicia L. Downey, Downey Law LLC

Most agree that children's online privacy is important. But how should it be protected? Ryan Durrie, Associate Director of the Cordell Institute at Washington University in St. Louis, joins Christina Ma and Anora Wang to discuss how the Children's Online Privacy Protection Act (or COPPA) protects online privacy today and how it could be reformed. Listen to this episode if you want to learn about the latest policy developments in online privacy.

With special guest:

Ryan Durrie, Associate Director, Cordell Institute at Washington University in St. Louis

Related Links:

Cordel Institute for Policy in Law and Medicine, Washington University in St. Louis, Comment to FTC on COPPA (Mar. 12, 2024)

Neil Richards, Woodrow Hartzog, & Jordan Francis, A Concrete Proposal for Data Loyalty (2023) 

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz

The independent Mexican competition law regulator, COFECE, has been abolished and absorbed into the Ministry of Economics. What does this mean for merger control and competition law enforcement in Mexico? Lucia Ojeda Cárdenas, lawyer at SAI Law & Economics in Mexico City, joins Matthew Hall and Subrata Bhattacharjee to discuss this dramatic reform to the Constitution of Mexico. Listen to this episode to learn more about the timing of the changes, the structure of the new agency and implications for Mexican and foreign companies operating in the country.

With special guest:

Lucia Ojeda Cárdenas, partner, SAI Law & Economics

 Related Links:

SAI memo November 2024, Bill to eliminate various autonomous constitutional
agencies, including COFECE

COFECE press release November 2024, Position regarding the approval
of the reform on organic simplification

COFECE position paper regarding the reform

COFECE position paper regarding the transition to the new competition authority

IFT position paper regarding the reform 

IFT position paper regarding the budget assigned by Congress 

Congress of the Union, Decree whereby various provisions of the Political Constitution of the United Mexican States are reformed, added, and repealed, in organic simplification matters

Hosted by:

Matthew Hall, McGuireWoods London LLP and Subrata Bhattacharjee, Borden Ladner Gervais LLP

What is the role of an economist in identifying harm? ABA Antitrust Law Section Economics Co-Chair Dr. Laila Haider talks to Christina Ma and John Roberti about the role of economists in antitrust matters and their particular importance in identifying harm to consumers. Listen in to this episode to learn more about how economists and lawyers work together on cases. There will be no math on the test.

Hosted by:

Christina Ma, Associate, Wachtell Lipton and John Roberti, Partner, Allen & Overy LLP

Merger control analysis and clearance worldwide is becoming ever more difficult, complex and uncertain, with Illumina/Grail perhaps the standout recent example. Following the previous episode on this case (#141: A Power Grab Too Far? The European Commission Extends Its Merger Control Reach), what developments have there been and what can we learn from them? Philippe Chappatte, partner at Slaughter and May, who has been acting for Illumina, joins Matthew Hall and Jeny Maier to discuss the merger control investigations into Illumina's acquisition of Grail in the EU and US. Listen to this episode to learn more about the substantive and procedural issues raised by the case and practical points it raises.

With special guest:

Philippe Chappatte, partner, Slaughter and May

Related Links:

Our Curious Amalgam, Episode #141, A Power Grab Too Far? The European Commission Extends Its Merger Control Reach

Philippe Chappatte and Poppy Smith, The 27-Stop Shop?: The EU Commission’s unprecedented power grab in merger control

Philippe Chappatte and Josephine Rabinowitz, Illumina/Grail: All Eyes on the General Court

European Commission press release 6 September 2022 "Mergers: Commission prohibits acquisition of GRAIL by Illumina"

European Commission Illumina/Grail merger investigation case page

European Commission Article 22 guidance 26 March 2021

EU General Court judgment 13 July 2022 Illumina v European Commission (appeal on Article 22 EU Merger Regulation referral)

Illumina appeal of EU General Court judgment 13 July 2022

Hosted by:

Matthew Hall, partner, McGuireWoods London LLP and Jeny Maier, partner, Axinn, Veltrop & Harkrider LLP

This special episode is the audio of a program that ran during the ABA Antitrust Section’s popular Virtual Spring Meeting April 20-May 1, 2020 – enjoy!

From record fines to novel theories of harm, the FTC has pursued vigorous consumer protection enforcement under Chairman Simons. This panel will discuss recent FTC enforcement and priorities, including impacts, if any, of COVID-19 on enforcement priorities, as well as in the areas of privacy, data security, marketing, advertising, and fintech, consider whether FTC enforcement has expanded in reach, and implications for future CP enforcement.

SESSION CHAIR/MODERATOR
Kay Lynn BRUMBAUGH, Chief Legal Officer & Secretary, GIACT Systems LLP, Dallas, TX

SPEAKERS
Terrell MCSWEENY, Covington & Burling LLP, Washington, DC
Christie THOMPSON, Kelley Drye & Warren LLP, Washington, DC
Serena VISWANATHAN, Acting Deputy Director, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC
Thomas F. ZYCH, Thompson Hine LLP, Cleveland, OH

The European Commission's attempt to claim jurisdiction under the EU merger rules over Illumina's acquisition of GRAIL ultimately resulted in a stinging court defeat for the regulator. But why did it lose and what will happen now to merger reviews of "below threshold" transactions in the EU? Nicole Kar, partner at Paul, Weiss in London, joins Matthew Hall and James Hunsberger to discuss the Commission's 2021 re-interpretation of its powers under Article 22 of the EU Merger Regulation, the European Court of Justice judgment striking that down and the alternative avenues for the Commission or EU countries to claim jurisdiction over killer and reverse killer transactions. Listen to this episode to learn more about how to analyse the risk and practical steps to take in relation to these transactions.

With special guest:

Nicole Kar, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Related Links:

• European Commission March 2021 guidance on use of Article 22 of the EU Merger Regulation
• European Commission FAQ on March 2021 Article 22 guidance
• General Court judgment 13 July 2022 on application of Article 22 by European Commission in Illumina/GRAIL
• Advocate General opinion 21 March 2024 on application of Article 22 by European Commission in Illumina/GRAIL
• European Court of Justice judgment 3 September 2024 on application of Article 22 by European Commission in Illumina/GRAIL
• Paul, Weiss, Rifkind, Wharton & Garrison LLP Client Memorandum "Mind the Gap: ECJ Judgment Determines European Commission Cannot Review Deals Below Member State Merger Control Thresholds"
  
  

Hosted by:

James Hunsberger, Axinn, Veltrop & Harkrider LLP and Matthew Hall, McGuireWoods London LLP

The U.S. passenger airlines have seen waves of active mergers and acquisitions including in 2009 through 2013 and again recently since 2023. But who is involved in the legal and regulatory reviews of an airline merger? Courtney Dyer of O'Melveny and David Heffernan of Cozen O'Connor, both with extensive experiences guiding airlines through regulatory processes, speak to Kelsey Paine and Anora Wang about their deal experiences and insights. Listen to learn about origin-destination pair, route overlap, recent matters including the Alaska Airlines' acquisition of Hawaiian Airlines completed in September 2024, and beyond.

With special guests:

Courtney Dyer, Partner, O'Melveny & Myers LLP and David Heffernan, Chair of Transportation & Trade, Cozen O'Connor P.C.

Related Links:

1. DOJ Press Release Regarding DOJ-DOT Joint Inquiry into the State of Competition in Air Travel (Oct. 24, 2024)

2. DOT Press Release Regarding Alaska/Hawaiian (Sept. 17, 2024)

3. DOJ Press Release Regarding JetBlue/Spirit (Mar. 4, 2024)

Hosted by:

Kelsey Paine, Baker Botts LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

Mexico's Federal Economic Competition Commission (COFECE) is an autonomous agency responsible for competition law enforcement, policy and advocacy nationwide. At the same time, an entirely separate agency—the Federal Telecommunications Institute (IFT)—has jurisdiction to enforce the competition laws in the telecommunication and broadcasting sectors. How do the two agencies determine where one agency's jurisdiction ends and the other agency's begins? Marta Loubet, a competition lawyer based in Mexico City, joins Alicia Downey and Sarah Zhang to discuss the origins of the jurisdictional divide between COFECE and IFT, its relationship to COFECE’s ongoing digital markets initiatives, and what changes the future may bring. Listen to this episode to learn more about a unique and important feature of the Mexican competition regime.

With special guest:

Marta Loubet, White & Case LLP

Related Links:

Henry Capin-Gally, Germán Macías, Marta Loubet, Román González Melo, Mexico: An introduction to Competition (Chambers & Partners 2022)

COFECE Website

IFT Website

Hosted by:

Alicia L. Downey, Downey Law LLC and Sarah Zhang, Baker Botts LLP