Our Curious Amalgam

Significant changes to the Indian merger control regime came into effect in September 2024. But what has happened? Nisha Kaur Uberoi, partner at JSA law firm in Mumbai, joins Puja Patel and Matthew Hall to discuss the changes and their likely practical impact on transactions affecting India. Listen to this episode to learn more about the changes including the new deal value threshold, the codification of the material influence test for control, new timelines and procedure and the impact of new definitions on the use of the Green Channel route for approval.

With special guest:

Nisha Kaur Uberoi, partner, JSA advocates & solicitors

Related Links:

• JSA article, "What the overhaul of India’s merger control regime means", 24 September 2024
• India Competition Act, 2002
• Competition Amendment Act, 2023
• Competition Commission of India (Combinations) Regulations, 2024
• Competition (Criteria for Exemption of Combinations) Rules, 2024 
• Notifications of the changes

Hosted by:

Puja Patel, A&O Shearman US LLP and Matthew Hall, McGuireWoods London LLP

Over a year after the FTC and DOJ first announced changes to the premerger notification form and associated rules under the Hart-Scott-Rodino Act, the final rules were released in October 2024. What do these new HSR rules mean in practice for parties to transactions that must make an HSR filing? Daniel Rosenthal, Special Counsel at Milbank, joins hosts Jaclyn Phillips and Matt Tabas to discuss these changes in detail. Listen to this episode to learn more about what has changed, what hasn't, and how you can start to prepare.

With special guest:

Daniel J. Rosenthal, Special Counsel, Milbank LLP

Related Links:

The New HSR Form Is Here 

Hosted by:

Jaclyn Phillips, White & Case LLP and Matt Tabas, Arnold & Porter Kaye Scholer LLP

Can competition law save humanity? Over the past two years, Fiona Schaeffer has spurred on the lawyers, regulators, and economists of the ABA Antitrust Law Section to examine the role that antitrust law has, or potentially will have, in dealing with the existential challenges posed by climate change and the rise of artificial intelligence. In this episode, co-hosts Alicia Downey and Anora Wang talk with Fiona about why she chose to focus attention on these two issues during her recent term as Section Chair, and the insights that listeners should take away from the Section's work to date.

With special guest:

Fiona Schaeffer, Milbank LLP

Related Links:

• Joint Section Comments on the Canadian Competition Bureau’s Discussion Paper on Artificial Intelligence and Competition (July 9, 2024)
• Report on Competition Law and Sustainability to the JFTC by the International Comments and Policy Committee (March 18, 2024)
• Joint Section Comments on the European Commission’s Consultation on Generative AI (March 6, 2024)

Hosted by:

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

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

It's no secret that competition agencies in the U.S. and elsewhere have been scrutinizing Big Tech's efforts to acquire emerging players in the AI space. In this episode, Luis Blanquez of Bona Law, P.C., talks to co-hosts Alicia Downey and Anant Raut about how the enforcers' concerns are now extending to investments, licensing deals, and other types of transactions that fall outside merger clearance review. Will recently announced investigations into such transactions protect future rivals from Big Tech’s dominance or chill investments in AI technology innovation? Listen to this episode to learn about the effect these investigations may be having on not just the companies directly involved, but also venture capital investors and AI start-ups generally.

With special guest:

Luis Blanquez, Partner, Bona Law P.C.

Related Links:

• Mergers & Acquisitions, AI and Antitrust: The New Creative Ways for Big Tech to Enter the AI Market and Avoid HSR Rules, The Antitrust Attorney Blog (July 21, 2024)
• UK Competition and Markets Authority, AI Strategic update (April 29, 2024)

Hosted by:

Alicia Downey, Downey Law LLC and Anant Raut

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

Can a Big Law antitrust practitioner have a successful career as a solo or small firm lawyer? In this episode, antitrust trial lawyer Sean Gates and co-hosts Alicia Downey and Matt Reynolds talk about their experiences leaving large firms to strike out on their own in the middle of their careers. Listen to this episode to learn what motivated them to "go small," and why antitrust law offers unique challenges, opportunities, and rewards to those looking for an alternative to Big Law practice.

With special guest:

Sean Gates, Partner, Illovsky Gates & Calia LLP

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Reynolds, Huth Reynolds LLP

What were the cases and controversies that defined a decades-long career as an antitrust lawyer and scholar? Hosts Alicia Downey and Subrata Bhattacharjee welcome former Antitrust Law Section Chair Jon Jacobson back to the podcast to talk about his newly-published memoir of the highs and lows of litigating some of the biggest antitrust cases in U.S. legal history. Listen to this episode to learn how trial lawyers like Jon have helped to shape U.S. competition law and public policy.

With special guest:

Jonathan Jacobson, Partner (retired), Wilson Sonsini Goodrich & Rosati

Related Links:

Jonathan Jacobson, My Life in Antitrust (2024) "Rock Can't Get No Satisfaction? Antitrust and Rock 'n' Roll, Our Curious Amalgam, Episode #1 (Aug. 12, 2019) Bayou Bottling, Inc. v. Dr. Pepper Co., 725 F.2d 300 (5th Cir. 1984) Sewell Plastics, Inc. v. The Coca-Cola Co., 720 F. Supp. 1196 (W.D.N.C 1989)

Hosted by:

Alicia Downey, Downey Law LLC and Subrata Bhattacharjee, Borden Ladner Gervais LLP

Antitrust and competition lawyers have a choice of career paths, including private practice, in-house, and public sector. What about the increasingly-important area of litigation finance? Aviva Will, Co-Chief Operating Officer of Burford Capital, joins Alicia Downey and Matthew Hall to discuss her career journey from a law firm to a senior executive role at a publicly traded, global litigation finance company. Listen to this episode to learn more about Aviva's current role, the evolution of the litigation finance industry in the U.S. and elsewhere, and The Equity Project--a groundbreaking initiative designed to help increase diversity in law.

With special guest:

Aviva Will, Co-Chief Operating Officer, Burford Capital LLC

Related Links:

Burford Capital, The Equity Project Association of Litigation Funders (England and Wales) American Legal Finance Association (U.S.) International Legal Finance Association

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP

The failing firm defense can be viewed skeptically when put forward by merging parties. But when can it be used successfully to save a deal that may otherwise be found to be anticompetitive? Chris Wilson, partner in the antitrust group of Paul Weiss, joins Jaclyn Phillips and Anora Wang to discuss the current state of the failing firm defense. Listen to this episode if you want to learn more about recent cases and what facts may make a failing firm defense thrive.

With special guest:

Christopher M. Wilson, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Related Links:

Hospitals Defeat FTC Merger Injunction Request With a Version of the “Failing Firm” Defense

Hosted by:

Jaclyn Phillips, White & Case LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

The Antitrust Law Section's new Chair is a lawyer, professor, and author of countless books and articles, with decades of leadership experience in the Section. What changes will he bring? In this episode, co-hosts Alicia Downey and Puja Patel ask Steve Cernak about his unusual career path, the priorities and initiatives he is planning to pursue in his one-year term, and the legal trends that he believes will affect the Section's members and their clients. Listen to this episode to get to know Steve a little better as the leader of a global association of professionals in the fields of antitrust, competition, consumer protection, and data privacy law--and as a loyal baseball fan.

With special guest:

Steven Cernak, Partner, Bona Law PC

Hosted by:

Alicia Downey, Downey Law LLC and Puja Patel, A&O Shearman US LLP

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

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

Federal and State antitrust authorities have started to take closer looks into mergers of hospitals that are in different geographic areas. What are the theories of harm behind such investigations, and what does the economics literature have to say about those cross-market theories? Join Anora Wang and Jeny Maier as they hear from leading healthcare economist Cory Capps about recent academic research and agency activities on this front. Listen to this episode if you want to learn more about cutting-edge thinking in healthcare mergers.

With special guest:

Cory Capps, Partner, Bates White Economic Consulting

Related Links:

Cory Capps, Leyla Karakas, & Tetyana Shvydko, Cross-Market Mergers: Theories of Harm and Limiting Principles (2023) 

Greg Vistnes, Cross-Market Hospital Mergers: Assessing Likely Harm and Implications for Government Action (2023)

Hosted by:

Jeny Maier, Axinn, Veltrop & Harkrider LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

When analyzing the competitive effects of a proposed transaction, the U.S. antitrust agencies may attempt to define and assess the potential loss of innovation in a relevant market. But what exactly is "innovation," and how can potential losses (or gains) in innovation be measured? In this episode Alicia Downey and Lijun Zhang speak with Cornerstone Research economist Penka Kovacheva about how economists are attempting to measure the impact of mergers on innovation, with a focus on the pharmaceutical industry. Listen to this episode to learn about whether any of these attempts have been successful and why there is much more work to be done.

With special guest:

Penka Kovacheva, Vice President, Cornerstone Research

Related Links:

Penka Kovacheva, Maria Salgado, Anca Cojoc, & Lorenzo Cattivelli, "The Impact of Pharmaceutical M&A on Innovation: Insights from the Literature and Gaps Remaining"

Hosted by:

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

Labour markets are in the focus of competition law regulators worldwide and companies and their advisers need to know what the issues are. What is the situation in the EU and its member states? Johanna Kübler, partner at German competition law firm Commeo, joins Jaclyn Phillips and Matthew Hall to discuss the background to this current focus in the EU, the legal rules that apply, the current status of leading investigations and key practical compliance messages. Listen to this episode to learn more about how to navigate and comply with competition law in this important area.

With special guest:

Johanna Kübler, partner, COMMEO Rechtsanwälte PartGmbB

Related Links:

Portugal Competition Authority technology consulting no-poach investigation 2024:

• https://www.concorrencia.pt/en/articles/adc-accuses-multinational-technology-consulting-group-anticompetitive-practices-labor
• https://www.concorrencia.pt/en/articles/adc-fined-multinationals-anticompetitive-practices-labor-market

European Commission Competition Policy Brief "Antitrust in Labour Markets" May 2024 Commissioner Vestager speech October 2021 "A new era of cartel enforcement" European Commission food delivery no-poach investigation November 2023 Commeo newsletter "Labour Markets in the Focus of Competition Watchdogs" May 2024 UK Competition and Markets Authority purchase of freelance services investigations U.S. Federal Trade Commission "FTC Announces Rule Banning Noncompetes" April 2024

Hosted by:

Jaclyn Phillips, White & Case LLP and Matthew Hall, 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

The Australian Competition and Consumer Commission's enforcement and policy priorities for 2024-2025 reflect a focus on a wide range of conduct in many industries. What does this mean for practitioners, market participants, and consumers in Australia? Peta Stevenson, a competition attorney with more than two decades of experience, joins Jaclyn Phillips and Anant Raut to discuss the takeaways and implications. Listen to this episode to learn more about competition enforcement in Australia.

With special guest:

Peta Stevenson, Partner, King & Wood Mallesons

Related Links:

Easing Cost of Living: ACCC Announces 2024 Enforcement Priorities, With a Focus on Consumers Stop Right There: Australia’s Merger Regime Set To Change

Hosted by:

Jaclyn Phillips, White & Case LLP and Anant Raut

The Federal Trade Commission's non-compete ban has stirred vigorous discussion in the antitrust bar and beyond. What do economic theory and empirical analysis tell us about the effects of non-competes, and whether a ban is justified? Economists Evan Starr and Brian Albrecht join co-hosts Sergei Zaslavsky and Anora Wang to debate the state of economic evidence on non-competes, the implications for policy, and what we still have to learn. Listen to this episode, which also aired as a live ABA program, for an in-depth discussion that highlights both areas of consensus and areas of disagreement on the economics of non-competes.

With special guests:

Evan Starr, Associate Professor, University of Maryland Robert H. Smith School of Business and Brian Albrecht, Chief Economist, International Center for Law & Economics

Related Links:

Starr, Evan P., J.J. Prescott, and Norman D. Bishara. "Noncompete Agreements in the U.S. Labor Force." Journal of Law and Economics 64, no. 1 (2021): 53-84 

Thomas, Randall S. and Thomas, Randall S. and Bishara, Norman D and Martin, Kenneth J., An Empirical Analysis of Non-Competition Clauses and Other Restrictive Post-Employment Covenants (February 26, 2014)

Posner, Eric A. and Triantis, George G. and Triantis, Alexander J. and Triantis, Alexander J., Investing in Human Capital: The Efficiency of Covenants Not to Compete (January 2004)

Hosted by:

Sergei Zaslavsky and Anora Wang, Arnold & Porter Kaye Scholer LLP

The preservation of competition in agricultural markets has been identified as as one of the Biden Administration's highest enforcement priorities. In this episode, co-hosts Alicia Downey and Barry Nigro talk to Professor Kelly Nuckolls of the University of Arkansas School of Law about recent enforcement actions and rulemaking efforts targeting anticompetitive practices in the agriculture sector. Listen to this episode to learn about the DOJ Antitrust Division's case against benchmarking service provider Agri Stats based on allegedly collusive information-sharing, and the Division's renewed interest in enforcing the Packers and Stockyards Act of 1921--a federal statute with the potential to support challenges to unfair conduct that the Sherman Act might not reach.

With special guest:

Kelly Nuckolls, Assistant Director and Visiting Assistant Professor of Law for the LL.M. Program in Agricultural and Food Law, University of Arkansas School of Law

Related Links:

Agricultural Marketing Service, Department of Agriculture (USDA), Inclusive Competition and Market Integrity Under the Packers and Stockyards Act, 9 CFR 201.302-201.390 (Mar. 6, 2024) Agricultural Marketing Service, Department of Agriculture (USDA), Transparency in Poultry Grower Contracting and Tournaments, 9 CFR 201.2-201.4 (Nov. 28, 2023) Wheeler v. Pilgrim's Pride Corp., 591 F.3d 355 (5th Cir. 2009)

Hosted by:

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

Not many antitrust lawyers have a front row seat to competition law and policy around the globe. But have you met Krisztian Katona? Krisztian Katona, an international competition lawyer, speaks with Anora Wang and Jaclyn Phillips about the trajectory of his career, insights about competition law and trends, and how the ABA provides opportunities for international lawyers.

With special guest:

Krisztian Katona, Computer & Communications Industry Association

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Jaclyn Phillips, White & Case 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

An important component of U.S. consumer protection law includes the regulation of endorsements, a form of advertising where someone other than the seller of a product or service—such as an athlete, a celebrity, or an influencer—is compensated to promote that product or service. In this episode, co-hosts Alicia Downey and Matt Reynolds talk to consumer protection lawyer Caiti Zeytoonian about the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which were significantly updated in June 2023 to reflect the rising power and ubiquity of social media influencers. Listen and learn how the new guidance is making a difference in the rapidly evolving world of online endorsements.

With special guest:

Caiti Zeytoonian, Morgan, Lewis & Bockius LLP

Related Links:

16 CFR Part 255, Guides Concerning Use of Endorsements and Testimonials in Advertising Disclosures 101 for Social Media Influencers The FTC Endorsement Guides: What People Are Asking (FAQs) Hosted by:

Alicia Downey, Downey Law LLC and Matthew Reynolds, Huth Reynolds LLP

While on site at the ABA Antitrust Law Section's Annual Spring Meeting in April 2024, the Our Curious Amalgam team sat down with competition regulators from around the world to talk about their current and future enforcement priorities. We also got to know them a little better as people. In this episode, Alicia Downey finds out what's happening in New Zealand with Andrew Riseley, the General Counsel and General Manager of the Legal Services branch of the New Zealand Commerce Commission. Following that is Alicia's interview with Joshua Sherman, the Chief Economist of the Israel Competition Authority. The episode concludes as Jaclyn Phillips speaks with Tina Søreide, the General Manager of the Norwegian Competition Authority.

With special guests:

Andrew Riseley, General Counsel/General Manager Legal Services, New Zealand Commerce Commission, Joshua Sherman, Chief Economist, Israel Competition Authority, and Tina Søreide, General Manager, Norwegian Competition Authority

Related Links:

New Zealand Commerce Commission

Israel Competition Authority

OCA Episode #175, Who Is Michal Halperin? Meet the Former Director-General of the Israeli Competition Authority

Norwegian Competition Authority

Hosted by:

Alicia Downey, Downey Law LLC and Jaclyn Phillips, White & Case LLP

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

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

The 2024 Spring Meeting of the ABA Antitrust Law Section offered the Our Curious Amalgam team a chance to speak with competition law enforcers from around the world. In this episode, host Matthew Hall asks Olivier Guersent, Director-General of the Directorate-General for Competition of the European Commission (DG COMP), about what’s been happening in the European Union since we interviewed him at the 2023 Spring Meeting. Listen and learn about DG COMP’s current and recent work and what competition law policy and enforcement trends the Director-General sees on the horizon.

With special guest:

Olivier Guersent, Director-General, Directorate-General for Competition, European Commission

Related Links:

European Commission DG COMP website 2023 Spring Meeting interview with Olivier Guersent 2022 Spring Meeting interview with Olivier Guersent

Hosted by:

Matthew Hall, McGuireWoods London LLP

The UN General Assembly has entrusted UNCTAD (now rebranded as UN Trade and Development) to be the focal point within the UN on competition and consumer protection issues. How does UN Trade and Development implement this role? Teresa Moreira, Head of the Competition and Consumer Policies Branch (CCPB) at UN Trade and Development, joins Alicia Downey and Matthew Hall to discuss the work of the CCPB, including its focus on developing countries and its working groups and specific projects. Listen to this episode to learn more about UN Trade and Development's work promoting, reinforcing and advising on competition and consumer protection law and policies in support of its overall goal to help developing countries meet the Sustainable Development Goals set by the UN General Assembly in 2015.

With special guest:

Teresa Moreira, Head, Competition and Consumer Policies Branch, United Nations Trade and Development (UNCTAD)

Related Links:

UNCTAD website

Competition and Consumer Protection Branch website

Global competition law and policy approaches to digital markets (March 2024)

Consumer dispute resolution in the world (March 2024)

UNCTAD model law on competition after 30 years: some reflections (Feb 2024)

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP

Many practitioners wonder what it would be like to be an academic, diving deeply into the leading international legal and policy issues at the forefront of antitrust and competition law. But what does an academic researcher do all day? Natalia Moreno Belloso, one of the ABA Antitrust Law Section's International Scholars-in-Residence, joins Jeny Maier and Anora Wang to discuss her research on conflicts between competition values and non-competition values in digital markets. Listen to this episode if you want to learn more about the life of an academic researcher and the latest trends in digital market regulation.

With special guest:

Natalia Moreno Belloso, European University Institute

Related Links:

The EU Digital Markets Act (DMA): A Competition Hand in a Regulatory Glove

Hosted by:

Jeny Maier, Axinn, Veltrop & Harkrider LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

On March 21, 2024, the United States Department of Justice and sixteen Attorneys General sued Apple, alleging that “Apple undermines apps, products, and services that would otherwise make users less reliant on the iPhone, promote interoperability, and lower costs for consumers and developers.” In other words, many of the DOJ and AGs’ allegations boil down to lock in - that is that the features chosen by Apple lock in developers and users to stay in Apple’s ecosystem by making it harder to switch or jump between platforms. We discuss the case and the claims advanced, and what it might mean for antitrust enforcement, tech, and consumer experiences.

With special guest:

Stephen Calkins, Professor of Law, Wayne State University Law School

Related Links:

U.S. v. Apple Complaint

Assistant Attorney General Jonathan Kanter Remarks on Complaint

Steve Calkins' Guide to Classical Music Concerts

Hosted by:

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

The EU Digital Markets Act introduces a radical change to regulation of the digital sector in the EU. But what does it require and what have the designated "gatekeepers" been doing to ensure compliance? Aleksandra Zuchowska, Competition Policy Manager at CCIA in Brussels, appearing in her personal capacity, joins Matthew Reynolds and Matthew Hall to discuss the DMA and its impact. Listen to this episode to learn more about the principles underpinning the DMA, its requirements, the compliance steps being taken, the act's impact on choice, innovation and online safety, the compliance workshops in Brussels and next steps.

With special guest:

Aleksandra Zuchowska, Competition Policy Manager, Computer & Communications Industry Association, Brussels (personal capacity)

Related Links:

CCIA Europe blog post on DMA and innovation/user-experience issues CCIA Europe blog post on DMA enforcement European Commission DMA webpage European Commission non-compliance investigation press release European Commission compliance day press release

Hosted by:

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

Anyone with a phone number understands how annoying it is to receive unsolicited promotional voice calls and text messages. For that reason, telemarketing and telephone sales practices in the U.S. are regulated by decades-old federal and state consumer protection laws, which permit private rights of action by consumers for minimum statutory damages that can total hundreds of dollars per violation, such as when a call or text is made to a phone number listed on the National Do-Not-Call Registry. But are these laws too harsh on legitimate businesses communicating with their customers? How well do these 1990s-era laws address emerging communication technologies? In this episode, hosts Alicia Downey and Derek Jackson speak with Kelley, Drye & Warren partner Becca Wahlquist about these issues and recent developments in the law governing telemarketing to consumers. Learn about the challenges that businesses face in complying with a complex and evolving scheme of federal and state legislation and rules restricting telephone communications with consumers.

With special guest:

Becca Wahlquist, Partner, Kelley, Drye & Warren LLP

Related Links:

Becca Wahlquist & Nathan Jamieson, Developments in Telephone Consumer Protection Act Law After Duguid v. Facebook, Antitrust Magazine (ABA Antitrust Law Section Summer 2022)

Hosted by:

Alicia Downey, Downey Law LLC and Derek Jackson, Cohen & Gresser LLP

The antitrust law bubble, particularly in the U.S., has in recent years focussed on the mantra of promoting efficiency above all else. In the age of the global polycrisis and increasing corporate concentration and power in numerous sectors, should this bubble be popped? Dr Cristina Caffarra, leading competition economist, joins Barry Nigro and Matthew Hall to discuss the wider issues antitrust and competition law enforcement should be considering, which was the focus of a January 2024 Brussels conference described as the "Anti-Davos" and "Woodstock of Antitrust". Listen to this episode to learn more about the "Antitrust, Regulation, and the Next World Order" conference led by Dr Caffarra, why antitrust law should be taking a wider approach than efficiency and narrow consumer welfare and the links with trade and industrial policy.

With special guest:

Cristina Caffarra, University College London, CEPR Competition RPN

Related Links:

Cristina Caffarra article in CPI Columns Europe February 2024 (source: CPI) Cristina Caffarra article part 1 in VoxEU (CEPR) January 2024 (source: VoxEU) Cristina Caffarra article part 2 in VoxEU (CEPR) January 2024 (source: VoxEU) Cristina Caffarra article in VoxEU (CEPR) March 2024 (source: VoxEU) Angus Deaton article "Rethinking My Economics" March 2024 (source: IMF) Politico article on Antitrust, Regulation, and the Next World Order conference February 2024 (source: Politico) The Capitol Forum article on Antitrust, Regulation, and the Next World Order conference February 2024 (source: The Capitol Forum) Cristina Caffarra speaking notes Antitrust, Regulation, and the Next World Order conference January 2024 (source: ofthewedge.com)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Matthew Hall, McGuireWoods London LLP

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

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 U.S. federal district courts have magistrate judges who are appointed to assist the district court judges and generally oversee first appearances of criminal defendants, set bail, and conduct other administrative duties. But is the role of a magistrate judge different across districts? In a district like Eastern District of Virginia where the trial docket is so fast that it earned the nickname as a “Rocket Docket,” a magistrate judge can make important decisions and have a great impact on the cases there. Judge Lindsey Vaala, the first magistrate judge interviewed by our program, and a long-time active member of the ABA Antitrust Law Section, speaks with Anora Wang and Melissa Maxman on her previous career as an antitrust litigator, her path to the bench, and to the extent that she can speak, her views on current antitrust issues.

With special guest:

The Honorable Judge Lindsey R. Vaala, Magistrate Judge, U.S. District Court for the Eastern District of Virginia

Related Links:

Magistrate Judge Lindsey Vaala Appointment Announcement Nov 2022

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Melissa H. Maxman, Cohen & Gresser LLP

The US antitrust agencies' approach to merger remedies has undergone a significant change under the Biden administration. Remedies are increasingly disfavored. In this episode, Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division, joins Barry Nigro and Jeny Maier to discuss the growing skepticism towards merger remedies by the US antitrust authorities. Listen to this episode to learn more about whether merger remedies remain a viable option in the US and, if so, how parties should approach them given the government’s current hostility toward remedies.

With special guest:

Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division

Related Links:

Daniel P. Ducore, "Negotiating Remedies: A Perspective from Various Agencies," Global Competition Review (October 2023)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Jeny Maier, Axinn, Veltrop & Harkrider LLP

When are MFNs good and when are they bad? A "most favored nation" (MFN) price requirement ensures that a buyer receives the lowest price that a seller is offering to other buyers. Under U.S. antitrust law, such MFNs are typically viewed as a procompetitive outcome of price bargaining between parties. But recently, the use of MFNs by Amazon's internet retailing platform has been challenged as an anticompetitive business practice. In this episode, Alicia Downey and Barry Nigro talk to economist Tasneem Chipty about the potential competition concerns raised by MFNs generally and platform MFNs specifically. Listen and learn in what circumstances most favored nation requirements might raise antitrust red flags.

With special guest:

Tasneem Chipty, Managing Principal, Chipty Economics

Related Links:

Tasneem Chipty, "Platform MFNs: Can Asking for the Lowest Price Discourage Competition?", Pricing Conduct Committee Newsletter (ABA Antitrust Law Section Jan. 9. 2024)

Hosted by:

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

Large amounts of information are collected during merger control and behavioural competition law investigations. What are the personal data protection issues raised? Dan Rupprecht, Director for Europe of iDiscovery Solutions, joins Aaron Yeater and Matthew Hall to discuss the differences between these two types of investigations, why and how the EU/UK and U.S. approaches differ in this area, the technology that is used and the future. Listen to this episode to learn more about protection of personal data when working in these areas.

With special guest:

Dan Rupprecht, Director for Europe, iDiscovery Solutions

Related Links:

European Commission data protection (GDPR) UK GDPR

Hosted by:

Aaron Yeater, Analysis Group, Inc. and Matthew Hall, McGuireWoods London 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

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

The interplay between patent law and competition law has been a consistent focus for the antitrust agencies over the years, most notably in the pharmaceutical sector between brand and generic drugs. But will the FTC take a new approach to dealing with branded drug company patents listed in the FDA's "Orange Book"? Mika Ikeda, Competition Counsel at Johnson & Johnson joins Jaclyn Phillips and Jeny Maier to discuss the FTC's historical interest in Orange Book listings and what actions the agency may take in the future. Listen to this episode to learn more about FTC policy related to competition in drug markets, and why the "Orange Book" is orange!

With special guest:

Mika Ikeda, Senior Counsel, Competition Law, Johnson & Johnson

Related Links:

Federal Trade Commission Statement Concerning Brand Drug Manufacturers’ Improper Listing of Patents in the Orange Book (Sept. 14, 2023)

Hosted by:

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

The hype around cryptocurrency is at an all-time high, as the industry makes a major push to go mainstream. But is it all a giant pump-and-dump scheme? Software engineer and celebrated crypto critic Molly White and the SEC's Associate Director of Enforcement Carolyn Welshhans join Anant Raut and Aaron Yeater for a braintwister of a discussion on such topics as what is money; if blockchain is so secure how does so much crypto keep getting stolen; and is crypto a giant scam. Listen to this episode to learn more about whether ordinary investors will be left holding the bag when the crypto bros cash out.

With special guests:

Molly White, Software Engineer and Founder, Web3 is Going Just Great and Carolyn Welshhans, Associate Director of the Division of Enforcement, Securities and Exchange Commission

Related Links:

Web 3 is Going Just Great

Hosted by:

Anant Raut and Aaron Yeater, Analysis Group, Inc.

Self-preferencing by digital platforms has become ubiquitous in today's antitrust discourse. But has enough focus been put on economic analysis to understand the procompetitive benefits of self-preferencing conduct? Emilie Feyler and Dr. Veronica Postal, Senior Consultants at NERA Economic Consulting, speak with Jaclyn Phillips and Barry Nigro about their assessment of the economic literature on self-preferencing. Listen to this episode to learn more about what the empirical research has to say and if there are still gaps to fill.

With special guests:

Emilie Feyler, Senior Consultant, NERA Economic Consulting and Dr. Veronica Postal, Senior Consultant, NERA Economic Consulting

Related Links:

Can Self-Preferencing Algorithms Be Procompetitive?

Hosted by:

Jaclyn Phillips, White & Case LLP and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

In the early 1980s, a group of Vietnamese fisherman on the gulf coast of Texas teamed up with the Southern Poverty Law Center to mount a heroic legal challenge to the Ku Klux Klan. How did antitrust law play a role in this important civil rights case? Charles Moore joins co-hosts Derek Jackson and Alicia Downey to talk about the Section's Diversity.Advanced Committee's upcoming reenactment of the court proceedings, the historical use of antitrust law in cases of violence or threats against competitors, and the potential for new cases in this area. Listen to this episode to learn about the antitrust issues that arose in a milestone case in American legal history.

With special guest:

Charles Moore, White & Case LLP

Related Links:

Preliminary injunction decision

Permanent injunction decision

Houston Public Media, I See U Podcast, Episode 9: Vietnamese Fishermen v. the KKK

Andrew Chin, University of North Carolina, The KKK and the Vietnamese Fishermen

Hosted by:

Alicia Downey, Downey Law LLC and Derek Jackson, Cohen & Gresser LLP

The online gaming industry has been the subject of legal challenges in the antitrust and consumer protection arenas. So Player One, are you ready to hear about the legal issues to consider in this rapidly advancing sector? Josh Grant, video gaming expert with more than two decades of experience in the industry, joins Alicia Downey and Anant Raut to discuss the evolution of video gaming and how that has contributed to current antitrust and consumer protection issues. Listen to this episode to learn more about the intersection of online gaming, antitrust, and consumer protection.

With special guest:

Josh Grant

Related Links:

An Expert’s Look at the Current Gaming Landscape and Potential Disputes in 2023

What’s Next for Microsoft and Activision’s Antitrust Battle After EU and UK Decisions

Hosted by:

Alicia Downey, Downey Law LLC and Anant Raut

The European Commission's recent decision to block Booking’s proposed acquisition of eTraveli is unprecedented and even controversial to some. How should we understand the EC's concerns? Eliana Garces, Senior Advisor with Analysis Group, joins Matthew Hall and Jaclyn Phillips to discuss the EC's theories of harm. Listen to this episode for an economist's take on the EC's analysis and how we should think about it more generally.

With special guest:

Eliana Garces, Senior Advisor, Analysis Group

Hosted by:

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

Gender differences are often overlooked when conducting competition law analysis. How should gender impact the work of competition regulators? Lynn Robertson, Competition Expert at the OECD's Competition Policy Division and co-author of the OECD's Gender Inclusive Competition Toolkit, joins Alicia Downey and Matthew Hall to discuss the Toolkit project. Listen to this episode to learn more about the background to the project, the key insights and findings set out in the Toolkit and the OECD's future work in this area.

With special guest:

Lynn Robertson, Competition Expert, Competition Policy Division, Directorate for Financial and Enterprise Affairs, OECD

Related Links:

OECD Gender Inclusive Competition Toolkit

Hosted by:

Alicia Downey, Principal, Downey Law LLC and Matthew Hall, Partner, McGuireWoods London LLP

Our Curious Amalgam is celebrating its 250th episode by hosting a family reunion! In this episode, former and current regular hosts Alicia Downey, Anora Wang, Matthew Hall, Christina Ma, Anant Raut, and Sergei Zaslavsky highlight the some of the Top 5 most listened-to episodes, year by year, since OCA first launched in 2019. In addition to looking back at the most popular episodes, we talk about undiscovered gems in the archives and the most important legal trends and developments that have occurred since Episode #1. Listen to this episode for a special look back at the greatest hits of Our Curious Amalgam and discover how they are still relevant today.

With special guests:

Matthew Hall, McGuireWoods LLP, Christina Ma, Wachtell, Lipton, Rosen & Katz, Anant Raut, Trust & Trade and Sergei Zaslavsky, O'Melveny & Myers LLP

Related Links:

Trust and Trade

Hosted by:

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

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

Some have expressed concerns over a lack of competition in the U.S. rail freight and passenger services markets. How the U.S. freight rail system works and is competition an issue in the sector? Dr. Russell Pittman, the Director of Economic Research in the Antitrust Division of the U.S. Department of Justice, examines the state of competition in the freight rail sector with Barry Nigro and Anora Wang. We'll take a deep dive into the participants of the market, the competition concerns, the recent challenges, and high-level observations. Join us to learn more!

With special guest:

Dr. Russell Pittman, Director of Economic Research, Antitrust Division of the U.S. Department of Justice

Related Links:

Press Release, STB Issues Proposed Rule Regarding Reciprocal Switching for Inadequate Service (Sept. 7, 2023)

Press Release, Surface Transportation Board Adopts New Rules for Smaller Rate Disputes (Dec. 19, 2022)

Press Release, STB Approves CP/KCS Merger with Conditions and Extended Oversight Period (Mar. 15, 2023)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP 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

On this episode of Our Curious Amalgam podcast - a special collaboration with the Antitrust Law Section's Women.Connected Committee - we explore the prevalence of sexual harassment in the legal profession, why it persists, and the damage it causes. With expert insight from Jane Pigott, we learn why sexual harassment isn't just a women's issue, discuss the consequences for the organizations and individuals involved, and highlight available resources and tool kits as well as what else we can do as a community to implement changes going forward. Tune in to learn more and to be part of the effort to end this pressing issue.

With special guest:

Jane Pigott, R3 Group LLC

Related Links:

Women Lawyers on Guard, Still Broken: Sexual Harassment and Misconduct in the Legal Profession

IBA, Bullying and Sexual Harassment in the Legal Profession

National Women’s Law Center, #metoowhatnext: Strengthening Workplace Sexual Harassment Protections and Accountability

Harvard Business Review, Why Sexual Harassment Programs Backfire And What to Do About it

ABA Commission on Women in the Profession, Zero Tolerance Program Toolkit

Forbes, ‘What Was He Thinking?’ Inside The Mind Of A Sexual Harasser

Hosted by:

Jana Seidl, Baker Botts LLP and Kellie Kemp, Co-Chair of Women.Connected

The European Union's Regulation on Foreign Subsidies Distorting the Internal Market is now in operation. What is happening in practice and how should companies prepare? Ulrich Soltész, partner at law firm Gleiss Lutz in Brussels, joins Matthew Hall and Derek Jackson to discuss the state of play under the FSR. Listen to this episode to learn more about the required notifications of certain mergers and public procurement procedures, ex officio investigations (including potentially into leading football/soccer teams), the substantive test, remedies, and the steps companies should be taking now to prepare.

With special guest:

Ulrich Soltész, Partner, Gleiss Lutz

Related Links:

European Commission website page for EU Foreign Subsidies Regulation

Hosted by:

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

The practice of personalized pricing has been empowered by advanced algorithms in the digital era. Relevant policy debates and lawsuits are on the rise in recent years in China. When is personalized pricing unlawful? Dr. Annie Xue, head of GEN Law Firm's compliance practice in China, joins Anora Wang and Lijun Zhang to discuss relevant policy debates and court litigations. Listen to this episode if you want to learn more about the legal framework, litigation landscape, and compliance tips involving personalized pricing in China.

With special guest:

Dr. Annie Xue, Partner, GEN Law Firm

Related Links:

European Parliament Study: Personalised pricing (2022) 消费者应该有多少数据控制权? How much data control should consumers have? (Lecture video attached) (2022) (Chinese text + English webinar)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Lijun Zhang, Freshfields Bruckhaus Deringer 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

Pharmacy benefit managers (PBMs) are being called out for engaging in allegedly anticompetitive business practices that make prescription drugs less affordable. But do PBMs actually promote competition in the healthcare industry? In this episode, Professor Casey Mulligan, an economist and law professor at the University of Chicago, discusses what his research indicates could be the unintended adverse consequences of imposing transparency requirements and other regulatory burdens on PBMs. Listen to this episode to hear the arguments against targeting PBMs with restrictive legislation and enforcement proceedings as a means of reining in high drug prices.

With special guest:

Casey Mulligan, Professor of Economics, University of Chicago

Related Links:

Casey Mulligan, Ending Pay for PBM Performance: Consequences for Prescription Drug Prices, Utilization, and Government Spending (Sept. 2023)

Casey Mulligan, Testimony before Senate Committee on Commerce, Science & Transportation (Feb. 16, 2023)

Casey Mulligan, In Defense of Pharmacy Benefit Managers, Wall Street Journal Op-Ed (July 11, 2022)

Hosted by:

Alicia Downey and Jeny Maier

The role of antitrust in health care is a common topic in the antitrust world. But does health care quality play a big enough role in the discussion? Professor Theodosia Stavroulaki joins Jaclyn Phillips and Jeny Maier to discuss her new book, which focuses on the role of competition and quality in healthcare markets. Listen in to hear more about Professor Stavroulaki's compelling research.

With special guest:

Theodosia Stavroulaki, Assistant Professor of Law, Gonzaga University School of Law

Related Links:

Theodosia Stavroulaki, Mergers That Harm Our Health (Berkeley Business Law Journal)

Hosted by:

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

Microsoft's proposed acquisition of Activision Blizzard was controversially blocked in its original form by the UK Competition and Markets Authority. What was the CMA's rationale and how has the investigation played out since then? Bruce Kilpatrick, partner at Addleshaw Goddard LLP in London, joins Christina Ma and Matthew Hall to discuss the UK element of the worldwide merger control investigation into this case. Listen to this episode to learn more about the CMA's original investigation, the parties' appeal to the UK Competition Appeal Tribunal, the CMA's review of an amended transaction and the future of behavioral remedies in the UK.

With special guest:

Bruce Kilpatrick, Partner, Addleshaw Goddard LLP

Related Links:

UK Competition and Markets Authority Microsoft/Activision Blizzard merger case page (original transaction) UK Competition and Markets Authority Microsoft/Activision Blizzard merger case page (amended transaction) European Commission press release Microsoft/Activision Blizzard merger clearance U.S. Federal Trade Commission press release challenge to Microsoft/Activision Blizzard merger Summary of appeal application at UK Competition Appeal Tribunal (original transaction) UK Competition Appeal Tribunal case page (original transaction)

Hosted by:

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

Fiona Schaeffer, a prominent antitrust lawyer, has taken on the big job of leading the ABA Antitrust Law Section in 2023-24. In this episode, co-hosts Alicia Downey and Anora Wang interview Fiona about her goals for the year and the initiatives she is leading to explore the relationship between antitrust and consumer protection law and sustainability, as well as the impact of artificial intelligence on the law and the legal profession. Listen to this episode to get to know Fiona and, as a bonus, meet Anne Catherine Faye, the first economist appointed to serve in the important role of Counsel to the Chair.

With special guests:

Fiona Schaeffer, Milbank LLP and Anne Catherine Faye, Analysis Group

Related Links:

Upcoming ABA Antitrust Law Section events 

Hosted by:

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

Bank failures in 2023 led to renewed interest in bank consolidation and debate over the role of antitrust in bank policy. But does this mean we can expect the DOJ Antitrust Division to change the way they are approaching bank mergers? Damian Didden, Partner at Wachtell, joins Jaclyn Phillips and Sergei Zaslavsky to explain the debate about bank consolidation and what we can glean from the Antitrust Division's statements about its approach to bank merger review. Tune in to learn more about whether you can bank on changes in this space.

With special guest:

Damian Didden, Partner, Wachtell, Lipton, Rosen & Katz

Related Links:

Wachtell Comments on Revisions to the 1995 Banking Guidelines

Wachtell Lipton Criticizes Putting Politics in Bank Merger Antitrust Policy

Hosted by:

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

Private equity has been in the hot seat at the Federal Trade Commission and the Antitrust Division lately. Both agencies have increasingly expressed skepticism regarding PE buyers and owners, and have devoted more resources to investigating matters where PE parties are involved. But what exactly is PE? And how does it fit into the antitrust regulatory landscape? In this episode, co-hosts Elyse Dorsey and Jana Seidl speak with Sarahi Constantine Padilla, Senior Counsel at Warburg Pincus, about all-things private equity—and ask all the burning questions you might have been afraid to ask.

With special guest:

Sarahi Constantine Padilla, Senior Counsel at Warburg Pincus

Related Links:

U.S. v. UnitedHealth Group and Change Healthcare - Memorandum Opinion

FTC's Khan puts private equity 'on notice' that roll-up strategies could be illegal

Chair Lina Khan, Memorandum to Commission Staff and Commissioners

Hosted by:

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

Ten years ago, the U.S. Supreme Court issued its 5-3 decision in FTC v. Actavis, which held that the rule of reason should govern so-called "pay-for-delay" patent litigation settlement agreements between brand name and generic pharmaceutical manufacturers. In this episode, hosts Aaron Yeater and Alicia Downey talk to Kristen O'Shaughnessy and Dan Grossbaum about how the decision has shaped litigation in the years since and its implications for antitrust challenges in other industries. Listen to this episode to learn about the impact of the Actavis decision in the past ten years and in the future.

With special guests:

Kristen O'Shaughnessy, Partner, White & Case and Daniel Grossbaum, Associate, White & Case

Related Links:

FTC v. Actavis: Opinions and Oral Arguments

Hosted by:

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

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

On July 19, 2023, the U.S. Department of Justice’s Antitrust Division and the Federal Trade Commission issued the long-awaited draft Merger Guidelines. How should you approach the draft guidelines? The DOJ Antitrust Division’s Deputy Assistant Attorney Generals Andy Forman and Michael Kades speak with Melissa Maxman and Anora Wang about the background, guiding principles, and some specific languages. Listen and engage in the constructive process of commenting on the guidelines.

With special guests:

Andrew Forman, Deputy Assistant Attorney General for the Antitrust Division, U.S. Department of Justice and Michael Kades, Deputy Assistant Attorney General for the Antitrust Division, U.S. Department of Justice

Related Links:

DOJ-FTC 2023 Draft Merger Guidelines (July 19, 2023) "Look Mickey" by Roy Lichtenstein (National Gallery of Art)

Hosted by:

Melissa Maxman, Cohen & Gresser LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

Antitrust cases are often complex and technical, which invites suspicion that such cases should be decided by specialists rather than generalist judges. Would a judge who is truly an antitrust expert think the same? The honorable Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, speaks with Melissa Maxman and Anora Wang with the utmost candor and (at times) unexpected humor reflecting his decades of experiences, observations, and scholarship.

With special guests:

Judge Douglas Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit

Related Links:

Antitrust Courts: Specialists versus Generalists, 36 FORDHAM INT’L. L.J. 788 (2013) (with Joshua D. Wright)

Antitrust Courts: Specialists versus Generalists, 36 FORDHAM INT’L. L.J. 788 (2013) (with Joshua D. Wright) - alternate location

Hosted by:

Melissa Maxman, Cohen & Gresser LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

Merger control and antitrust enforcement continues to expand around the world. Is MENA ahead of or behind the curve? Nicolas Bremer, partner at law firm Bremer, joins Matthew Hall and Jeny Maier to discuss developments in Egypt, Saudi Arabia and Kuwait. Listen to this episode to learn more about merger control and antitrust rules in those jurisdictions and gain practical knowledge of how the regimes really work there.

With special guest:

Nicolas Bremer, Partner, Bremer

Related Links:

Bremer law firm resources

Hosted by:

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

The credit card industry has been the subject of increased antitrust scrutiny in recent years, even as consumer understanding of its inner workings remains low. But how did the American credit card system come to be, and are there changes for it on the horizon? Doug Kantor, General Counsel of the National Association of Convenience Stores, speaks with Christina Ma and Matt Reynolds about the history of credit and debit card payment systems, the “swipe fees” on which those systems are built, and the justifications offered over the years for those fees. Tune in to learn more about the development of card payment systems in the United States and the antitrust considerations that continue to influence their development even today.

With special guest:

Doug Kantor, General Counsel, National Association of Convenience Stores

Related Links:

https://www.convenience.org/Advocacy/Issues/SwipeFees  https://www.congress.gov/bill/118th-congress/senate-bill/1838 

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen & Katz and Matthew Reynolds, Partner, Huth Reynolds LLP

The 2023 Annual Spring Meeting of the ABA Antitrust Law Section offered the Our Curious Amalgam team a chance to speak with competition law enforcers from around the world. In this episode, host Matthew Hall asks Olivier Guersent, Director-General of the Directorate-General for Competition of the European Commission (DG COMP), about what's been happening in the European Union since we interviewed him at the 2022 Spring Meeting. Listen and learn about DG COMP's current work, the most important anticipated developments of 2023, and what competition law policy and enforcement trends the Director-General sees on the horizon.

With special guest:

Olivier Guersent, Director-General, DG COMP, European Commission

Related Links:

EU Digital Markets Act EU Foreign Subsidies Regulation EU Horizontal Guidelines and Block Exemption #165 What Say You? International Enforcers Live at Spring Meeting 2022

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP

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

On April 14, 2023, the U.S. Supreme Court issued its unanimous opinion in Axon Enterprise, Inc. v. Federal Trade Commission, holding that parties contesting the agency's constitutionality may commence immediate collateral challenges in federal court. Will this decision prompt a host new of challenges to the FTC's authority? In this episode, co-hosts Elyse Dorsey and Jana Seidl speak with Nandu Machiraju, Partner at Baker McKenzie, about the Supreme Court’s recent decision and what it means for the FTC and for parties facing the prospect of FTC administrative enforcement.

With special guest:

Nandu Machiraju, Partner, Baker McKenzie

Related Links:

Axon Enterprise, Inc. v. Federal Trade Commission

U.S. Chamber of Commerce: Supreme Court Hands Businesses a Big Win in Case Against FTC

Axon Enterprise, Inc. v. Federal Trade Commission Oral Argument

Hosted by:

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

The current administration and leadership at the FTC, helmed by Chair Lina Khan, have been vocal about their desire to expand antitrust and consumer protection enforcement and to use all the tools in their enforcement and regulatory toolkit to address harms that they see as taking place across the economy. But are these new initiatives consistent with constitutional and administrative law principles? Matt Tabas, an experienced antitrust practitioner and former FTC attorney, joins Jeny Maier and Melissa Maxman to offer an overview of the challenges that the FTC is facing while it is seeking to flex its enforcement muscles. Listen to this episode to learn more about these threats to the FTC and how courts are likely to address them.

With special guest:

Matthew Tabas, Partner, Arnold & Porter

Hosted by:

Jeny Maier and Melissa Maxman

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.

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 Natalie Harsdorf-Borsch, acting director of the Austrian Federal Competition Authority, Laura Melusine Baudenbacher, president of the Swiss Competition Commission, and Šarūnas Keserauskas, the then chairman of the Lithuanian Competition Council, 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:

Natalie Harsdorf-Borsch, Acting Director, Austrian Federal Competition Authority, Dr. Laura Melusine Baudenbacher, President, Swiss Competition Commission, and Šarūnas Keserauskas, Chairman, Lithuanian Competition Council (2011-2023)

Related Links:

Austrian Federal Competition Authority (Bundeswettbewerbsbehörde) Swiss Competition Commission Competition Council of the Republic of Lithuania (Konkurencijos taryba)

Hosted by:

Alicia Downey, Downey Law LLC, Anora Wang, Arnold & Porter Kaye Scholer LLP, Sergei Zaslavsky, O'Melveny & Myers LLP, and Jeny Maier, Axinn, Veltrop & Harkrider LLP

Section 230 generally shields online platforms from liability for third-party content. It has been widely credited with enabling the growth of the internet, but to what extent does it apply to the latest disruptive technology --- generative AI? Jess Miers, Legal Advocacy Counsel at the Chamber of Progress, discusses the applicability of Section 230 to generative AI with hosts Christina Ma and Sergei Zaslavsky. Listen to this episode to learn about arguments for and against applying Section 230 to generative AI, and what features of generative AI will likely be key to determining the scope of Section 230 protection.

With special guest:

Jess Miers, Legal Advocacy Counsel, Chamber of Progress

Related Links:

Matt Pereault, Section 230 Won’t Protect ChatGPT, Lawfare 

Jess Miers, Yes, Section 230 Should Protect ChatGPT And Other Generative AI Tools, Techdirt

Henderson v. The Source for Public Data Fourth Circuit Opinion

Fair Housing Council of San Fernando Valley v. Roommates.com Ninth Circuit Opinion

Hosted by:

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

There are many debates in the antitrust world today, but none is as fundamental as the discussion over the core purpose of antitrust. Should antitrust law be solely concerned with economic efficiency, or is it also a tool for upholding and promoting our democratic political values? Spencer Waller, law professor at the Loyola University Chicago School of Law, and Geoffrey Manne, founder of the International Center for Law and Economics, debate this important question with hosts Sergei Zaslavsky and Melissa Maxman. Listen to this episode to hear competing perspectives on such key issues as the connection between economic and political power, the proper role of different branches of government in shaping antitrust policy, and much more.

With special guests:

Spencer Waller, John Paul Stevens Chair in Competition Law, Loyola University Chicago School of Law and Geoffrey Manne, Founder and President of International Center for Law and Economics

Related Links:

Harry First and Spencer Weber Waller, Antitrust’s Democracy Deficit, 81 Fordham L. Rev. 2543 (2013)

Antitrust and Democracy by Spencer Weber Waller :: SSRN

Geoffrey Manne & Alec Stapp, Does Political Power Follow Economic Power? (Dec. 30, 2019)

Hosted by:

Sergei Zaslavsky, O'Melveny & Myers and Melissa Maxman, Cohen & Gresser

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, including Germany and Spain. In this episode, we ask Andreas Mundt, the president of the German Bundeskartellamt and Cani Fernández, the president of the Spanish National Markets and Competition Commission, about their 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:

Andreas Mundt, President, the Bundeskartellamt and Cani Fernández, President, Comisión Nacional de los Mercados y la Competencia

Related Links:

Bundeskartellamt 

Spanish National Markets and Competition Commission (CNMC) 

Ep. #177 Who Is Cani Fernández? Meet the President of the Spanish National Markets and Competition Commission 

Hosted by:

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

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

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. What are their enforcement priorities, what trends do they see on the horizon, and what should advocates with matters before their agencies do to be most effective? Discover the answers to these questions in this episode and other episodes in this special series of interviews recorded live at the Spring Meeting. And as a bonus, listeners will also get to know our distinguished guests a little better on a personal level.

With special guests:

• Kristina Nordby, Head of the Board, Greenlandic Consumer and Competition Authority
• Gegham Gevorgyan, Chairman, Armenian Commission for the Protection of Competition
• Kārlis Piģēns, Council Member, Competition Council of Latvia

Related Links:

Greenlandic Consumer and Competition Authority Armenian Competition Protection Commission Competition Council of the Republic of Latvia

Hosted by:

Matt Michaloski, Kayla Odom, and Alicia Downey

LIV Golf is the most serious threat the PGA has ever faced, and the fight between the two professional golf tours has grown increasingly personal and bitter. But is the PGA defending itself through illegal anticompetitive tactics? Michael McCann, one of the nation's foremost sports law experts and Kail Jethmalani join Anant Raut and Anora Wang to discuss the life of a professional golfer, what makes the LIV tour appealing, and the PGA's history against upstart rivals. Listen to this episode to learn more about the antitrust case between the two tours, and why it may end up in the Supreme Court.

With special guests:

Professor Michael McCann, Director of the Sports and Entertainment Law Institute, Franklin Pierce School of Law and Kail Jethmalani, Counsel, Axinn

Related Links:

LIV Golf and PGA Tour Set for Long Term Courtroom War 

Hosted by:

Anant Raut and Anora Wang

It seems that metaverses will soon be ubiquitous. What are the competition law issues? Dr. Yusuke Takamiya, the antitrust/competition law partner at Mori Hamada & Matsumoto, joins Matthew Hall and Anora Wang to discuss what metaverses are, how they are structured, the parallels with existing competition law analysis of technology markets and the specific issues raised by metaverses. Listen to this episode to learn more about this rapidly developing technology and area of competition law.

With special guest:

Yusuke Takamiya, Partner, Mori Hamada & Matsumoto

Related Links:

The Metaverse & Antitrust/Competition Law, presentation, Yusuke Takamiya, January 2023 European Parliament briefing, June 2022 European American Chamber of Commerce article, October 2022 Japan Fair Trade Commission event January 2023

Hosted by:

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

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

There are many ways to make a career engaging with competition law. Guest Mark Meador, Deputy Chief Counsel for Antitrust and Competition Policy to Senator Mike Lee, has forged a unique path working on and off the Hill. What exactly does antitrust counsel to a United States Senator do? Mark discusses the various functions of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights and his own work. Listen to this episode to hear his unique perspective on working with competition law and policy.

With special guest:

Mark Meador, Deputy Chief Counsel for Antitrust and Competition Policy to Senator Mike Lee

Related Links:

Senate Judiciary subcommittees landing page Senator Lee press

Hosted by:

Christina Ma and Matt Michaloski

European competition regulators are increasingly focused on sustainability agreements and have published guidance. What are these documents saying and are they consistent? Jay Modrall, Brussels-based competition lawyer, joins Matthew Hall and Aaron Yeater to discuss the current position in the EU and UK. Listen to this episode to learn more about the application of EU and UK competition law to sustainability agreements between companies, including those intended to assist with the fight against climate change.

With special guest:

Jay Modrall, Senior Counsel, Norton Rose Fulbright LLP

Related Links:

Netherlands ACM draft Guidelines on Sustainability Agreements January 2021 UK CMA draft Guidelines on Environmental Sustainability Agreements March 2023 European Commission draft Guidelines on Horizontal Cooperation Agreements

Hosted by:

Matthew Hall, Partner, McGuireWoods London LLP and Aaron Yeater, Managing Principal, Analysis Group, Inc.

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

Drug prices are top of mind for numerous patients, legislators, policy experts, and antitrust enforcers these days. But what role do pharmacy benefit managers (PBMs) play in determining the price and availability of drugs at the pharmacy counter, and why do PBMs find themselves in the middle of an FTC market study looking into their business practices? Join Alicia Downey and Jeny Maier as they talk with Dr. Erin Trish, an economist and health policy expert, about the evolution of PBMs and the current antitrust inquiries they are facing. Listen to this episode if you want to learn more about what goes into the price that you pay for your prescription.

With special guest:

Dr. Erin Trish, Co-Director, Schaeffer Center for Health Policy & Economics, University of Southern California

Related Links:

USC Schaeffer Center Research on the Pharmaceutical Distribution Chain

USC Schaeffer Center Public Comments to FTC on PBMs

Who Is Really Driving Up Insulin Costs? (April 18, 2022)

Testimony Before the U.S. Senate Committee on Commerce, Science, & Transportation on Bringing Transparency and Accountability to Pharmacy Benefit Managers (February 16, 2023)

Livestream Video of Senate Committee Hearing

Hosted by:

Alicia Downey, Downey Law LLC and Jeny Maier, Axinn, Veltrop & Harkrider LLP

Serving on the bench is a challenge and a privilege. For certain communities in our society, the path to the bench was a never traveled one until recently. What are some of the most valuable experiences that have prepared a judge for the bench? The honorable Judge Yvonne Gonzalez Rogers speaks with Melissa Maxman and Anora Wang on her professional experiences including prior private practice and service in state and federal courts, her views on diversity, equity, and inclusion, and practice pointers.

With special guest:

Judge Yvonne Gonzalez Rogers, the District Court for the Northern District of California

Related Links:

Apple iPod iTunes Antitrust Litig., No. 05-CV-0037 YGR, 2014 WL 4809288 (N.D. Cal. Sept. 26, 2014) (ORDER DENYING: (1)DEFENDANT'S COMBINED MOTION FOR SUMMARY JUDGMENT AND DAUBERT MOTION; (2)PLAINTIFFS' DAUBERT MOTION; AND (3)PLAINTIFFS' MOTION TO STRIKE EXPERT REPORT) Epic Games, Inc. v. Apple Inc., 559 F. Supp. 3d 898, 922 (N.D. Cal. 2021) (RULE 52 ORDER AFTER TRIAL ON THE MERITS)

Hosted by:

Melissa Maxman, Cohen & Gresser and Anora Wang, Arnold & Porter

In January 2023, the FTC issued a Notice of Proposed Rulemaking that would ban virtually all non-compete agreements between employers and workers, both retroactively and going forward, categorizing them as an “unfair method of competition” under Section 5 of the FTC Act. What does the FTC’s proposed rule look like, and is it destined to succeed? In this episode, co-hosts Jana Seidl and Elyse Dorsey speak with Anna Aryankalayil about the various details and scope of the proposed rule, the reasons behind non-competes, and potential legal challenges to any final rule the FTC may issue. Listen to this episode to learn about all sides of the heated controversy over the proposed ban on non-compete agreements.

With special guest:

Anna Aryankalayil, Partner, Orrick Herrington & Sutcliffe

Related Links:

Press Release, FTC Proposes Rule to Ban Noncompete Clauses

FTC Non-Compete Clause Rulemaking

FTC Non-compete Clause Rule (NPRM) Comments

Bloomberg article, FTC Noncoompete ban slammed by business groups as ‘unworkable’

Hosted by:

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

Deon Woods Bell and Laura Wilkinson join Our Curious Amalgam and Diversity. Advanced to celebrate Black History Month. What can we learn about diversity from two legends of the antitrust and consumer protection bars? Alicia Downey and Jaclyn Phillips talk with Deon and Laura about their storied careers, inclusion, and the importance of engaging with the community. Listen to this episode and be inspired by their perspectives on the value of diversity both in the U.S. and in the international antitrust and consumer protection arena.

With special guests:

Deon Woods Bell, Senior Advisor, Global Policy, Financial Services for the Poor, Bill & Melinda Gates Foundation and Laura Wilkinson, Global Antitrust Counsel, PayPal

Related Links:

Diversity.Advanced 

Hosted by:

Alicia Downey, Downey Law LLC and Jaclyn Phillips, White & Case LLP

Mandatory treble damages awards have been a feature of U.S. antitrust law for more than a century. Why do we have treble damages and what are the benefits and unintended consequences of treble damages? Counsel at Perkins Coie and adjunct professor at University of Colorado Law School, Henry Hauser, joins Christina Ma and Matt Michaloski to discuss how we should think about treble damages in antitrust cases. Listen to this episode to learn about the arguments for and against the continued utility of mandatory trebling.

With special guest:

Henry J. Hauser, Counsel, Perkins Coie

Related Links:

Minnesota Law Review: Antitrust Reformers should Consider the Consequences of Mandatory Treble Damages

Congressional Study of the Antitrust Treble Damage Remedy

Statute of Monopolies

Henry J Hauser, Perkins Coie bio

Hosted by:

Christina Ma and Matt Michaloski

The 2023 Appropriations Act included three antitrust laws dealing with merger fees, merger subsidy disclosure, and venue. What are the implications of these laws? Laura Alexander joins hosts Christina Ma and Jaclyn Phillips to discuss what these laws do, how we got them, and whether we may see substantive antitrust reform in the future. Listen to this episode to learn more about how we finally saw antitrust bills become laws.

With special guest:

Laura Alexander, Washington Center for Equitable Growth

Related Links:

Consolidated Appropriations Act, 2023 

The Merger Filing Fee Modernization Act is a down payment on the future of antitrust enforcement

Restoring competition in the United States

The state of U.S. federal antitrust enforcement

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen & Katz and Jaclyn Phillips, Associate, White & Case LLP

The ABA Antitrust Law Section’s Spring Meeting is the largest annual gathering of competition, consumer protection, and data privacy professionals globally, with lawyers, academics, economists, enforcers, journalists, and students from around the world. Curious about what's anticipated for this year's meeting? Spring Meeting Co-Chairs Doug Tween and Sheila Adams join hosts Alicia Downey and Kayla Odom to talk about what to expect and tips for making the most of this memorable event. Whether you will be a first time or veteran attendee, listen in for the inside scoop on what's in store at this year's exciting Spring Meeting, March 29-31, 2023, in Washington, DC.

With special guests:

Doug Tween, Linklaters LLP and Sheila Adams, Davis Polk & Wardwell LLP

Related Links:

ABA Antitrust Spring Meeting 2023 Website

Spring Meeting Agenda 2023

ABA Antitrust Law Section Website

Hosted by:

Alicia Downey, Downey Law LLC and Kayla Odom, Renesas Electronics America Inc.

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

The debate about the role of government in regulating monopolies is getting more heated by the day. How do historical concepts of "monopoly" fit into the discussion? Veteran antitrust scholar, practitioner, and author Barry Hawk joins Alicia Downey and Matt Reynolds to discuss his latest foray into legal history in his new book, "Monopoly in America." Listen to this episode to learn about how popular conceptions of monopoly and "monopolizers" evolved long before the passage of modern U.S. antitrust laws.

With special guest:

Barry E. Hawk

Related Links:

Barry E. Hawk, Monopoly in America (Juris 2022)

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Reynolds, Huth Reynolds LLP

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

As 2022 comes to an end, the Antitrust Law Section's sector committees tell us which notable antitrust cases and investigations affected key industries and what they predict will make headlines in 2023. In this two-part special episode, hosts Alicia Downey, Sergei Zaslavsky, and Jaclyn Phillips speak with leaders of the committees responsible for providing Section members with programs and publications about the latest industry-specific antitrust developments. Listen to Part 1 to hear from the Health Care & Pharmaceuticals Committee, the Agriculture & Food Committee, and the Distribution and Franchising Committee. Listen to Part 2 to hear from the Transportation & Energy Committee, the Insurance & Financial Services Committee, and the Media & Technology Committee.

With special guests:

• Chris Wilson, Gibson, Dunn & Crutcher LLP
• Francesca Pisano, Arnold & Porter Kaye Scholer LLP
• Deborah F. Salzberger, McCarthy Tetrault LLP
• Andrew Ewalt, Freshfields Bruckhaus Deringer LLP
• Melanie Hallas Kirsch, AT&T
• Suzanne Munck af Rosenschold, Davis Polk & Wardwell LLP

Related Links:

Transportation & Energy Committee 

Insurance & Financial Services Committee 

Media & Technology Committee 

Hosted by:

• Alicia L. Downey, Downey Law LLC
• Sergei Zaslavsky, O'Melveny & Myers LLP
• Jaclyn Phillips, White & Case LLP

As 2022 comes to an end, the Antitrust Law Section's sector committees tell us which notable antitrust cases and investigations affected key industries and what they predict will make headlines in 2023. In this two-part special episode, hosts Alicia Downey, Sergei Zaslavsky, and Jaclyn Phillips speak with leaders of the committees responsible for providing Section members with programs and publications about the latest industry-specific antitrust developments. Listen to Part 1 to hear from the Health Care & Pharmaceuticals Committee, the Agriculture & Food Committee, and the Distribution & Franchising Committee. Listen to Part 2 to hear from the Transportation & Energy Committee, the Insurance & Financial Services Committee, and the Media & Technology Committee.

With special guests:

• Lauren M. Rackow, Cahill Gordon & Reindel LLP
• Brian Rafkin, Akin Gump Strauss Hauer & Feld LLP
• Adam Goodman, Dentons
• Jee-Yeon Lehmann, Analysis Group

Related Links:

Health Care & Pharmaceuticals Committee 

Agriculture & Food Committee 

Distribution & Franchising Committee 

Hosted by:

Alicia L. Downey, Downey Law LLC; Sergei Zaslavsky, O'Melveny & Myers LLP; and Jaclyn Phillips, White & Case 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

Vertical mergers present unique doctrinal and economic issues and are rarely challenged in court, so when two vertical merger opinions are issued in a short period of time, it is a great opportunity to check in on this area of antitrust law. What are the facts and legal arguments that led to defense victories in the recently litigated UnitedHealth Group – Change Healthcare and Illumina – Grail mergers (currently under appeal)? Sara Razi, Partner at Simpson Thacher and counsel for Change, joins Sergei Zaslavsky and Jaclyn Phillips to discuss these important cases. Listen to this episode to learn more about these two cases and the important lessons they hold for merger litigation practitioners.

With special guest:

Sara Razi, Partner, Simpson Thacher & Bartlett LLP

Related Links:

UnitedHealth Group - Change Healthcare district court opinion

Illumina - Grail administrative law judge opinion

Hosted by:

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

In November 2022, the FTC issued a policy statement concerning the scope and meaning of unfair methods of competition under Section 5 of the FTC Act. So what has changed under Section 5 and where are we headed? Angela Landry, counsel at Freshfields, joins Christina Ma and Jaclyn Phillips to discuss Section 5, how the FTC's approach has changed with its 2022 statement, and what we might see as it gets put into practice.

With special guest:

Angela Diveley Landry, Counsel, Freshfields Bruckhaus Deringer US LLP

Related Links:

https://blog.freshfields.us/post/102i1jq/ftc-seeks-to-revive-prohibitions-against-unfair-competition

https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf

https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyWilsonDissentStmt.pdf

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP

In the American political system, the judiciary serves as an impartial, independent branch of government responsible for interpreting our laws and deciding cases and controversies. Even with these foundational principles, how do we ensure public trust in the institution? Sixth Circuit Court of Appeals Judge Bernice Donald joins Kayla Odom and Alicia Downey to reflect on the public perception of the role of the judiciary. Listen in to hear what shapes our understanding of the courts, and what the judiciary can do to ensure public confidence in the administration of justice.

With special guest:

Hon. Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit

Related Links:

Bernice B. Donald and Don R. Willett – How to counter today’s tribalism and build ‘a more perfect union’ – Sept. 16, 2022

Press Release, Federal appeals court judge Bernice Donald to receive Sandra Day O’Connor Award for outstanding contributions to justice – Aug. 31, 2022

Hosted by:

Alicia Downey, Downey Law LLC and Kayla Odom, Corporate Counsel, Renesas

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

The world of antitrust and consumer protection law is made up of fascinating people, including Rahul Rao, the newest Deputy Director of the Federal Trade Commission's Bureau of Competition. How did he go from Big Law associate, to stay-at-home dad, to the Washington state AG's office, and now the FTC? Hosts Alicia Downey and Jeny Maier talk with Deputy Director Rao about his unique career path from private practice to government service, his past and current enforcement priorities, and his advice for up and coming practitioners. Listen to this episode to learn about one lawyer's pathway to a rewarding career in public service.

With special guest:

Rahul Rao, Deputy Director, Bureau of Competition, Federal Trade Commission

Related Links:

Washington State Attorney General’s Office, No-Poach Initiative Report

Press Release, Washington State Attorney General's Office, "Lasting impact: Study finds AG Ferguson’s no-poach initiative boosted income for low-wage workers nationwide"

Hosted by:

Alicia L. Downey, Downey Law LLC and Jeny Maier, Axinn, Veltrop & Harkrider 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 U.S. health care industry is complex and dynamic, resulting in antitrust issues that are just as complex. So what does the past decade of the intersection of antitrust and health care signal about the future? John Carroll and Amy Ritchie speak with Christina Ma and Jaclyn Phillips about these issues and the comprehensive update to the ABA's Health Care Handbook. Listen to this episode to learn more about the ACA, managed care, labor markets, and more.

With special guests:

John Carroll, Partner, Sheppard Mullin and Amy Ritchie, Attorney, Bureau of Competition at Federal Trade Commission

Related Link:

Antitrust Health Care Handbook, Fifth Edition 

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, White & Case LLP

In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy? David Shaw, a partner at Morrison & Foerster, and Derek Jackson, an associate at Cohen & Gresser, join Christina Ma and Melissa Maxman to discuss the intersection between ESG and the Sherman Act. Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG.

With special guests:

David J. Shaw, Partner, Morrison & Foerster and Derek Jackson, Associate, Cohen & Gresser LLP

Related Links:

• Jens Hackl, Sustainability and Antitrust – What Companies Need to Know About Sustainability Collaborations in Europe (Feb. 28, 2022)
• The ESG Movement and Its Impact on Antitrust Compliance (July 7, 2022)
• Oversight of Federal Enforcement of the Antitrust Laws, Subcommittee on Competition Policy, Antitrust, and Consumer Rights, Senate Judiciary Committee (Sept. 20, 2022) (note that discussion of ESG starts with questions from Sen. Hawley at 1:58:54 through 2:00:02 and picks up again with questions from Sen. Cotton at 2:02:42 through 2:05:35.)
• 3rd Circ. Won't Revive Shell Egg Buyers' Antitrust Suit 

Hosted by:

Christina C. Ma, Partner, Wachtell, Lipton, Rosen & Katz and Melissa H. Maxman, Partner, Cohen & Gresser, 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

To keep a level playing field among EU member countries, subsidies granted by those countries to companies engaged in competition in the EU are subject to the EU's state aid rules. But what about subsidies granted by non-EU countries which may impact the EU single market? Andreas Reindl, a partner at Van Bael & Bellis in Brussels, joins Alicia Downey and Matthew Hall to discuss the EU's new Regulation on foreign subsidies distorting the internal market, which authorizes the European Commission to investigate and issue orders to remediate the adverse effects of such foreign subsidies. Listen to this episode to learn more about this new Regulation and its implications for companies making acquisitions or involved in public tenders in the EU.

With special guest:

Andreas Reindl, Partner, Van Bael & Bellis

Related Links:

Proposed text of EU Regulation on Foreign Subsidies 13 July 2022

European Council press release 30 June 2022

Hosted by:

Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London 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

The 2010 FTC/DOJ Horizontal Merger Guidelines indicate that merger review should consider whether a proposed merger may lessen competition by eliminating a "maverick" firm that plays a disruptive role in the market to the benefit of consumers. But how do we know when a proposed merger involves such a maverick? In this episode, hosts Alicia Downey and Matt Reynolds talk with Baker Botts LLP partner and DOJ alumna Taylor Owings about what she thinks should be the defining features of maverick firms. Listen to this episode to learn more about the theory of "disruptive innovation," the maverick concept, and their potential roles in merger analysis.

With special guest:

Taylor M. Owings, Partner, Baker Botts LLP

Related Links:

Taylor M. Owings, "Identifying a Maverick: When Antitrust Law Should Protect a Low-Cost Competitor", 66 Vand. L. Rev. 323 (2013)

Clayton M. Christensen et al., "What Is Disruptive Innovation?", Harv. Bus. Rev., Dec. 2015

Edgewell Personal Care Company and Harry's, Inc. (FTC case page)

U.S. v. H&R Block, Inc., et al. (DOJ case page)

Check out two of Taylor's favorite board games:

Cyclades | Board Game | BoardGameGeek

Power Grid | Board Game | BoardGameGeek

And a card game that Taylor and Matt both enjoy:

Dominion | Board Game | BoardGameGeek

Hosted by:

Alicia L. Downey, Downey Law LLC and Matthew J. Reynolds, Partner, Huth Reynolds LLP

The Anti-Monopoly Law (AML) is China’s principal antitrust statute, as recently amended in August 2022, exactly 14 years after its inception. What has changed about China’s antitrust regime over the years? Steve Harris, respected practitioner and thought leader on Asian antitrust laws, speaks with Anora Wang and Christina Ma about his experiences with and perspectives of the AML, enforcement, and relevant agencies. Listen to this episode to learn about the significant developments of China’s antitrust law.

With special guests

H Stephen Harris Jr., Attorney at Law

Related Link:

American Bar Association Comments on Five Draft Provisions Implementing the Anti-Monopoly Law of China (August 18, 2022) 

Hosted by:

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

John Roberti, one of the founders of Our Curious Amalgam and a longtime leader in the ABA Antitrust Law Section, just wrapped up his term as co-chair of the committee that produces our weekly podcasts. Looking back, what does John think about the evolution of OCA and what does he hope will be his legacy? To find out, Christina Ma and Alicia Downey interviewed John for a special farewell episode. Listen to this episode for stories about the early days of OCA and John's unique take on what it means to be from Delco.

With special guests:

John Roberti, Partner, Cohen & Gresser LLP

Hosted by:

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

Tom Zych of Cleveland, Ohio has taken on the big job of chairing the Antitrust Law Section for the 2022-23 ABA year. Who is the Section's new chair and what makes him tick? In this episode Alicia Downey and Matt Reynolds talk to Tom about what he'll focus on during his term and the legacy he hopes to leave behind. Listen to this episode to get to know Tom and, as a bonus, meet Mark Butscha, who will serve in the important role of Counsel to the Chair.

With special guests:

Thomas F. Zych, Partner, Thompson Hine LLP and Mark R. Butscha, Jr., Partner, Thompson Hine LLP

Related Link:

ABA Antitrust Law Section - Home

Hosted by:

Alicia L. Downey, Downey Law LLC and Matthew J. Reynolds, Huth Reynolds LLP

A Denver jury recently acquitted defendants in the highly publicized third criminal trial involving allegations of price fixing in the chicken industry. What led to that not guilty verdict? Defense attorneys Rick Kornfeld and David Beller join Jaclyn Phillips and Christina Ma in a two-part series discussing the trials, strategy, and lessons learned. Listen to Part II today and hear Rick & David's reflections on the three trials--from simplifying complex themes to diversity in the courtroom.

With special guests:

Rick Kornfeld, Shareholder, Recht Kornfeld PC and David Beller, Shareholder, Recht Kornfeld PC

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP

A Denver jury recently acquitted defendants in the highly publicized third criminal trial involving allegations of price fixing in the chicken industry. What led to that not guilty verdict? Defense attorneys Rick Kornfeld and David Beller join Jaclyn Phillips and Christina Ma in a two-part series discussing the trials, strategy, and lessons learned. Listen to Part I today and hear all about the allegations and evidence, how the case evolved over time, and reflections on this historic outcome.

With special guests:

Rick Kornfeld, Shareholder, Recht Kornfeld PC and David Beller, Shareholder, Recht Kornfeld PC

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP

In a time of increased uncertainty surrounding antitrust issues, Section 8 of the Clayton Act and private equity firms have recently become two topics of interest. What are the implications of recent comments from enforcers on these issues? Ken Schwartz, antitrust partner at Skadden, joins Christina Ma and Jaclyn Phillips to discuss the current landscape around Section 8 as an enforcement tool and private equity transactions. Listen to this episode to hear more about what changes we may (or may not) see going forward.

With special guest:

Kenneth B. Schwartz, Partner, Skadden

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Jaclyn Phillips, White & Case LLP

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 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

There is a growing interest in understanding the “ownership interests hypothesis,” i.e., whether investors holding interests in competing firms will soften firms’ incentives to compete and generate anticompetitive effects. But what do the data show? Isabel Tecu, principal at Charles River Associates and co-author of a leading study on common ownership focusing on the airlines industry, discusses her observations and insights with Anora Wang and Christina Ma. Listen to this episode to learn about the knowns and unknowns from the empirical evidence as well as implications for competition policy.

With special guest:

Isabel Tecu, Principal, Charles River Associates

Related Links:

1. José Azar, Martin C. Schmalz & Isabel Tecu, Anticompetitive Effects of Common Ownership (Working Paper, 2014) 2. Isabel Tecu, "Anticompetitive Effects of Common Ownership" at Seven Years, Antitrust Magazine, Volume 36, Issue 1 (Fall 2021)

Hosted by:

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

The FTC’s General Counsel (GC) is the agency’s chief legal officer and adviser that provides counsel on various issues of law and policy and represents the agency in court. What are some of the most regular and important issues at the FTC’s GC office? Prof. Alden Abbott, former FTC GC and current Senior Research Fellow at George Mason University’s Mercatus Center, speaks with John Roberti and Anora Wang on issues including the Administrative Procedure Act, which can be critical especially when the agency expands or restricts its authorities. Listen to this episode to better understand the FTC’s GC role.

With special guest:

Alden Abbott, Senior Research Fellow, Mercatus Center at George Mason University

Related Links:

Alden Abbott, FTC Competition Regulation: A Cost-Benefit Appraisal (June 28, 2021)

Hosted by:

John Roberti, Cohen & Gresser and Anora Wang, Arnold & Porter

The Section Lunch at the Antitrust Law Section’s Annual Spring Meeting in March 2022 featured a panel discussion with four trailblazing women leaders who have served as current or former competition agency chiefs in their countries. By popular demand, we are dedicating an episode of Our Curious Amalgam to each of these inspiring panelists. In this episode, hosts Alicia Downey and Jaclyn Phillips ask Cani Fernández, President of the Spanish National Markets and Competition Commission, to talk about Spain's competition regime, newsworthy accomplishments of the Commission under her leadership, and her own professional journey.

With special guest:

Cani Fernández, President of the Spanish National Markets and Competition Commission

Related Link:

Spanish National Markets and Competition Commission

Hosted by:

Alicia Downey, Downey Law LLC and Jaclyn Phillips, White & Case LLP

Amidst the current momentum for antitrust reform, are U.S. lawmakers and enforcers thinking about the role of innovation in the right way? Aurelien Portuese, Director of the Schumpeter Project on Competition Policy at the Information Technology and Innovation Foundation, joins Sergei Zaslavsky and Sarah Zhang to discuss the concept of dynamic efficiency and how antitrust should feature innovation as a central concern. Listen to this episode if you want to learn more about the importance of innovation to competition policy, the relationship between innovation and market power, and whether contemplated antitrust reforms sufficiently take innovation into account.

With special guest:

Aurelien Portuese, Director of the Schumpeter Project, ITIF

Related Link:

Aurelien Portuese biography 

Hosted by:

Sergei Zaslavsky and Sarah Zhang

The Section Lunch at the Antitrust Law Section’s Annual Spring Meeting in March 2022 featured a panel discussion with four trailblazing women leaders who have served as current or former competition agency chiefs in their countries. By popular demand, we are dedicating an episode of Our Curious Amalgam to each of these inspiring panelists. In this episode, hosts Alicia Downey and Elyse Dorsey ask former Israeli Competition Authority Director-General Michal Halperin to talk about Israel’s competition regime, newsworthy accomplishments of the Competition Authority under her leadership, and her own professional journey.

With special guest:

Michal Halperin, Senior Fellow, Mossavar-Rahmani Center for Business & Government, Harvard Kennedy School

Related Link:

Israeli Competition Authority

Hosted by:

Alicia Downey, Downey Law LLC and Elyse Dorsey, Kirkland & Ellis LLP

The Section Lunch at the Antitrust Law Section’s Annual Spring Meeting in March 2022 featured a panel discussion with four trailblazing women leaders who have served as current or former competition agency chiefs in their countries. By popular demand, we are dedicating an episode of Our Curious Amalgam to each of these inspiring panelists. In this episode, hosts Alicia Downey and Anant Raut ask Rahat Kaunain Hassan, Chairperson of the Competition Commission of Pakistan, to talk about Pakistan's competition regime, some of the Commission's most newsworthy accomplishments under her leadership, and her own professional journey.

With special guest:

Rahat Kaunain Hassan, Chairperson, Competition Commission of Pakistan

Related Links:

Competition Commission of Pakistan Website

The Sugar Cartel Order dated 13 August 2021 

The RPM Order in the Home Appliances Market dated 11 March 2022 (Haier/DEL Order)

CCP’s in-house documentary in celebration of Women’s Day 2021, highlighting the experiences of CCP’s female officers

"Remedy" - poem by Rahat Kounain Hassan

Hosted by:

Alicia Downey, Downey Law LLC and Anant Raut

The Section Lunch at the Antitrust Law Section’s Annual Spring Meeting in March 2022 featured a panel discussion with four trailblazing women leaders who have served as current or former competition agency chiefs in their countries. By popular demand, we are dedicating an episode of Our Curious Amalgam to each of these inspiring panelists. In this episode, hosts Alicia Downey and Anora Wang ask former COFECE Chair Alejandra Palacios to talk about Mexico’s competition regime, newsworthy accomplishments of COFECE under her leadership, and her own professional journey.

With special guest:

Alejandra Palacios, Senior Fellow at the Sol Price School of Public Policy at the University of Southern California (USC)

Related Links:

COFECE - Federal Economic Competition Commission

A converging competition agenda for the prosperity of Mexico and the United States

Hosted by:

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

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

The U.S. Federal Trade Commission’s current leadership has a vision for changing various aspects of antitrust laws through rulemaking. But can the FTC’s rulemaking withstand administrative law challenges in federal court? Richard Pierce, renowned administrative law scholar and professor at The George Washington University, walks through the FTC's proposals and potential administrative law challenges with Anora Wang and Christina Ma. Listen to this episode to learn about the legal bases, limitations, and challenges to FTC rulemaking.

With special guest:

Richard J. Pierce Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School

Related Links:

Richard J. Pierce Jr, Can the Federal Trade Commission Use Rulemaking to Change Antitrust Law? (2021)

Richard J. Pierce Jr, Important Changes at the Intersection of Antitrust and Administrative Law (2022)

Hosted by:

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

In March 2022, the U.S. DOJ made headlines with the announcement it is considering bringing criminal monopolization cases under Section 2 of the Sherman Act for the first time in nearly fifty years. But is there any precedent that can help us understand what criminal prosecution of monopolization conduct would look like? Tiffany Rider and James Hunsberger of Axinn join John Roberti and Jaclyn Phillips to walk us through the decades-old case law and lay out the challenges DOJ might face trying to bring these cases under the modern antitrust framework. Listen to this episode to learn about whether the past can tell us anything about what DOJ will do in the future.

With special guests:

Tiffany Rider, Partner, Axinn and James Hunsberger, Counsel, Axinn

Related Link:

Axinn Antitrust Insight: DOJ Officials Raise Specter of Criminal Monopolization Prosecutions 

Hosted by:

John Roberti, Partner, Cohen & Gresser and Jaclyn Phillips, Associate, White & Case LLP

Labor market competition is one of the hottest issues in antitrust right now. Are workers being underpaid? Yes, says Treasury Department Deputy Assistant Secretary Neil Mehrotra, who joins Anant Raut and Alicia Downey to discuss the startling findings of Treasury's investigation into labor market competition. Listen to this episode to learn what we've misunderstood about labor market power, why workers are getting paid less than they should, and President Biden's long history combating this issue.

With special guest:

Neil Mehrotra, Deputy Assistant Secretary for Macroeconomics in the U.S. Treasury Department’s Office of Economic Policy

Related Link:

Investigation into labor market competition

Hosted by:

Anant Raut and Alicia Downey

The episode is "Honoring Asian American and Pacific Islander Heritage Month" with Indian-American host Anant Raut and guest Neil Mehrotra.

Tumultuous political change, including the rise of populism, has been one of the key trends of the past decade. How do the shifting political winds affect antitrust, the largely technocratic domain some consider to be apolitical? University of Warsaw Professor Maciej Bernatt joins Christina Ma and Sergei Zaslavsky to discuss the interrelationship between rising autocracy and populism in Central Europe (and other parts of the world) and competition policy and enforcement. Listen to this episode to learn how political change in Poland and Hungary has affected the antitrust world, and what lessons antitrust enforcers and practitioners can draw from this experience.

With special guest:

Maciej Bernatt, University of Warsaw

Related Link:

Maciej Bernatt's book, Antitrust and Populism (enter the code BERNATT22 at checkout for a 20% discount) 

Hosted by:

Sergei Zaslavsky and Christina Ma

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 Spring Meeting brings together thousands of antitrust practitioners and enforcers and this year was no exception. What did the attendees have to say? Alicia Downey and Anora Wang speak with Advocate John Simpson, Tribunal Member of South Africa’s National Consumer Tribunal, Brenda Gisela Hernández Ramírez, Acting Chair of COFECE (Mexico), and Ricardo Riesco, Head of Fiscalía Nacional Económica (Chile), on their agencies' 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:

Advocate John Simpson, Tribunal Member, National Consumer Tribunal of South Africa, Brenda Gisela Hernández Ramírez, Acting Chair of COFECE (Mexico), and Ricardo Riesco, Head of Fiscalía Nacional Económica (Chile)

Related Links:

National Consumer Tribunal (South Africa)

Comisión Federal de Competencia Económica/COFECE (Mexico)

Fiscalía Nacional Económica (Chile) 

Hosted by:

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

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

Jury bias is an important issue that should be understood and considered by all trial teams, including for antitrust cases. How and when should antitrust attorneys begin to address issues of bias? Jury experts Christina Ouska and Johanna Hillard of JuryScope join John Roberti and Jaclyn Phillips to explain to us what we mean when we talk about jury bias, when trial teams should start thinking about jury bias, and what attorneys can do about it. Listen to this important episode to start to understand this big topic and learn strategies to deal with bias from the early stages of your case.

With special guests:

Johanna Hillard, President, JuryScope and Christina Ouska, Senior Trial Consultant, JuryScope

Hosted by:

Jaclyn Phillips, White & Case and John Roberti, Cohen & Gresser LLP

Justice Breyer will retire at the end of this SCOTUS term after nearly 28 years on the bench. How did Justice Breyer approach antitrust? Eric Citron, Partner at Goldstein & Russell and former clerk for Justices O'Connor and Kagan, joins Christina Ma and Jaclyn Phillips to talk about Justice Breyer's antitrust jurisprudence and what we might expect when a new Justice joins the Court.

With special guest:

Eric Citron, Partner, Goldstein & Russell

Hosted by:

Christina Ma, Partner, Wachtell, Lipton, Rosen & Katz and Jaclyn Phillips, Associate, White & Case LLP

Europe's General Data Protection Regulation (GDPR) was created to protect the personal data of individuals and to simplify the regulatory environment for data protection in Europe. As a regulatory scheme that has served as a model for other jurisdictions developing their own data protection and data privacy laws, is the GDPR living up to its intended purposes? Adam Penman of McGuireWoods London joins Kayla Odom and Matthew Hall to reflect on the GDPR's impact on organizations and to discuss the trends relating to the rights afforded to individuals by the GDPR. Listen in for a look at the key developments in the data protection and data privacy landscape upon the GDPR’s fourth anniversary.

Related Links:

#33 Can I Just Disappear? The Privacy Right to Be Forgotten.

#89 What’s the Deal with Data Portability? Understanding the Competition and Privacy Aspects Surrounding the Movement of Data.

Hosted by:

Kayla Odom, Freitas & Weinberg LLP and and Matthew Hall, McGuireWoods

For decades the FTC relied on its adjudicatory authority, applying its expertise on a case-by-case basis in administrative litigation, but now, FTC leadership seems to be shifting away from litigation to “legislative-style” rulemaking. What does that mean in practical terms? In this episode, co-hosts Jana Seidl and Alicia Downey speak with Adam White, a senior fellow at the American Enterprise Institute, and co-director of George Mason University’s Gray Center for the Study of the Administrative State, about what FTC rulemaking looks like and what we can expect. Listen to this episode to learn more about how FTC rulemaking started, how it evolved, recent changes to the process, and where the FTC may be headed with rulemaking.

Related Links:

FTC - Statement of Regulatory Priorities (Dec. 10. 2021)

Executive Order on Promoting Competition in the American Economy (July 9, 2021)

FTC - A Brief Overview of the Federal Trade Commission's Investigative, Law Enforcement, and Rulemaking Authority (May 2021)

Hosted by:

Jana Seidl, Baker Botts LLP and Alicia Downey, Downey Law LLC

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

There is a lot going on in the European competition law world and the European Commission recently published a review bringing the strands together. What does the review tell us about likely changes and the direction of policy? Claire Jeffs, competition law partner at Slaughter and May, joins Matthew Hall and Jaclyn Phillips to discuss the various issues covered by the Competition Policy Review and what it means. Listen to this episode to learn more about the direction of EU competition law and policy including how it will work alongside the EU's key policy goals of the green and digital transitions.

Related Links:

European Commission EU Competition Policy Review November 2021 Hosted by:

Matthew Hall, partner, McGuireWoods London LLP, and Jaclyn Phillips, associate, White & Case LLP

It's unusual for a year to go by without the FTC challenging at least one contemplated or consummated hospital merger. What makes this area so ripe for antitrust scrutiny? Monica Noether, an economic expert in this area, joins Christina Ma and Elyse Dorsey to discuss this critical area of agency enforcement. Listen to this episode to hear more about how the agencies consider the costs—and potential benefits—of hospital mergers, and how changes driven by the COVID-19 pandemic, technological developments, and more are impacting this analysis.

Related Links:

Hospital Merger Benefits: Views from Hospital Leaders and Econometric Analysis by Monica Noether, Ph.D. and Sean May, Ph.D.

Hospital Merger Benefits: Views from Hospital Leaders and Econometric Analysis - American Hospital Association

Hosted by: Elyse Dorsey and Christina Ma

Big Tech is in the news as numerous federal and state lawsuits against “the big four” (aka GAFA), Microsoft and TikTok, are pending. But is more regulation needed? Luther Lowe of Yelp speaks with Melissa Maxman and Christina Ma to discuss the benefits of The American Innovation and Choice Online Act, S. 2992. Listen to this episode of Our Curious Amalgam to learn more about this bill and why proponents claim that comprehensive antitrust legislation is needed to restore competition and ensure small business owners have an opportunity to succeed.

Hosted by: Melissa Maxman, Partner, Cohen & Gresser LLP, and Christina Ma, Wachtell, Lipton, Rosen & Katz

There has been a lot of discussion recently about whether large platforms can favor themselves over potential competitors. Some of these discussions surround high-profile pending legislation seeking to rein in the self-preferencing tactics and policies of some of the biggest technology platforms in the world. But is it a good idea to eliminate self-preferencing by large platforms? Adam Kovacevich, founder and CEO of the Chamber of Progress, joins John Roberti and Sarah Zhang to discuss whether it is necessary to address self-preferencing behavior by big tech platforms. Listen to this episode to learn more from an expert who has thought extensively about these issues.

Related Links:

Chamber of Progress

Hosted by:

John Roberti and Sarah Zhang

Competition enforcement authorities all over the world are bringing cases and enforcing new rules against Google, and as different jurisdictions impose widely different penalties and restrictions, it’s debatable whether those remedies have had the desired effects. So what are the best ways to address the perceived abuses of Google's dominance? Co-hosts Melissa Maxman and Alicia Downey get the answers from Megan Gray, the former General Counsel of one of Google’s leading competitors, DuckDuckGo. Listen to this episode to learn more about the challenges that governments face in trying to address the competition and privacy issues raised by Google's dominance among search engines.

Related Links:

UK Competition and Markets Authority, “Online platforms and digital advertising,” Market Study Final Report (July 1, 2020) Commission Decision of 18.7.2018 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (the Treaty) and Article 54 of the EEA Agreement (AT.40099 – Google Android) U.S. et al. v. Google LLC, Amended Complaint (Jan. 15, 2021) State of Colorado et al. v. Google LLC, Revised Partially Redacted Complaint (Jan. 4, 2021)

Hosted by:

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

Facebook is the leading social network in the UK, as elsewhere. But has it unfairly treated its UK users? Dr. Liza Lovdahl Gormsen, competition law academic and practitioner, joins Matthew Hall and John Roberti to discuss her class action claim in the UK which seeks multi-billion pound damages from Facebook/Meta. Listen to this episode to learn more about the history and basis of the claim, what is alleged, how it is funded, and what it is like to be a class representative.

Related Links:

Legal team press release UK Facebook claim website Dr Gormsen profile Facebook Germany decision (Federal Cartel Office)

Hosted by:

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

Antitrust enforcers, academics, and politicians are embroiled in a debate over whether the consumer welfare standard is the right policy for antitrust enforcement in the U.S. What are they fighting about and why does it matter? In this episode, we talk to Fiona Schaeffer and Ilana Kattan, two prominent antitrust practitioners and leaders in the ABA Antitrust Law Section, about what the consumer welfare standard is, and why it is the subject of intense debate in the US and globally. Listen to this episode to learn how the outcome of that debate will have significant ramifications for business conduct, mergers, and the U.S. economy as a whole.

Related Links:

Watch the Antitrust Law Section's "hot tub" debate about the consumer welfare standard! Livestream at 12 noon Eastern Standard Time on February 10, 2022, and on demand at the Section's YouTube channel.

Hosted by:

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

The U.S. economy has seen a consumer price index increase of 7% in 2021, the largest 12-month gain since June 1982. But should antitrust be used as a tool to combat inflation? Josh Wright and Hal Singer, holding opposite views, debate, explain and answer questions from a live audience ranging from costs and benefits to theories and facts. Listen to this episode recorded live in George Mason law school, co-hosted by Anora Wang and Jana Seidl, and learn what key considerations go into this timely discussion.

Related Links:

Noah Phillips & Joshua Wright, As Inflation Rises, Antitrust ‘Reformers’ Target Lower Prices (2021)

Steven Salop & Fiona Scott Morton, The 2010 HMGs Ten Years Later: Where Do We Go From Here? (2020)

Hosted by:

Anora Wang, Arnold & Porter and Jana Seidl, Baker Botts

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

Knowing that few people have the time or resources to initiate arbitration over relatively small damages, many large companies rely on mandatory arbitration provisions and class action waivers in their employment and consumer agreements. But what happens when plaintiffs’ attorneys file individual arbitration cases on behalf of thousands of claimants at the same time? In this episode, co-hosts Alicia Downey and John Roberti speak with Dave Rochelson, author of "Is This the End of Mandatory Arbitration?" about the new wave of so-called “mass arbitrations,” in which the respondent may be required to pay aggregated filing and case administration fees totaling hundreds of thousands, or even millions of dollars. Listen to this episode to discover how mass arbitration is leveling the playing field and calling into question the cost-benefit proposition of class waivers and mandatory arbitration.

Related Links:

David B. Rochelson, "Is This the End of Mandatory Arbitration?", Antitrust (ABA Fall 2021)

Hosted by:

Alicia Downey, Downey Law LLC and John Roberti, 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

Merger control in China will likely be reshaped when the relevant law is amended affecting both the agency and enforcement goals. But what are the most notable changes? Janet Hui, partner at JunHe’s Hong Kong office and leading practitioner based in Beijing, speaks with Anora Wang and Christina Ma on the amendment to China’s Anti-Monopoly Law, restructure of relevant agency and personnel, and new enforcement focused on tech. Listen to this episode to learn what happens behind the scenes of China’s merger control.

Related Links:

2021 - Highlights of Anti-monopoly Guidelines in Field of Active Pharmaceutical Ingredients - Janet Hui

Hosted by:

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

As we reach the end of 2021, Our Curious Amalgam invites listeners to celebrate the new year by reflecting back on our second year of weekly podcasts focused on antitrust, consumer protection, and competition law around the world. Which episodes stood out from the pack? In this special program, five of our regular hosts offer highlights from their favorite episodes of the past year. Hear Christina Ma, Alicia Downey, Matthew Hall, Kayla Odom, Anora Wang, and Melissa Maxman talk about what made these episodes worth listening to for the first or second time.

Related Links:

The Best Episodes of 2021 (in order of appearance)

#119 Is This Game Over? Competition Law Implications of the Super League

#104 Have We Figured It Out? Online Privacy and Security in the “New Normal” of Video Conferencing #128 When Will It Be the End of Global Anti-Suit Injunction Wars? Present & Prospective FRAND Litigation & Arbitration in China #134 What Does It All Mean? Wu, Khan, Kanter and Antitrust Reform #135 Is Equality a Value of Competition Law? A Conversation with Professor Eleanor Fox Hosted by:Christina Ma, Wachtell, Lipton, Rosen & Katz and Alicia Downey, Downey Law LLC

Additional Hosts: Matthew Hall, McGuireWoods London LLP Kayla Odom, Freitas & Weinberg LLP Anora Wang, Davis Wright Tremaine LLP Melissa Maxman, Cohen & Gresser LLP

There is growing interest in regulating how data are used, including in China. But what exactly is China doing to regulate the use of data and how does it compare to other jurisdictions' efforts? Dr. Angela Zhang, Associate Professor at the University of Hong Kong and author of Chinese Antitrust Exceptionalism, joins Anora Wang and Christina Ma to discuss the recent changes to Chinese data regulation. Listen to this episode to learn more about how China is dealing with data privacy and what it means for companies and individuals.

Hosted by:

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

Class certification has become increasingly complex, as courts try to define the class as precisely as possible. But what happens if the methodology that is supposed to define the class yields members who appear to have no injury? Katie Benson, a plaintiff's attorney with significant experience in class certification, joins John Roberti and Melissa Maxman to grapple with the question about what lines to draw around class members that appear to be uninjured. Listen to this episode to learn more about the complexity and subtlety of class certification.

Related Links:

In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619 (Aug. 30, 2019) In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018)

Hosted by:

Melissa Maxman, Cohen & Gresser LLP and John Roberti, Allen & Overy LLP

Many lawyers, young and old, have considered a job as an in-house attorney. What is the allure? Steve Cernak, Partner at Bona Law and previously in-house counsel to General Motors, joins Christina Ma and John Roberti to discuss his career as an in-house attorney and what makes the in-house experience so different. Listen to this episode to learn more about what it's like on the inside.

Related Links:

Ben Heineman, The General Counsel As Lawyer-Stateman

Steven Cernak, Review of Ben Heineman's "The Inside Counsel Revolution"

Hosted by:

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

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

The Federal Trade Commission Bureau of Consumer Protection (BCP) has utilized a variety of tools over the years to advance its goal of stopping unfair, deceptive, and fraudulent business practices. What approaches and policies are we seeing at the FTC under the Biden Administration when it comes to consumer protection? Former BCP Acting Director Daniel Kaufman joins John Roberti and Kayla Odom to discuss the FTC's approach to enforcement and policymaking in the consumer protection space in recent years. Listen in for an inside scoop on the processes of the BPC and what we might expect to see under the Biden Administration.

Related Links:

Federal Trade Commission, Notices of Penalty Offenses Enforcement Policy Statement Regarding Negative Option Marketing, Nov. 4, 2021

Hosted by:

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

The DOJ, FBI, and other enforcement partners have announced DOJ's Procurement Collusion Strike Force to combat antitrust crimes in government procurement at a national level. How does the government detect and investigate these crimes and who are the prosecutors and FBI agents that work these cases? DOJ Strike Force Director Daniel Glad and Supervisory Special Agent Kelvin Ortiz join John Roberti and Wendy Huang Waszmer to discuss the government's effort on a national level to combat collusion, antitrust crimes and related fraudulent schemes. Listen to this episode to learn more about the DOJ's Strike Force and the crimes being investigated and prosecuted

Related Links:

FBI Tips

Procurement Collusion Strike Force Page

FBI's International Public Corruption Page

Dan Glad speech to the ABA’s Section of Public Contract Law about the PCSF: The Procurement Collusion Strike Force: A Whole-of-Government Approach to Combating a Whole-of-Government Problem

A quick summary of the per se violations and red flags: Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are and What to Look For 

The criminal enforcement program’s public page: Criminal Enforcement 

The Antitrust Division’s Leniency Program: Leniency Program

The new compliance policy: Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations 

Criminal Antitrust Anti-Retaliation Act (“CAARA”), 15 U.S.C. § 7a-3, full text: Criminal Antitrust Anti-Retaliation Act (CAARA) | Whistleblower Protection Program

Hosted by:

Wendy Huang Waszmer and John Roberti

Prosecutors investigating misconduct among financial institutions have in the past considered both antitrust and fraud theories in prosecuting claims. But is antitrust law the right tool (or is it a better tool)? Benjamin Sirota joins Jana Seidl and John Roberti to discuss lessons learned from the DOJ's LIBOR and FX prosecutions - the first in terms of close cooperation between fraud and antitrust prosecutors - and predictions for what we may see next. Listen to this episode to learn more about the history of applying antitrust to financial services and how antitrust may fit in future cases involving financial services companies.

Related Links:

https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-michael-murray-delivers-remarks-university-michigan-law

https://www.justice.gov/opa/speech/file/1310506/download

https://www.justice.gov/opa/pr/justice-department-s-antitrust-division-and-securities-and-exchange-commission-sign-historic

https://www.justice.gov/opa/pr/justice-department-joins-computational-antitrust-project-stanford-law-school

Hosted by:

John Roberti, Partner, Allen & Overy LLP and Jana Seidl, Senior Associate, Baker Botts LLP

As millions of consumers around the world interact daily with online businesses and social media platforms, the call for Congress to enact enhanced data privacy and security laws at the federal level has grown louder. How far should federal legislation go in preempting the emerging patchwork of state data privacy laws? In this episode, hosts Alicia Downey and John Roberti talk with Maureen Ohlhausen, former Acting Chairman of the FTC, about whether comprehensive federal data privacy legislation is a better approach to regulating the collection, use, and sharing of consumers’ personal data. Listen to this episode to learn more about the FTC's role in enforcing existing consumer data privacy laws and the key differences among the current proposals for broader federal legislation.

Related Links:

July 28, 2021 Press Release, Senate Committee on Commerce, Science, and Transportation

September 29, 2021, Senate Hearing on Protecting Consumer Privacy, on C-Span

Congress Should Enact a National, Comprehensive Consumer Privacy Framework, Testimony of Maureen K. Ohlhausen, Former Acting Chair of the Federal Trade Commission, before the Senate Committee on Commerce, Science, and Transportation (September 29, 2021)

Maureen K. Ohlhausen, Matthew R. Baker, & Jonathan J. Duzak-Forestier, A Once and Future Federal Privacy Law?, The Antitrust Source (April 2020)

Hosted by:

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

While it may seem that the current foment of change in the antitrust world is unprecedented, this is not the first time that antitrust has undergone a period of profound reexamination and change. What can we learn from previous shifts in antitrust doctrine? Jonathan Baker, law professor at American University and author of The Antitrust Paradigm: Restoring a Competitive Economy, joins Christina Ma and Sergei Zaslavsky to discuss the lessons from the past and what they mean for the current antitrust reform movement. Listen to this podcast for a historical perspective that clarifies the current antitrust debate by placing it in the context of decades-old trends and a political compromise dating back to the 1940s.

Related Links:

The Antitrust Paradigm: Restoring a Competitive Economy

United States v. Microsoft DC Circuit en banc opinion

Hosted by:

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

From crypto enthusiasts to supply chain gurus, it seems everyone is talking about blockchain these days. What makes this technology so potentially impactful, and what does it have to do with antitrust? Thibault Schrepel, author of Blockchain + Antitrust: The Decentralization Formula, joins Sergei Zaslavsky and John Roberti to demystify blockchain, explain the significance of this technology, and discuss why antitrust regulators and practitioners need to take note. Listen to this episode for a clear elucidation of what blockchain is (and even where the name comes from), and how it will impact antitrust enforcement.

Related Links:

Thibault Shrepel, Blockchain + Antitrust: The Decentralization Formula Blockchain Antitrust (open source academic studies on blockchain and antitrust)

Hosted by:

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

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

The Biden Administration has made its picks for antitrust leadership, and they are all members of an intellectual movement to increase antitrust enforcement in big tech and beyond. What broader impacts will these appointments have and what are some of the challenges they will face? Bill Kovacic, Director of the Competition Law Center at George Washington University and the Former Chair of the FTC, joins Christina Ma and Melissa Maxman to discuss how the near decade-long debate about antitrust reform may play out in the new administration. Listen to this episode to learn more about what to expect for antitrust reform and enforcement going forward.

Related Links:

Epic Games, Inc. vs Apple, Inc.

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Melissa Maxman, Cohen & Gresser

The Trump Administration's antitrust enforcers were active in challenging mergers on competition grounds. But what were the key drivers in choosing which matters to challenge? Katie Drummonds and Peter McCormack, authors of a recent article in Antitrust Magazine on the Trump Administration's merger enforcement record, join John Roberti to discuss their retrospective and insights on whether politics, populism or other factors may have played a role in merger enforcement. Listen to this episode to learn more about the evolution of merger enforcement policy in the Trump Administration and beyond.

Related Links:

Andrea Murino, Peter McCormick, Katie Drummonds and Emily Hsu, Populist Instincts: A Trump Administration Antitrust Merger Retrospective, Antitrust Magazine Summer 2021

FTC and DOJ, Annual Hart Scott Rodino Report 2019

2010 Horizontal Merger Guidelines

2017 Merger Remedies Report

2020 Comments on Merger Guidelines

Hosted by:

John Roberti, Allen & Overy LLP

“Right to repair” has been highlighted by the new administration and federal enforcers as a competition and consumer protection issue in the American economy. But what exactly does this term mean for consumers? Gay Gordon-Byrne, Executive Director of the Repair Association, a grassroot organization advocating for repair-friendly policies, speaks to Anora Wang and Christina Ma about her involvement, objectives, and predictions. Listen to this episode to learn about the still evolving “right to repair” issue.

Related Links:

Nixing the Fix: An FTC Report to Congress on Repair Restrictions (May 2021)

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Anora Wang, Davis Wright Tremaine 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 world of college athletics has been embroiled in competition and antitrust disputes for at least the last decade. What's the latest antitrust development? Sathya Gosselin, partner in the Washington, DC office of Hausfeld LLP, joins Christina Ma and Jessica Watters to discuss the recent Supreme Court decision in NCAA v. Alston. Listen to this episode if you want to learn more about the history of competition issues in college athletics and what may be coming down the line.

Related Links:

SCOTUS Blog - NCAA v. Alston Decision Business of College Sports

Hosted by:

Christina Ma and Jessica Watters

Every August the Antitrust Law Section elevates the designated Chair-Elect to the position of Chair. This year, the gavel passes to Jonathan Gleklen, who has been involved in the leadership of the Section for the past twenty years. In this episode, co-hosts Alicia Downey and John Roberti talk about the Section's goals and priorities for the coming year with Jon and Yasmine Harik, who will support Jon in the important role of Counsel to the Chair. Listen to this episode and get to know Jon and Yasmine as they step into their new leadership roles.

Related Links:

Antitrust Law Section

Hosted by:

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

Complex issues are at the intersection of antitrust and intellectual property laws, and licensing of standard essential patents (SEPs) under fair, reasonable, and non-discriminatory (FRAND) terms is a perfect example. Does the widely accepted FRAND framework work well or is it time to think about improvements? Prof. Jorge Contreras, law professor and recognized expert on antitrust and IP, speaks with Anora Wang and Christina Ma on the innovator-implementer dichotomy, remedies, and races to courthouses worldwide. Listen to this episode to learn about the most critical issues about FRAND.

Related Links:

1. Contreras, Jorge L., Rationalizing U.S. Standardization Policy: A Proposal for Institutional Reform (April 19, 2021). Antitrust 35(2): 41-47 (Spring 2021), Available at SSRN

2. Contreras, Jorge L., Global Rate Setting: A Solution for Standard-Essential Patents? (September 23, 2018). 94 Washington Law Review 701 (2019), University of Utah College of Law Research Paper No. 284, Available at SSRN

Hosted by:

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

FRAND issues can be complex and often require an understanding of several laws including antitrust and intellectual property. What would be the most important things to know on a fundamental level? Lisa Kimmel, a leading practitioner and expert on competition and IP, speaks with Anora Wang and Christina Ma on the nuts and bolts of the principles and applications of FRAND in industries, consideration under antitrust laws, and relevant development in the U.S. Listen to this episode to get a primer on FRAND.

Related Links:

Lisa Kimmel, The Patent Market Power Fallacy: Recalibrating Market Power and Standard-Essential Patents, The Licensing Journal, Vol. 41, No. 2. (February 2021),

Hosted by:

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

Many software development companies are distributing software under open-source licenses, which allows broad access. But when faced with opportunistic behavior from cloud providers, can these open-source companies continue to thrive? Open-source licensing expert Heather Meeker joins Tammy Zhu and John Roberti to talk about the recent competitive tension between cloud providers and open-source software providers. Listen to this episode to learn more about how exploitative behavior is impacting open license agreements and the potential ways forward for developers.

Related Links:

The Elastic 2.0 white paper

How to get a free copy of Heather's book, Open Source for Business

A series of videos on open source licensing

October 2020 report on Investigation of Competition in Digital Markets

Hosted by:

Tammy Zhu, Head of Legal, Sourcegraph and John Roberti, Partner, Allen & Overy LLP

A difficult merger control or antitrust case requires good external communications alongside the legal and economic work. But how is this done? Claire Harris, an experienced government relations and strategic communications adviser who has worked in Brussels and London, joins Christina Ma and Matthew Hall to discuss this important aspect of case management. Listen to this episode to learn more about preparing and presenting the public message around an investigation by the European Commission and other regulators.

Related Links:

EU Transparency Register

"Swamp in the heart of Europe": The Economist 15 May 2021

Hosted by:

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

Regulators and academics in the United States and beyond are increasingly focused on the interaction between data privacy and antitrust, both in mergers and challenges to the unilateral conduct of dominant digital firms. Professor Erika Douglas is a leading voice in the vanguard of thinkers considering the ways in which data privacy and antitrust laws interact with each other currently and how they should interact in the future. Join co-hosts Alicia Downey and Christina Ma for an in-depth exploration with Professor Douglas about the tensions and touchpoints between competition and data privacy. Listen to this episode to understand cutting edge issues of concern to global digital businesses and the consumers who engage with them.

Related Links:

Erika M. Douglas, The New Antitrust/Data Privacy Law Interface, 30 Yale L.J. Forum (Jan. 18, 2021)

Hosted by:

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

The Biden Administration has rebooted international cooperation in a range of spheres. Is the antitrust world the same? Meghan Rissmiller, partner at Freshfields in Washington, DC, joins Christina Ma and Matthew Hall to discuss regulatory cooperation in merger control and antitrust cases. Listen to this episode to learn more about current developments in this area, what the future holds and practice points.

Related Links:

EU US high-level trade and technology council and Joint Technology Competition Policy Dialogue

Multilateral Pharmaceutical Merger Task Force

Joint statement by the Competition and Markets Authority, Bundeskartellamt, and Australian Competition and Consumer Commission on merger control

Hosted by:

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

The use of monetary relief-- also called disgorgement-- historically was used by the FTC for deterrence and compensation of consumers. Now that the Supreme Court has ruled that the FTC lacks authority for disgorgement, what will the FTC do?

Lydia Parnes, a partner at Wilson, Sonsini, Goodrich & Rosati and former Director of the Bureau of Consumer Protection at the FTC, joins Elyse Dorsey and John Roberti to discuss the history and future of disgorgement remedies. Listen to this episode to learn more about how the FTC can and should use monetary relief to pursue its mission.

Related Links:

AMG CAPITAL MANAGEMENT, LLC, ET AL. v. FEDERAL TRADE COMMISSION

Lydia Parnes et. al., AMG v. FTC: U.S. Supreme Court Ends Key FTC Consumer Protection Enforcement Practice

Hosted by:

John Roberti, Allen & Overy LLP and Elyse Dorsey, George Mason University

In many past episodes of Our Curious Amalgam we asked our guests what career advice they would give to their younger selves. As hosts Alicia Downey, John Roberti, and Jessica Watters discovered, the answers to that question were educational, brilliant, sometimes unexpected, and always heartfelt. The best of that advice is featured in a single episode highlighting words of wisdom from some of the brightest lights in the field of antitrust and consumer protection. No matter where you are in your career path, listen to the episode for inspiration on how to lay the groundwork for success in any practice setting.

Hosted by:

Alicia Downey, Downey Law LLC, Jessica Watters, Skadden, Arps, Slate, Meagher & Flom LLP, and John Roberti, Allen & Overy LLP

The Super League didn't last long but the post-game analysis continues. What are the competition law issues raised and do they remain relevant? Dwayne Bach, sports and esports law expert, joins Christina Ma and Matthew Hall to discuss the concerns and their wider relevance. Listen to this episode to learn more about the Super League, how competition law may apply to the proposal and its application to other sports.

Related Links:

Super League website

The Super League and its related issues under EU Competition Law, Dwayne Bach (22 April 2021)

Commercial Court of Madrid reference to European Court of Justice (11 May 2021) (in Spanish)

Statement by UEFA, the English Football Association, the Premier League, the Royal Spanish Football Federation (RFEF), LaLiga, the Italian Football Federation (FIGC) and Lega Serie A in relation to the Super League (18 April 2021)

EU General Court judgment in Case T-93/18, International Skating Union v Commission (16 December 2020)

An Introduction To The ELF - Europe's New Professional American Football League, Ansgar Faßbender, Dwayne Bach (19 February 2021)

Hosted by:

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

People often read more from journalists than from lawyers to learn about antitrust. But what roles does journalism itself play in antitrust, in terms of the development and practice of the law? Leah Nylen, seasoned antitrust reporter at POLITICO, speaks with John Roberti and Anora Wang about everything ranging from meeting in parking garages exchanging secret papers, muckraking and informing the public, to how to speak with a journalist. Listen to this episode to learn all about antitrust journalism.

Related Links:

https://www.politico.com/states/staff/leah-nylen

Hosted by:

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

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

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

Accepted norms and standards are increasingly being questioned in the antitrust world as calls for reform grow louder. Why is this groundswell of dissent from traditional doctrine occurring now, and what are the implications for the future of antitrust law? Stanford Law School Professor Doug Melamed joins Sergei Zaslavsky and Christina Ma to put the current debate over antitrust doctrine into context. Listen to this episode for an insightful perspective on populist and technocratic calls for reform, including the potential pitfalls of making drastic changes to antitrust doctrine and potential pathways for achieving change without undermining antitrust's core strengths.

Related Links:

Senator Klobuchar's Legislative Proposal (Competition and Antitrust Law Enforcement Reform Act)

Doug Melamed, Antitrust Law and Its Critics

Hosted by:

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

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

State UDAP laws are powerful tools for private plaintiffs and state Attorneys General to redress marketplace misconduct and abuse of consumers. But with the growing proliferation of lawsuits based on novel theories of what constitutes "unfair" trade practices, is it time to rein them in? In this episode co-hosts Alicia Downey and Christina Ma talk to Matt Sawchak, UDAP scholar, antitrust litigator, and former solicitor general for the state of North Carolina, about the ongoing debate over the scope of and remedies afforded by UDAP legislation. Listen to this episode to learn about the sources of tension between state UDAP statutes and U.S. antitrust law.

Related Links:

North Carolina Opera The Official Tourist Website for Prague

Hosted by:

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

Artificial Intelligence has been an increasingly important element of legal practice, including in antitrust and consumer protection. What is the next step for Artificial Intelligence? Joshua Davis, a professor at the University of San Francisco School of Law, joins Kayla Odom and John Roberti to discuss the potential and limits for the next generation of Artificial Intelligence. Listen to this episode to learn about whether robo lawyers may be appearing before robo judges anytime soon.

Related Links:

Law Without Mind: AI, Ethics, and Jurisprudence

Artificial Wisdom? A Potential Limit on AI in Law (and Elsewhere)

AI and Interdependent Pricing: Combination Without Conspiracy?

Hosted by:

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

Standard Essential Patent (SEP) licensing and valuation is an extremely challenging and difficult area worldwide. What does the January 2021 report of the EU SEPs Expert Group add to the discussion? Aleksandra Kuznicka-Cholewa, a member of the Expert Group, joins Christina Ma and Matthew Hall to discuss the work of the group and the proposals made in its report. Listen to this episode to learn more about the key SEP licensing and valuation issues which are being grappled with in the EU and elsewhere.

Related Links:

Group of Experts on Licensing and Valuation of Standard Essential Patents: Contribution to the Debate on SEPs

UK Supreme Court judgment Unwired Planet

Referral to European Court of Justice Nokia/Daimler

Hosted by:

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

Often the private antitrust and consumer protection bar is slightly more defense-oriented. But what is it like to be a leading plaintiff's lawyer in consumer class actions? Daniel Karon, class action attorney with 30+ years of experience, speaks with John Roberti and Anora Wang on the possible changes of legislation and policy affecting class actions, federal and state enforcement, and the plaintiff-side practice in general. Listen to this episode to learn about the perspectives of a plaintiff’s lawyer.

Related Links:

Daniel Karon, What The Biden Presidency Means For Class Actions, Law360 (Feb. 11, 2021)

Hosted by:

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

Many industries routinely use data collected from multiple competing companies to develop price, cost and performance benchmarks. But when do benchmarking activities raise antitrust concerns? Co-hosts Alicia Downey and Christina Ma ask John Delacourt, general counsel to an international trade association and co-chair of the Antitrust Law Section's Trade, Sports and Professional Associations Committee, about managing the risks of collective participation in benchmarking programs in an era of heightened antitrust scrutiny and enforcement. Listen to this episode to learn about the right way and the wrong way to collect and use competitors' data.

Related Links:

DOJ/FTC Statements of Antitrust Enforcement Policy in Health Care (1996)

DOJ/FTC Antitrust Guidance for Human Resource Professionals (2016)

Hosted by:

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

There has been growing interest in labor antitrust enforcement, particularly with the DOJ bringing its first criminal no-poach and wage-fixing cases in late 2020 and early 2021. How do we make sense of this vitally important but relatively unsettled area of law? Megan Gerking, a partner at Morrison & Foerster, joins Christina Ma and Sergei Zaslavsky to provide context around the recent enforcement actions and practical guidance on labor antitrust issues. Listen to this episode to learn about where we are, how we got here, and where we are likely to go in no-poach and wage-fixing enforcement.

Related Links:

DOJ and FTC 2016 Antitrust Guidance for HR Professionals

United States v. Jindal indictment

United States v. Surgical Care Affiliates, LLC indictment

Hosted by:

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

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

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

Measured in absolute numbers, there have been more women attorneys and economists working in the field of antitrust, as compared to one or two decades ago. But is there greater diversity and inclusion as well, especially in leadership roles? Dr. Antara Dutta, Principal Economist at Amazon, Co-Chair of the ABA Antitrust Section’s Diversity.Advanced Initiative, speaks with Anora Wang and John Roberti on how to increase opportunities for women in economic expert roles. Listen to this episode to learn about progress and roadblocks in achieving greater diversity and inclusion for attorneys and economists alike.

Related Links:

Diversity.Advanced Initiative

Hosted by:

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

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

The ABA Antitrust Law Section issues a Presidential Transition Report each time a new administration enters the White House. What agenda does the latest Report recommend for the incoming leaders of the antitrust agencies? Transition Report Task Force leaders Rich Parker and Bill MacLeod discuss the highlights from the Report and share their insights with Sergei Zaslavsky and Christina Ma. Listen to this episode to learn about the most important questions facing the antitrust enforcers in the Biden administration, including the future of the consumer welfare standard, merger policy for acquisitions of nascent competitors, and more.

Related Links:

The Presidential Transition Report

Hosted by:

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

Serving as the Chair of the ABA Antitrust Law Section is the culmination of years of hard work and dedicated service to the organization and its members. What has it been like to lead an international association of antitrust and consumer protection lawyers, regulators, economists, and academics during a global pandemic? As the Section gears up for its Virtual Spring Meeting online March 23-26, 2021, Section Chair Gary Zanfagna sat down at the midpoint of his one-year term to talk to co-hosts Alicia Downey and John Roberti about the state of the Section. Listen to this episode to hear Gary's perspectives on the future of antitrust and the Section's role in shaping that future.

Related Links:

Gary Zanfagna

Annual Spring Meeting

Hosted by:

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

Merger clearance encompasses a major portion of the practice of competition law. What are the coming trends for 2021? Ilene Gotts, one of the deans of the competition bar, joins Christina Ma and John Roberti to discuss the major issues she sees for competition law related to mergers for 2021. Listen to this episode to learn more about the key issues, trends and predictions for antitrust M&A in the next year.

Hosted by:

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

The UK has finally left the EU and the ambit of EU law. What does this mean for competition law, merger control, subsidy control and competition litigation in the EU and UK? Anneli Howard, a UK barrister and EU law specialist, joins Matthew Hall and John Roberti to discuss the EU-UK Trade and Cooperation Agreement, WTO subsidy rules, Northern Ireland Protocol and the rest of the new legal regime. Listen to this episode to learn more about the present and future for these areas of law in the UK.

Related Links:

EU-UK Trade and Cooperation Agreement

Guidance on the functions of the UK CMA after the end of the transition period

Withdrawal of the United Kingdom and EU rules in the field of competition

Protocol on Ireland and Northern Ireland

WTO subsidy rules

UK National Security and Investment Bill

Hosted by:

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

Thanks to COVID-19, many courts and government agencies are using computer-based videoconferencing technology to conduct conferences, motion hearings, and even trials online. What are the do’s and don’ts for litigating effectively in virtual proceedings, especially in complex antitrust cases involving multiple parties and far-flung witnesses? Lisa Wood, and antitrust practitioner, Co-Chair of the Litigation Department of Foley Hoag LLP, and author of the long-running Notes from the Field column featured in Antitrust Magazine, joins Alicia Downey and John Roberti to discuss what she learned about best practice for virtual litigation from interviews with lawyers and judges across the country as well as the lessons she has learned from her own practice. Listen to this episode to hear about which virtual litigation proceedings are poised to become a permanent feature of complex civil suits and proceedings before the agencies.

Related Links:

Lisa Wood, Best Practices for Virtual Litigation, Antitrust, Vol. 35, No. 1 (Fall 2020)

Hosted by:

Alicia Downey and John Roberti

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

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

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

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

This past year has been anything but a slowdown in antitrust enforcement around the world and has also put privacy and consumer protection issues in the limelight. What do you need to know? In Part Two of this three-part series, members of the International, Privacy and Information Security, and Consumer Protection committees discuss what they believe to be the key happenings and issues in 2020 and what to expect in 2021. Regular Our Curious Amalgam hosts Sergei Zaslavsky, John Roberti, Christina Ma, Matthew Hall, and Kayla Odom join to provide further context. Listen to this episode for a summary of the key international, privacy, and consumer protection themes of 2020.

Related Links:

#90 How Do We Respond to the Dilemma? Developing a Data Portability Solution

#89 What’s the Deal with Data Portability? Understanding the Competition and Privacy Aspects Surrounding the Movement of Data.

#86 Can They Really Do That? The Use of Advanced Analytics by Antitrust and Consumer Regulators

Hosted by:

Sergei Zaslavsky, John Roberti, Christina Ma, Matthew Hall, and Kayla Odom

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 One of a three-part series, Mergers & Acquisitions, Economics, and Insurance and Financial Services 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, Tammy Zhu, Alicia Downey, and Anora Wang join to provide commentary and make sense of the year that was. Listen to this episode for a summary of the key antitrust themes of 2020, with a particular emphasis on merger control issues.

Related Links:

Vertical Merger Guidelines

Visa-Plaid Complaint

Hosted by:

Sergei Zaslavsky, John Roberti, Christina Ma, Tammy Zhu, Alicia Downey and Anora Wang

Brazilian competition law and enforcement regime is among the most active ones around the world, with a well-recognized cartel program and efforts to advocate and develop its law. How does the Brazilian system work and what are the most important elements in Brazil's competition enforcement? The Honorable Commissioner Luiz Hoffmann of Brazil's Administrative Council for Economic Defense (CADE) speaks with John Roberti and Anora Wang on the structure and progress of Brazil’s competition enforcement agency. Listen to this episode to learn about one of the most exciting competition jurisdictions.

Related Links:

Commissioner Luiz Hoffmann, "Hipster Antitrust and the Brazilian Legal System" (in English, published by IBRAC)

Commissioner Luiz Hoffmann, contributions to the OECD 2020 Global Forum on Competition regarding abuse of dominance in digital markets (in English)

Hosted by:

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

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

The ongoing debate of data portability has produced many unanswered questions, resulting in a need for a more structured analysis of the issues surrounding of the movement of data. How can governments, or various sectors, industries, or companies develop solutions for data portability that encompass the often-competing goals of promoting competition and protecting privacy rights? Internationally-recognized privacy and cybersecurity expert Peter Swire joins Christina Ma and Kayla Odom to discuss his proposed framework for analyzing the issues surrounding the portability of data and evaluating initiatives on portability and other required data transfers. Listen to this episode to learn how, through the use of structured questions, the impact of data portability can be assessed.

Related Links:

Swire, Peter, The Portability and Other Required Transfers Impact Assessment: Assessing Competition, Privacy, Cybersecurity, and Other Considerations (September 8, 2020).

Hosted by:

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

With the enactment of stronger privacy laws in Europe and California, and with the prominent use of digital platforms and intense policy debates surrounding their regulation, issues regarding what has been termed "data portability" have been brought to the forefront. What is data portability, and how is it being addressed in the law? Alex Brown and Gabe Maldoff join Christina Ma and Kayla Odom to discuss what it means for data to be "portable" and the various issues that arise when it comes to the transferability of a person's data. Listen to this episode to understand the competition, consumer protection, and cybersecurity issues that are being debated by policymakers, companies, and others when it comes to data portability.

Related Links:

Data To Go: An FTC Workshop on Data Portability (September 22, 2020)

Comment Submitted by The American Bar Association Antitrust Law Section In Connection With “Data To Go: An FTC Workshop On Data Portability” (August 27, 2020)

EU General Data Protection Regulation – Right to data portability, Article 20

California Consumer Privacy Act – Data portability requirements, Cal Civ. Code. § 1798.100(d)

Hosted by:

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

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 Women.Connected Committee of the ABA Antitrust Law Section recently inducted four prominent women in the field of antitrust into its Hall of Fame-inism. How did they overcome career challenges and gender bias to make it to the top of their field? Co-hosts Christina Ma and Alicia Downey interview Margaret Guerin-Calvert, Deborah Majoras, Lisa Phelan, and Bonny Sweeney about how they achieved (and continue to achieve) professional success and what more can be done to advance women within the antitrust bar. Listen to this episode to learn how each of these role models forged her own path to a fulfilling career in antitrust.

LINKS TO THE HONOREES’ BIOS Margaret E. Guerin-Calvert

Deborah P. Majoras

Lisa Phelan

Bonny E. Sweeney

Hosted by:

Christina Ma and Alicia Downey

Data and technology issues are behind many antitrust/competition and consumer law cases. How are regulators responding to this and what are their capabilities? Stefan Hunt, Chief Data and Technology Insights Officer at the UK Competition and Markets Authority (CMA), joins Christina Ma and Matthew Hall to discuss the activities of the CMA's Data, Technology and Analytics unit (DaTA). Listen to this episode to learn more about the work going on inside antitrust and consumer regulators as they use technology and data to their advantage.

Related Links:

Blog 1: UK CMA DaTA unit

Blog 2: UK CMA DaTA unit

UK CMA Online platforms and digital advertising market study UK CMA Fake and misleading online reviews trading

Hosted by:

Christina Ma and Matthew Hall

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

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

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

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

The 54 African countries are becoming increasingly important from a competition law point of view. But can we assume the rules are the same as elsewhere? George Lipimile of COMESA and Jocelyn Katz of ENSafrica join John Roberti and Matthew Hall to discuss key issues in African competition law. Listen to this episode to learn about some of the features that make the law on the African continent unique.

Related Links:

COMESA Competition Commission

South Africa: Babelegi excessive pricing case

South Africa: Dis-Chem excessive pricing case

South Africa: ENS newsflash on competition exemptions for banking and retail property sectors to support the Coronavirus fallout

South Africa: ENS newsflash on the Coronavirus (COVID-19) and the Competition Act

Namibian Competition Commission: update on Consumer Exploitation Complaints (May 2020)

Malawi CFTC: Excessive Pricing Of Bus Services Due To Covid 19 And Enforcement Of Bus Fare Tables (June 2020)

South Africa: Competition Commission’s Guidelines for the Assessment of Public Interest Provisions in Mergers

Kenya: Telkom-Airtel merger review decision

Nigeria: FCCP Act

Namibia: Draft Competition Bill

eSwatini: Draft Competition Bill

Malawi CFTC: Suspected Collusive Practices And Unconscionable Conduct By Independent Schools (May 2020)

South Africa: Competition Tribunal Confirms 14th Settlement In Maize Cartel Case

Mauritius: Fines of Rs 76 million recommended, on two suppliers of chemical fertilisers for illegal cartel conducts

International: ICN Guidance on Enhancing Cross-Border Leniency Cooperation

Nigeria: Businesses tighten as Commission plans to embark on raids

Hosted by:

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

Our Curious Amalgam is having a party and you're invited! In this special one-year anniversary episode, host Alicia Downey speaks with guests Brian Henry, immediate past chair of the ABA Antitrust Law Section, and John Roberti, the regular co-host of OCA, about how they created a podcast from scratch, including the origin story of our curious name. Listen to this episode to hear about our curious co-hosts' favorite episodes over the past year.

Hosted by:

Alicia Downey, Downey Law LLC

There has been substantial discussion of enhanced antitrust enforcement by what has been referred to as the “new” Brandeis School of Antitrust; but that implies that there was an original Brandeis School of Antitrust. What can we learn from this original school? Storied antitrust enforcer, academic and practitioner Tim Muris joins John Roberti and Christina Ma for a discussion of the last great effort to enhance antitrust enforcement and how it developed. Listen to this episode to learn more about the past and whether it may repeat itself.

Related Links: Timothy J. Muris and J. Howard Beales III, FTC Consumer Protection at 100: 1970s Redux or Protecting Markets To Protect Consumers, 83 George Washington Law Review 2157 

Timothy J. Muris and Jonathan E. Nuechterlein, Chicago and Its Discontents (with) (Forthcoming University of Chicago Law Review)

Timothy J. Muris , Will the FTC’s Success Continue?

Timothy J. Muris and Jonathan E. Nuechterlein, Antitrust in the Internet Era: The Legacy of United States v. A&P, 54 Rev. of Industrial Org. 651 (2019)

Hosted by:

Christina C. Ma, Wachtell, Lipton, Rosen & Katz and John Roberti, Allen & Overy LLP

Agriculture sits at the center of the U.S. economy and has witnessed increased consolidation in the last several decades. How can antitrust law and merger policy protect competition in agriculture, from fair terms for seed purchasers to ensuring ample processors? Mark Tobey, former special counsel for agriculture at the U.S. Department of Justice, joins Tammy Zhu and John Roberti to discuss the past, present, and future of competition concerns in agriculture. Listen to this episode to learn how to analyze an agricultural merger and issues to spot when negotiating an agtech partnership.

Related Links: https://www.justice.gov/sites/default/files/atr/legacy/2012/05/16/283291.pdf

Hosted by:

Tammy Zhu, Legal Counsel, Medallia, Inc. and John Roberti, Partner, Allen & Overy LLP

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

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

Battles in the pharmaceutical antitrust world have been increasingly heated, and to a great extent rightly so, as people have devoted more attention to this space in the past decades. But as measured against the U.S. antitrust laws, what has changed or will change in the scrutiny of pharmaceutical companies’ conduct? Eric Grannon, a leading defense practitioner, joins Anora Wang and John Roberti to discuss three main areas—reverse payment, product hopping, and class certification—that get the most heat. Listen to this episode to learn what is about to come in the U.S. pharmaceutical antitrust wars.

Related Links:

Watson Pharmaceuticals, Inc., et al. (FTC v. Actavis)

Hosted by:

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

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

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

The Federal antitrust laws reach the entire United States. But what is the state of antitrust law outside of the largest metropolitan areas? Longtime ABA Antitrust Law Section members Marguerite Willis and Travis Wheeler of Nexsen Pruet in South Carolina join John Roberti and Kayla Odom to discuss what it's like to build an antitrust law practice in a smaller antitrust community and how antitrust law in the South has changed over the last decades. Listen in for perspectives from these pioneering practitioners and for tips all practitioners can use in their antitrust law practice.

Hosted by:

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

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)

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