AAI will host its 23rd Annual Policy Conference on June 15: Bringing and Litigating Antitrust Cases in an Era of Change on June 15, 2022 at the National Press Club in Washington D.C. The Policy Conference will highlight how antitrust enforcers can work within the legal system to identify goals and challenges in implementing more vigorous enforcement, against the backdrop of initiatives to expand the breadth and depth of antitrust law. These include the Biden antitrust leaderships’ moves to revise agency policy and guidance and proposed antitrust reform legislation in Congress and state legislatures. The goal of the Policy Conference is to provide public and private enforcers with strategies and tactics for bringing and litigating antitrust cases to advance progressive enforcement. Panel discussions will take up questions around litigating cases that incorporate non-competition goals, strategies for mitigating bad legal precedent, and issues that arise in using antitrust as part of a broader set of policy tools.
Panel 1: Antitrust and Non-Competition Goals: Practical Considerations for Litigants
This panel will discuss how non-competition values that are not currently embedded in existing antitrust standards can enter the antitrust litigation calculus. Such values include increasing privacy, improving environmental sustainability, and reducing inequality. Panelists will discuss several fundamental questions. When and how might non-competition values arise in the antitrust litigation calculus, whether as part of case selection, competitive effects analysis, efficiencies defenses, or otherwise? What measurement challenges do non-competition values pose in court, whether quantitative, qualitative, or temporal? How should enforcers think about trading off harms and benefits across different markets, different dimensions of competition, or different competition and non-competition values? And how should antitrust enforcers respond when otherwise anticompetitive conduct is necessary to achieve public social or political goals?
Panel 2: Advancing Progressive Antitrust Law in the Courts: Strategies and Tactics for Enforcers
Competition advocates have long struggled with the lasting effects of bad antitrust precedent. This panel will evaluate prominent examples of regressive legal precedent and strategies and tactics to mitigate its harmful effects. Panelists will take up several questions. What can direct evidence of anticompetitive effects still say about market-definition after the Supreme Court’s 2018 Ohio v. American Express decision? How can enforcers minimize the reach of problematic judicial approaches to defining both sides of a two-sided market as a single market? How can enforcers respond to rising standards for proving the element of agreement in Section 1 cases, where some courts have all but insisted on smoking-gun evidence of collusion? Finally, how can enforcers achieve effective antitrust remedies after courts have narrowly interpreted the agencies’ authority to obtain equitable relief, raised hurdles to private plaintiffs’ access to aggregate relief via class actions, and in light of a growing record of failed merger remedies?
Panel 3: Antitrust as a Tool in a Bigger Toolkit: The Public Policy Approach to Protecting Competition
We are seeing arguments from all sides that more than antitrust, or something instead of antitrust, is needed to facilitate competition. This panel will take up major issues relating to the use of antitrust enforcement as a policy tool in a larger toolkit for addressing competition concerns. For example, if a law were to grant antitrust agencies authority to police discriminatory conduct on a digital platform, how might a hypothetical antitrust case unfold under such a law? How can antitrust operate most effectively in sectors with regulatory statues, such as the Packers and Stockyards Act, that can complement antitrust enforcement but that are not themselves effectively enforced? What policy tools are available to address workforce reductions that result from mergers, but that antitrust does not flag as threatening anticompetitive labor-market effects? And how will antitrust complement potential privacy law in cases where adverse quality effects are revealed in the misuse of consumer data?
The Policy Conference will appeal to a wide cross section of the competition community from the United States and abroad, including public and private enforcers, legislators and policymakers, sector regulators, public interest advocates, and academics. The conference will include a gala luncheon featuring the presentation of the 2022 AAI Antitrust Achievement Award and the presentation of the Jerry S. Cohen Award for Antitrust Scholarship.
This conference was approved by the Pennsylvania Continuing Legal Education Board for 4.5 CLE credit hours.
This program is made possible by support from our 2022 Sponsors.