client_admin

Law 360 covered AAI’s hiring of Laura Alexander as Vice President of Policy in the January 29 article “New AAI Policy Exec Joins Amid Critical Moment For Antitrust.” The article follows.

The American Antitrust Institute is starting 2020 with a new vice president of policy, a Cohen Milstein Sellers & Toll PLLC alum who wants to leverage the organization heft in the areas of education, advocacy and research as competition policy becomes a central tenet for this year’s presidential campaigns.

Laura Alexander started Jan. 6 at AAI, which bills itself as an advocate for rigorous antitrust enforcement and has for years been an important player in competition cases and legislation. Alexander said she wants to continue that advocacy, with an eye toward extending the group’s role as a resource for antitrust litigants and enforcers.

“There is a real need for reliable, thorough, thoughtful analysis on the practical issues that antitrust litigants are grappling with on a regular basis,” Alexander said, citing topics such as burdens of proof and evidentiary standards. “These areas are where much of the de facto evolution in antitrust enforcement takes place, and are critically important to effective competition policy.”

“I would like to see AAI do more work in these areas, in the form of research, statistics gathering, education and advocating for revision of procedural or evidentiary rules where needed,” she added.

The organization’s voice, including through amicus participation, has already played a central role in important antitrust disputes, including last year when AAI President Diana Moss testified in a first-of-its-kind evidentiary hearing over a U.S. Department of Justice deal clearing CVS’ purchase of Aetna. Several outside groups tried — and ultimately failed — to convince a D.C. federal judge to reject that deal, Moss was put on the stand in an effort to present a broad argument that the merger as allowed would harm competition.

The CVS-Aetna case wasn’t the only time AAI has found itself at odds with Trump administration antitrust enforcers.

The group has been deeply critical of the DOJ deal permitting T-Mobile to buy Sprint, as well asthe department’s arguments that so-called no-poach arrangements found in franchise agreements should not be treated as automatically illegal but should instead be considered under the harder-to-prove rule of reason standard, which allows parties to try and justify allegedly anti-competitive conduct.

Alexander acknowledged in an interview with Law360 that AAI has its disagreements with the DOJ and its fellow antitrust enforcers at the Federal Trade Commission. Specifically, she argued that the agencies should scrutinize mergers with a more skeptical eye, thinking about them in a more creative way beyond limiting reviews to “classic” concerns like a merger’s effect on prices in a given market.

“There is always room for more thoughtful research-based, law-based, economics-based, history-based approaches to really effective antitrust policy,” she said, asserting that many administrations have had room to make such improvements.

Despite the tension, Alexander said, AAI works hard to maintain a good relationship with the DOJ and the FTC.

“We’ve always sought to cultivate those relationships and be a resource, but at the same time not hesitated to speak up loudly when we disagree with the direction that the agencies are taking,” Alexander said.

AAI also has important relationships with private antitrust enforcers and state attorneys general, who’ve taken on an increasingly prominent role in competition law. Recently, attorneys general have sometimes gone their separate ways from the DOJ, including by launching their own separate investigations, sometimes even finding themselves directly at odds with the agency.

Washington State’s attorney general, for instance, criticized the DOJ’s no-poach comments. And more than a dozen state enforcers, all Democrats, are currently waiting on a decision in their lawsuit challenging the T-Mobile and Sprint merger, arguing that the DOJ merger clearance settlement permitting that tie-up does not adequately safeguard competition. If the states win, it would be a powerful blow to federal efforts to dominate merger policy.

As for AAI, Alexander said that continuing to build its relationships with enforcers at all levels will be a priority for the group in the months and years ahead.

Alexander said her own experience points to the value of partnerships between enforcers, including between private litigants and state attorneys general.

Alexander was on the Cohen Milstein team that represented the United Food and Commercial Workers benefit trust in an antitrust case against Northern California hospital giant Sutter Health. That deal ended with a December 2019 settlement between Sutter, California’s attorney general and private plaintiffs valued at $575 million.

“I feel very good about the results we were able to achieve for consumers, for members of those classes, and, in the most recent Sutter case, the people of the state of California,” Alexander said.

However, Alexander said that private litigation, while “critically important” to antitrust policy, “is necessarily limited in the scope of what it can do.” So after being approached by a member of AAI’s advisory board, she turned to a more policy-oriented approach to competition policy at the organization, participating “at a broader level in antitrust.”

Alexander first developed an interest in competition law as a paralegal in Latham & Watkins LLP’sintellectual property group.

While at Latham, Alexander worked on the firm’s successful defense of the DOJ lawsuit challenging Oracle’s purchase of PeopleSoft in 2004. The experience was “an incredible introduction to antitrust” at what was then a “tremendous focal point” for policy development, Alexander said. She also got to work with leading antitrust lawyers.

“I got the antitrust bug then and I haven’t gotten rid of it since,” said Alexander, who earned her law degree from the Georgetown University Law Center in 2007.

A mathematics major as an undergrad at Reed College, Alexander said she’s drawn to the analytical approach of economics — an important part of antitrust. She said she has also gained a fondness for the deep dives into new industries required for the practice.

“Six years ago I didn’t know very much about the hospital industry. Now I feel like I could write a textbook on it,” she said. “I also love that antitrust is so dynamic. The statutes that it’s based on are very spare. And so it’s allowed to constantly evolve as our understanding evolves.”

The law, like AAI, must “constantly adapt” with that evolution, Alexander said. Through AAI’s research and analysis, Alexander said, the group is able to take a leading role in conversations about how antitrust law must evolve. The presidential election in particular allows a crucial moment to shape antitrust policy, she said.

Antitrust generally has taken up an important spot in public discourse, Alexander said. A belief in its prominence is shared across the bar and beyond, as policymakers and experts weigh arguments for slow progression of antitrust law against calls for a radical transformation, sometimes referred to as the “hipster antitrust” movement.

AAI’s role in those conversations, Alexander said, is to ensure that new voices less familiar with antitrust are well-versed in law, economics and policy history.

“With the work that AAI does, we can inform, educate and improve the quality of those conversations and the quality of the results,” she said.

Prioritizing where to expend time and energy will be a particular challenge for AAI in the year ahead, according to Alexander.

“There are so many critical moving factors in antitrust right now that to choose among them, to choose the cases that merit amicus participation, to choose the policy proposals that are most relevant and merit the most discussion and to do all that in a really complex and dynamic environment I think is a challenge,” she said.

And Alexander knows how to meet challenges.

She’s a nationally ranked short-track speedskater with the Potomac Speedskating Club. Alexander said competing with the club is a humbling experience, as she skates alongside young athletes she called “some of the most hardworking, dedicated, impressive individuals I’ve ever had the pleasure to know.”

But the sport also requires striking a balance with the busy work of being a lawyer. Alexander said she tries to carve out two days a week for training, and find a rink wherever she goes.

“I can tell you where all the rinks are in Kansas City,” Alexander said.

In Bloomberg’s January 10 article “Experts question Amazon’s warning about Honey, PayPal’s e-commerce shopping tool,” AAI President Diana Moss discusses how dominant firms can attempt to protect market position with deceptive practices.

From the article:

If PayPal thinks Amazon’s warning is unwarranted, it can accuse Amazon of deceptive practices, requiring Amazon to explain why it did so.

“As markets become more concentrated and firms grow larger, we are seeing more attempts to protect market positions and eliminate rivals through deceptive practices,” said Diana Moss, president of the American Antitrust Institute.

Just before Christmas, banners started popping up on Amazon that told shoppers to be cautious when using Honey, calling it “a security risk” and “to keep your data private and secure, uninstall this extension immediately.”