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AAI Year In Review 2017

Throughout 2017, AAI carried out extensive research, education, and advocacy initiatives. AAI’s work has meaningful and demonstrated impact by facilitating pro-competitive and pro-consumer outcomes in the enforcement and policy arenas. We look forward to serving the public in 2018 as we extend important existing programs and take on new issues.

Amicus brief in Impression Products, Inc. v. Lexmark International, Inc. (January 2017)

Amicus brief in Siegel v. Delta Airlines, Inc. (February 2017)

Healthcare Roundtable: Competition and Healthcare – Enforcement and Policy Priorities (February 2017)

International Antitrust Roundtable: Critical Issues in Global Antitrust – Comity, Intellectual Property, and Due Process (February 2017)

Amicus brief in U.S. v. Anthem, Inc. and Cigna Corp. (March 2017)

Spring Class Action Issues Update (March 2017)

Commentary: Antitrust and Inequality: What Antitrust Can and Should Do to Protect Workers (April 2017)

Speaker at International Competition Network Annual Conference, “Advocacy Strategy in Traditional and New Markets: Which Differences?” (May 2017)

Amicus brief in FTC v. Qualcomm, Inc. (May 2017)

Testimony before House Judiciary Committee, Subcommittee on Regulatory Reform, Commercial and Antitrust Law hearing, “Recent Trends in International Enforcement” (June 2017)

18th Annual Conference: The Value of Antitrust (June 2017)

Invitational Symposium: Antitrust Remedies – A Multidisciplinary Approach (June 2017)

Amicus brief in Oracle v. Google (June 2017)

Letters to the U.S. Department of Justice Antitrust Division re competitive issues raised by the proposed merger of Monsanto and Bayer (July 2017 and October 2017)

Commentary: What’s the Story Behind Antitrust Reform? Unpacking the “Better Deal” August 2017

Amicus brief in Avery Insurance Group, Inc. v. Delta Airlines, Inc. (September 2017)

Amicus brief In re Wellbutrin XL Antitrust Litigation (September 2017)

Remarks before House Judiciary Committee Democrats and Congressional Progressive Caucus briefing, “Competition and Corporate Power: The Impact of Economic Concentration on Jobs, Inequality, and the Financial Security of Working Families” October 2017

Amicus brief in Valspar Corp. v. DuPont & Co. (October 2017)

11th Annual Private Antitrust Enforcement Conference (November 2017)

5th Annual Antitrust Enforcement Awards (November 2017)

White Paper: State Occupational Licensing Reform and the Federal Antitrust Laws (November 2017)

Comments to the Office of the U.S. Trade Representative opposing the imposition of “safeguard restrictions” in the solar industry under Section 201 of the Trade Act (November 2017)

Commentary: AAI Applauds Move to Block AT&T-Time Warner Merger, Sets Record Straight on Vertical Merger Enforcement by Diana Moss (December 2017)

AAI 2017 Airline Roundtable: Broadening the Lens on Airline Competition (December 2017)

Fall Class Action Issues Update (November 2017)

Comments to the Office of the U.S. Trade Representative opposing the imposition of “safeguard restrictions” on large residential washers under Section 201 of the Trade Act (December 2017)

Amicus Brief in Ohio v. American Express (December 2017)

Testimony before Senate Judiciary Committee, Subcommittee on Antitrust, Competition and Consumer Rights, “The Consumer Welfare Standard in Antitrust” (December 2017)

Commentary: Repeal of Network Neutrality Eliminates Important Antitrust-Regulation Partnership, Deprives Competition and Consumers of Needed Safeguards (December 2017)

Presidential Transition Report on Competition Policy chapters on “Cartels,” “Mergers,” “Monopolization and Exclusion,” “Patents,” “Entrepreneurship and Innovation,” and “Banking and Financial Services” 

 

 

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Vertical Merger Enforcement — Selected Resources

AAI offers a selection of useful resources on vertical merger enforcement that are helpful in evaluating proposed combinations and past enforcement. Items will be added over time.

AAI Applauds Move to Block AT&T-Time Warner Merger, Sets Record Straight on Vertical Merger Enforcement by Diana Moss (December 6, 2017)

DOJ’s Lawsuit to Halt AT&T-Time Warner Deal is the Right Thing to Do by Warren Grimes and Chris Sagers (this commentary appeared in the LA Daily Journal)

Blocking the AT&T-Time Warner Merger is Good Antitrust Economics and Law by Steven Salop (November 21, 2017)

Vertical Merger Enforcement Actions: 1994–2016 by Steven C. Salop and Daniel P. Culley (June 30, 2017)

Revising the U.S. Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners by Steven C. Salop and Daniel P Culley (November 3, 2015)

Invigorating Vertical Merger Enforcement by Steven C. Salop (November 6, 2017)

Modifying Merger Consent Decrees to Improve Merger Enforcement Policy by Steven C. Salop, Antitrust, Vol. 31, No. 1 (Fall 2016)

Mergers that Increase Bargaining Leverage by Aviv Nevo, DOJ’s Deputy Assistant Attorney General For Economics Antitrust Division (January 22, 2014)

Behavioral Merger Remedies: Evaluation and Implications for Antitrust Enforcement by Diana Moss and John Kwoka (2011)

DirecTV’s Comments on Comcast-NBC merger (June 21, 2010)

Comcast/NBCU: The FCC Provides a Roadmap for Vertical Merger Analysis by Jonathan B. Baker, Antitrust, Vol. 25, No. 2 (Spring 2011)

Public Knowledge’s and Consumer Federation of America’s Testimony Before the U.S. Senate AT&T-Time Warner Transaction (December 7, 2016)

Effects of the AT&T-Time Warner Transaction on Competition in the Premium Channels Industry, White Paper for the U.S. Department of Justice by Jeffrey A. Eisenach and Timothy Watts (July 2017)

The Interesting Case of the Vertical Merger, Remarks by Jon Sallet, DOJ Deputy Assistant Attorney General For Litigation Antitrust Division (November 17, 2016)

Vertical Mergers and Market Foreclosure by William S. Comanor and Patrick Rey, Antitrust Law and Economics, Research in Law and Economics, Volume 21 (2004)

Non-Horizontal Merger Guidelines, Originally Issued as Part of U.S. Department of Justice Merger Guidelines (June 14, 1984)

 

 

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AAI Presents 2017 Antitrust Enforcement Awards

The American Antitrust Institute (AAI) presented the AAI 2017 Antitrust Enforcement Awards on November 7, 2017. The Honorees were featured at a gala awards dinner following the AAI’s Annual Private Antitrust Enforcement Conference.

Outstanding Antitrust Litigation Achievement in Private Law Practice

Berger & Montague, P.C.
Garwin Gerstein & Fisher LLP
Odom & Des Roches, LLC
Heim, Payne & Chorush LLP
Smith Segura & Raphael LLP
Cohn Lifland Pearlman Herrmann & Knopf LLP
Hilliard & Shadowen LLP
Hangley Aronchick Segal Pudlin & Schiller
Kenny Nachwalter, P.A.
In re K-Dur Antitrust Litigation

Eric L. Cramer – Berger & Montague, P.C.
Adriana M. Castro, et al. v. Sanofi Pasteur Inc.

Kellogg, Hansen, Todd, Figel & Frederick PLLC
Susman Godfrey LLP
Kramer Levin Naftalis & Frankel LLP
McKool Smith PC
Berry Law PLLC
The Dial Corporation, et al. v. News Corporation, et al.

Joseph Saveri Law Firm, Inc.
Lieff Cabraser Heimann & Bernstein, LLP
Zwerling, Schachter & Zwerling, LLP
In re Cipro Cases I & II

Outstanding Antitrust Litigation Achievement in Economics

David Dranove – Northwestern University and Analysis Group
United States of America, et al. v. Anthem, Inc., et al. 

C. Scott Hemphill – New York University School of Law
In re Cipro Cases I & II

Aviv Nevo – University of Pennsylvania and Cornerstone Research
United States of America, et al. v. Aetna Inc., et al.

Outstanding Antitrust Litigation Achievement by a Young Lawyer

Matthew Berry – Susman Godfrey LLP
In re Animation Workers Antitrust Litigation

Ryan J. McEwan – Joseph Saveri Law Firm, Inc.
Lin Y. Chan – Lieff Cabraser Heimann & Bernstein, LLP
Sona R. Shah – Zwerling, Schachter & Zwerling, LLP
In re Cipro Cases I & II

Victoria Romanenko – Cuneo Gilbert & LaDuca LLP
In re Automotive Parts Antitrust Litigation

J. Gerard Stranch, IV – Branstetter, Stranch & Jennings, PLLC
In re Prograf Antitrust Litigation

2017 Judging Committee

  • Chair: Hollis Salzman, Robins Kaplan LLP
  • Ellen S. Cooper, Office of the Attorney General of Maryland
  • David DeRamus, Bates White Economic Consulting
  • Harry First, New York University School of Law
  • Kathleen E. Foote, California Department of Justice Antitrust Section
  • Warren Grimes, Southwestern Law School
  • Thomas Horton, South Dakota School of Law
  • Russell Lamb, Monument Economics Group
  • Ellen Meriwether, Cafferty Clobes Meriwether & Sprengel LLP
  • Janet Netz, applEcon
  • Roger Noll, Stanford University
  • Cathy Smith, Gustafson Gluek PLLC
  • Heidi Silton, Lockridge Grindal Nauen P.L.L.P.
  • Judith Zahid, Zelle LLP

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Moss Briefs Congress on Antitrust and Labor

Today, AAI President Diana Moss joined House Judiciary Committee Democrats and the Congressional Progressive Caucus for a briefing on the effects of concentrated economic power on the economy and working Americans.

The briefing, “Competition and Corporate Power: The Impact of Economic Concentration on Jobs, Inequality, and the Financial Security of Working Families,” reviewed mounting economic evidence that an overall decline in antitrust enforcement has harmed consumers, workers, and small businesses.

Other panelists included Marshall Steinbaum of the Roosevelt Institute, Marcellus Andrews of  Bucknell University, and Lina Kahn of the Open Markets Institute.

Read Moss’s remarks from the October 5th briefing and her recent commentary, Antitrust and Inequality: What Antitrust Can and Should Do to Protect Workers.

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Moss Discusses Antitrust and Labor

Diana Moss joined the Roosevelt Institute and the George Washington University Institute of Public Policy for a discussion regarding burgeoning areas in the antitrust debate. Moss’s panel, Workers and Antitrust, debated antitrust and market power in the labor market.

View the discussion here.  Read Moss’s paper, Antitrust and Inequality: What Antitrust Can and Should Do to Protect Workers, here.

 

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The “Better Deal” Makes Competition Policy a National Priority — AAI Offers An Actionable Agenda Moving Forward

With the announcement of the “Better Deal,” the Democrats in Congress made competition policy a national priority. In recent work, the AAI has articulated concrete, actionable steps to effectively promote competition in the U.S. economy. In September of 2016, the AAI issued its National Competition Policy Statement, which provides detailed priorities for an antitrust enforcement agenda moving forward. It proposes a variety of enforcement and policy responses to the problems of growing concentration, increasing inequality, and decreasing rates of start-ups that antitrust scholars, enforcers, and policymakers have identified over the last several years. The AAI also highlights the many tools in the current antitrust “toolkit” for how enforcement can tackle inequality. In a recent op-ed, AAI President Diana Moss outlines what antitrust has done and should do to help workers.

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William J. Baer Receives AAI’s Antitrust Achievement Award

The American Antitrust Institute (AAI) presented William J. Baer with the 2017 Alfred E. Kahn Award for Antitrust Achievement  during the luncheon program at AAI’s 18th Annual Conference on June 21. Baer recently served as Acting Associate Attorney General and was Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (DOJ). Baer was introduced by Renata B. Hesse, former Acting Assistant Attorney General at the Antitrust Division and partner at Sullivan & Cromwell LLP.

“The AAI is delighted to honor Bill as the 2017 award recipient, particularly as we explore the value of antitrust in this year’s Annual Conference program,” said AAI President Diana Moss.

The award honors outstanding contributions to the field of antitrust. Moss explained, “Bill continues to be the front-runner in the antitrust community. He has effectively applied his insight, vision, and leadership to promote antitrust as a key policy tool for protecting markets, the competitive process, consumers, and innovators.”

Baer’s career has spanned decades of public service as an antitrust enforcer and leadership of the antitrust bar in private practice. At the DOJ, Baer led key civil and criminal actions as part of a vigorous enforcement program in critical industries such as airlines, healthcare, pharmaceuticals, telecommunications, high technology, energy, financial services, beer, and consumer products. Under his leadership, the Antitrust Division addressed both traditional and emerging competition issues. These novel challenges included, among others, prosecuting online price-fixing agreements, preserving competition in innovation markets, and tackling issues at the intersection of competition and intellectual property law.

During his DOJ tenure, Baer was the first to frame an enforcement approach to certain uniquely large mergers, which are difficult to remedy without suppressing the public’s interest in competitive markets and consumer choice. Instituting a progressive enforcement agenda at the Antitrust Division, Baer recognized the importance of other tools and programs to enhance awareness of markets, competition, and consumers. These included broader and deeper cooperation with other federal regulatory agencies and state enforcers, technical assistance and coordination on international enforcement and policy issues, and key advocacy initiatives.

From 1995 to 1999, Baer was the Director of the Bureau of Competition at the Federal Trade Commission (FTC). Between 1975 and 1980, he held a number of positions at the FTC, including Assistant General Counsel for Legislation and Congressional Relations and Attorney Advisor to the FTC Chairman.

In private practice, Baer was a partner at Arnold and Porter from 1983 to 1995. From 2000 to 2012 he served as head of the firm’s antitrust practice, handling complex civil and criminal investigations and litigation in the antitrust and trade regulation areas. Baer is returning to the firm on June 1.

Baer is the past recipient of numerous awards that recognize his influence and contributions to advancing competition law as a practitioner, enforcer, and policymaker. In 2015, the FTC honored him with the Miles W. Kirkpatrick Lifetime Achievement Award for public service.

Baer received his Bachelors of Art degree, cum laude, from Lawrence University and his Juris Doctor degree from Stanford Law School. He joins past honorees: Joel Klein, Robert Pitofsky, F.M. Scherer, Alfred Kahn, Lloyd Constantine, Thomas Leary, Senators Herb Kohl and Mike DeWine, Maxwell Blecher, John Shenefield, Eleanor Fox, Steven Salop, Mario Monti, Roger Noll, Kathleen Foote, John Connor, Donald Baker, and Jonathan Cuneo.

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AAI Praises Decision Upholding Injunction Against Anthem-Cigna Merger

The DC Circuit Court of Appeals issued a decision today upholding the trial court’s injunction preventing the merger of giant health insurers Anthem and Cigna because it would would be anticompetitive.  The American Antitrust Institute (AAI) had joined with numerous consumer groups to file an amicus brief urging the Court of Appeals to affirm the district court decision.  The proposed merger would have been the largest in the history of the health insurance industry, combining two of the four national carriers.

On appeal, Anthem did not challenge the district court’s finding that the merger would have anticompetitive effects, but rather contended that the court failed to properly consider its efficiencies defense. Specifically, Anthem claimed that it would be able to achieve significant savings by reducing reimbursements to health care providers, which would be passed on to national employers that are self-insured and would exceed the higher fees resulting from the elimination of competition between Anthem and Cigna.

The Court of Appeals applied a stringent test to Anthem’s efficiencies theory, concluding that the district court “reasonably determined that Anthem failed to show the kind of ‘extraordinary efficiencies’ that would be needed to constrain likely price increases in this highly concentrated market, and to mitigate the threatened loss of innovation.”

Specifically, the Court of Appeals upheld the district court’s rejection of Anthem’s defense on the grounds that the supposed medical cost savings were not verified and could be achieved without the merger.  The Court also upheld the lower court’s determination that if the savings were achieved they would undermine the quality of the insurance product offered by Cigna, which emphasizes collaborative relationships with providers to reduce health care expenditures and improve patient health.

The Court’s decision was 2-1.  The dissenting judge, questioning the facts found by the district court, concluded that the merger was not anticompetitive in the health insurance market.  But he would have remanded the case to the district court for further fact finding on whether the merged firm’s likely reduction of reimbursements to health providers would result from the exercise of monopsony power (i.e., market power on the buying side), which the government had alleged, but the lower court did not fully address.

The majority criticized the dissent for, among other things, assuming that “the prices paid by consumers (regardless of the quality of the resulting product) are the sole focus of the antitrust law.”  This reasoning is flawed, according to the Court, because “the principal objective of antitrust policy is to maximize consumer welfare by encouraging firms to behave competitively.”

Wholly apart from the fact that the “threat to innovation is anticompetitive in its own right,” and any price reduction was likely to come at the expense of product quality, the Court emphasized the transitory nature of any price reductions.  The Court concluded: “The ability of a firm to obtain lower prices for inputs for its product should” be viewed skeptically, “especially in light of the prophylactic nature of the Clayton Act, when high market concentrations may have the future effect of permitting capture of those savings.”

In January 2016, the AAI submitted a letter to the U.S. Department of Justice (DOJ) Antitrust Division outlining the myriad competitive and consumer concerns surrounding the proposed health insurance mergers of Aetna-Humana and Anthem-Cigna.
Media Contacts:
AAI President Diana Moss, dmoss@antitrustinstitute.org
AAI Vice President Richard Brunell,rbrunell@antitrustinstitute.org

 

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Moss Discusses Payer Consolidation at Yale Healthcare Conference

AAI President Diana Moss participated in the 2017 Yale Healthcare Conference on the panel Payer Consolidation: Do Patients Benefit? Moss and Harvard Pilgrim Health Care President and CEO Eric H. Schultz debated how consolidation in the health insurance market impacts consumers and whether the Aetna-Humana and Cigna-Anthem mergers would create efficiencies that give patients better products at lower cost.

The Yale Healthcare Conference is a joint effort between the Yale School of Management and the Health Professional Schools at Yale University that brings together professionals, scholars, and students to engage in an instructive conversation concerning current healthcare issues. Learn more at www.yalehealthcare.com.