19th Annual Conference: “Antitrust at a Crossroads – Plotting the Course for the Next Decade”

Experts from law, economics, and policy offered insight via four panels:

Antitrust and Workers — Agreements, Mergers, and Monopsony

As American workers struggle to navigate an economy characterized by increasing corporate concentration, experts have begun to focus greater attention on anticompetitive conduct in labor markets. This panel explored applications of the antitrust laws to prohibit the exercise of buyer power that harms competition and suppresses wages and salaries. Among other things, panelists discussed landmark civil cases challenging employer no-poaching and no-hiring agreements, the Department of Justice’s movement toward prosecuting naked wage-fixing and no-poaching agreements criminally, and recent scholarship addressing the role of merger enforcement in preserving buy-side competition.

Innovation and Antitrust — Sword or Shield?

Promoting innovation is widely recognized to be a critical, if not the most important, goal of antitrust law. In practice, however, harm to innovation is just as often used as a defense to antitrust claims, particularly where intellectual property rights are involved. This panel of experts addressed several hot topics at the edge of this divide, including: antitrust claims involving product redesign and product hopping, developments in the Noerr-Pennington doctrine and sham litigation, the antitrust treatment of FRAND breaches and SSO rules, and the use of the potential competition doctrine as a means to protect nascent competition and promote innovation.

Vertical Merger Enforcement — Competitive Effects, Remedies, and Guidelines

Vertical merger proposals in key sectors such as telecommunications, media, agricultural biotechnology, and healthcare continue to pile up. Once a lower-profile area of enforcement, vertical mergers are now a hot topic that have generated debate over competitive effects and past remedies. This panel took up three important, interrelated topics in vertical merger enforcement. Panelists first discussed recent developments in framing theories of harm around bargaining leverage and exclusionary effects and anticompetitive coordination. In light of controversy in past vertical merger cases, panelists then turned to how enforcement should address the question of effectiveness of conduct remedies. Finally, the panel questioned whether more guidance on how the antitrust agencies will evaluate vertical mergers is warranted, through an update and/or formalization of the 1984 vertical merger guidelines.

Oyez! Antitrust and the Supreme Court

This term at the Supreme Court has been a busy one for antitrust cases and could be quite significant. The leading case, Ohio v. Amex, may have wide ramifications beyond its practical implications for credit-card merchant fees and two-sided markets. Fundamental antitrust issues of market definition and the operation of the rule of reason are at stake. Animal Science v. Hebei raises important questions involving international comity and export cartels.  And Salt River v. Tesla indicates that the Court is poised to resolve a split in the circuits over the state-action doctrine. Our panel of leading Supreme Court advocates addressed these cases and other antitrust developments at the Court, including potentially momentous cert petitions.

The conference included a gala luncheon featuring a keynote address by Assistant Attorney General Makan Delrahim. The 2018 AAI Antitrust Achievement Award was presented to Senator Amy Klobuchar. The Jerry S. Cohen Award for Antitrust Scholarship was also presented at the luncheon.  This program was made possible by support from our 2018 Sponsors.

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