20th Annual Policy Conference: “Strengthening Antitrust Enforcement”

On June 20, 2019, the American Antitrust Institute hosted its 20th Annual Policy Conference: “Strengthening Antitrust Enforcement.” The conference included a gala luncheon featuring the presentation of the 2019 AAI Antitrust Achievement Award to Stephen Calkins by FTC Chairman Joseph Simons, the Jerry S. Cohen Award for Antitrust Scholarship, and a keynote address by Congressman David Cicilline, Chair of the House Antitrust Subcommittee.

Panel 1: Should Enforcers Presume That Mergers are Pro-Competitive? Factoring Unenforceable and Undelivered Efficiencies Claims Into Merger Review

This panel will explore how enforcers’ assumptions that mergers are pro-competitive weakens merger control and why it matters. While efficiencies are rarely, if ever, dispositive in merger litigation, an assumption that mergers are generally efficient and an acceptance of efficiencies claims, in particular, does affect enforcement decisions. Panelists will discuss a number of factors that call into question this indulgent approach to efficiencies. One is the inability of enforcers, after consummation, to hold merging parties’ feet to the fire on delivering on their promised cost savings and consumer benefits. Another is growing concern over failed efficiencies in previous mergers and managerial and organizational constraints on integrating post-merger operations and extracting efficiencies. The panel discussion will draw on multidisciplinary perspectives on efficiencies to identify the divergence between theory and practice and to integrate learning into more effective merger enforcement.

Panel 2: Righting the Wrongs of Modern Antitrust Doctrine: Toward an Agenda for Improving Enforcement in the Court System

This panel will engage leading experts in a wide-ranging discussion of whether and how established antitrust case law can prevent effective enforcement. From multidisciplinary perspectives, panelists will identify and unpack what they consider to be the most serious substantive and procedural shortcomings of merger, cartel, and monopolization law, and discuss the implications of these shortcomings for under-enforcement. Among other things, panelists will address plaintiffs’ burdens of pleading, proof, and production, the agreement element of a Section 1 offense, the power and effects elements of Section 1 and 2 offenses, and the challenges for private antitrust plaintiffs in establishing antitrust standing and injury and in satisfying Rule 23.

PANEL 3: INTELLECTUAL PROPERTY AND COMPETITION: MAJOR DEVELOPMENTS AT THE AGENCIES

This panel will explore recent developments at the Antitrust Division of the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) that relate to competition and intellectual property (IP). Two years have now elapsed since the agencies updated the IP licensing guidelines, and during the last several months the FTC devoted a day to IP during its Hearings on Competition and Consumer Protection in the 21st Century while the Assistant Attorney General of the Antitrust Division has delivered seven speeches on IP-related subjects. Panelists will discuss the important policy and enforcement implications of these recent developments at the intersection of IP and competition policy, as well as other key issues involving standard-setting, holdup and “holdout” theories of harm, and developments in copyright law with parallels to patent-competition issues. Panelists will also comment on merger enforcement where innovation theories of harm have taken center stage, how these cases have evolved, and whether we may expect to see more of them.

Panel 4: Assessing the State of Section 1: Do We Have an Enforcement Problem With Policing Anticompetitive Agreements?

Enforcement against cartels remains the mainstay of U.S. antitrust enforcement. And while the data are still coming in, there is some evidence that cartel enforcement may be down. This panel will explore the enforcement data and take up the question of whether we are seeing a potential problem in the critical area of Section 1 enforcement. Panelists will unpack trends in international cartel enforcement. This includes discussion of the appropriate metrics of enforcement, such as fines and activity in private follow-on cases, and the drivers of enforcement such as leniency. The discussion will also address the important question of whether enforcers are putting appropriate effort into domestic Section 1 enforcement. Concerns over declining competition and rising concentration raise questions about whether enforcers are recognizing the risks of potential collusive conduct when only a handful of players remain in key sectors.