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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.
Event Location:National Press Club Ballroom
529 14th Street NW, 13th Floor
Washington, DC 20045
This conference was approved by the Pennsylvania Continuing Legal Education Board for 5.0 CLE credit hours.
The following organizations were represented at the 20th Annual Policy Conference.
- A.B. Data, Ltd.
- American Booksellers Association
- Angeion Group
- applEcon LLC
- Axinn, Veltrop & Harkrider LLP
- Benton Foundation
- Berger Montague PC
- Bloom Strategic Counsel PLLC
- Bloomberg Law
- Bloomberg News
- Boies Schiller Flexner LLP
- Broadband Census
- Cafferty Clobes Meriwether & Sprengel LLP
- Charles River Associates
- Cohen Milstein
- Consumer Reports
- Contantine | Cannon
- COOLEY LLP
- Covington & Burling LLP
- Crowell & Moring
- Cuneo Gilbert & LaDuca, LLP
- Davis Polk & Wardwell LLP
- Economists Incorporated
- EconOne Research Inc.
- Federal Trade Commission
- Federation of State Medical Boards
- Fine, Kaplan and Black, R.P.C.
- Georgetown Law
- Girard Sharp LLP
- Global Competition Review
- Grant & Eisenhofer
- Gustafson Gluek PLLC
- Heffler Claims Group
- Howard University School of Law
- Huntington Bank
- Info Tech Consulting
- Joseph Saveri Law Firm
- Justice Catalyst
- Kellogg Hansen PLLC
- Kinsella Media
- Labaton Sucharow, LLP
- Law Office of Daniel J. Sponseller
- Levin Fishbein Sedran & Berman
- Lieff, Cabraser, Heimann & Bernstein, LLP
- Lockridge Grindal Nauen P.L.L.P.
- Massachusetts Institute of Technology
- Mlex Editorial
- MoginRubin LLP
- Monument Economics Group LLC
- Nathan Associates Inc.
- National Association of Attorneys General
- National Beer Wholesalers Association
- National Farmers Union
- New York University Law School
- Northeastern University
- Virginia Office of the Attorney General
- Penn State University
- R. Shermer & Company
- Reutter Economics
- Roberts Proprietaries, Inc.
- Robins Kaplan LLP
- Rust Consulting
- Senate Judiciary Committee
- Spector Roseman & Kodroff P.C.
- Spiegel & McDiarmid
- Straus & Boies LLP
- Sullivan & Cromwell LLP
- Surveyor Capital
- The Brattle Group
- The Capitol Forum
- The Konkurrenz Group
- Travelers United
- U.S. Department of Justice
- University of Baltimore
- University of Chicago Law School
- University of North Florida
- University of Utah
- University of Virginia
- University of Wisconsin Law School
- Washington Center for Equitable Growth
- Weinstein Kitchenoff & Asher LLC
- Weitz & Luxenberg P.C.
- Wilson Sonsini Goodrich & Rosati
- World Bank
Welcome and Overview
Diana Moss, President, American Antitrust Institute
Session I: SHOULD ENFORCERS PRESUME THAT MERGERS ARE PRO-COMPETITIVE? FACTORING UNENFORCEABLE AND UNDELIVERED EFFICIENCIES CLAIMS INTO MERGER REVIEW
Diana Moss, President, American Antitrust Institute
Greg Bruce, Vice President, R. Shermer & Company
Gregory T. Gundlach, Coggin Distinguished Professor of Marketing, University of North Florida
John Kwoka, Jr., Finnegan Distinguished Professor of Economics, Northeastern University
Rebecca Kelly Slaughter, Commissioner, Federal Trade Commission
Session II: RIGHTING THE WRONGS OF MODERN ANTITRUST DOCTRINE: TOWARD AN AGENDA FOR IMPROVING ENFORCEMENT IN THE COURT SYSTEM
Randy Stutz, Vice President Legal Advocacy, American Antitrust Institute
Andrew I. Gavil, Professor of Law, Howard University School of Law
Scott Hemphill, Professor of Law, New York University Law School
Jay Himes, Partner, Labaton Sucharow
Howard Shelanski, Professor of Law, Georgetown Law
Luncheon and Awards Presentation
Jerry S. Cohen Award for Antitrust Scholarship
Presented by Daniel A. Small, Partner, Cohen Milstein Sellers & Toll PLLC
AAI’s Alfred Kahn Award for Antitrust Achievement
Presented by Joseph J. Simons, Chairman, Federal Trade Commission
Acceptance by Stephen Calkins, Professor of Law, Wayne State University
Congressman David N. Cicilline
Session III: INTELLECTUAL PROPERTY AND COMPETITION: MAJOR DEVELOPMENTS AT THE AGENCIES
Jorge Contreras, Professor of Law, The University of Utah
Renata B. Hesse, Partner, Sullivan & Cromwell LLP
Terrell McSweeny, Partner, Covington & Burling LLP
Suzanne Munck, Deputy Director and Chief Counsel for Intellectual Property, Federal Trade Commission
Session IV: ASSESSING THE STATE OF SECTION 1: DO WE HAVE AN ENFORCEMENT PROBLEM WITH POLICING ANTICOMPETITIVE AGREEMENTS?
K. Craig Wildfang, Partner, Robins Kaplan LLP Law Firm
Robert C. Marshall, Distinguished Professor of Economics, Penn State
Ann O’Brien, Assistant Chief of the Legal Policy Section & Special Counsel for Criminal Policy, U.S. Department of Justice Antitrust Division
Bonny E. Sweeney, Partner, Hausfeld
Professor of Law
Former Special Litigation Counsel & Antitrust Bureau Chief, New York State Office of the Attorney General
Distinguished Professor of Economics
Assistant Chief, Competition Policy and Advocacy Section
Professor of Law