23rd Annual Policy Conference: Bringing and Litigating Antitrust Cases in an Era of Change

Welcome and Overview

Diana Moss, President, American Antitrust Institute

Panel 1: Antitrust and Non-Competition Goals: Practical Considerations for Litigants

This panel will discuss how non-competition values that are not currently embedded in existing antitrust standards can enter the antitrust litigation calculus. Such values include increasing privacy, improving environmental sustainability, and reducing inequality. Panelists will discuss several fundamental questions. When and how might non-competition values arise in the antitrust litigation calculus, whether as part of case selection, competitive effects analysis, efficiencies defenses, or otherwise? What measurement challenges do non-competition values pose in court, whether quantitative, qualitative, or temporal? How should enforcers think about trading off harms and benefits across different markets, different dimensions of competition, or different competition and non-competition values? And how should antitrust enforcers respond when otherwise anticompetitive conduct is necessary to achieve public social or political goals?

Moderator:
Laura Alexander, Vice President of Policy, American Antitrust Institute

Panelists:
Joshua P. Davis, Shareholder, Berger Montague; Research Professor, University of California, Hastings College of the Law

Kate Konopka, Deputy Attorney General, Office of the Attorney General for the District of Columbia

Eric A. Posner, Counsel to the Assistant Attorney General, Antitrust Division, U.S. Department of Justice

Panel 2: Advancing Progressive Antitrust Law in the Courts: Strategies and Tactics for Enforcers

Competition advocates have long struggled with the lasting effects of bad antitrust precedent. This panel will evaluate prominent examples of regressive legal precedent and strategies and tactics to mitigate its harmful effects. Panelists will take up several questions. What can direct evidence of anticompetitive effects still say about market-definition after the Supreme Court’s 2018 Ohio v. American Express decision? How can enforcers minimize the reach of problematic judicial approaches to defining both sides of a two-sided market as a single market? How can enforcers respond to rising standards for proving the element of agreement in Section 1 cases, where some courts have all but insisted on smoking-gun evidence of collusion? Finally, how can enforcers achieve effective antitrust remedies after courts have narrowly interpreted the agencies’ authority to obtain equitable relief, raised hurdles to private plaintiffs’ access to aggregate relief via class actions, and in light of a growing record of failed merger remedies?

Moderator:
Randy Stutz, Vice President of Legal Advocacy, American Antitrust Institute

Panelists:

Eric Citron, Partner, Goldstein & Russell, P.C.

Renata B. Hesse, Partner, Sullivan & Cromwell LLP

Jon Sallet, Special Assistant Attorney General, State of Colorado; Research Fellow, Mossavar-Rahmani Center for Business and Government, Harvard Kennedy School

Networking Break

Luncheon and Award Presentations

Jerry S. Cohen Award for Antitrust Scholarship
Presented by Daniel A. Small, Partner, Cohen Milstein

AAI’s Alfred Kahn Award for Antitrust Achievement
Presented by Diana Moss
Acceptance and Keynote Address by Senator Richard Blumenthal

Break

Panel 3: Antitrust as a Tool in a Bigger Toolkit: The Public Policy Approach to Protecting Competition

We are seeing arguments from all sides that more than antitrust, or something instead of antitrust, is needed to facilitate competition. This panel will take up major issues relating to the use of antitrust enforcement as a policy tool in a larger toolkit for addressing competition concerns. For example, if a law were to grant antitrust agencies authority to police discriminatory conduct on a digital platform, how might a hypothetical antitrust case unfold under such a law? How can antitrust operate most effectively in sectors with regulatory statues, such as the Packers and Stockyards Act, that can complement antitrust enforcement but that are not themselves effectively enforced? What policy tools are available to address workforce reductions that result from mergers, but that antitrust does not flag as threatening anticompetitive labor-market effects? And how will antitrust complement potential privacy law in cases where adverse quality effects are revealed in the misuse of consumer data?

Moderator:
Diana L. Moss, President, American Antitrust Institute

Panelists:
Erika M. Douglas, Assistant Professor, Temple University Beasley School of Law

Harry First, Charles L. Denison Professor of Law and Co-Director, Competition, Innovation, and Information Law Program, New York University School of Law

Ioana Marinescu, Associate Professor, University of Pennsylvania School of Social Policy & Practice; Research Associate, National Bureau of Economic Research

Closing Remarks

Cocktail Reception