24th AAI Annual Policy Conference: Taking Stock of Antitrust’s Pro-Enforcement Movement

Welcome and Overview

Diana Moss, President, American Antitrust Institute

Panel 1: Challenges to More Vigorous Enforcement: Agency Strategy, Guidance, and Authority

The Biden antitrust enforcers have promised to step-up enforcement of the antitrust laws. It is too early to tell how case outcomes and policy initiatives at the Federal Trade Commission and U.S. Department of Justice will affect the longer-term contours of enforcement. But key issues have already emerged that may impact a more vigorous enforcement program. This expert panel will take up these issues. The panel will unpack the agencies’ strategies, shifts in the types and theories of cases brought, and win/loss records. Panelists will also discuss the implications of new agency merger guidance and the agencies’ decisions to withdraw certain guidance and policy statements. They will assess pushback against the agencies’ enforcement authority, including FTC rulemaking and limits on monetary remedies. Panelists will conclude with their take on the policy priorities most likely to lead to an effective and lasting invigoration of antitrust enforcement.

Moderator:
Kathleen Bradish, Vice President of Legal Advocacy, American Antitrust Institute

Panelists:
Markus Brazill, Counsel to the Assistant Attorney General, Antitrust Division, U.S. Department of Justice

Heather Johnson, Director of Antitrust, T-Mobile

Jennifer Sturiale, Assistant Professor of Law, Delaware Law School, Widener University

Panel 2: Private Enforcement in a Pro-Enforcement Era: Obstacles and Opportunities

Private enforcement plays a critical role in the U.S. system of antitrust enforcement. Yet private enforcement faces ongoing hurdles, at a time when all prongs—public and private—are needed to invigorate antitrust enforcement in the U.S. This expert panel will discuss overcoming obstacles and identifying new opportunities for private enforcement. Panelists will identify and discuss both substantive and process issues. These include the pros and cons of government participation in private cases, leading class certification and procedural issues, and the rising costs of private litigation. They will also expand on areas where private enforcers have been particularly active, such as in labor cases and violations involving anticompetitive information sharing, which are high priority for public enforcers. This discussion will benefit all private and public enforcers seeking to strengthen antitrust enforcement overall.

Moderator:
Ankur Kapoor, Partner, Constantine Cannon

Panelists:
Caitlin Coslett, Shareholder and Co-Chair of the Antitrust Department, Berger Montague

Dan Hedlund, Partner, Gustafson Gluek PLLC

Randy Stutz, Attorney Advisor, Office of Policy Planning, Federal Trade Commission

Networking Break

Luncheon and Award Presentations

Jerry S. Cohen Award for Antitrust Scholarship

AAI’s Alfred Kahn Award for Antitrust Achievement
Presented by Diana Moss
Acceptance and Keynote Address by Colorado Attorney General Phil Weiser

Break

Panel 3: Expanding the Antitrust Analytical Toolkit: Looking Beyond Law and Economics

Progressive antitrust looks to push the boundaries of a number of conventions that have limited the scope of antitrust analytics in the past. This includes, for example, considering adverse competitive effects in labor and other input markets, and the non-price dimensions of competition such as quality and innovation. But it also includes, among other issues, defining relevant markets in modern business “ecosystems” where cluster markets may be more appropriate. This expert panel will focus on the importance of expanding the antitrust analytical toolkit to tap into labor economics, behavioral economics, cloud technology and engineering, strategic management, and marketing. Panelists will offer examples where non-traditional academic disciplines have been, or should be, an integral part of antitrust case analysis. They will also discuss how practitioners and policymakers can incorporate these perspectives into competition enforcement and policy.

Moderator:
Diana Moss, President, American Antitrust Institute

Panelists:
Laura Edelson, Chief Technologist, Antitrust Division, U.S. Department of Justice

Fiona Scott-Morton, Theodore Nierenberg Professor of Economics, Yale School of Management

Evan Starr, Associate Professor, Robert H. Smith School of Business, University of Maryland

Closing Remarks