25th AAI Annual Policy Conference – New Thinking on the Antitrust Treatment of Collective Action: Organized Labor, Countervailing Power, and Algorithmic Price Setting

Welcome and Overview

Randy Stutz, President, American Antitrust Institute

Panel 1: The Law and Economics of Countervailing Power: Key Issues and Principles

Do countervailing power arguments make sense as a response to an increasingly concentrated marketplace? The entrenchment of giant corporations in many parts of the economy, including Big Tech, healthcare, and retail, has brought the question to the fore in merger reviews and elsewhere. This panel will critically assess the trend among many different parts of the antitrust community to look to countervailing power as a partial solution to the pressing issue of market power. Panelists will discuss the validity and utility of economic theories around countervailing power and what evidence exists about how those theories play out in practice. They will also explore the broader effects of countervailing power on market dynamics, consumer choice, and the competitive process, and will consider alternative approaches to the problem of unequal bargaining positions.

Moderator:
Kathleen W. Bradish, Vice President and Director of Legal Advocacy, American Antitrust Institute

Panelists:
Laura Alexander, Deputy Director, Bureau of Competition, Federal Trade Commission
Scott Hemphill, Moses H. Grossman Professor of Law, New York University School of Law
Sandeep Vaheesan, Legal Director, Open Markets Institute

Panel 2: Antitrust and Organized Labor: Recent and Future Developments

The relationship between antitrust law and collective bargaining rights is in a dynamic period. Courts have interpreted the Clayton Act’s labor exemption as potentially covering independent contractors; legislators have explored group bargaining rights for gig workers and online content creators; and the Federal Trade Commission has defined a relevant market for union labor in a merger case. This panel will explore the significance of recent developments in the antitrust treatment of collective bargaining rights and consider what these trends may portend for antitrust law’s future role in the labor movement.

Moderator:
Randy Stutz, President, American Antitrust Institute

Panelists:
Hiba Hafiz, Associate Professor, Boston College Law School
Marina Lao, Professor of Law, Seton Hall University School of Law
Eric Posner, Kirkland & Ellis Distinguished Service Professor of Law, University of Chicago Law School
Steven Salop, Professor of Economics and Law, Georgetown University Law Center

Networking Break

Luncheon and Award Presentations

Jerry S. Cohen Award for Antitrust Scholarship

Alfred E. Kahn Award for Antitrust Achievement
Michael Kades, Deputy Assistant Attorney General, U.S. Department of Justice Antitrust Division
Acceptance by Peter Carstensen, Fred W. & Vi Miller Chair in Law Emeritus, University of Wisconsin Law School

Break

Panel 3: Assessing Current Litigation Involving Digital Information Sharing and Algorithmic Pricing

Cartels are often associated with a small number of firms selling homogenous products in a concentrated market, but history is replete with examples where large groups of sellers successfully cartelized an industry by establishing collective governance rules or other overt mechanisms for colluding. AI-powered pricing algorithms are the newest weapon threatening to empower durable cartels by facilitating collusive price setting among groups of online sellers. This panel will take stock of the earliest, path-breaking litigation over algorithmic collusion in rental housing, casino hotels, and other markets. It will also explore legal, economic, strategic, and practical considerations facing lawyers and expert witnesses in future algorithmic collusion cases.

Moderator:
Joshua P. Davis, Shareholder, Berger Montague

Panelists:
Boris Bershteyn, Partner, Skadden, Arps, Slate, Meagher and Flom, LLP
Fatima Brizuela, Attorney, Scott+Scott
Cecilia Cheng, Counsel to the Assistant Attorney General, U.S. Department of Justice Antitrust Division
Maggie Herrington, Senior Manager, Cirque Analytics

Closing Remarks