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AAI will host its 25th Annual Policy Conference, New Thinking on the Antitrust Treatment of Collective Action: Organized Labor, Countervailing Power, and Algorithmic Price Setting, on May 22, 2024 at the National Press Club in Washington D.C.
U.S. antitrust law and competition policy have always had a complicated relationship with collective action. Collusion has been called “the supreme evil of antitrust,”[1] yet we permit and encourage a wide array of competitor collaborations because “the war of all against all is not a good model for any economy.”[2] Recent developments in law, policy, and technology have posed a new set of challenges in striking this balance between competition and cooperation.
Among other examples, growing recognition of widespread market power in labor markets has prompted new thinking about competition and collective bargaining rights. Scholars and legislators also have explored other forms of group negotiation as a countervailing power response to monopoly and oligopoly market structures, whether to promote economic welfare or fairness. At the same time, sellers are pushing the boundary line between collective action and collusion using algorithmic pricing technology.
The Policy Conference will feature three panels of experts providing insight, analysis, and recommendations on key issues in these important and still-developing areas of law and policy. The conference will include a gala luncheon featuring the presentation of the 2024 AAI Antitrust Achievement Award and the presentation of the Jerry S. Cohen Award for Antitrust Scholarship.
[1] Verizon Communications v. Law Offices of Curtis V. Trinko, 540 U.S. 398, 408 (2004) (Scalia, J.).
[2] Polk Bros., Inc., v. Forest City Enterprises, Inc., 776 F.2d 185 (7th Cir. 1985) (Easterbrook, J.)
CONFERENCE LOCATION:
National Press Club Holeman Lounge
529 14th Street NW, 13th Floor
Washington, DC 20045
CLE CREDITS:
This conference was approved by the Pennsylvania Continuing Legal Education Board for 4.5 CLE credit hours. Attendees will be emailed CLE certificate of attendance after the conference.
REGISTRATION PRICING:
$200 | Conference Registration
$100 | Government/Academic Attendees
$0 | Media Conference
$0 | Advisory Board/Sponsor/Guest
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.
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.
Networking Break
Luncheon and Award Presentations
Jerry S. Cohen Award for Antitrust Scholarship
AAI’s Alfred Kahn Award for Antitrust Achievement
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.