AAI’s Moss Speaks at GCR Live 9th Annual Antitrust Law Leaders Forum

Diana Moss participated in two panels at the GCR Live 9th Annual Antitrust Law Leaders Forum, held on February 7-8, 2020. Moss joined other antitrust experts on the plenary panel: Back to the Drawing Board: Is It Time for a Radical Overhaul of Antitrust Law? and a merger panel: “Killer Acquisitions” and other anticompetitive deals: Should antitrust do more to protect emerging challengers?”

Plenary: Back to the Drawing Board: Is It Time for a Radical Overhaul of Antitrust Law?

This panel asks whether antitrust’s narrow scope necessitates regulation to deal with broader policy concerns, or if antitrust should be “dialed up” to play a larger role in policing how companies and consumers transact. What is the purpose of antitrust policy? Should antitrust seek to achieve more than the pursuit of consumer welfare? How can antitrust co-exist with ex ante regulation and do agencies need additional powers if their objectives are to be broadened? What are the best strategies for enforcement agencies? Are the standards of proof and timeframe for analysis in antitrust optimal to advance these longer-term objectives? How much does existing precedent prevent antitrust from addressing concerns that do not fit neatly within previously established models of leveraging market power through tying, exclusion or foreclosure? To what extent should (and can) antitrust deal with “unfair” bargains involving dominant companies, including accumulation and exploitation of user data? Are these “new” issues or has access to data always been an enforcement challenge for antitrust agencies?

• Joshua Soven, Wilson Sonsini Goodrich & Rosati (Washington, DC) – Moderator
• Cristina Caffarra, Charles River Associates (Brussels and London)
• Bruce Hoffman, Director, Bureau of Competition, Federal Trade Commission (Washington, DC)
• Michael Knight, Jones Day (Washington, DC)
• Ali Nikpay, Gibson, Dunn & Crutcher LLP (London and Brussels)
• Diana Moss, President, American Antitrust Institute (Washington, DC)

Mergers: “Killer Acquisitions” and other anticompetitive deals: Should antitrust do more to protect emerging challengers?

This panel will debate whether a new policy approach or legal framework is warranted to address the unique challenges posed by mergers involving nascent competition. How should enforcers determine whether the acquisition of a small company – especially one with minimal revenue – will harm competition in a relatively new market?  Do we need new legal tests that find competition problems based on a “balance of harms” rather than a “balance of probabilities”? What aspects of competition other than innovation/pipeline (for example, competition for “talent”) should be considered in the competitive effects analysis? How should enforcers balance the harm that may result from removing an upstart as a competing company, with the potential gains to consumers from that upstart receiving increased resources to develop its products?

• Daniel Sokol, Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville) – Moderator
• Gavin Bushell, Baker McKenzie (Brussels)
• Jeremy Calsyn, Cleary Gottlieb Steen & Hamilton LLP (Washington, DC)
• Florian Ederer, Associate Professor of Economics, Yale School of Management (New Haven)
• Diana Moss, President, American Antitrust Institute (Washington, DC)
• Nikhil Shanbhag, Director of Competition and Telecommunications law, Facebook (San Francisco)