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“Power and Greed: Monopolies, Mergers, and Cartels on the American Stage”—A Conversation with Author and Professor Spencer Weber Waller

In this episode of Ruled by Reason, AAI General Counsel Mark S. Hegedus sits down with Professor Spencer Weber Waller of Loyola University Chicago School of Law to discuss his new book, Power and Greed: Monopolies, Mergers, and Cartels on the American Stage, published by Methuen Drama, which is part of Bloomsbury, on October 15, 2026. The book chronicles the history of cartels and monopoly power in American live entertainment, from the rise of national theater and vaudeville circuits in the late nineteenth century to the modern-day antitrust litigation against Live Nation and Ticketmaster.

Hegedus and Waller discuss the origins of the book and the surprising discovery that inspired it: an 1896 agreement among Broadway producers, booking agents, and theater managers that established a powerful national cartel known as “the Syndicate” (4:43). They explore the rise of national entertainment circuits following the Civil War (8:55); the emergence of cartels and monopolies controlling vaudeville and legitimate theater (13:22); and the colorful history of the Shubert brothers, who challenged the Syndicate only to establish a monopoly of their own (16:28).

The conversation then turns to the Justice Department’s eventual challenge to the Shubert monopoly, including the legal obstacles that delayed enforcement, the influence of the Supreme Court’s Paramount decision, and the landmark consent decree requiring the Shuberts to divest theaters and relinquish control over booking and ticketing (26:09). Waller explains how the breakup helped usher in a golden age of American theater and illustrates the importance of competition not only for prices and consumer choice, but also for innovation in the creative arts (33:40).

Hegedus and Waller also discuss the persistence of market power in live entertainment, including the concentration of Broadway theater ownership, the growing influence of Broadway Across America in national touring, and the parallels between historical theater monopolies and the modern Live Nation–Ticketmaster business (36:56). Finally, they consider the lessons of this history for contemporary antitrust enforcement, including the importance of structural remedies, the dangers of delayed enforcement, and the need to protect competition against the influence of concentrated economic and political power (40:10).

GUEST:
Spencer Weber Waller, John Paul Stevens Chair in Competition Law and Director, Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law

HOST:
Mark S. Hegedus, General Counsel, American Antitrust Institute

Book: Power and Greed: Monopolies, Mergers, and Cartels on the American Stage (Methuen Drama, 2026), available at powerandgreed.com.

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Guest Commentary by Ducore: The Competitive Impact Statement: More Explanation Would Better Aid the Court in Tunney Act Proceedings

The American Antitrust Institute (AAI) has published a guest commentary by Dan Ducore, who is Former Assistant Director of the Bureau of Competition at the Federal Trade Commission. The commentary examines the role of competitive impact statements in Tunney Act proceedings and how they can better assist the court and advance the goals of the Tunney Act.

Read the full commentary: The Competitive Impact Statement: More Explanation Would Better Aid the Court in Tunney Act Proceedings

The views expressed are solely those of the author and do not necessarily reflect the views of AAI.

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50 Years of HSR: The Past and Future of Premerger Notification: Rapporteur’s Report

On September 30, 2026, the American Antitrust Institute (AAI) and the Competition Law Center at the George Washington University Law School co-hosted 50 Years of HSR: The Past and Future of Premerger Notification.  Held on the fiftieth anniversary of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), this conference brought together architects of the HSR Act, former agency officials, practitioners, and international competition experts to assess the past and future of premerger review.

All agreed that the HSR Act’s introduction of premerger notification and review was revolutionary and largely a success. However, the program also examined persistent challenges with the current system. These challenges include the second request process, interagency clearance, upfront disclosure requirements, rapidly changing digital markets, and procedural divergence among the growing number of jurisdictions reviewing global transactions. Drawing on five decades of experience with HSR and newer approaches abroad, participants considered a range of potential reforms. Some reforms that were discussed involved more targeted initial disclosures, genuine pre-filing consultation, more effective review of second requests, greater transparency in agency decision-making, and greater international standardization of merger-notification requirements.

Read the full report: 50 Years of HSR: The Past and Future of Premerger Notification: Rapporteur’s Report

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AAI Defends Multistate Indirect Purchaser Classes under Illinois Brick Repealer Laws in Ninth Circuit E-Cigarette Case (In re Juul Labs, Inc. Antitrust Litigation)

On September 28, 2026, the American Antitrust Institute (AAI) filed an amicus brief in In re Juul Labs, Inc. Antitrust Litigation, No. 26-2626, asking the Ninth Circuit to affirm certification of direct and indirect classes in a Section 1 suit arising out of tobacco giant Altria’s 2018 investment agreement with Juul under which Altria allegedly agreed to exit the e-cigarette market, reducing competition and raising prices.

Plaintiffs brought suit under Section 1 of the Sherman Act and California’s Cartwright Act on behalf of direct purchasers nationwide and indirect purchasers in 31 so-called Illinois Brick repealer states—those states that allow indirect purchasers to bring damages suits under state law. The district court certified the indirect purchaser class, reasoning that extraterritorial application of the Cartwright Act was proper and that variations in Illinois Brick repealer laws did not defeat predominance under Rule 23(b)(3), which requires that questions common to the class will predominate over questions specific to individual class members at trial. The court also rejected Defendants’ arguments that the direct purchasers’ impact and damages expert improperly used an antitrust logit model to demonstrate class-wide impact and that their ability to pass on any overcharges to their customers defeated predominance.

AAI’s brief addresses Defendants’ argument on appeal that differences between Illinois Brick repealer states’ laws categorically prevent a predominance finding. AAI explains that multistate repealer classes do not present unique predominance issues because they are aligned on the core, common question of antitrust liability—which typically predominates over any state-specific questions related to remedies—and on the fundamental question of indirect purchasers’ antitrust standing. It also explains how prohibiting multistate repealer classes would undermine the policy goals behind Rule 23 and the Class Action Fairness Act by requiring the common question of antitrust liability to be litigated in each of the repealer states. Considering the economic reality that many single-state classes cannot achieve the economies of scale that antitrust plaintiffs need to make their claims financially viable, disallowing multistate repealer classes would also undermine the repealer states’ legitimate policy choices and weaken antitrust enforcement more broadly.

On the issue of passed-on overcharges, AAI urges the Court not to take up Defendants’ invitation to revisit its en banc holding in Olean Wholesale Grocery Coop. v. Bumble Bee Foods, 31 F.4th 651 (9th Cir. 2022), that the potential presence of uninjured class members does not defeat class certification. It explains that the reasoning in Justice Kavanaugh’s often-cited dissent in Lab’y Corp. of Am. Holdings v. Davis, 605 U.S. 327 (2025), does not apply in antitrust cases. Finally, AAI explains that the antitrust logit model is a reliable and commonly used model in antitrust cases, and that, so long as such a model relies on reasonable assumptions, arguments about the reliability of those assumptions are merits questions for a factfinder, the resolution of which is not necessary to resolve certification disputes.

The brief was written by AAI Senior Counsel David O. Fisher, with assistance from AAI Research Fellow Beryl Emmerich and AAI Extern Tate Weston.

Read the brief: In re Juul Labs, Inc. Antitrust Litigation

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AAI Tells FTC That Disclosure, Without Competition, Is Not Enough to Protect Consumers from Personalized Pricing

On September 25, 2026, AAI filed public comments in response to the Federal Trade Commission’s Proposed Enforcement Policy Statement Regarding Personalized Pricing (Matter No. P034101).

The Commission’s Proposed Statement addresses businesses’ growing use of consumers’ personal data to set individualized prices. The Statement concludes that where consumers reasonably expect prices not to vary based on their personal data, businesses should clearly and conspicuously disclose that a price is personalized, the basis for the personalization, and the types of data used, and that failing to do so is likely to be an unfair or deceptive act or practice under Section 5 of the FTC Act. The Commission expressly declined to take a position on whether some personalized pricing practices are unfair even when fully disclosed.

AAI’s comments commend the Commission for confronting personalized pricing but argue that the Statement risks ignoring the practice’s other potential consumer harms by relying solely on disclosure instead of an in-depth examination of the role of competitive conditions. Whether personalization lowers prices or extracts consumer surplus depends on the competition a seller faces. Disclosure can correct an information gap, but it cannot give a consumer an alternative she does not have. In several of the Statement’s own examples, such as the rideshare customer headed to an emergency room, disclosure lets the consumer see the higher price without giving her any way to avoid it.

AAI’s comments make the following recommendations:

Competitive Conditions in the Section 5 Analysis

  • The Commission should acknowledge that personalized pricing may be unfair even when fully disclosed, particularly where consumers lack practical alternatives.
  • The Commission should make competitive conditions an explicit part of its unfairness analysis, rather than assuming that competition disciplines personalized prices.
  • The Commission should recognize that a higher personalized price is not reasonably avoidable when the consumer has no practical alternative, especially where the seller has identified that absence and priced on it.
  • The Commission should assess claimed countervailing benefits against the market as it actually exists, not an idealized competitive one.
  • The Commission should recognize that sustained personalized pricing may be evidence of market power.

Preserving the Commission’s Competition Authorities

  • The Commission should make clear that disclosure is not a safe harbor under Section 5 or any other law the Commission enforces, including the Sherman and Clayton Acts.
  • The Commission should treat a firm’s disclosures about its pricing as evidence in competition enforcement, not as a defense.
  • The Commission should apply its exclusionary-conduct standards with targeted pricing in view and scrutinize exclusive arrangements over the consumer data that personalization requires.
  • The Commission should assess how mergers, including acquisitions of data assets and personalization vendors, affect personalized pricing capability and the consumers who lose their closest alternative.

Algorithmic Pricing and Coordination

  • The Commission should recognize that personalized pricing vendors serving competing sellers raise the same coordination concerns as other algorithmic pricing intermediaries, whether through pooled data or through shared or correlated pricing models.
  • The Commission should treat evidence that a firm chose a pricing model because its rivals use it as probative of coordination under Section 1 of the Sherman Act and of an unfair method of competition under Section 5.

Designing Disclosure with Competition in Mind

  • The Commission should recognize that disclosure serves competition as well as consumer protection, because concealment prevents the price comparisons that discipline personalized pricing.
  • The Commission should confirm that disclosures are for consumers, not a channel for sharing competitively sensitive pricing information among rivals, and that the Statement provides no immunity for information exchange among competitors.

Further Study and Enforcement

  • The Commission should use its Section 6(b) and compulsory process authority to examine whether personalization vendors pool data or supply correlated models to competing clients, whether exclusive data arrangements facilitate exclusionary conduct, and whether mergers create asymmetric access to consumer data.
  • The Commission should build a demand-side record of which firms actually deploy personalized pricing and its effect on prices and issue a comprehensive final report.

These comments build on AAI’s recent work on algorithmic pricing, including its comments on revised competitor collaboration guidelines, its comments on the DOJ’s RealPage settlement, and its amicus briefs in Cornish-Adebiyi v. Caesars Entertainment and Gibson v. Cendyn. The comments were written by Kathleen Bradish, AAI VP and Director of Legal Advocacy, and Beryl Emmerich, AAI Research Fellow, with assistance from Randy Stutz, AAI President, and David Fisher, AAI Senior Counsel.

Read the complete comments here: AAI Comments on FTC Proposed Enforcement Policy Statement Regarding Personalized Pricing

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Antitrust Settlements, Transparency, and the Tunney Act: A Conversation with Darren Bush

In this episode of Ruled by Reason, AAI President Randy Stutz sits down with Professor Darren Bush of the University of Houston Law Center to discuss the Antitrust Penalties and Procedures Act of 1974, better known as the Tunney Act, and its role in promoting transparency and judicial scrutiny of DOJ antitrust settlements.

Federal antitrust enforcement today relies heavily on negotiated settlements rather than litigation. While settlements can conserve public resources, shorten the duration of anticompetitive conduct, and provide relief without the costs and delay of trial, they also raise important transparency concerns because negotiations occur behind closed doors and affected members of the public are not at the table. The Tunney Act was designed in part to address those concerns by requiring public disclosure, an opportunity for public comment, and judicial review of DOJ consent decrees under a public-interest standard.

Stutz and Bush discuss the origins of the Tunney Act and the political controversy surrounding the ITT settlement that helped spur its enactment (5:50); the Act’s disclosure and public-comment requirements (7:40); and the important distinction between pre-complaint consent decrees governed by the Tunney Act and settlements reached after litigation has begun and testimony has been taken (11:32).

They then trace the evolution of judicial review under the Act, including the AT&T and Microsoft cases, the emergence of highly deferential review in the D.C. Circuit, and Congress’s 2004 amendments aimed at strengthening meaningful judicial scrutiny (19:21). Bush explains why, in his view, courts have continued to treat many Tunney Act proceedings too deferentially notwithstanding those amendments.

The conversation also turns to recent settlements that have renewed attention on the Tunney Act. Stutz and Bush examine the DOJ settlement of the HPE–Juniper merger challenge, the discovery ordered by the district court into the settlement process, concerns about political influence and remedies unrelated to competitive harm, and the court’s ultimate decision to enter the decree (25:47). They also discuss the developing Tunney Act proceeding involving DOJ’s settlement with Live Nation and the broader question whether courts should scrutinize not only the substance of antitrust settlements but also the integrity of the process by which they were reached.

Finally, Stutz and Bush consider possible reforms, including proposals to extend Tunney Act-style review to Federal Trade Commission settlements and to clarify the respective roles of prosecutorial discretion and judicial review in evaluating government antitrust settlements (37:34).

GUEST:

Darren Bush, Professor of Law and Bobby Wayne Young Chair on Consumer Law, University of Houston Law Center

HOST:

Randy Stutz, President, American Antitrust Institute

LINKS:

John J. Flynn & Darren Bush, The Misuse and Abuse of the Tunney Act: The Adverse Consequences of the “Microsoft Fallacies”

Darren Bush, The Death of the Tunney Act at the Hands of an Activist D.C. Circuit

Darren Bush, The Fatally Flawed HPE-Juniper Decision

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AAI Urges District Court to Reject Narrow Reading of the Tunney Act and Investigate Public Reports Suggesting a Side Deal in the Live Nation-Ticketmaster Settlement

On September 4, 2026, AAI filed public comments in United States v. Live Nation Entertainment, Inc., No. 1:24-cv-03973 (S.D.N.Y. filed May 24, 2024), urging the court to apply the correct standard of review under the Antitrust Procedures and Penalties Act (the “Tunney Act”) before determining whether the Department of Justice’s proposed settlement of its monopolization case against Live Nation and Ticketmaster is “within the reaches of the public interest” under the Act.

AAI’s comments argue that a settlement compromised by an undisclosed side deal cannot be within the reaches of the public interest as a matter of law, and that numerous credible reports raise questions about whether that is what happened here. Those reports suggest DOJ may have accepted materially less relief than its complaint said was “necessary”—including forgoing the divestiture of Ticketmaster it had called for “at minimum”—in exchange for Live Nation’s help improving bookings at the Kennedy Center, following a lobbying campaign that reportedly reached the Oval Office and led the government’s own trial team and state co-plaintiffs to be cut out of the negotiations. Thirty-four states declined to join the federal settlement, proceeded to trial on the same evidence, and won a unanimous verdict awarding the highest per-ticket damages figure their expert had calculated, undercutting any suggestion that DOJ settled for less than the minimum necessary divestiture because its litigation position had weakened.

AAI’s comments trace the Tunney Act’s history to a Nixon administration scandal in 1971 that also involved a suspected side deal reached in settling an antitrust case, which prompted Congress to write extensive public-notice, transparency, and lobbying-disclosure requirements into the settlement-review process. That history, AAI argues, forecloses the position DOJ recently pressed in the Tunney Act proceeding concerning its settlement with Hewlett Packard Enterprises: that judicial review under the Act cannot reach the government’s motivations for settling at all. AAI’s comments show that argument to be squarely at odds with both the statute’s text and its legislative history, and they urge the court to conduct the “meaningful review” of DOJ’s settlement motivations that the Tunney Act was designed to make possible, and which is meant to protect the public interest in competitive markets by assuring public confidence in the consent decree process.

Read AAIs comments here.

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AAI Files Comments Asking FTC to Fill in Blanks in its Explanation of Caremark PBM Settlement in Insulin Pricing Case

The American Antitrust Institute (“AAI”) filed public comments with the Federal Trade Commission (“FTC”) on September 4, 2026, on the agency’s proposed settlement with Caremark Rx, L.L.C. and Zinc Health Services, LLC.

Caremark is the second of the three largest pharmacy benefit managers (“PBMs”) to settle in the FTC’s insulin pricing case. The comments follow AAI’s March 2026 comments on the proposed Express Scripts order in the same docket. AAI again applauds the FTC for pursuing PBMs’ anticompetitive conduct under Section 5 of the FTC Act but notes that the central flaw AAI identified in March remains under the new settlement.

As in the Express Scripts order, the Caremark order’s core prohibitions reach only Caremark’s “Standard Offering,” and the order permits a plan sponsor and Caremark to negotiate terms that differ from it. That structure ignores that a plan sponsor may find it more profitable to split the gains from the prohibited practices with the PBM than to pass them to the patients who bear the costs. The settlement’s effectiveness thus continues to rest on the judgment of entities whose incentives the Commission has not addressed. Moreover, a complete public record is lacking. On that score, the FTC’s Analysis of Agreement Containing Consent Order to Aid Public Comment falls short in three respects.

First, the settlement quietly releases an FTC investigation of Aetna Inc. that the public has never been told about. Aetna, the insurance affiliate that sits alongside Caremark under CVS Health, is not a respondent in the insulin pricing case, is not charged in the complaint, and did not sign the agreement. Yet its fully insured health plans carry obligations under the order, and the Consent Agreement releases all claims arising from a Commission investigation of Aetna that appears to be related to this docket but is unexplained in any public document. Nothing on the record says what conduct that investigation concerned, what the evidence showed, or why it is being resolved now.

Second, the Consent Agreement puts limits on the FTC’s ability to address CVS Health’s post-settlement conduct in future reports from the agency’s own 6(b) study of PBM practices. The 6(b) study is among the principal public sources of information about the PBM industry, and the Analysis does not mention this commitment at all.

Third, the Analysis describes the order’s ban on rebate guarantees more broadly than the order imposes, omitting without explanation a proviso that preserves Caremark’s TrueCost program and per-member-per-month net cost guarantees.

AAI takes no position on whether the Commission should have agreed to any of these terms, because the public record contains too little to permit that judgment, and that is the point. The concern is sharpened by the settlement’s posture: the Commission voted 1-0-1 to accept it, with Commissioner Meador recused, leaving the comment record as the only remaining input before the order becomes final. AAI asks the Commission, as it has when so warranted in the past, to publish a supplemental Analysis addressing each of these matters and to reopen the comment period before finalizing the order. AAI also renews the request it made in March that the Commission close the contracting-around route by clarifying that no plan sponsor may negotiate around the order’s core patient protections.

AAI’s public comments were written by AAI Vice President & Director of Legal Advocacy Kathleen Bradish.

Read the comments: AAI’s Comments on the Proposed Settlement with Caremark Rx, L.L.C. and Zinc Health Services, LLC. 

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The FTC After Trump v. Slaughter Conference: Rapporteur’s Report

On August 3, 2026, the American Antitrust Institute (AAI) and the Competition Law Center at the George Washington University Law School hosted The FTC After Trump v. Slaughter. This conference brought together former Commissioners, academics, former agency officials, and practitioners to evaluate how Congress, the Commission, and the courts can preserve transparency, accountability, institutional integrity, and effective competition enforcement while respecting the Supreme Court’s decision. Drawing on recent scholarship and reform proposals, the program explored both administrative reforms that could be implemented immediately and legislative reforms that may be necessary to ensure the FTC remains an expert, trusted, and effective competition agency.

Read the full report: The FTC After Trump v. Slaughter: Rapporteur’s Report

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AAI Urges Fourth Circuit to Reject Heightened Pleading Requirements and Expansion of Noerr Immunity in Pharmaceutical Monopolization Case (CareFirst v. Amgen)

The American Antitrust Institute (AAI) filed an amicus brief before the U.S. Court of Appeals for the Fourth Circuit in CareFirst of Maryland, Inc. v. Amgen Inc. (No. 26-10394), urging affirmance of the district court’s denial of Amgen’s motion to dismiss plaintiff purchasers’ Section 2 monopolization case involving the blockbuster drug Enbrel.

According to CareFirst’s complaint, Amgen—which held a patent over Enbrel that was set to expire in 2012—entered into an agreement with Roche under which it acquired an exclusive license to Roche’s then-pending patent application for etanercept, the active ingredient in Enbrel. CareFirst alleged that the agreement prevented Roche and other potential competitors from entering the market for etanercept, extending Amgen’s monopoly over the drug beyond the terms of its lawful patent and causing CareFirst and other purchasers to pay higher prices for the drug.

The district court denied Amgen’s motion to dismiss after finding that CareFirst had suffered an antitrust injury and that Amgen was not immunized under the Noerr-Pennington doctrine. On appeal, Amgen argues that the alleged overcharges were not caused by the licensing agreement, but by subsequent court orders enforcing its patent rights, and that its agreement with Roche cannot give rise to antitrust liability because it is protected under Noerr-Pennington or otherwise immune from antitrust scrutiny.

In its brief, AAI argues that Amgen’s causation arguments would improperly impose a heightened pleading requirement on antitrust plaintiffs. Like other civil plaintiffs, antitrust plaintiffs need only plausibly allege causation at the motion-to-dismiss stage. CareFirst therefore need not disprove Amgen’s competing theory that subsequent patent-enforcement litigation, rather than the challenged licensing agreement, caused its injuries. It only need plausibly allege that the licensing agreement was a material cause of its overpayments. AAI also argues that Amgen incorrectly conflates causation on the merits with the antitrust-injury element of antitrust standing. CareFirst alleges that Amgen’s exclusive agreement excluded potential competitors, reduced competition, and contributed to higher prices. Those allegations plausibly describe an injury stemming from the competition-reducing effect of the challenged conduct and therefore satisfy the antitrust-injury requirement.

AAI also urges the Fourth Circuit to reject Amgen’s proposed expansion of Noerr-Pennington immunity and its argument that the acquisition of a pending patent application cannot give rise to antitrust liability. Although Noerr protects efforts to petition the government, AAI argues that Amgen’s acquisition of exclusive rights to Roche’s pending patent application was a commercial transaction, not petitioning activity. The fact that Amgen later sought and enforced patent rights does not immunize the antecedent commercial agreement from antitrust scrutiny. Extending Noerr in that fashion would substantially expand an implied antitrust immunity that the Supreme Court has repeatedly instructed courts to construe narrowly.

AAI also addresses Amgen’s argument that exempting the acquisition of pending patent applications from antitrust liability is necessary to protect innovation, explaining that antitrust law and patent law both serve to promote innovation and that exempting such acquisitions from antitrust scrutiny could serve to thwart innovation by incentivizing drugmakers to invest in exclusive licenses rather than in research and development of new drugs.

The brief was written by AAI Senior Counsel David O. Fisher with assistance from AAI President Randy Stutz, AAI Senior Counsel Mark S. Hegedus, and former AAI intern Addison Wagner.

Read the brief: CareFirst v. Amgen