How Should Antitrust Tackle Acquisitions of Nascent Competitors? A Conversation With 2020 Jerry S. Cohen Award Winner for Antitrust Scholarship, Scott Hemphill

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Public Enforcement , Mergers , Competition Policy
In this episode, Diana Moss sits down with Scott Hemphill, the Moses H. Grossman Professor of Law at the New York University School of Law, to chat about his award-winning article: Nascent Competitors (Vol. 168 (No. 7), Penn. L. Review, 2020). Hemphill co-authored the article with Timothy Wu, currently serving as Special Assistant to President Biden for Technology and Competition Policy at the National Economic Council. The article highlights major issues and debate around how antitrust enforcers and the courts go about evaluating acquisitions of nascent competitors that could violate Section 7 of the Clayton Act. Nascent competitors are firms whose prospective innovation is a “threat” to firms in a market. This threat is neutralized if a nascent rival is acquired, sometimes with serious implications for competition and consumers. Attention to acquisitions of nascent competitors has exploded across a number of sectors, including digital technology, fintech, healthcare, digital farming, and others. For business models that are driven by “growth by acquisition,” revisiting antitrust enforcement and competition policy around nascent rivals is particularly timely and important.

 

Antitrust scholarship that is considered and selected for the Jerry S. Cohen Award reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.

MODERATOR:

Diana Moss, President, American Antitrust Institute

GUEST:

Scott Hemphill is the Moses H. Grossman Professor of Law at NYU School of Law and co-director of the Engelberg Center on Innovation Law and Policy. He teaches and writes about antitrust and intellectual property. His scholarship ranges broadly, from drug patents to digital platforms to the use of trademark law to thwart competition. His most recent work examines the anticompetitive acquisition of startups by dominant firms in the technology sector and probes how institutional investors might weaken competition among their portfolio companies.

Hemphill’s scholarship on tactics to delay the marketing of inexpensive generic drugs has been widely cited by the US Supreme Court and other courts. His writing has appeared in leading law reviews and peer-reviewed journals of economics, science, and law, and he has testified before the US Congress about mergers and proposals to incentivize new drug development, among other matters. Major media outlets have frequently interviewed him on antitrust and IP-related topics.

Hemphill received a PhD in economics and a JD from Stanford, where he was a Nathan Abbott Scholar, graduating first in his law school class. He also holds an AB from Harvard and an MSc in economics from the London School of Economics, where he studied as a Fulbright Scholar. Hemphill clerked for Judge Richard Posner and Supreme Court Justice Antonin Scalia. On public service leave from academia, he served as antitrust bureau chief for the New York Attorney General. Hemphill joined NYU from Columbia University, where he was a professor of law.

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