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AAI Commentary Summarizes Key Findings and Takeaways from Battleground Polling of Voter Attitudes Toward Aggressive Antitrust Enforcement

Empirical Data Show Voters in Battleground States Overwhelmingly Support Aggressive Antitrust Enforcement

New survey evidence shows that the voters who will decide the next presidential election care a lot about antitrust and competition. Voters across the political spectrum are deeply concerned about the deleterious effects of monopoly on American society. They are also deeply concerned about cartels and anticompetitive mergers, and they strongly support vigorous government and private enforcement to prevent them and redress injuries. In short, voters strongly support an aggressive commitment to all aspects of the antitrust mission.

The Biden Administration initiated a substantial recalibration of U.S. antitrust and competition policy. Its more muscular approach is evident in the federal antitrust agencies’ more aggressive enforcement policies, case selection, guidance documents, and rhetorical shifts, which have been bolstered by the president’s commitment to using the whole of the federal government to support the antitrust mission.[1] But history teaches that durable and transformative change will require more than one presidential term.[2]

The next presidential election therefore could decide the fate of U.S. antitrust and competition policy. Although speculation continues over whether Kamala Harris, if elected, would maintain current levels of enforcement vigor,[3] the 2024 Democratic Party Platform touts the current administration’s “historic steps to boost competition across our economy” and commits the party to maintaining aggressive antitrust enforcement.[4] By contrast, the 2024 Republican Party Platform does not mention the word “antitrust,” and its scant references to competition focus primarily on foreign rather than domestic policy.[5]

Mindful of what may be at stake, AAI set out to study the importance of aggressive antitrust enforcement to the American voters who will decide the 2024 presidential election. Partnering with the Committee to Support the Antitrust Laws (COSAL) and Lake Research Partners, a leading, highly experienced progressive national public opinion research firm, we conducted a survey in the eight major battleground states—Arizona, Georgia, Michigan, Nevada, North Carolina, Ohio, Pennsylvania, and Wisconsin—to determine voters’ attitudes toward aggressive antitrust enforcement.[6] What we discovered may surprise the antitrust community—particularly the lawyers and the economists who practiced antitrust law during the decades it was thought to be a “faded passion” of the American electorate.[7]

We found deep concerns about what antitrust lawyers would refer to as market power. Battleground voters strongly support antitrust enforcement to combat the anticompetitive conduct of economically powerful firms. They are concerned about a loss of competition due to anticompetitive mergers, collusion, and monopolization, and they strongly believe in the benefits of government and private lawsuits to restore competition, compensate victims, and deter anticompetitive behavior. Moreover, these views transcend personal and political divides, and they influence how people will vote.

The data suggest politicians, regardless of party affiliation, would be wise to embrace a strong commitment to aggressive enforcement of the antitrust laws. From AAI’s perspective, the following findings and implications from the polling results[8] were especially notable:

  1. Battleground voters—including Democrats, independents, and Republicans—are very concerned about the power and influence of large, monopolistic firms.
    • Seventy-three percent of voters have an unfavorable view (58% very unfavorable) of “corporate monopolies,” including 80% of Democrats, 73% of independents, and 68% of Republicans. [Q4.b. at 2]
    • Seventy-four percent of voters agree (50% strongly agree) with the statement that “corporate monopolies are anticompetitive,” including 82% of Democrats, 77% of independents, and 64% of Republicans. [Q14.a. at 9]
    • Seventy-nine percent of voters agree (51% strongly agree) with the statement that “corporate monopolies hurt customers,” including 92% of Democrats, 82% of independents, and 66% of Republicans. [Q14.c. at 9]
    • Seventy-two percent of voters agree (44% strongly agree) with the statement that “corporate monopolies hurt our economy,” including 84% of Democrats, 71% of independents, and 61% of Republicans. [Q14.d. at 9]
    • Sixty-nine percent of voters hold favorable views (44% very favorable) of “laws against corporate monopolies,” including 85% of Democrats, 71% of independents, and 55% of Republicans. [Q4.g. at 4]
  1. But it is not just abstract discomfort with corporate size or monopoly that concerns voters. Voters across the political spectrum are concerned about anticompetitive conduct. They are very concerned about collusion, exclusion, and anticompetitive mergers by firms with economic power and the ensuing effects on competition, consumers, and other businesses.
    • Sixty-six percent of voters favor (49% strongly favor) “the government expanding prosecutions against wealthy corporations that engage in anticompetitive activities,” including 84% of Democrats, 66% of independents, and 52% or Republicans. [Q10 at 6]
    • Sixty-six percent of voters agree (37% strongly agree) with the statement, “Corporate monopolies spend more time and resources to prevent competition than they do innovating and improving their products and services,” including 85% of Democrats, 61% of independents, and 50% of Republicans. [Q14.f. at 10]
    • Sixty percent of voters hold unfavorable views (28% very unfavorable) of “large corporate mergers,” including 62% of Democrats, 55% of independents, and 64% of Republicans. [Q4.i at 4]
    • Seventy-two percent of voters favor (52% strongly favor) “the government requiring economically powerful corporations to stop driving out the competition,” including 77% of Democrats, 60% of independents, and 51% of Republicans. [Q12 at 7]
    • Sixty-three percent of voters agree (39% strongly agree) with the statement, “Higher prices on goods and services are a result of wealthy corporations agreeing with each other to fix prices,” including 81% of Democrats, 57% of independents, and 44% of Republicans. [Q14.h. at 10]
    • Seventy-one percent of voters agree (40% strongly agree) with the statement, “Higher prices on goods and services are a result of wealthy corporations driving out their competition and merging with their competitors,” including 88% of Democrats, 72% of independents, and 51% of Republicans. [Q14.i. at 11]
  1. Battleground voters strongly support government antitrust lawsuits to protect competition and prevent anticompetitive conduct by firms with economic power
    • Sixty-seven percent of voters agree (49% strongly agree) with the statement, “One of the biggest problems facing America today is that a handful of corporations have too much power and government is doing too little to hold them accountable,” including 81% of Democrats, 67% of independents, and 54% of Republicans. [Q7. at 5]
    • Sixty-five percent of voters hold favorable views (29% “very favorable”) of “government lawsuits against corporate monopolies,” including 87% of Democrats, 64% of independents, and 44% of Republicans. [Q4.h. at 4]
    • Lake Research Partners presented survey recipients with debate statements for and against increased government antitrust enforcement. One side’s statement opposes increased enforcement on grounds that it wrongly punishes success, leads to higher prices, and forces companies to send jobs overseas. The other side’s statement supports increased enforcement based on concerns about powerful firms driving out competition, lowering wages, and hoarding wealth. The pro-enforcement message overwhelmingly wins the debate. Sixty-three percent of voters support the pro-enforcement side (46% strongly), while only 24% support the anti-enforcement side (13% strongly). [Q15. at 16]
  1. A strong majority of battleground voters would be more likely to vote for a candidate who supported tougher government enforcement of antitrust laws, regardless of whether the enforcement emphasis is on monopoly specifically or on all the means by which firms gain or exercise economic power.
    • In A/B testing to determine whether voters prioritize monopoly over other forms of economic power, such as cartel formation or merger, the results suggest voters care substantially about both—so much so that it can influence their vote. Fifty-seven percent of voters say they are more likely (34% much more likely) to vote for a candidate who supports tougher enforcement against “corporate monopolies,” while 54% say they are more likely (37% much more likely) to vote for a candidate who supports tougher enforcement against “economically powerful corporations.” [Q5., Q6. at 5]
    • Seventy-six percent of voters agree (59% strongly agree) with the statement, “Today, a handful of enormous, monopoly corporations wield a massive amount of influence over the quality of our lives with almost no accountability or transparency to the public,” including 84% of Democrats, 79% of independents, and 69% of Republicans. When the term “economically powerful corporations” is substituted for “corporate monopolies,” the numbers are very similar.  Seventy-one percent of voters agree (56% strongly agree), including 80% of Democrats, 73% of independents, and 59% of Republicans. [Q8. at 6]
  1. It is not just government antitrust enforcement that enjoys high levels of support. Private lawsuits to recover damages on behalf of customers and small business injured by antitrust violations are enormously popular with voters.
    • Seventy-eight percent of voters favor (59% strongly favor) “allowing small businesses and customers to bring lawsuits for damages against wealthy corporations that engage in anticompetitive activities.” [Q11. at 7]
    • Sixty-six percent of voters hold favorable views (38% very favorable) of “class action lawsuits against corporate monopolies,” including 89% of Democrats, 65% of independents, and 47% of Republicans. [Q4.e. at 3]
  1. Finally, these views transcend political and personal divides.
    • In every one of the aforementioned survey results, a majority of Democrats, ranging from 62-92%, and a majority of independents, ranging from 55-82%, all agree that antitrust enforcement should be vigorous. In all but four of the aforementioned results, a majority of Republicans, ranging from 51-66%, also support vigorous enforcement. And even in those four instances where a majority of Republicans did not agree, as many as half, or very large minorities (50%, 47%, 44% and 44%), agreed with the Democrats and independents as well.

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[1] Exec. Order No. 14036 on Promoting Competition in the American Economy,

86 Fed. Reg. 36,987 (July 9, 2021).

[2] The last major paradigm shift in antitrust law, which began in the late 1970s and was implemented in earnest from 1980-1992, spanned three consecutive Republican presidential terms and was supported by a like-minded Supreme Court and favorable congressional climate. See Am. Antitrust Inst., Antitrust Reform from Within the Federal Antitrust Agencies: Navigating Institutional Dynamics in Implementing Policy Shifts, Ruled By Reason Podcast (Jan 3, 2023), https://www.antitrustinstitute.org/work-products/type/podcasts/.

[3] See, e.g., Josh Sisco, Insiders look for signals that Kamala Harris would keep up one of Biden’s biggest fights, Politico (Oct. 1, 2024), available at https://www.politico.com/news/2024/10/01/harris-biden-antitrust-fight-00181778.

[4] See ’24 Democratic Party Platform 18, 22–23, 62, 72–74 (2024), available at https://democrats.org/wp-content/uploads/2024/08/FINAL-MASTER-PLATFORM.pdf.

[5] See 2024 GOP Platform: Make America Great Again! 11 (2024), available at https://s3.documentcloud.org/documents/24795052/2024-gop-platform-july-7-final.pdf. (“Republicans offer a robust plan to protect American Workers, Farmers, and Industries from unfair Foreign Competition”; “By protecting American Workers from unfair Foreign Competition and unleashing American Energy, Republicans will restore American Manufacturing, creating Jobs, Wealth, and Investment.”); but see id. at 10.

[6] Lake Research Partners, Antitrust Fall 2024 Survey (Oct. 10–14, 2024). The complete survey is attached as an addendum to this commentary.

[7] Richard Hofstadter, What Happened to the Antitrust Movement?, in The Paranoid Style in American Politics and Other Essays 188 (1st ed. 1965).

[8] To cross-reference each bullet-point with the actual survey results, use the question number and page number set off in brackets at the end of the bullet point. 

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AAI Urges Ninth Circuit to Overturn Dismissal of Suit Alleging Algorithmic Price-Fixing on the Las Vegas Strip (Gibson v. Cendyn Group)

AAI has filed an amicus brief in Gibson et al. v. Cendyn Group, Inc., et al., urging the Ninth Circuit to reverse the dismissal of a class action suit against six hotel companies and a revenue-management software company (Rainmaker and its parent company Cendyn) for colluding to raise the prices of hotels on the Las Vegas strip.

The suit alleges that the Las Vegas hotels knowingly shared commercially sensitive information with Cendyn’s pricing algorithm, which used that information to make pricing and vacancy recommendations, and that the hotels’ near-universal acceptance of those recommendations raised the prices of hotel rooms on the strip above competitive levels. The district court dismissed the complaint for failing to satisfy the concerted-action requirement under Section 1 of the Sherman Act, emphasizing that the hotels contracted with Cendyn at different times, did not share the information directly with each other, and did not commit to accepting the algorithm’s recommendations in all cases.

In its brief, AAI argues that the district court’s formalistic analysis relied on plus factors that courts have traditionally used to identify human collusion, but which are not helpful in identifying algorithmic collusion. Such an approach effectively immunizes algorithmic price-fixing and threatens substantial consumer harm as AI becomes an increasingly common feature of our economy.

AAI’s brief explains that software powered by AI can help firms monitor and predict each other’s behavior in ways that were not previously possible. Rivals who contract with the same software provider can collude tacitly on price and output without communicating directly or making express agreements with each other. The brief argues that the antitrust laws were designed to be flexible enough to distinguish between procompetitive and anticompetitive uses of new technologies like AI, and long-standing Supreme Court precedent requires courts to focus on competitive realities rather than formalistic distinctions.

The brief was written by AAI Senior Counsel David Fisher and Berger Montague Associate Matt Summers, with assistance from AAI President Randy Stutz and AAI Board Member and Berger Montague Shareholder Josh Davis.

Read the full brief here: AAI Amicus Brief in Gibson v. Cendyn Group

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AAI Files Comments on USDA’s Proposed Rulemaking on Fair and Competitive Livestock and Poultry Markets

The American Antitrust Institute (AAI) filed public comments in support of the United States Department of Agriculture’s (USDA) Proposed Rulemaking on Fair and Competitive Livestock and Poultry Markets (Proposed Rule). The Proposed Rule defines “unfair practices” under § 202(a) of the Packers & Stockyards Act (PSA), which applies to livestock, meat, and poultry markets, as both conduct that harms the market and conduct that harms individual market participants.

AAI’s comments explain how competition laws and fairness laws are complementary tools for ensuring that markets work the way they should. In promulgating the PSA, Congress used both tools to ameliorate longstanding market failures in livestock and poultry markets. By defining “unfair” practices to include both conduct that harms the market and conduct that harms individual market participants, the Proposed Rule complies with the plain meaning of the PSA, its legislative history, and Supreme Court precedent, all of which support a finding that § 202(a) is concerned with market abuses in addition to and apart from competitive injury. The comments also examine court opinions which have imposed a competitive-injury requirement in § 202(a) cases, explaining how they conflict with Supreme Court precedent and core principles of statutory interpretation.

The comments further suggest that the agency draw from lessons learned in antitrust enforcement by providing additional guidance on the use of business justifications in § 202 cases. USDA should specify that business justifications cannot excuse per se offenses or deceptive practices. To the extent efficiencies may justify other types of unfair conduct, USDA should specify that they are a defense on which defendants carry a burden of persuasion and that they must be specific, verifiable, and cognizable. USDA should also take steps to insulate judges from engaging in multi-market balancing.

The comments were written by AAI President Randy Stutz and AAI Senior Counsel David O. Fisher.

Read the comments here: AAI Comments on USDA’s Proposed Rulemaking on Fair and Competitive Livestock and Poultry Markets

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How the Agri-Stats Case Can Help Shape Treatment of Anticompetitive Information Exchanges: A Discussion Between Emily Bridges of the Food and Agriculture Impact Project and Professor Peter Carstensen

On this episode of Ruled by Reason, Emily Bridges of the Food and Agriculture Impact Project has a wide-ranging discussion with antitrust scholar Peter Carstensen about the role of information exchange in restricting competition in agricultural markets, focusing on how the DOJ’s case against Agri-Stats addresses that threat.

After covering the oligopolistic nature of many agricultural markets (2:45), the two do a deep dive on why information exchange can be so harmful to competition (11:04). Professor Carstensen explains how the law on information exchange has evolved and how that history has led to unfortunate ambiguity about the applicable standard (17:10).

Professor Carstensen then explains why information exchange has been a particular problem in agricultural markets. He describes how recent cases in this area, including both private actions and the DOJ’s case against the information aggregator, Agri-Stats, can play an important role in clarifying and strengthening enforcement against unjustified information exchanges (27:20). The discussion concludes with some thoughts about what we can expect from current trends in litigation over illegal information exchanges (48:50).

GUESTS

Emily Bridges is a Research Attorney for the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law, working with the Food and Agriculture Impact Project. Emily received a JD and an LL.M. in Agricultural and Food Law from the University of Arkansas School of Law. The Food and Agriculture Impact Project works with faculty, students, organizations and other educational institutions to provide policy and legal research, analysis and education, supporting the farm and food community with educational resources.

Peter Carstensen is Professor Emeritus at the University of Wisconsin Law School and a Senior Fellow and Advisory Board Member at AAI. He previously served in the Antitrust Division at the Department of Justice. Professor Carstensen received the 2024 Alfred E. Kahn Award for Antitrust Achievement, presented by AAI in recognition of his outstanding contributions to the field.

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Competition, Fairness, and Regulation in Food & Agriculture: A Conversation with Andy Green, Senior Advisor for Fair and Competitive Markets at the U.S. Department of Agriculture

In this episode of Ruled by Reason, AAI President Randy Stutz sits down with Andy Green, the Senior Advisor for Fair and Competitive Markets at the U.S. Department of Agriculture.

The two discuss how Green found his way to the USDA after beginning his career as a corporate securities lawyer and developing policy expertise in the financial sector (2:46), the new role created for a competition advisor at USDA (9:25), USDA’s tools for implementing President Biden’s Executive Order on Promoting Competition (11:02), USDA’s coordination with the USPTO to strengthen patent quality and promote competition in seeds markets (29:25), USDA’s coordination with the Antitrust Division of the DOJ to enforce the unique standards of the Packers & Stockyards Act (35:57), the interplay between Sherman Act claims involving collusive price setting through intermediaries and the USDA’s pricing transparency rulemakings (41:48), and issues in food and agriculture that the next president of the United States will inherit (44:28).

GUESTS

Andy Green, Senior Advisor for Fair and Competitive Markets, USDA

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How Exactly Does Common Ownership Harm Competition? A Conversation with Florian Ederer, Jerry S. Cohen Award Winner for Antitrust Scholarship

In this episode of Ruled by Reason, guest host Leslie Marx, the Robert A. Bandeen Distinguished Professor of Economics at Duke University’s Fuqua School of Business, sits down with Professor Florian Ederer to discuss his award-winning article, Common Ownership, Competition, and Top Management Incentives, 131 J. Pol. Econ 1294 (2023).

Professor Ederer is the Allen and Kelli Questrom Professor in Markets, Public Policy & Law at Boston University’s Questrom School of Business. His article, co-authored with Professors Miguel Antón and Mireia Giné of the IESE Business School and Martin Schmalz of the University of Oxford Saïd Business School, won the 22nd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 22 at AAI’s 2024 Annual Policy Conference, New Thinking on the Antitrust Treatment of Collective Action: Organized Labor, Countervailing Power, and Algorithmic Price Setting. The article helps explain the existing empirical evidence on the anticompetitive effects of common ownership and meaningfully advances our understanding of the underlying theory behind the effects.

Among other things, Professor Marx and Professor Ederer discuss the theoretical and empirical background behind the theory of anticompetitive effects from common ownership (5:06), the mechanism by which common ownership actually leads to anticompetitive effects, notwithstanding that top managers and their delegees (rather than investors) control firms (12:13), and the implications of these findings for enforcers, policymakers, and future research (26:09).

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.

GUESTS:

Florian Ederer, Allen and Kelli Questrom Professor in Markets, Public Policy & Law at Boston University’s Questrom School of Business

Leslie Marx, Robert A. Bandeen Professor of Economics at Duke University’s Fuqua School of Business

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AAI Helps Deliver Important Fourth Circuit Victory on Monopolization Standards for Refusal-to-Deal and Course-of-Conduct Claims (Duke Energy v. NTE Carolinas)

AAI has helped plaintiffs win a resounding victory on the liability standards courts apply when plaintiffs allege anticompetitive refusals to deal and a course of conduct that has cumulative anticompetitive effects.

On August 5, 2024, in Duke Energy v. NTE Carolinas, the Fourth Circuit reversed a district court’s grant of summary judgment on NTE Carolinas’ Section 2 claims. NTE Carolinas had argued that Duke Energy engaged in a complex multi-pronged “combat strategy” meant to exclude it as a new, highly efficient competitor in energy generation. AAI believed NTE’s claims presented genuine issues for trial and filed an amicus brief urging reversal.

The Fourth Circuit agreed with AAI, embracing arguments in AAI’s brief. It held that the district court made critical errors in its Section 2 analysis. First, the district court failed to consider the cumulative anticompetitive effects of Duke Energy’s actions to hinder the development of NTE’s competing electricity plant. Second, it found the district court applied an incorrect and overly stringent standard for evaluating NTE’s refusal to deal claim.

On the first issue, the Fourth Circuit agreed with AAI and plaintiffs that the district court incorrectly required each of Duke Energy’s actions to individually meet Section 2 liability requirements, ignoring the cumulative impact of these actions as part of a coordinated strategy to block NTE’s project. As the Fourth Circuit described in detail, this approach contradicts established Supreme Court precedent, which emphasizes the combined effects of anticompetitive conduct. The court rejected any notion of “court-made subcategories” of anticompetitive conduct and instead affirmed that it is “foundational” to Section 2 caselaw that the “anticompetitive conduct must be considered as a whole.” The opinion observes that the alleged acts must not be considered in isolation but “together as the parts of a single plan” and emphasizes that the “plan may make the parts unlawful.”

On the refusal to deal claim, the Fourth Circuit found, consistent with AAI’s position, that the district court misapplied the Supreme Court’s rulings in Trinko and Aspen Skiing by demanding that NTE demonstrate a voluntary prior course of conduct and refusal to sell at a retail price. It also rejected a “voluntariness” requirement as giving regulated industries too much insulation from antitrust enforcement. Trinko did not “adopt a rule that unlawful refusals to deal were impossible in regulated markets,” the appellate court reasoned, but rather affirmed that regulatory oversight is one “factor” in the antitrust analysis.

The AAI brief was written by AAI Vice President of Legal Advocacy Kathleen Bradish, with assistance from former AAI Research Fellow Mathew Simkovits.

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AAI Urges Ninth Circuit to Overturn Summary Judgment Ending Dentists’ Refusal-to-Deal Claim Against Invisalign Manufacturer (Simon & Simon v. Align)

AAI has filed an amicus brief in Simon & Simon, PC, et al. v. Align Technology, Inc., urging the Ninth Circuit to reverse the lower court’s grant of summary judgment in favor of defendant Align, the maker of Invisalign, on a refusal-to-deal claim.

In Simon & Simon, the plaintiffs are owners of dental practices who allege that Align violated Section 2 by unlawfully terminating an interoperability agreement with 3Shape, its competitor in the market for the digital scanners used to manufacture aligners. After initially denying Align’s motion to dismiss, Judge Vince Chhabria of the Northern District of California granted summary judgment for Align. Although plaintiffs established that Align’s refusal to deal with 3 Shape caused substantial anticompetitive effect, the court accepted Align’s claimed procompetitive justification.

Under the rule of reason, once a plaintiff establishes at step one that a defendant’s refusal to deal has substantial anticompetitive effects, the burden shifts back to the defendant to show a nonpretextual, procompetitive rationale for its refusal. Here, Align argued that it terminated the interoperability agreement with 3Shape to undermine 3Shape’s potential defenses in a separate patent litigation, in which Align accused 3Shape of patent infringement. Plaintiffs presented evidence that this justification was pretextual, including testimony from a patent law expert that terminating interoperability would have had no effect on 3Shape’s defenses in the patent litigation. Nonetheless, the Court considered Align’s justification to be “presumptively valid” because it was related to Align’s “desire to protect and enforce patent rights.”

AAI’s amicus brief argues that the district court misapplied the rule of reason. It failed to assess whether Align’s claimed justification was in fact procompetitive and to balance it against the demonstrated anticompetitive effects. By blindly accepting Align’s justification merely because it was related to patent litigation, the district court effectively adopted the broad “scope of the patent test,” which treats patents like walled gardens completely immune from antitrust scrutiny. The “walled garden” concept was firmly rejected by the Supreme Court in Actavis, which instructed lower courts to forego the “scope of the patent test” in favor of a rule of reason analysis. Had the District Court actually assessed Align’s patent-litigation justification on the facts, AAI argued, it would have found a genuine dispute about the justification’s validity and effects which precludes summary judgment.

AAI also urged the Ninth Circuit to provide much-needed clarity to lower courts on how to address refusals to deal under Section 2. In a trend tracing back to the Supreme Court’s opinion in Trinko, courts’ wariness of an antitrust duty to deal has led them to impose strict evidentiary hurdles that are not reliable proxies for exclusion. Courts also often rely on dicta in Trinko to justify erring on the side of non-intervention. AAI explained that, under standard rule-of-reason analysis, the burden is on defendants to establish that their justification is non-pretextual and procompetitive. When a defendant moves for summary judgment, any disputes about this fact-bound issue must be resolved in the plaintiff’s favor.

AAI also explained how the extreme caution exercised in Trinko does not make sense in cases, such as this one, where the monopolist excludes its rivals in a secondary market into which it has vertically integrated. In Trinko, the Court believed that rivals of monopolist Verizon sought to free ride off Verizon’s telephone network so that they could compete in the local telephone market without building their own network. But requiring Align to make its aligners available through 3Shape’s scanner would not allow any kind of free riding on Align’s technology. Instead, it would increase competition by incentivizing both Align and 3Shape to innovate in better scanners to win over each other’s customers.

The brief was written by AAI Vice President and Director of Legal Advocacy Kathleen Bradish and AAI Senior Counsel David O. Fisher, with assistance from AAI President Randy Stutz and AAI interns Sheridan Phelan and Nick Nguyen.

Read the full brief here: AAI Amicus Brief on Simon & Simon v. Align

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AAI Urges Second Circuit to Overturn Dismissal of Conspiracy Claims Involving Low-Income Patients’ Access to Insulin (Mosaic Health v. Sanofi)

AAI has filed an amicus brief in Mosaic Health, et al v. Sanofi Aventis, et al. urging the Second Circuit to reverse the dismissal of a potential class action against four major insulin manufacturers (Sanofi Aventis, Novo Nordisk, AstraZeneca, and Eli Lilly) for collusion to reduce discounts under the federal 340B drug discount program. The suit alleges that these pharmaceutical companies, disappointed in joint lobbying efforts to narrow the 340B discounts, agreed to use their collective dominance in insulin markets to dramatically restrict their sales through the program, which seeks to provide affordable drugs to low-income patient populations. Such action, the plaintiffs allege, would not have been in their individual interest because of the risk of loss of full-price sales and the risk of exclusion from Medicare and Medicaid.

The AAI brief argues that the district court in this case misapplied the pleading standards described by the Second Circuit and the Supreme Court. By adopting a rigid definition of parallel conduct and discounting some of Plaintiffs’ key factual allegations, the district court misread Twombly and improperly put itself in the role of finder of fact.

AAI highlights the district court’s failure to take into account the steps sophisticated cartel participants will take to hide their illegal conduct, citing historical examples. The AAI brief argues that, uncorrected, such an approach to Section 1 pleading could provide cartelists with a blueprint to avoid private enforcement. On a broader scale, this could mean a significant decline in private enforcement and the loss of its vital deterrent value. In an economy where a wide range of studies suggest cartels are already under-deterred, the harm to consumers would be significant.

The brief was written by AAI Vice President and Director of Legal Advocacy Kathleen Bradish, with assistance from AAI Intern Sheridan Phelan and former AAI Intern Joseph Leader Gordon.

Read the full brief here: AAI Amicus Brief in Mosaic Health v. Sanofi

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International Update: Checking in with ICN’s Cartel Working Group

In this episode of Ruled by Reason, AAI goes international! Enforcers from the U.S., New Zealand, UK and Chile talk with Kathleen Bradish, Vice President and Director of Legal Advocacy, about their agencies’ cross-border work to stop price-fixing cartels. Leah McCoy, Juan Correa, Louise Baner, and Grant Chamberlain, whose agencies are heading up the International Competition Network’s Cartel Working Group, tell us about the important role of the CWG in advancing cross-border enforcement and give us a preview of some of CWG’s exciting new projects. These include initiatives that reflect ongoing, long-term concerns of international enforcers, like improving international cooperation and addressing obstruction. Other projects address emerging challenges like the specter of algorithmic collusion and the effect of complex networks of privacy laws on evidence collection. Our conversation concludes with Chile’s and New Zealand’s perspective on how ICN, and the Cartel Working Group in particular, can aid newer and smaller agencies.

GUESTS:

Leah McCoy is an International Counsel in the Antitrust Division of the US Department of Justice.

Juan Correa is the Head of the Anti-Cartels Division at Chile’s antitrust agency, the Fiscalía Nacional Económica.

Louise Banér is a Director in the Competition Enforcement group at the UK Competition and Markets Authority.

Grant Chamberlain oversees cartel detection and investigation at the New Zealand Commerce Commission.