New York State Bar Association 2023 Annual Meeting
Antitrust Law Section
Antitrust Law Section Annual Meeting Program
Antitrust Trends and Update
Tuesday, January 17, 2023
5:30 p.m. – 7:30 p.m.
Diversity Panel and Networking Event Davis Polk & Wardwell, LLP
Wednesday, January 18, 2023
8:30 a.m. – 5:00 p.m.
New York Hilton Midtown
CLE Program | 8:45 a.m. – 5:00 p.m.
Gramercy West | Second Floor
Section Business Meeting | 12:15 p.m. – 12:35 p.m.
Gramercy West | Second Floor
Lunch On Your Own | 12:35 p.m. – 1:45 p.m.
Executive Committee Meeting | 12:35 p.m. – 1:45 p.m.
Clinton | Second Floor
Young Lawyers’ Networking Happy Hour | 5:15 p.m. – 6:15 p.m.
Clinton | Second Floor
Antitrust Law Section Annual Evening Reception | 6:00 p.m. – 9:00 p.m.
University Club | Main Dining Room
6.5 MCLE Credits
6.5 Credits in Areas of Professional Practice
This program is transitional and is suitable for all attorneys including those newly admitted.
Agenda
8:30 a.m. – 8:45 a.m.
Welcome and Introduction
Mary K. Marks, Esq.
Davis Polk & Wardwell, LLP New York, NY
8:45 a.m. – 10:00 a.m.
Annual Review of Hot Topics and Developments
This year’s annual antitrust developments panel will look back at the key antitrust litigations and investigations of 2022, and will also look forward to anticipated developments in the new year.
Speakers:
Renata B. Hesse, Esq. Sullivan & Cromwell LLP Washington, DC
Noah Joshua Phillips, Esq. Cravath, Swaine & Moore LLP Washington, DC
Moderator:
Elai Katz, Esq.
Cahill Gordon & Reindel LLP New York, NY
1.5 Credits in Areas of Professional Practice
10:00 a.m. – 10:15 a.m.
Comments on Conduct in Emerging Technologies
Speaker:
Hetal J. Doshi, Esq.
Deputy Assistant Attorney General, Antitrust Division, US Department of Justice Washington, DC
10:15 a.m. – 10:25 a.m.
Break
10:25 a.m. – 11:20 a.m.
The Supreme Court in 2022
Antitrust has hit the mainstream, with the political branches and the public writ large keenly interested in its application. To what extent will the Supreme Court pick up the mantle? How, if at all, will the Court’s 6-3 conservative supermajority impact antitrust jurisprudence? A panel of experts will forecast what to expect from the Court on antitrust issues in the coming years.
Speakers:
Keira M. Campbell, Esq.
Chief Antitrust Counsel, American Express New York, NY
Eric Citron, Esq. Goldstein & Russell, P.C. Bethesda, MD
Jeffrey Kessler, Esq. Winston & Strawn LLP New York, NY
Robin van der Meulen, Esq. DiCello Levitt LLC
New York, NY
Moderator:
Benjamin Sirota, Esq. Kobre & Kim LLP New York, NY
1.0 Credit in Areas of Professional Practice
11:20 a.m. – 12:15 p.m.
Recent Developments and Anticipated Trends in No Poach Litigation
An update on no-poach investigations and litigation, including a discussion on recent DOJ prosecutions and the recent class and summary judgment decisions in private litigation involving supplier and franchise no-poach cases. This panel would consider the vertical and horizontal implications of no-poach agreements—including, for example, how the market for labor should be defined, which standard of examination (per se, quick look, or rule of reason) should be applied, and the role of ancillarity in analyzing the alleged conduct.
Speakers:
Andre Geverola, Esq.
Arnold & Porter Kaye Scholer LLP Chicago, Il and Washington, DC
Eric Posner, Esq
University of Chicago Law School Chicago, IL
Daniel Walker, Esq. Berger Montague Washington, DC
Moderator:
Margaret Rogers, Esq. Arnold & Porter
New York, NY
1.0 Credit in Areas of Professional Practice
12:15 p.m. – 12:35 p.m.
Antitrust Law Section Business Meeting
Gramercy West | Second Floor
Speakers:
Elaine Johnston, Esq. Chair, Antitrust Law Section
Lisl Dunlop, Esq.
Chair, Nominating Committee, Antitrust Law Section
12:35 p.m. – 1:45 p.m.
Lunch, on your own
Executive Committee, Clinton Room, Second Floor
12:35 p.m. – 1:45 p.m.
Executive Committee Meeting and Luncheon
Clinton | Second Floor
1:45 p.m. – 2:40 p.m.
Merger Enforcement Changes in 2022 under the Biden Administration
The panel will cover how, if at all, U.S. antitrust agencies have changed their approaches to remedies and willingness to litigate in merger investigations,
pursued arguably new theories of harm, adopted new policies such as close-at-your-own-risk letters and announcing a focus on PE deals, and how these changes have or have not affected businesses considering mergers.
Speakers:
Matthew J. Reilly, Esq Kirkland & Ellis LLP Washington, DC
Joanna Tsai, Esq Charles River Associates Washington, DC
Joshua Tzuker, Esq.
Chief of Staff & Senior Counsel
Antitrust Division, US Department of Justice Washington, DC
Moderator:
Katherine A. Rocco, Esq. Latham & Watkins LLP New York, NY
1.0 Credit in Areas of Professional Practice
2:40 p.m. – 2:50 p.m.
Break
2:50 p.m. – 3:45 p.m.
Antitrust Crimes & Corporate Compliance and Accountability
Deputy Attorney General Lisa Monaco recently gave a speech in New York about prosecuting white collar crime with a heavy emphasis on self-reporting of corporate misconduct. What does this mean for antitrust crimes and what are the implications of this new DOJ policy announcement on corporate compliance programs tailored to antitrust crimes?
The panel will also address (1) the 2022 revisions to the Antitrust Division’s Leniency Program for certain antitrust crimes and highlight what corporate counsel need to know about the revisions and (2) the DOJ’s re-invigorated criminal enforcement of monopolization in violation Section 2 of the Sherman Act. In discussing these recent updates, panelists will touch on cooperation obligations, pros and cons of cooperating in a criminal investigation, and dawn raids/search warrants and other tools available to the DOJ in investigating antitrust and related crimes.
Speakers:
Emma Burnham, Esq.
Acting Director of Criminal Enforcement Antitrust Division, US Department of Justice Washington, DC
Peter D. Bernstein, Esq.
Sr. Managing Counsel, Competition Law, Mastercard New York, NY
Martin d’Halluin, Esq
Deputy General Counsel, News Corp New York, NY
Catherine Stillman, Esq. Baker & McKenzie
New York, NY
Moderator:
Eyitayo “Tee” St. Matthew-Daniel
Paul, Weiss, Riftkind, Wharton & Garrison LLP New York, NY
1.0 Credit in Areas of Professional Practice
3:45 p.m. – 3:55 p.m.
Break
3:55 p.m. – 4:50 p.m.
Food, Equity and Competition: Unpacking Antitrust Issues in the Food Industry
This panel will examine how consolidation in America’s food and agricultural markets has impacted issues of race, income and gender equality. The panel will explore competition issues raised in ongoing high profile antitrust litigations involving the seed, chicken, milk and retail grocery markets as well as mergers and supply chain issues affecting the industry. The panel will be moderated by Antitrust Section Membership Chair, William Reiss, and will include speakers from the government and academia as well as an economist and a practitioner from the defense bar.
Speaker:
Christopher J. Abbott, Esq. Jenner & Block LLP Washington, DC
Ted Davis, Analysis Group Boston, MA
Eleanor M. Fox, Esq.
Walter J. Derenberg Professor of Trade Regulation Emerita, NYU
New York, NY
Chandra Mazumdar, Esq.
Special Counsel for Agriculture, Transportation, Energy & Agriculture Section
Antitrust Division, US Department of Justice Washington, DC
Moderator:
William V. Reiss, Esq Robins Kaplan, LLP New York, NY
1.0 Credit in Areas of Professional Practice
4:50 p.m. – 5:00 p.m.
Concluding Remarks
Mary K. Marks, Esq.
Chair-Elect, Antitrust Section Davis Polk & Wardwell, LLP New York, NY
5:15 p.m. – 6:15 p.m.
Young Lawyers’ Networking Happy Hour
Clinton | Second Floor
6:00 p.m. – 7:00 p.m.
Networking Reception
University Club
7:00 p.m. – 9:00 p.m.
Antitrust Law Section Annual Dinner with
Awards,followed by Dessert Buffet University Club, Main Dining Room Keynote Speaker:
Thomas J. Reid
Chief Legal Officer, Comcast Corporation Philadelphia, PA
Annual Review of Hot Topics and Developments
Kaci Palleschi: Good morning. On behalf of the New York State Bar Association, the Antitrust Law and corporate counsel law section, welcome to today’s program. Today’s program will run from 8:30 till 12:15 with a break for lunch and then we will resume from 1:45 to five o’clock. Please note that you must remain for the duration of the program to receive full MCLA credit for your participation. Your materials for the program can be found online on your learning dashboard. Instructions on how to access your learning dashboard are available in the greetings email you received earlier this week.
On your forms please return the bottom half of the verification form at the conclusion of this morning’s program. You’ll return the top half to us at the end of the day, along with your completed yellow evaluation form. At this time, I’d like to introduce Mary Marks to get us started.
Mary Marks: Thank you Kaci, and thank you all for showing up so bright and early. 8:30 seems earlier now than it did last time we had to meet at 8:30. So usually the morning would start off with Elaine Johnson welcoming you all. She’s the chair until noon today but she is not able to join us so I’m going to just jump in and we’re really excited to be in-person this year. So a great day of programming set for you and lots of networking. We have two cocktail parties and a dinner later. We have great attendance, lots of registrations at near record levels so it’s going to be a great morning, afternoon. So we also this year have been blessed with a great showing of support from our sponsors and I just want to give a call-out to our platinum sponsor with the Analysis Group, BRG, Compass Lexicon and Huntington Bank. Thank them and will also give some recognition at the dinner program. I know some of you were able to attend our diversity event last night. In the past it was an all women’s event so we rebranded it to broaden the audience and we have a really great program. It’s the 13th year of our diversity program and we are really glad we can do that in conjunction with [inaudible 00:07:40]. Thank you to Lisl Dunlop and [inaudible 00:07:44] for putting that together this year. It was a great event.
So I am speaking here today with my co-chair for the event Joy Echer of Footlocker. She is the chair elect for the corporate counsel section. Hopefully today she will be doing once again as she was chair before so she can be chair again. Thank you to the corporate counsel section for sponsoring today’s programming and for helping us out with the attendance and the setup.
So we have a lot of good events starting off with our program moderated by Eli. We were looking at the calendar and it’s Eli’s 17th year of moderating this program. So with that background and I don’t think there needs to be much more introduction for Elai and a review of what’s happened in Antitrust.
Elai Katz: Good morning. Welcome. It’s true I’ve doing this for a long time. I think this is the first year in a long time that we have a [inaudible 00:08:53]. But I know that the world has changed and it’s hard to get yourself up to it [inaudible 00:08:58] and I appreciate everyone coming in. I think it’s really great that we have so many people in-person so I look forward to today’s panel. We have today a superb and exciting panel to discuss the developments from 2022. We will also just be stealing just a little bit from 2023 because we can start on further to my left to your right is Renata Hesse. Renata Hesse is a partner of Sullivan and Cromwell and she co-chaired[inaudible 00:09:36]. She also started off by working with the FCC and too many other important parts of her biography for me to mention. We are very pleased to have her with us today.
We also have Noah Phillips who until fairly recently was one of the FTC commissioners is now a partner at Cravath in the Washington office and also one of the chairs of the [inaudible 00:10:14] trust group and over his long career he’s spent time on Hill as well as earlier in his career. He’s started at Cravath so he’s back to where he started.
So let’s not further delay and get ourselves started. As I said as a preview we are going to start our review of 2022 by talking about something that happened in 2023 but it was literally within the first few days of 2023 as you will see its closely to related to an important development from 2022. Over the period of less than 24 hours if I recall correctly we actually see we made two announcements both having to do with employee non-competes. First bringing what seemed like a relatively typical but still very notable important action against several companies but then the next day announcing a proposed rule that would deal with non-competes.
I suspect that but I won’t know that when Noah was there he might have strong views about which one if not both of those actions. And without my further delay let me hand it over to Noah to talk a little bit about both of those.
Noah Phillips: Hey everybody, and thanks all of you for coming this morning. It’s great to be here. So to me there are two overarching themes that link the two events that took place over that 24-hour period, sorry sidebar I told Eli you can just ditch 22 and stick with 23 because we had enough. There are two overarching themes I think link those two and they do give us some really clear hints about what we may see more of moving forward at the FTC but also I think at [inaudible 00:12:37]. And those are first, rhetoric that we have in particular from chair Khan at the FTC about using all the tools in the toolkits. And what does she mean when she says this. She has a view which others share, not everyone, but others share, about the scope of the legal authority enjoyed by the FTC, and a view that that legal authority has not been used. This is not by any means peace. We see a lot of press about Robinson-Patman Act enforcement. We see a lot of working with creative implementations of consumer protection rules. But for the purposes of today’s conversation, both [inaudible 00:13:15] and the enforcement actions that preceded it by ours are examples of the use of tools that hadn’t been in use for a long time at the FTC and I’ll get into those a little more.
The other overarching theme, which I think is really important and definitely links with the DOJ and the way [inaudible 00:13:41] or standalone section five or not is a focus on [inaudible 00:13:46] that we have heard a lot of this rhetoric on and it’s very clear to me that the agencies are completely pursue issues in labor markets. To be clear, as they have been for quite some time. We saw this in the Obama administration we saw it in the Trump administration but we are definitely seeing it in the Biden administration.
So in terms of the two things I’m not going to debate over the particulars of the proposed rule. First because you’ve all read 90,00 client alerts with the senate, I have written those client alerts but also because it is a proposed rule still and I think we have a long way to go.
A few of the points that I wanted to make though are what’s on that road as we look forward and I think one of the things that is on that road is some change in the leaps and bounds of [inaudible 00:14:42]. There’s a fairly wide agreement that the FTC has really swung for the fences on this one but there are all sorts of issue swinging for the fences raised in particular in the context of [inaudible 00:14:55]. So I think we may see some paring back exactly how I don’t know. To be clear, don’t take it from me that we will. It may not. It will depend on in particular what comes in through the rulemaking process.
The other thing that I think we will see once the rule is finalized, and I do expect the rule will be finalized, is legal challenges. I think we will see challenges to the agencies’ authority and I think we will see challenges and questions about whether congress will be sufficiently prescriptive to propagate a rule of this magnitude. I think we will see constitutional challenges. From my views as commissioner I wrote an essay which is still on the FTC website the day before I left to get a sense of what those are.
I think we will also see certain antitrust and APA style challenges. Antitrust, the agencies appearing to take a first aid view of conduct ever since people rode on horses and manufactured swords in their backyard has been governed by a kind of rule of peace. So I think we will see some discussion in courts of whether what the agency is doing is constant like with Antitrust. Which will lead us to a section five discussion topic in a few.
And I think the bread and butter of APA challenges[inaudible 00:16:15] whether it’s still as reasonable this time. So I think that’s what we see on that group. Now let me get to the other thing that agencies do which are these two enforcement actions involving non-compete agreements. And I think there are two important things to note. The first important thing to note is that agency is again using a new tool that has a [inaudible 00:16:44] and that is standalone section five. These are the first standalone cases since the FTC propagated the section five statement.
The second thing to note is that they are not actually two cases but it’s really two different cases and they look very different. One is a story of security guards. Blue collar workers who are the objects of, I think it’s fair to say, fairly abusive conduct by the company involved and egregious terms in the contracts. Exploitative is a word that we see in the section five statement and I don’t think it’s accurate to call those contracts exploitive and the way the company handled the decision in a Michigan state court saying that they were not enforceable[inaudible 00:17:29].
The other matter is different though. It involves a more specialized industry.[inaudible 00:17:36]. And there was at least a hint in the public statement that one of the things the agency was looking at was barriers for entry for other firms. They couldn’t get into the business which was concentrated because they couldn’t get access to workers with these specialized skills. And that looks very different as a fact pattern.
So I think we see one is a story of [inaudible 00:18:02] and one is a story at least intonated of barriers to entry. More of a classic competition story in my view. But, and I assume you might have, as I did, looked at them those days and said “oh these are two interesting fact patterns of the agency might condemn them under section five.” But then I was corrected very quickly it turns out that at least before the next government review the agency took the position that pretty much all [inaudible 00:18:31] are illegal.
So the particulars of competitive effect in the concentrated market. Impact of competitors are the particulars of blue collar workers who are really the object of exploitation may or may not tell us what the agency is looking for. Stronger faces in some sense. It certainly doesn’t tell us the full leaps and bounds of what they considered illegal. [inaudible 00:18:56]
Mary Marks: So, Noah, do you think one explanation for that might be that there are two tracks going at the same time? We have this one that veers within what we think of as the standard framework. Two cases that look pretty good for the FTC in terms of the facts and not outside the ordinary. Not demonstrably. And so maybe pursuing those, seeing how those went out in court while at the same time pursuing this much broader administrative actions trying to [inaudible 00:19:39] and is it way of covering or asking to see where they end up overall.
Noah Phillips: Absolutely, so I think they are using two different tools that are not unrelated and as the agency has often done historically they are beginning with enforcement and then getting to rules. Now here the AD the timing gap is not huge but [inaudible 00:20:07] rule making process. But if you look at the FDRM, which you should, you will see that the cases are part of the building block for the argument that we can’t really do this route. Its enforcement, that’s whack-a-mole, we need a rule. This is something that we see a lot more on the consumer protection side but we see ebbing of that pattern in Antitrust.
Elai Katz: So you touched on what I was going to ask about. That whack-a-mole argument. But to my mind at least when I first saw it, it was those first two actions on the evening of January the fourth and the other the morning of January fifth seems to me to be in contradiction with one another for the following reasons. It seems to show these two actions. One that almost everyone would say and I don’t know all the facts, I know the public facts, seems like a demonstrably clearly strong act that you could easily say is improper. Then the other one is more nuanced which requires a certain amount of analysis of the markets and impact on the markets and different kinds of employees at different levels. In both cases they were able to bring an enforcement action to my mind demonstrating that it is indeed possible to enforce the law. To push the law forward beyond where maybe it had been previously by bringing in cases with some facts that people can look at and analyze.
That’s how we have done things for a very long time. Figuring out where the lines are. What crosses the line? What is clearly improper? What requires some further analysis and market impact. Then the next morning we said “oh no, forget that. We don’t need to develop the law. We don’t need to figure out what all the facts are. It’s never proper.” So to me there’s a contradiction because it’s only if you could show that we really can’t enforce the law in this way. We can’t move the ball forward unless we have this strict rule that you would need the rule. Anyway, what’s your action to that?
Noah Phillips: I don’t disagree with that. I think that you would be in an even worse position propagating a rule if you had never tried to enforce a principle as how you’re enforcing it. Yes, also the fact that enforcement can point you to the fact that these things are going on in the economy. So there’s what to do? Whether its enforcement or rule making. I think that one thing we haven’t seen yet. These are two[inaudible 00:22:42] and we haven’t seen serious testing in courts and there’s no doubt in my mind or anyone’s mind that if the agency wanted to bring a case, they could find someone to sue. If you take the liability rule in the FDRM as their position because they say there are 30 million people governed by non-competes and someone is not going to settle. So you can obviously do more and I think that’s going to be part of the legal challenge too. How well predicated was this. The FTC has done a boatload of rulemaking [inaudible 00:23:24] over the last few months and some of them have come a lot more from background enforcement.
And this is giving a side of what the other issues with competition rule making but if you are just looking at it in terms of justification by prior agencies actions I agree with you this has been a rule but it’s grouped. It’s something to be…
Elai Katz: It’s not that we have never enforced this. See yesterday we did.
Noah Phillips: Okay. To be fair to the agency, there are instances included where rules are enforced where we’ve seen a focus on non-competes. A concern about their effects. But these are pure play and they are pure standalone section five.
Mary Marks: Another example of what [inaudible 00:24:18] people are doing egregious things that are [inaudible 00:24:26]. So you just look at these two cases as demonstrating as we can’t spend all of our time enforcing against these egregious things when there’s a whole slog of [inaudible 00:24:58] and we can’t do that[inaudible 00:24:58]
So that’s one way of thinking about it. Right?
Elai Katz: Right, I sense a certain impatience and perhaps justified impatience it was a terrible thing and we can’t wait three, four, 20 years for the law to catch up with what’s wrong with the economy. I do understand that. But it still demonstrates certain innovations with developing an understanding. As I said, between those two cases that were settled. Still I would call them enforcement action. They are different and they could describe where the lines might be if there were to be more subtle lines. But at least the proposed rule seems to suggest there won’t be many subtle lines.
Noah Phillips: And to me the breadth of the first rule tells you what the agency is thinking about in terms of where the harm lies and where the liability is. I think that ultimately we may see this parallax somewhat we talk about this and the way the APA rule making process works. You have to be responsive to the comments that come in. Now sometimes means rejecting what they say but you have to have a reason to do that.
Another thing you can do is you can adjust and there are at least in some of the public advocacy for this, Wilkins has been saying publicly it seems that some of the [inaudible 00:26:32] spirit here is the concern that I think is better reflected in the credentials. Which is if there are workers that just don’t look like the kind of folks who should be objects [inaudible 00:26:46]. You could do a lot of work there putting the facts laid out in the MDRM without upsetting some of the people who are standing up and saying “wait a minute, I’m not convinced yet.” And so we will see what the agency does but then see the path available to them.
Elai Katz: Well, let’s step back just a little bit and go back to ’22 and what I think is even a bigger picture of this and we have alluded to it and that’s section five enforcement and the FCC’s statement over their section five policy. I wondered if you could react a bit to how you see that statement coming out in light of the many years of back and forth on what does section five mean? How far can it take us?
Renata Hesse: Thanks, and it’s nice to be here and nice to see the room a little more crowded. So the section five statement I think was designed in a way to be a bigger [inaudible 00:28:17] and it for the longer pattern. And then the FTC within the current administration of the FTC really until recently the [inaudible 00:28:17] what does section five mean beyond the [inaudible 00:28:17] has found its way into the [inaudible 00:28:24] as well. And for a very long time there has been a pretty wide agreement that you shouldn’t [inaudible 00:28:35] shouldn’t think about section five. The possibility for FTC to prosecute or enforce in a way that is [inaudible 00:28:49]. But I think very early on and this is consistent with what Noah was saying, I think the agencies as we [inaudible 00:28:59] have said pretty clearly in particular in the case of the FTC “these are tools congress gave the FTC” and we are not using effectively or well and I think Khan has a very strong view but she probably does mean some of it and that these tools should be used.
In fact they should be used as that’s actually the FTC’S duty to enforce it in the way that congress intended it to be enforced. So most data is a bigger reflection of her desire to write the understanding of what section five does and what it can mean. The scope of the statement is quite odd and [inaudible 00:30:00] had criticized it[inaudible 00:30:04]. There is a little bit of that because it really does cover a very, very broad range of phrases and doesn’t say exactly how section five is going to be used other than that it can be used in ways to attack [inaudible 00:30:22] unfair.
So there’s a lot of impetuses on finding ways to [inaudible 00:30:38]
The list of things that might be covered is quite extraordinary so mergers or other combinations, and this is a quote, that have the tendency to write it within the [inaudible 00:31:00]. A series of mergers or combinations that tend to bring about any number of qualms. But individually we hang on to violated[inaudible 00:31:18]. Recent competitors it may tend to lessen the future proposition. That is one where you think doesn’t it quite match agenda.
So maybe section five is a better tool. Defacto time modeling [inaudible 00:31:43]
False advertising or marketing that tends to create or maintain market power so we are bringing together the consumer protection and the other sides of the agencies.
And then there’s one where we might have a little debate about this. There’s one where the gap that I think the statement tries to fill has been one that’s been on the radar[inaudible 00:32:24]. Might be able to use section five to attack directorates that don’t technically [inaudible 00:32:40]
That one to me makes a little bit more sense because the spirit of section eight looks like it designed another LLC’s. LLC didn’t exist at the time of [inaudible 00:33:01] so one could argue that[inaudible 00:33:05]
But it really is a setup for a lot potential negation with convincing courts that something that you don’t typically think of as being competition unless we [inaudible 00:33:26] to the economy also with welfare, labor then section five might be a way of getting that position.
And what other people may think will be decided when we wait to see what will happen where this will be used like in agencies. Obviously the[inaudible 00:33:48]have to keep our eyes on the FTC. [inaudible 00:33:54] and where they choose to make use of it.
Noah Phillips: I agree with almost everything that you’ve said or talked about. I think I’m going to start with the following: whether you are thinking about the standalone enforcement actions, in particular if you are thinking about rule making, it was critical for the agency to explain. However they explain, however you feel about it, what they thought their authority was because one of the arguments that is going to be launched against the notion[inaudible 00:34:38]. From 133 years of court mitigated legal development to a regulatory. One of the arguments that’s going to be launched is what’s the limit to your authority? How do we understand your authority? And if we can’t understand your authority then how congress have given you this huge thing to do? At the very least the agency-
PART 1 OF 12 ENDS [00:35:04]
Elai Katz: Thing to do, at the very least, the agency at least should be out there institutionally with an explanation of what it means, I think that’s important. One of the things that struck me from reading the document is that it takes a very particular view of what the history of the Section 5 of the FTC Act means. And the view that it takes I think in the main is, courts doing rule of reason, Congress upset, ergo not really rule of reason then. “We don’t have to prove this, we don’t have to prove that,” that’s a claim, and I think that there is definitely truth in the notion that one of the things that was the enemy of rational action, both on the Clayton Act and on the FTC Act during the Wilson administration is a reaction [inaudible 00:35:52], where the court was applying…
I think to my mind, it’s not that it’s not debatable but that seems to be where the weight of the evidence lies. But dumping the rule of reason, and more importantly, dumping all the kinds of separation, Justice Brandeis among others said, “Go into the rule of reason,” it doesn’t seem as clearly laid out in what the statute says. Because to me, if you’re looking broadly, they’re responding to what the courts are doing with the Sherman. Okay, fine. What do they do? They come up with two different sorts of institutional responses, and I say institutional because what they’re seeing is courts doing it. So what does Congress do? The first thing… Well, the first depending on the time but they’re essentially simultaneous, Congress makes some specific rules, that’s the Clayton, it’s a series of specific things that we’re going to tell you are illegal, which courts may or may not have gotten to under the Sherman Act, preexistent of course.
And the second thing they do is they set up an agency of experts and that’s the FTC. So two different institutional responses, that’s what the statute says. But the statute doesn’t talk about the rule of reason, because the statute is real. It gives us two different other institutional mechanisms, one congressional, one expert agency, to respond to this misconduct. And if you weren’t happy with what courts were doing, as some legislators evidently were not, those are two other ways to sort out doing it. It doesn’t mean you don’t have to consider the things that courts were considering, but it means that they’re going to be considered differently by different kinds of people and the rules are going to be set how they’re going to be set.
I want to come back to this Clayton point because I think this is really interesting. If you look at the history of Section 5 cases, you will see some that talk about it embodying the spirit of the Sherman and the Clayton Act. You will see others that talk only about the Sherman Act or antitrust laws. And of course, before the FTC Act is passed, there is no Clayton, right? There’s also not a Robinson-Patman Act or Hart-Scott-Rodino [inaudible 00:38:07] and Clayton. What you’re looking at is federal law and state law, that’s what people have in mind. And of course, when they passed the Sherman Act they also had state law among… So where you have a simultaneously or even a little bit later passed statute, where Congress is speaking specific to certain kinds of conduct, and, and this is critical for me, where Congress gives the FTC standalone enforcement.
If the FTC doesn’t enforce the Sherman Act, it enforces the FTC Act, which covers the Sherman Act. But the FTC enforces the Clayton Act separately. So the notion that Congress gave the FTC authority to enforce this new of set of laws, the Clayton Act, and also the authority to color outside the lines of those specific congressionally written laws through its own statute, that seems odd to me. So I think if the agency goes on conduct that’s covered specifically by the Clayton Act, one of the things we’re going to see is a pushback that, “No…” Where Congress is writing specific or Congress is giving you standalone enforcement authority, this is why the FTC can go over nonprofits, mergers but they can’t for other kinds of conduct, there you don’t get to Congress, and I’ll guess we’ll have to see how courts receive that.
Renata Hesse: So it’s interesting, you read what they wrote as essentially saying there’s a per se rule against unfair [inaudible 00:39:35]. Am I hearing you right?
Elai Katz: [inaudible 00:39:37].
Renata Hesse: In the policy statement sense.
Elai Katz: Well, depending on how they do it. We’ve certainly seen one per se, the non-compete proposal is definitely [inaudible 00:39:49] into per se land. They’re definitely laying the groundwork for them to bring bases where they don’t have a weapon under the rule.
Renata Hesse: So I’m not sure… I think that’s right, I read it to be saying more that Congress meant the FTC to bring cases that it believed violated Section 5 and to prove those cases, either in its administrative work or in district courts. And then that maybe the contours of what Section 5 thinks of or that Section 5 lays out as potentially harming consumers don’t match up perfectly with the Sherman Act or with the rule of reason, but not that this is going to be some new per se rule against [inaudible 00:40:43].
Elai Katz: So I agree, I think that’s what Congress was doing. Because again, to me, the FTC Act and the Clayton Act are institutional responses to the state of play circa… I think that’s absolutely right. But I do think one of the doors that the agency appears to be opening for itself, whether you think that resonates in the history or not, is to bring cases where you might not have what you need for rule of reason. So one bit of evidence that I cite again is [inaudible 00:41:18], I think that’s not rule of reason. But the other thing is, you can look at the way the Section 5 statement works, there’s a sliding scale where if you have certain kinds of effects, the business conduct doesn’t need to have other kinds of characteristics.
And conversely, if you have certain kinds of characteristics that are clear, facially set, when something is facially corrosive or it’s facially exploitative, that the agency says it needs less in terms of proving effects and things like that. So I think that you’re not wrong but the agency is also opening the door and has already begun to walk through the door of condemning conduct [inaudible 00:42:02] under the rule of reason, under a purchase.
Speaker 4: So you’ve now been talking about some of the nuances, one of the things that struck me, and Renata, when you were walking through some of the specifics, I think it stood out, there’s an incipiency aspect that I think is a little different than whether or not you need to demonstrate the rule of reason type of analysis. We wouldn’t be able to prove that this has already caused us harm but we believe or we have evidence, we’ve done analysis that shows that it will or it is likely to in the future. And I wanted to ask a little bit about, how important is that in this analysis? It may be both, but is it more about, “We don’t want to have to define a market, prove that there’s market power in that market, show effects in that market”? That’s one thing, but there’s another thing that says, “We may not actually have seen harmful effects but let us tell you, there will be such harmful effects and our job is stop it before it happens, not to wait.”
Elai Katz: So I think that’s definitely something where the agency has potential to do well. So if you look at the two decisions when I was on the FTC that got up to appellant courts, the two antitrust decisions, 1-800 and Impax. In 1-800, the agency stakes out a position on what is subject to, not per se treatment but inherently suspect treatment or [inaudible 00:43:42], the Second Circuit doesn’t really think the agency has what it needs. And this isn’t about whether the rule is rule of reason or not but I think the theme tracks, in Impax, to condemn the conduct as having a less restrictive alternative, the agency doesn’t just look at the facts of the case, it musters evidence from its experience, and it musters a lot of evidence for its experience of how you could do deals like this that didn’t look like the [inaudible 00:44:14] case.
And the Fifth Circuit, and this is a unified power, it looks at that and says, “Okay, that makes sense to us.” And I think if you look at Section 6… We’re talking about Section 5, but Section 6 of the FTC Act, which is the study power, which also, arguably, will remain in power, the FTC has built ab initio, and in fact, was conceived in one of two bodies of the legislatures as a research institution to advise the courts, to advise Congress. And so it has these tools to go and gather information about what’s going on in the market, and yes, the agency absolutely can say, “Hey look, courts, we looked at this, we did our homework.” To me, it’s a different institutional approach to the rule of reason but it’s still adhering to the notion that you have to really study the market.
It’s a leap to go from there to Commissioner Wilson talking about, “We know it when we see it.” I also want to come back to something that Renata mentioned, Commissioner Wilson has this footnote in her descent about incipient, incipiency, so what is she talking about? So it’s black letter law that the Clayton Act is intended to nip monopoly in the bud, stop it in its incipiency. It is also black letter law that the FTC Act is intended to nip monopoly in the bud, stop it in its incipiency. And this makes total sense if you’ve got Congress looking at the laws concerning, among other things, monopolization, and arriving at these two different institutional responses. But if you put them together, you’re at this weird place, as the Section 5 statement does, of saying that Section 5 allows you to nip the Clayton Act violations in the bud, and so there you’re at incipient, incipiency, and I just thought that that was a thing worth noting.
Speaker 4: It is, thanks. Let’s turn it to another… We may circle back to some of this but I want to turn to another dissolvement at the other agency, at DOJ. For a long time now the Department of Justice’s Antitrust Division has been saying that they’re going to bring more Section 2 cases. There’s one coming just around the corner, and I know I’ve been eagerly awaiting for many years to see that. And then in the past year, in 2022, we heard an announcement that not only would there be a Section 2 case, it would be criminal, and that certainly got my attention because I was surprised.
Most of the Section 2 matters that I think about would be hard to see as criminal cases, at least in my eyes. But indeed, they did, there’s really two cases out there now involving Section 2 and criminal charges. Renata, having been there over some of the years that I’m describing with efforts to find those Section 2 cases, let’s start with your reaction to criminal charges under Section 2. And am I right to be alarmed or concerned that now we’ll have criminal bundling, criminal predatory pricing or something like that?
Renata Hesse: I noticed that Richard [inaudible 00:47:44] took this as the opportunity to get up and walk out, others are still here. So as you know, Elai knows me well, I tend to be a little bit more calm about these kinds of things because I tend to believe that the institution isn’t going to do things that are truly bananas, because I believe in the institution and I believe that it’s designed and works properly and [inaudible 00:48:22] clearly rises to the level of criminal prosecution. But there was a lot of… It created quite a stir when, I think Richard gave the first speech and then Jonathan gave another one, right one after the other, that said, “Well, we’re going to start using and enforcing Section 2 criminally, this has been done in the past and it’s, again, one of these underused tools that we should make a concern to root out bad behavior in the economy.”
And I think everybody was wondering, “Well, is this going to be a Microsoft but prosecuted criminally?” The old Microsoft case or something else. And I think what we’ve seen so far is that it’s going to be… Now, that doesn’t mean that it won’t at some point later on turn into the U.S. vs. Microsoft prosecuted criminally again, I tend to think not. But the two cases that were brought seemed to me to be pretty in line with how one might think about Section 2 being used criminally. So one is, was it an attempted monopolization? Was it really an attempt at market allocation, not reachable under Section 1 exactly but did seem to be something that could rise to the level of, if effectuated, a criminal conduct? This is a local geographic market, no mention of that in the context of [inaudible 00:50:10].
The use of criminal authority in Section 2 cases in local places where an agreement might be able to give somebody a monopoly, it would be to separate two companies, monopolies in different local geographic regions, as an analytical matter, it makes a certain amount of sense to me. This one was a plea also, so like a settlement, in the [inaudible 00:50:47] cases, we don’t know whether or not, if DOJ actually had to try one of these cases, if the court would agree that we should be able to use Section 2 criminally in this type of conduct, in this type of situation. The second case, yay. The second case, it’s a really interesting case, it’s conspiracy to monopolize involving… Just if you read it, it’s just horrible, horrible. And there we an indictment, we don’t have anything beyond that, so we don’t really know how that’s going to play out. But again, it’s also tagged onto a Section 1 claim, which is I think another way that you would pass Section 2 [inaudible 00:51:42]. I have seen that as one way and then a Section 2 claim right along next to it.
So the two cases that have happened so far are certainly different, Eli, and new, but I don’t think they’d lead to use of the criminal authority in what we think of as classic monopolization cases, but we’ll see. I will say, I was reminded when I was looking at the attempted monopolization case of the old Bob Crandall case involving Braniff Airlines, maybe some of you are old enough to remember that case. Yeah, and the conduct there sounded very similar [inaudible 00:52:37]. It was resolved with a guilty plea, so it’s hard to know exactly how it would have come out. But this is an area where I think the agencies, DOJ in particular, has wanted to be able to prosecute people for attempting to do really bad things, to allocate markets, to fix prices, to engage in that kind of behavior, and so the use of Section 2 here to see if there’s a new way to attract that community, to me, it’s created [inaudible 00:53:14] but it doesn’t portend I think something much bigger, again, who knows.
Elai Katz: Understanding that we’re not at the point of [inaudible 00:53:27] as you’d like, I wondered if you could speak a little bit more to both the institutional, how speaking internally, DOJ prosecutors, criminal prosecutors, think about whether to condemn criminally. And also, if we were in Bananas Land, what you think courts could do with that, how they would approach that constitutionally.
Renata Hesse: So I think the criminal enforcement program at the Antitrust Division is I think very, very focused and very committed to really rooting out the worst kind of behavior that is per se, a model. It appears obvious these days to violate Section 1 and to really go at that with all of the power that the government has to prosecute people who engage in that conduct. I also think that, and this happened during the Obama administration, where you start to see conduct that you didn’t previously think was criminal but to take form in ways that you’re as consistent with the kinds of other cases that bring market allocations, those type of things, then I think the agency does do some internal checking, “Should this be a criminal violation? Why are we treating this different?”
So I’m thinking of no-poach cases where we went through a pretty diverse process of thinking, “Why do we think agreements that restrain employees from negotiating higher wages should be treated any differently than any other kind of unlawful criminal agreement?” And ultimately, we thought, “In the right circumstances, there’s no reason why those kinds of agreements should be treated differently.” So we put people on notice and we told people we were going to do this, very similar to what happened with the Section 2 cases. And in my experience, the criminal prosecutors are very good with it, they use that enforcement. There’s nothing more humbling than being able to exercise the enforcement power of the United States, it’s an extraordinary power and I think they’re very, very capable. Lawyers and political appointees at the division really take that seriously and do a lot of gut-checking to make sure that they’re not doing something that abuses that power that they have.
Speaker 4: So if I try to make sense of it for myself… And I’m glad you brought back the HR I guess announcement, warning that in some time, we will bring criminal cases for no-poach. At least I see these criminal Section 2 cases as really, we think this is a criminal violation under Section 1, except Section 1 isn’t drafted properly to say, “If you try to fix prices or allocate market, even if you don’t succeed, we still think that’s a criminal act.” And to me, yes, that fits under the words of Section 2 but when I have to describe to people the antitrust laws but I’m asked not to really talk about statutes so it doesn’t sound too lawyery, I talk about single firm conduct versus agreement.
This kind of conduct falls under agreements, not under single firm conduct, it’s two people trying but not succeeding to stop competition. And so under that umbrella, I see it being… And somewhat similar to our earlier discussion about Section 5, somehow the way these statutes were drafted, the way they’ve been applied over many years, they don’t quite reach where they should and we’re going to push them a little bit, and that is what I think enforcers often should do. We’re going to push them to get to where we need to go, but to me, that conceptually is very different than saying, “This is the criminal monopolization. This is criminal horizontal noncompetition conduct that is incipient.” I don’t know if either of you have a reaction to that view or want to move on to some other points.
Renata Hesse: I think that’s right, and I think that’s what the administration has said it wants to do, it wants to take the tools and see if they can make them more useful. You might disagree with the use of them in those particular contexts, you might think that an attempt at criminal conduct shouldn’t be prosecuted criminally, but that’s certainly what they have said they are going to do.
Speaker 4: So let’s go back to I think what to me looks like a bit of a theme, we touched on it but I do want to circle back just a little bit before we turn to some other points that we’ve been wanting to discuss, and that’s per se versus rule of reason. We’re seeing that in the rulemaking in the Section 5 policy statement, I at least see it to some extent in the way we approach Section 1 and Section 2. Typically, we think of Section 2 as rule of reason, if it’s not, pick me up on that, or rule of reason but requires some of the similar analysis of figuring out what kind of market power there might be. What we are observing, is there a general challenge to the rule of reason to that mode of analysis that says… And what I mean, rule of reason, both under Section 1 or Section 2 where traditionally courts have required plaintiffs, whether it’s the government or private plaintiffs, to define a market, usually show market power, sometimes without defining a market but usually by defining a market and then going on to show effects.
Is there a frontal attack on that mode of analysis? Or is what we’re seeing that there are some categories that we over the years have had as per se categories, the rule of reason categories, the courts for several decades have been moving things out of per se and moving them into the rule of reason? Is what the agencies and others are trying to do just move things back from the rule of reason category into the per se basket? Or is this a different thing? Is there a question on the analysis? The rule of reason analysis, is it the kind of analysis to use at all in light of the arguments that we have heard over the years that it’s so hard to win a rule of reason case, that it’s really just a defendant’s whim kind of rule? Is it one or the other? Is it both?
Elai Katz: So I think that if you look some of what the agencies are saying, what the advocates who are aligned with some of the political leaders at the agencies have been saying for a long time, if you look at some of what Congress is thinking about… I hate to use Congress in this generic term as if Congress is a body that thinks, members in Congress are thinking… I don’t mean they don’t think [inaudible 01:01:23]. Having spent time there, they do think, and actually to watch… Sideline editorial. To watch some of the debates that happened around the antitrust legislation, fast-forward your YouTube or your C-SPAN from 2:00 in the morning and the members are not performing, they’re being themselves. You get some really great legislative theater, lawyers who practice in whatever kinds of cases they’ve been doing reading text, what does this mean? Which you never see at 5:00, it’s like a different…
I think that there is a view that it is too hard to establish liability. There is a view that there was a great historical wrong largely imposed by the Chicago school and the courts beginning in the 1970s, where things were recategorized as rule of reason, where they were in the proper place of person. There is a view that antitrust is complicated and we need clear rules to get that along. Max Solo will often talk about the need for clear rules, and there’s a real benefit in law to clear rules. We all pay our taxes, drive, we may or may not drive a certain speed but we like the comfort or knowing when it’s in or when it’s out. On the other hand, not all business conduct is clearly deductible to a very short description.
So I remember we got one petition at the end, it was like, “You should ban all exclusive agreements [inaudible 01:03:03].” And I’m like, “Wait a minute, the catering place, the large place across the street from Facebook,” I’m not saying Facebook is or isn’t a monopolist but, “that exclusive agreement to provide the tuna sandwiches, are we really going to ban that?” But we see this push congressionally, we see this push in rulemaking, we see this push in the position by the FTC in the Section 5 statement, subject to the back report from [inaudible 01:03:32]. It’s up against something big though to me, and that is decision after decision after decision for decades. But also very current, the NCAA versus Alston, it’s a pro-plaintiff decision but it’s like a peon to the rule of reason. Or 1-800, the FTC is going right back to Chicago Board of Trade but they’ve put Brandeis’ description.
And so I think that the courts are in one place and the enforcers to some extent may be in another and there’s going to be a kind of collision. Now, if Congress intervenes, that’s different, because Congress can do what it wants, they can contend on that as a per se goal. That’s part of what they’re thinking through, the proposal is, “These companies are awful and ban the conduct,” and then people start digging into, “Well, what’s the conduct?” And the legislators are thinking about from their perch, “What are we losing here?” And you see a lot of the pushback, cybersecurity or privacy, what have you. But I think fundamentally, that’s what I see, it’s two trains maybe headed… That’s not the right metaphor, but these are two trains that are not [inaudible 01:04:52].
Renata Hesse: Yeah, so I understand the desire to have more rules to be able to prosecute cases and enforce effectively in an environment where we have per se liability in more situations. I understand that as enforcers it’s much easier. I don’t know whether or not we’re seeing this wholesale onslaught or whether we’re really just seeing, to go back to the way Elai put it, a little attempt to shift things back a little bit more into a world where there’s a little less rule of reason and a little more per se treatment. And I think in the courts, I think that’s probably going to be tough sledding for the agencies, and we’ll see how it comes out.
I also think part of what’s going on is a very conscious desire to bring cases and use rhetoric, talk about advocacy, in a way to make clear to Congress that some of the tools really do need to be updated and changed. And then in that context, and we hear sometimes, particularly E. Cantor has said this, “I’m not worried about losing cases,” I think some of that is because they feel like losing cases will demonstrate to Congress that the existing goals in the courts aren’t capable of attacking the kind of conduct that the antitrust laws were really intended to attack. So I feel like this is all part of, again, not a categorical onslaught but an attempt to just stretch things and move them back a little bit to where they were previously.
Elai Katz: So I think that’s absolutely right, and we see very similar rhetoric from the [inaudible 01:07:14], and others. I think one of the things that will be interesting to see going forward is what effect all of the stuff that happens before you get to court has. Because I think as a practical matter, and I’m not just talking settlements, I’m talking about the effect of revenue, the effect of policy statements, the effect of guidelines, which we haven’t seen yet on mergers but I think more increasingly we will see, there’s a lot of work that can be done by government signaling. Even if you have a fair degree of confidence that at the end of the day, the court will vindicate the position, first of all, but second of all, there’s a real cost to testing that proposition. And in the space between willingness to test that proposition and deciding whether to do something, there are lots of decisions being made. It’s very clear to me that a lot of people are taking stock of the non-compete agreements that they have.
Whatever your prognostication is to the ultimate survival of the rule, the cost of this kind of business conduct just went up, and it didn’t take a law and it didn’t take a precedent established by a court. And the agencies are mindful of the effect that rhetoric has. I think this thing where Holly Vedova, who was the head of the Bureau of Competition at the FTC says, “This never should have gotten out of the boardroom,” we counsel clients about what the courts say but also, [inaudible 01:08:59]. Because that to some extent tells you a little bit about [inaudible 01:09:02]. I think whether you like it or not, whether you think it’s valid or not, there is a force to rhetoric, there is a force for the obligation of policy statements. And the agencies can not only show what they’re doing, which is part of this too, but they can have an effect, and I think that’s a way that they can move the policy, which ultimately is what policy makers, political appointees try to do.
Speaker 4: Thanks a lot. Before we move on to the next topic I want to make one observation you guys made, I wish to comment on it. And I can appreciate and very much like the effort to have clear rules, both for enforcers and for counselors, we all like to have clear rules. But the fact is, this is a complicated area, and I’d like to give one example, you were both speaking about non-competes being potentially per se unlawful, we also were speaking about interlocking directorates, which are subject to whatever the words are in Section 8 of the Clayton Act also-
Speaker 5: Subject to whatever the words are in section eight of [inaudible 01:10:04] per se unlawful. And there’s an effort to expand it a little more where that the law didn’t cover it. To my understanding, what animates the concern about people who are on the board, or officers of one company being also on the border of being officers in another company, is that there will be some improper information exchange that could potentially lead to coordination. It may be tacit, maybe even leads to some kind of actually explicit coordination. That’s the concern. And we want to prevent that. So, we’re saying don’t do it.
And yet, at the same time, I think what we’re being told is it may not be okay for them to serve concurrently, but if today there’s an executive at one company, she can move to be the executive at the lead competitor tomorrow. We’re not concerned about that. And to me, these are two concerns that bump up against each other. And all I’m trying to say by it is it’s not always… We like clear rules but it’s not always just so simple. We live in a complex world, and this example, I think, is one of the least complex of the kinds of examples we can come up with as to why if you have a whole lot of per se rules, they will bump up against each other.
Renata Hesse: Yeah. That example is a perfect example of why I tend to think that the [inaudible 01:11:25] role is going to have some exceptions to it along the lines [inaudible 01:11:32] because having one executive move to another, to a competitor, and bring along with her all of the knowhow and all of… There this, and this is where you were going, no way to compartmentalize that and [inaudible 01:11:50] in that situation is [inaudible 01:11:53] competitive.
Speaker 6: Simply add [inaudible 01:11:58] imposed by the agency.
Speaker 5: So, let’s turn to something else. And again, I think it keeps up with our theme that is where is it that antitrust enforcers, private or public, who are trying to get out of conduct that they feel is [inaudible 01:12:29] or perhaps having trouble getting there because the laws are… The laws and the precedents perhaps don’t allow them to get there. That’s what we’re seeing in Congress, some in Congress try to address it. Where the specific case that I want talk about, and that’s the Apple case and efforts to look at a technological platform and its control over the platform versus one of the app developers who wanted to be able to bypass some of the limitations that Apple placed on the App Store. Let me turn to Renata, that turned out to have mixed results. It is still our field, we don’t know how this really ends up but based at least on the first round, tell us a bit about your thinking about that case. What does it tell us more broadly, or perhaps how should we read it at this point?
Renata Hesse: So, the case is a really interesting case, this setup and the lead into the case was really interesting [inaudible 01:13:43] 1984 thing, and the conduct is really interesting and the concerns about Apple’s control of the App Store and the platform more generally is something that lots of people are looking at including the DOJ has an open investigation on this. So, it’s a really interesting case. I find the decision very difficult to [inaudible 01:14:19]. It’s difficult to understand exactly what [inaudible 01:14:25] the judge [inaudible 01:14:26] because, in a way, part of the decision was written by one person, and another part was written by another person. And I honestly feel like [inaudible 01:14:39] fantastic judge and very, very smart juries.
I think the case was just tried in way too complicated a way and I think the judge or clerks or… I think somebody just got really confused. So, what you end up with is this basically wholesale win for Apple on all of the federal [inaudible 01:15:10] and the strange win for [inaudible 01:15:13] on an unfair California unfair competition law claim where it’s a little hard to see how they could win [inaudible 01:15:20] competition. So, I read it as maybe it’s another example of these things where the court just had a very hard time fitting the facts as they were trying to her into the boxes and buckets that she felt like she needed to satisfy the pleading requirements in the… Or the decision requirements for the Sherman Act. But she did feel like something wrong had happened, that Apple was doing something wrong.
So we’ll see how it fares on appeal. My sense is probably not likely well. I suspect the unfair competition law plan is going to get reversed and DOJ filed [inaudible 01:16:19]. There’s a very weird piece [inaudible 01:16:21] where she says these [inaudible 01:16:24] can’t be… Are contracts of adhesion and therefore they can’t be a grievance under section one, which is strange. I suspect that will probably be reversed. So, there’s a lot of strange things in it. But what it really reflected to me was that it is… Somehow the case just got too complicated and that the court was really trying very hard to work its way through these issues. But in the end, the decision is… It’s a tough slog to read through it and it doesn’t provide very clear direction [inaudible 01:17:01].
Speaker 6: So, I’m trying to be mindful of the fact both of the cases of Judici and [inaudible 01:17:07] quite a bit more time [inaudible 01:17:09] to me, I think the case is very much a [inaudible 01:17:16] of some other… Of issues that I think we have to grapple with. And we know we have to grapple with them because they’re, to some extent, characteristic of lots of other digital markets which have been in focus of litigants as [inaudible 01:17:36] versus Apple, but also of legislators and policymakers and many, many others in the last few years. So, I think that the mergers of [inaudible 01:17:46] competitors isn’t the issue but the notion of gatekeepers, and at what point, something that comes on market unto itself [inaudible 01:17:59]. That’s a theme that’s going to resonate more broadly.
The issue of, and the DOJ talks about this in [inaudible 01:18:17] two, are we getting to the end of the story in an antitrust case where we [inaudible 01:18:17]. This is a little easier in US versus Microsoft. The things that are not getting credited as per competitive justifications have basically no value in that case. But one of the criticisms that the DOJ brings [inaudible 01:18:30] is the judge didn’t do an ultimate [inaudible 01:18:34]. And I think the way you have business conduct that clearly has an impact and they’re clearly users and you have justifications, they’ve always been there in antitrust, since the very beginning. But it isn’t just a practical matter where a lot of courts have had to go. And I think going forward that’s where we’re going to have to go.
Speaker 5: The way to do that way.
Speaker 6: To do that way. And it’s not so easy.
Speaker 5: Yeah, clearly not. We have just a few minutes left, and I want end on time because I know we have an important speaker at 10, but I do want to talk about one more topic, and that is what did not happen in 2022 that some of us at least thought might happen. Over the years, there have been discussion about IP policy, especially related to the essential patents and standard setting context. It’s something that, Renata, I know you’ve spent a lot of time thinking about and doing important work on. I guess if you would describe to us, where are we now with statement… There’s a policy, it’s been withdrawn. Where are we now and where do we think we might go in this space in the few minutes that we have? I know it’s a big question to ask you to answer quickly.
Renata Hesse: Again, I think it’s not [inaudible 01:20:07] think we’re really anywhere at the moment. I think the antitrust decision [inaudible 01:20:13] weighed into this [inaudible 01:20:15] policy working other parts of the administration and tried to frame out a way of thinking about how [inaudible 01:20:32] could be a violation of the antitrust far as that majority of Obama administration, the Trump administration came along and received a different but not dramatically different [inaudible 01:20:46]. And then I think the expectation was, “Okay, we’re going to back to the Democrats [inaudible 01:20:53] issue.” And there was a [inaudible 01:20:58] put out the comment and a lot of thinking about it done, and ultimately, the decision was, you know what? We’re just going to withdraw these statements and put an end to all of this.
I think [inaudible 01:21:13], honestly, these are cases that have worked their way through the negotiation process. Some of them [inaudible 01:21:25] we’ve got a little more guidance on the courts, which I think is where these decisions, this issue, should be resolved in the courts. And I think there’s still conduct out there and people are still thinking about it, but it’s not… Doesn’t feel to me like it’s so much of a priority economic for people. And, as I said, there’s been some guidance in the courts. So, maybe a logical decision just to say, you know what? We’re just going to stop these dueling statements. It’s a little strange for government to change its use with the adhesion [inaudible 01:22:08] and put an end to it. I think it’s both. I think we’re okay.
Speaker 5: I’m glad that we’re okay. That’s a nice way to end. We have just a few minutes for questions from the audience, if there are any. I assume, Mary, you’re running the train. So, we’ve got a few minutes for those. Any questions from the audience? [inaudible 01:22:41]. So, if somebody comes up with a question, raise your hands, but I do have another question [inaudible 01:22:54] and that is something [inaudible 01:22:57]. Another thing that didn’t happen was tech legislation. I think that some people thought that might happen in the last Congress when the Democratic Party had control. I guess as somebody who’s been there, both at the agency on the [inaudible 01:23:16], what is your thinking on it not having passed? Is it necessary for there to be new laws, and what are your thoughts about it?
Speaker 6: I think fundamentally we did see a few new laws. We saw a lot about [inaudible 01:23:32]. We saw a lot of merger filing fees. We saw new money for the agencies to solve or [inaudible 01:23:46]. But I think that the chances of getting a big tech legislation [inaudible 01:23:48] lowered, both because, over time, the urgency of legislation. Sometimes [inaudible 01:24:02] Facebook is worth by market [inaudible 01:24:04] what it was worth, Meta is worth. And so, things on the ground look a little different. The enforcers are doing a lot of things, and to some extent [inaudible 01:24:15] the political need. The other thing is this, is the Republicans took the house, and if you look at where the votes were, where the judiciary is, particular where this proposal originated, the new chair of the Judiciary Committee Congressman Jordan of Ohio was an opponent of this bill, now he has the [inaudible 01:24:37].
Speaker 5: I think, with that, we will end. Thank you very much. Thanks to the panelists and thanks to the audience.