Speaker 1: [inaudible 00:07:01]
Ilene Gotts: Okay, everyone. If everyone could take their seats, that would be great. Welcome. This is the extent of my official duties, and I’m going to turn it over to Ben.
Ben: Thank you, Ilene. Is there programs here? I am not supposed to be speaking. It’s supposed to be Elaine Johnston who’s our outgoing chair, but she is sick. But I think knowing a time in the last couple of months. So, I’m going to say what she would say if she were here today. First of all, she would like to thank, I would like to thank our platinum sponsors who are analysis group, Berkeley Research Group, Compass Lexecon, and Huntington Bank. And then, we have a bunch of other table sponsors who are listed in today’s program. So, they make the CLE events possible and all the other events we enjoyed through the year. So, let’s give a round of applause to the sponsors.
Thanks are due to the NYSBA, Casey and Charman in particular who helped with all the logistics of this and calling and registering and the light. They did a really terrific job, so let’s thank them as well. And this is where now I really go into Elaine mode. I’m not going to attempt the Irish brogue, but thank you to my colleagues, Honji Wang and Reed Ehrhardt, who helped me as chair for this past year. They’re associates at Allen & Overy who supported Elaine and her work.
The one thing I’ll mention before I pass it over to Mary Marks, our incoming chair, is Elaine did a really unbelievable job this year. This was a very bizarre transitional year where every week, we were like, “Are we in COVID? Are we out of COVID? Are we supposed to go in person? Are we on Zoom?” And I feel like she provided a level of stability and good humor that really benefited the section and kept us afloat. So, thank you to Elaine, if she ever hears this. Thank you to Elaine.
And finally, to thank in advance first, Tom Reid, is our speaker tonight. He’s the chief legal officer at Comcast. And then, sitting over here at the head table are a variety of people, but they include the incoming leadership slate. We have an amazing group of people who are going to take over the section, as well as local New York area enforcers.
My main role here is to introduce Mary Marks, our incoming chair, who already you’ve seen as vice-chair, has done a superlative job putting this together. We’re back in person again. She put together all the programs and did just amazingly well. We’re so excited to see what she does when she’s chair. So, Mary, I am now not Elaine. I’m going to go enjoy a drink, and thank you, Mary.
Mary Marks: Thank you to Ben and welcome to dinner, everyone. We’re very excited to be back in person as Ben mentioned, after three years, as we all know of remote programming. We had a record number of registrations or near record numbers for today’s CLE programs, as well as for tonight’s dinner, which you can see is filled all the way out to the ends. And I’m so glad that you’re all able to make it up in the one elevator, so thank you for your patience on getting here and I think it’s going to be a great evening.
We are honored to have Tom Reid as our keynote speaker tonight. Tom is chief legal officer and secretary of Comcast Corporation. As you no doubt know, Comcast is a global leading media, telecom and telecommunications company. And its subsidiaries include NBCUniversal and Sky plc. Tom oversees Comcast’s legal affairs and corporate governance, as well as its government regulatory and political affairs functions.
Prior to joining Comcast, Tom practiced law for many years at Davis Polk serving as its chairman and managing partner from 2011 to 2019. Tom serves as director of Venture Global LNG, the secretary of the Board of Trustees of the Morgan Library and Museum, a trustee for the Archdiocese of New York’s Inner-City Scholarship Fund, and a trustee of the National Urban League.
In 2019, the American lawyer named Tom Dealmaker of the Year for his role in representing Comcast and its $40 billion acquisition of Sky plc. In 2018, the pro bono partnership honored him with a champion award and recognition of his deep commitment to pro bono work. And in 2021, he received the St. Thomas More Award from the Inner-City Scholarship Fund.
So, before I ask you to join me in welcoming Tom who’s going to speak for about 20 minutes, I just asked that given the acoustics in this room that if you could refrain from any additional noise and extra conversations, that’d be really appreciated. And without further ado, please join me in welcoming Tom Reid.
Tom Reid: You said 20 to 25 minutes, and Ben hinted at some Irish brogue. If you listen carefully enough, you’ll have to tune in to some genuine Scottish brogue, which is where I started in life. And I’m here now by way of New York City and Philadelphia, and it’s Philadelphia that has refreshed my Scottish brogue accent over the last four years, that’s for sure. But thank you, Mary, for the introduction, and thank you to the New York State Bar Association for the invitation to be here.
I want to recognize and thank everybody in this room who works in the field of antitrust. Whether you’re in the public sector, with a private company, a law firm, a university, or a think tank, you’re at the center of what I think and I’ve always thought is the most intellectually stimulating and significant work in law and in economics. And all of your collective efforts contribute towards a critical goal, which is ensuring that antitrust law works effectively to maintain and extend American leadership in the global economy. We’re a very long way from Scotland, though, I’m an American citizen, and that is a critical mission.
And as you know, smart competition policy, as well as robust enforcement of the law are essential to achieving this goal. And the importance of this effort only grows as rapidly changing technologies to enable new business models. With several decades of American technology leadership, intellectual property has long since dwarfed physical assets in the value of America’s capital stock. Scalability for many businesses has become theoretically limitless as we depend less on moving freight and more on moving digits.
And we’re constantly reminded of the declaration by British mathematician Clive Humby, who in 2006 said, “Data is the new oil.” People today say chips is the new oil, chips are the pipeline. Data is the new oil. It was true then and it’s more true today. And during this data boom, many businesses have configured themselves, particularly new businesses emerging to harvest, process and monetize fast amounts of consumer data.
Any business in fact that lacks industrial scale capability has likely perished by this point, to continue the oil analogy, just as coal-fired ships lost out to oilers about 100 years ago. So, this is good, right? This is creative destruction, or should we be worried about the new landscape of data trusts? I’m actually concerned that we now have an unhealthily concentrated economy in which a handful of companies will permanently enjoy access to data and other critical resources, quantum leaps beyond their customers, suppliers and competitors.
And that’s what I’m about to address right now and the observations I’m going to make as the general council, as Mary said, one of the largest companies in America, a Fortune 50 company, strong lines of business. We’re prepared to compete with anyone and we also understand the role that new entrants play in maintaining vibrant markets. In fact, we have seen it up close over the last several years as consumer switch in growing numbers from cable video to streaming, a switch that we and other internet service providers enabled by building the world’s fastest, most reliable broadband networks that carry the streaming content.
We enable that switch not just by investing in fast networks, but also by ensuring that those networks are totally neutral to whether the product carried is our content or the content of others. But we’ve become increasingly concerned that Big Tech platforms have acquired vast amounts of consumer data to entrench a market position far from neutral, insulating them from competition and enabling them to expand into any new market they should choose with the same dominant position.
Now, as a general matter at Comcast, we believe that market forces produce the best outcomes for consumers and that market failures are typically temporary and self-correcting by the market. At the same time, we recognize that wisely drawn government policy can promote competition, lower barriers to entry. We’ve seen this play out in our communications industry over many decades. In the ‘80s, our nascent cable industry was the beneficiary of government policies intended to promote new entry to compete with a then concentrated broadcast TV industry.
Then in the ‘90s, we faced new and effective competition nationwide from two satellite TV providers. And in the aught, we saw telephone companies invest 10s of billions of dollars to create new video competition for us. And in the last decade, the ubiquitous deployment of broadband networks by cable companies and our competitors has triggered an explosion of over-the-top online video competitors. And at each stage in that market’s development, there were legislators and regulators trying to shape this new competitive landscape.
By comparison, government policies until very recently have paid comparatively little attention to Big Tech platforms and their massive aggregation of consumer data or their power in online search, online advertising, ad tech, and other areas. And this failure to act, we believe has left consumers without adequate information, transparency and choice with respect to that aggregation and its value to those companies.
So, the question is, how do we ensure that government policies and enforcement efforts are effectively targeted at anti-competitive harms to our digital economy? And I want to offer what I believe would be two prudent principle and politically very achievable strategies to address that challenge. The first and most important, centers and legislation, giving consumers more transparency and control over their own data, crucial to creating a more competitive marketplace.
The second strategy calls for the use of traditional existing antitrust enforcement standards by government for the benefit of consumer welfare. Let’s begin with legislation. In the most recent Congress last year, we saw a historically high volume of activity focused on Big Tech and competition. Many bills were debated, some gained momentum, others included controversial provisions that would have reversed settled precedent and created new and untested presumptions of illegality. Many were simply too complex to garner sufficient support to become law.
As a new Congress comes back to work this month, we believe it’s vital to resume those efforts, but it’s also important to take a deep breath and make sure we don’t damage what isn’t broken in the process. Because to be clear, none of what we’re concerned about is in any way intended, intentionally or accidentally to harm innovation because the efficiency of the internet has allowed us all to shop, be educated, get medical treatment, be alone together with others in one place all the time if we so choose.
But in the process, the issue we need to focus on is that we transmit massive quantities of data about ourselves. All the shopping, search, travel and communication, especially in social media allows a handful of Big Tech platform companies to capture an infinite number of data points about us, tracking us as we drop our digital breadcrumbs everywhere, exhibiting a wide range of behaviors, allowing them to know far more about us than we know.
It’s not a difference of degree between those platforms and other companies using e-commerce, including my own and many others. It’s a difference in kind. We have become the product. We are and our data are the product. And this expansive collection of data changes the competitive landscape in two key ways. First, as they collect more data, they have more information to tailor more products and services to users, which in turn attracts more data, in turn more users. And as the economist put it, “Vast pools of data thus act as protective moats creating a key barrier to entry by others.”
Second, by observing the universe of our online lives, Big Tech has a God’s eye view of activities in their own markets and beyond where we travel digitally. And this again allows them too big a threat in terms of the stifling of competition. So, to fix this, our answer is simple. We believe that companies, all companies should be held to a higher standard of transparency so consumers can make educated decisions about their data protected by strong and sensible government enforcement.
I think there are three steps for Congress to take. First, Congress should recognize core business activity of these platforms is in fact to maximize the volume and granularity of online activity data they collect, which in turn creates barriers to entry that determine competition and harm consumers. If you want to see the case study for that, it’s Apple changing device settings and the consequent impact on the market value of a couple of companies that depended on that.
It’s time that consumers were given meaningful transparency regarding the manner in which online commerce uses and shares their personal information, and we’re very close. In fact, the Privacy Bill reported out of the House Energy and Commerce Committee in the last Congress, the American Data Privacy Protection Act made substantial progress towards enshrining that transparency concept into law.
The bill had strong bipartisan support and would’ve established a new federal choice framework and permissions regime to give consumers greater control over the ways in which their personal information is collected and used by online providers and the entities to whom that information is then disclosed. It’s an important step forward and leaders on both sides of the aisle should be commended. That choice framework attended to and we believe does balance both the imperative to strengthen consumer privacy online and also the need to preserve opportunities for information and continued growth in our digital economy.
It’s draft legislation, it’ll need further deliberation and refinement, but we hope and expect that that will occur in the next, in this new Congress, perhaps spurred on by President Biden’s call for action on privacy in his Wall Street Journal op-ed last week, which I’m sure you saw was echoed this morning at Georgetown Law School by Alan Davidson, assistant commerce secretary for Communications and Information who also called for a new federal privacy law so as to avoid the developing patchwork of state laws.
Second, we recommend that Congress appropriately target the new accountability mechanisms and enforcement resources to those large tech online platforms, particularly social media platforms because their activities, I think beyond dispute pose the greatest risk to consumer privacy and responsible data use. As the headlines and enforcement actions across the world over the last few years confirm, the greater risk to consumer privacy comes from that area. And it’s towards those high-impact social media companies that enforcement resources should be focused. And last year’s House Bill offers a framework that could readily be extended to achieve that objective.
For example, last year’s House Bill embraced a graduated approach to the application of certain its provisions linking them to a company’s size based on objective factors like revenues, subscriber base, business size, similar but different privacy bills aimed at protecting children, referred to whether the platform’s content was substantially user-generated. And we believe a graduated approach, again, to be deliberated and refined, could and should be extended to other areas of any privacy law through the imposition of additional restrictions and enforceable protections and remedies targeted at those dominant platform companies.
Third, we need Congress to clearly delegate to a single agency, the lead role in enforcing and administrating this single privacy regime that we need at the federal level applying to all businesses nationwide. Congress has to provide that single agency with clear, unambiguous authority, direction and resources and at the same time, remove any duplicative or overlapping federal privacy jurisdiction, eliminating for many of us the plight of conflicting federal privacy regulations depending with which part of government you’re dealing.
That agency should also be granted robust new privacy enforcement powers, including an expanded ability to levy fines in appropriate cases. And it should also be directed, we believe, to establish and administer a privacy and security victims’ relief fund to provide compensation to harmed consumers. Chronic violators should have their recidivism penalized. Companies under consent decrees for recent privacy violations should be subject to expedited enforcement and penalty processes for those for the recidivism.
In summary, Congress should move, we believe to complete the effort that it came so close on last year to enact bipartisan consumer privacy legislation and create one national-level playing field that would protect consumers and enhance competition without endangering innovation. So, turning, now from legislation to enforcement to the second idea. Antitrust law, as you all know is more than 125 years old, but to this day, it provides a flexible set of tools that can adapt to changing markets, new products and new services, and those tools have shown to be adaptable over time and to be in fact particularly powerful in addressing competition in dynamic industries including technology.
As you also know, the dominant rubric for assessing competitive harms under antitrust law has long been the consumer welfare standard. It measures the effect of a particular business practice or transaction in terms of its impact on consumers at large. It accounts for a wide range of consumer-centric measures including pricing, product quality, product variety, and innovation. And by considering barriers to entry as part of the competitive analysis, it ensures that markets remain contestable.
And this standard applies in all markets, technology and beyond, and it provides a well-understood uniform conceptual framework, allowing agencies and courts to assess whether certain business behavior is anti-competitive. This uniformity is a key benefit as it ensures the degree of predictability in enforcement. And to be clear, the consumer welfare standard has been interpreted in a flexible manner to address buy side or monopsony competition concerns including buy side in the labor market.
While some commentators have recently criticized the consumer welfare standard, I believe there’s no workable alternative that would provide the comparable predictability and certainty about what is legal and illegal. In the absence of that predictability that business badly needs, antitrust law will fail to deter bad actors while at the same time discouraging productive investment because there will be two greater risk for capital allocators of their pro-competitive conduct being mistaken for antitrust violation.
Moreover, claims that movement away from the consumer welfare standard is now necessary to ease the government’s burden and merger challenges are truly belied by the government’s strong level of success in court over the past 20 years. And that’s before you start to count private antitrust enforcement action, which is a force multiplier for government in America such as exists in no other country in the world.
Given all this, we believe the technology markets and all markets should continue to be covered by the existing antitrust framework, centered on the consumer welfare standard and operated by the existing regulatory agencies. We don’t believe we need new law or new agencies. And we’ve seen that this approach can work in an increasingly technology-driven economy. Going back years, antitrust actions against technology companies has stayed close to the contours of existing law to the benefit of competition and providing certainty for continued investment.
Think about the Intel litigation of the late aught that Chipmaker faced a number of suits from both private litigants and government. Those suits generally challenge the terms of Intel’s distribution practices, including exclusivity provisions in distribution agreements, market share-based discounts and predatory bidding against key rivals. Those challenges made extremely effective use of existing antitrust standards that are there today.
In 2010, the main private plaintiff with the SCC and the state of New York each entered into substantial settlements to resolve their allegations with Intel. And to this day, I think there’s broad agreement that that approach worked very effectively. Another good example a little bit before was the federal government’s antitrust lawsuit against Microsoft in the late ‘90s.
The government alleged that Microsoft had imposed various legal and technical restrictions on personal computer manufacturers to entrench the position of the Microsoft operating system. Existing antitrust standards allowed the government to hold Microsoft the… and I believe those standards are available today and equally useful to bring any unlawful actions of any other Big Tech platform company under control.
The story here is the same and the story could be the same in future, a dominant incumbent employees’ contractual and technical restrictions to exclude competitors, hampering the ability of those competitors to achieve the scale needed to sustain competitive viability. And in today’s economy, there is nothing more important than scale. Those specific technologies may differ, but each case is built upon the same core elements. The suits allege specific product markets, specific barriers to entry, specific agreements, specific conduct, competitive harms, including harms along non-price dimensions such as innovation.
And as enforcement cases involving other industries, those technology cases succeeded because each of those elements were proven to bear out antitrust violations. The federal government can and should use these long-established tools within the existing legal framework to curb anti-competitive abuses by any companies, including today’s platform companies. And the prior administration did make a start.
In October of 2020, the DOJ alleged that Google has monopolized the search market, cutting off competitors from key distribution channels. And as you probably all know, the allegations there are nearly identical to the Microsoft litigation of 20 years ago where DOJ argued that Microsoft used its monopoly power to cut off rival browsers. The FTC is also using traditional antitrust cases against Meta in a case again brought by the prior administration. In December, 2020, the FTC sued Meta, then Facebook alleging a monopoly in social networking through illegal acquisitions and cutting off API access to prevent competition.
Those cases, as you know, are now proceeding through discovery and are heading towards trial. And while we watch and wait for action from DC, the state attorney generals on both sides of the aisle are taking up the initiative to challenge Big Tech platform companies’ dominance. There’s a 17-state challenge to Google’s online advertising practices led by Texas, and California is pursuing Amazon for violation of California’s antitrust and unfair competition laws.
To date, the Biden administration’s Big Tech enforcement efforts have not centered on conduct but on merger transactions in the gaming space. FTC is currently suing to block Meta’s acquisition of the company Within, the maker of a popular virtual reality fitness app. And the FTC is also challenging Microsoft’s acquisition of the video game developer Activision in an administrative proceeding.
M&A-focused enforcement efforts by the FTC and DOJ are no doubt important. Merger control is an important tool to protect competition and innovation and place much needed scrutiny on the M&A strategies of powerful incumbents. Respectfully, however, blocking mergers in discreet industries will not curb current ongoing harm, but most merger challenges focus on competition in the future. And we think the FTC and DOJ could move today to stop wide-ranging harm that is occurring in today’s markets. Even beyond litigation, traditional tools include for the FTC, section 6(b) of the FTC Act, which allows it to collect information regarding the business conduct or practices of entities in particular industries.
In December 2020, more than two years ago, the FTC used this authority to launch an investigation focused on Big Tech platform companies and their use of data. We in the ISP area had a similar investigation. The results were reported in October of 2021. The other investigation affecting the Big Tech platforms, now over two years old, no findings yet, no report, and we encourage the FTC to issue recommendations from its study quickly so that lawmakers and regulators can be informed and guided by its findings.
In some, we believe there’s no good reason to deviate from the consumer welfare standard or the other tried and trusted tools available to antitrust regulators. They’ve proven themselves so many times over time and in the face of truly innovative technologies that are thrown out by our economy. So, to conclude, I believe both these strategies, legislation and enforcement based on existing law are well grounded in common sense and have the potential to unite policymakers across the political aisle in a common cause. And I think we can all move forward together towards solutions.
We at Comcast are committed to being part of advancing this process and we urge the Biden administration and Congress to move with this bipartisan support. While the Big Tech platform companies have acquired unique levels of control over the data that’s essential to the digital economy, we can find ways to mitigate that power without in any way destroying value. And in fact, I’m confident that we can amplify that value by fostering an explosion of competition. And I think that’s a vision that we can all rally around.
So, I would just like to end there. Thank you all of the New York State Bar Association for the opportunity to share these thoughts with you today and wish you a very good dinner.
Mary Marks: Thank you, Tom, for those thoughtful and relevant remarks. Everyone enjoy their dinner. We’ll be back after for the awards portion of the evening.
Ilene Gotts: Everyone, five-minute warning. We’re going to resume the program in five minutes. I’ve been overruled and I hear two, but I think we will probably go for five.
Mary Marks: All right. In order to get to the dessert portion of the evening, we have to do a couple of more housekeeping events and awards. It looks like most people have taken their seats, so I’m going to go ahead and get started. I hope you all enjoyed dinner. We’re going to recognize Steve and honor Justin in just a minute. But before we do that, I would like to recognize Elaine Johnston, our outgoing chair for her dedication and service to the section. Unfortunately, Elaine is not able to be with us tonight, but I know her colleagues at Allen & Overy are here at the table, so we’ll give a couple of… there we go.
I wanted to just say Elaine had this role during the extended COVID period, and her role as chair during the past year was difficult. We were trying to get back in person, at least early on, we didn’t even try to get in person. She had the challenge of trying to do hybrid meetings, actually get people in the New York City at 8:30 in the morning, which turned out to be a big hurdle even though she kept trying it month after month. But I did want to just recognize her.
She’s been on the executive committee for over 20 years and in the leadership for the past six years. So, her year this year as chair, vice chair, secretary, and she also spent three years in the role as finance officer. So, she has been a big supporter of the Antitrust Section. She’s dedicated a lot of her time and efforts to the section and we miss her here tonight and wish she could be here so that we could thank her. But in honor of Elaine Johnston, a round of applause. And we have a lovely clock that she’ll be receiving in the mail now.
So, it is now my pleasure to turn the floor over to Pat Janaco, who will present this year’s Lifland Service Award to our well-deserving recipient, Steve Tugander. So, where’s Pat? There’s Pat.
Pat Janaco: Okay. Good evening, everybody. It is so nice to be back in this room after our long pandemic hiatus and it’s particularly great to be here because tonight, I am honored and delighted to present the Liftland Service Award to Steve Tuggander. Steve has for many years through his career and activities, exemplified the values that the Liftland Award stands for, commitment and service to the field of antitrust. Steve’s career with the Antitrust Division began in 1989 when he moved into the office two doors down from mine as our honors program attorney that year.
God, he was young then. He was just out of law school, but a quick study, he rapidly grew into the job and became an integral part of both the office and the matters to which he was assigned. Over the years, I had the great good fortune to work with Steve on a number of matters, both criminal and civil. I thoroughly enjoyed working with Steve. He is a good partner and a team player, and I admired his work ethic, his intelligence, his humor, and his unwavering commitment to the work of the division.
Fittingly, Steve’s hard work and achievements have been acknowledged with multiple awards by the division. Here are just a few of them. For two years running, Steve received the Assistant Attorney General’s Outstanding Contribution Award for his work on the point of purchase display, bid rigging and fraud investigation.
He also received the Assistant Attorney General’s Award, as well as the IRS Chief’s Investigative Excellence Award for his critical role in the division’s wide-ranging investigation of bid rigging and fraud in the municipal bonds derivatives industry. And he was the inaugural recipient of the Ralph T. Giordano Award for Excellence in Cartel Enforcement. Good job, Steve.
Steve extended his commitment and talent beyond the division by joining the New York State Bar Association Antitrust Law Section in 2000. He has held several positions in the section’s leadership, including chair of the executive committee. Over the years, he has been an active contributor to the section’s programs, organizing, participating, and moderating panels at our annual meetings and for a time running the section’s program for Summer Associates.
Notably, he worked closely with the late Steve Houck and others creating and organizing what is now known as the Steve Houck Antitrust Trial and Expert Training Academies. These truly outstanding programs provide young practitioners opportunities not only to hone their skills, but to encounter the particular challenges of antitrust trial practice. I can personally attest to their excellence and value.
And if that is not enough, Steve gives generously of his time as a mentor to young attorneys and attorneys to be through the formal mentorship programs of this section, the New York American Inn of Court and his alma mater Hofstra Law School, as well as on an informal basis. I don’t think it’s natural for Steve to say no to any opportunity to contribute. He is always ready to step up. For example, he took on the supervision of the New York office’s role in the division’s Judgment Termination Initiative, an effort for which he received yet another Assistant Attorney General’s Award.
But Steve is not just a consummate professional stalwart contributor to the field of antitrust in the section. As many of you know, he is an enormously likable guy. He quickly became a friend to me, as well as my regular coffee and lunch buddy, someone to talk to not only about work, but about our families and lives outside the office. On that note, I would say that Steve’s signal achievement is having raised with his lovely wife, Juliet, their bright, talented, and beautiful daughters, Josette and Elise, to whom Steve is a devoted father. Incidentally, as some of you may know, Steve and Juliet met at the Antitrust Division, yet another career highlight.
So, Steve, I am honored and happy to present you with the Lifland Service Award, which you so very much deserve for your service to the section and the practice of antitrust law. Congratulations and I wish you many more years of success as the fine member of our profession that you are.
Steve Tugander: Thank you very much. Thank you. Thank you. Thank you. Thanks. Thank you, Pat, very much for those kind remarks. It’s been my good fortune to call you a friend, Pat, for 33 years and I hope we can call each other friends for at least another 33 years. I want to go back sometime in the 1990s. My wife Juliet, as Pat mentioned and I were new attorneys with the DOJ. We were members of the Antitrust Law Section, but not particularly active. So, one year we decided to attend the section program and dinner, which at the time was held at the Marriott Marquis. And we have to thank Ilene Gotts for moving us into this beautiful university club.
I remember leaving the program and dinner in awe of the attorneys who led the section back then. People like Meg Gifford, Bob Hubbard, Steve Houck, Steve Edwards, Pamela Jones Harbour, Barbara Anthony, Barry Brad, Harry First, Ned Kavanaugh, Eleanor Fox, just to name a few, and Bill Lifland, of course. I was inspired by their knowledge and enthusiasm for the field of antitrust law. I was inspired by the fact that they were willing to donate their time and energy to a cause above and beyond their already busy day jobs. I admired the sense of collaboration and camaraderie. I remember telling Juliet, “I want to get more involved in this section.”
So, a short time later, I called Bob Hubbard. I think Bob is here. There he is. Bob was a section chair at the time. I asked Bob, “Is there something I could do to help this section?” And this was actually back in the days when we actually called people on a landline phone. We didn’t send them an email or a text. And this was way before anybody had heard of Zoom. So, when I called Bob, I expected him to ask me to stuff envelopes or file papers or something similar, and I would’ve been happy to do so just to start getting involved. But instead, Bob offered me the opportunity to organize and moderate the Annual Summer Associates Program at Fordham Law.
It turned out to be more responsibility than I had expected. And although I was a bit nervous to take on the project, I was grateful for the opportunity. So, the program wound up generating a big turnout of enthusiastic law students. For me, it was a very satisfying experience to help future lawyers in their careers. I became hooked on the work of the section. My prior call to Bob Hubbard turned out to be one of the best calls I ever made. As the years pass, my involvement of the section has provided me with everything I could have hoped for and more. I’ve learned tons, made long-term friends, and developed a sense of camaraderie with my fellow section members.
And over time, the section itself has grown in leaps and bounds. We now have a large number of important subcommittees, many headed up by smart, young, enthusiastic lawyers. And perhaps what I’m most proud of is the fact that the section has continued the Steve Houck Antitrust Trial Training Academy because it will benefit an untold number of antitrust attorneys and will keep Steve’s vision and legacy alive from many years to come.
The section’s future is very bright indeed, and our best work is surely still ahead of us. And likewise, as most of us in this room are aware, the practice of antitrust law in 2023 is more prominent than ever before. In fact, it seems like the only thing that both parties and Congress can agree on is that there should be more antitrust enforcement.
So, my message to the newer antitrust lawyers in the room tonight is this, get involved in the section’s activities, make that phone call. There’s never been a better time. So, in closing, let me just say that the section has given me much more than I have given it. I’m honored and grateful to receive this award and to be in the company of Bill Lifland and all of the prior, very deserving recipients. Thank you.
Mary Marks: Congratulations, Steve. In 2021, the Antitrust Section created the Justin Batten Award for outstanding service by a young lawyer in honor of Justin, a remarkable young antitrust lawyer who was taken from us too early. Going forward, the award is to be presented every other year to a practitioner who has been admitted to practice for not more than eight years in recognition of their outstanding service and contributions to the Antitrust Section. As you know, we have not met in person for the past few years and Greg Asciolla will now present the inaugural award to Justin’s fam.
Greg Asciolla: Thanks, Mary. Erica Weisgerber, our committee officer who was going to present this award tonight was unexpectedly called out of town yesterday. She sends her most sincere apologies. I spoke with her this morning and know how much presenting this award meant to her. And when I read what she had prepared, it was clear to be why, and that it is most fitting to share with you her own heartfelt words about her friendship with Justin Batten. And that’s what I’d like to do now. And again, what follows is her own words.
I first met Justin at the ABA Annual Spring Meeting in April of 2018. A friend introduced us and Justin proceeded to tell me with wide-eyed excitement about all of the fascinating panels that he had attended that day. I was struck by Justin’s enthusiasm about all aspects of antitrust law and invited him to join me as I left the conference to attend the evening cocktail parties. Even though we had only met hours earlier, by the end of the night, Justin felt like an old friend. I told him he had to get more involved with the New York State Bar Associations Antitrust Section when we returned to New York. And he said he would absolutely do so.
After we returned to New York, Justin made good on his promise to get more involved in the NYSBA Antitrust Section. He began attending every event we had. When I was planning programs, Justin asked how he could help and he would be the first to show up and the last to leave. That was Justin. He was someone who showed up. He was also someone who paid it forward. As our section’s liaison to the young lawyers’ section, Justin focused on engaging more young lawyers with the section and would make sure that the young lawyers felt welcome at our events. He wanted everyone to feel included.
Over the next year, Justin took on more formal responsibilities in the section, helping coordinate the section’s Mentoring Program and the Spring Fling. Justin brought energy, enthusiasm, and boundless optimism to everything he did. As we worked to match mentors and mentees for our program in early 2020, I realized that Justin and I were the model of what our program was seeking to create. Justin brought initiative, new ideas and hard work and helped do the legwork that ensured that our section programs were a success.
And in turn, I would meet with Justin to advise him about his career direction and suggest ways he would get more involved with the Antitrust Section, the broader antitrust community. I’m sure you can see why I shared Erica’s words about her friendship with Justin. They embody the very essence of Justin and the spirit of this award. Enthusiasm, inclusion, commitment and service. Our section has been at a great loss without Justin’s engagement and leadership. He was a future leader of our section and we will miss having the benefit of his initiative.
In memory of Justin’s outstanding service to the Antitrust Section, we created the Justin Batten Award for outstanding service by a young lawyer in his honor. The award is to be presented to practitioners who have been admitted to practice for not more than eight years in recognition of outstanding service and contributions to the Antitrust Section. The award seeks to identify and honor young lawyers who are dedicated, reliable, and passionate about what we do as Justin was.
It is only fitting that Justin himself is the first recipient of this award, which we have the honor tonight of presenting to Justin’s parents, Wade and Judy Batten, in person. We welcome Wade and Judy to come up and receive this award on Justin’s behalf. And I know they like to say just a few words.
Wade Batten: Well, certainly, I haven’t prepared any speech or any notes, but just a few short words. First of all, just thank you to everyone that has been so kind to us over the last several years since we lost Justin. Thank you to the New York State Bar Antitrust Division. We knew that Justin loved this work. It’s all he talked about when he came home. And again, just a great organization. We know now over the past two and a half years why he loved this work, why he loved this organization. There’s just so many wonderful people. We’ve seen that tonight. We’ve seen it time and time again.
So, again, I want to thank the New York State Bar and Association for recognizing Justin for honoring his legacy. It’s rare that such a young man has a legacy. Usually, that’s for folks my age that has retired after 40 years in the industry. And I guess the last thing I want to say is I certainly want to thank our friends and the family over, to Scott+Scott, which is where Justin worked. Those works were so great to us. Thank you.
Mary Marks: Okay. So, the moment we’ve all been waiting for. The dessert buffet is open. And please join us for continued conversation and beverages in the reception area. Thank you all for coming. And thank you to Tom Reid for being our keynote speaker. Goodnight.