The Supreme Court in 2022

Mary:                                  That’s the panel. The past year, [inaudible 01:51:59] has put together a diverse group to discuss anti-trust in the Supreme Court.

Ben:                                     Thank you, Mary. Thanks to all of you. I’m going to pretend that the decrease in the lights is all intentional. That we’re trying to create a certain mood here. So, if it all goes on in five minutes, that was intentional too. As Mary said, I’m Ben Sirota from Kobre and Kim, I am absolutely thrilled to be moderating this discussion today on antitrust in the Supreme Court. For those of you who are at Eli’s panel, I was a little concerned, because it was billed as a description of 2022. You started encroaching a little bit into 2023. I was heartened that he stopped in January, because we are claiming the future, from February 2023 and beyond.

This is really intended to be a predictive exercise where our terrific panelists are going to be speculating- there we go, all intentional. Speculating on what the supreme court is going to do in one years, five years, 10 years, 20 years, and beyond on antitrust issues. Before I introduce our panelists, just one remark to bring the discussion. The Supreme Court has been depicted in pretty stark terms of late, and with some good reason. We have the conservatives on the one hand, the liberals on the other. It’s depicted as battle of textualism on the one hand, respect for precedent on the other. Again, good reason for a lot of that. But, I’d like to submit that, at least where anti-trust is concerned, it might be a more nuanced picture at the court. Possibility for some unique alliances among justices, interesting sort of bridging of gaps that we might see, and we’ll be talking about that today.

So, to introduce our panel, at your right we have Jeff Kessler, who’s the co-executive chairman of Winston and Strawn. He also co-leads their global competition practice and their sports law practice. He’s argued and tried several high profile sports law and antitrust law cases, including the NCAA case before the supreme court, argued during Covid, to a unanimous result for his clients, we’ll be talking about that today.

We have Keira Campbell, who’s vice president and chief antitrust council for Am Ex, where she has responsibility for the organization’s global competition remit, with the exclusion of Europe. Before that, she practiced at two firms in New York and Australia.

We have Eric Citron, who’s a partner at Goldstein and Russell outside DC, a supreme court and appellate litigation boutique. Eric is really, I think, tailor made for this panel, having clerked for two supreme court justices, I think two judges beyond that if I’m correct, and litigated a variety of appellate issues, including an antitrust treaty.

And, we have Robin van der Meulen from DiCello Levitt in New York, who has litigated cases involving price fixing, monopolization, benchmark, commodities manipulation, and many others he will speak on the plaintiff perspective.

One thing I’ll note is I’ll try to leave about five minutes for questions at the very end. So, first question goes to Eric. It is a foundational question, which is does the supreme court care about antitrust? We know they care about big ticket constitutional questions, do they care about antitrust? They take 1%, 2% of cases a year. What are the factors of an antitrust case that might make them willing to dive in?

Eric:                                     Well, I think the answer is that the Supreme Court doesn’t not care about antitrust. I think there is some interest there, or there are at least a handful of justices who think themselves antitrust experts or at least know something about antitrust. And, one barometer for whether they care about antitrust is whether they would take a case like American Express even when there wasn’t a circuit split, but nothing otherwise for them to take the case.

But, I think they are interested. I think you will see some interesting cases in the future. But, the supreme court is also kind of beholden to the process for how cases come up, and we haven’t had a good supreme court merger case in a long time. In large because the merger cases just don’t last long enough to get tried all the way up from district court to the court of appeals to the supreme court. And that may never change.

Antitrust cases tend to be big, complex cases, where the fact patterns are pretty different, even when they have superficial similarities, and that limits the extent to which [inaudible 01:57:34] that’s really what it’s about. The supreme court will take cases. The reason we don’t have all these good old cases that they used to see in the direct appeal jurisdiction of the supreme court, so it may just be you have a right to appeal to the supreme court. But, now that it’s certiorari  jurisdiction, they’re much more willing to bargain.

Ben:                                     Okay, so not a ton of antitrust cases at the court. But, certainly, there may be some in the next five to 10 years. And, I’d like now to dig into the substantive areas of antitrust law and hear from the group on that. Keira, what might we expect on the merger in the future?

Keira:                                  So, thanks everybody. Let me start with the related disclaimer that the reason why I did not represent those [inaudible 01:58:19]. So, as I think Eric started to allude to, there hasn’t really been a lot of merger cases in the supreme court. Really you need to think back 10 years ago, next month, was Phoebe Putney [1:58:35] because the supreme court didn’t want the merger cases, it wasn’t really a merger case, but the state action had the doctrine. So, I think before that, you try to go back a couple of decades to really get a merger case up to the supreme court.

That said, I think there’s a lot of really interesting questions about merger perspectives and accomplishments that aren’t really ripe for the supreme court to take. I think that would include something like merger efficiencies, like whenever you’re doing a merger you’re thinking about what efficiencies can be credited and you’re largely limited to the agency’s guidance on that and then a couple of appeal court decisions. It’s not something that has been addressed by the supreme court, and I think it’s an area that would be great to see the supreme court take. But, as Eric has pointed out, it seems really hard to find a case where the parties of the interest, and more importantly I think practically the time in a merger agreement to be able to get to the supreme court.

I think another really interesting area would be potential competition. And, maybe that’s a case that if the parties are so inclined, you may see some from within when that hopefully is still at the trial stage, it doesn’t get a decision, then you have to go appeal, then go to the supreme court. But, I think that’s also an area where there hasn’t been a lot of jurisprudence [inaudible 02:00:21] in decision by the supreme court. And, it would be remiss to say, there are a couple of cases that are currently on appeal, [inaudible 02:00:32], which also raise really interesting questions about the definition and potentially take us to change the structure, but again I think it’d be great. We could see where it goes.

I think it all comes down to just practically it’s hard to have the timing in your agreement and the wherewithal to get it to the supreme court. So, I guess if the past is a predictor of the future, maybe it’s going to be another while before we see the supreme court have a merger case. I’d be happy to be wrong on that one.

Ben:                                     Quick follow up question on that. Do folks think that the supreme court would be more willing to take a merger case, saving all the factors you mentioned about why it’s difficult for one to get to them, if it were more private merger challenges? So, in other words, we’re starting to see, it’s small sample set, but some more private merger challenges than we’ve seen in the past. Is there anything about the court where they might say, well, if it’s private litigants advocating on behalf of blocking a merger as opposed to the government, that might make us somehow more willing to take this on, or is that not really going to be a factor in their interest in this?

Eric:                                     I mean, I guess I would say, ironically, it’s probably the opposite. Even though we haven’t seen many supreme court cases on mergers, the best possible presentation in which they’re likely to grant a case is if the justice department is trying to block the merger, wins it in the court of appeals, and a petition is served. The court grants something like 55%, 60% of the solicitor general’s petitions. So, again, if the United States cared enough to bring an appeal from an unsuccessful appeal into the court of appeals, then you could see a grant. But, the parties are probably going to close their transaction, and then they’re going to tell the supreme court, hey, this case is practically moot because we already closed the transaction. You can’t even unscramble a team with it. The court of appeals was wrong, and so we did a block, things that might dissuade them.

But, I think that’s the way it’s most likely to come up. Given that there are at least some court of appeals that are skeptical, maybe that is the way we get a merger case up to the supreme court.

Keira:                                  Sorry, I should also add I think that the other appointments [inaudible 02:03:13] votes is essentially the merger guidelines and how aggressive they take the different respect to changes in the standards. And, that is considered critical for the agents because maybe that’s something they really want to try, but I think it’s also a concern maybe they know one another, what they’re extended [inaudible 02:03:38].

Ben:                                     Okay. Let’s now turn to the issues near and dear to Robin’s heart, those dealing with simple plaintiffs including her.

Robin:                                 Sure. So, from a personal perspective I would be thrilled to have one of my class action cases go before the supreme court. But, putting on my plaintiff class action lawyer hat and thinking realistically, I sure hope that I’m not going to be in front of the supreme court anytime soon with any of my class action cases. If you look to the recent history of the supreme court, even when it wasn’t nearly as conservative as it is now, things hadn’t necessary gone well for class actions, including antitrust class actions. We have [inaudible 02:04:22], which everyone knows, Breeze, the curing standards, the possibility standard, we have Comcast, which they note said that they showed they can prove damage in a class wide basis at the class certification stage. Walmart v. Dukes, and more recently, Goldman Sachs v. Arkansas teacher, which sort of reinforced that courts do have to delve into the merits of the extent as it relates to class served.

That’s all fine, I don’t think any of those cases were really a major blow to antitrust class action by any means, but I certainly don’t want to push that now with a six, three conservative. And, even, Ben said we might talk about later, it’s not clear that it would be six against plaintiff’s class action antitrust, but it’s not really a bet that I want to take at this point. If I had my wish, and I thought it was the right court, I think ascertainablity standard is ripe for a supreme court to sort of decide. I think that the third circuit kind of mucked that up a few years ago and came up with a standard that class action plaintiffs at the class cert stage have to show that they’re administratively feasible way to identify class members. And, I think that their circuit has been thinking that a little bit and how that applies to antitrust, we’ll see. But, I think the majority of circuits that have taken it up have gone my way, which is a little bit lesser standard showing that plaintiffs have to show that they can define the class by some objective criteria.

I would love for the supreme court to finally have a say on that, but again, I would not want to bring that up to the current supreme court unfortunately. So, maybe not so good for the plaintiff’s class action [inaudible 02:06:10].

Eric:                                     Can I share one thing about that? I’ll try to go fast. It’s interesting. The supreme court has both a conservative streak and an antitrust skeptical streak. It comes from the same human beings having been involved in the contextualism and originalism solution, and the Chicago school of economics. So, judges like Bork, Posner, they exemplify people who are doing both of those things at the same time. And, it was true of Justice Scalia and Justice Thomas as well. They do it every soap in Chicago school of economics and the corner of federal focus is on. That isn’t as true anymore.

Things sort of are changing compared to how most of the republican party and the conservative legal intelligentsia behind us. Antitrust in particular, even though I would say plaintiff side versus defendant side issues. And, so maybe there’s actually some learning for this to happen for economic justice cases to create unforeseen or interesting or surprising overlaps among the [inaudible 02:07:32].

Honestly that is a really open question, if it’ll happen.

Ben:                                     Okay. Now, turning to Jeff. I’m assigning you an incredibly broad category of basically everything civil that’s not mergers, any developments we might on that broadly. So, I’ll put that out there.

Jeff:                                     Let me pick up the discussion we just had. I won’t even outreach and that if this court takes an antitrust case, it might be much more pro antitrust than the prior court was. I think particularly replacing Scalia with Gorsuch is a sea change on that issue. Gorsuch, you may or may not know, started out as an antitrust lawyer on the plaintiff’s side, and if you read the decision in Alston that I argued, it was very clear to me that he was going to write that decision during the argument. It is basically putting aside the issue in the cases [inaudible 02:08:44].

It is a little mini treatise of about seven or eight pages where he goes through restating all the basic antitrust principles as he understands them. And they are midstream to leaning toward plaintiffs in terms of how you interpret those cases. And, I think that’s indicative of where he is. And, if you read Kavanaugh’s concurrence in Alston, it’s pretty clear that he can be incredibly pro-plaintiff this case that motivated him at least in the Alston case.

So, I think Kavanaugh and Gorsuch are contentiously pro plaintiff votes. I don’t think it’ll be extreme, but I don’t think it’ll be what people fear before in terms of conservatives. You might win on ascertaining nobody, or something like that with that group. But, I have no idea where Barrett is on this, because she’s never written about it, never spoken about it, so I have no view on where Barrett can land, but I wouldn’t necessarily view her as Chicago school in that camp either. So, again, she might go along, she tends to be pretty close to Gorsuch if you look at how she comes out on a lot of these things. So, all I’m saying is a lot more plaintiff’s potential I think on the antitrust side that’s there.

Now, I don’t think they’re going to take a huge number of cases. I agree that I don’t think there’s a four-justice passion for antitrust, so maybe we’re looking at one or two decisions a year. And, so it’d be very interesting what pops up. And, if I had to think of what might pop up out of the current landscape of where we are, watch the issues involving the FTC. So, you already have one FTC-related case pending before the court that’s going to, if they win, change who channels their jurisdiction, but those concerns really go into a real textualist concern about the authority of the FTC. And, my guess is whatever rules the FTC comes out with finally covering stuff to repeat the challenge, that’ll be a sustained challenge and they’ll appeal to the supreme court. And, that’s going to be much more a case about regulatory authority than it’s going to be about antitrust, but it terms of the antitrust practitioner [inaudible 02:11:53] cutting back on sector five.

We have the C act which I suspect this court might be hostile to pulling apart from what I said. There’d be pro plaintiffs in other context just like the regular courts too.

Ben:                                     Yeah, it shows how complicated it is, your comments about Gorsuch in particular because, let’s say on the one hand he’s pro plaintiff, let’s also say the textualist side of him is going to favor a literal reading of the Sherman Act. So, restraints of trade are illegal, full stop. I don’t really care so much about all the precedent and the constraining of that. On the other hand, he’s clearly concerned about government overreach. So, if the government brought a case in particular where the statute might push in one direction but he’s concerned about over aggressive prosecution and the like, where is he going to come out? I don’t think it’s so clear.

Robin:                                 I just read Gorsuch’s dissent in Apple Inc. v. Pepper, which was a little earlier than Alston, and it was pretty scathing of Kavanaugh. That kind of gave me pause, too. I think if you’re a private enforcer, Gorsuch’s opinion there makes me nervous.

Ben:                                     Yeah. Yeah.

Robin:                                 Just showing again that it’s hard to read the team there.

Ben:                                     Absolutely. Jeff, you had a nice segue to the FTC. I think all of us can agree the FTC is not really acting in a shy way recently. In some ways, maybe bringing on the scrutiny. Is the court likely to weigh in on the breadth of the FTC’s authority? Including in this rule-making context that we talked about in the first panel. And, if so, what results?

Eric:                                     Yeah, I basically agree with Jeff. I think Congress [inaudible 02:13:45] to what I said about antitrust, [inaudible 02:13:55] supreme court is not particularly a fan of regulators. We believe that context is very broad, yes. We think that is. So, their basic view is base things off of congress, not government agencies. And, so I think they’re skeptical of the FTC, and I think this is an important point, things that come up from the FTC do kind of have a pipeline to the supreme court. Where it eventually becomes likely. The reason is everything the FTC appeals goes directly to the DC circuit. The DC circuit is incredibly vast and left leaning, and so you’re likely to see certain timely decisions on the DC circuit that the supreme court might disagree with.

And, the other thing is there’s this view, which isn’t always true, but it’s mostly true, that some things that come up from the DC circuit aren’t going to come up from any other circuit, because the plaintiff can always go to seek where they’re at in an administrative law challenge. And, so you see a lot of things that are just part of the circuit less. And so you can take it to the bank that this FTC rule about the noncompete clause is going to be at the supreme court 2026, I think. Maybe 2025, unless they rule something at the DC circuit and decide not to try and appeal.

Ben:                                     The last substantive issue I’ll mention is criminal antitrust. I think there’s been a trend line now that started in the Obama administration of the government being more aggressive in defining what is big gain, what is high expecting, that’s on the one hand. And, on the other hand, saying there’s this new conduct that we’re telling you going forward we’re going to prosecute criminally. I think in the current composition of the court, the sort of Gorsuch concern we talked about earlier, Sotomayor about government overreaching, we might see them taking a case in this area. And, particularly on no poach or one of these areas if the government gets even more aggressive and goes into areas where as recently as five, 10 years ago people thought it was perfectly lawful. Not even rendering someone subject to civil condemnation.

You might see something like that with, again, interesting bed fellows.

Jeff:                                     I like this one. I don’t think no poach is the issue, because if you look at Alston, this court is very much into applying the antitrust law in labor markets, and that fits in where I think how Gorsuch and Kavanaugh view that. I think on section 2 criminal monopolization Gorsuch would go crazy, because that’s completely against the following as to why that conduct is, and it’s there. They actually get conviction as opposed to a plea. I don’t know if they get a conviction, but if they can get a conviction obviously that would be ideal. That would, I think, make a lot of hostility [inaudible 02:17:21] and you’ll have there the strange [inaudible 02:17:24] will have three liberal justices worried about the vagueness of criminally defined standards versus government overreaching, like the only Gorsuch thing on that paper. But, they can sustain that section 2.

Ben:                                     Yeah. And, I guess so much depends, this goes back to the first panel, but on what the cases actually look like. If they’re essentially criminal, hardcore conduct cases that just get charged as monopolization maybe not so much. But, if we have what looks like civil monopolistic conduct then I absolutely agree with you.

Robin:                                 Can I say one thing on this, too? I thought it was interesting that, I think it was the past year, the supreme court heard two criminal cases with individual defendants were charged with workplace misconduct, and were found guilty. One was a big rigging and real estate auction market, the other had to do with the two note price fixing case. And, the defendant argued that the first standard proved to be unconstitutional because they’re telling the jury [inaudible 02:18:25] the jury who’s obviously find that agreement, that’s it there’s no other consideration. Once a jury see if there really was a restraint of trade then they know full competitive justification is the say. And, the supreme court eyes are over these, which is interesting for their team to keep the standard in place, including when it’s an individual [inaudible 02:18:48]. But, I think there is some talk that maybe don’t poach might be a place where they’d reconsider that there already are cases percolating against individuals. But, to Jeff’s point, there’s really the language, like a force of habit on his private opinion about how price fixing labor isn’t price fixing per say.

I think they currently see it as unlawful.

Jeff:                                     Yeah.

Robin:                                 Whether or not criminally there’s something unconstitutional too, I think it could be something that could be addressed.

Ben:                                     Yeah. So, Jeff, you sort of teed us up a couple times, but tell us more about the [inaudible 02:19:23] case and I think there’s several questions that I have at least. How do you assemble the coalition of all of the supreme court justices on your side? How do you prepare for an argument in 2021 during Covid? And, tell us a little bit about the facts of the case, and why you think the court was interested to begin with?

Jeff:                                     So, the facts of the case was a class action challenge through Staples. It’s called the state maps. And, he challenged it on the death of the highest level of football players-

Speaker 11:                       The highest level of football players. Football players usually went… Basketball players. And the case was coined as a section 1 case, under the football rulings. Which is pretty significant there. We didn’t even argue with [inaudible 02:20:23] could have tried that because there was a predecessor case in the 1970s that the judge felt bound by that had said they have all the more reason but because of the NCA’s defense of amateurs, we have a right to, if we have an amateur product [inaudible 02:20:45] product.

So we went through a judge trial, damages were settled since we just left injunction. We won before the judge in the trial, it was unanimously approved by the united circuit. Then, frankly the NCA made a terrible mistake. Which I think they recognize now, [inaudible 02:21:11]. They sort of took this view that we talked about, “Well it’s a conservative court, it’s going to be good for us. Let’s go up and do this.” What they succeeded in doing was basically rendering useless a 37 year old precedent called Regents versus NCA, which they had relied upon for 37 years in all the lower courts to justify all of their restrictions.

So by going to the Supreme Court it got much worse for them. [inaudible 02:21:48] foolish. And it all came down to preparation. It was a [inaudible 02:21:54] argument which meant it was remote, it was no video, because the Supreme Court doesn’t allow any video, and it was under a format which they had which I actually learned to love, which is that each justice was given three minutes to question. So basically you’ve got two minutes to say your piece and then they interrupt you. And then it was 27 minutes of just answering questions.

And the reason I really like that is you got a feel for exactly what each justice was thinking. Every justice used their whole three minutes, so you really got that. And previously if you’ve been to the Supreme Court which we know, maybe two or three justices would dominate the entire argument and you had no idea where the other justices actually were, and usually the two were against each other so even those two were trying to figure out how to appeal to the others. But here you could see where each justice was. So I really liked it.

It was extraordinarily difficult to prepare for, because why? Because the justices were on a clock, the chief was enforcing the three minutes rule so they wanted their questions to come out and they constantly interrupted and they did want to [inaudible 02:23:28] people. And so I did three separate rooms remotely, preparing to be constantly interrupted, to train myself to shut it down as soon as a question came up from one of the justices about that.

In terms of how the coalition came together, the nine of them, the people said to me “Are you optimistic?” I actually was optimistic but if you ask me to predict that we’d win 9-0, no that was not on my radar that it was going to come out that way. So why did it come out that way? Well one is that it generally speaking I think there’s been a sea change on how the world views big time college sports. That is probably the most important factor than everything else, you remember 37 years ago when this Board of Regents case which is what they relied upon, that was a case where the Supreme Court struck down an NCA rule challenge by some of the big schools that prevented them from doing their own TV broadcast. And it actually led to the explosion in college sports, but in that decision the court went out of its way to have long kind of ode to the importance of amateurism and how this would be treated differently.

And so that’s the core the NCA played, [inaudible 02:25:06] and they got a number of servants they did in all sorts of positions. [inaudible 02:25:10] that is based on the board of regents.

Speaker 11:                       And somehow this some type of special status the NCA had that no one else had, and if it wasn’t complete immunity it was as close to complete immunity that you could get. Well there was zero sentiment for that in the Supreme Court because the prevailing [inaudible 02:25:35] new is, when you’ve got spread the conditioning cultures in Alabama making a million dollars a year which is twice what the president of Alabama is making, this ain’t an amateur sport, okay, it’s a huge commercial business that makes more revenue than any professional sport in the United States except for the NFL, it makes more than the NBA, more than major league baseball.

And using that lens, the idea that there was something magic about this was out the window. Then you had this combination of liberals and conservatives, again you had Gorsuch and Kavanaugh, who were probably the most aggressive justices in viewing that this was illegal, and it was a cartel. Kavanaugh the most, but they were joined by Kagan and Sotomayor. And so you put together four justices on that who felt pretty strongly on the issue, well each of them kicked up the rest of their group, and [inaudible 02:26:43].

The most skeptical judge, [inaudible 02:26:48] was Breyer and you’d say going in “Oh Breyer is liberal,” [inaudible 02:26:53] but Breyer had this kind of nostalgic view in his heart for college sports, the myth of college sports as opposed to what was in [inaudible 02:27:08] is. In the end his head won out over his heart, and he said “Yeah but that’s what the conditional coaches make, 50 million dollars. So I guess the vision I had doesn’t exist anymore.” The people who have that vision of amateurism, basically it’s a myth. So the strength we had, is we had ten days of trial, and we had all these fact findings that made it pretty clear it was a myth and the only interesting legal issues, the big legal issues, the NCA didn’t respect the deference and the answer [inaudible 02:27:46] offered was no.

They basically said, to the extent that anyone read Board of Regent’s that way, that is no longer good law in terms of the willingness to abandon precedent. It was Victor anyway, but then he said that Victor had meaning that’s now gone. So that’s what he said, the NCA could do much worse.

The other issues that were interesting, which they didn’t really resolve, were how do you apply the reasonably less restrictive test under the rule of reason, that was actually the ninth circuit has this interesting twist on the language that it has to be virtually as effective as a less restrictive alternative, as marked down in the section one. When we get to the current step of the rule of reason. There were also interesting questions about what do you balance at the end of the third step, is there a fourth step. But none of that matters.

So basically you can read Gorsuch’s summary of section one and it’s a great honor if there’s any case now, as this order of the Supreme Court understand it. But none of those issues mattered in the end, ’cause basically they just said, if trial court got a right these findings back, these are findings of fact, this is an unreasonable [inaudible 02:29:02]. Down the line. He would never.

Speaker 12:                       That’s all fascinating. And I think particularly the framing of the case as less about what’s the doctrinal rule the court wants to look at and more, what are their gut feelings about professional sports going to be. It begs the question for me, and this can be for anyone to weigh in on, are there other aspects of American life that there are some data points to suggest the court would have a view on, would like to weigh in on, whether it’s platforms, other aspects of the economy, that with the right case they may have some strong feelings about the way we conduct life. Anyone want to weigh in on that one?

Speaker 11:                       A hundred percent that’s true. The wisest saying of Jack Senna was what had changed was the way that people had viewed the NCA, basically as a force for evil in the world.

Speaker 13:                       I think in the value of that fact, that strengthen the conditioning coach.

Speaker 11:                       But the anniversary [inaudible 02:30:12] case came out the way it did [inaudible 02:30:19].

Speaker 13:                       [inaudible 02:30:29]

Speaker 14:                       I think it’s important to focus on the zeitgeist as a force that moves justices. [inaudible 02:30:42] what their ideological affiliates are talking about. And for sure the tech companies know that the fact that they have an unfriendly relationship with conservatives in Washington is not very good for them when they’re doing things like arguing at the Supreme Court. And I hear that’ll be true of an increasingly large swath of the business community. [inaudible 02:31:12] politically in Washington. So anyhow, that’s another reason why I think we’ll get some interesting thoughts coming [inaudible 02:31:18]. But at the end of the day, the justices also [inaudible 02:31:21] Columbia. Those legal cases. They may have commitments to legal positions that trump that view. There’s going to be a lot more openings than there used to be.

Speaker 11:                       So now we know Kyra that your job in advising a large international corporation is not just to look at what rules exist and what may exist, but to follow the zeitgeist, and predict the zeitgeist of the future. Not an easy task. Kyra do you want to weigh in on generally speaking what aspects of Supreme Court law you’re following, you think are important, particularly in your role.

Speaker 13:                       Sure. So a huge part of [inaudible 02:32:02] traditional [inaudible 02:32:05] is tracking legal developments. And one or two more trends, I think up to and including the Supreme Court, I think that’s the first part of my day, looking at developments not just in US but internationally. It’s my responsibilities and it’s important for me to look at what the trends are, what the paces are, both as it relates to anti-trust but also more broadly, beyond anti-trust. Just for US business trends in generally. So I find it invaluable and really critical to my role that I’m up to date what the trends are, what the cases are, what may potentially be going to the Supreme Court and I think that’s what the business expects from to be honest. I think if I’m in a meeting and they’re thinking about different new services, new developments, I need to be up there as well, what may be on the horizon. In a variety of perspectives, in particular including Supreme Court.

Obviously the Supreme Court has been very important to American Express so we have a huge amount of weight and importance to its decision and that infuses how I approach trafficking about the Supreme Court. So I would say I’m looking at both setting cases that may be going in and also [inaudible 02:33:56] briefs that are being filed, or requests for [inaudible 02:34:00] where we may be seeing a trend on the horizon.

Speaker 11:                       Thanks. Robin I’m going to circle back to you talk a little bit more about the plaintiff view. Obviously based on what we’ve talked about before, it may be a bit of a mixed bag. In terms of whether the court is plaintiff friendly. We do have this data point of Apple versus Pepper, one of the few anti-trust cases in the last five years or so. What does that case tell you, what other predictions do you want to make from your perspective.

Speaker 13:                       Like I say before, although Jeff has maybe changed my mind a little. Generally speaking it’s the same as anti-vax. Plaintiff anti-trust class action lawyers are probably trying to avoid Supreme Court at the moment, especially on class action issues, but I did look back at Apple v Pepper, and there’s a lot of good nuggets that give you some hope for how Justice Kavanaugh might come out. But also just litigating class actions in the lower court. But it’s interesting, Kavanaugh join with at the time four liberal justices. But there are only three [inaudible 02:35:15] now so I don’t know how Apple v Pepper would come out. Gorsuch wrote, like I said, a pretty strong opinion, really opposed on every point to what Kavanaugh was saying in that opinion. And it was of course joined by all of the conservative justices.

But like I said, it’s obviously a great opinion for plaintiffs in private court class actions and so when I was reading I was struck by how many things we can carry forward from that opinion. It certainly reinforces the importance of private enforcement. At one point in the opinion Kavanaugh was rejecting one of [inaudible 02:35:52] and this is a straight quote, he recognized the quote “Long standing bull of effective private enforcement of consumer protection and [inaudible 02:36:00] and noted that Apple’s arguments would undermine that. So I was happy to find that, and I’m sure I’ll find a place to put that and quote it [inaudible 02:36:10]. It reinforced that damages in anti-trust cases can be complicated and they will almost always require extra testimony.

But Kavanaugh noted that’s not unusual and that’s not, “A get out of court free card for a monopolist retailer to play any time that a damages calculation might be complicated. And I think the plaintiff’s lawyers will appreciate that and recognize that we give that thought, that there’s this argument that the damages are too complicated, we can’t certify the class, and so I think that’s a good point to take away from Apple v Pepper.

It reinforced that monopolists, especially at the retail level are some of a point in the distribution chain can be liable to two different plaintiff groups for their full damages, as long as they’re not a [inaudible 02:37:01] situation. And Kavanaugh noted that Apple could very well be liable to both damages, different damages not duplicated damages to both the app developers on one side and the consumers who are purchasing the apps on the other side. I think that import is particularly tech spaces and other spaces where companies have similar compensation structures. The condition model that Apple exploits in this case.

And of course there’s the old standby [inaudible 02:37:30] from 1977, and the court, Kavanaugh I think did a good job of reinforcing what that holding is, made it clear. He said of course [inaudible 02:37:43] joint purchaser can do, if there is no intermediary in the distribution chain between the purchaser and violator then the purchaser can sue. So I think it’s a nice straight forward recounting of [inaudible 02:37:57] that will be helpful again in some of the tech space.

But I think there’s an important take away and its one I’m mindful of and I know Kavanaugh have a quote about mutual suppression enforcement, private enforcement built into the [inaudible 02:38:17] acts, certainly that is backed by decades and decades of precedent and we have now reinforced it again, the importance of private enforcement. And in particular class actions, the class action mechanisms of anti-trust is recognized all the time as a really important tool. And of course the public regulators are vital but cannot be expected to police all anti-trust violations for a lot of reasons, resources being a good one. And private litigation, class actions, the only way for people who are harmed to recover damages. You don’t give back money for the DOJ recovers fines.

So again, the big backlash everyone knows that will reform class action plaintiffs, class action for all, evil ambulance chasers, extortionists, whatever you want to say, has in fact spilled over into antitrust lawyers too and anti-trust class actions. And I think that’s unfortunate. So I was heartened by Kavanaugh recognizing the importance of private enforcement and I think ANY real hope, if I can hope that the current Supreme Court will do that is to keep that in mind, it’s not just cases like Jeff’s case where it might be a competitive case but it’s class action are important and I would hope that the Justices keep that in mind, if there is [inaudible 02:39:40] sentence. [inaudible 02:39:43]

Speaker 12:                       Okay. I think we’ve got about five more minutes. I’m going to pause here to see if there are any intrepid questioners. Make yourself known, I do have questions if no one has a question. Okay. I guess my final question is, so far what do we know? We know that the Supreme Court doesn’t like the NCAA, that seems clear. We know that there might be this Sotomayor-Gorsuch concern about government thing going on. What other quirks could we credibly forecast? What other alliances among justices, what other weird idiosyncratic results you might not expect going in? Anyone want to wager a guess on that front? And this is for anyone.

Speaker 13:                       I think I’ll just say, somewhat ironically that the court losing justice Myers actually opens up a lot of law uncertainty that will go in a potentially more world enforcement, liberal direction. It’s known that Justice Breyer, is not like, he will end up running the dissenting side of some of the cases. That’s just because the news [inaudible 02:41:14]. Justice Caseman didn’t want to write the opinion. But he’s actually not a bomb thrower by any stretch of the imagination. Rather, under [inaudible 02:41:29] mostly it’s just [inaudible 02:41:29]. Without his voice at the Supreme Court it is not as clear where it will and has gone in a potentially plaintiff friendly direction more because as you said there are good textualist arguments for taking it very broadly.

So I think we don’t know that much actually.

Speaker 12:                       So if I was in the big tech [inaudible 02:41:54]. I think one are these government cases might make its way to the Supreme Court [inaudible 02:42:05] people like Facebook, or going forward one of the other big platform companies and I think you could see again on overall restored level, a hostility towards the platforms from both liberals and conservatives that could lead to a significant movement in favor of the plaintiffs side of antitrust in terms of how platforms operate, and what kind of restrictions are imposed.

Speaker 13:                       And I know I promised only one more question, but this is really the flip side of the same questions so I’m going to go for it. Which is, are there any issues that practically scream out for court attention but people just don’t think we’re going to see it, and I think we touched on this earlier with mergers, that difficulty of getting a merger case up to Supreme Court, are there any other areas that people on the panel would love to see a particular rule but that’s just going to be practically very challenging to get?

Speaker 12:                       The merger guidelines are a really fascinating piece of law, because they will probably never be reviewed in a court for a [inaudible 02:43:30] action, or emergency action problems and the like, but obviously it’s an enormous influence on private behavior, obviously it would be interesting to know what the Supreme Court actually thinks about it. Aspects of the merger guidelines, I think actually they’d be very, very hard to imagine.

Speaker 13:                       Well I think that’s our time, I see Mary here so thank you so much, Jack, Kyra, Eric, Robin, thanks to all of you, really enjoyed this.