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Competition Corner by Alden Abbott - Conference Recap

Competition Corner by Alden Abbott
Competition Corner by Alden Abbott - Conference Recap
By Alden Abbott  • Issue #2 • View online
In this special, supplementary newsletter, we are following up on the recent inaugural Mercatus Antitrust Conference held on January 26, 2022, bringing a condensed review of the day’s developments. For those of you who were able to attend, thank you for your support. For those who missed out on the event, feel free to head over to the event page for panel descriptions and a full length conference video.

Conference Highlights
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Kovacic: will Biden antitrust reforms stick? Time, judicial doctrine, institutional limitations works against transformational change.
“Why should any nation trust the views of a system that claims it got it wrong for 40 years?” - Bill Kovacic
The first speaker of the day was Bill Kovacic, Global Competition Professor of Law and Director of the Competition Law Center at George Washington University. During his speech, Kovacic looked at developments in antitrust since Biden took office, and placed their significance within the historical context of previous antitrust movements. As the world increasingly turns to Europe for guidance on competition policy, where will the U.S. fit in for the next 40 years? Truly a must watch for any antitrust course – see the event page for the presentation, or reach out and we will get you the video.
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Diana Moss: AAI advocates strengthening, clarifying, and modernizing the antitrust laws, a less broad approach than totally new laws and standards.
The second speaker was Diana Moss, President of the American Antitrust Institute. In her speech, Moss laid out a path forward for antitrust, advocating modernization and clarification of the current antitrust statutes, not a clean sheet rewrite of the laws. But strengthening of antitrust alone, she says, is not enough. Complementary overhauls of consumer protection, IP, and labor laws, along with new agency regulations, are the only way to mend market failures, privacy and deception problems, and labor monopsony.
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Barry Nigro: Updating antitrust laws will not happen overnight, FTC will need to go to court. What is changing however is FTC merger review process. Have changes helped FTC be a more effective enforcer, or rather have they frustrated effective enforcement?
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What are antitrust implications of Justice Breyer's just-announced retirement? Ohlhausen notes Breyer's focus on institutional capability, Blumenthal notes Breyer's thoughtfulness on ad law questions, Hoffman notes Breyer's dissent in American Express.
For the panelists on the FTC panel - Mergers, Rules, and More - the first year of Biden’s antitrust enforcement posed more questions than answers. Svetlana Gans, Bill Blumenthal, Bruce Hoffman, Koren Wong-Ervin, Barry Nigro, and Maureen Ohlhausen participated in a riveting discussion on all things FTC, from seriously questioning the FTC’s rule making authority to scrutinizing the proposal to change the merger guidelines. News of Justice Breyer’s retirement broke during their panel, and while the ideological balance of the court will not change, Olhausen, Blumenthal, and Hoffman note some implications of his retirement, seen above.
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Commissioner Wilson: During first year of Biden Administration, FTC merger enforcement in practice has looked remarkably similar to FTC merger enforcement under Chairman Simons during the Trump Administrations. Ditto for consumer protection.
“Governing is hard” - FTC Commissioner Christine Wilson
“Governing is hard” was the opening point of FTC Commissioner Christine Wilson’s lunch keynote speech. She focused on looking at the agency as it is now, not how it may be in the future. Jurisdictional boundaries are meaningful, Commissioner Wilson said, and they cannot be ignored to cure all of society’s ills. When highlighting funding constraints and tradeoffs that are made at the highest level, Commissioner Wilson spoke to the recognition of tried and true approaches to antitrust enforcement within the Commission. At a time when antitrust policy seems to be in the midst of a shakeup, it is refreshing to hear Wilson stress that, up to now, the FTC has continued to faithfully enforce the law in a way that is remarkably similar to previous administrations.
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Eric Grannon: A new AAG can move quickly in implementing new policies and priorities, does not need to get buy in from Commissioners (as at FTC), can act directly. See example of non-competes being put immediately in the crosshairs. Bringing cases quickly.
The big question for the DOJ panel was “what can the new AAG change?” Howard Shelanski, Juan Arteaga, Tom Barnett, Andrew Finch, and Eric Grannon each took turns discussing developments at the agency in the past year and looking to the future with AAG Kanter at the helm. Overhauling policies and procedures, holdover tech sector cases, and labor are, in their opinion, the major priorities in the short term, along with overhauling the merger guidelines in the longer term. Arteaga mentioned the necessity for Kanter to meet with career staff and solicit their views, and Finch noted there needs to be a clear delineation between civil and criminal cases, since proof beyond a reasonable doubt may be difficult in specific labor cases.
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International panel. Rill: What will be extent of US influence and what direction will it take? Check forthcoming USG participation in multinational and bilateral fora.
Will the U.S. remain influential in antitrust policy? Has the EU overtaken the U.S. on the international stage? How does the recent Intel decision by the European Union General Court impact competition policy going forward? Judge Douglas Ginsburg, Aurelien Portuese, James Rill, Bilal Sayyed, and Fiona Schaeffer discussed all of these topics and more. Schaeffer noted the courts are adopting a decidedly U.S. approach to the Intel decision, looking at economic analysis and anticompetitive effects. Portuese noted legal uncertainty due to the current shakeup in antitrust ideology deters innovation and the EU developments weaken the U.S. voice on antitrust. Rill continued that there is a risk of reduced U.S. global influence in general with the emergence of EU policy dominance.
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According to Dr. Rob Kulick, no general trend of rising industrial concentration in US economy from 2002-2017. What's more, where they are found, increases in econ concentration are associated with economic growth and job creation, particularly for high growth industries!
The last speaker of the day, Dr. Robert Kulick, presented findings from a forthcoming paper studying the U.S. economy between 2002 and 2017. While overall policy decisions cannot be gleaned solely from his analysis, he finds there is no general trend toward rising industrial concentration, and where higher concentration is found, increases in economic growth, job creation, and efficiency are also found. His presentation can be seen here. Stay tuned for his full paper coming this year.
Recent and Upcoming Events
The inaugural Mercatus Center Antitrust Conference brought together leaders from the antitrust community to discuss the state of antitrust enforcement policy, here and abroad, during the first year of the Biden Administration. If you missed this event, check the Mercatus website for highlights and recordings from the event. 
Now in its 25th year, Alden Abbott will be moderating a panel discussing competition in the European Union. Head over to the GAI website to register and click here for the schedule. This is always a stellar event and attendance is highly recommended.
Alden Abbott, along with Brian Love, of Santa Clara University Law School and Taraneh Maghame, of VIA Licensing Corporation, will explore the recently issued Draft Policy Statement on Licensing Negotiations and Remedies for SEPs Subject to Voluntary F/RAND Commitments, and discuss how the U.S. patent, standards, and competition policies can help to effectively balance the interests of SEP holders, downstream innovators, and consumers in the voluntary consensus standards process.
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Competition Corner will bring monthly updates from Alden Abbott directly to your inbox. Competition, technology, patent, and innovation policy topics are all on the table, and each issue will include a survey of scholarship and commentary from Alden and various collaborators.

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