6TH BILL KOVACIC ANTITRUST SALON WHERE IS ANTITRUST POLICY GOING? WASHINGTON, DC - SEPTEMBER 24, 2018 SPONSORS MEDIA SPONSOR PROGRAM 1:15 pm REGISTRATION 4:45 pm A JUDGE’S EYE VIEW ON ANTITRUST: 1:45 pm WELCOME REMARK AND OPENING MERGERS, CARTELS, REMEDIES... KEYNOTE SPEECH Mark ISRAEL I Senior Managing Director, Compass Lexecon, Washington, DC Bill KOVACIC I Professor, George Washington University Law School, George PAUL I Partner, White & Case, Washington, DC Washington, DC Maureen OHLHAUSEN I Commissioner, US FTC, Washington, DC Michael BAYLSON I Judge, US District Court, Eastern District 2:30 pm «POPULIST» ANTITRUST: of Pennsylvania, Philadelphia A DEVIANT MUTATION OR Moderator: Douglas GINSBURG I Judge, US Circuit Court for the District of Columbia AN OVERDUE CORRECTION? Einer ELHAUGE I Professor, Harvard Law School, Cambridge 5:45 pm CLOSING KEYNOTE SPEECH Cristina CAFFARRA I Vice President, CRA, London/Brussels Bill KOVACIC I Professor, George Washington Law, Washington, DC Rebecca Kelly SLAUGHTER I Commissioner, US FTC, Washington, DC Alex OKULIAR I Partner, Orrick, Washington, DC Barry LYNN I Executive Director, Open Markets Institute, Washington, DC Moderator: John BRIGGS I Partner, Axinn, Washington, DC 3:30 pm COFFEE BREAK 3:45 pm SHOULD THE NEW TITANS BE TAMED? LESSONS FROM THE US, EU, AND CHINA Ian CONNER I Deputy Director, Bureau of Competition, US FTC, Washington, DC Gail LEVINE I Head of US Regulatory Affairs, Uber, Washington, DC Peter DAVIS I Senior Vice President, Cornerstone Research, London Alvaro RAMOS I Senior Director - Head of Global Antitrust, Qualcomm, San Diego Moderator: Christopher YOO I Professor, University of Pennsylvania Law School, Philadelphia 1 - WHERE IS ANTITRUST POLICY GOING? - WASHINGTON, DC, SEPTEMBER 24, 2018 CONTENTS FOREWORD he 6th edition of the conference in antitrust litigation from the perspective of SYNTHESIS 03 organized by Concurrences judges adjudicating those cases. Overall, VIDEOS 11 Review and The George the conference provided numerous insights Washington University Law on ways antitrust might change in the ATTENDEES 12 School was attended by 116 people times ahead, as well as on ways where PRESS REPORTS 13 on September 24, 2018. Attendees this change might have challenges. encompassed enforcers, academics, We would like to thank our sponsors - Axinn, INTERVIEW 15 economists and attorneys who engaged Charles River Associates, Compass Lexecon, in a lively debate about where antitrust TESTIMONIALS 17 Cornerstone Research, Orrick, Qualcomm, policy is headed with main issues including and White & Case - who helped make this “populist” antitrust, increased concentra- event such a success from both scholarship tions in many US industries, technological and networking perspectives. titans increasing their market power, and antitrust enforcement continuing to show We hope to see you for the 2019 confe- important differences between the US and rence. Meanwhile, we welcome you to other jurisdictions, most notably the EU. dive into some of the key features of the A special panel covered important issues 2018 conference. Bill Kovacic Nicolas Charbit Director Chief Editor GWU Competition Law Center Concurrences Review WHERE IS ANTITRUST POLICY GOING? - WASHINGTON, DC, SEPTEMBER 24, 2018 - 2 OPENING KEYNOTE SPEECH WILLIAM KOVACIC William Kovacic opened his remarks by pointing ding: hiring illegal aliens, evading taxes, and rights to the prospect of treble damages – so out that universities, like George Washington placing environmentalists on boards of repeat they proposed solutions – like tougher screens University, provide the natural place to foster polluters. This set of ideas sent a tremor through for damage claims, and more demanding discussion and new ideas in antitrust. Over the the entire field. liability standards – that would make antitrust last 40 years, the two predominant schools of friendlier towards large companies. They Kovacic then explained that unlike public thought have been the Chicago school, and the essentially formed a coalition to change anti- enforcement, the leading academic schools Harvard school, both featuring a strong focus trust enforcement. Bork took the center and on consumer welfare, and adoption of policies of thought, Chicago, and Harvard, went the center-right. Areeda took the center and center- that favor less scrutiny of dominant firms. As a opposite direction. Robert Bork of the Chicago left. With any major political change, they could result, the modern antitrust world became a lot School penned manuscripts which propose shift antitrust enforcement towards this new more favorable to dominant firms than it used leaving egalitarianism and focusing on consumer ideological direction. to be. This has inspired changing the framework welfare. He wanted no rule at all for predatory In the end, Kovacic concludes, that’s exactly of the debate in the other direction. pricing (because it had too complicated analysis, and questionable standards and conclusions). what happened. The 1970s ended with a Mr. Kovacic put the current question of where His view of public enforcement was dismal; massive Congressional backlash, and multiple antitrust policy is going into the historical context he thought public agencies increased their funding lapses to FTC. On top of that, politicians of the last 40 years, using the example of influence without increasing public benefit, started making promises contrary to FTC FTC’s egalitarianism being replaced by Chicago and that they made companies put out fires mission in exchange for votes, e.g. that if they and Harvard’s consumer welfare standard. without a clear direction forward. Similarly, the are elected, they would make sure the FTC does not break up Kellogg, which was a concern Kovacic explained that during his time at the Harvard School thought that competition law at the time. By the end of 1980s, Michael FTC in the 1970s, then Chairman Michael should leave egalitarianism, and focus on Pertschuk’s vision was no longer FTC’s agenda. Pertschuck outlined his competition policy, fundamentally economic orientation. Main And the Chicago and Harvard Schools have which included a strongly articulated egalita- members include Philip Areeda, architect of defined antitrust enforcement ever since. rian enforcement vision. Pertschuck noted the school and author of famous work «Anti- there was a need to redefine what antitrust is trust Law»; Donald Turner, and Carl Kaysen. Kovacic finished by positing that in order to restruc- about, and to develop competition policy in Their influence is undeniable – Supreme Court ture antitrust now, new proposals will need to the “broadest sense”, which meant that no Justice Stephen Breyer, majority author in deal with this strong tradition. The proposals will responsive competition policy can neglect the Trinko, and Twombly cites all three authors in need to take on Areeda and Turner’s “adminis- social and environmental harms produced as the decisions. Areeda thought law should trability” argument if they want to take along those unwelcome byproducts of the marketplace, exhibit «administrability» (his invented word), enforcers shaped by Areeda and Turner’s works. e.g. resource depletion, energy waste, and which was the idea that rules have to be subject They will still need a different approach for those worker alienation. Pertschuck concluded that to effective implementation. He considered shaped by Bork. And finally, they will need to FTC would conduct a large scale investigation the egalitarian goal of «fairness» a vague claim. match commitments with capability. Who will do of the impact of macro concentration on our Together, the Chicago and Harvard Schools it? At what cost? Over which timeline? How will lives, and offered very broad examples of what thought that antitrust enforcement over-deters it end? Only then will the new proposals be able might be unfair methods of competition, inclu- companies – from the national style of property to make antitrust policy go in a new direction. 3 - WHERE IS ANTITRUST POLICY GOING? - WASHINGTON, DC, SEPTEMBER 24, 2018 PANEL 1 “POPULIST” ANTITRUST: A DEVIANT MUTATION OR AN OVERDUE CORRECTION? John BRIGGS (Partner, Axinn) moderated It was a call-in show. On the radio show, the a movie theater and a small pharmacy might the first panel. He started by pointing out how AAG and BRIGGS were asked about the pros not look like a classic antitrust concern, but it seems reasonably clear that we could be at and cons of the Department of Justice’s then- the callers thought that it was, and today such an inflection point in antitrust. For the past few pending case against Microsoft relating to matters are again being brought to the fore decades, the field has been increasingly tech- browsers and Microsoft’s decision to integrate as one object of the bounty of antitrust laws. nocratic, the consumer welfare standard has its own browser into its operating system. They BRIGGS noted this is where the panel starts been seen as “the gold standard,” and even did so. The phone lines were dead. They the discussion, and what a better person to though antitrust has deep roots in concerns discussed the case further. No calls. Briggs start it, than the man most active in this direc- about concentration, monopoly and monop- was then asked to comment on some local tion, Barry LYNN. sony, concentration in many industries, and transactional matter of possible antitrust interest. apparent monopoly and monopsony, have He mentioned the CVS acquisition of the largest Barry LYNN (Executive Director, Open Markets been increasing. Today, there are many voices drug store chain in Washington, which brought Institute) opened by establishing that his presence asking for antitrust to address topics such as about great change to his neighborhood. CVS on the panel is a testament to the antitrust monopsony in labor markets, increased concen- purchased the building that housed the MacAr- community’s dedication to open debate, as tration and market power, individual and regional thur Theatre, closed to the theater, and turned he considers himself the populist on the panel. wealth inequality and other economic condi- it into a large CVS drug store.