Episodes
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In this episode of Ruled by Reason, AAI goes international! Enforcers from the U.S., New Zealand, UK and Chile talk with Kathleen Bradish, Vice President and Director of Legal Advocacy, about their agencies’ cross-border work to stop price-fixing cartels. Leah McCoy, Juan Correa, Louise Baner, and Grant Chamberlain, whose agencies are heading up the International Competition Network’s Cartel Working Group, tell us about the important role of the CWG in advancing cross-border enforcement and give us a preview of some of CWG’s exciting new projects. These include initiatives that reflect on-going, long-term concerns of international enforcers, like improving international cooperation and addressing obstruction. Other projects address emerging challenges like the specter of algorithmic collusion and the effect of complex networks of privacy laws on evidence collection. Our conversation concludes with Chile’s and New Zealand’s perspective on how ICN, and the Cartel Working Group in particular, can aid newer and smaller agencies.
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On this episode of Ruled by Reason, we explore the ramifications of the Google search case from a unique perspective—the rival search engines that have been directly affected by Google’s alleged monopolistic conduct. As the antitrust world eagerly awaits a decision this spring, AAI’s Kathleen Bradish interviews DuckDuckGo's Kamyl Bazbaz, VP of Communications and Public Affairs, about his impressions of the recently argued case. This episode unpacks how Google’s conduct, including “marathon” sized payments to OEMs to ensure default status, cuts rivals off from major access points and stymies customer choice. Bazbaz weighs in on the potential remedies that could help restore competition to search and improve customer’s online experience.
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Missing episodes?
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On this episode of Ruled by Reason, AAI’s Kathleen Bradish talks with Open Market’s Sandeep Vaheesan and the American Economic Liberties Project’s Erik Peinert about the pro-enforcement community’s views on the draft Merger Guidelines recently released by the FTC and DOJ. This is a wide-ranging and in-depth discussion about how the proposed changes succeed in advancing better merger enforcement, where they fall short, and what beneficial modifications could be made to the final version.
Using each organization’s comments to the draft Guidelines as the jumping off point, Bradish talks with Vaheesan and Peinert about the proper role of guidelines, the importance of structural presumptions, the differences between treatment of vertical and horizontal mergers, and the viability of the efficiencies defense. The discussion concludes with thoughts about how to maximize the practical impact and the long-term viability of the Guidelines.
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In this episode of Ruled by Reason, guest host Roger Noll, Professor of Economics, Emeritus, at Stanford University and AAI Advisor sits down with Erik Hovenkamp to chat about his award-winning article The Antitrust Duty to Deal in the Age of Big Tech” (131 Yale L.J. 1483 (2022)). Professor Hovenkamp is Assistant Professor at the USC Gould School of Law. His article argues that the law on exclusive dealing has failed to distinguish between “primary” and “secondary” refusals to deal. The article explains that the suffocating evidentiary requirements imposed on refusal to deal claims should not be applied to secondary refusals to deal because they do not implicate the same innovation concerns that motivate suspicion of “primary” refusal to deal claims. Instead, Hovenkamp argues that secondary refusal to deal claims should be evaluated analogously to tying or related vertical restraints.
Antitrust scholarship that is considered and selected for the Jerry S. Cohen Award reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.
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On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk with leadership at the U.S. Department of Justice, Antitrust Division about the newly released merger guidelines. Moss and Bradish are joined by Susan Athey, Chief Economist for the Antitrust Division and Michael Kades, Deputy Assistant Attorney General for the Antitrust Division. This is the 7th revision of the merger guidelines since they were first released by the antitrust agencies in 1968. The revisions are notable for many reasons, not the least of which is their timing, which comes at an inflection point in antitrust enforcement and competition policy. The draft guidelines address a number of growing concerns around consolidation, including high and rising concentration, high barriers to entry, and the emergence of dominant firms and tight oligopolies in key markets. The revised guidelines also take on issues not addressed head on by previous agency guidance, such as the effect of mergers on the loss of worker bargaining power, firm growth through “serial acquisitions,” the complexities of partial ownership and control, elimination of potential entrants, and the emergence of business models, such as digital ecosystems with multisided platforms. Today’s episode unpacks these and other key takeaways from the draft merger guidelines.
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On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk about competition and cloud technology markets. AAI recently issued the report: The Cloud Technology Market: Storm of Innovation or Rainy Days for Competition? Moss and Bradish unpack AAI’s analysis of a vitally important market in the digital economy, beginning with the explosive growth in cloud computing over the last two and a half decades. The report identifies the major cloud players and asks: What is the state of competition in the market? For example, is technological dynamism driving new entry? Are players jockeying for position by stealing share from each other? What does this all mean for how cloud providers compete with one another and are they any warning signs that competition may be flagging? Most important, how should antitrust enforcers and competition policymakers be thinking about promoting competition in cloud?
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On this episode of Ruled by Reason, AAI Vice President for Legal Advocacy Kathleen Bradish hosts J. Wyatt Fore and David Golden of Constantine Canon to discuss their work in private antitrust enforcement under the Shipping Act. They explain how consolidation in the shipping industry has led to a serious competition problem, one that came into full view when COVID-19 exposed a dangerous lack of resilience in the supply chain. The conversation covers the role of the Federal Maritime Commission in antitrust enforcement and the role for private enforcement in working alongside the FMC to encourage greater competition in shipping. Wyatt and David discuss their own experience litigating in front of the FMC and improvements that can be made to the process to make it easier for private plaintiffs to bring meritorious claims. This episode is for anyone interested in finding out more about competition in an industry that touches on nearly every aspect of our lives. After listening, head over to the AAI website to read Wyatt and Kathleen’s white paper “Competition Enforcement, Private Actions and the Shipping Act” for a deeper dive on the issues raised here.
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On this episode of Ruled by Reason, AAI President Diana Moss hosts two leading healthcare competition experts. Laura Alexander is Director of Markets and Competition Policy at the Washington Center for Equitable Growth and Brent Fulton is Associate Research Professor of Health Economics and Policy at the University of California at Berkeley and Associate Director of the Petris Center on Health Care Markets and Consumer Welfare. They take up an increasingly troubling issue in healthcare competition: growing private equity ownership of physician practices. The conversation previews major takeaways from a soon to be released study between AAI, UC Berkeley, and WCEG, funded by a grant from the Arnold Foundation. Moss, Alexander, and Fulton discuss the penetration of private equity ownership in the U.S. across a variety of physician practice areas, growth in market share and concentration, and effects on prices. This episode is a must-listen for those following consolidation in critical healthcare markets and its implications for prices, healthcare costs, antitrust enforcement and healthcare policy.
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On this episode of Ruled by Reason, AAI President Diana Moss hosts David Smith, CEO of Associated Wholesale Grocers, and Chris Jones, SVP of Government Relations and Counsel for the National Grocers Association. They take up a front-line issue: consolidation in the retail grocery supply chain and the threat it poses to smaller independent grocers. The accumulation of market power has spurred an ongoing cycle of bulking up to gain bargaining leverage over suppliers and customers, with significant effects on smaller players in the supply chain, including farmers and ranchers, small food brands, regional dairy and protein processors, food wholesalers, and independent grocers. The conversation focuses on how powerful retail grocers engage in various methods to exercise their buyer power, often at the expense of independent grocers; what enforcement and policy tools are available to combat it; and what further consolidation in retail grocery means for competition and security of the food supply chain.
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In this podcast episode, AAI President Diana Moss sits down with two airline pilots, Kelly Ison and Eric McEldowney, to talk about the effect of airline consolidation on labor workforces. There have been almost 20 airline mergers involving U.S. carriers in the last two decades, six of which have involved mergers of major legacy and low-cost carriers. Today, the sector is dominated by a tight oligopoly of carriers. But consolidation continues, with merger proposals such as JetBlue and Spirit, joint ventures like the Northeast Alliance codeshare, and increasing complexity in the international immunized airline alliances. While the effect of consolidation on consumers remains important, not enough has been said about effects on labor. Today’s episode fills this gap. Moss, Ison, and McEldowney do a deep dive into airline consolidation and how it affects pilots. Their discussion ranges from changes in the industry since airline deregulation in the late 1970s, to consolidation and loss of competition, to policy proposals for promoting competition in airlines for the benefit of airline labor forces.
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In this podcast episode, AAI President Diana Moss and Steven Salop, Professor Emeritus at Georgetown Law, take stock of the Biden antitrust agencies’ merger enforcement record. The antitrust chiefs at the Federal Trade Commission and U.S. Department of Justice Antitrust Division were chosen specifically for their commitment to invigorating antitrust enforcement. As we head into the third year of the Biden administration, now is a good time to assess how the agencies are doing on merger control. Vigorous merger enforcement under Clayton Act Section 7 acts to prevent the emergence of oligopolies and dominant firms, serving as a first line of defense against the accumulation of market power that harms consumers and workers. Moss and Salop cover the ground on two major topics. They first unpack the recently released 2021 merger statistics. While one year of data does not reveal much about longer-term trends in merger enforcement under the Biden agencies, it does shed light on what to watch for moving forward. Their conversation then turns to issue spotting, or what is likely to unfold for merger control at the agencies based on what we have seen under the Biden enforcers thus far.
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In this podcast episode, AAI’s former Vice President of Legal Advocacy Randy Stutz talks with Howard Law Professor Andy Gavil and George Washington Law Professor Bill Kovacic about institutional dynamics that can affect efforts to shift policy and initiate reform from within the federal antitrust agencies. The three discuss lessons from previous efforts to implement significant policy reforms in the 1970s and 1980s (4:05), the challenges of effectively exercising prosecutorial discretion in the face of limited agency resources (13:35), leveraging the FTC’s recent policy statement on Section 5 Unfair Methods of Competition authority (23:35), practical considerations in revising merger guidelines that have been accepted by courts and enshrined in case law (38:55), and whether and under what circumstances agency leaders should be willing to run the risk of losing big cases (52:00).
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On this 25th podcast episode, AAI President Diana Moss and enforcement experts, Stephen Calkins and Benjamin Elga, unpack antitrust enforcement in markets that raise issues around social well-being, human health, and vulnerable consumers and workers. Antitrust is designed to deter and remediate harmful, anticompetitive mergers and conduct while remaining “agnostic” to the markets in which competitive concerns arise. In applying the consumer welfare standard, antitrust enforcement addresses adverse price, quality, and innovation effects and, implicitly, the distribution of wealth between firms and consumers. However, there are some markets where higher prices might beneficially reduce demand for products or services that have adverse effects on society or human health, such as cigarettes, sugar, or violent video games. Similarly, antitrust could sometimes be more aggressive in order to protect vulnerable consumer groups, including lifeline wireless service, or prison inmate calling services. This episode unpacks this issue from both the public and private enforcement perspective, asking how enforcers think about cases involving such markets and what questions they raise.
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In this episode, former AAI Vice President of Policy Laura Alexander discusses the concept of countervailing power and the controversial role in plays in antitrust and competition law with NYU Associate Professor Daniel Francis, one of the leading voices on this subject. The idea that otherwise unlawful cartels, mergers, and collaborations should be allowed between companies facing a monopolists or monopsonists across the bargaining table is a tantalizing perceived solution to counteract the very real problem of persistent market power. Deploying such countervailing power, however, is also fraught with serious risks for competition and consumers. As Francis explains, such collaborations rarely improve competition or minimize the impact of market power on consumers, but do often lock-in or increase existing market power and slow innovation. The conversation starts with an overview of the concept of countervailing power as an antitrust and competition tool, and then goes on to discuss the Journalism Competition and Preservation Act, a bill being considered by the Senate that would apply countervailing power principles to create an exception to the antitrust laws for news organizations bargaining with large tech companies. Finally, the episode concludes with a discussion of why countervailing power remains a persistent idea in antitrust circles, despite its tension with antitrust’s longstanding commitment to competition.
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In this podcast episode, AAI Vice President of Legal Advocacy Randy Stutz talks with two experts who have led pioneering empirical research into antitrust class actions, Rose Kohles and Josh Davis. Stutz talks with Kohles and Davis about the Huntington Bank and UC Hastings “2021 Antitrust Annual Report: Class Action Filings in Federal Court,” and how empirical research into antitrust class actions might challenge the entrenched views of both tort-reform advocates and class-action proponents. The three discuss previous efforts at empirical study of antitrust class actions prior to the Annual Report, which is now in its fourth edition (5:00), the type and nature of empirical data that is available and collected in the Annual Report and the role of class-action policy debate in shaping empirical study more generally (10:10), how empirical data may inform new arguments that support or refute various arguments on different sides of class-action debates (17:43), whether empirical data could inform legal arguments or judicial decision-making in court, including in the issuance of fee awards (25:37), whether empirical data might suggest legislative or other class-action reform proposals (32:32), and interesting developments reflected in the most recent edition of the Annual Report, covering data from 2009-2021 (36:54).
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In this podcast, AAI President Diana Moss talks with two experts about Telehealth and the many issues that it raises for the healthcare system, providers, and patients. These include policy questions around medical licensing, impact and equity, and competition. Telehealth is the distribution of health-related services and information via electronic and telecommunication technology. As a distinct modality, It allows for long-distance patient and clinician contact and the many elements, from patient care to remote admissions. The impact of the COVID-19 pandemic on Telehealth has been notable and health systems, payers, employers, and new entrants have worked to expand Telehealth services. AAI’s guests on this episode of Ruled by Reason will discuss the many questions surrounding Telehealth today. For example, how will health systems deliver complex healthcare services via Telehealth? Which population segments and practice areas are likely to drive future utilization? How will medical licensing policies affect Telehealth moving forward? And how does competition in the healthcare supply chain, especially in health insurance, impact the provision of Telehealth services?
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In this podcast, AAI President Diana Moss talks with two experts in the agriculture sector about corn, a leading U.S. crop. Many farmers bow face serious margin “squeezes.” They pay higher and higher prices to oligopolies and cartels for inputs that are necessary to grow their commodities. But growers then sell into markets where commodity prices are often controlled by only a few firms, such as in proteins, or are subject to the significant vagaries of price fluctuations. This episode of Ruled by Reason will focus on how corn growers are paying high input costs, especially for fertilizer. Economic studies, including a recent one authored by a guest on this podcast, reveal serious concerns about high fertilizer prices. These prices have been set for years by a small group of global fertilizer producers that likely coordinate, rather than compete. Anticompetitive fertilizer prices hurt corn growers and consumers, and imperil the stability and integrity of a vital agricultural supply chain.
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In this episode, AAI Vice President of Policy Laura Alexander discusses third-party litigation funding and its impact on private antitrust class actions with two experts in the field, one of the country’s foremost litigators of antitrust class actions and a representative from a leading litigation funder with deep experience in antitrust. Antitrust class actions are expensive to bring and prosecute. Historically, plaintiffs’ lawyers have used their own assets and traditional bank loans to finance them, in a high-risk/high-reward business model. In the last decade, however, an alternative funding model has emerged: litigation funding firms have begun financing plaintiff-side antitrust litigation for profit using non-recourse debt, shifting risk and reward from the lawyers to the funders and, in the process, changing the landscape of private antitrust litigation and class actions. The conversation starts with a primer on litigation funding, and goes on to discuss how funding decisions factor into leadership and settlement dynamics, how litigation funding impacts which cases are brought and who brings them, and how monetization of claims is changing incentives for opt outs and what that might portend for class actions. Finally, the episode concludes with an analysis of the different role that litigation funding plays in collective actions abroad, and what lessons we might draw from foreign jurisdictions for funding class actions in the U.S.
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In this episode Diana Moss sits down with Carl Shapiro, Distinguished Professor of the Graduate School at the University of California at Berkeley, to unpack the debate over the role of antitrust and how to invigorate enforcement of the antitrust laws in the United States. In framing the dialog over where antitrust should go, they create a multi-faceted conversation that reveals why competition is a broader and important public policy issue problem for a market-based economy and democratic society. Major themes include the controversy over indicators of declining competition, recent changes to the antitrust ideological spectrum, proposed legislative reforms to the antitrust laws, revisions to the Horizontal Merger Guidelines, and the challenges that face the Biden antitrust chiefs at the U.S. Department of Justice Antitrust Division and Federal Trade Commission. These threshold questions have critical implications for the effectiveness of antitrust enforcement moving forward in promoting competition and for protecting consumers and workers.
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In this episode, AAI Vice President of Competition Laura Alexander and Gwendolyn Cooley, Wisconsin’s Assistant Attorney General for Antitrust and Chair of the Multistate Antitrust Task Force for the National Association of Attorneys General discuss the state of state antitrust enforcement. The conversation covers “antitrust federalism” and the current relationship between state and federal antitrust enforcers, unique hurdles faced by state antitrust enforcers, the special expertise state enforcers bring to antitrust enforcement, and the priorities of states in enforcing state and federal antitrust laws. State antitrust enforcers have been leading the charge on everything from non-compete clauses to privacy, and with a reinvigoration of antitrust enforcement at the federal level, new avenues for cooperation and coordination are opening up for states to take on an even bigger role.
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