Episodit
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In the U.S., so-called "per se" antitrust crimes require nothing more than proof that the conduct occurred, relieving prosecutors of the difficult job of proving harm to competition. Is the Fourth Circuit's 2023 opinion in U.S. v. Brewbaker part of a growing judicial trend toward limiting the prosecution of per se cases? Ann O'Brien, the co-leader of Sheppard Mullin’s Antitrust and Competition Practice Group, joins Alicia Downey and Brendan Coffman to talk about Brewbaker and its implications for applying the per se standard in criminal antitrust actions. Listen to this episode to hear about whether the rule of reason might be applied in the criminal context and the U.S. Department of Justice’s possible responses to a changing legal landscape.
With special guest:
Ann M. O'Brien, Partner, Sheppard Mullin Richter & Hampton LLP
Related Links:
Ann O’Brien & Emme Tyler, “Chipping Away at Per Se: Is Brewbaker a Harbinger or Aberration?” ABA Antitrust Law Section Committee Articles (June 6, 2024)
United States v. Brewbaker, 87 F.4th 563 (4th Cir. 2023)
United States v. Brewbaker, Petition for a Writ of Certiorari of the United States, No.23-1365 (S. Ct. June 28, 2024)
Hosted by:
Alicia Downey, Downey Law LLC and Brendan Coffman, Wilson Sonsini Goodrich & Rosati
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With the greater availability of data and algorithms, firms in today's digital age are increasingly generating prices or price recommendations based on individual consumers' personal characteristics and behaviors. Does this benefit or harm consumers, and how should policymakers respond? Sanjog Misra, a Professor of Marketing and Applied AI at the University of Chicago and thought leader on personalized pricing, joins Sergei Zaslavsky and Rubin Waranch to discuss competition and consumer protection perspectives on personalized pricing, as well as policy implications and lessons still to be learned. Listen to this episode to learn more about how economists think about personalized pricing and considerations that may influence regulators and lawmakers grappling with this increasingly prevalent practice.
With special guest:
Sanjog Misra, Charles H. Kellstadt Professor of Marketing and Applied AI, The University of Chicago Booth School of Business
Related Links:
Personalized Pricing and Consumer Welfare
FTC Issues Orders to Eight Companies Seeking Information on Surveillance PricingHosted by:
Sergei Zaslavsky, O’Melveny & Myers LLP and Rubin Waranch, Cooley LLP
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Puuttuva jakso?
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The Robinson-Patman Act (RPA) has a long, controversial history within U.S. antitrust law and economics. In this episode, Mark Poe, an attorney who specializes in RPA litigation, discusses the RPA with hosts Puja Patel and Aaron Yeater. Mark and the hosts explore Mark's view that traditional critics of RPA are incorrect, which he first presented in a recent article in Antitrust Magazine.
With special guest:
Mark Poe, Partner, Gaw Poe LLP
Related Links:
Mark Poe
The Critics Are Wrong: How the Robinson-Patman Act Has Been Misunderstood by Detractors
Hosted by:
Puja Patel, A&O Shearman US LLP and Aaron Yeater, Analysis Group, Inc.
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The U.S. passenger airlines have been active in mergers and acquisitions since last year or so, with the Alaska/Hawaiian acquisition, the failed JetBlue/Spirit merger, and more being proposed. But how are these deals and airline competition in general analyzed from an economic perspective? Dr. Gautam Gowrisankaran, Professor of Economics at Columbia University and Senior Advisor at Cornerstone Research, speaks with Anora Wang and Kelsey Paine on market definition, calculation of market share, entry, and beyond. Listen to this episode to learn how economic analyses lay out in specific airline transactions.
With special guest:
Dr. Gautam Gowrisankaran, Professor of Economics, Columbia University; Senior Advisor; Cornerstone Research
Related Links:
Chris Bruegge, Gautam Gowrisankaran, & Alex Gross, A Policy Function Approach to Price Effects: an Application to the JetBlue-Spirit Merger (Nov. 13, 2024)
Hosted by:
Anora Wang, Arnold & Porter Kaye Scholer LLP and Kelsey Paine, Baker Botts LLP
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The U.S. passenger airlines have seen waves of active mergers and acquisitions including in 2009 through 2013 and again recently since 2023. But who is involved in the legal and regulatory reviews of an airline merger? Courtney Dyer of O'Melveny and David Heffernan of Cozen O'Connor, both with extensive experiences guiding airlines through regulatory processes, speak to Kelsey Paine and Anora Wang about their deal experiences and insights. Listen to learn about origin-destination pair, route overlap, recent matters including the Alaska Airlines' acquisition of Hawaiian Airlines completed in September 2024, and beyond.
With special guests:
Courtney Dyer, Partner, O'Melveny & Myers LLP and David Heffernan, Chair of Transportation & Trade, Cozen O'Connor P.C.
Related Links:
1. DOJ Press Release Regarding DOJ-DOT Joint Inquiry into the State of Competition in Air Travel (Oct. 24, 2024)
2. DOT Press Release Regarding Alaska/Hawaiian (Sept. 17, 2024)
3. DOJ Press Release Regarding JetBlue/Spirit (Mar. 4, 2024)
Hosted by:
Kelsey Paine, Baker Botts LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP
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On the occasion of Lesley Fair's retirement after 37 years in the Bureau of Consumer Protection at the Federal Trade Commission, she returns to Our Curious Amalgam to talk with co-hosts Alicia Downey and Jaclyn Phillips about some of the highlights of her illustrious career. Lesley has been described as “the voice of the FTC,” with a unique ability to translate the agency’s work into plain English. Listen to this episode to learn about Lesley's contributions to the evolution of U.S. consumer protection law, as well as her work with the Antitrust Law Section's Janet Steiger Fellowship program to encourage law students to follow her footsteps to rewarding careers in government service.
With special guest:
Lesley Fair, Former Senior Attorney, U.S. Federal Trade Commission
Related Links:
Federal Trade Commission Business Blog FTC Consumer Advice webpage Janet Steiger Fellowship Project Our Curious Amalgam, Episode #28 "Why All is Not Fair? Four Tips for Complying with Established FTC Advertising Principles (Feb. 2020)Hosted by:
Alicia Downey, Downey Law LLC and Jaclyn Phillips, White & Case LLP
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Significant changes to the Indian merger control regime came into effect in September 2024. But what has happened? Nisha Kaur Uberoi, partner at JSA law firm in Mumbai, joins Puja Patel and Matthew Hall to discuss the changes and their likely practical impact on transactions affecting India. Listen to this episode to learn more about the changes including the new deal value threshold, the codification of the material influence test for control, new timelines and procedure and the impact of new definitions on the use of the Green Channel route for approval.
With special guest:
Nisha Kaur Uberoi, partner, JSA advocates & solicitors
Related Links:
JSA article, "What the overhaul of India’s merger control regime means", 24 September 2024 India Competition Act, 2002 Competition Amendment Act, 2023 Competition Commission of India (Combinations) Regulations, 2024 Competition (Criteria for Exemption of Combinations) Rules, 2024 Notifications of the changes
Hosted by:
Puja Patel, A&O Shearman US LLP and Matthew Hall, McGuireWoods London LLP
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Over a year after the FTC and DOJ first announced changes to the premerger notification form and associated rules under the Hart-Scott-Rodino Act, the final rules were released in October 2024. What do these new HSR rules mean in practice for parties to transactions that must make an HSR filing? Daniel Rosenthal, Special Counsel at Milbank, joins hosts Jaclyn Phillips and Matt Tabas to discuss these changes in detail. Listen to this episode to learn more about what has changed, what hasn't, and how you can start to prepare.
With special guest:
Daniel J. Rosenthal, Special Counsel, Milbank LLP
Related Links:
The New HSR Form Is Here
Hosted by:
Jaclyn Phillips, White & Case LLP and Matt Tabas, Arnold & Porter Kaye Scholer LLP
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Can competition law save humanity? Over the past two years, Fiona Schaeffer has spurred on the lawyers, regulators, and economists of the ABA Antitrust Law Section to examine the role that antitrust law has, or potentially will have, in dealing with the existential challenges posed by climate change and the rise of artificial intelligence. In this episode, co-hosts Alicia Downey and Anora Wang talk with Fiona about why she chose to focus attention on these two issues during her recent term as Section Chair, and the insights that listeners should take away from the Section's work to date.
With special guest:
Fiona Schaeffer, Milbank LLP
Related Links:
Joint Section Comments on the Canadian Competition Bureau’s Discussion Paper on Artificial Intelligence and Competition (July 9, 2024) Report on Competition Law and Sustainability to the JFTC by the International Comments and Policy Committee (March 18, 2024) Joint Section Comments on the European Commission’s Consultation on Generative AI (March 6, 2024)
Hosted by:Alicia Downey, Downey Law LLC and Anora Wang, Arnold & Porter Kaye Scholer LLP
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The European Commission's attempt to claim jurisdiction under the EU merger rules over Illumina's acquisition of GRAIL ultimately resulted in a stinging court defeat for the regulator. But why did it lose and what will happen now to merger reviews of "below threshold" transactions in the EU? Nicole Kar, partner at Paul, Weiss in London, joins Matthew Hall and James Hunsberger to discuss the Commission's 2021 re-interpretation of its powers under Article 22 of the EU Merger Regulation, the European Court of Justice judgment striking that down and the alternative avenues for the Commission or EU countries to claim jurisdiction over killer and reverse killer transactions. Listen to this episode to learn more about how to analyse the risk and practical steps to take in relation to these transactions.
With special guest:
Nicole Kar, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Related Links:
European Commission March 2021 guidance on use of Article 22 of the EU Merger Regulation European Commission FAQ on March 2021 Article 22 guidance General Court judgment 13 July 2022 on application of Article 22 by European Commission in Illumina/GRAIL Advocate General opinion 21 March 2024 on application of Article 22 by European Commission in Illumina/GRAIL European Court of Justice judgment 3 September 2024 on application of Article 22 by European Commission in Illumina/GRAIL Paul, Weiss, Rifkind, Wharton & Garrison LLP Client Memorandum "Mind the Gap: ECJ Judgment Determines European Commission Cannot Review Deals Below Member State Merger Control Thresholds"
Hosted by:
James Hunsberger, Axinn, Veltrop & Harkrider LLP and Matthew Hall, McGuireWoods London LLP
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It's no secret that competition agencies in the U.S. and elsewhere have been scrutinizing Big Tech's efforts to acquire emerging players in the AI space. In this episode, Luis Blanquez of Bona Law, P.C., talks to co-hosts Alicia Downey and Anant Raut about how the enforcers' concerns are now extending to investments, licensing deals, and other types of transactions that fall outside merger clearance review. Will recently announced investigations into such transactions protect future rivals from Big Tech’s dominance or chill investments in AI technology innovation? Listen to this episode to learn about the effect these investigations may be having on not just the companies directly involved, but also venture capital investors and AI start-ups generally.
With special guest:
Luis Blanquez, Partner, Bona Law P.C.
Related Links:
Mergers & Acquisitions, AI and Antitrust: The New Creative Ways for Big Tech to Enter the AI Market and Avoid HSR Rules, The Antitrust Attorney Blog (July 21, 2024) UK Competition and Markets Authority, AI Strategic update (April 29, 2024)
Hosted by:
Alicia Downey, Downey Law LLC and Anant Raut
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The European Commission's draft guidelines on exclusionary abuses of dominance will, once adopted, be a key document when applying EU competition law. But what is in the draft? Rona Bar-Isaac, head of competition at Addleshaw Goddard in London, joins Matthew Hall and Derek Jackson to discuss the draft guidelines and a controversial European Court of Justice judgment which was released soon after the publication of the guidelines. Listen to this episode to learn more about the components of the draft, including the Commission's two-stage approach for analysing potential exclusionary abuses of dominance and the available defences, as well as the implications for the guidelines of the Google Shopping ECJ judgment that deals with self-preferencing as an abuse.
With special guest:
Rona Bar-Isaac, partner, Addleshaw Goddard LLP
Related Links:
European Commission press release 1 August 2024 consultation on draft antitrust guidelines on exclusionary abuses European Commission consultation webpage including draft guidelines European Court of Justice press release 10 September 2024 Google Shopping judgment European Court of Justice 10 September 2024 Google Shopping judgment Addleshaw Goddard 8 August 2024 briefing on draft antitrust guidelines on exclusionary abuses
Hosted by:
Matthew Hall, McGuireWoods London LLP and Derek Jackson, Cohen & Gresser LLP
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Can a Big Law antitrust practitioner have a successful career as a solo or small firm lawyer? In this episode, antitrust trial lawyer Sean Gates and co-hosts Alicia Downey and Matt Reynolds talk about their experiences leaving large firms to strike out on their own in the middle of their careers. Listen to this episode to learn what motivated them to "go small," and why antitrust law offers unique challenges, opportunities, and rewards to those looking for an alternative to Big Law practice.
With special guest:
Sean Gates, Partner, Illovsky Gates & Calia LLP
Hosted by:
Alicia Downey, Downey Law LLC and Matthew Reynolds, Huth Reynolds LLP
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What were the cases and controversies that defined a decades-long career as an antitrust lawyer and scholar? Hosts Alicia Downey and Subrata Bhattacharjee welcome former Antitrust Law Section Chair Jon Jacobson back to the podcast to talk about his newly-published memoir of the highs and lows of litigating some of the biggest antitrust cases in U.S. legal history. Listen to this episode to learn how trial lawyers like Jon have helped to shape U.S. competition law and public policy.
With special guest:
Jonathan Jacobson, Partner (retired), Wilson Sonsini Goodrich & Rosati
Related Links:
Jonathan Jacobson, My Life in Antitrust (2024)
"Rock Can't Get No Satisfaction? Antitrust and Rock 'n' Roll, Our Curious Amalgam, Episode #1 (Aug. 12, 2019)
Bayou Bottling, Inc. v. Dr. Pepper Co., 725 F.2d 300 (5th Cir. 1984)
Sewell Plastics, Inc. v. The Coca-Cola Co., 720 F. Supp. 1196 (W.D.N.C 1989)
Hosted by:Alicia Downey, Downey Law LLC and Subrata Bhattacharjee, Borden Ladner Gervais LLP
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Antitrust and competition lawyers have a choice of career paths, including private practice, in-house, and public sector. What about the increasingly-important area of litigation finance? Aviva Will, Co-Chief Operating Officer of Burford Capital, joins Alicia Downey and Matthew Hall to discuss her career journey from a law firm to a senior executive role at a publicly traded, global litigation finance company. Listen to this episode to learn more about Aviva's current role, the evolution of the litigation finance industry in the U.S. and elsewhere, and The Equity Project--a groundbreaking initiative designed to help increase diversity in law.
With special guest:
Aviva Will, Co-Chief Operating Officer, Burford Capital LLC
Related Links:
Burford Capital, The Equity Project
Association of Litigation Funders (England and Wales)
American Legal Finance Association (U.S.)
International Legal Finance Association
Hosted by:
Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP
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The failing firm defense can be viewed skeptically when put forward by merging parties. But when can it be used successfully to save a deal that may otherwise be found to be anticompetitive? Chris Wilson, partner in the antitrust group of Paul Weiss, joins Jaclyn Phillips and Anora Wang to discuss the current state of the failing firm defense. Listen to this episode if you want to learn more about recent cases and what facts may make a failing firm defense thrive.
With special guest:
Christopher M. Wilson, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Related Links:
Hospitals Defeat FTC Merger Injunction Request With a Version of the “Failing Firm” Defense
Hosted by:
Jaclyn Phillips, White & Case LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP
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The Antitrust Law Section's new Chair is a lawyer, professor, and author of countless books and articles, with decades of leadership experience in the Section. What changes will he bring? In this episode, co-hosts Alicia Downey and Puja Patel ask Steve Cernak about his unusual career path, the priorities and initiatives he is planning to pursue in his one-year term, and the legal trends that he believes will affect the Section's members and their clients. Listen to this episode to get to know Steve a little better as the leader of a global association of professionals in the fields of antitrust, competition, consumer protection, and data privacy law--and as a loyal baseball fan.
With special guest:
Steven Cernak, Partner, Bona Law PC
Hosted by:
Alicia Downey, Downey Law LLC and Puja Patel, A&O Shearman US LLP
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Most agree that children's online privacy is important. But how should it be protected? Ryan Durrie, Associate Director of the Cordell Institute at Washington University in St. Louis, joins Christina Ma and Anora Wang to discuss how the Children's Online Privacy Protection Act (or COPPA) protects online privacy today and how it could be reformed. Listen to this episode if you want to learn about the latest policy developments in online privacy.
With special guest:
Ryan Durrie, Associate Director, Cordell Institute at Washington University in St. Louis
Related Links:
Cordel Institute for Policy in Law and Medicine, Washington University in St. Louis, Comment to FTC on COPPA (Mar. 12, 2024)
Neil Richards, Woodrow Hartzog, & Jordan Francis, A Concrete Proposal for Data Loyalty (2023)
Hosted by:
Anora Wang, Arnold & Porter Kaye Scholer LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz
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Privacy law has become increasingly relevant and important with the advent of the internet and all things digital and most agree that these laws should protect children's privacy, in particular. But what are the tradeoffs? James Cooper, Professor of Law and Economics at Scalia Law School at George Mason University, joins Christina Ma and Anora Wang to discuss the Children's Online Privacy and Protection Act, proposed changes to the rules enforcing the Act, and the potential tradeoffs to certain proposals. Listen to this episode of Our Curious Amalgam if you want to learn more about how the U.S. regulates online privacy for kids and its impact.
With special guest:
James Cooper, Antonin Scalia Law School
Related Links:
Garrett Johnson, Tesary Lin, James Cooper and Liang Zhong, COPPAcalypse (2023)
Comment on FTC's Proposed COPPA Rulemaking, Program on Economics & Privacy, George Mason University Scalia Law School (2024)
Hosted by:
Christina Ma, Wachtell, Lipton, Rosen & Katz and Anora Wang, Arnold & Porter Kaye Scholer LLP
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Federal and State antitrust authorities have started to take closer looks into mergers of hospitals that are in different geographic areas. What are the theories of harm behind such investigations, and what does the economics literature have to say about those cross-market theories? Join Anora Wang and Jeny Maier as they hear from leading healthcare economist Cory Capps about recent academic research and agency activities on this front. Listen to this episode if you want to learn more about cutting-edge thinking in healthcare mergers.
With special guest:
Cory Capps, Partner, Bates White Economic Consulting
Related Links:
Cory Capps, Leyla Karakas, & Tetyana Shvydko, Cross-Market Mergers: Theories of Harm and Limiting Principles (2023)
Greg Vistnes, Cross-Market Hospital Mergers: Assessing Likely Harm and Implications for Government Action (2023)
Hosted by:
Jeny Maier, Axinn, Veltrop & Harkrider LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP
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