Our Curious Amalgam

The U.S. Department of Justice Antitrust Division recently updated its guidance regarding the division's "Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations." What are the key changes? In this episode, Alicia Downey and Anora Wang talk to Emma Burnham, Antitrust Division Director of Criminal Enforcement, about how prosecutors assess the effectiveness of corporate antitrust compliance programs against the backdrop of the increasing utilization of artificial intelligence and ephemeral messaging technology. Private practitioner Tee St. Matthew-Daniel of Paul Weiss joins the conversation with her insights on the elements of the updated guidance that companies and their antitrust counsel need to consider, as well as a preview of the Section's biannual Women's Antitrust Roundtable.

With special guests:

Emma Burnham, Director, Antitrust Division, Department of Justice and Tee St. Matthew-Daniel, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Related Links:

U.S. Department of Justice Antitrust Division, Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Nov. 13, 2024) Antitrust Magazine Interview with Emma Burnham, Director, Antitrust Division, Department of Justice, Antitrust, Vol. 39, Issue 1, Fall 2024 (Dec. 13, 2024)

Hosted by:

Alicia Downey, Downey Law LLC and Anora Wang, Arnold & Porter Kaye Scholer LLP

Happy New Year to OCA listeners everywhere! Antitrust was a hot topic in 2024, and it's poised to get even hotter in 2025. In Our Curious Amalgam's year-end special episode, six of our regular hosts offer their perspectives on 2024's notable developments and trends in criminal antitrust enforcement, monopolization and merger challenges, international competition law, consumer protection, and data privacy. Listen to practitioners' insights regarding the emerging topics and themes of the coming year that will no doubt be featured in future OCA episodes.

With special guests:

Brendan Coffman, Wilson Sonsini Goodrich & Rosati, Matthew Hall, McGuireWoods LLP, James Hunsberger, Axinn, Veltrop & Harkrider LLP and Derek Jackson, Cohen & Gresser LLP

Hosted by:

Alicia Downey, Downey Law LLC and Anora Wang, Arnold & Porter Kaye Scholer LLP

India is now one of the most important competition law jurisdictions in the world. With direct court action against anti-competitive practices not an option, how can a third party seek to persuade the Competition Commission of India to become involved? Abir Roy, partner and co-founder of Sarvada Legal, joins Matthew Reynolds and Matthew Hall to discuss the underlying rules and practical issues involved in bringing an information (complaint) before the CCI. Listen to this episode to learn more about precedent cases, the evidence required, the various stages of an investigation, timeframes, confidentiality, remedies, the availability of compensation and other issues involved in this area.

With special guest:

Abir Roy, partner and co-founder, Sarvada Legal

Related Links:

Order in Alphabet/Google case 2022 Order in Alphabet/Google case 2024 Competition Commission of India webpage (Filing of Information) Competition Commission of India press release (Meta fine)

Hosted by:

Matthew Reynolds, Huth Reynolds LLP and Matthew Hall, McGuireWoods London LLP

The FTC's unfair competition enforcement policy under FTC Act Section 5 has frequently been in the headlines the past two years. What is the history of Section 5 enforcement and how has the Commission utilized this tool since issuing its 2022 Policy Statement on unfair methods of competition? Hosts Jeny Maier and Sergei Zaslavsky explore the many aspects of Section 5 unfair competition enforcement with guest Dan Graulich. Listen to this episode to learn about the past, present, and potential future of the FTC's unfair competition enforcement policy.

With special guest:

Daniel Graulich, Baker & McKenzie LLP

Related Links:

FTC 2022 Policy Statement

The FTC's Section 5 Initiatives: Where Things Stand Under the Biden Administration

Hosted by:

Jeny Maier, Axinn, Veltrop & Harkrider LLP and Sergei Zaslavsky, O'Melveny & Myers LLP

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

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 Pricing

Hosted by:

Sergei Zaslavsky, O'Melveny & Myers LLP and Rubin Waranch, Cooley LLP

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.

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

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

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