Our Curious Amalgam

For decades, Section 8 of the Clayton Act--which prohibits two competing corporations from sharing a common director--was rarely enforced by the U.S. antitrust agencies, and corporations were for the most part left to regulate themselves. In this episode, Alicia Downey and Sergei Zaslavsky talk to antitrust practitioner Diane Hazel about how the U.S. Department of Justice and the Federal Trade Commission have recently been focusing a lot more attention on identifying Section 8 violations based on an expansive view of the scope of the statute. Listen to this episode to learn about recent enforcement trends and what companies can do to avoid potentially unlawful interlocking directorates.

With special guest:

Diane Hazel, Foley & Lardner LLP

Related Links:

Benjamin R. Dryden, Diane Hazel & Richard L. Flannery, An Analysis of the "Deputization" Theory of Section 8 of the Clayton Act, Antitrust Source (August 31, 2023)

Diane Hazel, Richard L. Flannery & Benjamin R. Dryden, How To Assess Interlocking Directorates In Antitrust Ramp-Up, Law 360 (October 25, 2022)

ABA Antitrust Law Section, Interlocking Directorates Handbook (2011)

Hosted by:

Alicia Downey, Downey Law LLC and Sergei Zaslavsky, O'Melveny & Myers LLP

Some have expressed concerns over a lack of competition in the U.S. rail freight and passenger services markets. How the U.S. freight rail system works and is competition an issue in the sector? Dr. Russell Pittman, the Director of Economic Research in the Antitrust Division of the U.S. Department of Justice, examines the state of competition in the freight rail sector with Barry Nigro and Anora Wang. We'll take a deep dive into the participants of the market, the competition concerns, the recent challenges, and high-level observations. Join us to learn more!

With special guest:

Dr. Russell Pittman, Director of Economic Research, Antitrust Division of the U.S. Department of Justice

Related Links:

Press Release, STB Issues Proposed Rule Regarding Reciprocal Switching for Inadequate Service (Sept. 7, 2023)

Press Release, Surface Transportation Board Adopts New Rules for Smaller Rate Disputes (Dec. 19, 2022)

Press Release, STB Approves CP/KCS Merger with Conditions and Extended Oversight Period (Mar. 15, 2023)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Anora Wang, Arnold & Porter Kaye Scholer LLP

In September 2023, the Federal Trade Commission and 17 states filed a massive, landmark antitrust lawsuit against Amazon, alleging that Amazon engaged in anti-competitive and unfair practices to expand and maintain an illegal monopoly in two online markets, the market for marketplace services, where sellers buy services from Amazon, and the consumer-facing market for online superstores. The complaint focuses on two main theories: anti-discounting and tying Prime eligibility to Amazon's fulfillment services. Adam Kovacevich, Founder and CEO of Chamber of Progress, speaks about the potential consequences of this suit for antitrust enforcement, consumers, and other companies. Tune in to find out more about the complaint, its potential consequences for antitrust enforcement, consumers, and other firms competing in the online marketplace.

With special guest:

Adam Kovacevich, Founder and CEO, Chamber of Progress

Related Links:

FTC Sues Amazon for Illegally Maintaining Monopoly Power

Complaint

Amazon: The FTC's lawsuit against Amazon would lead to higher prices and slower deliveries for consumers—and hurt businesses

Hosted by:

Jana Seidl, Baker Botts LLP and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

On this episode of Our Curious Amalgam podcast - a special collaboration with the Antitrust Law Section's Women.Connected Committee - we explore the prevalence of sexual harassment in the legal profession, why it persists, and the damage it causes. With expert insight from Jane Pigott, we learn why sexual harassment isn't just a women's issue, discuss the consequences for the organizations and individuals involved, and highlight available resources and tool kits as well as what else we can do as a community to implement changes going forward. Tune in to learn more and to be part of the effort to end this pressing issue.

With special guest:

Jane Pigott, R3 Group LLC

Related Links:

Women Lawyers on Guard, Still Broken: Sexual Harassment and Misconduct in the Legal Profession

IBA, Bullying and Sexual Harassment in the Legal Profession

National Women's Law Center, #metoowhatnext: Strengthening Workplace Sexual Harassment Protections and Accountability

Harvard Business Review, Why Sexual Harassment Programs Backfire And What to Do About it

ABA Commission on Women in the Profession, Zero Tolerance Program Toolkit

Forbes, 'What Was He Thinking?' Inside The Mind Of A Sexual Harasser

Hosted by:

Jana Seidl, Baker Botts LLP and Kellie Kemp, Co-Chair of Women.Connected

The European Union's Regulation on Foreign Subsidies Distorting the Internal Market is now in operation. What is happening in practice and how should companies prepare? Ulrich Soltész, partner at law firm Gleiss Lutz in Brussels, joins Matthew Hall and Derek Jackson to discuss the state of play under the FSR. Listen to this episode to learn more about the required notifications of certain mergers and public procurement procedures, ex officio investigations (including potentially into leading football/soccer teams), the substantive test, remedies, and the steps companies should be taking now to prepare.

With special guest:

Ulrich Soltész, Partner, Gleiss Lutz

Related Links:

European Commission website page for EU Foreign Subsidies Regulation

Hosted by:

Matthew Hall, Partner, McGuireWoods London LLP and Derek Jackson, Associate, Cohen & Gresser

The practice of personalized pricing has been empowered by advanced algorithms in the digital era. Relevant policy debates and lawsuits are on the rise in recent years in China. When is personalized pricing unlawful? Dr. Annie Xue, head of GEN Law Firm's compliance practice in China, joins Anora Wang and Lijun Zhang to discuss relevant policy debates and court litigations. Listen to this episode if you want to learn more about the legal framework, litigation landscape, and compliance tips involving personalized pricing in China.

With special guest:

Dr. Annie Xue, Partner, GEN Law Firm

Related Links:

European Parliament Study: Personalised pricing (2022) 消费者应该有多少数据控制权? How much data control should consumers have? (Lecture video attached) (2022) (Chinese text + English webinar)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Lijun Zhang, Freshfields Bruckhaus Deringer LLP

Do AI algorithms have the ability to conspire and collude? Join us as we dive into the black box of algorithm pricing with Dr. Ai Deng, a principal in the consulting firm Charles River Associates. We will discuss the implications of AI technology on competition, two types of algorithmic collusion, and how AI approaches economic incentives. Don't miss this fascinating discussion about AI and pricing algorithms!

With special guest:

Dr. Ai Deng, Principal, Charles River Associates

Related Links:

Ai Deng, What Do We Know About Algorithmic Collusion Now? New Insights from the Latest Academic Research (2023)

Ai Deng & Cristián Hernández, Algorithmic Pricing in Horizontal Merger Review: An Initial Assessment, Antitrust, Vol. 36, No. 2 (Spring 2022)

Ai Deng, Algorithmic Collusion and Algorithmic Compliance: Risks and Opportunities, The Global Antitrust Institute Report on the Digital Economy 27 (2021)

Las Vegas hotels accused of rental price conspiracy in class action, Reuters (Jan. 26, 2023)

Algorithmic Price Fixing Leads to Antitrust Class Action Lawsuit, Natlawreview.com (Dec. 6, 2022)

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Panos Dimitrellos, Secretariat Economists

Pharmacy benefit managers (PBMs) are being called out for engaging in allegedly anticompetitive business practices that make prescription drugs less affordable. But do PBMs actually promote competition in the healthcare industry? In this episode, Professor Casey Mulligan, an economist and law professor at the University of Chicago, discusses what his research indicates could be the unintended adverse consequences of imposing transparency requirements and other regulatory burdens on PBMs. Listen to this episode to hear the arguments against targeting PBMs with restrictive legislation and enforcement proceedings as a means of reining in high drug prices.

With special guest:

Casey Mulligan, Professor of Economics, University of Chicago

Related Links:

Casey Mulligan, Ending Pay for PBM Performance: Consequences for Prescription Drug Prices, Utilization, and Government Spending (Sept. 2023)

Casey Mulligan, Testimony before Senate Committee on Commerce, Science & Transportation (Feb. 16, 2023)

Casey Mulligan, In Defense of Pharmacy Benefit Managers, Wall Street Journal Op-Ed (July 11, 2022)

Hosted by:

Alicia Downey and Jeny Maier

The role of antitrust in health care is a common topic in the antitrust world. But does health care quality play a big enough role in the discussion? Professor Theodosia Stavroulaki joins Jaclyn Phillips and Jeny Maier to discuss her new book, which focuses on the role of competition and quality in healthcare markets. Listen in to hear more about Professor Stavroulaki's compelling research.

With special guest:

Theodosia Stavroulaki, Assistant Professor of Law, Gonzaga University School of Law

Related Links:

Theodosia Stavroulaki, Mergers That Harm Our Health (Berkeley Business Law Journal)

Hosted by:

Jeny Maier, Axinn, Veltrop & Harkrider LLP and Jaclyn Phillips, White & Case LLP

Microsoft's proposed acquisition of Activision Blizzard was controversially blocked in its original form by the UK Competition and Markets Authority. What was the CMA's rationale and how has the investigation played out since then? Bruce Kilpatrick, partner at Addleshaw Goddard LLP in London, joins Christina Ma and Matthew Hall to discuss the UK element of the worldwide merger control investigation into this case. Listen to this episode to learn more about the CMA's original investigation, the parties' appeal to the UK Competition Appeal Tribunal, the CMA's review of an amended transaction and the future of behavioral remedies in the UK.

With special guest:

Bruce Kilpatrick, Partner, Addleshaw Goddard LLP

Related Links:

UK Competition and Markets Authority Microsoft/Activision Blizzard merger case page (original transaction) UK Competition and Markets Authority Microsoft/Activision Blizzard merger case page (amended transaction) European Commission press release Microsoft/Activision Blizzard merger clearance U.S. Federal Trade Commission press release challenge to Microsoft/Activision Blizzard merger Summary of appeal application at UK Competition Appeal Tribunal (original transaction) UK Competition Appeal Tribunal case page (original transaction)

Hosted by:

Christina Ma, Wachtell, Lipton, Rosen & Katz and Matthew Hall, McGuireWoods London LLP