In this episode, AAI Vice President of Legal Advocacy Randy Stutz sits down with Professor Herb Hovenkamp for a wide ranging conversation about current debates over first principles of antitrust law.  When the Supreme Court says, “the antitrust laws protect competition,” what exactly is it saying they protect?  While there seems to be confusion in the popular press about the meaning of antitrust law’s “consumer welfare” goal, is there confusion (or disagreement) among antitrust experts, too? In exploring these fundamental questions, Stutz and Hovenkamp discuss whether competition can be defined other than by reference to its effects; the price and non-price effects caused by competition; the proper definition of consumer welfare; how antitrust applies to labor markets and handles welfare tradeoffs; the Supreme Court’s decision in NCAA v. Alston; how to evaluate behavior that has effects in multiple markets; how to deal with evidentiary challenges associated with measuring output effects, including in exclusionary conduct and merger cases involving nascent competitors; how output effects should be considered in light of the need for “sustainable competition”; and the problem of biased error-cost analysis in the federal courts.

Moderator: Randy Stutz, Vice President of Legal Advocacy, American Antitrust Institute

Guest: Prof. Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carey Law School and The Wharton School

In this episode, two the world’s leading competition experts, William Baer and Frederic Jenny, have a one-on-one conversation about key issues in the international competition arena that should be front and center on the enforcement and policy radar screens. The exchange took place at AAI’s 22nd annual policy conference in June 2021. AAI is delighted to provide access to it on Ruled by Reason. Baer and Jenny cover topics ranging from legislative and institutional responses to big tech concerns, to the intersection of antitrust and regulation, substantive and procedural convergence, competition policy versus industrial policy, and incorporation of “non-competition” values into competition law. The unique perspective revealed in their conversation comes at a critical time, where concerns over declining competition and concentrated market power are high on the enforcement and policy agendas of enforcement authorities across the globe.

In this episode, AAI Vice President of Policy Laura Alexander and Patrick Woodall, Senior Researcher at Americans for Financial Reform, discuss the impact of private equity investment on competition, consumers, and communities.  This discussion was inspired by a recent report on private equity from AAI and the Petris Center, Soaring Private Equity Investment in the Healthcare Sector: Consolidation Accelerated, Competition Undermined, and Patients at Risk. Beginning with the unique structure and financial incentives of private equity funds, and the resulting investment strategies, the discussion quickly turns to the consequences of those investment strategies.  Laura and Patrick discuss how private equity funds avoid antitrust scrutiny by using “buy-and-build” and “roll-up” strategies, and why existing antitrust law is insufficient to address many of the anticompetitive effects of private equity investment.  The episode concludes with a discussion of potential legislative and policy changes that could be used to curb private equity abuses.

In this podcast, AAI President Diana Moss sits down with two leaders in the independent sector to discuss the fallout from decades of massive consolidation and rising concentration in beef packing. Her guests, Mike Callicrate and Patrick Robinette, run innovative, independent business operations in two different parts of the US. They discuss the state of competition in U.S. beef packing, which is dominated by four packing firms that control over 80% of the market. Next, they turn to problems of market access for smaller ranchers and processors and deceptive labeling that deprives consumers of informed choices. The conversation reveals that an industrial food system with little competition packs significant inefficiency and susceptibility to shocks like COVID-19. On the other hand, smaller operations provide needed competition and resiliency in the beef supply. Moss, Callicrate, and Robinette close with the importance of stronger antitrust enforcement in the beef packing sector and USDA initiatives that promote competition, price transparency, and the importance of alternative supply systems.

In this podcast, AAI President Diana Moss sits down with her two co-authors of the report "Market Power and Digital Business Ecosystems: Assessing the Impact of Economic and Business Complexity on Competition Analysis and Remedies.” Moss, Greg Gundlach, and Riley Krotz discuss competition issues raised by the large digital business ecosystems (DBEs). The report takes a multidisciplinary approach--incorporating economics, law, and business theory and research. It fills an important gap by focusing on the DBEs’ unique business and economic features, takeaways from which should inform the enforcement and legislative debate over reining in their market power. As Moss, Gundlach, and Krotz explain in the podcast, the report reveals important caveats and cautions regarding the application of conventional competition analysis to DBEs, with implications for how competition enforcers and legislators assess market power and design remedies, particularly in the merger and monopolization contexts.

The report was made possible by a grant from the Omidyar Network Fund, Inc.

MODERATOR: Diana Moss, President, American Antitrust Institute GUESTS: Gregory T. Gundlach, Professor of Marketing, Coggin College of Business, University of North Florida Riley T. Krotz, Assistant Professor of Marketing, Texas Tech University

As part of its work to preserve the effectiveness of antitrust class actions as a central component of ensuring the vitality of private antitrust enforcement, the American Antitrust Institute issues periodic updates on developments in the courts and elsewhere that may affect this important device for protecting competition, consumers and workers. AAI’s Randy Stutz is joined by Hausfeld LLP’s Bonny Sweeney to discuss AAI’s Fall 2020 Class Action Issues Update and look ahead to 2021 and beyond.

They discuss classes containing uninjured members, common impact, statistical evidence (and related litigation strategy), TransUnion v. Ramirez and the Supreme Court’s new makeup, class-action legislative developments and goals, and the relationship of public and private enforcement in prosecuting Big Tech cases.

In this podcast, AAI Vice President of Policy Laura Alexander sits down with two leaders in private enforcement who are driving the use of data and technology to win antitrust cases and get money back into the hands of consumers and other victims.  Adam Zapala, a partner at Cotchett, Pitre & McCarthy, LLP, and Eric Schachter, a Vice President at A.B. Data, Ltd., discuss how digital technology, big data, and AI have increased efficiency and enabled them to bring and win cases that would not otherwise have been possible. Zapala and Schachter begin with a discussion of class notice and other manageability concerns.  The far-ranging discussion, however, quickly turns to the use of social media and data analysis to detect conspiracies, the prospect of paying out class action settlements in cryptocurrencies, and how future privacy legislation may impact the tools that class administrators use to effectively reach modern class members. 

In this podcast, AAI President Diana Moss sits down with leading private antitrust enforcers, Roberta D. Liebenberg and Heidi M. Silton. Liebenberg and Silton weave together their deep insights and experience to discuss key aspects of the importance and role of women and diverse attorneys in antitrust, and in the plaintiff’s bar, in particular. Moss, Liebenberg, and Silton begin with the impact of the COVID-19 pandemic and the difficulties it poses for advancing diversity in the practice of antitrust law. They then turn to the broader topic of why antitrust is an important and rewarding practice area for diverse attorneys. As part of the conversation, they touch on the importance of diverse attorneys in leadership roles, best practices for plaintiff firms in advancing diversity, the importance of diversity as a business model, and ways to build community.

In this Ruled by Reason podcast, a winner of the 18th annual Jerry S. Cohen Award for Antitrust Scholarship, Alminas Žaldokas, discusses his article. The conversation is about “The Effects of Global Leniency Programs on Margins and Mergers” (50 Rand J. of Econ. 883 (2019)) and also features AAI Advisor Daniel Small of Cohen Milstein Sellers & Toll and Seattle University School of Law Professor John B. Kirkwood.

In their article, Žaldokas and co-authors Ailin Dong and Massimo Massa investigated how passage of national leniency programs has affected firms’ margins and merger activity. The authors find that such programs reduce the gross margins of the affected firms, suggesting the programs are effective at reducing cartel activity. However, the authors also find that firms react to such programs by engaging in more mergers, and that those mergers are predominantly anticompetitive as they tend to have negative effects on downstream firms. Their empirical results imply that although leniency programs are generally effective, their benefits are offset to some extent by mergers that substitute for cartels. The authors thus advocate for stronger merger review.

The Cohen Award was created through a trust established in memory of the late Jerry S. Cohen, an outstanding trial lawyer and antitrust writer. It is administered by the law firm he founded, Cohen Milstein Sellers & Toll. The Cohen Award is given each year to the best antitrust writing during the prior year. A list of all Cohen Award winners is here.

In this podcast, AAI President Diana Moss sits down with Senator Amy Klobuchar, who has represented the state of Minnesota since 2007. Senator Klobuchar serves on numerous Senate committees, including the Judiciary, where she is the Ranking Member of the Subcommittee on Antitrust, Competition Policy and Consumer Rights. Their conversation focuses on important themes in the debate over strengthening antitrust enforcement in the U.S. for the benefit of competition, consumers, workers, and innovation. Senator Klobuchar touches on how the COVID-19 pandemic is influencing enforcement of the antitrust laws, political influence and antitrust, growing public concern about declining competition, the role of the courts, and her legislative priorities for strengthening and clarifying the antitrust laws.