The 2023 Appropriations Act included three antitrust laws dealing with merger fees, merger subsidy disclosure, and venue. What are the implications of these laws? Laura Alexander joins hosts Christina Ma and Jaclyn Phillips to discuss what these laws do, how we got them, and whether we may see substantive antitrust reform in the future. Listen to this episode to learn more about how we finally saw antitrust bills become laws. With special guest: Laura Alexander, Washington Center for Equitable Growth Related Links: Consolidated Appropriations Act, 2023  The Merger Filing Fee Modernization Act is a down payment on the future of antitrust enforcement Restoring competition in the United States The state of U.S. federal antitrust enforcement Hosted by: Christina Ma, Partner, Wachtell, Lipton, Rosen & Katz and Jaclyn Phillips, Associate, White & Case LLP

#207 How Does a Bill Become an Antitrust Law? Analyzing the Implications of the Three Antitrust Laws Passed in 2022

The ABA Antitrust Law Section’s Spring Meeting is the largest annual gathering of competition, consumer protection, and data privacy professionals globally, with lawyers, academics, economists, enforcers, journalists, and students from around the world. Curious about what's anticipated for this year's meeting? Spring Meeting Co-Chairs Doug Tween and Sheila Adams join hosts Alicia Downey and Kayla Odom to talk about what to expect and tips for making the most of this memorable event. Whether you will be a first time or veteran attendee, listen in for the inside scoop on what's in store at this year's exciting Spring Meeting, March 29-31, 2023, in Washington, DC. With special guests: Doug Tween, Linklaters LLP and Sheila Adams, Davis Polk & Wardwell LLP Related Links: ABA Antitrust Spring Meeting 2023 Website Spring Meeting Agenda 2023 ABA Antitrust Law Section Website Hosted by: Alicia Downey, Downey Law LLC and Kayla Odom, Renesas Electronics America Inc.

#206 Who's Going to the 2023 Spring Meeting? A Sneak Preview With the Co-Chairs

Major League Baseball ("MLB") is big business, with revenues that exceeded $10 billion in 2019. How and why is MLB immune from liability under the U.S. federal antitrust laws? Co-hosts Alicia Downey and Melissa Maxman invited guests Julian Perlman and Sathya Gosselin to debate the pros and cons of the Baseball Exemption from a policy and practical perspective. Listen to this episode to learn about recent efforts under way in Congress and the courts to eliminate MLB's special exemption. With special guests: Julian Perlman, BakerHostetler and Sathya Gosselin, Hausfeld LLP Related Links: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs et al., 259 U.S. 200 (1922)  Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953)  Flood v. Kuhn, 407 U.S. 258 (1972) Hosted by: Alicia Downey, Downey Law LLC and Melissa Maxman, Cohen & Gresser LLP

#205 Is the Game Over? New Challenges to the Antitrust Exemption for Major League Baseball.

The debate about the role of government in regulating monopolies is getting more heated by the day. How do historical concepts of "monopoly" fit into the discussion? Veteran antitrust scholar, practitioner, and author Barry Hawk joins Alicia Downey and Matt Reynolds to discuss his latest foray into legal history in his new book, "Monopoly in America." Listen to this episode to learn about how popular conceptions of monopoly and "monopolizers" evolved long before the passage of modern U.S. antitrust laws. With special guest: Barry E. Hawk Related Links: Barry E. Hawk, Monopoly in America (Juris 2022) Hosted by: Alicia Downey, Downey Law LLC and Matthew Reynolds, Huth Reynolds LLP

#204 What Does Monopoly Really Mean? A Conversation With Barry Hawk, Author of "Monopoly in America"

Plaintiffs in consumer data privacy class action lawsuits may demand money damages for the loss of the value of their personal information. But how much money is that personal information really worth? And what was lost? In this episode, hosts Alicia Downey and Aaron Yeater talk to economist Mike Kheyfets of Edgeworth Economics about these and other questions to which there are no simple answers, whether from an economic or legal perspective. Listen to this episode to learn about approaches to valuing personal information in data privacy lawsuits. With special guest: Michael Kheyfets, Edgeworth Economics Related Links: Michael Kheyfets, "Value of Personal Information Theories in Data Privacy Class Actions," Bloomberg Law (Sept. 19, 2022) Hosted by: Alicia Downey, Downey Law LLC and Aaron Yeater, Analysis Group

#203 What Is the Value of Personal Information? Quantifying the Harm Caused by Data Privacy Breaches

As 2022 comes to an end, the Antitrust Law Section's sector committees tell us which notable antitrust cases and investigations affected key industries and what they predict will make headlines in 2023. In this two-part special episode, hosts Alicia Downey, Sergei Zaslavsky, and Jaclyn Phillips speak with leaders of the committees responsible for providing Section members with programs and publications about the latest industry-specific antitrust developments. Listen to Part 1 to hear from the Health Care & Pharmaceuticals Committee, the Agriculture & Food Committee, and the Distribution and Franchising Committee. Listen to Part 2 to hear from the Transportation & Energy Committee, the Insurance & Financial Services Committee, and the Media & Technology Committee. With special guests:  Chris Wilson, Gibson, Dunn & Crutcher LLP Francesca Pisano, Arnold & Porter Kaye Scholer LLP Deborah F. Salzberger, McCarthy Tetrault LLP Andrew Ewalt, Freshfields Bruckhaus Deringer LLP Melanie Hallas Kirsch, AT&T Suzanne Munck af Rosenschold, Davis Polk & Wardwell LLP  Related Links: Transportation & Energy Committee  Insurance & Financial Services Committee  Media & Technology Committee  Hosted by:  Alicia L. Downey, Downey Law LLC Sergei Zaslavsky, O'Melveny & Myers LLP Jaclyn Phillips, White & Case LLP

#202 What Happened in 2022? What Will Happen in 2023? Looking Back and Looking Forward With the Sector Committees – Part 2

As 2022 comes to an end, the Antitrust Law Section's sector committees tell us which notable antitrust cases and investigations affected key industries and what they predict will make headlines in 2023. In this two-part special episode, hosts Alicia Downey, Sergei Zaslavsky, and Jaclyn Phillips speak with leaders of the committees responsible for providing Section members with programs and publications about the latest industry-specific antitrust developments. Listen to Part 1 to hear from the Health Care & Pharmaceuticals Committee, the Agriculture & Food Committee, and the Distribution & Franchising Committee. Listen to Part 2 to hear from the Transportation & Energy Committee, the Insurance & Financial Services Committee, and the Media & Technology Committee. With special guests:  Lauren M. Rackow, Cahill Gordon & Reindel LLP Brian Rafkin, Akin Gump Strauss Hauer & Feld LLP Adam Goodman, Dentons Jee-Yeon Lehmann, Analysis Group  Related Links: Health Care & Pharmaceuticals Committee  Agriculture & Food Committee  Distribution & Franchising Committee  Hosted by: Alicia L. Downey, Downey Law LLC; Sergei Zaslavsky, O'Melveny & Myers LLP; and Jaclyn Phillips, White & Case LLP

#201 What Happened in 2022? What Will Happen in 2023? Looking Back and Looking Forward With the Sector Committees – Part 1

Merger control analysis and clearance worldwide is becoming ever more difficult, complex and uncertain, with Illumina/Grail perhaps the standout recent example. Following the previous episode on this case (#141: A Power Grab Too Far? The European Commission Extends Its Merger Control Reach), what developments have there been and what can we learn from them? Philippe Chappatte, partner at Slaughter and May, who has been acting for Illumina, joins Matthew Hall and Jeny Maier to discuss the merger control investigations into Illumina's acquisition of Grail in the EU and US. Listen to this episode to learn more about the substantive and procedural issues raised by the case and practical points it raises. With special guest: Philippe Chappatte, partner, Slaughter and May Related Links: Our Curious Amalgam, Episode #141, A Power Grab Too Far? The European Commission Extends Its Merger Control Reach  Philippe Chappatte and Poppy Smith, The 27-Stop Shop?: The EU Commission’s unprecedented power grab in merger control  Philippe Chappatte and Josephine Rabinowitz, Illumina/Grail: All Eyes on the General Court  European Commission press release 6 September 2022 "Mergers: Commission prohibits acquisition of GRAIL by Illumina"  European Commission Illumina/Grail merger investigation case page  European Commission Article 22 guidance 26 March 2021 EU General Court judgment 13 July 2022 Illumina v European Commission (appeal on Article 22 EU Merger Regulation referral) Illumina appeal of EU General Court judgment 13 July 2022 Hosted by: Matthew Hall, partner, McGuireWoods London LLP and Jeny Maier, partner, Axinn, Veltrop & Harkrider LLP

#200 A Power Grab Too Far? (Part 2) The European Commission Investigation in Illumina/Grail

Vertical mergers present unique doctrinal and economic issues and are rarely challenged in court, so when two vertical merger opinions are issued in a short period of time, it is a great opportunity to check in on this area of antitrust law. What are the facts and legal arguments that led to defense victories in the recently litigated UnitedHealth Group – Change Healthcare and Illumina – Grail mergers (currently under appeal)? Sara Razi, Partner at Simpson Thacher and counsel for Change, joins Sergei Zaslavsky and Jaclyn Phillips to discuss these important cases. Listen to this episode to learn more about these two cases and the important lessons they hold for merger litigation practitioners. With special guest: Sara Razi, Partner, Simpson Thacher & Bartlett LLP Related Links: UnitedHealth Group - Change Healthcare district court opinion Illumina - Grail administrative law judge opinion Hosted by: Sergei Zaslavsky, Partner, O'Melveny & Myers LLP and Jaclyn Phillips, Associate, White & Case LLP

#199 What’s New in US Vertical Merger Enforcement? A Look at the UnitedHealth-Change Merger Decision and Beyond

In November 2022, the FTC issued a policy statement concerning the scope and meaning of unfair methods of competition under Section 5 of the FTC Act. So what has changed under Section 5 and where are we headed? Angela Landry, counsel at Freshfields, joins Christina Ma and Jaclyn Phillips to discuss Section 5, how the FTC's approach has changed with its 2022 statement, and what we might see as it gets put into practice. With special guest: Angela Diveley Landry, Counsel, Freshfields Bruckhaus Deringer US LLP Related Links: https://blog.freshfields.us/post/102i1jq/ftc-seeks-to-revive-prohibitions-against-unfair-competition https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyWilsonDissentStmt.pdf Hosted by: Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP

#198 What Is(n’t) Unfair Competition? An Analysis of the FTC’s 2022 Section 5 Policy Statement

In the American political system, the judiciary serves as an impartial, independent branch of government responsible for interpreting our laws and deciding cases and controversies. Even with these foundational principles, how do we ensure public trust in the institution? Sixth Circuit Court of Appeals Judge Bernice Donald joins Kayla Odom and Alicia Downey to reflect on the public perception of the role of the judiciary. Listen in to hear what shapes our understanding of the courts, and what the judiciary can do to ensure public confidence in the administration of justice. With special guest: Hon. Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit Related Links: Bernice B. Donald and Don R. Willett – How to counter today’s tribalism and build ‘a more perfect union’ – Sept. 16, 2022 Press Release, Federal appeals court judge Bernice Donald to receive Sandra Day O’Connor Award for outstanding contributions to justice – Aug. 31, 2022 Hosted by: Alicia Downey, Downey Law LLC and Kayla Odom, Corporate Counsel, Renesas

#197 Is Public Perception of the Judiciary Changing? A Conversation With Judge Bernice Donald.

Latin America is an increasingly important region for antitrust enforcement. Are there similarities across the region and with other parts of the world? Julián Peña, partner at Allende & Brea, joins Anant Raut and Matthew Hall to discuss LATAM antitrust history and trends. Listen to this episode to learn more about antitrust in Latin America, how it developed and how to approach it. With special guest: Julián Peña, partner, Allende & Brea, Buenos Aires Related Links: Competition Law in Latin America is Facing New Challenges Hosted by: Matthew Hall, partner, McGuireWoods London LLP and Anant Raut, Antitrust and Privacy Law Expert

#196 What’s Happening in LATAM? Trends and Developments in Latin American Antitrust.

The world of antitrust and consumer protection law is made up of fascinating people, including Rahul Rao, the newest Deputy Director of the Federal Trade Commission's Bureau of Competition. How did he go from Big Law associate, to stay-at-home dad, to the Washington state AG's office, and now the FTC? Hosts Alicia Downey and Jeny Maier talk with Deputy Director Rao about his unique career path from private practice to government service, his past and current enforcement priorities, and his advice for up and coming practitioners. Listen to this episode to learn about one lawyer's pathway to a rewarding career in public service. With special guest: Rahul Rao, Deputy Director, Bureau of Competition, Federal Trade Commission Related Links: Washington State Attorney General’s Office, No-Poach Initiative Report Press Release, Washington State Attorney General's Office, "Lasting impact: Study finds AG Ferguson’s no-poach initiative boosted income for low-wage workers nationwide" Hosted by: Alicia L. Downey, Downey Law LLC and Jeny Maier, Axinn, Veltrop & Harkrider LLP

#195 Who Is Rahul Rao? Meet the Newest Deputy Director of the FTC Bureau of Competition

Web3 is being touted as the future of the internet. The vision for this new version of the web revolves around the notion of decentralization, driven by blockchain-based technologies including cryptocurrencies and NFTs. User privacy is central to these advances, but what does all of this mean for decentralized finance compliance and identity verification? How does a small tech company navigate the overlapping web of privacy, competition, and other regulations? And what are the implications for user data access? In this episode, co-hosts Elyse Dorsey and Jana Seidl speak with Matt McGuire, General Counsel of Violet, about all things Web3, crypto, and privacy, including what’s happening with the California Privacy Protection Agency’ CPRA implementation. With special guest: Matt McGuire, General Counsel, Violet Related Links: CPPA Rulemaking Matt McGuire, Violet Comments to CPPA Where’s Ooki? CFTC’s Lawsuit Delivery Via Chatbox Raises Eyebrows Violet Hosted by: Elyse Dorsey and Jana Seidl

#194 What About Small Tech? User Data and Privacy in Blockchain-Based Projects and the Future of the Internet

The U.S. health care industry is complex and dynamic, resulting in antitrust issues that are just as complex. So what does the past decade of the intersection of antitrust and health care signal about the future? John Carroll and Amy Ritchie speak with Christina Ma and Jaclyn Phillips about these issues and the comprehensive update to the ABA's Health Care Handbook. Listen to this episode to learn more about the ACA, managed care, labor markets, and more. With special guests: John Carroll, Partner, Sheppard Mullin and Amy Ritchie, Attorney, Bureau of Competition at Federal Trade Commission Related Link: Antitrust Health Care Handbook, Fifth Edition  Hosted by: Christina Ma, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, White & Case LLP

#193 Healthy Competition? Ten Years in Review of Antitrust and the Health Care Industry.

In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy? David Shaw, a partner at Morrison & Foerster, and Derek Jackson, an associate at Cohen & Gresser, join Christina Ma and Melissa Maxman to discuss the intersection between ESG and the Sherman Act. Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG. With special guests: David J. Shaw, Partner, Morrison & Foerster and Derek Jackson, Associate, Cohen & Gresser LLP Related Links:  Jens Hackl, Sustainability and Antitrust – What Companies Need to Know About Sustainability Collaborations in Europe (Feb. 28, 2022) The ESG Movement and Its Impact on Antitrust Compliance (July 7, 2022) Oversight of Federal Enforcement of the Antitrust Laws, Subcommittee on Competition Policy, Antitrust, and Consumer Rights, Senate Judiciary Committee (Sept. 20, 2022) (note that discussion of ESG starts with questions from Sen. Hawley at 1:58:54 through 2:00:02 and picks up again with questions from Sen. Cotton at 2:02:42 through 2:05:35.) 3rd Circ. Won't Revive Shell Egg Buyers' Antitrust Suit   Hosted by: Christina C. Ma, Partner, Wachtell, Lipton, Rosen & Katz and Melissa H. Maxman, Partner, Cohen & Gresser, LLP

#192 When Is Doing Good Bad? Understanding the Antitrust Implications of ESG.

Mexico's Federal Economic Competition Commission (COFECE) is an autonomous agency responsible for competition law enforcement, policy and advocacy nationwide. At the same time, an entirely separate agency—the Federal Telecommunications Institute (IFT)—has jurisdiction to enforce the competition laws in the telecommunication and broadcasting sectors. How do the two agencies determine where one agency's jurisdiction ends and the other agency's begins? Marta Loubet, a competition lawyer based in Mexico City, joins Alicia Downey and Sarah Zhang to discuss the origins of the jurisdictional divide between COFECE and IFT, its relationship to COFECE’s ongoing digital markets initiatives, and what changes the future may bring. Listen to this episode to learn more about a unique and important feature of the Mexican competition regime. With special guest: Marta Loubet, White & Case LLP Related Links: Henry Capin-Gally, Germán Macías, Marta Loubet, Román González Melo, Mexico: An introduction to Competition (Chambers & Partners 2022) COFECE Website IFT Website Hosted by: Alicia L. Downey, Downey Law LLC and Sarah Zhang, Baker Botts LLP

#191 What’s New in Mexico? The Battle for Jurisdiction Over Digital Markets

To keep a level playing field among EU member countries, subsidies granted by those countries to companies engaged in competition in the EU are subject to the EU's state aid rules. But what about subsidies granted by non-EU countries which may impact the EU single market? Andreas Reindl, a partner at Van Bael & Bellis in Brussels, joins Alicia Downey and Matthew Hall to discuss the EU's new Regulation on foreign subsidies distorting the internal market, which authorizes the European Commission to investigate and issue orders to remediate the adverse effects of such foreign subsidies. Listen to this episode to learn more about this new Regulation and its implications for companies making acquisitions or involved in public tenders in the EU. With special guest: Andreas Reindl, Partner, Van Bael & Bellis Related Links: Proposed text of EU Regulation on Foreign Subsidies 13 July 2022 European Council press release 30 June 2022 Hosted by: Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP

#190 Levelling the Playing Field? The European Union's New Regulation on Foreign Subsidies Distorting the Internal Market

Compared to other proposals to reform the U.S. antitrust regime, the State Antitrust Enforcement Venue Act has shown greater potential of being passed. What is at stake here? Yee Wah Chin, Counsel at Ingram Yuzek, speaks with Anora Wang and Alicia Downey about the arguments for and against exempting antitrust cases brought by state attorneys general from transfer and consolidation in a single venue. Listen to this episode to learn about the complexities in the proposed legal change and the potential implications if and when it is enacted. With special guest: Yee Wah Chin, Counsel, Ingram Yuzek Gainen Carroll & Bertolotti, LLP Related Links: Yee Wah Chin, The State Antitrust Enforcement Venue Act of 2021: A Counterproductive Solution in Search of a Problem (January 10, 2022), New York Law Journal Vol. 267 No. 6 (2022) Hosted by: Anora Wang, Arnold & Porter and Alicia L. Downey, Downey Law LLC

#189 What’s at Stake Here? Issues With the State Antitrust Enforcement Venue Act

The 2010 FTC/DOJ Horizontal Merger Guidelines indicate that merger review should consider whether a proposed merger may lessen competition by eliminating a "maverick" firm that plays a disruptive role in the market to the benefit of consumers. But how do we know when a proposed merger involves such a maverick? In this episode, hosts Alicia Downey and Matt Reynolds talk with Baker Botts LLP partner and DOJ alumna Taylor Owings about what she thinks should be the defining features of maverick firms. Listen to this episode to learn more about the theory of "disruptive innovation," the maverick concept, and their potential roles in merger analysis. With special guest: Taylor M. Owings, Partner, Baker Botts LLP Related Links: Taylor M. Owings, "Identifying a Maverick: When Antitrust Law Should Protect a Low-Cost Competitor", 66 Vand. L. Rev. 323 (2013) Clayton M. Christensen et al., "What Is Disruptive Innovation?", Harv. Bus. Rev., Dec. 2015 Edgewell Personal Care Company and Harry's, Inc. (FTC case page) U.S. v. H&R Block, Inc., et al. (DOJ case page) Check out two of Taylor's favorite board games: Cyclades | Board Game | BoardGameGeek Power Grid | Board Game | BoardGameGeek And a card game that Taylor and Matt both enjoy: Dominion | Board Game | BoardGameGeek Hosted by: Alicia L. Downey, Downey Law LLC and Matthew J. Reynolds, Partner, Huth Reynolds LLP

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