Ruled by Reason

In this episode of Ruled by Reason, AAI goes international! Enforcers from the U.S., New Zealand, UK and Chile talk with Kathleen Bradish, Vice President and Director of Legal Advocacy, about their agencies' cross-border work to stop price-fixing cartels. Leah McCoy, Juan Correa, Louise Baner, and Grant Chamberlain, whose agencies are heading up the International Competition Network's Cartel Working Group, tell us about the important role of the CWG in advancing cross-border enforcement and give us a preview of some of CWG's exciting new projects. These include initiatives that reflect on-going, long-term concerns of international enforcers, like improving international cooperation and addressing obstruction. Other projects address emerging challenges like the specter of algorithmic collusion and the effect of complex networks of privacy laws on evidence collection. Our conversation concludes with Chile's and New Zealand's perspective on how ICN, and the Cartel Working Group in particular, can aid newer and smaller agencies.

On this episode of Ruled by Reason, AAI's Kathleen Bradish talks with Open Market's Sandeep Vaheesan and the American Economic Liberties Project's Erik Peinert about the pro-enforcement community's views on the draft Merger Guidelines recently released by the FTC and DOJ. This is a wide-ranging and in-depth discussion about how the proposed changes succeed in advancing better merger enforcement, where they fall short, and what beneficial modifications could be made to the final version. Using each organization's comments to the draft Guidelines as the jumping off point, Bradish talks with Vaheesan and Peinert about the proper role of guidelines, the importance of structural presumptions, the differences between treatment of vertical and horizontal mergers, and the viability of the efficiencies defense. The discussion concludes with thoughts about how to maximize the practical impact and the long-term viability of the Guidelines.

On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk with leadership at the U.S. Department of Justice, Antitrust Division about the newly released merger guidelines. Moss and Bradish are joined by Susan Athey, Chief Economist for the Antitrust Division and Michael Kades, Deputy Assistant Attorney General for the Antitrust Division. This is the 7th revision of the merger guidelines since they were first released by the antitrust agencies in 1968. The revisions are notable for many reasons, not the least of which is their timing, which comes at an inflection point in antitrust enforcement and competition policy. The draft guidelines address a number of growing concerns around consolidation, including high and rising concentration, high barriers to entry, and the emergence of dominant firms and tight oligopolies in key markets. The revised guidelines also take on issues not addressed head on by previous agency guidance, such as the effect of mergers on the loss of worker bargaining power, firm growth through "serial acquisitions," the complexities of partial ownership and control, elimination of potential entrants, and the emergence of business models, such as digital ecosystems with multisided platforms. Today's episode unpacks these and other key takeaways from the draft merger guidelines.

On this episode of Ruled by Reason, AAI Vice President for Legal Advocacy Kathleen Bradish hosts J. Wyatt Fore and David Golden of Constantine Canon to discuss their work in private antitrust enforcement under the Shipping Act. They explain how consolidation in the shipping industry has led to a serious competition problem, one that came into full view when COVID-19 exposed a dangerous lack of resilience in the supply chain. The conversation covers the role of the Federal Maritime Commission in antitrust enforcement and the role for private enforcement in working alongside the FMC to encourage greater competition in shipping. Wyatt and David discuss their own experience litigating in front of the FMC and improvements that can be made to the process to make it easier for private plaintiffs to bring meritorious claims. This episode is for anyone interested in finding out more about competition in an industry that touches on nearly every aspect of our lives. After listening, head over to the AAI website to read Wyatt and Kathleen's white paper "Competition Enforcement, Private Actions and the Shipping Act" for a deeper dive on the issues raised here.

On this episode of Ruled by Reason, AAI President Diana Moss hosts David Smith, CEO of Associated Wholesale Grocers, and Chris Jones, SVP of Government Relations and Counsel for the National Grocers Association. They take up a front-line issue: consolidation in the retail grocery supply chain and the threat it poses to smaller independent grocers. The accumulation of market power has spurred an ongoing cycle of bulking up to gain bargaining leverage over suppliers and customers, with significant effects on smaller players in the supply chain, including farmers and ranchers, small food brands, regional dairy and protein processors, food wholesalers, and independent grocers. The conversation focuses on how powerful retail grocers engage in various methods to exercise their buyer power, often at the expense of independent grocers; what enforcement and policy tools are available to combat it; and what further consolidation in retail grocery means for competition and security of the food supply chain.

In this podcast episode, AAI President Diana Moss and Steven Salop, Professor Emeritus at Georgetown Law, take stock of the Biden antitrust agencies' merger enforcement record. The antitrust chiefs at the Federal Trade Commission and U.S. Department of Justice Antitrust Division were chosen specifically for their commitment to invigorating antitrust enforcement. As we head into the third year of the Biden administration, now is a good time to assess how the agencies are doing on merger control. Vigorous merger enforcement under Clayton Act Section 7 acts to prevent the emergence of oligopolies and dominant firms, serving as a first line of defense against the accumulation of market power that harms consumers and workers. Moss and Salop cover the ground on two major topics. They first unpack the recently released 2021 merger statistics. While one year of data does not reveal much about longer-term trends in merger enforcement under the Biden agencies, it does shed light on what to watch for moving forward. Their conversation then turns to issue spotting, or what is likely to unfold for merger control at the agencies based on what we have seen under the Biden enforcers thus far.

On this 25th podcast episode, AAI President Diana Moss and enforcement experts, Stephen Calkins and Benjamin Elga, unpack antitrust enforcement in markets that raise issues around social well-being, human health, and vulnerable consumers and workers. Antitrust is designed to deter and remediate harmful, anticompetitive mergers and conduct while remaining "agnostic" to the markets in which competitive concerns arise. In applying the consumer welfare standard, antitrust enforcement addresses adverse price, quality, and innovation effects and, implicitly, the distribution of wealth between firms and consumers. However, there are some markets where higher prices might beneficially reduce demand for products or services that have adverse effects on society or human health, such as cigarettes, sugar, or violent video games. Similarly, antitrust could sometimes be more aggressive in order to protect vulnerable consumer groups, including lifeline wireless service, or prison inmate calling services. This episode unpacks this issue from both the public and private enforcement perspective, asking how enforcers think about cases involving such markets and what questions they raise.

In this podcast episode, AAI Vice President of Legal Advocacy Randy Stutz talks with two experts who have led pioneering empirical research into antitrust class actions, Rose Kohles and Josh Davis. Stutz talks with Kohles and Davis about the Huntington Bank and UC Hastings "2021 Antitrust Annual Report: Class Action Filings in Federal Court," and how empirical research into antitrust class actions might challenge the entrenched views of both tort-reform advocates and class-action proponents. The three discuss previous efforts at empirical study of antitrust class actions prior to the Annual Report, which is now in its fourth edition (5:00), the type and nature of empirical data that is available and collected in the Annual Report and the role of class-action policy debate in shaping empirical study more generally (10:10), how empirical data may inform new arguments that support or refute various arguments on different sides of class-action debates (17:43), whether empirical data could inform legal arguments or judicial decision-making in court, including in the issuance of fee awards (25:37), whether empirical data might suggest legislative or other class-action reform proposals (32:32), and interesting developments reflected in the most recent edition of the Annual Report, covering data from 2009-2021 (36:54).