Law Review Hosts 12th Annual Antitrust Law Symposium
By Katie Ruffing (3D)
The George Mason Law Review hosted its 12th Annual Symposium on Antitrust Law on December 4, 2008, at the Ronald Reagan Building and International Trade Center in Washington, D.C. The symposium focused on antitrust policy in the new administration and was sponsored by WilmerHale and Criterion Economics LLC.
The Honorable Douglas H. Ginsburg provided opening remarks, providing a brief overview of the history of antitrust law. Judge Ginsburg then discussed the current trends in antitrust law and the future of per se rules and the movement toward a rule of reason analysis.
William Kolasky, WilmerHale, moderated the Rule of Reason panel. Professor Einer Elhauge, Harvard Law School, spoke first and argued that courts should balance the anticompetitive effects with the pro-competitive effects of a merger, and not rely on per se rules or the rule of reason. This approach aligns with the Sherman Act, because it allows courts to find that "every restraint that reduces market output is unique." Tad B. Lipsky, Latham & Watkins LLP, did not disagree, but he focused on the framework used to analyze the monopoly standard. Lipsky argued that framework should be strengthened, and that willful maintenance or skilled foresight in industry is not effective. Professor Michael Carrier, Rutgers University School of Law-Camden, suggested that both Elhauge's and Lipsky's theories required courts to revisit cases and lessons learned in the past. Carrier also suggested that the courts must determine how to conduct the empirical inquiry suggested by Elhauge. He queried what the courts and federal antitrust agencies should do once they have determined anticompetitive effects and pro-competitive effects. Meanwhile, Eric L. Cramer, Berger & Montague, P.C., discussed the many hoops that plaintiffs must jump through to bring a successful claim. He discussed Lipsky's and Elhauge's approaches in light of the antitrust plaintiff and argued that direct proof of market power should be accepted by courts, as it already is in the Third and Seventh Circuits.
Alden F. Abbott, Associate Director, Bureau of Competition, U.S. Federal Trade Commission, moderated the second panel on Merger Enforcement. The first panelist, James Langenfeld, Director, LECG, LLC (and former Director for Antitrust, Bureau of Economics, U.S. Federal Trade Commission), focused on the need for revised vertical merger guidelines. Langenfeld recognized that many believe the current 1982 guidelines are sufficient, but he disagreed. He believes it is important that the industry know how to conduct successful vertical mergers. This not only benefits the industry but also provides an instruction manual for enforcers. J. Gregory Sidak, Chairman, Criterion Economics LLC, agreed that revisions were necessary, but he believed the revisions should go further. Sidak suggested that the new guidelines should encompass dynamic competition and also discussed some sleeper issues that could confront the new administration. Gregory J. Werden, Senior Economic Counsel, Antitrust Division, U.S. Department of Justice, provided comments on the two proposals based on his experience. He agreed with Sidak that there are instances where dynamic competition is useful to evaluate mergers. However, Werden does not believe this is a reason to throw out the merger guidelines. The new guidelines should not detail every abnormal situation that agencies encounter. When abnormal situations occur, such as the XM-Sirius merger, the guidelines were effective. In respect to Lagenfeld's proposal, Werden recognized that new guidelines only make sense if there is significant legal uncertainty and there is a real chance that the guidelines could mitigate the uncertainty. In this instance, there is no real legal uncertainty and if there was, the new guidelines, similar to those issued in Europe and Australia, would do little to provide clarity.
Robert Pitofsky, Sheehy Professor of Trade Regulation Law, Georgetown University Law Center; Of Counsel, Arnold & Porter, gave the luncheon address, which discussed the likely enforcement level in three areas of antitrust: dominant firm behavior, mergers, and vertical integration. He also discussed the need to find a balance between enforcement in the 1960s, when no attention was given to defenses claims that there were efficiencies that justified transactions, and the 1980s when enforcement declined substantially. The closing address, which was given by William E. Kovacic, Chairman, U.S. Federal Trade Commission, built from Pitofsky's theme of finding a centrist approach to enforcement. Kovacic argued that in addition to the number of cases prosecuted, it is important to recognize the non-litigation agenda. This work lays foundations for future successes. It is important to recognize work that has been done in the past as a way of going forward.
Overall, the symposium was a lively discussion of what antitrust will look like, or should like, in the new administration.
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