Antitrust and Unfair Competition Law

KATHLEEN FOOTE IN CONVERSATION WITH CHERYL JOHNSON

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April 2024

In a free-ranging interview with Cheryl Johnson, another Antitrust Section member and retiree, Kathleen
discusses her background and the Antitrust Section’s path under her stewardship.

Q. Let’s start with a little background. Can you tell us a bit about your family and life before college?

A. I was born in Detroit. My dad taught sociology at Wayne State University, and my mother worked as a secretary for the United Auto Workers. My grade school years were spent near Hyde Park in Chicago. We moved to Tarrytown, New York when my dad left academia to pursue work in market research at General Electric. In Tarrytown, which is about 25 miles north of Manhattan, I attended the public high school whose mascot was a Headless Horseman in tribute to Washington Irving’s The Legend of Sleepy Hollow. Less famous, but more influential in setting the character of the town, was the Chevrolet plant that employed many town residents. When I rode from Tarrytown to Washington, D.C. in 1963 for the Civil Rights March, it was on one of the buses that the Auto Workers Union provided.

Q. Do you have siblings and what do they do?

A. I had one brother, Jefferson, who unfortunately passed away in 2020 from cancer at the tender age of 64. He graduated from Harvard and then got his Ph.D. from Berkeley in biochemistry and did pioneering work in the study of monoclonal antibodies. He was a thoroughly wonderful person, who started his own biotech company in Seattle, wrote books, played steel drums, studied ballet, and was a loving father and brother.

Q. You went to Radcliffe College back in the 1960s when it was theoretically an all-girls college and before it fully merged with Harvard College. Do you have any thoughts on how the fact that Radcliffe was a women’s college as opposed to a coed institution impacted you?

A. Unlike some of the other Seven Sister colleges, Radcliffe was, for all practical purposes, coed when I got there. While the dorms were separate, all of our classes were taken together with the men at Harvard, as had been done for at least a decade. That said, more attention went to the men to the extent that the faculty focused on undergraduates at all. And men outnumbered women by at least four to one. It was an intimidating environment for a young woman, especially one as unprepared as I was for college-level work.

Q. Did any of your professors or fellow students at Radcliffe influence your career ambitions?

A. None of us really grasped how to integrate professional goals into a normal adult life. I recall Radcliffe’s President Mary Bunting addressing the question in her first speech to us by advising us that the “answer” was to get a career going first before having children. But we hardly got a manual on how to get a career going, which was left pretty unclear.

Q. You chose to major in economics at Radcliffe. Was this a common major at Radcliffe? And what sparked your decision to major in economics?

A. As it turned out, it was a very uncommon choice. There were only three women among the 60 or so men in the basic microeconomics class for majors. The reason I chose this major was because I had become interested in third-world development issues, especially those in Latin America.

Q. You took a year off during college; why did you do that?

A. After an intense summer in 1964 in Mexico City studying development economics at the university and exploring the countryside on a motorcycle with a Mexican musician and his friends, I wanted to do more traveling. Radcliffe did not offer junior year abroad programs. My college roommate and I decided that studying for a year in Madrid would provide a crash course in Spanish as well as a grand travel adventure around Europe. We ended up doing much more traveling than we expected because student strikes against the Franco regime led to a prompt shutdown of the university in Madrid. As a result, we wound up finishing our studies in Rome.

Q. Any special lessons that you learned from that year off?

A. A ton of them. For me, as for many young Americans then, the variety of food was a revelation. So was the allure of every shop window. And among other things, we discovered that, for Europeans, even those of our own generation, World War II was still a very real and often painful personal memory, even more than 20 years later. I’m not sure how much that has changed even today.

Q. What were your fondest or most memorable experiences from this period?

A. I can recall several priceless moments, not to mention meals. And music. Starting with nights in Mexico City listening to a hot rock and roll band called Los Sinners, anchored by drummer Fito de la Parra—who later emigrated to the United States, joined a blues band called Canned Heat, and played at Woodstock. (Fito became, and has remained, a loyal and beloved friend.) Then later in Europe, from flamenco at Corral de la Morería in Madrid to spontaneous ballads at trattorias in the then working-class Trastevere neighborhood of Rome.

One night in Spain, several of us went to the palace of El Escorial outside Madrid to take in the El Greco-like spookiness of the location, enhanced by listening to Ravel’s Bolero. After a surprise encounter with the night watchman, we bought him a drink in the local bar and he then gave us an illicit lantern-light tour inside the palace—with our shoes off so as not to wake the monks sleeping upstairs.

Another time, when hitchhiking to Paris, we somehow managed to snag a ride in an empty tour bus being driven back to Hamburg by some kindly old Germans. They spoke no English, nor we German, but they were delighted to switch on recorded waltzes, and weave the bus back and forth in time to the music as we drove along the Loire River Valley.

POST-COLLEGE (1967–1971)

Q. After graduating from Harvard-Radcliffe in 1967, what did you do?

A. I returned to Italy, where I got a job through the Harvard placement office as an administrator at a girls’ finishing school in Florence. I had another job in Rome working in an American bookstore. And in 1969, I made my way to San Francisco.

Q. Why San Francisco?

A. Oh, it was 1969. My whole generation was headed to San Francisco. There was also a boyfriend factor. And North Beach, where I found an apartment, was the closest thing I could find to Italy.

Q. What did you do in San Francisco?

A. You mean apart from exploring the Bay Area, protesting the Vietnam War, and dancing at the Avalon Ballroom and the Fillmore? I looked for a job. Most of the work then available to women was just secretarial. Unfortunately, or maybe fortunately, my typing was not good enough to land a decent-paying secretarial job. In early 1970, however, I was hired as paralegal at the law firm of McCutchen, Doyle, Brown & Enersen (which later became Bingham McCutchen and then Morgan Lewis). There, I worked for Bill Schwarzer, who was an antitrust litigator until 1976, when he was appointed to the federal bench in San Francisco. Tom Rosch, a protégé of Schwarzer, had also just become a partner. (Tom later became an FTC Commissioner, and then a partner at Latham.) I worked with them both on the defense of an engagingly local antitrust case involving Gray Line’s boycott of a small business that sold San Francisco nightlife tours by limousine. I summarized depositions of many of the biggest names in San Francisco’s tourism and entertainment business of that era: Ben Swig of the Fairmont, Henry Lewin at the St. Francis, Big Al from Big Al’s topless club on Broadway, Don Dianda from a very elegant restaurant called Doro’s, and several nightclub owners. The case went to trial, where the plaintiff tour company, represented by Michael Khourie and Gene Crew of Broad Khourie & Schultz (later Khourie and Crew), won on liability but lost on damages.

I also worked with Bill Schwarzer and John Reese on an antitrust case involving Greyhound’s cancellation of a joint operating agreement with Mt. Hood Stages that ran between San Francisco and Spokane. The disputed agreement was Mt. Hood Stages’ primary source of income. Greyhound ultimately lost at trial in Oregon. That case had some colorful characters and interesting antitrust issues.

And I briefly worked under Mr. Doyle on the gypsum wallboard litigation, in which my task was to compare the prices on invoices to distributors for gypsum wallboard with those on their own invoices to applicators, something I later realized must have been offered as a first iteration of a pass-on defense.

LAW SCHOOL (1972–1975)

Q. Who or what influenced your choice to go to law school in the 1970s?

A. I had been out of college and working for several years before the women’s liberation movement gained traction. It was not until then that it began to dawn on me that I might be working for the rest of my life, and I needed to upgrade my professional aspirations. And in 1969, when driving across the country to San Francisco, a friend and I stopped off in Chicago to watch a day of the Chicago 8 trial. The sight of Bobby Seale in shackles while the seven white guys pranced freely around the courtroom in tie dye t-shirts was shocking, and the important role of their lawyers made a big impression on me.

Q. Did you have any professors in college or law school that were helpful in guiding or mentoring you?

A. In law school I did, but not in antitrust. My focus in law school had turned to environmental issues, zoning, and habitat preservation. CEQA (the California Environmental Quality Act) was brand new, and so were the federal Clean Air and Clean Water Acts. I did take antitrust law in law school, and during my last semester, I externed for the senior Judge Orrick, who had led the U.S. DOJ Antitrust Division in the early 1960s. My more memorable experiences at Orrick’s court included several non-antitrust trials: a housing discrimination lawsuit, a marijuana prosecution, and a case of semi-first impression concerning union pension fund rules, in which the judge adopted a “fundamental fairness” test used in the D.C. Circuit that, as affirmed by the Ninth Circuit became an important labor law case.

Q. How did you spend your summers during law school?

A. During both first and second years, I worked part-time at McCutchen, and full-time there over the first summer. After my second year of law school, I got a summer job at a small San Francisco firm called Goldstein, Barceloux & Goldstein that combined land use and class action work. While I liked this firm a lot and got an offer to return as an attorney after the bar exam, I accepted the McCutchen offer instead.

Q. The 1970s were a time when women first started entering law schools in anything but token numbers. What was your experience at USF Law School?

A. I started law school in 1972. My entering class was 23% women, but only 9% of that year’s graduates were women—quite a striking contrast. The rapid change had led to very visible discrimination at every class break, when long lines would form outside the one women’s bathroom, which had only two stalls. The reason those numbers have stayed with me is because of the lawsuit that the women eventually brought to remedy the bathroom issue.

EARLY POST-LAW SCHOOL CAREER AND LIFE (1975–1988)

Q. What kind of work did you do at McCutchen when you returned for three years following your law school graduation?

A. As an associate there, I mostly worked on non-antitrust cases, including a couple of securities cases under partner Graham Moody, and the first wave of asbestos cases before they were all consolidated. I remember attending depositions of some very sick insulation workers struggling to remember what corporate logos were on the asbestos-containing materials they had used. One of them, Blackie Kendall, had a colorful life story and near-perfect recall of the products and their manufacturers, as well as great humor and personal charm. We all lined up to shake his hand when the deposition was over. He died just a few weeks later.

Q. Didn’t you get married and have a baby somewhere in this time period?

A. Yes. I married my first husband, Don Rubenstein, while we were both in law school. A dedicated environmentalist, Don worked first at the Nature Conservancy and then for the California Coastal Conservancy. In 1976, we moved to Mill Valley, and our daughter Grace was born in 1979. I had left McCutchen by then and kept myself busy as a Mill Valley Planning Commissioner. Grace would come along with me in the stroller for some of the on-site inspections I was doing as a commissioner and later on campaign walks when I ran for City Council.

Q. Your resume indicates that you were the Associate Dean of USF from 1981 to 1987. How did that come about?

A. In 1981, the Dean of USF Law School, who had been one of my law school professors, urged me to apply for the Associate Dean position just vacated by future California Supreme Court Justice Kathryn Werdegar. It was a 9-to-5 schedule with a teaching component that was more friendly to raising children than a litigation practice. I got the job and began teaching land use, environmental law, and municipal law classes. Don and I divorced not long afterward, and in 1984, I married Tyson Underwood, a Sausalito artist and art festival producer, who died in 2015. Our son, Tyson, was born just at the end of the fall 1986 semester.

Q. What changes in USF Law School did you observe from the time that you attended law school there?

A. By the 1980s, 40% or more of the students were women, and the young liberals on the law school faculty I had known as a student were now in charge. Community service clinics, affirmative action, and a stab at John Dewey’s “mastery” learning style were all part of the changes. I also remember meeting Arkansas Governor Bill Clinton around 1985, when he gave the keynote law school graduation speech. After the speech, Clinton, instead of disappearing as most speakers do, stayed and shook hands, making his famous 30-second personal connections with everyone in the room.

Q. Before and during your USF associate deanship, you were also active in local politics in Mill Valley. What inspired this engagement?

A. Mill Valley’s location, so close to San Francisco and its laid-back counterculture ambience, put it under huge development pressure in the late 1970s. I joined a citizens group pushing for environmental protection, and at their urging, applied for an appointment to the Planning Commission. In 1984, after several years as a commissioner, I was elected to the Mill Valley City Council, which proved to be one of the most absorbing things I’ve ever done. The Council has five council persons and one is selected to be the Mayor for each year. I served two four-year terms on the Council, including two stints as the Mayor of Mill Valley. Mill Valley had a full-time staff, so being on the City Council was essentially a part-time volunteer gig—maybe eight hours a week, mostly during the evening hours.

Councilwoman Foote breaks ground!

Councilwoman Foote breaks ground!

Q. What kind of issues were there in Mill Valley that you dealt with as the Mayor and on the local commissions?

A. The Council had the opportunity to deal with a wide variety of interesting issues, from budget choices to development permits and even social policy. For instance, with regard to affordable housing, we did approve some private condos that included a percentage of “affordable” units, but more importantly, in my view, we actually developed and built two rental projects ourselves—both of them 100% affordable, one with 32 units and the other with 17 family-sized units. The city bought the land, hired a nonprofit entity to plan and design each project, and then worked with local banks and grantors to pull together the funding to get them built. They remain fully occupied and an enduring community asset. Given the crucial importance of rental housing, I wish more communities would do that.

One of the most controversial issues erupted after an arts organization proposed a sculpture/fountain for the Mill Valley downtown plaza that was a 10-foot cube of glass bricks with metal strips on top from which water would spout into a 20-foot square pool. When it came to the Council for approval, hundreds protested it as “corporate art” that had no place in redwood-forested Mill Valley. Local artists were enraged that it was designed by a New York artist who had never been to Mill Valley. Local architects criticized each other’s architectural taste. Speeches were made about due process, and about the purposes of town squares—and even the ancient Greek concept of Agora (marketplace and town center) was invoked. After a split vote, a citizens’ petition, a motion for reconsideration, another hearing, and another split vote, the proposal was rejected amidst a lot of public discourse about famous and appropriate city plazas around the world.

CALIFORNIA ATTORNEY GENERAL ANTITRUST SECTION (1988–2022)

Q. And the rest of your history is at the California Attorney General’s Antitrust Section from 1988 on. What prompted this pivot in your career?

A. USF periodically experienced money problems and, in 1987, untenured employees were being cut back or let go altogether. I was offered a severance package that gave me 12 months at half pay with full health benefits—quite a boon for a mom with a newborn and an eight-year-old. The same day I got that news, I happened to see a notice of an upcoming civil service exam for the Attorney General’s office and took it as a sign I should apply. During the succeeding year, there were no openings in the AG’s Land Use Section, but just before my eligibility period expired, I was offered a job in the AG’s Antitrust Section. The work was compelling, and I never looked back.

Q. Before we focus on your work and life in the Antitrust Section, it appears you also continued your community involvement while in that Section, yes?

A. Yes. When I first joined the Antitrust Section, I was still on the Mill Valley City Council, and that needed clearance from the AG. Some poor soul in the AG’s office had to hit the books to decide whether there was a conflict with my new day job. Later on, for eight years, I served as a trustee of the Marin Community Foundation, two of them as Board Chair. Since the AG oversees charitable trusts, that too required clearance, and there was a lot of ink spilled on legal memos. In any event, I secured the clearances and thereby learned a great deal about the risks and responsibilities, as well as the benefits, of charitable grant-making. (The Marin Community Foundation Board made discretionary grants totaling about $30 million per year.) When, at the AG’s office, the Vitamins Indirect Purchaser Antitrust case was settled, with $38 million of the settlement monies slated for cy pres style distribution in California, I leaned hard on my co-counsel to agree to a formal and transparent competitive grant-making process conducted by an independent grant-making professional.

Mayor Foote delivers!

Mayor Foote delivers!

Q. So, from 1988 through December 2022, you were in the Antitrust Section of the California Attorney General’s Office, serving under seven different Attorneys General. Rather than posing scores of questions about your experiences under each of these AGs, we will simply refer readers to your memoirs about your experiences under each of them. But, let me now ask a few broader and more general questions about your experience in the Antitrust Section. First, what were the greatest challenges that you had as leader of the Section?

A. State antitrust enforcement was still pretty new and not well understood by the antitrust world or even by the AGs themselves in some respects. Resources were a perennial issue, and still are. Even with AGs who were supportive of growth in the Antitrust Section, budget cuts and salaries that hovered well below private and even below other government salaries added to hiring challenges. That being said, we have been very successful in attracting talented attorneys despite the salary challenges. Yet there always remains a huge asymmetry between our staff and the resources of those being investigated or challenged. The asymmetry increased after the federal Class Action Fairness Act (CAFA) went into effect in 2006, forcing most private litigation of state Cartwright Act antitrust claims into federal court. Accordingly, the opportunities are now far fewer for our state courts to develop our Cartwright case law, unless the AG brings his own lawsuits in state court—with all the staffing and monetary burdens that major antitrust litigation inevitably entails, but without the private, multistate, or U.S. government co-counsel that we might have in federal court.

Q. What do you consider your most significant contributions to the Section or its directions?

A. The AG, himself or herself, makes a lot of the decisions about the emphases of the Section, some of which may be dictated by larger events, from gasoline price spikes to telecom mergers. But as Section Chief I was in a good position to develop areas of longer-term emphasis and staff expertise through hiring, investigative assignments, professional development opportunities, and relationship building. You yourself [Cheryl Johnson] brought your patent litigation background to the Section at a time when a long-term focus on pharma patent manipulations and pay-for-delay seemed to me like an important direction to take. Emilio Varanini’s background in healthcare and Paula Blizzard’s in telecom and tech are other examples of that kind of enrichment of the Section’s capabilities. And I was in a good position to initiate certain directions and policy choices myself. The robust capabilities of the Cartwright Act always greatly interested me, and developing more law around them seemed at least as important as our participation in Sherman Act cases. Early examples of this Cartwright focus included a tying case involving traffic signal equipment sales to local governments (California v. Econolite). When the Leegin decision came down, and I began getting calls from practitioners asking if California would follow SCOTUS in abandoning the per se standard for resale price maintenance, I made it clear that the answer was no, and we felt the importance of following up with a couple of illustrative lawsuits involving “cosmeceuticals” (DermaQuest and Bioelements) to underscore California’s RPM position. Later and larger Cartwright Act cases, of course, include Sutter, Vitol, and Amazon. Amazon in particular offers some wonderful opportunities for the California Supreme Court, if it ever gets to it, to continue the kinds of elucidation of Cartwright Act policy that appear in its Clayworth and Cipro I & II opinions. I like to think that my prioritization of Cartwright Act work in state court venues, notwithstanding the resource commitment that goes along with it, is moving the Act itself and the AG’s Office in an important direction on the national policy stage.

All of that said, I also like to think of my biggest personal contribution as creating an environment that brought people into the Section who have a passion for antitrust work and then were encouraged by me to have at it, pursuing investigations and litigating cases that they deeply care about. Their many volunteer hours editing the Treatise and speaking at Cal. Bar and ABA events, I also viewed as important components of our mission, though not all of my managerial counterparts would agree. Even with the split-off of healthcare matters to a separate unit, the Section is bigger and more capable than it has ever been, its members have a clear sense of mission and direction, and its portfolio is both original and highly germane to California’s consumer needs.

Q. What were your most fulfilling matters that you worked on?

A. I would have to say the Hartford and Safeway cases were the most fulfilling personally. I was deeply involved in both, both were novel and ambitious when filed, and both ultimately set important legal precedents: jurisdiction over foreign entities in the case of Hartford, and implied labor exemption limitation in the case of Safeway. They were quite different in that Hartford was a multistate case about the conduct of an entire industry, while Safeway was a solo challenge to a local situation. But each one provided multiple opportunities to think creatively and make strategic choices. Safeway in particular was an important win for us. It was one of the first ventures into labor issues by any antitrust enforcer, and demonstrated vividly that California is a force to be reckoned with. It was also, I think, an important factor in at least two of the honors I have received: the American Antitrust Institute Award in 2013 and the earlier Daily Journal Attorney of the Year recognition.

Q. Did any of the cases that the Section tried on your watch pose particular challenges and how did you overcome them?

A. Taking a case to trial is always a challenge. The resource commitment alone demands tough choices about what other work has to be deferred or let go entirely. And the AG as well as budget-keepers need to be convinced that those choices are the right ones. Co-counsel partnerships, including cost sharing, has helped in some cases, like Sutter. And hiring outside counsel has proven to be a crucial, if sometimes expensive, solution in others, like Valero and T-Mobile/Sprint. A challenge of a different type, at least in merger cases where U.S. DOJ or the FTC has investigated but not acted, has been overcoming the suggestion, always vigorously advanced by opposing counsel, that their absence means that our case lacks merit. I have sometimes thought that may have influenced the disappointing outcome of our challenge to the Sutter/Summit merger in 1999. In the 2017 Valero case, we addressed it head-on, and to his credit, so did Judge Alsup. In the 2019 T-Mobile/Sprint case, the DOJ’s astonishing intervention and argument that the states should defer to its judgment was unsuccessful on paper; however, it’s hard not to wonder if it played an implicit role in the court’s subsequent denial of relief, despite finding that the states had indeed met our burden of proof as to anticompetitive effects in local markets.

Q. Sadly, we have seen some antitrust issues become red or blue state issues. What is your perspective on how and when antitrust issues became more partisan, and any solutions on the horizon?

A. The Chicago School of thought has always had a political tinge because of its antipathy to governmental regulation, so in that sense, antitrust enforcement has always oscillated somewhat between red and blue administrations. But that’s different from some recent uses of baseless antitrust claims as a political wedge issue, which I think must be as galling to every antitrust practitioner as they are to me. One example was the Trump administration’s antitrust lawsuit against the auto industry’s compliance with California’s strict air pollution controls—appropriately bounced by the court at the first opportunity. Another was the weird antitrust investigation into ostensible monopolization in the legalized marijuana market, as dispersed, diverse, and highly state regulated as it is. I hope those kinds of uses of antitrust law are now behind us. In terms of serious solutions to the longstanding problem of Chicago School-influenced underenforcement, it’s hard to know when or if we will get them. The bipartisan antitrust bills and debate in Congress are hopeful developments, despite their failure so far to pass legislation.

Q. The Biden administration has brought with it a more-expansive view of the role of antitrust law and is advocating for broader antitrust laws. Do you share this vision, and do you think there is an appetite, need, or willingness to broaden our antitrust laws?

A. I see a distinct need for greater antitrust enforcement, both merger and non-merger. I’m not entirely sure legislation will be a panacea, but there is certainly a need for more policy guidance than presently exists. I see the courts as crying out for it and the markets as well. Most of the bright lines that had once shaped business conduct and simplified lawsuits have now been replaced with a rule of reason balancing process that at best occasionally relieves a company of liability, but at worst leaves markets without some fairly fundamental guidance and sense of uniform expectations. The problem was exacerbated by Justice Scalia’s articulation of an explicit preference for underenforcement over overenforcement, a breathtakingly sweeping policy dictum that has been taken seriously by many lower courts. Even without more explicit reforms, rejecting that view might be a principle that our legislators could agree on and codify, at least with regard to mergers. But I would frankly like to see both federal and state antitrust laws modified to incorporate some of the European approaches, most particularly their ex ante rules for the largest companies and something akin to the “abuse of dominance” standard.

Q. Who was your favorite Attorney General?

A. Ha! That’s impossible to answer, and it’s kind of like asking a mother about her favorite kid. Certainly, none of the Attorneys General got to office by being ogrish, and they all were serious people and supportive of antitrust enforcement. If I were to create my own Attorney General, I guess the traits I would certainly choose include Lockyer’s enthusiasm, Harris’s diversity commitment, and Becerra’s depth. AG Bonta, though still new, seems to offer a lot in all those respects.

Q. While leading the Antitrust Section of the California Attorney General, you also led the NAAG Antitrust Task Force from 2012 through 2015. Can you explain what the Antitrust Task Force is and your role as chair during that period?

A. The National Association of Attorneys General (NAAG) has been in existence for over a century, but its Antitrust Task Force was not formed until the 1970s. The Task Force is made up of antitrust attorneys in the state Attorneys General Offices across the country and is responsible for coordinating multistate antitrust litigation efforts, offering training, incubating studies of new issues, and showcasing the states’ antitrust accomplishments. My role as the Task Force Chair was to pursue those goals and help all of the states participate in and reap the benefits of them. That included an active role in the leadership of the ABA’s Section of Antitrust Law, representing the Task Force as a speaker at ABA programs to advocate for state concerns and to highlight and explain the many achievements of state antitrust enforcers to sometimes skeptical ABA members—a task I particularly enjoyed.

2014 ABA Spring Meeting “Enforcers Roundtable.” L to R: Antitrust Division chief Bill Baer, FTC chair Edith Ramirez, EU Commissioner Margrethe Vestager, UK’s CMA chair Lord David Currie, NAAG Antitrust Task Force chair Kathleen Foote.

2014 ABA Spring Meeting “Enforcers Roundtable.” L to R: Antitrust Division chief Bill Baer, FTC chair Edith Ramirez, EU Commissioner Margrethe Vestager, UK’s CMA chair Lord David Currie, NAAG Antitrust Task Force chair Kathleen Foote.

Q. While you were Chair of the NAAG Antitrust Task Force, what were the challenges that state antitrust enforcers encountered?

A. During my tenure as Chair, the greatest challenge to the states collectively came from an unexpected source: the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. 494, 135 S. Ct. 1101 (2015). The Court sharply limited the conditions under which state-established occupational licensing boards could claim exemption from antitrust challenges under the state action doctrine. Many states found themselves and their licensing boards suddenly the targets of antitrust lawsuits, and since AGs are often required to defend their state agencies’ conduct, many states’ antitrust attorneys abruptly found themselves on both sides of the issue. The Task Force began tracking the lawsuits and the legislative reforms that soon began unfolding in each state in response to NC Dental, and I formed a committee within the Task Force to compile and evaluate them and keep the states fully briefed.

In California, AG Harris designated an internal committee, which I chaired, to develop recommendations to deal with the NC Dental opinion. The committee drew upon numerous sections within the Attorney General’s Office whose work and client agencies were potentially impacted by the decision. Much of that committee’s thinking was ultimately reflected in a formal AG Opinion (Ops. CAAG 2015-402) regarding compliance with the NC Dental mandate.

The Task Force continues to be a vital link for states in collaboration with each other as well as with federal enforcers, in merger cases explicitly under a state-federal protocol regarding document sharing, but also in studying and sharing information on anticompetitive practices in several key sectors, including pharmaceuticals, airlines, healthcare, and agriculture.

FAMILY AND RETIREMENT

Kathleen with her kids, Grace and Tyson.

Kathleen with her kids, Grace and Tyson.

Q. Let’s switch gears from your work in the Section. We’ve mentioned in passing some of your family moments as they occasionally bumped up against your career. Can you discuss your family in a bit more detail?

A. Sure. During my younger days, I had two nine-year marriages, and each produced a smashingly great child. My first marriage was to Don Rubenstein, an environmental lawyer at the forefront of the conservation movement in the 1970s at the Nature Conservancy and later the California Coastal Conservancy. My daughter from this marriage, Grace Rubenstein, is now a busy freelance writer with two sons, aged four and six, who live close by me in the Bay Area.

My second marriage was to Tyson Underwood, a Duke-educated artist who revitalized the Sausalito Art Festival, created the Marin Art Festival, and was on the founding board of the Headlands Center for the Arts. Together we had a son, also named Tyson Underwood, who is a professional actor, but is now also back in school studying theology and classics.

After being single for more than 20 years, late in life I married Tom Silk, an attorney who specialized in charitable trust law. Tom had started his career in the tax division of the Department of Justice in Washington, D.C., where he developed an interest in nonprofits. He then worked at the Brobeck firm in San Francisco for several years, before starting a solo practice that became the boutique law firm of Silk, Adler and Colvin, which has provided legal services to the nonprofit and philanthropic sector for over four decades. During that time, Tom established and defended nonprofit status for hundreds of arts, environmental, and human rights organizations, including the Trust for Public Lands, Mother Jones, the San Francisco Zen Center, the Tides Foundation, Glide Memorial Methodist Church, and the SF SafeHouse. When I first met Tom in the early 1970s, we each had our own lives and did not meet again until 2016, when we promptly got together, married, and I moved into his house in Stinson Beach. To all of our great sorrow, especially mine, Tom died in 2022, and I have recently returned to my home in Mill Valley.

2022 retirement luncheon for Kathleen with Los Angeles branch of the Antitrust Section.

2022 retirement luncheon for Kathleen with Los Angeles branch of the Antitrust Section.

Q. So, what prompted you to retire from the AG’s Office?

A. I had been thinking about it for some time, and Tom’s death was certainly a wake-up call. With the pandemic mostly behind us, I finally felt the time was right, and that the augmented Antitrust Section had great depth of talent and was in good hands. Certainly, a big motivation for my retirement is also the opportunity to spend more time with my children and grandchildren and do all the things the pandemic had suspended for so long.

Q. So how is being a grandmother serving you?

A. Well, I am working on it, but I may have a way to go to perfect my grandmothering. A few weeks ago, I had my two small grandsons for several hours and decided to stop with them at a local greeting card/novelty store. The six-year-old, who can read, instantly spotted a box labeled “Fart Machine” and began lobbying. “Grandma, you need to buy me this.” And even more persuasively, “Look, Grandma, it’s remote controlled!” The four-year-old also discovered a book about animal farts (rabbits, mice, and elephants) with button-activated audio illustrations. Like any good grandma, I naturally purchased these items for the grandkids. Needless to say, my daughter suggested it raised serious questions about my judgment. But I did score some points with the little guys, which should hold me in good stead for a while.

USTA Sectionals, Sacramento (2015).

USTA Sectionals, Sacramento (2015).

Q. And is any antitrust work on your retirement agenda?

A. I think so. Since retiring in December 2022, I have presented to a bar association group on consumer protection and privacy enforcement and at the ABA Antitrust Section Spring Meeting. I am a vice-chair of the ABA’s U.S. Comments Committee, which last year reviewed sports exemptions and noncompete bans. I am also informally assisting in a study of possible reforms to California’s antitrust laws, a study mandated by the California legislature in ACR 95.

Q. What kind of hobbies and sports are on your agenda?

A. I played tennis as a kid and have remained an active tennis player for the last 30 or more years. I was a regular member of my tennis club team until COVID-19 hit, and while I am now a strictly social player, I’d like to think I am still close to a 4.0 level of play.

Active travel has always been a passion. Just before retirement, I joined an alumni tour to Vietnam and Cambodia, and since then, I also visited Bhutan and Ireland. I took a 10-day trip with my daughter to hike the Cinque Terre in Italy, the five scenic coastal hillside towns just south of the Italian Riviera. Upcoming is a wintertime cruise to Norway to see the northern lights, and a visit to South Africa and Namibia. More travel to Mexico and elsewhere in Latin America is also high on my future agenda. Fingers crossed that I get to do it all!

And a hearty thank you for sharing your story with our readers!

Photos: Halong Bay, Vietnam (2022).; Cartagena, Colombia (2015).Tigers Nest, Bhutan (2023). Agra, India (2015).
Backwaters, Kerala, India (2012).; Siem Reap, Cambodia (2022).; Tres Marias, outside Mexico City (1964).
Mezcal warehouse outside Tlacolula, Oaxaca, Mexico (2014).; Thar Desert, Rajasthan, India (2015).; Alchi, Ladakh, India (2013).; Rome (2014).

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