Antitrust and Unfair Competition Law

Competition: Fall 2014, Vol. 23, No. 2


Thomas N. Dahdouh1

Federal Trade Commission

San Francisco

Mind the Gap: A Symposium on Federal/State Antitrust Differences

This issue offers a Symposium answering five key questions in the evolving relationship — dare I say the growing gap? — between federal and California state antitrust laws:

  • Do State Antitrust Statutes Reach Foreign Conduct? In the first set, two articles explore the reach of both federal and state antitrust laws to foreign conduct. First, Craig C. Corbitt and Aaron M. Sheanin discuss substantial questions about the reach of federal antitrust statutes. Their article addresses the most recent appellate court machinations concerning interpretation of the Foreign Trade Antitrust Improvements Act ("FTAIA"), a statute whose tortured language has spawned conflicting interpretations of the reach of federal antitrust statutes beyond our shores. Then, Marc Pilotin takes the plaintiff perspective in arguing that California’s state antitrust laws should apply to foreign conduct. Dominique-Chantale Alepin and Jonathan Guss argue for the defense that state antitrust laws should reach no farther than the FTAIA.
  • How Should a Potential Opt-Out Plaintiff Proceed? Authors Paula Blizzard, Justina Sessions, and Daniel Gordon offer purchasers a primer on what to do when faced with price-fixing allegations against their suppliers. They offer helpful strategic advice on what direct puchasers should do in such situations, and include advice on options when the allegedly unlawful conduct occurred abroad.
  • Should Federal and State Class Antitrust Actions Be Tried Together? Here, Michael Mallow begins tackling this issue by giving helpful background information on the Class Action Fairness Act ("CAFA"), along with insights into recent developments about it. For the plaintiff side, Steve Williams asserts that federal and state antitrust claims should not be tried in a single trial, while Robert E. Freitas, Jason S. Angell, and Jessica N. Leal brief the defense perspective for why a single trial in fact makes the most sense.
  • Should Damages be Apportioned for Federal and State Antitrust Violations? For this issue, Steve Williams and Elizabeth Tran take the plaintiff perspective in arguing against apportionment, while Kyle Mach and Bradley Markano give the defense perspective against doing so.
  • Should Federal Antitrust Standing Rules Apply to State Antitrust Indirect Purchaser Claims? Jodie M. Williams and Kristen M. Anderson offer a plaintiff perspective that federal standing rules — particularly Associated General Contractors’ multi-factor test for standing — should not apply to indirect claims brought under California’s Cartwright Act. Anna M. Fabish pleads the defense perspective, pointing out the upside of continuing to use this test.

This issue concludes with three articles taking a look at the burgeoning Unfair Competition Law litigation surrounding deceptive food claims as well as unreasonable data security practices. In the first set, Jill Manning for the plaintiff’s side and Rhonda R. Trotter and Oscar Ramallo for the defense argue about the strength of claims that certain "all natural" claims for foods are deceptive. The last article by Kathryn Russo explores the issues underlying the FTC’s recent win against Wyndham in its federal court challenge to alleged unreasonable data security practices and the implications that decision may have on whether privacy violation are actionable under California’s Unfair Competition Law.

With this issue, I bid farewell as the editor of Competition. I have greatly enjoyed "free-riding" on the wonderful written work of so many great California antitrust and unfair competition lawyers. We in California are lucky that we have a vibrant antitrust and unfair competition bar, and it has been my pleasure to bring you the past two year’s worth of issues for this journal. I now pass the torch on to Heather Tewksbury, who was formerly a trial attorney in the world-renowned DOJ Antitrust Division Field Office, and is now a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Palo Alto. Please keep sending her all your great work!



1. The views expressed here are my own and do not necessarily represent the views of the Federal Trade Commission or any Commissioner.

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