Antitrust and Unfair Competition Law

Competition: Fall 2021, Vol. 31, No. 2


Trevor V. Stockinger

Kesselman Brantly Stockinger LLP

Manhattan Beach, CA

Welcome to the Fall issue of Volume 31 of Competition, our Section’s official journal published biannually both in print and electronically. We are witnessing a reinvigorated debate among politicians, scholars, and lawyers alike relating to the role antitrust should play in governing American socioeconomic structures. Our Fall issue embraces this debate, publishing articles on the theme of Evolutions in Antitrust: Perspectives. Here you will find articles arguing for an interpretation of antitrust law to support social justice reform. You will also find others arguing that the path antitrust has been on over the past decades has served us well and should be maintained. On either side, the history and evolution of antitrust law is illuminated.

The issue begins with two articles on the consumer welfare standard. First, William Markam, a 33-year antitrust practitioner, presents a comprehensive history of the evolution of the consumer welfare standard. In this article, Markham argues that the consumer welfare standard is inconsistent with the original goals and policies of United States antitrust law and that the law should return to its classical interpretation.

Next, Lawrence Wu, Ph.D. and Craig Malam, Ph.D., economists at NERA Economic Consulting, set aside the policy debates and provide an economic perspective on the consumer welfare standard. They conclude that it provides a useful framework for considering antitrust issues and that current criticisms can be addressed through developing better theoretical and empirical economic models and tools.

We are also privileged to publish an article by Dan M. Wall, partner at Latham & Watkins and 2021’s Antitrust Lawyer of the Year. Wall traces the evolution of using economic theory in antitrust litigation during his over-40-year career. He ultimately concludes that antitrust law should continue to embrace advances in economic theory contrary to the current populist movement, which he views as stepping away from administrable antitrust standards based on economics.

In the following article, Neely B. Agin, partner at Winston & Strawn, Susannah P. Torpey, Co-Chair of Winston’s Technology Antitrust Group, and Dana Cook-Milligan, Associate of Winston’s San Francisco office, center the recent successful private challenge of a vertical merger in Jeld-Wen within the history of private challenges in the United States and discuss how this decision may fit into the landscape of future private merger litigation.

The issue further features two articles concerning the growing trend of arbitrating antitrust claims. Professor Christopher R. Leslie, Chancellor’s Professor of Law at University of California, Irvine School of Law, provides a history of arbitration law, and traces the relationship between arbitration and antitrust law. He offers that the expansion of arbitration requires a reconsideration of the Illinois Brick rule, and the relationship between antitrust arbitration and merger review.

Robert S. Kitchenoff, managing partner of Weinstein Kitchenoff & Asher, Heidi Silton, partner at Lockridge Grindal Nauen, Pamela Gilbert, partner in Cuneo Gilbert & LaDuca, Nigar A. Shaikh, associate of Lieff Cabraser Heimann & Bernstein, and Geoffrey H. Kozen, associate of Robins Kaplan, next evaluate Big Tech’s use of forced arbitration clauses and class action waivers. They explore the history and policies behind arbitration, arguing that most are not met by Big Tech’s use of arbitration, and that arbitration and class action waivers are inimical to antitrust enforcement. They move forward to propose solutions and assess the current proposals for reform in the legislature.

This issue also offers two articles concerning the overlap of antitrust and patent law. DeForest McDuff, Ph.D., Mickey Ferri, Ph.D., and Noah Brennan, M.I.A., economists at Insight Economics, provide a comprehensive public policy evaluation of the success of antitrust enforcement in limiting potential anticompetitive excesses of the patent system. They conclude by offering proposals to improve both the antitrust and patent regime.

Anne Y. Brody, Of Counsel at Gibson, Dunn & Crutcher LLP, and Elisabeth Ponce, a member of the legal and compliance team at AlphaSights, survey the evolution and continuing harmonization of the standards related to Walker Process fraud antitrust claims and the inequitable conduct defense to patent infringement. They survey case law on the subject over the last decade and explore whether the patent law doctrine of infectious unenforceability has a role to play in proving Walker Process fraud and other antitrust theories.

Finally, the Antitrust and Unfair Competition Law Section has sought to bring focus to issues of equity, inclusion, and social justice. This issue continues that focus. Rosa Morales, counsel in Crowell & Moring’s Antitrust & Competition Group, explores the relationship between antitrust policy and racial inequality in the United States, ways in which antitrust law may be used to address systemic racism, foreign regimes that embed racial or social equity principles in their competition policies, and the future of antiracist enforcement in upcoming reforms in U.S. antitrust policy.

Finally, the issue concludes with an article by Danielle Joy Healey, Senior Principal at Fish & Richardson, in which she shares her experiences as a transwoman lawyer and her insights into the practical success of inclusion policies in a society that struggles with equity for transgender individuals.

I would like to express my appreciation to the Section’s Executive Committee and Advisors. In particular, I would like to thank Joanna Fuller who has provided invaluable support as a member of the Editorial Board and our Section’s Chair, Qianwei Fu, who continued to be generous with her advice and mentorship as I worked to publish this issue.

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