Antitrust and Unfair Competition Law

Competition: FALL 2022, Vol 32, No. 2

MESSAGE FROM THE EDITOR

Written by Stephen McIntyre
O’Melveny & Myers LLP Los Angeles, California

NEW FRONTIERS IN ANTITRUST ENFORCEMENT

Earlier this year, Assistant Attorney General Jonathan Kanter, who heads the U.S. Department of Justice Antitrust Division, declared that we are witnessing a "once-in-a-century inflection point in terms of reach of corporate power and popular support for addressing corporate power."1 At the same time, Mr. Kanter said, "we’re seeing a once-in-many-generation[s] shift in how markets function, and the need to update and adapt our antitrust enforcement to address new market realities."2 This "21st-century anti-monopoly movement," as some have called it,3 has brought antitrust back into front-page news headlines, dinner-table conversations, and political stump speeches.

Antitrust law, which has taken shape through more than a century of common-law development,4 is not known for turning on a dime. How well can existing antitrust doctrines be applied to novel (and rapidly changing) technologies, industries, and markets? Should the antitrust statutes even be applied to the range of social and economic concerns that currently animate our political discourse? In this edition of Competition, an impressive line-up of authors takes on issues at the cutting edge of public and private antitrust enforcement.

This edition begins with "Practical Challenges Confronting Merger Reviews of Labor Markets," by Joshua Holian and Nitesh Daryanani of Latham & Watkins LLP. This article examines the implications and challenges associated with the antitrust agencies’ newfound focus on labor welfareā€”in addition to traditional consumer-welfare considerationsā€”during the merger review process.

Next, in "The Price of Free," Professor Lesley Chiou of Occidental College and Avigail Kifer of Cornerstone Research analyze the economics of "free"

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productsā€”a topic that we are increasingly seeing in antitrust matters involving digital markets and multi-sided platforms.

We then hear from a trio of economistsā€”Juliette Caminade and Juan Carvajal of Analysis Group, Inc., and Professor Christopher R. Knittel of the MIT Sloan School of Managementā€”in "An Economic Analysis of the Self-Preferencing Debate." This article addresses the economic discourse and recent policy proposals surrounding so-called "self-preferencing" practices, that is, where a platform operator offers its own goods in competition with third-party sellers’ goods on its platform but disadvantages third-party sellers.

We are also pleased to publish an amicus curiae brief filed by the State of California in Epic Games, Inc. v. Apple Inc. In this closely watched litigation, Epic and Apple each appeal from Judge Yvonne Gonzalez Rogers’ September 2021 post-trial judgment, which found that Apple’s app distribution and in-app payment policies did not violate the antitrust laws, but that the iOS App Store’s "anti-steering" policy violated the Unfair Competition Law.5 The amicus brief articulates how California’s top enforcement agency views the UCL’s much-disputed "unfair" prong. In light of the high-profile nature of Epic v. Apple and the cutting-edge questions this case presents, we believe readers on both sides of the v. will benefit from knowing how the California Attorney General’s Office reads the statute.

In our next article, "Increasing Private Equity Investments In Healthcare Raise Antitrust and Unfair Business Practice Concerns," Mary Mitchell, a student at UC Hastings College of the Law who spent summer 2022 at Pritzker Levine LLP, takes on the phenomenon of private-equity firms acquiring stakes in healthcare providersā€”from nursing homes and hospitals to emergency medicine staffing groups and dermatology clinics.

Rounding out this edition’s slate of articles is "The Other ‘Quick Look,’" in which Ashish Sudhakaran and Tyler Helms of O’Melveny & Myers LLP analyze the Supreme Court’s suggestion in NCAA v. Alston6 that a "quick-look" analysis, which has traditionally provided a shortcut for condemning facially anticompetitive restraints, may be applied to summarily uphold certain kinds of agreements without the need for a full rule-of-reason analysis.

In addition to these exemplary articles, this edition of Competition reproduces two timely and engaging panel discussions from the May 2022 Golden State and Unfair Competition Law Institute, which was held in San Francisco:

In "Diversity In the Antitrust Bar: Is It Truly a Pipeline Problem?", moderator Steve Vieux of Bartko Zankel Bunzel & Miller speaks with panelists Ye Eun (Charlotte) Chun of Cleary Gottlieb Steen & Hamilton LLP; Qianwei Fu of Zelle LLP; Jeff Negrette of the U.S. Department of Justice Antitrust Division; and Laura Wilkinson of PayPal about whether the antitrust bar’s continuing lack of diversity is a "pipeline" issue or, rather, a matter of will.

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And in "Big Stakes Antitrust Trial: In re Capacitors Antitrust Litigation," Elizabeth Castillo of Cotchett, Pitre & McCarthy LLP moderates a discussion among lawyers who tried the Capacitors case not once, but twice: Joseph R. Saveri of the Joseph Saveri Law Firm, LLP; Anupama K. Reddy, currently of Google LLC but formerly of the Joseph Saveri Law Firm; Roberto Finzi of Paul, Weiss, Rifkind, Wharton & Carrison LLP; and Bonnie Lau of Morrison & Foerster LLP.

* * *

For the past year, it has been my honor to serve as Editor-in-Chief of Competition. In that time, the journal has continued to publish timely, well-written, and incisive works of scholarship. Just as important, the Spring and Fall 2022 editions of Competition have featured submissions from an incredibly diverse group of authors and speakersā€”from lawyers, economists, academics, and students; from those in plaintiffs’ firms, defense firms, government, and private industry; from practitioners with decades of experience and those who are just starting their careers; and from many attorneys of color and members of historically underrepresented groups. I am grateful to the many people who contributed articles, moderated or spoke on GSI panels, assisted with preparing Competition for publication, and otherwise made Volume 32 a success.

I also congratulate Anupama K. Reddy, who will be serving as Editor-in-Chief of Competition in the coming year. I look forward to Volume 33.

——–

Notes:

1. Stefania Palma, A "Once-In-a-Century Inflection Point": DoJ’s Antitrust Chief on Curbing Corporate Power, FIN. TIMES (June 2, 2022), https://www.ft.com/content/313550db-3006-401e-9908-981577663c51.

2. Id. (alteration in original).

3. Ron Knox, How Washington Got Back Into Trustbusting, Wash. Post (June 25, 2021), https://www.washingtonpost.com/outlook/2021/06/25/ftc-antitrust-monopoly-silicon-valley; see also Maurice E. Stucke & Ariel Ezrachi, The Rise, Fall, and Rebirth of the U.S. Antitrust Movement, Harvard Bus. Rev. (Dec. 15, 2017), https://hbr.org/2017/12/the-rise-fall-and-rebirth-of-the-u-s-antitrust-movement ("We may be witnessing the rise of . . . a progressive, anti-monopoly, New Brandeis School.").

4. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) ("From the beginning the Court has treated the Sherman Act as a common-law statute."); Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 531-32 (1983) ("The legislative history makes it perfectly clear that [Congress] expected the courts to give shape to the [Sherman Act’s] broad mandate by drawing on common-law tradition.") (quotation omitted); Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 98 n.42 (1981) ("In antitrust, the federal courts enjoy more flexibility and act more as common-law courts than in other areas governed by federal statute.").

5. Epic Games, Inc. v. Apple Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021).

6. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021).

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