Antitrust and Unfair Competition Law

Competition: Spring 2016, Vol 25, No. 1


Heather S. Tewksbury

Wilmer Cutler Pickering Hale & Dorr LLP

Palo Alto, CA

The 25th Anniversary of the Golden State Institute.

This special edition of Competition celebrates 25 years of the Golden State Institute with articles that highlight comments from the Chief Justice of the California Supreme Court, federal judges, and recognized practitioners. This edition also provides a survey of the past 25 years of competition law, and substantive discussions on key antitrust, unfair competition, and privacy issues.

Starting the issue off are comprehensive articles by the three Toms—Tom Greene, Tom Papageorge, and recent past Section Chair, Tom Dahdouh—on several key procedural and substantive developments in California antitrust, unfair competition, and privacy law. Also, Cheryl Johnson and Kathleen Tuttle reprise the keynote address given by Chief Justice Tani Cantil-Sakauye of the California Supreme Court.

Last year’s GSI also offered a series of roundtable discussions covering 25 years of development in antitrust and unfair competition law and the groundbreaking cases of 2015. This issue reprises those roundtables and also provides a focused discussion on key substantive legal issues.

  • In commemoration of the Golden State Institute’s anniversary, Judge Susan Illston moderated a panel of four experienced and prominent practitioners—Craig Corbitt, Daniel Wall, Kimberly Kralowec, and William Stern—from the plaintiff and defense bars. These practitioners reflected upon twenty-five years of development in state and federal antitrust law as well as California’s Unfair Competition Law, discussed the current state of the law, and offered their views of emerging hot topics for the future.
  • Reprising the popular "judges panel," Niall Lynch moderated a roundtable with Judges William H. Orrick III, Christina A. Snyder, and Jon S. Tigar, focusing on a discussion of how the judges handle antitrust and complex business cases, as well as general trial practices lawyers in their courts should follow, and those they should avoid.
  • Our "Big Stakes" Trials panels also made an appearance at last year’s GSI with two special roundtables.
    • Cheryl Lee Johnson moderated a panel of lead trial lawyers Kristen Johnson, Steve Shadowen, John Schmidtlein, and Doug Baldridge. This article summarizes the Supreme Court’s landmark decision in F.T.C. v. Actavis and recounts the views of the lead trial lawyers on the seventeen days of the Nexium trial.
    • David Kesselman analyzes O’Bannon v. NCAA by detailing a panel discussion with Michael Lehmann and Gregory Curtner, who served as counsel for the parties in the litigation.
    • Our GSI roundtable articles conclude with a discussion on settlement issues, led by Section Chair Paul Riehle, with panelists Joseph R. Saveri, Holly House, and Heather Tewksbury. The article discusses the mechanics of class action settlements, and other settlement considerations, which are rarely the subject of frank public discussion.

The issue continues on with substantive legal analysis offered by an impressive slate of authors.

  • Anna Fabish‘s article on F.T.C. v. Actavis, delves into a discussion of the major disagreement following the Supreme Court decision on defining the anticompetitive harm that underlies a reverse payment antitrust violation.
  • In a discussion of a recent Supreme People’s Court antitrust case Emilio Varanini and Feng Jiang examine how antitrust law can and is helping to improve the rule of law in China.
  • Bob Freitas discusses the exception to the direct purchaser rule that the Ninth Circuit created in Royal Printing Co. v. Kimberly-Clark Co. The article further describes the "full overcharge" rule that emerged from Royal Printing and argues that Royal Printing, which is a pre-FTAIA decision, does not justify a lessening of the FTAIA’s proof requirements.
  • This article by Michele Floyd seeks to analyze the Ninth Circuit’s opinion in Pulaski & Middleman, LLC v. Google, Inc., in which the Court adopted an expansive definition of restitution under the UCL.
  • In an era of massive data collection, Crystal Skelton explores the evolving data security regulatory environment. This Article contends that the Federal Trade Commission already has a robust enforcement apparatus addressing concerns about the protection of private, digital consumer information.

Thank you to members of the executive committee for their tremendous work on GSI and this issue of Competition. And a special thanks and congratulations to our authors and editors for producing another outstanding issue!

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