Antitrust and Unfair Competition Law

Competition: Spring 2017, Vol 26, No. 1


Peter K. Huston

Sidley Austin LLP

San Francisco, CA

The 26th Golden State Institute Edition

Each Fall, leading jurists, enforcers and practitioners gather for The Golden State Institute, the preeminent competition law conference in the Western United States. This edition of Competition recounts the many fine presentations featured at the 26th annual GSI.

2016’s GSI followed a familiar structure. It got underway, as in years past, with a survey of recent developments in California and federal law by "the three Toms." Tom Papageorge presented substantive developments in California antitrust, UCL and privacy law. Tom Greene followed with his survey of recent California procedural developments. Tom Dahdouh provided an update on federal antitrust and privacy developments.

For the fifth straight year GSI featured panels on "Big Stakes" antitrust trials. In the first panel, trial counsel from the Antitrust Division’s challenge to AB Electrolux’s $3 billion acquisition of General Electric Co.’s appliance business, discussed their four week bench trial. For the government, the panel included former DOJ Antitrust Division Deputy Assistant Attorney General David Gelfand (currently a partner at Cleary Gottlieb) and former DOJ Litigation III Assistant Chief Ethan Glass (currently a partner at Quinn Emanuel). For the defense the panel included Dechert partner Paul Denis and Jones Day partner John Majoras lead trial counsel for Electrolux and GE, respectively. A second panel discussed the bellweather jury trial in In Re Cox Enterprises, Inc. Set-Top Cable Box Antitrust Litigation. Jill Manning moderated the discussion between trial counsel for Cox, Peggy Zwisler and Al Pfeiffer, each partners at Latham & Watkins, and trial counsel for plaintiffs Todd Schneider and Kyle Bates of Schneider Wallace.

For several years now, GSI has been honored to host California Supreme Court Justices as keynote speakers. The tradition continued this past year as Cheryl Lee Johnson and Kathleen Tuttle engaged the Honorable Carol A. Corrigan in an entertaining and informative discussion that touched on Justice Corrigan’s pathway to the law and to the Court, her work revising California’s jury instructions, and the future of California’s court system. Justice Corrigan also provided invaluable advice for lawyers practicing in front of the State’s appellate courts.

Special Guest Renata Hesse, then Acting Assistant Attorney of the DOJ Antitrust Division spoke to the GSI audience about the division’s criminal program and then participated in follow up panel presentation with her DOJ colleagues Brent Snyder, Deputy Assistant Attorney General, Kate Patchen, Chief of the division’s San Francisco office and Matt Lunder, then special counsel to the Director of Criminal Enforcement. The panel was moderated by Niall Lynch.

Acknowledging the Section’s expanded portfolio into privacy law and the explosion of privacy cases including those following massive, high profile data breaches, GSI included a panel on Assessing Damages in Privacy Cases. The panel was moderated by Dominique-Chantale Alepin and featured Jay Edelson, Andrew B. Serwin, and Garrett Glascow.

The panelists discussed the foundations of privacy law, the different types of damages that are potentially available and the numerous complex challenges faced by attorneys wrestling with damage issues in such cases.

The conference concluded with the ever-popular judges panel which included three federal district court judges, each of whom have significant experience presiding over antitrust and other complex trials: The Honorable Denise Cote from the Southern District of New York, The Honorable Lucy H. Koh and The Honorable James Donato both from the Northern District of California. The panel was moderated by Steven N. Williams.

This issue of Competition also includes excellent articles by Elizabeth Pritzker, Geoffrey Holtz, Nitin Jindal, Ryan Sandrock and Stephen Chang. Elizabeth’s article discusses the legal landscape since the Supreme Court decided Spokeo Inc. v. Robins, which involves standing for cases involving statutory damages. Geoffrey and Nitin’s article discusses the circuit split on the "ascertainability" class certification requirement of Rule 23(b)(3). Ryan and Stephen’s article discusses the difficulty plaintiffs have had recently with below cost pricing claims under California’s Unfair Practices Act.

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