EDITOR’S NOTE

Elizabeth C. Pritzker
Pritzker Levine LLP
Oakland, CA

The 28^th Golden State Institute Edition

For the 28^th year in a row, the Antitrust, UCL and Privacy Section held its Golden State Institute. As in the past, leading jurists, enforcers and practitioners gathered to discuss cutting-edge issues touching on these topics—ensuring GSI’s place as the preeminent competition law conference in the Western United States. This edition of Competition reproduces many of the superb presentations featured at the 28^th Annual GSI.

The day began with a survey of recent developments in California antitrust, unfair competition, and privacy law by "the three Toms": Tom Papageorge, head of the Consumer Protection Unit of the San Diego District Attorney’s Office; Tom Greene, a trial attorney for the Antitrust Division of the U.S. Department of Justice; and Tom Dahdouh, Regional Director of the Federal Trade Commission’s Western Region. The exhaustive review of substantive developments in California and federal antitrust and privacy law, presented by Tom Papageorge, is reprised here. Tom Greene provided a survey of recent California procedural developments; that, too, is reprinted here.

Following tradition, GSI featured panels on two recent "Big Stakes" antitrust trials. In the first panel, trial counsel involved in the In the In re: Processed Eggs Products Antitrust direct purchaser trial, in which major egg producers were accused of conspiring to control and limit the nation’s egg supply, thereby increasing egg prices, discussed the trial and the path it ultimately took to a defense verdict. Mindee J. Ruben, counsel at Lite, DePalma, Greenberg in Philadelphia and co-lead counsel for plaintiffs, provided the plaintiff perspective, while Dechert LLP partner Steven E. Bizar, lead trial counsel for defendant R. W. Sauder offered the defense perspective. Lee F. Berger, Trial Attorney at the U.S. Department of Justice, Antitrust Division, moderated the discussion. A second panel discussed the recent In re Solodyn reverse payment "pay-for-delay" pharmaceutical trial. O’Melveny & Myers LLP partner Kenneth R. O’Rourke moderated the discussion between plaintiffs’ trial counsel, Richard A. Arnold and Anna T. Neill, both of Kenny Nachwalter PA, and trial counsel for defendant Impax, J. Douglas Baldridge and Lisa Jose Fales, of Venable LLP.

GSI was honored to host a fascinating panel discussion with current antitrust enforcers Bruce Hoffman, Director of the Bureau of Competition at the United States Federal Trade Commission, and Doha Mekki, Counsel to the Assistant Attorney General in the Antitrust Division of the United States Department of Justice. Karen E. Silverman, a partner at Latham & Watkins LLP, moderated the conversation. Ashley Bauer, also a partner at Latham & Watkins, helped in preparing a transcription of the discussion for this edition of Competition.

Addressing current events in privacy, Jennifer Lynch, Surveillance Litigation Director at the Electronic Frontier Foundation, and Tracy Shapiro, a partner at DLA Piper LLP, discussed the media and consumer concerns over social media misuse of personal information, including Cambridge Analytica’s harvesting and use of people’s Facebook profiles for political purposes, and the California state legislature’s efforts to provide enhanced privacy protections for consumer data under the California Consumer Privacy Act, which takes effect on January 1, 2020. Dominique-Chantale Alepin, Assistant Director for the Western Region of the Federal Trade Commission, and Elaine Call, Senior Privacy Counsel at LinkedIn, moderated the discussion which is reprised here.

The conference concluded with the ever-popular judges’ panel. This years’ panel featured a panel of federal judges with backgrounds and experiences managing class actions, antitrust cases, and other complex litigation. Three distinguished Northern District of California jurists—Judge William H. Alsup, Judge Edward M. Chen, and Magistrate Judge Laurel Beeler—offered their insights and perspectives on these issues in a panel discussion moderated by Jill Manning.

This issue of Competition also includes excellent articles by Steven N. Williams, Bethany Caracuzzo, and Lesley E. Weaver and Anne K. Davis.

Steven Williams, a partner at the Joseph Saveri Law Firm, tackles Apple v. Pepper, the leading antitrust case before the U.S. Supreme Court this term, and its implications for indirect purchaser standing under Illinois Brick. A "live" Section webinar on the Apple v. Pepper case is scheduled for shortly after the Supreme Court issues its decision, and will be available for download thereafter on the CLA website.

Bethany Caracuzzo, Special Counsel at Pritzker Levine LLP, writes about another key Supreme Court case, Frank v. Gaos, and what it means for Article III standing at the class certification stage and for class action settlements. She also covers the justices’ commentary on cy pres-only settlements—the reason why certiorari was granted by the Court in the first place—even though the Court’s per curiam decision does not address the issue.

In their article, Lesley Weaver and Anne Davis, both of Bleichmar Fonti & Auld, LLP, provide a useful summary of the European Union’s recently-enacted General Data Privacy Regulation, or GDPR. Their article also explores what this new regulatory regime means to practitioners who represent litigants subject to the GDPR, and who must simultaneously comply with the GDPR’s strict personal data privacy protections as well as their broad U.S. discovery obligations.

This edition of Competition would not have been possible without the many individuals who lent their time and talent to GSI and to the terrific range of articles and topics being published here. Additional (and greatly appreciated) editorial assistance and cite-checking was provided by members of the Publications Committee and Privacy Committee. Thank you all for your continued contributions to Competition, and for your enduring commitment the Antitrust, UCL, and Privacy Section.