Antitrust and Unfair Competition Law

Competition: Spring 2020, Vol 30, No. 1


Qianwei Fu

Zelle LLP

San Francisco, CA

Welcome to the first issue of Volume 30 of Competition, our Section’s official journal published biannually both in print and electronically. Last November, the Section continued its streak of success with its 29th Golden State Institute. The conference brought together experienced jurists and practitioners who shared their insights on the recent developments in competition law as well as the challenges with emerging issues and trends. In this issue, we are pleased to present eight articles reprising those discussions at the GSI. In addition, we present three articles on topics that have received recent attention from practitioners on both sides of the aisle.

The issue starts off with a comprehensive review of the law by the "three Toms" panel: 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, the Federal Trade Commission’s Western Region Director. In these pages, we reproduce Tom Papageorge‘s discussion of California substantive law and Tom Greene‘s discussion of state and federal procedural law relating to competition issues. These notes are well worth a close reading since they contain key developments that may have been overlooked under the time demands of our busy practice.

Next, the issue includes roundtable discussions on two big-stakes antitrust trials. In In re: Korean Ramen Antitrust Litigation, an antitrust class action alleging a price-fixing conspiracy to fix the prices of Korean ramen noodles, the case progressed from a court stating that there was ample evidence of conspiracy to a jury rejecting price-fixing claims following a five-week trial. Trial counsel Christopher L. Lebsock, a partner at Hausfeld LLP, Rachel S. Brass, a partner at Gibson Dunn & Crutcher LLP, and Mark Dosker, a partner at Squire Patton Boggs LLP, discussed the trial path that ultimately led to a defense verdict. Jill M. Manning, a partner of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, moderated the panel. The second panel focused on the takeaways from U.S. v. Usher, et al., a criminal trial of three former London-based foreign currency exchange traders for alleged felony violations of the Sherman Act. A federal jury rejected the government’s claim and acquitted all three individuals after a two-week trial in New York. Trial counsel Andre Geverola, the Director of Criminal Litigation for the Antitrust Division of the U.S. Department of Justice, Heather S. Nyong’o, a partner at WilmerHale, and David Schertler, a partner of Schertler & Onorato, dissected how the trial played out. Niall E. Lynch, a partner at Latham & Watkins LLP, moderated the panel.

Last year’s GSI also had the good fortune to welcome the keynote address by the Honorable Ming Chin, Justice of the California Supreme Court. Cheryl Lee Johnson, Deputy Attorney General of the Office of the Attorney General’s Antitrust Section in Los Angeles, and Kathleen J. Tuttle, Deputy-in-Charge of the Antitrust Section in the Los Angeles District Attorney’s Office, co-presented the session.

The conference was also honored to host an antitrust enforcement session. The session began with a speech by Richard A. Powers, Deputy Assistant Attorney General at the Antitrust Division of the U.S. Department of Justice, on recent highlights and the agency’s initiatives in criminal antitrust enforcement, followed by a fireside chat between Aaron Hoag, Chief of Technology and Financial Services at the Antitrust Division of the U.S. Department of Justice, and Karen E. Silverman, a partner at Latham Watkins LLP, on civil antitrust enforcement and competition issues in the technology space.

The conference concluded with the ever-popular judges’ panel, drawing a full house of audience. The panel featured three distinguished Northern District of California jurists— Judge Vince Chhabria, Judge Haywood Gilliam, and Magistrate Judge Jacqueline Corley—who offered their insights and perspectives on managing antitrust and complex business litigation and trials. Elizabeth Castillo, a partner at Cotchett, Pitre & McCarthy, LLP, moderated the panel.

In addition, this issue includes three articles on timely topics of interest.

Robert E. Connolly, the former Chief of the U.S. Department of Justice Antitrust Division’s Philadelphia Office, provides a comprehensive analysis of the history of the per se rule, its operation in criminal Sherman Act cases, and the recent challenges to the rule’s application in criminal antitrust prosecution. The article argues that it is unconstitutional to apply the per se rule in criminal antitrust cases and predicts that the U.S. Supreme Court will eventually overturn the per se rule.

Jiamie Chen, the Director of Investment Initiatives at Parabellum Capital LLC, discusses the competitive barriers in antitrust private enforcement, the role of commercial litigation funding in mitigating the risks in antitrust enforcement actions, and the legal status of third-party funding in the United States.

Armando Levy and David Sunding, the Principals of The Brattle Group, provide an overview of the economic and marketing theory for retail pricing and its relations to the pass-through of wholesale costs, as well as its implications for class treatment in indirect purchaser antitrust litigation.

I would like to give special thanks to Robert L. Newman of Zelle LLP, for his help in bringing this issue to life. I would also like to express my gratitude to the Section’s Executive Committee and Advisors. It is an absolute privilege to work beside such a talented, dedicated, and caring group of professionals.

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