Antitrust and Unfair Competition Law

Competition: Spring 2021, Vol 31, No. 1

EDITOR’S NOTES

Trevor V Stockinger

Kesselman Brantly Stockinger LLP

Manhattan Beach, CA

Welcome to the Spring issue of Volume 31 of Competition, our Section’s official journal published biannually both in print and electronically. Last October, the Section pivoted the 30th Golden State Institute (GSI) to a virtual event due to the pandemic. We are particularly proud that, while not a single hand was shaken at the conference, it hit the record for the highest all-time attendance. As in the past, the conference brought together experienced jurists and practitioners who shared their insights on recent developments in competition law. This GSI also included several panels on diversity and inclusion, as part of the Section’s continuing and growing focus on these issues. We are pleased to present five articles reprising discussions at GSI, as well as four articles on topics that have received recent attention from practitioners on both sides of the aisle.

The issue starts off with a comprehensive review and update on the state of antitrust and unfair competition law presented by Colleen E. Huschke, Deputy District Attorney in the Consumer Protection Unit of the San Diego County District Attorney’s Office; Kate Patchen, Director and Associate General Counsel of Litigation at Facebook, Inc.; and Professor Shana Wallace at Indiana University’s Maurer School of Law. In these pages, we reproduce Colleen E. Huschke‘s materials on California law updates, as well as Kate Patchen‘s and Shana Wallace‘s materials on Federal substantive and 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 a roundtable discussion on a "big-stakes" antitrust trial. In New York v. Deutsche Telekom AG, California and other States challenged the merger of Sprint and T-Mobile, the third and fourth largest wireless networks in the United States. Shortly before trial, the judge ordered that he would not hear opening statements. Here, we publish those previously-unheard statements along with a discussion between Paula Blizzard, Supervising Deputy General Counsel of the California Attorney General’s Office in the Antitrust Section and trial counsel for California, and George Kary, Partner at Clearly Gottlieb Steen & Hamilton LLP and trial counsel for T-Mobile U.S. and Deustche Telekom. Laura Wilkinson, Associated General Counsel of Global Antitrust for PayPal, moderated the panel.

The Section also had the privilege to welcome Honorable Joshua P. Groban, Associate Justice of the California Supreme Court, at last year’s GSI. Cheryl Lee Johnson, a former Deputy Attorney General of the California Attorney General’s Office in Los Angeles, and Courtney A. Palko, Partner at Baute Crochetiere Hartley & Velkei LLP, co-presented the session.

Next, the conference turned to two panels on social justice and inclusion. The first panel debated the appropriate role of antitrust law in the social justice movement and wealth distribution. Professor Douglas Melamed at Stanford Law School and Sandeep Vaheesan, Legal Director at the Open Markets Institute, shared their insights. Mandy Chan, an associate at DLA Piper focusing on antitrust and competition law, moderated the panel.

In the second panel, Harvey Anderson, General Counsel for HP Inc., and John Gibson, Partner at DLA Piper, along with D. Bruce Hoffman, Partner at Cleary Gottlieb Steen & Hamilton LLP as moderator, conversed about the state of diversity in the antitrust bar and shared knowledge on how to make antitrust practice a more inclusive community.

The issue next presents four articles on issues of interest.

The first two articles continue the focus on diversity and inclusion. Anthony Leon, who worked in-house for the Louvre Museum and focuses on antitrust and compliance, provides a comprehensive overview of diversity in the legal and antitrust field. The article provides key statistics, an overview of important issues, and extensive advice on how the antitrust field might increase diversity.

Amy Brantly, Partner at Kesselman Brantly Stockinger LLP, and Jennifer M. Oliver, Partner at MoginRubin LLP, next discuss the interrelationship between market power and inclusion. In particular, they review the impacts of increasing consolidation in the legal field on opportunities for women practitioners in antitrust.

Dan Werner and Garrett Glasgow, Senior Consultant and Associate Director, respectively, at NERA Economic Consulting, write on the trends and approaches to calculating damages in false advertising and product defect class action litigation, including the pros and cons of using various methodologies.

Aminta Raffalovich, Vice President at Intensity, LLC, and Steven Schwartz, Managing Director at Intensity, LLC, provide an economic analysis and critique of Qualcomm’s "No License, No Chips" policy and the Ninth Circuit decision in FTC v. Qualcomm. They consider the incremental effects of Qualcomm’s standard-essential patents on Qualcomm’s already-dominant position within the unique economic setting of standard-setting organizations and FRAND licensing.

I would like to express my appreciation to the Section’s Executive Committee and Advisors, and particularly the Chair, Qianwei Fu, for their continued guidance and support in this endeavor.

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