Antitrust and Unfair Competition Law

Competition: Spring 2022, Vol 32, No. 1


Edited by Paul Moore1


  • Elizabeth Pritzker, Pritzker Levine LLP
  • LeeAnna Bowman-Carpio, J.D. Candidate, May 2022, U.C. Hastings College of the Law
  • Paul Moore, California Department of Justice, Office of the Attorney General


In November 2020, Justice Jenkins was confirmed as the newest Associate Justice of the Supreme Court of California.

Born and raised in the Ingleside neighborhood in San Francisco, Justice Jenkins grew up in a family that prioritized hard work and community. His family moved to San Francisco to escape the Jim Crow South. Comfortable here, his parents dedicated their lives to their family and city. His mother was a nurse and his father was a custodian at Coit Tower. His father’s dedication to his job and the people he supported instilled in Justice Jenkins the desire to dedicate his life to public service.

Justice Jenkins came of age in San Francisco during the ’60s and ’70s, where he had a "bird’s eye view" of the change and upheaval occurring around the Bay Area. From protests against the Vietnam War, to the Free Love movement, to the strikes that rocked San Francisco State University, the young Jenkins witnessed institutions being toppled as a younger generation started to find its voice—much of it in his hometown. He absorbed everything occurring around him and felt that supporting his community would be how he could most effectively serve and give back.

Justice Jenkins earned an Associate of Arts degree from the City College of San Francisco and then enrolled at Santa Clara University, where he majored in history. While at Santa Clara, he excelled academically and athletically, serving as a team captain of the university’s football team. He originally planned to be a professional football player for a few years, and then teach high school history or coach football. After a debilitating injury in a preseason game during his first year as a free agent, he left the NFL and enrolled at the University of San Francisco School of Law, determined to use law as a vehicle for a life in public service. He

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studied law and learned how it could be a tool to accomplish change and make an impact in the lives of others. He worked hard and received the Judge Harold J. Haley Award for his "exceptional distinction in scholarship, character, and activities."

Through the entirety of his substantial career, Justice Jenkins has maintained a deeply rooted community spirit and dedication to justice. As a mentor and a role model, he has touched innumerable lives. From helping to coach his high school’s football team while he was in law school to creating "fireside" chats with Judge Sandra Armstrong for USF law students from underserved communities, Justice Jenkins has prioritized giving back to the communities that played foundational roles in his life. In recognition of these admirable attributes, the USF Board of Trustees conferred upon Justice Jenkins an honorary degree: The Degree of Doctor of Humane Letters Honoris Causa. He received the annual St. Thomas More Award from the St. Thomas More Society of San Francisco for his "distinguished record of service and dedication to his family, his church and his community." And for his constant advocacy for youths, he received the Children’s Advocacy Award, presented by Legal Services for Children, San Francisco.

We are deeply fortunate for Justice Jenkins’ decision to dedicate his life to public service and, as you will see, to apply his considerable intellectual talents to making California a more just and inclusive place to live.

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MS. PRITZKER: I am the past Chair of the Antitrust and UCL Section of the California Lawyers Association. It is our great honor to have with us today California Supreme Court Justice Martin J. Jenkins.

In November 2020, Justice Jenkins was confirmed as the newest Associate Justice of the State’s highest court. Behind his formidable legal career is a lifetime of community service and a passion for helping others flourish. A true champion of justice and integrity, he has never lost sight of the importance of living a life of authenticity.

Justice Jenkins was born in San Francisco and raised in the Ingleside district. He grew up in a family that prioritized hard work and community. After moving to San Francisco from the Jim Crow South, his parents dedicated themselves to their family and the city that became their home. Justice Jenkins’ father was a custodian at the San Francisco landmark Coit Tower for over 40 years. His mother worked as a trained nurse.

Justice Jenkins attended Santa Clara University, where he majored in history. While at Santa Clara, he excelled academically and athletically, serving as a team captain of the university’s football team. After college, Justice Jenkins briefly played professional football for the Seattle Seahawks. The rivalry was between the Raiders and Seahawks in those days—both were AFC teams.

While playing professional football obviously had its merits, Justice Jenkins wanted to continue his education and find a career that would allow him to give back to his community. He left the NFL and enrolled at USF law school, determined to use law as a vehicle for a life in public service.

Justice Jenkins began his legal career as prosecutor in the Alameda County DA’s office and subsequently as a trial attorney with the U.S. Department of Justice’s Civil Rights Division, Criminal Section, in Washington, D.C. While at DOJ he traveled the country, handling police misconduct and racial violence cases.

In 1986 Justice Jenkins returned to the Bay Area to support his ill mother and worked as an in-house attorney at Pacific Bell.

From there he took his first step down the long path of his judicial career, taking up residence as a young judge in the rough and tumble of Oakland’s municipal court. He was then appointed by Governor Pete Wilson to the Alameda County

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Superior Court where he served as presiding judge of the juvenile division.

In 1997 he was nominated by President Clinton to the U.S. District Court for the Northern District of California, where, among other notable assignments, he presided over the Dukes v. Walmart2 class action, which many in our audience are of course familiar with. At the time of certification, Dukes was the largest sex-based discrimination class action in the country.

Justice Jenkins also coauthored the Jenkins-Laporte Doctrine. This oft-cited doctrine provides an innovative three-part analysis that clarifies the parties’ respective burdens in copyright cases involving contractual licensing of digital works. It continues as a mainstay of federal jurisprudence.

After a decade on the federal bench, in 2008 Justice Jenkins was nominated and confirmed as an Associate Justice of the California Court of Appeal for the First District in San Francisco.

In 2019 he was tapped to serve as Governor Newsom’s Judicial Appointment Secretary, advising the Governor on all state court judicial appointments. During his tenure, Justice Jenkins worked closely with the Governor, appointing 45 jurists from a diverse array of backgrounds.

In 2020, Governor Newsom nominated Justice Jenkins to the California Supreme Court to fill a position vacated upon Justice Ming William Chin’s retirement. At the time of his confirmation, Justice Jenkins was the first African-American man to serve on the California Supreme Court in 30 years, one of the only three to have ever served, and the first openly gay justice to serve on California’s highest court. In their nomination report, the members of the JNE Commission praised Justice Jenkins, emphasizing that his humility, lifelong commitment to public service, and passion for justice make him a most deserving and worthy addition to the State’s highest court. You will witness some of that passion here today. He’s shared it—a lot of it—in our preparation for this session.

We are thrilled beyond measure to have Justice Jenkins here in conversation with us this morning.

Today’s presentation will be an informal conversational format. Sharing the interviewer role with me today are Paul Moore and LeeAnna Bowman-Carpio.

Paul Moore is a Deputy Attorney General for the Antitrust Law Section of the Office of the California Attorney General, where he participates in a variety of merger and conduct investigations, as well as enforcement actions.

LeeAnna Bowman-Carpio is a third-year student at Hastings College of the Law, and now serves as Editor-in-Chief of the Hastings Law Journal. LeeAnna is the Antitrust and Unfair Competition Law Section’s inaugural Inclusion and Diversity Fellow. As part of that fellowship, she spent her 2L summer at the California DOJ with the Competition Unit of the Healthcare Rights & Access Section.

Our first question to the Justice comes from LeeAnna.

MS. BOWMAN-CARPIO: Thank you again, Justice Jenkins, for being here.


MS. BOWMAN-CARPIO: And for giving this opportunity to us.

So we have a number of judges and antitrust attorneys who were born and raised in San Francisco. Would you like to describe for the audience what the experience of growing up in San Francisco was like for you?

JUSTICE JENKINS: Sure, I’d be happy to do so, and let me start by thanking all of you for the opportunity to be in conversation with you here today.

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If the prep session that we had is any indication, it’s going to be a marvelous conversation and there will be contributions made by everybody here in the room, and I hope some of you in the audience as well.

San Francisco was a magical place. That’s the best term I could use to describe it, to grow up here. I came of age, graduated from high school in the early ’70s here, and it was a time of quite a bit of tumult in our society. There was the Vietnam War and the protests against that. There was sort of an unrest in society about institutions; banking institutions, the establishment, per se; and there was a growing movement, the Free Love movement, that was spawned by music and protests happening in the Haight-Ashbury, and I got to have a bird’s eye view of that. I grew up in the outer southern boundary of San Francisco near San Francisco State College, so every day I got to watch the First Amendment in operation.

The president of San Francisco State was a man named S.I. Hayakawa—you’re probably too young to remember him—but he would be out there with a bullhorn and there was tear gas.

And so even before I knew about law, I was experiencing the First Amendment in all of its grandeur, in the way that those protests were handled.

My father was a custodian at Coit Tower and so summers were spent in North Beach, where there were a number of Italian businesses and prosciutto hung in many of the windows of the delicatessens. The language of choice in North Beach was Italian. And my brother and I would come to work with my father there every summer and we had the run of the place then. You could get anywhere in San Francisco on a bicycle, pretty much within an hour to an hour-and-a-half. I was exposed to so many different cultures because San Francisco was a cultural melting pot then. There was a much larger middle class, lower middle class, blue collar workers, of which my father was one.

So it was a wonderful, wonderful place to be exposed both culturally and in terms of race. Great schools. And so academically my parents, from the South, focused on that. That was the way to fulfil integration. It was a way to have a life of the mind and perhaps to be able to be a little bit more in control—perhaps a lot more—of your future. San Francisco was a wonderful place to grow up because I was exposed to people of different races and cultures.

MR. MOORE: Thank you. And welcome, and it’s a pleasure to meet you in person as well.

So you plainly had many options for a career path, including one in professional sports. What influences informed your decision to pursue law?

JUSTICE JENKINS: There was one. I never thought about law school. When I went to college at Santa Clara, my goal was to become a high school teacher and perhaps do a little coaching. I played tennis—which was rare then for an African American—and got to be decent and so I thought, I could teach history. My major was history and I had a minor in economics. I thought perhaps they needed someone to fill in for one of the teachers. We had some burgeoning economics classes, I could do that, and that would put me in touch with young adults, which has always been a desire of mine, a passion of mine.

And so I went there and one day the football coach came up to me and he said, "What are you going to do when you leave here?" I was a junior then and I said, "I’m going to play professional football, then I’m going to teach and coach." He shot back very quickly, "Well, the initials of this school are USC, University of Santa Clara, but you’re at the wrong one. If you want to play professional football, you should be at the USC that’s about 400 miles to the South. They have a lot of young men who have gone to the NFL."

He said, "I think you should become a lawyer." I looked at him very strangely and asked why. He said, "Because you have good grades, you’re smart, you’re a team captain, you’re a leader, and I think

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you could do more for your community—not that teaching isn’t a noble profession—but you could do more for your community as a lawyer."

And then he doubled down on that. He set up a meeting in his office with three African-American law students at Santa Clara University and they talked to me about why they chose law. One became President Clinton’s Secretary for the Department of Agriculture, Mike Espy.

And so I’ve always had those kinds of fork-in-the-road moments. You go left or you go right, and someone has always been there to say, "Trust me, go right on this occasion," and I’ve had the good judgment to follow those suggestions.

MS. PRITZKER: Yet you tried sports first.

JUSTICE JENKINS: I did. I did. I had to get that out of my system and got to play in a couple of preseason games, the last of which was here against the 49ers. It was a wonderful homecoming and I remember people in Candlestick Park, which is where we played, calling my name. And of course I was a free agent, so I wasn’t going to see the light of day, but I got to play a little bit and the last thing I remember was running down the field on a kickoff. As rookies, you have to make it on the special teams. And I remember running down the field and then I woke up and I was at St. Mary’s Hospital, and St. Mary’s Hospital happened to be right across the street from USF School of Law and—

MS. PRITZKER: Yet another sign.

JUSTICE JENKINS: Absolutely. And USF had been one of the schools that admitted me and they said I could come late—because school had already started. I thought about how the book doesn’t move and I could take as much time with the concepts as I needed to learn them. . . . Those guys were really big and fast and strong and they had been lifting weights, obviously, when I had been studying, so I made the best decision for me.

MS. PRITZKER: Well, let’s get back to law for a moment.


MS. PRITZKER: Throughout your career you’ve served the public. Even when you worked at Pacific Bell as an in-house attorney, it was for a public utility.


MS. PRITZKER: Why did you choose public-interest law?

JUSTICE JENKINS: Well, I think through osmosis.

I came to appreciate the value of service. So you mentioned my father in the introduction. My father was a custodian at Coit Tower and in the summers, as I said, we’d go to work with him. And I watched him. He’d wash windows and clean toilets in the morning, he’d don a suit by afternoon and take the numbers of tourists who came from all around the world up to the observation decks, give them sort of a description of the panoramic view they were observing from the top deck. He’d come down and talk to them about the big murals that still adorn those walls there, and he loved it. He was just passionate about it.

And I saw that there was value. How those people lit up because someone took time, was concerned about them, would give them suggestions about places to eat and things that they should see and it just made sense, it clicked.

And so modeling after him, I decided—not any particular area of law so much then, but that I wanted to give back, that I wanted to add value to people’s lives in any way that I could, and law became a tool to do that.

MS. BOWMAN-CARPIO: So we now have kind of a sense of what pulled you into the legal field and to public service. What drew you to a career in the judiciary? And this is a little bit of a two-part question. What drew you to the career in the

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judiciary, and what influenced your decision to continue as a judge?

JUSTICE JENKINS: What drew me to the judiciary is, this is not an uncommon story, many people who don the black robe have first thought about doing so at the behest of someone else.

And so I started in the DA’s office, as you mentioned, then went to the Department of Justice and had a real-time experience with racial violence cases in the Deep South and even in the Midwest. When I came back [to Pacific Bell] it was just post-divestiture. This was after the antitrust lawsuit that split up AT&T and created the Bell Operating Companies, and now it’s all back together again. And so they were employing a lot of lawyers, some who had trial experience, to handle the myriad cases that the company found itself on the other end of.

And so for me, I was called one day by a good friend, Justice Carol Corrigan, who had been in the DA’s office and she said, "You know, we were at lunch today talking about who would make a good judge and your name kept coming up." I said, "You need to tell me in what context it came up. I don’t particularly like judges. I’ve never thought about being a judge. They make my life difficult."

But we talked it through and one of the things that became very clear is that I didn’t have substantial experience, but I had broad experience, and I think the breadth of experience is one of the things that is good for a judge. Judges are generalists. No one comes to the bench with subject-matter experience in every area that you’re going to see.

And so the notion of becoming a judge and convincing myself, after several interviews with people. I shouldn’t say interviews, but I talked to folks who were judges and I wanted to know, what’s the upside? What’s the downside? And coming to the notion that perhaps I did have what it took. It was the Muni Court, so I couldn’t hurt anyone too terribly if I made a mistake.

And if I liked it and I got in early, perhaps then I could create a career for myself as a judge, and that’s exactly what has transpired.

MS. BOWMAN-CARPIO: And you enjoyed it enough that you’ve stuck around.

JUSTICE JENKINS: I did. Judge Patel always used to tell me that the best training she ever had to become a federal judge was being a municipal court judge. She learned how to call a calendar, to run a courtroom, those kinds of things. She learned about things that happen in those courts that are so completely unpredictable, and yet to remain poised in that regard.

And I found her experience to be spot on, in terms of mine. I learned quite a bit about judging—and even more about me. I’ll talk in a little bit about how important I think it is for people who wear black robes.

MS. PRITZKER: Do you want to talk about that now?

JUSTICE JENKINS: I can. I’ll give an example. The first murder case that I heard was a very tragic case that involved an African-American woman in East Oakland who had been killed in a robbery attempt. I was on the Alameda County Superior Court by then. She had employed a number of African Americans in East Oakland, giving them jobs in the check-cashing business when they couldn’t find jobs. And someone found out about when she made her drops through another employee there and tried to rob her, and killed her.

So this person was convicted of first-degree murder. You don’t have any discretion. It’s a 25-to-life top sentencing hearing, with a felony murder theory. But no one told me that I would have real feelings about the legal issues that I was involved in.

So at the sentencing a hoard of people got up from the community and talked about how great this woman was and how she improved the quality of life for so many people. Tragic. The defendant

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had never been in trouble before and he was a drug addict, and this was a felony murder—but in a sense premeditated, but not so much. It was circumstances that drove this.

And so on either side of this it was just a tragedy all the way around, and as I listened, I became emotional. A tear dropped down and I saw it on the pad and I thought, I better call time-out.

So one of the things that I learned early on is that you don’t come to these jobs with a blueprint for how to respond to things. Like everything else in life, you learn through the experience and I think early in my judicial career I had enough exposure to enough different matters that I was able to sort of hold a mirror up to myself and try to see through that experience and through counsel with other people who had appeared in front of me and get a picture of myself. I think it is important for someone that wears a black robe, to know where your biases are, know what your strengths and weaknesses are, because if you don’t, it will inevitably at times affect the way in which you rule and how you treat people.

MR. MOORE: Also, I think it brings humanity and compassion to the role.


MR. MOORE: So focusing a little bit more on why we’re here today, without speaking to any case, are there any specific antitrust or unfair competition law case precedents that stand out to you as particularly noteworthy?

JUSTICE JENKINS: Well, I think there are the old sawhorses, you know, Copperweld3 and some of those cases. I don’t know about precedents, per se. I came to the District Court without any background in antitrust law, although we had UCL cases on the Superior Court. I keep a list of the cases I handled in the ten-and-a-half years I was there, and I had three antitrust cases the entire time.

What was really a case or types of cases that were pretty regular in a district court then were securities fraud and patent and trademark litigation.

So I didn’t have much exposure coming in and I didn’t see a lot of those cases while I was on the court.

I’ve always, though, viewed antitrust and the way in which that law seeks to, in a neutral way, ensure competition as valuable; as valuable to not only consumers, but particular kinds of consumers; minorities, vulnerable groups. I think antitrust litigation can—the rippling effect of those cases can—create a more level playing field, in terms of one’s purchase power or lack thereof. So not particular sort of jurisprudentially specific cases, but I see it as a valuable tool.

The telephone industry is one example. I think the things that transpired in the antitrust settlement and the decree that ensued in Washington, D.C. Judge Green presided over that case. I had the pleasure of appearing before him. He ran the communications industry in this country. Think about that. I mean, there’s no place in the world—there’s no other country whose laws ensure that competition is impacted in a way that allows for robust competition, but also I think in that case the competition did inure to the benefit of consumers along the continuum.

Now as I said, we’re back there again. So it’s hard to know but of course we have a lot of new technologies too. For example, the case that Judge Yvonne Gonzalez Rogers just heard comes to mind in terms of that platform and Apple’s platform of in-app restrictions with respect to the provision of other types of games in that litigation.4 I don’t know if you’ve had a chance to look at her opinion. It’s a very interesting opinion. It’s thorough, to be sure. And we’ll see how it’s treated by the Ninth Circuit because there certainly will be appeals there.

But all kinds of young folks play games, from all sectors of the spectrum; race, ethnicity, and it matters to them—they may not realize it—but it

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matters to them what happens in this litigation. It affects them, I should say.

MS. PRITZKER: And that case has gotten a lot of attention from the public.


MS. PRITZKER: And including from a lot of gamers and young people, generally speaking.

JUSTICE JENKINS: Right, right, right.


MS. PRITZKER: So I want to switch subjects for a moment. You spent a year as Governor Newsom’s Judicial Appointment Secretary, and I know you’ve spoken a lot about your approach to judicial appointments and how you worked to make that process transparent.

What do you see as the benefit of transparency in the judicial appointment process and how does that fit into creating a more diverse judiciary?

JUSTICE JENKINS: That’s a great question. I think transparency is the hallmark of the judicial branch. There’s a reason why we have to make findings consistent with the First Amendment protections before you can close a courtroom.

We do our work under the glare of the light in public courtrooms and we’re one of the few disciplines that when we reach a decision, we write it out or we deliver it orally, in public. There are no star-chamber determinations about how and why a party wins. We explain it. I’ve always been proud of that.

So it struck me that when I got this job, the one place where there wasn’t a lot of transparency was in judicial appointments. It’s this sort of Byzantine process that people know there’s an application, they fill it out, they submit it, and nothing happens.

Then on the state side perhaps their name gets referred to the JNE Commission,5 which is the state bar commission that evaluates applicants. And they’re told they’ve got to submit several names, and evaluation forms go out and nothing happens. And unless you’re a candidate for the Court of Appeal or the Supreme Court, you’re never told how JNE felt about your candidacy, right? And judges and lawyers assist the Appointments Secretary in the initial vetting of judicial candidates.

When I came along, the son of a janitor who dared to become a judge, I was told there was something called a secret committee that I had to get through, right? I said, well, who is the secret committee? Well, that’s why it’s secret, Jenkins. Can’t tell you the names, right? And so that always seemed very exclusionary to me, right?

So in talking with this Governor, his total view was transparency, all day, every day, and so we made those vetting committees transparent. We listed the names, we put it out there and a bio on each of them so that when you apply, you have a sense of who’s wading into the important decisions that affect your life and your desire to become a judge.

We did the same thing in terms of training for those folks, implicit bias training, things that people don’t always think about, and the assessment of the qualifications of human beings, or judges in this particular case, that are important because we all have biases. A lot of them are latent. But they’re there and we try to tease them out, to have people be thoughtful about them.

We tried very much and in the first year there I visited about 20, almost 25, counties. I almost killed myself. But that hadn’t been done. Because my view was people need to understand in real time what this Governor is looking for. Again, transparency.

And so when you start to put all that together, you start to create a construct in which you demystify this process and when you demystify the process, then you invite people in. They feel more

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comfortable about applying. No one’s guaranteed a position because California has an embarrassment of riches. There are far more qualified people than there are spots.

But I felt, just taking the Governor’s lead and I think his establishing that transparency produces a broader, deeper, more numerous applicant pool, which redounds to the benefit of Californians, when those individuals are placed on the bench to make the important decisions that affect the lives of people here in California.

MS. BOWMAN-CARPIO: So then, kind of homing in from that overall structure and restructuring and moving towards the decision process itself, what criteria are important to analyze when making a decision about a potential appointee?

JUSTICE JENKINS: Well, you start with a construct that includes: Do they have the intellectual horsepower to do the work? And are they curious when confronted with a problem that, as you are in the judiciary sometimes, as you are as lawyers, what are the surrogates? What do we look at to help us resolve this issue? So are they curious? Do they want to get their teeth in it and hang on to it?

Integrity is a must. A commitment to ethics is a must, right? Community service. This governor really did a deep dive on that. He really believed that he wanted to appoint people who had—whether you come from private practice or not—who had manifested a desire to work for the common good in their communities, in whatever way that manifested.

So one example he gave me was you have women sometimes who are lawyers and they have children and they can’t be as robustly involved in bar activities but they are very much involved in their children’s lives and involved in the PTA. He valued that the same as he did anyone who was president of a bar association, right? So a very deep dive there, and we were able to talk about that.

The other thing that was really important to him—and I think I have not heard anyone say this but it’s something I felt, is what you mentioned—was humility.

So I put together for him a list of criteria. We started with about 15 or 20, some of which I’ve mentioned today, and we finally got it down to five; and it was public service or commitment to the public, integrity, and ethics. And I said, "Okay, so now the heavy lifting. You have to pick one. What’s your most important criterion?" He said humility. I said, why? He said because you can have someone in a black robe who is really smart but if it’s not tethered to humility, it’s driven largely by their decisions, by ego.

Humility is the tether to all these other great qualities that he wanted manifested in every judge he picked. He said, you’ll listen better. You don’t think you’re the smartest person in the room—although many judges sometimes are—and as you lawyers know, many judges think they are but they’re not.

So that struck a nerve with me because I just think humility is really an important character trait or attribute, not just for judges, but across the spectrum of disciplines in our daily lives. It’s important to understand the importance of humility and seeing people through that lens and experience.

MS. BOWMAN-CARPIO: I was just going to quickly jump in. I see the connection between humility and the drive to always be learning, and it feels like that’s two of the most important things for a judge because of the scope of the work and how you have to present yourself.

JUSTICE JENKINS: The greatest thing about my job and all of them, and in particular, now, the Supreme Court too, is every day I come to work, I learn something new.

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MR. MOORE: So that’s interesting. I wanted to sort of talk about your influences and how your judicial philosophy has evolved over time and how your experience as a state judge, state court municipal judge, and a federal district court judge, and a California appellate judge and now a California Supreme Court judge, played a role in that evolution?

JUSTICE JENKINS: Right. As you know, I started on the Muni Court. I started with a notion about what a judge was and what judges do and I remember about three months into the job, I ran into another judge on my bench then who had tried a number of death penalty cases. He was a luminary in the criminal law [bar] and yet he sat on the same bench that I did, and I said, "Well, how is your transition going?"

Expecting him to say, well, it’s not utilizing, you know, all the skill sets that I have, and what he said was, "Why didn’t someone tell me that what seemed so easy as a lawyer is so hard as a judge?"

So really understanding that the look is different, the perspective is different; that the parties bring all the gifts to the altar and then it’s for you to sort through them. That you don’t have a dog in the fight. To make sure that, as best you can, you’ve reached the best outcome that the law and the facts allow.

And so that has been my philosophy in every job, is fidelity to the law. Many times, as a trial judge, you accept the law as it is. Where you have an opportunity to write on a blank slate, you do. You know who your audience is. But you realize you’re not going to be the last word, right?

And I used to always wax eloquent about, well, if I could really strike a blow in this area, this is where I would go, but I’m not at liberty to do so. Well, be careful what you ask for. I can’t make that statement anymore.

So fidelity to the law, but I think where I’ve evolved is the perspective is different in each of these jobs. Trial judges primarily are purveyors of facts and if you look at the Supreme Court’s decision in the Alston case recently,6 you’ll see how important a really robust factual record, factual findings are because they really doubled down on Judge Wilken’s factual findings in that case, to arrive at the conclusions that they reached.

So that perspective innervated what I did as a trial judge. When I got to the Court of Appeal, that’s a court of error. It’s the great search for error all day, every day. And that’s really what it is. And a lot of the cases sometimes—I shouldn’t say a lot—but many cases that get filed in the Court of Appeal probably shouldn’t be there because they’re really arguing about factual issues, which are beyond the purview of the appellate court.

Now the Court that I’ve been sitting on for the last nine or 10 months—and I have to admit I’m still learning my way around the building in that job—is no longer a court of error. Let’s be honest, it’s a policymaking court.

And so the perspective is far broader and more expansive. Even the metrics we use to determine whether we take a case or not are broader and more expansive, because there we are now trying to settle law where there’s a conflict or announce what the appropriate legal standards should be, legislative enactment or something of that nature.

We have a burgeoning initiative process in this state that takes up a lot of time on the Supreme Court then sort of reconciling the language in some of those initiatives that you might know are not always written so well.

So I think fidelity to the law, and then understanding the role of each of the courts; the exposure. That is how I’ve evolved, in terms of being a judge.

MS. PRITZKER: So Paul’s question sort of leads me into my question, which is this: I mean as

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you’ve described, you’ve sat as a federal district court judge, you’ve sat on the California appellate courts, you’re now sitting in the California Supreme Court and in all of these areas, in all of the bench positions that you’ve had, you’ve had the opportunity to address complex matters. A few antitrust, some UCL cases throughout these 10 years. Does the type and level of court affect how you approach each case; and if so, how?

JUSTICE JENKINS: I think within the strictures I’ve already outlined, which is what is the role of the particular court that you’re sitting on. So I think that gets superimposed on the way in which—at least for me—I would deal with cases.

I think aside from that, not really.

The toolbox that a trial judge uses is the same toolbox that an appellate court judge uses, and if that toolbox doesn’t have enough of the amount of tools that you need to resolve the problem then, you know, that can affect the outcome. Different judges see these cases a little differently.

I’m reminded of the economic cohort from the Seventh Circuit in Posner and Easterbrook, especially in this area where economics is so crucial. What I learned in microeconomics, for example, the cross-elasticity of price theory, essentially, is so important that they could use those concepts to breathe life into how they analyzed questions of monopolistic behavior and restraint on prices and how that affects competition.

But philosophically, I don’t really see a huge difference.

There can be at the appellate side, since you have more opportunity to write more broadly, some of these concerns and some of the economic theory that one has cultivated and learned over time can be superimposed on how you decide where to draw the line in the sand, in terms of the element of analysis for not only UCL but also for Sherman Act claims under Section 1 or Section 2.

It would be interesting to have a sense of how the legal cadre, the bar, feels about how the Supreme Court is marching down the road, in terms of—I keep seeing these decisions’ concern for being hyper-technical—concern in sort of applying the rule of reason, and you get to sort of this balancing of procompetitive and anticompetitive factors that you may have found already. In that balance, making sure that you don’t draw the balance too narrowly because businesses also have to thrive and it’s okay to be successful, in that context.

So I do think that inroads that can be made based on one’s own jurisprudential thinking about the kinds of science that impact the determination, the ultimate resolution of antitrust cases, but—

MS. PRITZKER: They are difficult cases for lawyers.


MS. PRITZKER: And they’re clearly difficult cases for judges too.

JUSTICE JENKINS: Right, right.

MS. PRITZKER: They take a long time to litigate.


MS. PRITZKER: There are complex theories and issues that have to be resolved.


MS. PRITZKER: And some of them are of the moment, like the tech cases that you mentioned.

JUSTICE JENKINS: Right. Well, it’s interesting.

I often hear in some of the patent cases before me the parties get up and say, well, Judge Jenkins, this is an easy case. Now I’ve been looking at a patent specification, some of the drawings, and nothing about it looks easy. Whenever I hear that I go—I just—all right. We’re going to be on the nightshift here because nothing is easy about this case.

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MS. BOWMAN-CARPIO: Kind of sticking with antitrust and fair competition for a moment.

When deciding an antitrust or unfair competition law matter, how much do you look at analogous federal precedents, and what is your philosophy regarding state antitrust or competition law, as compared to federal law?

JUSTICE JENKINS: Yeah. Well, let me start with the latter question because I don’t know that I have enough of a sample size to have really have arrived honestly about a view in that respect, but clearly I think the United States Supreme Court precedents, Ninth Circuit or other Circuit Court precedents in sort of delineating the rules that apply in Section 1 or Section 2 claims, read over and are persuasive authority when you’re vetting issues under the Cartwright Act.

But I think the California Supreme Court has made very clear that they’re persuasive only.

I think way back in the Texaco7 case, the California Supreme Court clearly indicated that the model for the Cartwright Act was not based on the Sherman Act, right? There was, as it says in the decision, other sister states—primarily Texas—that helped the Court discern that the Cartwright Act did not apply to mergers.

When you’ve got a tough issue, you’re looking for persuasive authority where you can find it, and then you’re trying to reconcile that against a body of law, perhaps common law, that preexists, in order to craft something going forward that harmonizes the two.


MR. MOORE: I’d like to sort of turn back to some of the themes we struck at the very beginning. FTC Commissioner Slaughter raised the idea of value-based law8 and commented on the fact that antitrust is generally conceptualized as neutral, which is sort of the concept that we discussed.

While other areas of law can have priority set within them that are founded in rather subjective values, what are your thoughts on the idea of values-based law, generally?

JUSTICE JENKINS: Well, I think it’s really hard. I read Commissioner Slaughter’s article, and she’s continued to be quite prolific in talking about these issues.

It strikes me that the subtext of law is value-based. Law really is about people in the ordered society and how they regulate their relationships one to another in the business sense, in their personal space. So I mean generally, I think that resolving legal issues without a context for how they affect real people doesn’t make a lot of sense to me.

The question really is to what degree the sort of value-based notion interfaces with, perhaps superimposes itself on, for instance the analytical model you use for resolving antitrust cases.

And when I read her article, I thought the one thing that was interesting is when a U.S. Attorney hits town, takes the mantle, they have a platform, for more robust, vigorous prosecution of white-collar crime. And when I read Commissioner Slaughter’s article, the first thing I thought was the sort of value-based considerations make good sense on the enforcement side. Clearly make good sense to me on the enforcement side. How then do you harmonize or reconcile some of the concerns of full equity, inclusion, those kinds of predicates, in the way that you analyze the issues in the litigation before you?

And the Supreme Court has said continually, antitrust is about the free market and competition, robust competition. You have a whole set of laws that deal with discrimination issues and they’re really focused on this value-based consideration. One of the ways in which I think that—when I think about the interface between values-based considerations and antitrust law is Judge Wilken’s decision in the O’Bannon case.9

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It’s not lost on anyone that a great number of the plaintiffs in that case, or putative plaintiffs in that case, are minority kids who play in a lot of one of these Division 1 programs, and for many, many years the restrictions that were placed on scholarship benefits had a significant impact on them.

So while the case does not ostensibly look like a case that is oriented in values-based considerations, they were clearly there, looming beneath the surface. In terms of what actually transpired in that case and the procompetitive rejection of amateurism that ultimately that case and the United States Supreme Court in Alston actually rejected that notion.

But I just wonder, given the current construct of the law, the way we decide these cases, if the law always is sort of stodgy and it moves much more slowly and less reactive. And so the enforcement side where you have a mandate, you can try to effect changes more quickly.

It will be interesting to see the FTC and Commissioner Slaughter and some of the actions that they bring, if these value-based considerations, how they resonate in the ultimate analysis of the cases that they bring. That’s yet to come.

MS. PRITZKER: My question was related, so you sort of stole my thunder, but that’s okay.

JUSTICE JENKINS: Or maybe I wandered into it by mistake.

MS. PRITZKER: It is related to the values-based law discussion, and you’ve also spoken quite frequently about diversity and equity in the law. That’s been kind of a mainstay of some of your public speaking.


MS. PRITZKER: And you’ve spoken about the Alston case and its significance, I think, for particularly minority students who depend on these scholarships and who work hard to keep them.


MS. PRITZKER: Based on your experience, you know—Alston is one example—but based on your experience, have you seen ways in which antitrust or unfair competition laws can be used to advance inclusion, social justice ideals, and diversity in the law?

JUSTICE JENKINS: Yeah, I could mention my sample size is not large. I actually do view the antitrust litigation with AT&T in the 1980s as when I saw some of the products that were spun off as a result of that litigation, in terms of the offerings by Pacific Bell. I saw there were benefits that flow from it, but that doesn’t directly answer your question. That’s the rippling effect of litigation, which was primarily thrust on time-honored antitrust principles.

So I haven’t. But my sense is in areas of provision of medical care, for example, we’ve seen a lot of merger activity with some of these big medical entities and how in fact those mergers affect potential pockets of individuals who need medical care, who may be deprived of it or have it significantly diminished. I mean, how do you work that then into a competition model so that the court can weigh that in, as we say, procompetitive/anticompetitive impacts of the merger?

I think if lawyers are attuned to it, they are really good at finding ways to make it relevant but they have to be attuned to it and I think really, like most everything else in life, value diversity in all of its stripes and then find ways for that value to be reflected in the legal positions in the cases that they bring.


MS. BOWMAN-CARPIO: All right, so another two-parter, and kind of tied to the previous question.

JUSTICE JENKINS: Are you still in law school?


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JUSTICE JENKINS: Your questions have been some of the toughest.

MS. BOWMAN-CARPIO: So this one focuses again on diversity broadly.


MS. BOWMAN-CARPIO: Why is diversity important—and whatever diversity means to you—why is it important in the legal field, and what type of diversity is crucial?

JUSTICE JENKINS: Yeah. Well, why, I think, is a question that I can speak to, and I think it just comes out of my experience. When I think of diversity, I think of inclusion. For me that’s a better way to think about it, inclusion versus exclusion, because inclusion is a big tent.

I went to a Catholic grammar school where there were Irish kids and Italian kids and kids from El Salvador and from Mexico, and so I grew up in a community that had a tremendous array of cultures and ethnicities and races, and I saw the value added that came from that, in terms of how it brought us together, how we shared and learned from one another. So I think I came up in that construct understanding and not being fearful of it.

But law really, as I said earlier, is about people. It’s about people and how the law affects our relationships, one to another. And so if people are going to buy into law, they have to see themselves in it. They have to see that their values are at least reflected. Law doesn’t always resolve itself in a way that fully achieves their goals or fully addresses their sense of self or their sensibilities, but I think on the way to resolution, that when people can see for themselves the things that they care about have been addressed and discussed, then you forge a credibility link that I think is important, and I think that then lends itself to having judges who have different experiences in the practice of law.

As I said earlier, no one comes to the bench with subject-matter experience across a broad expanse and there’s some rich cross-pollination that occurs on benches when a judge who’s been a DA most of his or her life is put in the family law department, and there’s someone on that bench who’s experienced that or came from that practice, and just like you lawyers talk all the time, we judges talk all the time too.

And so I think that actually—again, that diversity of experience, that inclusiveness, I think can’t do anything but add value to the work that we do and more importantly, to how people perceive the work that we do. Now this may seem a little altruistic, given the sort of political tumult and conflict that we’re experiencing in our society now, but I believe and continue to believe this is true.

The other thing that I think is that lawyers, especially lawyers who try cases, your job isn’t just to learn the law, it’s to learn about people, because, ultimately, you’re going to be asking people to recognize the persuasiveness of your position. And so I always tell young lawyers, your job really is to reach out beyond where you sit now and have some real-time experience with people who are different.

That’s why I took that job at the Department of Justice. I heard my parents talk about a Jim Crow South but I hadn’t had my own experience and I found a way to have it and, you know, I learned there were some terrible people committing some horrible crimes but in those same localities there were some amazing people.

And so it gives you a sense of balance, from diversity, and that’s what the law is supposed to be, the scales of Justice. That’s what we aspire to, anyway.

MR. MOORE: There’s a pattern to our questions. We sort of open an issue and then sort of dig a little deeper. You’ve already touched on this area a little bit and it’s sort of how inclusion benefits the judiciary and judicial philosophy which you’ve addressed.


[Page 84]

MR. MOORE: But how does practice-area diversity intersect with other forms of diversity?

JUSTICE JENKINS: Well, I think the same thing.

I mean, I’m reading a book by David Epstein called Range10—! think I’ve mentioned it—and his thesis in the book is that problems that have sort of a recurring kind of pattern to them—he uses, for example, chess—that one can, if you start early enough, you can expose yourself to a number of patterns that manifest in a chess game and you can become very good at it, but problems like the ones we deal with in the law that look like something else but then raise a bit of a different feature that we haven’t seen, that it’s broad-based experience across disciplines, across life experience, across professional experience that sometimes can be suggestive of the answer or a pathway to resolving those questions.

And so I think the same thing too. It’s difficult now because if you’ve got a case and it’s a bank case and you want the foremost expert in that area handling that case, to produce a good outcome. So some of what we do sort of pushes us to specialization.

But I also think that when you climb down out of that tree of specialty, then the way in which you express those claims, your position, to people more broadly, like jurors, can benefit from the cross-pollination that comes from different specialty areas and approaches.

I don’t know that there’s a hypothetical you could raise with me where I will say that there’s no value to seeing things in a broader context.

MS. PRITZKER: Applying some of these thoughts and principles to your very active role as Governor Newsom’s Judicial Appointment Secretary, what are some of the most persistent barriers to diversifying the judiciary and how can they best be addressed or overcome?

JUSTICE JENKINS: Yeah. Well, if Jenkins had the answer to this, I don’t know that I would retire because this is the most amazing job ever—but I might think about leaving it because I could then travel around the country in corporate America and the judiciary and give them the keys to the kingdom, so to speak.

But one of the things that I see, that still exists today, was this notion that I talked about when someone talked to me about becoming a judge—my father was a custodian, I don’t have any political friends. I don’t know a governor, I don’t know a senator, and how am I going to be taken seriously?

And I think that notion is common to more people than you would think at first blush; white, Black, Asian all share sort of different views on that topic.

So there are people who opt in. I mean they’re never in doubt about their qualifications to serve in one of these positions; however, there are a lot of others who are not insecure, but don’t understand enough about the process itself so that it feels like something they can navigate.

And so one of the things that I realized early on when I got there, after about the first six months we already had about 300 applications, but I think there was one Latino who put in an application from Santa Clara County. And I thought—I went and looked at the number of Latino, Latinx lawyers there, 10 years’ experience, there’s substantially more. So something’s accounting for that.

Women now, the increased numbers of women on the bench has grown exponentially, but the same thing.

The ability to see yourself in that position from where you stand, we have to find a way to instill in people a kind of confidence that comes from understanding the process; that it’s not that you have to be someone who has a governor for a best friend—and that’s part of what I was trying to do.

So the pool was sparse, in terms of women and minorities. The pool was sparse, in terms of people who come from a probate practice or a family

[Page 85]

law practice, and yet those are very important assignments. Some people think, in juvenile, the most important.

So looking at people from those practices and not saying, well, in that practice you don’t try a lot of jury trials; but saying, what are the skill sets that one needs to be successful in this job? What analogous experience does that person have that allows you to project that they will accommodate the skills that they need in other assignments in the Superior Court? It’s the same thing for federal court too.

This is all about projecting from the skillset you have now, how are you going to accommodate the skills that you need, when you land in the job you desire?

MS. PRITZKER: Do you have thoughts about on how to create that pipeline? How to encourage people to look at themselves, people from diverse backgrounds, and say, "I can do this"?

JUSTICE JENKINS: Well, that’s a great question.

We all talk about mentors and we’ve been talking about mentors for a number of years. One of the things that I realized as I’ve traveled around the State, is I told you visiting all these counties, but there were in some counties, there weren’t a lot of potential mentors for people, and it caused me to start to think about the role mentors had played in my life. I mentioned Carol Corrigan and the Justice that I replaced, Ming Chin, invited me early on in my career to come and sit pro tem when Justice Werdegar went to the Supreme Court. When Judge Chin called and invited me, I told him, I said, "Well, I appreciate the invite but I don’t want to be a Court of Appeal Justice." Silence.

And then he said, "I’m going to ask you that question again, Marty," and he said, "Do you think that you will be a better trial judge if you understand how we review your records?" Well, you know, the bell went off, right? And so I went. Opened a whole new world to me.

Thinking about mentors, we began a program when I left the Governor’s office where we chose to test a mentoring program and have it be comprised of judges, sitting judges. This had not been done. It’s done sort of anecdotally, that Judge Corrigan reached out to me, but we set up a program where you can apply for a mentor, for both the trial court and appellate court. We have a pilot program here in the First District Court of Appeal. You get matched with a judge, who then gives you the benefit of their experience and sort of demystifies, illuminates that process, based on their experience, to help you submit the best application you can. It’s open to any- and everybody.

And who better to provide that kind of input and support and help than someone who’s successfully negotiated the process him- or herself?

So I think, again, the importance of mentoring just cannot be overstated, whether you’re in a large firm, the DA’s office, a City Attorney’s Office or you desire to become a judge—and sometimes even when you’re given a judgeship. You hear judges talking about mentors all the time. Judge Henderson talks about Judge Peckham and how amazing of a mentor Judge Peckham was to him when he first came to the District Court.

So I think that program is one that I’m really hopeful will not only increase the number of individuals we have applying, but the quality of the applications that will ultimately then give the Governor a more diverse, inclusive pool from which to draw and that will redound to the benefit of the citizens of the State.

MS. BOWMAN-CARPIO: So kind of stepping back again, I think you started touching upon this earlier. So how do your personal experiences as a diverse person—and I mean we are all diverse people in our own ways.


MS. BOWMAN-CARPIO: How has that influenced your judicial philosophy?

[Page 86]

JUSTICE JENKINS: Well, I think most pointedly, it has allowed me to sort of be open, as open as I can, to the people and the issues that come before me. That sort of broad-based experience, it’s in areas of discretion, it’s easy to default. Sometimes it happens subliminally, just impacts what we do. Before we know it, we’re operating on them.

And I think having had lots of different experience and exposure to individuals, I think makes me a better judge. I’m confident that once the really good lawyers who are in front of me explain the issues to me, I can put the pedal to the metal and reach a decision.

But on the way there, the process by which I get there has to be one that’s robust and enriched by counsel and by their ability to draw analogies that make sense to me and to see a problem in a broader context or perspective. I think it is also a function of broader experience.

So I think it has helped me. I don’t know much about what people say about me, but one thing that I do hear—I stopped reading what they write about me years ago—is that he’s open-minded.

It used to bother me—and I know this is going off a bit—but it used to bother me when I’d walk into a courtroom, and I have always been the kind of person who will come out and say, even in the District Court, "Here are the issues I have before me, here’s what I understand of the respective positions, just a thumbnail sketch. Here are the questions I have for each of the parties."

And then someone told me that they were saying, "Well, Jenkins has his mind made up when he comes on the bench." Well, you filed a thousand pages of briefing and I would think you’d be disappointed if I did not have some sense of how I saw the issues. Maybe you should retreat to thinking that he’s giving you a nice big round curveball to hit and your job is to hit it out of the ballpark, because if I didn’t have any questions, then you wouldn’t be here.

MS. PRITZKER: Yeah, sometimes the best part of the argument is in the judge’s questions.


MS. PRITZKER: It makes you think about the case in a different way.

JUSTICE JENKINS: Right. And when that happens, those are the best days on the bench.

MS. PRITZKER: Good to hear.

JUSTICE JENKINS: Right? What a judge told me early on, I asked her what was the upside? She said to me, "Well, I just had a trial and what was amazing, it was everything I thought a trial would be when I became a judge." I thought, oh, aren’t they all like that? For some people not, I guess. For me, they have all been like that.


MR. MOORE: Well, speaking of other judges, there was a profile of you posted on your law school’s website where Judge Saundra Brown Armstrong was quoted as praising your equanimity and open-mindedness.11

How do you keep that composure and levelheadedness in the midst of what can be especially heartbreaking cases or enraging cases where either the facts are sort of difficult, like you said, tears were falling—


MR. MOORE: —or you realize the attorneys are engaging in sort of hand-to-hand combat, and that can be difficult or frustrating for a judge as well.

JUSTICE JENKINS: Right, right.

Well, you develop a number of things. I used to teach a class in the California judiciary about judicial stress, and I came about this quite accidentally. I don’t know how I came about it, but when I would come out of the courtroom during a

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trial, my—one of my clerks would always say, "You know, Judge, look at your palm," and there were like a thousand black dots on it, which meant that I was jabbing myself. So that’s one way. It’s not very sophisticated.

But no, I think that you start to learn what your triggers are. You use your staff. I would tell my law clerks to let me know if I am getting a little bit intemperate. There are signals that they would give and let me know.

I think most importantly is to understand that this can happen, that you can become embroiled in ways and that understanding, which I think is also a—reflective of a degree of humility, that you don’t walk in thinking that you’re this impregnable force—that you’re human. I think understanding that and setting up different constructs to help you deal. I would write, sometimes, on my pad as opposed to jabbing the palm—to deal with that.

Each day, each day I would go home at night and I would say to myself, if I had a day where I thought I was particularly intemperate, "I have to get better tomorrow." And I still do that. Although I don’t see lawyers as often, I still do that.

What are the ways that I can improve the way I communicate or ask questions or not signal, when a question is asked before I answer it—when I ask a question, before it’s answered, what I think are my views. Not perfection, but I’m always trying to improve, and maybe that comes from my athletic background.

MS. PRITZKER: Thirty seconds or less, what do you do to de-stress? What do you like to do when you’re off the clock?

JUSTICE JENKINS: I took piano lessons when I was 10 for about a year and then I quit to play football and obviously that didn’t work out so well. So two years ago I started taking piano lessons again, and I love it. I mean, I just love everything about it. I will never be good.

MS. PRITZKER: It’s about the process.

JUSTICE JENKINS: You’re going to hoist me on my own petard there, okay.

MS. PRITZKER: Thank you so much, Justice Jenkins.


MS. PRITZKER: This has just been a generous and wonderful interview. And we really thank you for spending your time with us today.




1. Paul Moore is a Deputy Attorney General in the California Department of Justice.

2. See Dukes v. Wal-Mart, Inc., No. C01-02252 MJJ (N.D. Cal.).

3. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984).

4. Epic Games, Inc. v. Apple Inc., __ F. Supp. 3d __, No. 4:20-cv-05640-YGR, 2021 WL 4128925 (N.D. Cal. Sept. 10, 2021).

5. Commission on Judicial Nominees Evaluation.

6. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021).

7. Cal. ex rel. Van De Kamp v. Texaco, 762 P.2d 385 (Cal. 1988).

8. See Lauren Feiner, How FTC Commissioner Slaughter Wants to Make Antitrust Enforcement Antiracist, CNBC (Sept. 26, 2020),

9. O’Bannon v. Nat’l Collegiate Athletic Ass’n, 114 F. Supp. 3d 819 (N.D. Cal. 2015).


11. See Erin Gordon, All Rise: From the NFL to the Federal Bench, California Court of Appeal Justice Martin J. Jenkins ’80 Has Made a Career of Helping Others Grow, USF SCHOOL OF LAW, (quoting Judge Saundra Brown Armstrong as saying of Justice Jenkins, "He presides and decides in an open-minded, even-tempered, courteous, patient, and compassionate manner.").

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