Antitrust and Unfair Competition Law

Competition: Spring 2022, Vol 32, No. 1


Written by Stephen McIntyre
O’Melveny & Myers LLP Los Angeles, CA

In November 2021, the Antitrust and Unfair Competition Law Section of the California Lawyers Association held the 31st Annual Golden State Antitrust and Unfair Competition Law Institute. For the second year running, the COVID-19 pandemic necessitated a virtual format. While we were disappointed to be unable to convene in person, the Section is pleased to report that participation in GSI was high—a testament both to the tireless efforts of GSI’s organizers and to the quality of the presentations. This edition of Competition reproduces each of the excellent GSI presentations.

We begin with the "Recent Developments in Antitrust and Unfair Competition Law" panel, moderated by Malinda Lee of the California Attorney General’s Office. Panelists Thomas Greene of the U.S. Department of Justice Antitrust Division, Colleen Huschke of the San Diego District Attorney’s Office Consumer Protection Unit, and Professor Shana M. Wallace of Indiana University Maurer School of Law provide an overview on cutting-edge developments in federal antitrust law, federal procedure, and California state antitrust and unfair competition law.

Next up are two "Big Stakes" panels. The first, moderated by Aaron M. Sheanin of Robins Kaplan LLP, centers on In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, a case in which a class of NCAA Division I basketball and football players successfully challenged NCAA rules limiting financial aid and benefits that student-athletes may receive. Mr. Sheanin was joined by Jeffrey L. Kessler of Winston & Strawn LLP, who represented the plaintiffs; Daniel A. Rascher, Ph.D., of OSKR, LLC, who testified at trial as an expert witness supporting the plaintiffs; and Jeffrey A. Mishkin of Skadden, Arps, Slate, Meagher & Flom LLP, who represented the NCAA in Grant-in-Aid.

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The second "Big Stakes" panel, moderated by Shira Liu of Crowell & Moring LLP, discusses the Federal Trade Commission and Pennsylvania Attorney General’s challenge to a proposed merger between Thomas Jefferson University and Albert Einstein Healthcare Network. The panelists—Jamie E. France of Gibson, Dunn & Crutcher LLP; Paul H. Saint-Antoine of Faegre Drinker Biddle & Reach LLP; and James A. Donahue, III of the Commonwealth of Pennsylvania’s Office of the Attorney General—address the challenges of litigating a hospital merger case, both generally and in the midst of a pandemic.

GSI was also honored to host an all-women panel on "Managing Antitrust Practice in Changing Times." Moderator Jiamie Chen of Parabellum Capital LLC was joined by panelists Shana Scarlett of Hagens Berman Sobol Shapiro LLP, Dena Sharp of Girard Sharp LLP, and Susannah Torpey of Winston & Strawn LLP, with input from Kalpana Srinivasan of Susman Godfrey LLP. This high-powered panel spoke on a range of topics relating to law firm management, from litigating multi-district antitrust cases in the age of COVID-19, to counseling "big tech" clients in the face of heightened regulatory scrutiny, to whether remote hearings and client pitches promote or hinder gender equality among practitioners.

This edition’s report from the 31st Annual Golden State Institute concludes with an enthralling conversation with Justice Martin J. Jenkins of the California Supreme Court—the first African-American man to serve on the Court in over 30 years and the first openly gay Justice on California’s highest court—who graciously provides insights into lessons he has learned through a life of public service. Paul Moore of the California Department of Justice, Office of the Attorney General; Elizabeth Pritzker of Pritzker Levine LLP; and LeeAnna Bowman-Carpio, a J.D. candidate at UC Hastings College of the Law and the Antitrust & Unfair Competition Law Section’s inaugural Inclusion and Diversity Fellow, led the conversation with Justice Jenkins.

This edition of Competition also includes three exceptional articles:

First, Christina Tusan, William Pletcher, and Alex Bergjans—a trio of attorneys from the Office of the Los Angeles City Attorney—provide an in-depth, multi-jurisdictional study of how the UCL and other consumer protection laws have helped protect public health during the COVID-19 pandemic.

Next, Seth Silber and Alexander Poonai of Wilson Sonsini Goodrich & Rosati P.C. chronicle the Association for Accessible Medicine’s challenge to AB 824, a California statute aimed at stamping out "reverse payment" patent settlements. As detailed in their article, the AAM v. Bonta litigation underscores that state-level attempts to institute broad antitrust reforms may run into constitutional limitations.

Finally, Laura K. Kaufmann, an associate at O’Melveny & Myers LLP, writes on the federal antitrust enforcers’ newfound focus on potential antitrust violations

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in labor markets—in particular the Department of Justice’s criminal prosecution of alleged "no-poach" agreements among employers. Drawing from these recent enforcement actions, Ms. Kaufmann provides recommendations for minimizing antitrust risk.

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As of this writing, the COVID-19 pandemic appears at long last to be receding. While we have had many false starts in returning to "life as normal"—and predicting the virus’s future course would be a fool’s errand—we nonetheless look forward to the 32nd Annual Golden State Antitrust and Unfair Competition Law Institute on November 10, 2022, with optimism that we will be able to reunite in person.

Thank you to the organizers, moderators, and panelists who made the 31st Annual Golden State Antitrust and Unfair Competition Law Institute a success; to the talented authors who submitted articles for publication in this edition of Competition; to the Executive Committee of the Antitrust and Unfair Competition Law Section; and to Ben Covington, Jack Derewicz, Gillian Hawley, Tyler Helms, Daniel Lautzenheiser, Pauline Nguyen, and Winston Weinberg, who assisted with editing this edition.

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