By American Bar Association
The American Bar Association Antitrust Law Section will convene its annual Antitrust Fall Forum on Nov. 14 in Washington with a full day of debates focused on the past four years of the Biden administration and the next four of the new U.S. president, in addition to other timely antitrust topics.
The 2024 Antitrust Fall Forum will take place at the Ronald Reagan Building and International Trade Center in Washington, D.C.
The program will include a fireside chat with Melissa Holyoak, who has served since March on the Federal Trade Commission and is a former solicitor general with the Utah Attorney General’s Office. There, she oversaw the civil appeals, criminal appeals, constitutional defense and special litigation, and antitrust and data privacy divisions. Holyoak will speak from 1-1:45 p.m.
The Fall Forum will present debate-style discussions and explore the landscape of antitrust and how it is likely to change in the next four years in the aftermath of the Nov. 5 election. Subject-matter experts will also examine what is ahead for antitrust issues in the next six months of transition and what challenges a new administration will face. Other topics include merger review approaches, enforcement goals and use of the FTC’s unique powers.
The debates will focus on these topics and whether:
• “The Biden Administration Turned the Page in Antitrust” -- President Biden selected reform-minded heads of the antitrust agencies and issued a sweeping Executive Order on competition. The goal was to change the rules of the road for business activity in the U.S. and to end an era in which enforcers and courts worried too much about the consequences of over-enforcement. Did it work? Speakers will be William Baer, Brookings Institution, Washington, D.C.; Daniel A. Crane, University of Michigan Law School, Ann Arbor; Kristen C. Limarzi, Gibson Dunn & Crutcher LLP, Washington, D.C.; and Doha Mekki, principal deputy assistant attorney general, U.S. Department of Justice, Antitrust Division.
• “Merger Efficiencies are Over-Promised and Under-Delivered” -- The 2023 Merger Guidelines mark a more skeptical approach to mergers than in past eras of antitrust enforcement. Gone is the presumption that mergers regularly improve competitive dynamics in a market by accomplishing economies of scale, efficient integration or other procompetitive benefits. The debate will revolve around whether merger efficiencies on a large scale may be a myth and whether the evidence warrants a relatively high or low regulatory burden on transactions compared to the prevailing paradigm. Speakers are Elizabeth Bailey, Charles River Associates, San Francisco; Louis Kaplow, Harvard Law School, Cambridge, Massachusetts; John Kwoka, Northeastern University Department of Economics, Boston; and Nancy L. Rose, Massachusetts Institute of Technology, Cambridge.
• “Anticompetitive Conduct is Best Determined by the FTC” -- While the FTC defends competition rulemaking, Article III courts are hearing a wide variety of novel Sherman Act cases around the country. The questions are a mix of familiar and new: What daylight is there between the Sherman Act and the FTC Act; and, in this era of new Supreme Court precedent cabining some administrative actions, can the FTC be effective in applying a vague concept like unfair competition to technologically complex products and modern business models? Speakers are D. Bruce Hoffman, Cleary Gottlieb Steen & Hamilton LLP, Washington, D.C.; Jennifer Milici, WilmerHale LLP, Washington, D.C.; Shaoul Sussman, associate director for litigation, Bureau of Competition, FTC; and Sandeep Vaheesan, legal director, Open Markets Institute, Washington, D.C.
In addition, a fireside chat with Jon Sallet, from the Office of the Colorado Attorney General, and two timely panels are planned:
• “Lessons from Past Presidential Transitions” -- The Presidential Transition Act of 1963 established procedures that the federal government must follow to prepare for the transfer of power after a presidential election. In practice, presidential transitions have expanded to include assessments of the entire executive branch and independent agencies for the incoming president as well as vetting for potential political appointees in a new administration. Experts will discuss how presidential transitions work and what impact they have on competition policy and enforcement agencies. Speakers are Renata B. Hesse, Sullivan & Cromwell LLP, Washington, D.C.; David Higbee, A&O Shearman, Washington, D.C.; Eugene I. Kimmelman, Yale University and Harvard Kennedy School, Washington, D.C.; and James R. Lloyd, deputy attorney general, civil litigation, Office of the Texas Attorney General, Austin.
• “Hot Topics in the Next Administration” -- A hallmark of competition policy in the Biden administration has been a government-wide approach encouraging executive branch agencies to promote competition using their various authorities. In addition, DOJ’s Antitrust Division and the FTC have, among other measures, proposed new merger guidelines, new Hart-Scott-Rodino (HSR) Act rules, engaged in competition rulemakings and aggressively enforced antitrust laws. The panel will explore how the next administration will approach competition policy and whether it will follow or alter the path of the Biden administration. Speakers are Deborah L. Feinstein, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; John Newman, University of Miami School of Law, Miami; and Noah J. Phillips, Cravath Swaine & Moore LLP, Washington, D.C.
For additional information on the ABA Antitrust Law Section, visit www.americanbar.org/groups/antitrust_law.
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