The Capitol Forum Podcast

On this episode of Second Request, Teddy Downey and the FTC’s Shaoul Sussman discuss the new draft merger guidelines from the FTC and DOJ. Shaoul describes some of the market dynamics, economic conditions and case law reflected in the new guidelines, and why the agencies thought it was time for an update: The agencies “have a mandate to make the guidelines more accessible and provide clear rules of the road, both for CEOs that contemplate a merger and also for the public to understand what goes into how we think about cases.”  Listen to the podcast to hear them delve into some of the language and intentions of individual guidelines, including: Guideline six and market structures  Guideline seven and the concept of dominance Guideline eight and concentration trends 

On July 20, Capitol Forum Executive Editor Teddy Downey spoke with Diana Moss, President of the American Antitrust Institute (AAI), about what a LiveNation-Ticketmaster monopoly breakup could look like. The AAI recently published a deep dive on vertical integration of Live Nation and Ticketmaster as well as proposed remedies.  On the podcast, Diana describes the legal climate around vertical mergers in 2010 when the two companies first merged: “We had this whole gestalt around vertical mergers being viewed as pro-competitive, getting a lot of deference in enforcement cases, no case law. And that merger, Live Nation/Ticketmaster, was especially egregious because Ticketmaster had about 80 percent share in primary ticketing.” To put that statistic in perspective, Diana sites the new, proposed merger guidelines, which describe 50 percent share as a presumption of anti-competitive outcomes.  The current result, she points out, is a lack of choice for everyone involved: “Venues have no choice, or very little choice, but to go to Ticketmaster. Artists have very little choice but to go to Ticketmaster for ticketing. Even Taylor Swift had to do this. She was promoted by AEG, which is a competing concert promoter, but AEG didn't have the ticketing services. So Ticketmaster was the only option.” Listen to the full podcast to hear about: The complications of secondary markets Retaliation fears from artists and independent venues Historical breakup precedents Potential remedies, including the drawbacks to conduct remedies 

In the latest episode of Second Request, Teddy interviews Bob Lande on the impact of textualism on merger analysis. Bob Lande is Venable Professor of Law Emeritus at the University of Baltimore School of Law and a board member for the American Antitrust Institute who has written about the use of textualism in antitrust enforcement and the way it affects statutory interpretation in a recent article for the Utah Law Review and a presentation to the FTC.Due to its emphasis on “precise language,” Bob argues that rather than leading to more conservative antitrust decision making by the courts, textualism should lead to the exact opposite: “Textualism should lead, if anything, to more aggressive antitrust enforcement….This is because the Sherman Act, the FTC Act and the Clayton Act are all products of the progressive era. It's not surprising that their precise language is very pro-consumer and very anti-monopoly.”Listen to the podcast to hear Teddy and Bob discuss:• Section 7 language• The express efficiencies defense• Monopolization

On April 23, 2021, Rob Bonta was sworn in as the 34th Attorney General of the State of California, the first person of Filipino descent and the second Asian-American to occupy the position.  Attorney General Bonta's passion for justice and fairness was instilled in him by his parents, who served on the frontlines of some of America's most important social justice movements. Instilling in him the lessons they learned from the United Farm Workers and the civil rights movement, Attorney General Bonta's parents lit a fire inside him to fight against injustice — to stand up for those who are taken advantage of or harmed. It's why he decided to become a lawyer — to help right historic wrongs and fight for people who have been harmed. He worked his way through college and graduated with honors from Yale University and attended Yale Law School.  In the State Assembly, Attorney General Bonta enacted nation-leading reforms to inject more justice and fairness into government and institutions. As the People's Attorney, he sees seeking accountability from those who abuse their power and harm others as one of the most important functions of the job. In elected office, he has taken on powerful interests and advanced systemic change — pursuing corporate accountability, standing up for workers, punishing big polluters, and fighting racial injustice. He has been a national leader in the fight to transform the criminal justice system, banning private prisons and detention facilities in California, as well as pushing to eliminate cash bail in the state. He has led statewide fights for racial, economic, and environmental justice and worked to further the rights of immigrant families, renters, and working Californians. 

Stacy Mitchell is Co-Executive Director of the Institute for Local Self-Reliance, a research and advocacy organization that challenges concentrated corporate power and works to build thriving, equitable communities. ILSR has been a pioneering leader in the growing anti-monopoly movement and has a long track record of working alongside grassroots groups to develop better alternatives, from community-owned broadband, to independent businesses, to distributed solar.Stacy recently wrote an opinion piece in the New York Times titled The Real Reason Your Groceries are Getting More Expensive, and has advocated for the FTC revitalizing the anti chain store legislation known as the Robinson Patman Act.Stacy has also produced pivotal research and reporting on the policies driving the decline of small businesses and the economic and political consequences of monopoly power. In 2020, she was profiled by the New York Times for her analysis of Amazon’s power and her leadership in building a broad coalition to counter it. Her reports and articles about the tech giant have drawn a wide and influential readership. The House Judiciary Committee cited her research extensively in its “Investigation of Competition in Digital Markets.” In 2022, political strategy firm Baron named her an “Antitrust Super Influencer” for her role in shaping the policy debate.

Alvaro Bedoya was sworn in May 16, 2022 as a Commissioner of the Federal Trade Commission. President Joe Biden named Bedoya to a term that expires on Sept. 25, 2026.Bedoya was the founding director of the Center on Privacy & Technology at Georgetown University Law Center, where he was also a visiting professor of law. He has been influential in research and policy at the intersection of privacy and civil rights, and co-authored a 2016 report on the use of facial recognition by law enforcement and the risks that it poses to privacy, civil liberties, and civil rights. He previously served as the first Chief Counsel to the Senate Judiciary Subcommittee on Privacy, Technology and the Law after its founding in 2011, and Chief Counsel to former Senator Al Franken, of Minnesota. Prior to that, he was an associate at the law firm WilmerHale.

This week on Second Request, our host Teddy Downey is joined by Luke Slindee, Senior Pharmacy consultant at Myers and Stauffer LC. In this role, Luke helps facilitate the data collection, data analysis, and public posting of pharmacy actual acquisition cost benchmarks, reducing NADAC and multiple State AACs. Luke is widely recognized for his expertise in pharmacy policy and competition rules.

This week on Second Request, the Hatch-Waxman Act of 1984 laid out a pathway for generic drugs to come to market as patent protections for brand name drugs expire. But brand-name producers have found a way to stave off competition: paying generic producers to delay market entry of their cheaper drugs.

Tommaso Valletti is Professor of Economics at Imperial College Business School and also the University of Rome "Tor Vergata" (on leave). He was formerly the Chief Competition Economist of the European Commission,In a recent paper, "Structuring a Structural Presumption for Merger Review," Tommaso and Filippo Lancieri discuss the key standards that should drive antitrust enforcement.

With the FTC already investigating the liquor distribution market as well as Big Soda as it tries to enter the beer market, and with the Department of Treasury's TTB undertaking a rulemaking to revamp alcohol competition law, the timing couldn't be better to hear from Harry Schuhmacher on his views on problematic conduct in the alcohol markets.Harry Schuhmacher is Editor & Publisher of Beer Business Daily, Craft Business Daily and Wine & Spirits Daily – all read on every continent except Antarctica. Harry has worked in the beer business for over 30 years in a variety of positions, and has published Beer Business Daily for over twenty years. In addition, he is the producer of the Beer Industry Summit and the Wine & Spirits Summit. He is often quoted as a beer industry expert in national publications such as Forbes, The Wall Street Journal, and Bloomberg. He is a graduate of the University of Texas at Austin.