Our Curious Amalgam

In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy? David Shaw, a partner at Morrison & Foerster, and Derek Jackson, an associate at Cohen & Gresser, join Christina Ma and Melissa Maxman to discuss the intersection between ESG and the Sherman Act. Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG. With special guests: David J. Shaw, Partner, Morrison & Foerster and Derek Jackson, Associate, Cohen & Gresser LLP Related Links: Jens Hackl, Sustainability and Antitrust – What Companies Need to Know About Sustainability Collaborations in Europe (Feb. 28, 2022) The ESG Movement and Its Impact on Antitrust Compliance (July 7, 2022) Oversight of Federal Enforcement of the Antitrust Laws, Subcommittee on Competition Policy, Antitrust, and Consumer Rights, Senate Judiciary Committee (Sept. 20, 2022) (note that discussion of ESG starts with questions from Sen. Hawley at 1:58:54 through 2:00:02 and picks up again with questions from Sen. Cotton at 2:02:42 through 2:05:35.) 3rd Circ. Won't Revive Shell Egg Buyers' Antitrust Suit Hosted by: Christina C. Ma, Partner, Wachtell, Lipton, Rosen & Katz and Melissa H. Maxman, Partner, Cohen & Gresser, LLP

Mexico's Federal Economic Competition Commission (COFECE) is an autonomous agency responsible for competition law enforcement, policy and advocacy nationwide. At the same time, an entirely separate agency—the Federal Telecommunications Institute (IFT)—has jurisdiction to enforce the competition laws in the telecommunication and broadcasting sectors. How do the two agencies determine where one agency's jurisdiction ends and the other agency's begins? Marta Loubet, a competition lawyer based in Mexico City, joins Alicia Downey and Sarah Zhang to discuss the origins of the jurisdictional divide between COFECE and IFT, its relationship to COFECE's ongoing digital markets initiatives, and what changes the future may bring. Listen to this episode to learn more about a unique and important feature of the Mexican competition regime. With special guest: Marta Loubet, White & Case LLP Related Links: Henry Capin-Gally, Germán Macías, Marta Loubet, Román González Melo, Mexico: An introduction to Competition (Chambers & Partners 2022) COFECE Website IFT Website Hosted by: Alicia L. Downey, Downey Law LLC and Sarah Zhang, Baker Botts LLP

To keep a level playing field among EU member countries, subsidies granted by those countries to companies engaged in competition in the EU are subject to the EU's state aid rules. But what about subsidies granted by non-EU countries which may impact the EU single market? Andreas Reindl, a partner at Van Bael & Bellis in Brussels, joins Alicia Downey and Matthew Hall to discuss the EU's new Regulation on foreign subsidies distorting the internal market, which authorizes the European Commission to investigate and issue orders to remediate the adverse effects of such foreign subsidies. Listen to this episode to learn more about this new Regulation and its implications for companies making acquisitions or involved in public tenders in the EU. With special guest: Andreas Reindl, Partner, Van Bael & Bellis Related Links: Proposed text of EU Regulation on Foreign Subsidies 13 July 2022 European Council press release 30 June 2022 Hosted by: Alicia Downey, Downey Law LLC and Matthew Hall, McGuireWoods London LLP

Compared to other proposals to reform the U.S. antitrust regime, the State Antitrust Enforcement Venue Act has shown greater potential of being passed. What is at stake here? Yee Wah Chin, Counsel at Ingram Yuzek, speaks with Anora Wang and Alicia Downey about the arguments for and against exempting antitrust cases brought by state attorneys general from transfer and consolidation in a single venue. Listen to this episode to learn about the complexities in the proposed legal change and the potential implications if and when it is enacted. With special guest: Yee Wah Chin, Counsel, Ingram Yuzek Gainen Carroll & Bertolotti, LLP Related Links: Yee Wah Chin, The State Antitrust Enforcement Venue Act of 2021: A Counterproductive Solution in Search of a Problem (January 10, 2022), New York Law Journal Vol. 267 No. 6 (2022) Hosted by: Anora Wang, Arnold & Porter and Alicia L. Downey, Downey Law LLC

The 2010 FTC/DOJ Horizontal Merger Guidelines indicate that merger review should consider whether a proposed merger may lessen competition by eliminating a "maverick" firm that plays a disruptive role in the market to the benefit of consumers. But how do we know when a proposed merger involves such a maverick? In this episode, hosts Alicia Downey and Matt Reynolds talk with Baker Botts LLP partner and DOJ alumna Taylor Owings about what she thinks should be the defining features of maverick firms. Listen to this episode to learn more about the theory of "disruptive innovation," the maverick concept, and their potential roles in merger analysis. With special guest: Taylor M. Owings, Partner, Baker Botts LLP Related Links: Taylor M. Owings, "Identifying a Maverick: When Antitrust Law Should Protect a Low-Cost Competitor", 66 Vand. L. Rev. 323 (2013) Clayton M. Christensen et al., "What Is Disruptive Innovation?", Harv. Bus. Rev., Dec. 2015 Edgewell Personal Care Company and Harry's, Inc. (FTC case page) U.S. v. H&R Block, Inc., et al. (DOJ case page) Check out two of Taylor's favorite board games: Cyclades | Board Game | BoardGameGeek Power Grid | Board Game | BoardGameGeek And a card game that Taylor and Matt both enjoy: Dominion | Board Game | BoardGameGeek Hosted by: Alicia L. Downey, Downey Law LLC and Matthew J. Reynolds, Partner, Huth Reynolds LLP

The Anti-Monopoly Law (AML) is China's principal antitrust statute, as recently amended in August 2022, exactly 14 years after its inception. What has changed about China's antitrust regime over the years? Steve Harris, respected practitioner and thought leader on Asian antitrust laws, speaks with Anora Wang and Christina Ma about his experiences with and perspectives of the AML, enforcement, and relevant agencies. Listen to this episode to learn about the significant developments of China's antitrust law. With special guests H Stephen Harris Jr., Attorney at Law Related Link: American Bar Association Comments on Five Draft Provisions Implementing the Anti-Monopoly Law of China (August 18, 2022) Hosted by: Anora Wang, Arnold & Porter and Christina Ma, Wachtell, Lipton, Rosen, & Katz

John Roberti, one of the founders of Our Curious Amalgam and a longtime leader in the ABA Antitrust Law Section, just wrapped up his term as co-chair of the committee that produces our weekly podcasts. Looking back, what does John think about the evolution of OCA and what does he hope will be his legacy? To find out, Christina Ma and Alicia Downey interviewed John for a special farewell episode. Listen to this episode for stories about the early days of OCA and John's unique take on what it means to be from Delco. With special guests: John Roberti, Partner, Cohen & Gresser LLP Hosted by: Christina Ma, Partner, Wachtell, Lipton, Rosen & Katz and Alicia Downey, Downey Law LLC

Tom Zych of Cleveland, Ohio has taken on the big job of chairing the Antitrust Law Section for the 2022-23 ABA year. Who is the Section's new chair and what makes him tick? In this episode Alicia Downey and Matt Reynolds talk to Tom about what he'll focus on during his term and the legacy he hopes to leave behind. Listen to this episode to get to know Tom and, as a bonus, meet Mark Butscha, who will serve in the important role of Counsel to the Chair. With special guests: Thomas F. Zych, Partner, Thompson Hine LLP and Mark R. Butscha, Jr., Partner, Thompson Hine LLP Related Link: ABA Antitrust Law Section - Home Hosted by: Alicia L. Downey, Downey Law LLC and Matthew J. Reynolds, Huth Reynolds LLP

A Denver jury recently acquitted defendants in the highly publicized third criminal trial involving allegations of price fixing in the chicken industry. What led to that not guilty verdict? Defense attorneys Rick Kornfeld and David Beller join Jaclyn Phillips and Christina Ma in a two-part series discussing the trials, strategy, and lessons learned. Listen to Part II today and hear Rick & David's reflections on the three trials--from simplifying complex themes to diversity in the courtroom. With special guests: Rick Kornfeld, Shareholder, Recht Kornfeld PC and David Beller, Shareholder, Recht Kornfeld PC Hosted by: Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP

A Denver jury recently acquitted defendants in the highly publicized third criminal trial involving allegations of price fixing in the chicken industry. What led to that not guilty verdict? Defense attorneys Rick Kornfeld and David Beller join Jaclyn Phillips and Christina Ma in a two-part series discussing the trials, strategy, and lessons learned. Listen to Part I today and hear all about the allegations and evidence, how the case evolved over time, and reflections on this historic outcome. With special guests: Rick Kornfeld, Shareholder, Recht Kornfeld PC and David Beller, Shareholder, Recht Kornfeld PC Hosted by: Christina Ma, Partner, Wachtell, Lipton, Rosen, & Katz and Jaclyn Phillips, Associate, White & Case LLP