Our Curious Amalgam

Antitrust enforcers are facing calls for more active merger enforcement, particularly in the tech sector. Is more enforcement necessary? If so, are existing antitrust concepts and tools up to the task? For nascent acquisitions, how can competitive effects be assessed including impact on innovation or ability to disrupt, and what remedies should or could be considered for prior acquisitions? SESSION CHAIR/MODERATOR Haidee L. SCHWARTZ, Akin Gump Strauss Hauer & Feld LLP, Washington, DC SPEAKERS Foad HOSEINIAN, Sullivan & Cromwell LLP, Brussels Diana L. MOSS, President, American Antitrust Institute, Washington, DC Carl SHAPIRO, Charles River Associates, Berkeley, CA The Honorable Christine S. WILSON, Commissioner, Federal Trade Commission, Washington, DC

This past year saw an increasing number of jurisdictions around the world opening investigations or taking enforcement actions involving Big Data. Has data become the new oil that drives the global economy? Is Big Data no longer just the province of consumer protection? What role should data play in antitrust analyses of mergers or business conduct? What role should antitrust have in regulating Big Data? SESSION CHAIR/MODERATOR Ankur KAPOOR, Constantine Cannon LLP, New York, NY SPEAKERS Vandy M. HOWELL, Cornerstone Research, San Francisco, CA Andreas MUNDT, President, Bundeskartellamt, Bonn The Honorable W. Kenneth PAXTON, Attorney General, Office of the Attorney General, Austin, TX Peter SWIRE, Alston & Bird LLP, Atlanta, GA

Until recently, global cartel investigations dominated the headlines, and it seemed clear that coordinated international enforcement would be the wave of the future. But with the recent decline in blockbuster investigations, many question whether this trend has played itself out and, if so, what lies in store. SESSION CHAIR/MODERATOR J. Brent JUSTUS, McGuireWoods LLP, Richmond, VA SPEAKERS Heather S. NYONG’O, WilmerHale LLP, San Francisco, CA Lisa M. PHELAN, Morrison & Foerster LLP, Washington, DC Marisa TIERNO CENTELLA, Deputy Head of Unit Cartels, European Commission, Brussels Atsushi YAMADA, Anderson Mori & Tomotsune, Tokyo

In recent years, the consumer welfare standard has been heavily criticized by some as too weak or simply inadequate to address the complex antitrust issues raised by the modern economy. But what alternatives exist? Tim Wu, author of The Curse of Bigness: Antitrust in the New Gilded Age and Julius Silver Professor of Law, Science and Technology at Columbia Law School, joins Christina Ma and John Roberti to discuss what hipster antitrust is and its potential for reshaping how we think about the consumer welfare standard or replacing it. Listen to this episode if you want to think critically about the changes needed, if any, to antitrust policy. Related Links: https://www.law.columbia.edu/news/2018/11/tim-wu-curse-of-bigness-antitrust https://www.wired.com/story/tim-wu-says-us-must-enforce-antitrust-laws/ Hosted by: Christina Ma, Associate, Wachtell Lipton and John Roberti, Partner, Allen & Overy

Smart speakers are becoming more and more popular. What laws might come in play facing increasing privacy concerns in the use of smart home devices? Join Phyllis H. Marcus, Co-Chair of the ABA Antitrust Law Section’s Privacy and Information Security Committee, former Chief of Staff for advertising practices at the Federal Trade Commission, and currently a partner at the law firm Hunton Andrews Kurth, as she speaks with John Roberti and Anora Wang about the privacy concerns over using smart devices and possible legal issues and solutions. Listen to this episode to learn more about actions the enforcers might be taking or considering while more homes are “connected.” Related Links: 2019 bill introduced in Congress (The Internet of Things Cybersecurity Improvement Act) to set a minimum security standard for the Internet-of-Things (IoT) devices procured by the federal government California law regulating security of "connected devices" Oregon law regulating security of "devices connected to the Internet" Hosted by: John Roberti, Partner, Allen & Overy LLP and Anora Wang, Associate, Winston & Strawn LLP

The pricing of pharmaceuticals, and in particular whether prices are "too high" or “excessive”, is a contentious topic in the EU, as elsewhere. What is "excessive" in this context and what other antitrust arguments are used in this key sector? Paul Csiszar, Director, European Commission, DG Competition and Bill Batchelor, Partner, Skadden, Arps, Slate, Meagher & Flom LLP join Matthew Hall and John Roberti to discuss recent cases and policy directions, including several cases based on allegations of abuse of dominance by pharmaceutical companies. Listen to this episode to learn more about how EU competition/antitrust law can be one part of the toolbox available to investigate and deal with the issue of excessive pricing in pharmaceuticals. Related Links: European Commission opens formal investigation into Aspen Pharma's pricing practices for cancer medicines UK Competition and Markets Authority: Phenytoin sodium capsules: suspected unfair pricing European Court of Justice: Case C-307/18 Generics (UK) and Others UK Competition and Markets Authority: Remicade: alleged abusive discount scheme Hosted by: John Roberti, Partner, Allen & Overy, LLP and Matthew Hall, Partner, McGuireWoods London LLP

Just across our Northern Border lies over 500,000 square miles of Arctic tundra and a very robust antitrust regime equipped to weather the varied challenges facing antitrust practitioners today. But what are the difference with the U.S. antitrust laws and enforcement regime? Huy Do, Partner at Fasken and Chair of the Competition Law Section of the Canadian Bar Association, walks us through five key differences between U.S. and Canadian antitrust law and jurisprudence. Listen to this episode if you want to learn more about the nuances in practicing cross-border North American competition law. Related Links: Doing Business in Canada: Competition Act and Law in Canada Hosted by: John Roberti, Partner, Allen & Overy and Christina Ma, Associate, Wachtell Lipton

In Europe, the right to privacy is considered a basic and fundamental human right, and allows individuals to request that personal data about themselves be erased or deleted - what has been termed the “right to be forgotten.” How do European privacy rights compare with American ones, and will there ever be an American “right to be forgotten” similar to the one in Europe? Data protection law experts Melanie Teplinsky and Mehboob Dossa join Kayla Odom and John Roberti to discuss how this right is being exercised in the EU and to explore from both American and European perspectives how the individual’s right to privacy can be balanced with the public’s right to access. Listen to this episode to learn more about how the principles of privacy law differ across the Atlantic, and how they can be harmonized. Related Links: EU General Data Protection Regulation (“GDPR”), Article 17, Right to Erasure (‘Right to be Forgotten’) (effective May 2018) Court of Justice of the European Union, Press Release No. 112/19, Google LLC v. Commission nationale de l’informatique et des libertés (CNIL) (Sept. 24, 2019) Court of Justice of the European Union, Press Release No. 128/19, Eva Glawischnig-Piesczek v. Facebook Ireland Limited (Oct. 3, 2019) U.S. Children’s Online Privacy Protection Rule (“COPPA”) California “Eraser Button Law” (SB 586) (effective January 1, 2015) California Consumer Privacy Act (“CCPA”) Hosted by: John Roberti, Partner, Allen & Overy and Kayla Odom, Associate, Freitas & Weinberg

Matt Stoller, author of "Goliath," dives into the competitive cheer industry, noting its rapid growth and the potential monopolistic grip of major players like Varsity Brands. He discusses how high costs and safety concerns plague participants, revealing the broader implications of antitrust issues hidden in unexpected fields. The conversation also touches on the relationship between democracy and market competition, alongside personal anecdotes that bring humor to serious topics. Tune in for a fresh perspective on competition law!

The United States v. Apple “eBooks” case was very strong in doctrinal terms—it involved a horizontal price-fixing cartel with overwhelming evidence proving the conspiracy and the harm it caused, and to antitrust lawyers it was a case that the government couldn’t lose. If it is true that Americans believe in markets and competition, then the case should have had strong support. But to the broader public it was not an easy case at all, and Apple and the publishing company defendants found supporters all across the political spectrum. Chris Sagers, distinguished professor and author of United States v. Apple: Competition Policy in America, joins us in taking a closer look at the eBooks case and the public’s perception of the role of antitrust laws. Related Links: Chris Sagers, United States v. Apple: Competition in America (Harvard University Press, Sept. 17, 2019) United States v. Apple, Inc., 952 F. Supp. 2d 638 (S.D.N.Y 2013) United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015) More from our guest, Chris Sagers Hosted by: John Roberti, Allen & Overy LLP and Kayla Odom, Freitas & Weinberg LLP