Our Curious Amalgam

On March 21, 2024, the United States Department of Justice and sixteen Attorneys General sued Apple, alleging that “Apple undermines apps, products, and services that would otherwise make users less reliant on the iPhone, promote interoperability, and lower costs for consumers and developers.” In other words, many of the DOJ and AGs’ allegations boil down to lock in - that is that the features chosen by Apple lock in developers and users to stay in Apple’s ecosystem by making it harder to switch or jump between platforms. We discuss the case and the claims advanced, and what it might mean for antitrust enforcement, tech, and consumer experiences. With special guest: Stephen Calkins, Professor of Law, Wayne State University Law School Related Links: U.S. v. Apple Complaint Assistant Attorney General Jonathan Kanter Remarks on Complaint Steve Calkins' Guide to Classical Music Concerts Hosted by: Jana Seidl, Baker Botts LLP and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

The EU Digital Markets Act introduces a radical change to regulation of the digital sector in the EU. But what does it require and what have the designated "gatekeepers" been doing to ensure compliance? Aleksandra Zuchowska, Competition Policy Manager at CCIA in Brussels, appearing in her personal capacity, joins Matthew Reynolds and Matthew Hall to discuss the DMA and its impact. Listen to this episode to learn more about the principles underpinning the DMA, its requirements, the compliance steps being taken, the act's impact on choice, innovation and online safety, the compliance workshops in Brussels and next steps. With special guest: Aleksandra Zuchowska, Competition Policy Manager, Computer & Communications Industry Association, Brussels (personal capacity) Related Links: CCIA Europe blog post on DMA and innovation/user-experience issues CCIA Europe blog post on DMA enforcement European Commission DMA webpage European Commission non-compliance investigation press release European Commission compliance day press release Hosted by: Matthew Reynolds, Huth Reynolds LLP and Matthew Hall, McGuireWoods London LLP

Anyone with a phone number understands how annoying it is to receive unsolicited promotional voice calls and text messages. For that reason, telemarketing and telephone sales practices in the U.S. are regulated by decades-old federal and state consumer protection laws, which permit private rights of action by consumers for minimum statutory damages that can total hundreds of dollars per violation, such as when a call or text is made to a phone number listed on the National Do-Not-Call Registry. But are these laws too harsh on legitimate businesses communicating with their customers? How well do these 1990s-era laws address emerging communication technologies? In this episode, hosts Alicia Downey and Derek Jackson speak with Kelley, Drye & Warren partner Becca Wahlquist about these issues and recent developments in the law governing telemarketing to consumers. Learn about the challenges that businesses face in complying with a complex and evolving scheme of federal and state legislation and rules restricting telephone communications with consumers. With special guest: Becca Wahlquist, Partner, Kelley, Drye & Warren LLP Related Links: Becca Wahlquist & Nathan Jamieson, Developments in Telephone Consumer Protection Act Law After Duguid v. Facebook, Antitrust Magazine (ABA Antitrust Law Section Summer 2022) Hosted by: Alicia Downey, Downey Law LLC and Derek Jackson, Cohen & Gresser LLP

The antitrust law bubble, particularly in the U.S., has in recent years focussed on the mantra of promoting efficiency above all else. In the age of the global polycrisis and increasing corporate concentration and power in numerous sectors, should this bubble be popped? Dr Cristina Caffarra, leading competition economist, joins Barry Nigro and Matthew Hall to discuss the wider issues antitrust and competition law enforcement should be considering, which was the focus of a January 2024 Brussels conference described as the "Anti-Davos" and "Woodstock of Antitrust". Listen to this episode to learn more about the "Antitrust, Regulation, and the Next World Order" conference led by Dr Caffarra, why antitrust law should be taking a wider approach than efficiency and narrow consumer welfare and the links with trade and industrial policy. With special guest: Cristina Caffarra, University College London, CEPR Competition RPN Related Links: Cristina Caffarra article in CPI Columns Europe February 2024 (source: CPI) Cristina Caffarra article part 1 in VoxEU (CEPR) January 2024 (source: VoxEU) Cristina Caffarra article part 2 in VoxEU (CEPR) January 2024 (source: VoxEU) Cristina Caffarra article in VoxEU (CEPR) March 2024 (source: VoxEU) Angus Deaton article "Rethinking My Economics" March 2024 (source: IMF) Politico article on Antitrust, Regulation, and the Next World Order conference February 2024 (source: Politico) The Capitol Forum article on Antitrust, Regulation, and the Next World Order conference February 2024 (source: The Capitol Forum) Cristina Caffarra speaking notes Antitrust, Regulation, and the Next World Order conference January 2024 (source: ofthewedge.com) Hosted by: Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Matthew Hall, McGuireWoods London LLP

Many companies already use or are introducing "pay or OK" models for targeted ads on the Internet. What legal issues does this raise in the EU? Frithjof Michaelsen, Digital Policy Officer at UFC-Que Choisir, the French Federation of Consumer Associations, joins Matthew Reynolds and Matthew Hall to discuss Meta's introduction of pay or OK, otherwise known as pay or consent, on its Facebook and Instagram platforms in the EU, the relevant law and the implications of this for the wider adtech ecosystem. Listen to this episode to learn more about the application of EU consumer and data protection rules and the EU Digital Markets Act to this model. With special guest: Frithjof Michaelsen, Digital Policy Officer, UFC-Que Choisir (France) Related Links: "Choose to lose with Meta" document; BEUC’s assessment of Meta’s subscription model (pay or OK) from a consumer law perspective (source: European Data Protection Board) BEUC "Choose to Lose With Meta" webpage (source: European Data Protection Board) BEUC Press Release "Consumer groups file complaint against Meta’s unfair pay-or-consent model" (source: European Data Protection Board) Timeline of Meta and GDPR (source: European Data Protection Board) NOYB GDPR Withdrawal Complaint (source: noyb.eu) NOYB GDPR Pay or OK Complaint (source: noyb.eu) NOYB Press Release "Instagram & Facebook: 28 civil rights organisations urge European DPAs to reject “Pay or Okay” in pending case over € 250 “privacy fee”" (source: noyb.eu) EU Digital Markets Act (source: European Commission) BEUC and EU consumer group complaints against Meta under EU GDPR February 2024 Hosted by: Matthew Reynolds, Huth Reynolds LLP and Matthew Hall, McGuireWoods London LLP

It's often said that patent protection rewards innovation and benefits consumers. But are there competition law issues with having "too many" patents? Kate Swisher, an antitrust litigator at White & Case, joins co-hosts Alicia Downey and Lijun Zhang to discuss the tension between patent law and antitrust law in the context of so-called "patent thickets," particularly in the pharmaceutical industry. Listen to this episode to learn how courts are treating claims that obtaining a large number of patents for a single product may be an anticompetitive practice. With special guest: Kate Swisher, White & Case LLP Hosted by: Alicia Downey, Downey Law LLC and Lijun Zhang, Freshfields Bruckhaus Deringer LLP

The U.S. federal district courts have magistrate judges who are appointed to assist the district court judges and generally oversee first appearances of criminal defendants, set bail, and conduct other administrative duties. But is the role of a magistrate judge different across districts? In a district like Eastern District of Virginia where the trial docket is so fast that it earned the nickname as a “Rocket Docket,” a magistrate judge can make important decisions and have a great impact on the cases there. Judge Lindsey Vaala, the first magistrate judge interviewed by our program, and a long-time active member of the ABA Antitrust Law Section, speaks with Anora Wang and Melissa Maxman on her previous career as an antitrust litigator, her path to the bench, and to the extent that she can speak, her views on current antitrust issues. With special guest: The Honorable Judge Lindsey R. Vaala, Magistrate Judge, U.S. District Court for the Eastern District of Virginia Related Links: Magistrate Judge Lindsey Vaala Appointment Announcement Nov 2022 Hosted by: Anora Wang, Arnold & Porter Kaye Scholer LLP and Melissa H. Maxman, Cohen & Gresser LLP

The US antitrust agencies' approach to merger remedies has undergone a significant change under the Biden administration. Remedies are increasingly disfavored. In this episode, Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division, joins Barry Nigro and Jeny Maier to discuss the growing skepticism towards merger remedies by the US antitrust authorities. Listen to this episode to learn more about whether merger remedies remain a viable option in the US and, if so, how parties should approach them given the government’s current hostility toward remedies. With special guest: Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division Related Links: Daniel P. Ducore, "Negotiating Remedies: A Perspective from Various Agencies," Global Competition Review (October 2023) Hosted by: Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Jeny Maier, Axinn, Veltrop & Harkrider LLP

When are MFNs good and when are they bad? A "most favored nation" (MFN) price requirement ensures that a buyer receives the lowest price that a seller is offering to other buyers. Under U.S. antitrust law, such MFNs are typically viewed as a procompetitive outcome of price bargaining between parties. But recently, the use of MFNs by Amazon's internet retailing platform has been challenged as an anticompetitive business practice. In this episode, Alicia Downey and Barry Nigro talk to economist Tasneem Chipty about the potential competition concerns raised by MFNs generally and platform MFNs specifically. Listen and learn in what circumstances most favored nation requirements might raise antitrust red flags. With special guest: Tasneem Chipty, Managing Principal, Chipty Economics Related Links: Tasneem Chipty, "Platform MFNs: Can Asking for the Lowest Price Discourage Competition?", Pricing Conduct Committee Newsletter (ABA Antitrust Law Section Jan. 9. 2024) Hosted by: Alicia Downey, Downey Law LLC and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

Large amounts of information are collected during merger control and behavioural competition law investigations. What are the personal data protection issues raised? Dan Rupprecht, Director for Europe of iDiscovery Solutions, joins Aaron Yeater and Matthew Hall to discuss the differences between these two types of investigations, why and how the EU/UK and U.S. approaches differ in this area, the technology that is used and the future. Listen to this episode to learn more about protection of personal data when working in these areas. With special guest: Dan Rupprecht, Director for Europe, iDiscovery Solutions Related Links: European Commission data protection (GDPR) UK GDPR Hosted by: Aaron Yeater, Analysis Group, Inc. and Matthew Hall, McGuireWoods London LLP