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December 2, 2009

Trends in Antitrust Law and Practice and the Obama Enforcement Agenda the Focus of Antitrust Fall Forum

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Joseph Simons, Lydia Parnes and Deborah Feinstein pose questions to panelists in "The FTC Enforcement Agenda". Speaking for the FTC were Joseph Farrell, director, Bureau of Economics, Richard Feinstein, director, Bureau of Competition and David Vladeck, director, Bureau of Consumer Protection. Moderator was David Wales.

As the Antitrust landscape takes shape, nearly 300 lawyers attending the Section of Antitrust Fall Forum, Nov. 12-13, heard from leading enforcement officials of the Department of Justice and Federal Trade Commission who discussed new directions for antirust policy and the Obama administration’s agenda.

The recurring theme was that at both the DOJ and FTC the focus would be on enforcement of existing antitrust laws and effectively protecting consumers and the public. Speakers detailed their efforts to examine mergers and face the challenges of a globally competitive environment.  Joining federal officials were representatives of the states as well as Canada, Europe and China.

Highlighting the conference were opening remarks by Carl Shapiro, the deputy assistant attorney general for economic analysis, who spoke about updating the merger guidelines and issues for upcoming workshops. In an effort to examine current trends and emerging issues, the FTC and DOJ are sponsoring numerous workshops so that the antitrust community can be poised to respond.

To read Shapiro’s speech, click  here..

FTC Commissioner William E. Kovacic, who spoke at Thursday’s luncheon, addressed the controversial application of Section 5 of the Federal Trade Commission Act to competition matters outside the consumer protection arena, noting that generally Section 5 has rarely been effective.

For more on Kovacic’s presentation, click here.

Thursday’s panels focused on the roles going forward that the DOJ and FTC will play in enforcement. Immediately following the 2008 election, many predicted that the administration would substantially increase merger and other civil enforcement activities, and have a new agenda in place for antitrust, competition and consumer protection actions. Forum attendees were able to hear directly from the agency heads in wide ranging discussions of policy and application of law.

Also on Thursday, Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia convened a panel on the vital role of the courts in shaping antitrust policies. Ginsburg analyzed a number of Supreme Court and Federal Circuit Court decisions including Illinois Brick, Leegin, Twombly, Trinko, American Needle v. NFL Toledo Mack Sales & Service, North Texas Specialty Physicians and Schlotzsky’s. Other panelists included Prof. Stephen Calkins of Wayne State University Law School; William F. Cavanaugh Jr., deputy assistant attorney general for civil maters; Helen D. Jaffe; and Amanda P. Reeves, senior advisory to FTC Commissioner Thomas Rosch.

The Friday panel “Adapting to a New Enforcement Environment: What Changes in Enforcement Priorities Should We Expect from States Attorneys General?” featured current and former state antitrust and consumer protection enforcement officials who conducted a no-holds-barred examination of what can be expected at the state level.  Discussion focused on how states can strike a balance between antirust and consumer protection, especially in light of scarce resources.  Offering their predictions and prescriptions for action were Julie S. Brill, senior deputy attorney general, North Carolina; James A Donahue III, assistant attorney general for Pennsylvania and chair of the National Association of Attorneys General; Stephen Houck, Center for State Enforcement of Antirust and Consumer Laws; and Prof. James E. Tierney of Columbia Law School. Moderating the panel was Kevin O’Connor of Godfrey & Kahn SC, Madison, Wisc.

Panelists at the Friday program “Major Developments Abroad: Recent Developments in EC Enforcement, Early Returns on Chinese Enforcement and Developments in Canada” explored the major change that is underway outside the United States after China’s rejection of its first international merger on antitrust grounds, and as the EC and Canada face leadership changes.  Presenters addressed cartel settlement procedures and guidelines in the European Commission and the adoption in Canada of “second request” procedures in merger cases – a first for an enforcement regime outside the United States.

For more about the ABA Section of Antitrust Law, click here.

Learn More About:  Antitrust