2022 Antitrust Conference: The basics of antitrust law for the novice attorney

Robin Crauthers
Jeffrey Amato
Kevin Goldstein
Susannah P. Torpey
Lauren Duxstad
Richard Taffet
Teisha Johnson
Robin Crauthers | Wilson Sonsini Goodrich & Rosati
Jeffrey Amato | Winston & Strawn LLP
Kevin Goldstein | Winston & Strawn LLP
Susannah P. Torpey | Winston & Strawn LLP
Lauren Duxstad | Winston & Strawn LLP
Richard Taffet | Morgan, Lewis & Bockius
Teisha Johnson | Baker McKenzie

Re-Broadcast: June 10, 2022

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Program Summary

Session I - Spotting Antitrust Issues Before They Become Problems – Robin Crauthers

From agreements to participating in trade associations, ordinary course business activities can run afoul with antitrust laws. Learn how to spot potential issues and when to consult with an antitrust lawyer.

Key topics to be discussed:

  • Agreements that violate antitrust laws
  • Information sharing among competitors
  • Monopolization

Session II - Sherman Act, the Clayton Act, and the FTC Act – Jeffrey Amato and Kevin B. Goldstein

This session serves as an antitrust primer, introducing viewers to the core federal antitrust laws: the Sherman Act, the Clayton Act, and the FTC Act. Speakers will discuss their application to price-fixing cartels, monopolization claims, antitrust merger reviews, and more. The session will cover both criminal and civil antitrust enforcement and risks, including the standards of review in assessing whether conduct is unlawful and the potential penalties and liabilities for companies and individuals who violate antitrust laws. Speakers will provide tips for reducing legal risk when dealing with competitors, distributors, customers, and suppliers.

Key topics to be discussed:

  • Understand primary U.S. federal antitrust laws and how they are interpreted by enforcers and courts
  • Gain awareness of basic antitrust concepts and risks
  • Identify penalties for antitrust violations and understand the importance of antitrust compliance

Session III - Minimizing Antitrust Risks in Blockchain Applications – Susannah Torpey and Lauren Duxstad

As the adoption of blockchain technology continues to gain momentum, the introduction of new uses for blockchain technology in the form of crypto and digital assets, smart contracts, DAOs, and NFTs have outpaced guidance from the federal antitrust agencies. At the same time, the U.S. Department of Justice and other antitrust authorities have taken note of blockchain’s potential to enable collusion or exclude competition. Companies and individuals using blockchain technology will need to understand the antitrust risks to avoid costly fines and increased private litigation in this area. This session will introduce blockchain technologies; will address antitrust risks relating to the design and implementation of blockchain products and services; will discuss recent legal developments in the area; and will provide best practices to help companies avoid legal pitfalls while maximizing the potential of blockchain technology.

Key topics to be discussed:

  • Potential antitrust issues across blockchain uses
  • Recent legal trends in blockchain litigation
  • Strategies for mitigating and avoiding antitrust risks
  • Open questions the antitrust agencies have yet to weigh in on

Session IV - The Rule of Reason and Big Tech - Richard Taffet

Under Section 1 or Section 2 of the Sherman Act, whether conduct involving “big tech” is pro- or anticompetitive is often subject to rigorous dispute. Recent cases offer some guidance regarding how to assess such conduct under the Rule of Reason, but questions remain regarding whether traditional factors are sufficient for defining markets, assessing market power, and accounting for dynamic competition in “high tech” markets.

Key topics to be discussed:

  • Have courts settled on an applicable Rule of Reason framework for “high tech” industries?
  • What limitations, if any, should exist for establishing legitimate justifications for challenged conduct?
  • How should platform competition be considered in assessing constraints on market or monopoly power?
  • Do market shares and a SSNIP test have continued viability in “high tech” markets?

Session V - Trade Associations, Competitor Collaborations and Antitrust – Teisha Johnson

Whenever competitors meet to discuss issues relating to their business, there is a risk of violating competition laws. Trade associations, as well as participating companies, can be responsible for any anti-competitive conduct. For this reason, strict compliance is needed. In this CLE, we will cover Trade Associations and Practical Antitrust issues, discussing in depth the basic principles of the Joint Guidelines for Collaborations Among Competitors. We will also dive into the Keys to Compliance which include setting up and attending meetings, prohibited 'off-limit' areas, what can be discussed, information exchange, understanding the antitrust risks, the dos and don’ts, and best practices. We will also briefly cover recent developments applicable to competitor collaborations.

Key topics to be discussed:

  • Collaboration Among Competitors
  • Keys to Compliance
  • Tips and Best practices
  • Recent Developments

This course is co-sponsored with myLawCLE.

Date / Time: June 10, 2022

  • 12:00 pm – 5:40 pm Eastern
  • 11:00 am – 4:40 pm Central
  • 10:00 am – 3:40 pm Mountain
  • 9:00 am – 2:40 pm Pacific

Choose a format:

Live Video Broadcast/Re-Broadcast: Watch Program "live" in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for "live" CLE credit.

On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 5 business days after the original recording date and are viewable for up to one year.

Closed-captioning available

Speakers

Robin Crauthers_myLawCLERobin Crauthers | Wilson Sonsini Goodrich & Rosati

Robin Crauthers is an associate in the Washington, D.C., office of Wilson Sonsini Goodrich & Rosati, where her practice focuses on representing companies in government antitrust investigations and litigation, including mergers and acquisitions.

Prior to joining the firm, Robin served as a trial attorney at the Department of Justice (DOJ) Antitrust Division in the Media, Entertainment, and Professional Services section, where she led matters related to the broadcast, ticketing, and professional services industries. During her time at the DOJ, Robin was an integral part of three litigation teams—United States v. AB Electrolux, United States v. Tribune Publishing, and United States v. Deere/Monsanto/Precision Planting.

Select Matters

  • United States v. AB Electrolux, Electrolux North America, Inc., and General Electric Company
  • United States v. Tribune Publishing Company
  • United States v. Deere & Company, Precision Planting LLC and Monsanto Company
  • DOJ No-Poach Investigation in Digital Advertising
  • Secured DOJ clearance in Taboola/Outbrain after second request investigation
  • Represented Plaid in the DOJ’s investigation and litigation into Plaid’s acquisition by Visa
  • Counseled third parties in DOJ and FTC merger investigations
  • Represented PacBio in the FTC’s investigation into PacBio’s acquisition by Illumina

Select Publications

  • Co-author, “Criminal Enforcement of Hiring Conduct: No-Poach and Wage-Fixing Indictments,” Employee Relations Law Journal, Spring 2022
  • Co-author with B. Snyder, “Criminal Enforcement of Hiring Conduct: No-Poach and Wage Fixing Indictments,” American Bar Association, October 21, 2021
  • Co-author, “Old Wine in a New Bottle: eSports Leagues and Rule-Setting Conduct,” Wilson Sonsini Alert, July 20, 2021
  • Co-author, “Video Game Distribution: The Next Player to Attract Digital Platform Antitrust Scrutiny,” Wilson Sonsini Alert, May 14, 2021
  • Co-author with S. Sher and M. Yost, “United States: Digital Platforms,” Americas Antitrust Review 2020, Global Competition Review Insight, 2019

 

Jeffrey Amato_myLawCLEJeffrey Amato | Winston & Strawn LLP

Jeffrey Amato handles complex multi-forum disputes, principally in the areas of antitrust, class actions, arbitration, and government investigations. His experience includes counseling clients with respect to navigating compliance with statutory, regulatory, and ethical obligations relating to data privacy and government-sponsored programs and contracts, including Medicare and Medicaid. Jeffrey also has experience in white collar criminal defense, including representing corporate and individual defendants in federal and state courts at the trial, appellate, and post-conviction levels.

During his career in private and public practice, Jeffrey has been involved in significant legal disputes concerning a wide range of issues in federal, state, administrative, and arbitral forums, in a diverse array of business sectors, such as healthcare, technology, insurance, financial services, banking, life sciences, pharmaceuticals, energy, and consumer products.

Prior to joining Winston, Jeffrey worked at another international law firm. Before that, he served as law clerk to the Honorable Arthur D. Spatt, U.S. District Judge for the Eastern District of New York. Before his clerkship, Jeffrey was an attorney with the U.S. Department of Homeland Security, where he prosecuted numerous civil enforcement actions against individuals, air carriers, shippers, and other regulated entities.

During his tenure at U.S. Department of Homeland Security, he received an interim appointment as Special Assistant to the Chief Counsel of the Transportation Security Administration. Immediately following his graduation from law school, Jeffrey was an Honors Attorney with the Office of the General Counsel of the U.S. Department of Transportation.

 

Kevin Goldstein_myLawCLEKevin Goldstein | Winston & Strawn LLP

Kevin B. Goldstein focuses his practice on antitrust/competition law and litigation. He specializes in defending clients in high stakes contested matters, including in criminal investigations by the U.S. Department of Justice, follow-on class actions, and other private litigation and arbitration. Kevin also has significant experience obtaining regulatory approvals for complex transactions, including, when necessary, responding to Second Requests by the U.S. Federal Trade Commission and U.S. Department of Justice.

His practice has a substantial emphasis on matters requiring multinational coordination, and he has experience coordinating cartel and merger defenses in jurisdictions including the European Union, Japan, Korea, Canada, Mexico, Brazil, China, and South Africa. He has experience with antitrust matters in a wide range of industries including automobile components, chemicals, consumer electronics, financial services, health care and insurance, medical devices, music licensing, pharmaceuticals, publishing, radio, retail, and semiconductors.

Kevin previously served as a law clerk at the U.S. Federal Trade Commission in the Office of International Affairs and was a Visiting Lecturer at Tsinghua University School of Law in Beijing.

 

Susannah P. Torpey_myLawCLESusannah P. Torpey | Winston & Strawn LLP

Susannah P. Torpey, Co-Chair of Winston and Strawn’s Technology Antitrust Group, litigates cutting-edge issues at the intersection of antitrust, intellectual property (IP), and technology. Susannah has more than 15 years of experience representing major corporations in high-profile litigations, trials, appeals, and government investigations involving a wide array of federal and state antitrust issues, including monopolization, monopoly leveraging, price fixing, group boycotts, exclusive dealing, tying, price discrimination, anticompetitive product redesign, interoperability degradation, and mixed issues of antitrust and IP law relating to standard-setting, patent licensing, patent misuse, and fraud on the PTO.

She routinely counsels businesses regarding the minimization of antitrust risk, pricing strategies, antitrust compliance, and business issues relating to the use of tech and IP. Susannah has been repeatedly recognized by leading ranking publications as a “Super Lawyer,” “Top Woman Attorney,” and as a “Star” in Antitrust and Litigation for obtaining critical wins for her clients.

 

Lauren Duxstad_myLawCLELauren Duxstad | Winston & Strawn LLP

Lauren Duxstad is a litigation associate at Winston & Strawn, whose practice focuses on complex commercial litigation, antitrust litigation, and international corporate and governmental investigations. Lauren regularly represents major U.S. and multinational corporations in consumer class actions, multi-district litigations and government investigations involving a wide array of federal and state antitrust issues, including monopolization, price fixing, bid rigging, group boycotts, exclusive dealing, tying, and unfair competition.

She also has experience representing clients in civil RICO litigation and litigating mixed issues of antitrust and intellectual property law, including relating to fraud on the PTO and sham litigation.

 

Richard Taffet_myLawCLERichard Taffet | Morgan, Lewis & Bockius

Richard S. Taffet serves as lead counsel in a wide range of antitrust, intellectual property, and other domestic and international litigation and counselling matters. He represents clients in technology, financial, industrial products, and consumer goods industries.

For close to 40 years Richard has tried cases in state and federal courts, as well as in arbitration proceedings; represented clients’ interests in appeals to numerous Federal Courts of Appeal and the Supreme Court of the United States; and has advised clients in connection with a broad range of competition and intellectual property matters. Richard also regularly assists clients in matters before the United States Department of Justice and Federal Trade Commission, as well as foreign competition and other regulatory bodies, including in European and Asian jurisdictions.

Richard is also recognized as a leading counsel and thought leader in connection with matters involving technology standards development. For more than 30 years, Richard has represented standard development organizations (SDOs) and technology consortia, as well as participants in such bodies in connection with the development and use of SDO patent and intellectual property rights (IPR) policies, licensing and technology transfer strategies, and related commercial and antitrust issues. These representations have included the development of SDO and consortia IPR and patent policies, numerous litigations, advocacy to US and foreign legislative bodies and enforcement and regulatory agencies, and extensive legal and economic writing and speaking endeavors.

Richard is noted in Chambers USA “as a proficient and respected antitrust and IP lawyer,” and for his “excellent strategic views and his ability to always think one step ahead.”

Before joining Morgan Lewis, Richard was a senior litigation partner of another international law firm, where he was a member of the executive board.

 

Teisha Johnson_myLawCLETeisha Johnson | Baker McKenzie

Teisha Johnson is a member of Baker McKenzie’s antitrust practice in Washington, DC. She advises clients on a wide range of antitrust and e-discovery matters, and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, compliance, and litigation matters.

Teisha focuses her practice on antitrust investigations and e-discovery matters. She routinely leads cross-border teams in investigations of proposed mergers and responding to international investigations and discovery requests. She also advises clients on all aspects of the antitrust regulatory process, including representing clients in matters before the Federal Trade Commission and the Antitrust Division of the US Department of Justice, as well as in civil and criminal investigations before federal and state authorities. Her experience as an in-house antitrust lawyer brings a commercial and practical approach when providing advice to her clients.

Though the breadth of her experience spans several industries, including healthcare, technology, finance, and chemicals, she is an active member of the Industrials, Manufacturing & Transportation group and regularly provides advice to transportation clients.

Agenda

Session I – Spotting Antitrust Issues Before They Become Problems | 12:00 pm – 1:00 pm

1. Concerted actions | 12:00 pm – 12:40 pm

a. Agreements

i. Pricing

(a) Bid rigging
(b) Price fixing
(c) Resale Price Maintenance

ii. Others

(a) Market allocation
(b) “Naked” agreements
(c) Group boycotts

iii. Mergers

b. Information Sharing

2. Individual actions | 12:40 pm -1:00 pm

a. Monopolization/Attempted monopolization

Break | 1:00 pm – 1:10 pm

Session II – Sherman Act, the Clayton Act, and the FTC Act | 1:10 pm – 2:10 pm

1. Background and goals of antitrust law | 1:10 pm – 1:15 pm
2. Penalties and liabilities for antitrust violations | 1:15 pm – 1:20 pm
3. Agreements under Section 1 of the Sherman Act, including horizontal and vertical restraints | 1:20 pm – 1:30 pm
4. Monopolization claims under Section 2 of the Sherman Act | 1:30 pm – 1:40 pm
5. The Clayton Act’s prohibitions on tying and bundling arrangements, exclusive dealing, and price discrimination | 1:40 pm – 1:50 pm
6. Unfair or deceptive acts or practices under FTC Act, Section 5 | 1:50 pm – 2:00 pm
7. Merger review under Section 7 of the Clayton Act | 2:00 pm – 2:10 pm

Break | 2:10 pm – 2:20 pm

Session III – Minimizing Antitrust Risks in Blockchain Applications | 2:20 pm – 3:20 pm

1. How blockchain can increase or restrain competition | 2:20 pm – 2:25 pm
2. Risks of blockchain, digital assets, smart contracts, and DAOs facilitating collusion or information exchange among competitors | 2:25 pm – 2:30 pm
3. Emerging trends relating to blockchain litigation | 2:30 pm – 2:35 pm
4. Exclusion of competitors from private blockchains | 2:35 pm – 2:40 pm
5. Exclusion of blockchain technologies that threaten to disrupt incumbents | 2:40 pm – 2:50 pm
6. Resale price concerns relating to NFTs | 2:50 pm – 3:05 pm
7. Best practices to mitigate antitrust risks relating to blockchain | 3:05 pm – 3:20 pm

Break | 3:20 pm – 3:30 pm

Session IV – The Rule of Reason and Big Tech | 3:30 pm – 4:30 pm

1. Have courts settled on an applicable Rule of Reason framework for “high tech” industries? | 3:30 pm – 3:45 pm
2. What limitations, if any, should exist for establishing legitimate justifications for challenged conduct? | 3:45 pm – 4:00 pm
3. How should platform competition be considered in assessing constraints on market or monopoly power? | 4:00 pm – 4:15 pm
4. Do market shares and a SSNIP test have continued viability in “high tech” markets? | 4:15 pm – 4:30 pm

Break | 4:30 pm – 4:40 pm

Session V – Trade Associations, Competitor Collaborations and Antitrust | 4:40 pm – 5:40 pm

1. Collaboration Among Competitors | 4:40 pm – 4:55 pm
2. Keys to Compliance | 4:55 pm – 5:10 pm
3. Tips and Best practices | 5:10 pm – 5:25 pm
4. Recent Developments | 5:25 pm – 5:40 pm