Fordham Law School welcomed a star-studded list of U.S. and international judges, leading antitrust practitioners, and top-flight economists and legal scholars to its 44th Annual Conference on International Antitrust Law and Policy.
The Fordham Competition Law Institute’s two-day conference, held Sept. 14-15, convened five powerhouse panels that provided expert insights into the evolving role of antitrust in media and sports, e-commerce, and IP, and the role of courts, both domestic and abroad, in antitrust enforcement.
Pre-conference workshops on Sept. 13 included a full day on antitrust economics, a new Global Practitioners Workshop and the long-standing Heads of Authority Workshop, which included 23 agency heads from around the world who held their own private daylong workshop.
The economics workshops opened with a conversation between Nobel Laureate Daniel McFadden, affiliated with The Brattle Group, and FCLI Director James Keyte about the former’s award-winning work on discrete choice modeling. Discrete choice models use data on the characteristics of decision-makers and the attributes of the alternatives they face to explore the statistical relationship between those circumstances and their decisions. Over the past five decades, discrete choice models have been used in predicting consumer choice in transportation planning, marketing, valuing IP, political races, and with regard to the Lanham Act, McFadden noted. The method has also been used in antitrust cases since the early 1990s.
When McFadden first started working on what would become known as discrete choice in 1963, he saw no point in writing about it in a scholarly journal. He figured the conclusions he had reached were “pretty obvious” and didn’t think they were publishable. When he finally published his findings in 1974, in a book titled Frontiers in Econometrics, the general sales—around 200 copies—were rather unremarkable. “Even though I wrote it up, I didn’t think it was all that innovative,” McFadden told the audience. Twenty-six years later, the judges for the Nobel Prize begged to differ. McFadden won the 2000 Nobel Prize Winner in Economic Sciences “for his development of theory and methods for analyzing discrete choice.” Brattle also presented a panel on e-commerce and “platform” markets that included leading practitioners and enforcers.
The afternoon economics session was conducted by Compass Lexecon, a leading economics consulting firm, and focused on merger analysis, enforcement, and policy. The afternoon also saw the launch of the first Global Practitioners Workshop, a session held under the Chatham House Rule. Skadden Arps and Canada-based firm Goodmans ran lively programs with the interactive participation of the attendees.
On Sept. 14, Andrew Finch, acting assistant attorney general of the U.S. Department of Justice’s antitrust division, and Andreas Mundt, chair of the ICN steering group and Federal Cartel Office of Germany, delivered the opening day’s keynote remarks. Both officials covered central priority and key issues in the current enforcement environment.
The first official day of the conference featured three panels, including “The Role of the Courts in Antitrust Enforcement: Global Developments.” The panel showcased judicial luminaries from the United States, the European Union, and the Shanghai (China) People’s Court, who outlined the differences among their respective systems, including the role of judges, rules of discovery, the availability of interim relief or lack thereof, and the development of private litigation versus public litigation. Judge Amit Mehta of the U.S. District Court for the District of Columbia spoke about how government challenges to mergers can land in a new judge’s lap. “Often when a case is first called, the federal judge is the person with the least knowledge of antitrust laws in the room,” Mehta said, referring to cases brought by either the Department of Justice or Federal Trade Commission. Mehta recounted receiving his first merger case four weeks after being appointed a federal judge. “So I knew nothing about antitrust law and nothing about merging, but I had to figure out both on the fly,” said Mehta, who then-President Obama appointed to the D.C. Circuit in 2014. While many lawyers believe experts make the difference in merger litigation cases, Mehta shared his belief that “experts are only as good as the facts he or she supplies,” and that they should be part of a larger theme relative to the case.
In addition to Judge Mehta, the panel included retired Judge Shira A. Scheindlin, formerly of the U.S. District Court for the Southern District of New York and currently of counsel with Stroock & Stroock & Lavan LLP, and a mediator and arbitrator with JAMS; Judge Anthony Collins of the General Court of the European Union; Wenlian Ding, deputy chief justice of the intellectual property bench for the Shanghai People’s Court; and Sir Nicholas Forwood, counsel for White & Case LLP and formerly on the General Court of the European Union.
Johannes Laitenberger, director-general of DG Competition for the EU Commission, and Maureen K. Ohlhausen, acting chair for the Federal Trade Commission, opened the second day’s keynote remarks. Laitenberger addressed EU priorities, while Ohlhausen gave more philosophical remarks on the role of government in relation to individual freedoms, including competing and innovating without burdensome regulations.
Panels on “Priorities and Prospects: Antitrust in a Changing World” and “IP and Antitrust: An In-House Counsel’s Perspective” highlighted the conference’s closing day. Before the start of “Priorities and Prospects,” moderator William E. Kovacic praised Fordham Law School for the vital role it plays in the world of competition law.
“It’s no accident that over the past 44 years that this law school, that this university, has placed a distinctive imprint on the development of international competition policy, standards, norms, and understandings,” said Kovacic, director of the Competition Law Center at George Washington University. “They came early and they stayed late, in a field that did not always attract such intense interest.”
Kovacic then outlined the panel’s two topics: a critique about “the adequacy of the competition regime as a whole” and “the adequacy of existing competition systems, individually and collectively, to deal with the phenomena of large international enterprises.”
The day’s second panel—an in-house counsel roundtable—included a practical discussion among counsel from Qualcomm, Google, Intel, Spotify, and Ericsson discussing “IP and Antitrust.”
James Keyte, director of the Fordham Competition Law Institute, said that he was “enormously pleased with this year’s programs and turnout” but emphasized that in today’s conference environment, “no one can rest on their laurels.”
