Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Law and Policy brought leading antitrust practitioners and enforcers, top-flight economists, and legal scholars back to the Law School. More than 340 participants convened Sept. 14–16 to hear five leading keynote speakers, 10 powerhouse panels, and vigorous debate and commentary on the evolving role and status of market economies, consumer welfare standards, courts’ reactions to tech issues across competition dimensions (both domestic and abroad), and more.
Key thought leaders who took to the stage included Jonathan Kanter, assistant attorney general of the U.S. Department of Justice (DOJ)’s antitrust division; Lina Khan, chair of Federal Trade Commission (FTC); Tim Wu, special assistant to the president for technology and competition policy and Julius Silver Professor of Law, Science and Technology at Columbia Law; and Margrethe Vestager, executive vice president of the European Commission for A Europe Fit for the Digital Age and Competition.
James Keyte
“It’s the first time in conference history that we had a trifecta of keynotes in a single day,” remarked James A. Keyte, director of the Fordham Competition Law Institute and conference organizer for the past eight years, on the final day’s keynote line-up featuring Kanter, Khan, and Vestager. “Assistant Attorney General Kanter and Chair Khan are really shaking things up, and we are waiting to see where their work will settle [as to]new initiatives and challenges and the anticipation of new merger guidelines, enforcement actions, and new potential regulations and initiatives.”
This year’s conference again featured several economic workshops on the Wednesday before the main conference as well as various networking sessions. Attendees included antitrust agency heads, senior officials from antitrust authorities, economic experts, leading attorneys from law firms and in-house legal departments, academics, and students of competition law from around the world.
Conference Highlights
During her keynote address on Sept. 16, Khan spoke of current FTC priorities regarding reinvigorating Section 5 of the FTC Act as well as the Agencies’ merger enforcement—all, in her view, in full accordance with the rule of law—a “core value at the center of the FTC’s antitrust agenda.” She also informed attendees of the progress the FTC and DOJ’s antitrust division have made on the revision of the Merger Guidelines, which, she announced, would be published in the coming months.
“This effort is deeply rooted in the text of our statutes, in controlling law and precedent, and in Congress’ deep commitment to robust enforcement,” Khan said. “Anchoring our reform efforts in these core principles will help bring antitrust more squarely within the rule of law.
“As we face this moment of reassessment and reform in the U.S., and as we navigate common challenges across our jurisdictions, there is tremendous opportunity for shared learning,” Khan continued. “These types of convenings help facilitate that.”
Grateful for the opportunity to participate in this fireside chat with @linakhanFTC & Bill Kovacic at the 48th annual @FordhamLawNYC conference. pic.twitter.com/FqGJj9Pe8u
— Koren W. Wong-Ervin (@kwongervin) September 19, 2022
Calling on U.S. antitrust regulators to take a more aggressive approach to enforcing current laws, Kanter focused his keynote address on monopolization—what he calls a “pressing challenge that demands an aggressive coordinated response from the competition law enforcement community.”
“This is a global challenge because monopolization often involves more than just one bad act,” he said. “The exclusionary power of digital platforms arises from their massive connectivity, and plays out in parts large and small across a wide range of interdependent and reinforcing relationships. … If we isolate individual practices without considering the flywheel of anticompetitive effects, then we overlook the dimension of meaningful competition. This can look like the old arcade game Whac-a-Mole.”
At the end of his remarks, Kanter also praised Fordham Law School for the role it plays in the field of competition law. “The ideas flowing from law students and recent graduates are changing the way we think about antitrust and corporate power,” he said. “This school is producing tremendous lawyers who are devoted to the mission, changing the way we think about antitrust, and are humbling all of us. The energy is infectious and I can’t wait for more of it.”
Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Keynote at Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Law and Policyhttps://t.co/rZ0m0lhB7q pic.twitter.com/YsHJr6WVA2
— Antitrust Division (@JusticeATR) September 16, 2022
During her keynote address, Vestager discussed the EU’s antitrust enforcement efforts with respect to the large digital platforms, including how she believes Europe has built up an “impressive corpus” of antitrust decisions and case law. She also noted that antitrust enforcement in the digital world “has not always been an easy ride.” “For years, people criticized us for going too fast and too far: ‘Why are you harassing these vibrant young businesses whose innovative products are improving people’s lives?’” Vestager said. “Lately the criticisms tend to be the exact opposite: ‘Why did you not act faster, impose harsher fines, break them up, or invent new legal instruments to stop these markets from tipping?’”
She continued, saying, “What is clear is that we have learned an awful lot from our efforts over the past seven years, and it is thanks to this knowledge base that we are in a position to blaze a trail on ex ante regulation for digital gatekeepers.”
As digital services are vital to our life, market concentration poses great risks: less choice, worse services, higher prices. That’s why I am proud of the EU’s antitrust efforts. Every decision we take touches people’s lives.
My speech #Fordham 👉 https://t.co/A3GjZCmooL— Margrethe Vestager (@vestager) September 16, 2022
New to this year’s program was a fireside chat between Wu and moderator William Kovacic, Global Competition Professor of Law and Policy and director of the Competition Law Center at George Washington University Law School. Early on during the chat, Wu discussed the executive order signed by President Joe Biden in the summer of 2021 promoting competition in the American economy. The executive order not only established a whole-of-government effort to promote competition in the American economy, but also included 72 initiatives by 17 federal agencies to promptly tackle some of the most pressing competition problems across the U.S. economy.
“Having the backing of the White House … gives a certain backbone, creates a certain confidence and support that has been very, very important,” said Wu. “Bringing them [the agencies]together in front of the president every six months to report on what they’ve done, I think, has been really helpful for us.”
