#161 Is This a New Era of Federal Trade Regulation by Rule? The Past, Present, and Future of FTC Rulemaking
Release Date: 03/28/2022
Our Curious Amalgam
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...
info_outline #265 Can I Avoid Targeted Ads? The EU Rules on Pay or OKOur Curious Amalgam
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...
info_outline #264 What’s Wrong With Having Lots of Patents? Patent Thickets and Antitrust LawOur Curious Amalgam
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,...
info_outline #263 What’s the Role of a Magistrate Judge? Conversation With Judge Lindsey VaalaOur Curious Amalgam
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...
info_outline #262 What’s Up With U.S. Merger Remedies?Our Curious Amalgam
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...
info_outline #261 Can Demanding Price Parity Harm Competition? The MFN ParadoxOur Curious Amalgam
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...
info_outline #260 What’s The (Data Protection) Difference? An EU/U.S. Comparison of Personal Data Protection Issues In Merger and Behavioural InvestigationsOur Curious Amalgam
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,...
info_outline #259 Is Competition in Canada in Decline?Our Curious Amalgam
In recent years competition agencies in several jurisdictions have undertaken studies to assess the state of competition within their borders. Canada now joins the list. In this episode, co-hosts Alicia Downey and Barry Nigro speak with economist Matthew Osborne about the Canadian Bureau of Competition’s 2023 report, “Competition in Canada from 2000 to 2020: An Economy at a Crossroads.” Listen to this episode to learn about how Matthew and his team analyzed competition across the Canadian economy during a critical decade. With special guest: Matthew Osborne, University of Toronto...
info_outline #258 Will the UK CMA Find Out About My Deal? The Operation of the CMA’s Mergers Intelligence Committee in PracticeOur Curious Amalgam
The UK merger control system provides for voluntary filings but that does not mean parties to deals can hide from the regulator, the UK Competition and Markets Authority (CMA). But how does the CMA's Mergers Intelligence Committee (MIC) identify deals to ask about and review the informal briefing papers which can be submitted by parties hoping to avoid a full filing? Eleni Gouliou, a Director of Mergers at the CMA, who has chaired MIC, joins Anora Wang and Matthew Hall to discuss the work of MIC and its place within the CMA's merger review processes. Listen to this episode to learn more about...
info_outline #257 Throwing the Book at Orange Book Listings? The FTC’s Views on the Antitrust Implications of Listing Patents in the Orange BookOur Curious Amalgam
The interplay between patent law and competition law has been a consistent focus for the antitrust agencies over the years, most notably in the pharmaceutical sector between brand and generic drugs. But will the FTC take a new approach to dealing with branded drug company patents listed in the FDA's "Orange Book"? Mika Ikeda, Competition Counsel at Johnson & Johnson joins Jaclyn Phillips and Jeny Maier to discuss the FTC's historical interest in Orange Book listings and what actions the agency may take in the future. Listen to this episode to learn more about FTC policy related to...
info_outlineFor decades the FTC relied on its adjudicatory authority, applying its expertise on a case-by-case basis in administrative litigation, but now, FTC leadership seems to be shifting away from litigation to “legislative-style” rulemaking. What does that mean in practical terms? In this episode, co-hosts Jana Seidl and Alicia Downey speak with Adam White, a senior fellow at the American Enterprise Institute, and co-director of George Mason University’s Gray Center for the Study of the Administrative State, about what FTC rulemaking looks like and what we can expect. Listen to this episode to learn more about how FTC rulemaking started, how it evolved, recent changes to the process, and where the FTC may be headed with rulemaking.
Related Links:
FTC - Statement of Regulatory Priorities (Dec. 10. 2021)
Executive Order on Promoting Competition in the American Economy (July 9, 2021)
Hosted by:
Jana Seidl, Baker Botts LLP and Alicia Downey, Downey Law LLC