Crowell attorneys attended the National Association of Attorneys General (NAAG) Spring Symposium in Chicago, Illinois on April 24-26. As usual, the conference included multiple receptions and other networking events allowing the Crowell attorneys in attendance to engage with multiple attorneys general and a host of their respective staff members. The team attended a session titled Antitrust 101: Everything you need to know about antitrust laws in the 21st century. Attorney General Letitia James moderated a dynamic Q&A with Professor Stephen Calkins Professor of Law and Director of Graduate Studies at Wayne State University Law School. Below please find some key takeaways:
- The session began with Professor Calkins providing a high-level overview of the federal antitrust statutes, Section 1 and 2 of the Sherman Act and Section 7 of the Clayton Act. He also explained the seminal cases interpreting these main provisions. Professor Calkins described some of the more complex legal concepts that exist within federal antitrust laws, e.g., the difficulty of determining and proving whether an agreement exists under a Section 1 claim, and the crucial role that market definition plays in Section 2 and Section 7 cases.
- Professor Calkins did not limit his presentation to federal antitrust issues, he also highlighted the active role state attorneys general (State AGs) are playing in this field. Unsurprisingly, State AGs in California, Minnesota, New York, and Washington are some of the offices bringing the highest number of antitrust cases. The professor highlighted by name the firms that are well-equipped to defend corporations facing antitrust law suits from state enforcers, including Crowell & Moring.
- Antitrust law is making a very tangible difference in many American’s day-to-day lives. Whether it’s a realtor’s 6% commission split; college athletes’ power over their name, image, and likeness; credit card interchange fees; elite colleges’ financial aid changes, iOS Apple Store practices; or non-competes, the breadth and impact of antitrust cases cannot be overlooked. Importantly, he noted that many of these cases were brought by plaintiffs’ attorneys or State AGs.
- During the question and answer portion of the session, New York Attorney General Letitia James asked the professor for his impressions on certain antitrust issues related to both federal and state governments. He noted the following:
- The sheer number of antitrust cases has increased at the federal level (the United States Department of Justice and the Federal Trade Commission) and the state level.
- Federal agencies stand to gain from the invaluable local experience that State AGs provide through additional resources and a better understanding of local consumers’ and markets. Not only this, but there are often potential antitrust violations that a federal agency may never hear about because the impact is more localized.
- When determining whether an antitrust violation occurred, there are a few questions to consider: how is the quality of the service or product being affected, is innovation being stifled or nurtured, and how are prices being affected?
- When considering whether to block or allow mergers, federal agencies don’t have the ability to predict the future and whether one of the parties will go out of business. Although agencies do the best they can, positive results are never guaranteed.
- State AGs often face an uphill battle when the company in question has already settled with the federal government on similar issues.
- Transformative technology, such as generative artificial intelligence, has the power to significantly affect competition. The RealPage lawsuit is a good example of how outsourcing pricing decisions to a centralized entity has the potential to affect competition.