ABA LSD Antitrust Liaisons

American Bar Association Law Student Division Liaisons to the Section of Antitrust Law


Second Day at the AT Spring Meeting

Thursday was yet another interesting and, at times, hilarious day of sessions and receptions at the AT Spring meeting in Washington.

I managed to sit in on the Privacy & Security committee's second session of the meeting on "Preventing, Confronting and Controlling Security Breaches and Identity Theft." We heard from Julie Brill of the Vermont OAG, FTC Commissioner Jon Leibowitz, and Jessica Rich of the FTC on current and pending federal and state legislation addressing the growing problem of unauthorized data access. This is a topic I'm especially interested in given my IT background. An interesting question was raised about protecting against the possible misuse of public information, such as freely available detailed satellite maps of neighborhoods. Could criminals use that information to harm someone's children? Well, I'm no authority on the subject, but it did remind me that our appraisal district in Houston recently discontinued making residential floor plans available through their website because they were concerned criminals could use the information to "optimize" their burglary plans. Of course, as Ms. Brill mentioned during the session, kids are divulging much more sensitive information voluntarily through sites such as myspace.com, that many parents may not even be aware of. I have to agree, the next generation has very different ideas of what should be private v. public information. Naivete or a true paradigm shift? We shall see...

Afterwards, I managed to catch the last hour, and, apparently, the best part of the mock trial presented by the Trial Practice Committee. This was a Rule of Reason trial between a fictional interior design firm and a joint venture formed between a traditional "bricks and mortar" company and on-line retailer. After examination of experts and fact witnesses, which included drugstore.com VP Alesia Pinney and amazon.com Associate GC David Zapolsky, the jurors were sent back for deliberations while the audience watched on closed-circuit TV. If you ever wanted to be a fly on the wall of a jury room this was the next best thing. Not only did it give the audience a glimpse of what jurors think is most important (e.g., they're more likely to follow written instructions if it's too hard to remember what the judge asked them to do - so make sure the written instructions make sense!), it was also amusing to hear their opinions on what it takes for a plaintiff to prove their case, the impressions economics experts leave, and whether jurors are really susceptible to or suspicious of those subliminal powerpoints (more likely the latter). I doubt I'll forget the "faux case" about the "Wal-Mart of faux art" anytime soon.

We wrapped up the evening with some great receptions ahead of the Spring Dinner, thanks to the kind folks at Bates White, Crowell & Moring, and Howrey.


First Day at the AT's Spring Meeting

Wow! It's been a great first day for this first-timer at the AT's 54th Spring Meeting. Although many of the first-time attendees were taking advantage of the antitrust fundamentals session this morning, I had the opportunity again to observe the AT Council meeting where numerous reports from section leadership and liaisons were presented. Among the invited guests were Thomas Barnett of the DOJ Antitrust Division, FTC Chair Deborah Platt Majoras, Judicial Division liaison The Honorable Diane Wood of the 7th Circuit, YLD Liaison Albert Kim and, yes, even I got to present my March liaison report.

Little did I know we would end up heading straight from the Council meeting to the luncheon, where AT Chair Don Klawiter had the chance to recognize section members who have gone above and beyond the call of duty during the year. Fellow law student Heather Schneider of Columbia Law School was presented with her award as winner of the annual law student writing competition. I was also surprised and flattered to receive a beautiful plaque for my work as LSD Liaison this year. I am so proud of it, I hope you don't mind if I indulge in posting it here so I can share it with folks who couldn't attend. (Is this a great section or what?)

Following the awards presentation, we heard from Prof Stephen Calkins of Wayne State University, with his amusing annual review of antitrust developments. If only all my law school classes were that entertaining!

The afternoon CLE sessions were mostly full, with some standing room only. I was lucky to find a seat in the Class Action Fairness Act session presented by the Consumer Protection committee. I also made sure to get a good spot for "High Tech Antitrust Disputes" presented by the Computer & Internet and Intellectual Property committees.

Afterwards, the Welcome Reception gave me a great opportunity to catch up on the sessions I missed and get to know some of the other law students attending from Loyola-Chicago (Hi, guys!) and local young lawyers. Point of information: I doubt the widgets in the antitrust fundamentals session are related to the widgets in Tetley's beer they were serving... or are they?

The Reception after the Reception was held at the offices of Morgan Lewis, just a couple blocks away on Pennsylvania Ave. We got to enjoy some more delicious food, great conversation, and a spectacular view from their dining center balcony.

If this is the first day, I can't wait to see what's in store for tomorrow...


Join us in Washington

The registration desk will be open later today (Tuesday) for those of you arriving early for the Spring meeting. First-timers and those in practice <=10 years, I hope you caught the info about the Barristers reception in the Garden Terrace at the JW Marriott Tuesday evening. MEO Committee members (including yours truly) will be there along with some of the AT officers and committee leaders. Don't be shy - I'm a first-timer, too, and really looking forward to the events the rest of this week. See you there!


March LSD Liaison Reports Now Available

The March liaison reports are now available online so you can find out what other law students around the ABA have been up to.


Last Day for Advance Registration

The AT's 54th Spring Meeting is just a few weeks away and today is the last day to register online. Don't be surprised if the luncheon on the 29th and dinner on the 30th are already sold out - as Section Chair Don Klawiter mentioned in his update earlier this week, "registration continues to run at record levels."

The AT Chair's update also included details on two major events, the Chair's Showcase on Thursday morning, and the Enforcer's Roundtable on Friday morning. IMHO, the participant list for just these 2 programs (out of 50+) says it all:

  • Thomas O. Barnett, newly confirmed Assistant Attorney General of the USDOJ Antitrust Division

  • Robert L. Hubbard, chair of the Multistate Task Force of NAAG

  • Neelie Kroes, the European Commission's Competition Commissioner

  • Deborah Platt Majoras, Chair of the Federal Trade Commission

  • Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit

  • Commissioner William E. Kovacic of the Federal Trade Commission

  • Michael J. Reynolds of Allen & Overy in Brussels, and

  • Jonathan B. Baker, Professor of Law at the Washington College of Law at American University, and former chief economist at the Federal Trade Commission, and economist at the Antitrust Division


Congratulations to Heather Schneider of Columbia Law School!

The AT's 2005-2006 writing competition winner is Heather Schneider, a 3L at Columbia Law School. Read more about her great accomplishment and her winning article, "An Antitrust Tying Analysis of Microsoft's Security Software Products."


The Supreme Court's Antitrust Docket - Part II

As mentioned previously, the Supreme Court considered a couple cases with antitrust issues during this term and recently made available the slip opinions for Illinois Tool Works v. Independent Ink and Texaco v. Dagher.

In Illinois Tool Works, which argued that a per se presumption of market power for patented products was unwarranted, the Court held:

Because a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.
In Dagher, which alleged illegal price fixing by Equilon, the joint venture of Shell & Texaco, the Court held:

It is not per se illegal under §1 of the Sherman Act for a lawful,
economically integrated joint venture to set the prices at which it sells its products. . . Equilon’s pricing policy may be price fixing in a literal sense, but it is not price fixing in the antitrust sense.
A third case considering the enforceability of arbitration clauses in disputed contracts, Buckeye Check Cashing v. Cardegna, is of particular interest in the broader consumer protection arena. There, the Supreme Court reiterated the severability doctrine established in Prima Paint, holding:

Regardless of whether it is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court.
I am looking forward to the Consumer Protection Committee's panel at the AT spring meeting that will consider recent Class Action reforms (that may also be affected by waivers in consumer ADR clauses).

And you wonder who really wins these writing competitions? ;-)