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Spring Meeting Tech Guide

· March 26, 2019

ABA’s Spring Meeting brings together some of the most brilliant minds in antitrust for a bombardment of overlapping panels on a variety of interesting issues. If you are interested in tech policy and having trouble deciding what to attend, we have you covered at DisCo.

I’m pretty excited about this year’s line-up, which is filled with panels on interesting issues and questions that affect the tech industry. I’ve put together a schedule of the panels I’m most excited about below, along with what I hope to learn. Some panel slots were close calls, and where they are too close a runner-up is listed.

Wednesday March 27

9:00 AM – Digital RPM: Online Sales, Platforms & Algorithms

From Dr. Miles to Colgate and finally Leegin, the United States had a robust debate on resale price maintenance (RPM) that culminated in landmark Supreme Court decisions. Put simply, the treatment of RPM in US courts went from a hard-no to a soft-yes due to evolving thinking on the lost benefits from a per se bar on vertical restraints. The classic example is the shoe salesperson who spends an hour helping a customer try on various shoes only to have that customer walk out and buy from a lower priced online retailer. The shoe company may want to encourage investment in highly trained sales staff and well furnished showrooms, and the best way to do that could be to guarantee that these salespeople won’t lose sales to lower priced retailers who don’t make these investments. This debate was settled largely based on the Supreme Court’s unwillingness to cut off these alternative forms of competition.

However, a new debate on RPM is rising due to European competition authorities that are challenging resale price maintenance practices in digital economies. This debate revolves around manufacturers using sophisticated pricing algorithms that can automatically adapt prices to those of competitors. I’m excited to hear from Thomas Kramler, the head of the Digital Single Market Task Force responsible for the e-commerce sector inquiry, who is one of the driving forces behind Europe’s new look at RPM. This focus led to the consumer electronics, Rossman, and Ping RPM cases, which I’m sure will be discussed. This use of algorithms may make us rethink aspects of RPM case law. I hope the panel will walk us through these concerns.

10:45 AM – Antitrust IP: The Dark Side of the Moon

This panel will tackle questions of what happens when copyright and trademark law intersects with antitrust law. Patent law has traditionally been the go-to topic when discussing issues at the intersection of IP and competition policies, but the 1-800 Contacts case and industry’s interest in replacing the ASCAP/BMI consent decrees have shown that other forms of IP can be just as important. I’m especially looking forward to hearing from Susan Creighton, who was the Director of the FTC’s Bureau of Competition when they released the report “Possible Anticompetitive Barriers to E-Commerce: Contact Lenses.”

Discussion of 1-800 Contacts will be especially interesting. The FTC found that companies were making certain anticompetitive agreements that prevented each other from bidding for search advertising using each other’s company names and other trademarks as search terms. Many of these agreements were the result of trademark litigation settlements, where the accused infringement was using the trademark in search engine advertising auctions. The Tenth Circuit ruled that this use of keywords is not an infringing use. This legal saga has given rise to fascinating debates on the consumer benefits of comparison shopping, the limits of trademark protection, and how IP and competition law interact under these circumstances.

10:45 AM (runner-up) – Vertically Challenged: Vertical Mergers After AT&T/Time Warner

The new agency interest in vertical mergers, driven by Makan Delrahim at the DOJ and Commissioners Rebecca Slaughter and Rohit Chopra at the FTC, affects every sector. If intellectual property is not your thing, you can’t go wrong in learning how the panel believes the AT&T/Time Warner decision will impact future vertical merger enforcement. Every panelist is a former government enforcer, and Dennis Carlton was AT&T’s expert witness. If I wasn’t such a big fan of the intersection of competition and IP law, I’d be here —  especially considering a renewed political focus on vertical mergers by politicians such as Elizabeth Warren.

1:45 PM – Should Antitrust Tame the Global Tech Giants?

While the question is broad, the panel makeup and summary shows that this panel will mainly focus on the tensions between the US and EU’s different approaches to tech companies. The EU has been aggressive in investigating and bringing charges against US-based tech companies, while the US has so far maintained a fact-finding stance (see, e.g., Delrahim’s recent speech). I’m expecting the panel to debate the two approaches, as well as the thorny policy and political implications in the US-EU divide. While I don’t think we will walk away with an answer to this question, the discussion should be enlightening. I’m most looking forward to hearing from Carl Shapiro from Berkeley, who is an expert in antitrust law as applied to digital economies. Prof. Shapiro has recently produced a lot of interesting articles supporting more aggressive enforcement using existing tools, but he is wary of more populist calls to start over under a new policy regime.

3:30 PM – FTC Hearings: Moving the Ball?

The FTC is holding an ongoing set of hearings (the schedule interrupted some by the funding gap) on a broad set of issues with the aim of examining whether current policies need to be changed to adapt to evolving marketplaces. These hearings have a stated goal of looking at whether new market developments require an adjustment of law and policy. The FTC has an important role not only in enforcing competition law, but also shaping policy. One example of the unique position of the FTC in this regard can be found in Section 6 of the FTC Act, which gives the agency special authority to investigate and issue reports and guidance.

These hearings may impact the internal policy considerations of an agency that has a policy mandate. I’m interested to hear this panel’s take on the progress of these hearings, and what they expect to be the outcome. Tech will almost certainly be part of the conversation as well, as it has been a focus of the FTC hearings.

Thursday March 28

8:30 AM – Stifling Innovation: Is It Worse Than Price Fixing?

This debate will discuss a hot topic in tech-focused antitrust policy conversations: harms to innovation. Harm to innovation is a recognized harm under current application of antitrust laws, but there have been debates over how well the agencies are policing this harm in tech. Critics claim that enforcement focuses almost solely on price, while others have argued that non-price harms are well accounted for in modern antitrust enforcement. This debate will approach the discussion from a slightly different angle by discussing just how harmful stifling innovation may be to competition.

This conversation may well extend past discussing specific conduct that harms, and into concerns raised by some of harm to nascent competition – or discouraging new innovators from participating in the first place. This is an interesting topic, and I hope the panel will explore both sides of the debate as it applies to tech.

10:15 AM – Chair’s Showcase: Competition, Social Media and Digital Services

This panel has a monopoly on the 10:15 time slot (assuming a relevant market of 10:15AM) so those interested in tech will be happy to discover it is tech policy-focused. The panel has representatives from French, German, Australian, and US governments who have a role in shaping policy that affects social media and digital content markets. This panel will be a good window into current thinking on competition policy’s role in overseeing the evolving tech markets around the world.

1:30 PM – Big Data: Is It a Big Deal?

One ongoing discussion in competition policy is whether big data requires special analysis, or whether it is best analyzed in the same way other assets of potential competitive significance are. It’s a big topic in competition policy, and I’ve heard it discussed at previous Spring Meetings. However, this panel will discuss potential frameworks and whether or not big data has implications for other competition policy issues. This is an interesting approach, and I’m looking forward to learning from the panel on the topic. I’m especially interested in hearing about the FTC’s current thinking on the topic from Commissioner Noah Phillips.

1:30 PM (runner-up) – Money Isn’t Everything: Non-Price Merger Effects

This panel will continue the morning’s discussion on non-price effects in the merger context. The panel will look at things like potential lost competition over quality and privacy, and will have a balance of EU and US perspectives. Debbie Feinstein, now at Arnold & Porter, oversaw the FTC’s Bureau of Competition during a time where the agency saw some major merger wins, including successful challenges to Sysco/US Foods and Staples/Office Depot.

3:15 PM – Media and Tech Convergence: A Blurred Horizon

The digital economy has provided new distribution methods between content creators and consumers. This disruptive innovation has led to new competitors and areas of competition in media content. The panel will look at how these changes may impact merger analysis and unilateral conduct in media markets. I’m interested to hear Commissioner Rohit Chopra’s take on this topic, and how US enforcers and general are approaching the issue.

3:15 PM (runner-up) – Two-Sided Markets After AMEX: The Unanswered Questions

Last summer’s Amex Supreme Court decision spawned a huge debate among antitrust experts on whether it was rightly decided, and, if it was wrongly decided, how it was wrongly decided. DisCo provided a summary of some of this debate in a previous post. It seems like the antitrust world is not done with this conversation yet. One unanswered question that may come up is whether the decision impacts tech and how. This time slot is the toughest decision of the conference.

3:15 PM (runner-up) – Hot Topics

Tech almost always seems like a hot topic these days, and this excellent panel represents both US and international perspectives. If you aren’t interested in the other two panels, you won’t go wrong attending this panel.

Friday March 29

This half day of panels is dedicated to getting perspectives from government enforcers. While I expect tech topics to be a part of the conversation, the real value of Friday will be in getting a feeling of how government enforcers from around the world are approaching today’s competition policy issues.

Competition

Some, if not all of society’s most useful innovations are the byproduct of competition. In fact, although it may sound counterintuitive, innovation often flourishes when an incumbent is threatened by a new entrant because the threat of losing users to the competition drives product improvement. The Internet and the products and companies it has enabled are no exception; companies need to constantly stay on their toes, as the next startup is ready to knock them down with a better product.