Our Curious Amalgam

American Bar Association

Our Curious Amalgam explores topics in antitrust, competition, consumer protection, data protection, and privacy law around the world with leading experts in those areas. It is an amalgam because it is a group of diverse topics all in one place. It is curious because it gets the experts and asks them in-depth questions.

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391 episodes
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Episodes391

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Apr 5, 2021 · 31 min
#109 When Does Benchmarking Cause Antitrust Anxiety? The Use and Misuse of Competitors' Data
Many industries routinely use data collected from multiple competing companies to develop price, cost and performance benchmarks. But when do benchmarking activities raise antitrust concerns? Co-hosts Alicia Downey and Christina Ma ask John Delacourt, general counsel to an international trade association and co-chair of the Antitrust Law Section's Trade, Sports and Professional Associations Committee, about managing the risks of collective participation in benchmarking programs in an era of heightened antitrust scrutiny and enforcement. Listen to this episode to learn about the right way and the wrong way to collect and use competitors' data. Related Links: DOJ/FTC Statements of Antitrust Enforcement Policy in Health Care (1996) DOJ/FTC Antitrust Guidance for Human Resource Professionals (2016) Hosted by: Alicia Downey, Downey Law LLC and Christina Ma, Wachtell, Lipton, Rosen & Katz
Mar 29, 2021 · 26 min
#108 What's the Hubbub About No-Poach? Recent Antitrust Enforcement in Labor Markets.
There has been growing interest in labor antitrust enforcement, particularly with the DOJ bringing its first criminal no-poach and wage-fixing cases in late 2020 and early 2021. How do we make sense of this vitally important but relatively unsettled area of law? Megan Gerking, a partner at Morrison & Foerster, joins Christina Ma and Sergei Zaslavsky to provide context around the recent enforcement actions and practical guidance on labor antitrust issues. Listen to this episode to learn about where we are, how we got here, and where we are likely to go in no-poach and wage-fixing enforcement. Related Links: DOJ and FTC 2016 Antitrust Guidance for HR Professionals United States v. Jindal indictment United States v. Surgical Care Affiliates, LLC indictment Hosted by: Sergei Zaslavsky, O'Melveny & Myers and Christina Ma, Wachtell, Lipton, Rosen & Katz
Mar 22, 2021 · 36 min
#107 How Far Can You Go? U.S. Merger Enforcement Under Section 2 of the Sherman Act
U.S. merger enforcement has been active in recent years, involving legal challenges pursued under some newer theories. But can it go too far to bring certain challenges under Section 2 of the Sherman Act? Koren Wong-Ervin, partner at Axinn, Veltrop, & Harkrider LLP, and a recognized thought leader in the antitrust bar, speaks with Anora Wang and John Roberti on the critical differences and issues involved in merger challenges brought under Section 2 of the Sherman Act, as compared to Section 7 of the Clayton Act. Listen to this episode to learn about the most recent development in U.S. merger enforcement. Related Links: Douglas H. Ginsburg & Koren Wong-Ervin, Challenging Consummated Mergers Under Section 2, Competition Policy International (May 2020) Our Curious Amalgam, #69 Another Way to Unring the Bell? Private Litigation Challenging Consummated Merger Hosted by: Anora Wang, Davis Wright Tremaine LLP and John Roberti, Allen & Overy LLP
Mar 15, 2021 · 28 min
#106 Is It Time to Rethink Section 230? The Debate Over the Liability Exemption for Internet Platforms
Section 230 of the 1996 federal Communications Decency Act immunizes online platforms from civil liability based on third-party content as well as for removing such content in certain circumstances. Twenty-five years after its enactment, has this immunity gone too far in protecting the behemoth internet companies from accountability and facilitating their pervasive growth and online presence? In this episode, co-hosts Alicia Downey and Christina Ma talk to O'Melveny partner Tod Cohen, a former in-house legal and public policy counsel for a number of prominent social media and e-commerce companies, about the connection between Section 230 and antitrust concerns regarding certain Internet platforms, and why Section 230 has become such a focal point of controversy. Listen to this episode to learn why Section 230 will likely continue to be making headlines in the world of antitrust and consumer protection. Related Links: CDA Section 230: Its Past, Present, and Future Hosted by: Christina Ma, Wachtell, Lipton, Rosen & Katz and Alicia Downey, Downey Law LLC
Mar 8, 2021 · 39 min
#105 How Do We Do Better? Increasing Opportunities for Women in Economic Expert Roles
Measured in absolute numbers, there have been more women attorneys and economists working in the field of antitrust, as compared to one or two decades ago. But is there greater diversity and inclusion as well, especially in leadership roles? Dr. Antara Dutta, Principal Economist at Amazon, Co-Chair of the ABA Antitrust Section's Diversity.Advanced Initiative, speaks with Anora Wang and John Roberti on how to increase opportunities for women in economic expert roles. Listen to this episode to learn about progress and roadblocks in achieving greater diversity and inclusion for attorneys and economists alike. Related Links: Diversity.Advanced Initiative Hosted by: Anora Wang, Davis Wright Tremaine LLP and John Roberti, Allen & Overy LLP
Mar 1, 2021 · 37 min
#104 Have We Figured It Out? Online Privacy and Security in the "New Normal" of Video Conferencing.
The COVID-19 pandemic has forced many aspects of our everyday lives to go virtual, and the surge in demand for videoconferencing technology has come with a variety of problems when it comes to privacy, cybersecurity, and consumer protection. Do we finally have a handle on the problems that came with this "Zoom Boom"? From connectivity and consumer choice to misleading claims of data security and cyber attacks, privacy and cybersecurity experts Claudia Rast and David Turetsky join Kayla Odom and Christina Ma to discuss the gambit of issues we have faced surrounding videoconferencing technology. Listen in to learn more about these issues and about what other issues we might expect to encounter when it comes to the use of videoconferencing platforms. Related Links: FTC Gives Final Approval to Settlement with Zoom over Allegations the Company Misled Consumers about Its Data Security Practices Federal Prosecutors Accuse Zoom Executive of Working with Chinese Government to Surveil Users and Suppress Video Calls Why Insider 'Zoom Bombs' Are So Hard to Stop Hosted by: Christina Ma, Wachtell, Lipton, Rosen & Katz and Kayla Odom, Freitas & Weinberg LLP
Feb 22, 2021 · 37 min
#103 What's Next for Antitrust Enforcement? The Antitrust Section Presidential Transition Report.
The ABA Antitrust Law Section issues a Presidential Transition Report each time a new administration enters the White House. What agenda does the latest Report recommend for the incoming leaders of the antitrust agencies? Transition Report Task Force leaders Rich Parker and Bill MacLeod discuss the highlights from the Report and share their insights with Sergei Zaslavsky and Christina Ma. Listen to this episode to learn about the most important questions facing the antitrust enforcers in the Biden administration, including the future of the consumer welfare standard, merger policy for acquisitions of nascent competitors, and more. Related Links: The Presidential Transition Report Hosted by: Christina Ma, Wachtell, Lipton, Rosen & Katz and Sergei Zaslavsky, O'Melveny & Myers
Feb 15, 2021 · 34 min
#102 What Is the State of the Section? A Midterm Talk With the Section Chair.
Serving as the Chair of the ABA Antitrust Law Section is the culmination of years of hard work and dedicated service to the organization and its members. What has it been like to lead an international association of antitrust and consumer protection lawyers, regulators, economists, and academics during a global pandemic? As the Section gears up for its Virtual Spring Meeting online March 23-26, 2021, Section Chair Gary Zanfagna sat down at the midpoint of his one-year term to talk to co-hosts Alicia Downey and John Roberti about the state of the Section. Listen to this episode to hear Gary's perspectives on the future of antitrust and the Section's role in shaping that future. Related Links: Gary Zanfagna Annual Spring Meeting Hosted by: John Roberti, Allen & Overy LLP and Alicia Downey, Downey Law LLC
Feb 8, 2021 · 39 min
#101 What's Trending? Understanding What To Expect In M&A Competition Law in 2021.
Merger clearance encompasses a major portion of the practice of competition law. What are the coming trends for 2021? Ilene Gotts, one of the deans of the competition bar, joins Christina Ma and John Roberti to discuss the major issues she sees for competition law related to mergers for 2021. Listen to this episode to learn more about the key issues, trends and predictions for antitrust M&A in the next year. Hosted by: John Roberti, Allen & Overy LLP and Christina Ma, Wachtell, Lipton, Rosen & Katz
Feb 1, 2021 · 40 min
#100 What's All The Fuss About? Brexit and UK Competition Law
The UK has finally left the EU and the ambit of EU law. What does this mean for competition law, merger control, subsidy control and competition litigation in the EU and UK? Anneli Howard, a UK barrister and EU law specialist, joins Matthew Hall and John Roberti to discuss the EU-UK Trade and Cooperation Agreement, WTO subsidy rules, Northern Ireland Protocol and the rest of the new legal regime. Listen to this episode to learn more about the present and future for these areas of law in the UK. Related Links: EU-UK Trade and Cooperation Agreement Guidance on the functions of the UK CMA after the end of the transition period Withdrawal of the United Kingdom and EU rules in the field of competition Protocol on Ireland and Northern Ireland WTO subsidy rules UK National Security and Investment Bill Hosted by: John Roberti, Partner, Allen & Overy LLP and Matthew Hall, Partner, McGuireWoods London LLP
Jan 25, 2021 · 32 min
#99 What Are Best Practices for Virtual Litigation? Notes From the Field
Thanks to COVID-19, many courts and government agencies are using computer-based videoconferencing technology to conduct conferences, motion hearings, and even trials online. What are the do's and don'ts for litigating effectively in virtual proceedings, especially in complex antitrust cases involving multiple parties and far-flung witnesses? Lisa Wood, and antitrust practitioner, Co-Chair of the Litigation Department of Foley Hoag LLP, and author of the long-running Notes from the Field column featured in Antitrust Magazine, joins Alicia Downey and John Roberti to discuss what she learned about best practice for virtual litigation from interviews with lawyers and judges across the country as well as the lessons she has learned from her own practice. Listen to this episode to hear about which virtual litigation proceedings are poised to become a permanent feature of complex civil suits and proceedings before the agencies. Related Links: Lisa Wood, Best Practices for Virtual Litigation, Antitrust, Vol. 35, No. 1 (Fall 2020) Hosted by: Alicia Downey and John Roberti
Jan 19, 2021 · 55 min
#98 How Will It Rule? A Panel Discussion on the Supreme Court Argument in AMG Capital Management, LLC v. Federal Trade Commission.
The FTC's enforcement program has long included the remedy of disgorgement, which requires that a defendant found liable return ill-gotten gains. Will the Supreme Court take this authority away? Michael Kades, Tim Muris, Maureen Ohlhausen and John Villafranco join Gerald Stein for a discussion of the Supreme Court's oral argument and what may happen to the FTC's disgorgement. Listen to this special episode to learn more about the future of this important FTC remedy. Related Links: Stein Antitrust Magazine article Muris Antitrust Source Article Luib Antitrust Magazine Article Ohlhausen speech on disgorgement Ohlhausen dissent in Cardinal Health Villafranco Blog Entries on oral argument Hosted by: Gerald Stein, Norton Rose Fulbright LLP
Jan 18, 2021 · 27 min
#97 What Happens to a Prosecution Deferred? DOJ's Approach to Criminal Investigations
The Department of Justice Antitrust Division enjoys many tools to hone its criminal investigations, including many designed to incentivize cooperation from potential defendants. But how do Deferred Prosecution Agreements differ from the leniency program, and when might the Antitrust Division choose to negotiate one? Jon Jacobs, a seasoned antitrust trial lawyer and DOJ alumnus, joins Christina Ma and Matt Harper to examine how Deferred Prosecution Agreements factor into the Antitrust Division's criminal investigation and when Deferred Prosecution Agreements might be expected in the future. Listen to this episode to learn more about Deferred Prosecution Agreements and how the Antitrust Division uses them. Related Links: DOJ Antitrust Division - Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations Hosted by: Christina Ma and Matt Harper
Jan 11, 2021 · 41 min
#96 Can They Really Say That? Product Denigration Under French Antitrust Law
At its most basic, marketing often consists of simply explaining a product's qualities relative to its alternatives. Can this go too far and amount to a competition law infringement? Isabelle de Silva, President of the French Competition Authority (FCA), and Bill Batchelor join John Roberti and Matthew Hall to discuss product denigration by reference to the FCA's cases in the pharma sector. Listen to this episode to learn more about these cases and how to draw the line between illegal disparagement of rivals and factual communication of differences. Related Links: FCA's AMD (Avastin) decision September 2020 FCA's Subutex decision December 2013 FCA's Plavix decision May 2013 FCA's Durogesic decision December 2017 Hosted by: John Roberti and Matthew Hall
Jan 4, 2021 · 48 min
#95 Who Is Ready for 2021? Year in Review: Part 3.
The editorial staff of Our Curious Amalgam is teaming up with substantive ABA Antitrust Law Section committees to summarize the main antitrust and consumer protection events of 2020 and preview the trends to watch in 2021. In Part Three of a three-part series, Legislation, Federal Civil Enforcement, and Exemptions and Immunities committees provide incisive analysis of the key happenings and issues within their respective areas of expertise. Regular Our Curious Amalgam hosts Sergei Zaslavsky, John Roberti, Christina Ma, and Anora Wang, and special guest host, Ricardo Woolery, join to provide commentary and make sense of the year that was. Listen to this episode for a summary of the key antitrust and consumer protection themes of 2020. Related Links: Legislation Committee Federal Civil Enforcement Committee Exemptions and Immunities Committee Hosted by: Sergei Zaslavsky, Anora Wang and Ricardo Woolery, Christina Ma and John Roberti
Dec 31, 2020 · 38 min
#94 Who Is Ready for 2021? Year in Review: Part 2
This past year has been anything but a slowdown in antitrust enforcement around the world and has also put privacy and consumer protection issues in the limelight. What do you need to know? In Part Two of this three-part series, members of the International, Privacy and Information Security, and Consumer Protection committees discuss what they believe to be the key happenings and issues in 2020 and what to expect in 2021. Regular Our Curious Amalgam hosts Sergei Zaslavsky, John Roberti, Christina Ma, Matthew Hall, and Kayla Odom join to provide further context. Listen to this episode for a summary of the key international, privacy, and consumer protection themes of 2020. Related Links: #90 How Do We Respond to the Dilemma? Developing a Data Portability Solution #89 What's the Deal with Data Portability? Understanding the Competition and Privacy Aspects Surrounding the Movement of Data. #86 Can They Really Do That? The Use of Advanced Analytics by Antitrust and Consumer Regulators Hosted by: Sergei Zaslavsky, John Roberti, Christina Ma, Matthew Hall, and Kayla Odom
Dec 28, 2020 · 37 min
#93 Who Is Ready for 2021? Year in Review: Part 1.
The editorial staff of Our Curious Amalgam is teaming up with substantive ABA Antitrust Law Section committees to summarize the main antitrust and consumer protection events of 2020 and preview the trends to watch in 2021. In Part One of a three-part series, Mergers & Acquisitions, Economics, and Insurance and Financial Services committees provide incisive analysis of the key happenings and issues within their respective areas of expertise. Regular Our Curious Amalgam hosts Sergei Zaslavsky, John Roberti, Christina Ma, Tammy Zhu, Alicia Downey, and Anora Wang join to provide commentary and make sense of the year that was. Listen to this episode for a summary of the key antitrust themes of 2020, with a particular emphasis on merger control issues. Related Links: Vertical Merger Guidelines Visa-Plaid Complaint Hosted by: Sergei Zaslavsky, John Roberti, Christina Ma, Tammy Zhu, Alicia Downey and Anora Wang
Dec 21, 2020 · 45 min
#92 How is it Developing? Understanding the Competition Law & Enforcement in Brazil
Brazilian competition law and enforcement regime is among the most active ones around the world, with a well-recognized cartel program and efforts to advocate and develop its law. How does the Brazilian system work and what are the most important elements in Brazil's competition enforcement? The Honorable Commissioner Luiz Hoffmann of Brazil's Administrative Council for Economic Defense (CADE) speaks with John Roberti and Anora Wang on the structure and progress of Brazil's competition enforcement agency. Listen to this episode to learn about one of the most exciting competition jurisdictions. Related Links: Commissioner Luiz Hoffmann, "Hipster Antitrust and the Brazilian Legal System" (in English, published by IBRAC) Commissioner Luiz Hoffmann, contributions to the OECD 2020 Global Forum on Competition regarding abuse of dominance in digital markets (in English) Hosted by: Anora Wang, Davis Wright Tremaine LLP and John Roberti, Allen & Overy
Dec 14, 2020 · 39 min
#91 What Is the State of Things: A Discussion with Colorado State Attorney General Phil Weiser
From mergers to monopolization investigations, state attorneys general are playing a more active role in antitrust enforcement. How are states complementing or filling the gaps in federal antitrust enforcement? Phil Weiser, Colorado Attorney General, joins Tammy Zhu and John Roberti to discuss his office's efforts and strategies to promote competition and protect consumers in Colorado. Listen to this episode to learn more about the interplay between state and federal antitrust enforcement today. Related Links: Press Release on Colorado Attorney General's Challenge and Settlement to the UnitedHealth Group and Davita Merger, June 19, 2019 Prescription Insulin Drug Pricing Report, Colorado Department of Law, November 2020 Press Release on FitTurf Settlement for Misleading Consumers on Automatic Renewal Services, September 23, 2020 Philip J. Weiser, The Enduring Promise of Antitrust Hosted by: Tammy Zhu and John Roberti
Dec 7, 2020 · 30 min
#90 How Do We Respond to the Dilemma? Developing a Data Portability Solution.
The ongoing debate of data portability has produced many unanswered questions, resulting in a need for a more structured analysis of the issues surrounding of the movement of data. How can governments, or various sectors, industries, or companies develop solutions for data portability that encompass the often-competing goals of promoting competition and protecting privacy rights? Internationally-recognized privacy and cybersecurity expert Peter Swire joins Christina Ma and Kayla Odom to discuss his proposed framework for analyzing the issues surrounding the portability of data and evaluating initiatives on portability and other required data transfers. Listen to this episode to learn how, through the use of structured questions, the impact of data portability can be assessed. Related Links: Swire, Peter, The Portability and Other Required Transfers Impact Assessment: Assessing Competition, Privacy, Cybersecurity, and Other Considerations (September 8, 2020). Hosted by: Christina Ma, Wachtell Lipton Rosen & Katz and Kayla Odom, Freitas & Weinberg LLP