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Antitrust Roundtable

An update with Blecher Collins & Pepperman, Sidley Austin, and Joseph Saveri Law Firm.

September 2016


Maxwell Blecher

Maxwell Blecher, the founding partner of Blecher Collins & Pepperman in Los Angeles, has litigated cases resulting in precedent-setting decisions in federal and state courts throughout the U.S. He is a Fellow of the American College of Trial Lawyers and of the American Board of Trial Advocates. In 2000, the California State Bar named him Antitrust Lawyer of the Year. He is the recipient of Legal Aid Foundation of Los Angeles’s 2006 Maynard Toll Award.
Peter K. Huston

Peter K. Huston is an antitrust and white collar partner in the San Francisco office of Sidley Austin LLP. He received a California Lawyer Attorney of the Year (CLAY) award for corporate antitrust in 2013 and was acknowledged as one of the Top 100 Lawyers in California by the Daily Journal in 2012. Prior to joining Sidley Austin he was the assistant chief of the San Francisco office of the U.S. DOJ’s Antitrust Division and lead counsel on criminal and civil antitrust trials.
Joseph Saveri

Joseph Saveri, one of the nation’s premier plaintiffs antitrust lawyers, represents business owners, entrepreneurs, executives, public officials, and consumers in antitrust, class action, and other complex litigation. Joe has more than 25 years’ experience handling such matters, including cases involving financial services, computers, consumer electronics, labor, manufacturing, agricultural products, industrial inputs, and pharmaceuticals. He founded the Joseph Saveri Law Firm in 2012.

The 2016 presidential election is sprinting down its homestretch. Stark policy differences between the two front-runners, Hillary Clinton and Donald Trump, raise many questions about the future of antitrust enforcement. But it is Justice Antonin Scalia’s unfilled seat that is giving practitioners pause to consider the immense significance of this election: Will the next president transform the ideological balance of the U.S. Supreme Court? Our panel of experts weighs in on these issues as well as recent developments in antitrust litigation involving class certification, joint ventures, and hub-and-spoke conspiracies.

California Lawyer met with Maxwell Blecher of Blecher Collins & Pepperman, Peter K. Huston of Sidley Austin, and Joseph Saveri of Joseph Saveri Law Firm.

MODERATOR: What antitrust issues are making the rounds this election cycle? What will antitrust enforcement look like under a Clinton or Trump administration?

JOSEPH SAVERI: There are antitrust issues which are squarely addressed in the Democratic Party platform this election cycle. For example, there is a pretty explicit recognition that large corporations have concentrated their control over markets, which ties in to the broader idea that the deck is stacked against certain Americans. The platform views market concentration as posing a fundamental threat to American democracy. To me, that sounds like Teddy Roosevelt, Robert La Follete and others holding to traditional ideas underlying the antitrust laws. The recognition that there is a political component of competition laws is a pretty powerful idea.

The Democratic Party platform also has clear policy goals on tying arrangements, price-fixing, exclusionary conduct, and recognition of President Obama’s executive order with respect to those subjects. To what extent their platform would be implemented if Hillary Clinton were to win is another question altogether.

On the other hand, I think the Republican Party platform is pretty silent on the antitrust front. All we know is that Donald Trump likes things that are really huge.

In terms of general broad policy parameters, it seems that competition policy will be impacted by the election.

PETER HUSTON: We have not heard a lot about antitrust on the campaign trail. That is not surprising.  Antitrust never gets the limelight in presidential election cycles. I suspect that even in the most high-minded of campaigns, it’s too cerebral and wonky to get a lot of airtime.  And certainly in this climate, with the campaign being fought largely with invective and emotional appeals, I don’t think antitrust issues really stand a chance. Secretary Clinton did complain about the price increase of the EpiPen recently. To the extent that is based on a lack of competition that could be considered an antitrust issue.

If Hillary Clinton is to prevail, I expect that antitrust enforcement will largely be unchanged from the Obama administration. That said, it’s pretty clear that Bernie Sanders and his supporters really did affect the Democratic Party’s platform, including the parts that Joe [Saveri] mentioned.

The bigger question is what will happen at the U.S. Supreme Court and lower courts because antitrust law is largely judge-made law. The enforcers can move the needle a little bit, but antitrust is so mature and so essentially stable that it is really impossible to turn the ship on a dime. So a candidate, once they win, can really affect the practice area by appointing judges. For example, Senator Klobuchar, the ranking member of the subcommittee on antitrust, competition policy and consumer rights is rumored to be on Hillary Clinton’s Supreme Court short list. If she were to be appointed, I suspect the pharmaceutical companies would not be too pleased. She’s been very vocal in her criticisms of that industry.

MAXWELL BLECHER: The election will affect antitrust in two different ways. The first is you are going to have a new administration. In the unlikely event that Donald Trump wins, I think we can expect that the Antitrust Division will be essentially closed. But the more probable outcome is that Hillary Clinton will win, and on that I agree completely with Peter [Huston]. I don’t think we are going to see any daring or new changes to enforcement at the government level.  President Obama has done a pretty good job of being active in the merger area. That is important, but it is not as important as getting some modifications to the existing state of antitrust law which has seriously diminished the ability to correct trade restraints.

So that brings me to the second part of what the election does, and that is the president stuffs the Supreme Court with judges. To begin with, I think the Republicans will rue the day they didn’t confirm Merrick Garland. Because Judge Garland strikes me, if you look at his track record, as a pretty middle-of-the-road person. The dominant probability is that Hillary Clinton will be compelled by the Sanders group to appoint someone more liberal and more favorable to antitrust enforcement.

In addition, in the next four years, it’s likely we are going to have additional appointments to the Supreme Court. So the likelihood is that we are going to wind up for the first time since the 1960s with a liberal court that could change things. That is a significant prospect of the election.

Additionally, the president gets to appoint dozens and dozens of lower court judges, which in a sense is more important than the Supreme Court because most cases do not ever get to the Supreme Court. They get decided by the three-judge panels in the various circuits. If the Democrats are successful in changing the balance of power in the circuits, I think we can expect to see some changes in the practice area.

So while it’s interesting to talk about preventing concentration, antitrust needs to get revitalized. This election and the years that will follow it offer us some hope that there can be meaningful antitrust enforcement in terms of restraints of trade and monopolization, which in large measure are not being enforced at all today.

SAVERI: What happens to the Senate in this cycle is also important. President Obama has had a number of judges whose appointments or nominations have languished in the Senate because of the political dysfunction. If that gets reversed that’s going to mark a significant change.

Antitrust law is going through a generational change. Even now, for the first time in a long time, antitrust plaintiffs have won at the Supreme Court level. That broke a string of 15 or so cases. That would presumably accelerate more quickly with a new Democratic administration, both in terms of the selection of cases that are going up and how they are resolved at the Supreme Court. The shift is not going to happen overnight. It will likely take another generation, but it is going to happen.

HUSTON: I think it’s anybody’s guess what Trump would do with antitrust enforcement. I am not convinced that he would shut it down. The one time I can remember him raising antitrust on the campaign trail, he was threatening to lower the boom on Amazon.  So that leads me to believe he thinks there’s some value to antitrust law. Although, to be candid, there didn’t appear to be any substance behind that. It seemed he was upset with The Washington Post which Amazon’s Jeff Bezos owns. So that might have been the motivation behind that statement.

SAVERI: It is frightening when someone running for President of the United States implies or suggests that he would use the regulatory strength of the government to punish or impact someone or a corporate entity that he has some bone to pick with.

HUSTON:  I agree. And it raises another issue: to what extent is antitrust enforcement political? Over the past many years we have been in an environment where it is really apolitical. Certainly when I was at the Antitrust Division, I never got any pressure from any political type to put my thumb on the scale one way or the other.

That’s not to say it’s never happened.  There have been several instances over the years where a new administration that has changed the course of an investigation or let their foot off the gas with respect to something that the staff wants to pursue. So you do have situations where the political party that’s in power can affect antitrust enforcement, but by and large, antitrust has been pretty apolitical. Over the last 30 years, we have seen economics really infused into antitrust law, and that has a moderating influence and that will continue.

BLECHER: I think we need to recognize that the government is really a very small component of antitrust. The overwhelming number of cases and decisions in antitrust law are made in private litigation, and that’s why the appointment of the judges is so critical.  Very few cases wind up in the Supreme Court, but if you look at the cases at the district court level, which do mostly wind up at the court of appeals, that’s where there’s influence. Stuffing courts with judges that have a pro-antitrust bend will make an enormous difference in the outcome of cases.

SAVERI: That is right, and it is not just about substantive antitrust doctrine. It is about the way many of the procedural rules develop—what happens to the application of Twombly and pleading standards; Rule 56 and summary judgment standards; class actions and Rule 23 requirements. So how courts—mainly trial courts—deal with those has a lot to do with the strength or the weakness of the efficacy of the private antitrust remedy. Who gets to appoint the judges has a lot to do with that.

HUSTON: It is remarkable how important this election is to the Supreme Court. We have an open seat right now, but there are three other justices who may not be on the Court much longer:  Justice Breyer is 78, Justice Kennedy is 80 and Justice Ginsburg is 83. It is possible that the next president will select four justices in the first term, and that’s huge. Whether a significantly altered Court has an effect on actual antitrust substance is another question, but it’s clearly a major issue in this presidential campaign. I suspect there are many people supporting their chosen candidates largely on the Supreme Court issue.

MODERATOR: What about the regulatory side? What changes are afoot in the antitrust guard at the FTC and DOJ?

SAVERI: Historically, the FTC has been relatively immune or protected from political changes in the White House. I expect the FTC will maintain its focus on particular issues. For example, reverse payments and drug pricing.

HUSTON: Yes, the FTC is at least on paper an independent agency. No more than three Commissioners can be of the same party and the terms are staggered which immunizes it, to a certain extent, from the effects of political winds. The real ability of a new president to quickly shape enforcement comes with the selection of an Assistant Attorney General in charge of the Antitrust Division. Who the next president selects for that position could have an impact.

MODERATOR: What personalities do you imagine seeing in that role in a Trump or Clinton administration?

HUSTON: That’s a good question. It is difficult to predict who Donald Trump would appoint. In a Hillary Clinton administration, you would see someone in that role who is in the mainstream of antitrust enforcement. And I suspect you would see a continuation of the Obama administration’s enforcement.

MODERATOR: Visa v. Osborn is pending before the U.S. Supreme Court. Do you think it will clarify when joint ventures cross the line and become illegal conspiracies?

HUSTON: It will be very interesting to see what the Supreme Court does with this case. The Court weighs in on antitrust rarely, and they have accepted a petition to decide a case having to do with joint ventures, a very gray area of antitrust law. In a free market, dynamic economy like we have, economic actors can come up with many different ways of conducting themselves, and that can sometimes create a real challenge for antitrust lawyers to try to figure out when a joint venture or a trade association crosses the line to something that is unlawful.

Certainly trade associations and joint ventures by themselves are fine. Clearly they are procompetitive and are in most cases good for consumers and society. Joint research, industry standards, networks—these things are great for consumers. So the courts have to be very careful about imposing rules that would chill that sort of behavior.

BLECHER: We need to keep a very close eye on Visa, 136 S. Ct. 2543 (2016). This was certiorari granted by an equally divided Court absent Justice Scalia. I think it’s the first antitrust case in which certiorari has been granted since he passed. The Visa v. Osborn and The Medical Center at Elizabeth Place v. Atrium Health System, 817 F.3d 934 (6th Cir. 2016), cases both suggest some relaxation of the rigidity of Twombly, which has characterized most of the appellate decisions in antitrust over the last decade.

Now, a grant of certiorari in Visa is equivocal and it can be read narrowly so that you look at issues of association rules and governance rules as a matter of substantive antitrust law, or it can be construed to be broad enough—because it refers to pleading the elements of a conspiracy—that it can be an occasion to revisit what Twombly means, because the courts have simply been using it as an excuse to get rid of nasty antitrust cases.

Visa is a sleeper case. Nobody’s talking about it very much, but it could evolve to be monumental if the Court understands that Twombly needs to be restricted. It will be very interesting to see what an evenly divided Supreme Court is going to do with it.

SAVERI: It would be strange to use Visa to address Twombly standards considering it is a joint venture case. Review of the Copperweld doctrine would be significant. Copperweld could be expanded more generally to cases where you’ve got separate entities and the issue is what facts would be sufficient to state a claim for a horizontal or vertical agreement.

I agree that Visa is a sleeper case. There are many different issues that run through these joint venture cases. But I think this might be a case where the Court takes a look again at Copperweld. American Needle v. National Football League, 560 U.S. 183 (2010), was one of these other plaintiff wins, and it was a joint venture case. Remarkably, it seems to me that this is a place where the Supreme Court wants to get involved.

HUSTON: It is possible that because Visa was decided on the pleadings that it will go to Twombly. But I get the impression that the Supreme Court took it to talk about these joint venture issues. It would be a good opportunity for the Court to really make it clear that joint ventures and trade associations have a very positive impact on the economy and that there’s a real danger if we set up rules that chill that sort of behavior too much.

Whether this is a political issue or not, I do not know.  Joe [Saveri] mentioned American Needle.  I think that was a unanimous opinion going for the plaintiffs in the joint venture sphere.  If you look back further to Texaco Inc. v. Dagher, 547 U.S. 1 (2006), it was unanimous going the other way. When it comes to joint ventures, I do not see a traditional liberal, conservative or pro-plaintiff, pro-defendant angle.

BLECHER: Medical Center at Elizabeth Place presents issues that are a little less pressing than Visa, but it focuses on whether restraining conduct is that of a single entity or multiple actors, which is the same general issue that Peter and Joe are saying Visa presents.

I don’t know that you can decide those issues as a straight matter of law because they are so fact-intensive.  I don’t think that either case in that context presents a novel legal issue. The case I think will turn on what the Court decides the actual facts are.

SAVERI: That’s the puzzling thing to me about these joint venture cases—they are really fact-specific. They have to do with the nature of the relationships with the parties before or after the combination.

Copperweld talks about looking at substance over form. When you apply these rules to these cases, they are inherently fact-specific. So it is really hard to discern an important novel legal issue that might be resolved to clarify the rules on joint ventures. These cases have to be considered on a case-by-case basis because of the fact-specific nature of each one of these combinations.

BLECHER: Doesn’t that cause you to wonder why an equally divided Supreme Court would grant certiorari in Visa?  Why didn’t they just leave it alone? The lower court decided as a factual matter that there was concerted rather than single-entity activity. It is perhaps wishful thinking, but I am hopeful that they are looking at a broader issue—that this case presented the first opportunity that they had to look at the old subject of pleading antitrust violations.

SAVERI: This has to do with the idiosyncratic nature of how the Supreme Court grants certiorari and how these cases are decided.  When the Court granted cert in Dagher and American Needle, practitioners were unsure about what the Court was going to do. They ended up with very narrow decisions. Maybe this case will be different, but I suspect it will be a unanimous decision on a relatively narrow ground, and we’ll be left scratching our heads a little bit.

MODERATOR: In light of these cases, how are you advising joint venture clients?

HUSTON: In my experience, it is almost never easy when clients come to you with a joint venture issue.  It is always fact-specific, and you have to get into the weeds. The clients are rarely satisfied with the answer you give them because it is rarely a black-and-white answer.

SAVERI: How optimistic are you that the Supreme Court is going to give you a tool that will help you advise your clients in that context?

HUSTON: If they reverse the D.C. Circuit and say that what Visa and MasterCard and the banks were doing is normal joint venture behavior, that will give folks who are counseling joint ventures something to hang their hat on with respect to what’s allowed and what’s not allowed.

MODERATOR: What are the latest developments in U.S. v. Apple, 791 F.3d 290 (2d Cir. 2016), and other Sherman Act section 1 cases that seem to involve both horizontal and vertical aspects?

BLECHER: We haven’t made much progress in this area since the time I first started practicing, which was in the biblical days. This area of distinguishing horizontal and vertical boycotts is all a semantic jungle. Brandeis refers to it as the “tyranny of labels.” It stems from the obsession we have to put things in little boxes—in our case, “per se” or “rule of reason” boxes; “vertical” or “horizontal” boxes; “hub” and “spoke” boxes. If you can’t prove that a price-fixing agreement or group boycott is anticompetitive, then you should switch professions. There’s nothing really magical about these labels anymore, and the inquiry should be whether or not the particular set of facts creates an unreasonable restraint. Giving it labels is nonsense.

There’s nothing remarkable about Apple. I don’t see how on that set of facts, as extreme as they were, anybody could say that it didn’t restrain trade. It set out to restrain trade, and it restrained trade.  So what’s remarkable about the Second Circuit saying, Gee, the judge decided this correctly?

SAVERI: I agree, Apple is not remarkable. Frankly, I think Apple’s attempt to argue that this wasn’t a price-fixing conspiracy was heroic. The court said that to accept that approach would basically upset settled American antitrust jurisprudence.

HUSTON: When we were here last year we were speculating whether the Supreme Court would take Apple. They didn’t, but I, for one, thought that Apple had a pretty good chance of getting the Supreme Court to take the case because the vertical issues in the case were so front and center. Apple was the sole defendant, and they were not in a horizontal relationship with anyone.

So they were able to pitch the Court that this is a great opportunity to talk more about the rule of reason and the per se standard as they apply to vertical issues. The Court could have taken that opportunity to further that discussion. There have been several cases talking about vertical arrangements and the rule of reason and the per se rule. It’s true those are labels and those are boxes, but they exist for a reason. To have a functioning federal judiciary, courts need some guideposts and rules to follow. Not every judge is an antitrust scholar.

I believe that the per se standard is worthwhile from a judicial economy standpoint, and I also believe that things are going in the right direction away from the per se standard for vertical restraints. There are so many procompetitive reasons for vertical restraints. They are everywhere in the economy. So if you were to start applying the per se rule to these vertical restraints, pretty quickly you would get to a position where you are chilling the kind of behavior you do not want to chill.

SAVERI: Apple strikes me as a bad case for clarifying that issue because the facts were pretty egregious. They easily show an unreasonable restraint.

HUSTON: It comes back to the standard. Apple’s pitch was, regardless of the ultimate result, this case should be challenged under the rule of reason.

BLECHER: Everything is challenged under the rule of reason today as a practical matter, and that’s probably the way it should be. But once you say that, what do you need all the labels for? The labels just confuse everybody. Take the whole fact allocation and submit it to the jury under proper instructions that they are to balance the trade restraint on the one hand against the procompetitive justifications on the other hand and determine whether there’s a violation.

You don’t need great scholars sitting in the district court. You need people who can just figure out what the right instructions are, and then the court of appeals will straighten it out if it goes haywire. But I don’t know what we contribute to juridical wisdom by putting things in boxes and giving them labels.

HUSTON: Well, now you’re putting me in an awkward position. Being primarily a defense lawyer, I should not get in the way of a proposal from a prominent plaintiff’s lawyer to get rid of the per se rule… But in all seriousness, I do think that the per se rule provides shortcuts that make sense if you have a black-and-white, clear-cut, hard-core horizontal price fixing conspiracy.

BLECHER: It is just a matter of excluding evidence. That would not rise to the level of a rule of reason justification. In other words, I think there are other ways to do this than to have this endless stream of cases trying to decide whether something is horizontal or vertical. What difference does it make in Apple? They all got together and they achieved a sin against mankind. They raised the price of books appreciably. What difference does it matter if you analyzed it in this box or that box? Look at the fact picture, and you come to the conclusion that there was a significant restraint of trade that should be remedied.

MODERATOR: What about In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 (9th Cir. 2015), in which the Ninth Circuit affirmed dismissal of a challenge to horizontal adoption of minimum advertised prices?

HUSTON: The majority’s opinion was simple, elegant, and easy to understand. The court basically said that we have horizontal and vertical restraints, and that these restraints are treated very differently—horizontal agreements are often considered per se illegal and vertical restraints are not per se illegal. If you are faced with a given set of facts, you have to figure out what’s vertical and what’s horizontal, and apply the correct standard to it. I understand that Max [Blecher] does not like this paradigm, but it allows courts to quickly and easily get to the right result, as I think the Ninth Circuit did in this case.

BLECHER: This case is a classic illustration of what is wrong with Twombly. We have advanced pleading to the summary judgment stage.

SAVERI: The way I read this decision, I don’t think it really matters whether you characterize this as horizontal or vertical. I agree with Max [Blecher]. This was a case where the court applied Twombly incorrectly. It runs contrary to cases like Continental Ore Co. v. Union Carbide Corp., 370 U.S. 690 (1962). There are enough facts pled here so that the case should proceed to discovery and be resolved on the merits. This case does not say much about horizontal and vertical or hub-and-spoke conspiracies. It really has to do with the sufficiency of the facts pleaded.

BLECHER: It would be a classic case for the court to redefine Twombly. Even the court had said it does not make much difference what you characterize it as or what labels you give it. They simply said there was not a pleading of enough actual material to evidence a conspiracy. That has nothing to do with substance.

MODERATOR: What did you think of Judge Pregerson’s dissent and his analysis that the plus factors should have been viewed as a whole rather than individually?

SAVERI: My view is Judge Pregerson’s dissent was right and the case should have been allowed to proceed. This is Continental Ore. It was right when it was decided in 1962, and it’s made sense since then.  It is consistent with the economic reality of these cases. So that’s one of the ways I think Pregerson was right. I think, frankly, the opinion is wrong.

HUSTON: You get back to what we have been talking about all day, which is how much is enough to get you over the line in a conspiracy case? There is a lot of debate as to what a true plus factor is, but if you string together a bunch of what some courts have called plus factors and attach them to a hub-and-spoke situation, is that enough to cross the line into a conspiracy? In this case, the Ninth Circuit said no. Zero plus zero equals zero. If each plus factor is not amounting to much, then adding them together is not going to help you much.

MODERATOR: How will the Supreme Court’s recent decision in Tyson Foods v. Bouaphakeo, 577 US _ (2016), affect class action practice in the antitrust realm?

SAVERI: At a very general level, the decision validates what has been the practice in antitrust class actions for a long time: in the context of class certification motions, plaintiffs rely extensively on statistical and econometric analysis. The Supreme Court’s decision affirms these statistical or econometric approaches as a way of satisfying the predominance requirement under Rule 23(b)(3).

There may be some indication that the case provides a new framework for evaluating statistical evidence in these cases. It probably is not going to change very much the attacks that the other side makes on the economic analysis. The decision also highlights the importance of the Daubert inquiry at the class certification stage, which is something that happens episodically.

MODERATOR: What are your thoughts on the circuit split with respect to “ascertainability”?

BLECHER: There is a gaping hole in ascertainability for antitrust or related misrepresentation-type violations involving the public.

Let’s suppose there’s a conspiracy of three supermarket chains fixing the price of milk. How would you ascertain who the members of the class are that bought milk? Who would have any record of that? The store wouldn’t have a record; you wouldn’t keep a record. So you have a problem satisfying one of the key elements of Rule 23, which is to ascertain the members of the class.

Tyson suggests that you can sidestep this issue if you have some econometric approach, but it does not confront the real issue, which is ascertainability. Tyson is an illustration of the court system’s flexibility to read around Rule 23, and its flexibility to achieve a result that is appropriate even though it is not sanctioned by the rule.

SAVERI: Ascertainability has come up in a number of other cases. There is a circuit split about what kind of inquiry is required under the Rule 23(a) ascertainability requirement.

HUSTON: The First, Second, Third, Fourth and Eleventh Circuits have all come down on a more rigorous standard for ascertainability. The more relaxed standard seems to be in the minority right now. It will probably have to be resolved by the Supreme Court.

SAVERI: To Max Blecher’s point, I do think it is an incorrect reading of the ascertainability requirement that in order for a plaintiff to certify the class, they have to show that either the defendants or the plaintiffs themselves have records that validate membership in the class. The Seventh Circuit’s decision in Mullins v. Direct Digital, 795 F.3d 654 (7th Cir. 2015) follows a traditional ascertainability analysis which focuses on the class definition—whether there are objective criteria which can be used to identify class members.

I do not think Rule 23(a) was written so that ascertainability requires some additional proof of recordkeeping. But we have a circuit split now. This is an area where the Supreme Court can get involved. And to circle this back to the beginning, I believe the election can have significant consequences for these issues.

HUSTON: I agree that the composition of the Supreme Court could affect this issue. And whether a class is certified or not is not just some minor procedural question. It can be life or death for the case. When a class is certified, nine times out of ten the case settles for big dollars. If the class is not certified, the thing goes away for almost nothing. They are hugely impactful decisions.

Justice Scalia, I think most people would say, was no friend to the class action procedure, and his absence could loom large in the future. Depending on who replaces him, we could see a continuing shift in this area. It is going to be interesting to see what happens after the election and as the Supreme Court gets filled.

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