#256 Is Crypto a Giant Pump-and-Dump Scheme? The Art of Selling Nothing for Something

It's often said that patent protection rewards innovation and benefits consumers. But are there competition law issues with having "too many" patents? Kate Swisher, an antitrust litigator at White & Case, joins co-hosts Alicia Downey and Lijun Zhang to discuss the tension between patent law and antitrust law in the context of so-called "patent thickets," particularly in the pharmaceutical industry. Listen to this episode to learn how courts are treating claims that obtaining a large number of patents for a single product may be an anticompetitive practice.

With special guest:

Kate Swisher, White & Case LLP

Hosted by:

Alicia Downey, Downey Law LLC and Lijun Zhang, Freshfields Bruckhaus Deringer LLP

The U.S. federal district courts have magistrate judges who are appointed to assist the district court judges and generally oversee first appearances of criminal defendants, set bail, and conduct other administrative duties. But is the role of a magistrate judge different across districts? In a district like Eastern District of Virginia where the trial docket is so fast that it earned the nickname as a “Rocket Docket,” a magistrate judge can make important decisions and have a great impact on the cases there. Judge Lindsey Vaala, the first magistrate judge interviewed by our program, and a long-time active member of the ABA Antitrust Law Section, speaks with Anora Wang and Melissa Maxman on her previous career as an antitrust litigator, her path to the bench, and to the extent that she can speak, her views on current antitrust issues.

With special guest:

The Honorable Judge Lindsey R. Vaala, Magistrate Judge, U.S. District Court for the Eastern District of Virginia

Related Links:

Magistrate Judge Lindsey Vaala Appointment Announcement Nov 2022

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Melissa H. Maxman, Cohen & Gresser LLP

The US antitrust agencies' approach to merger remedies has undergone a significant change under the Biden administration. Remedies are increasingly disfavored. In this episode, Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division, joins Barry Nigro and Jeny Maier to discuss the growing skepticism towards merger remedies by the US antitrust authorities. Listen to this episode to learn more about whether merger remedies remain a viable option in the US and, if so, how parties should approach them given the government’s current hostility toward remedies.

With special guest:

Dan Ducore, former Assistant Director of the Federal Trade Commission's Bureau of Competition Compliance Division

Related Links:

Daniel P. Ducore, "Negotiating Remedies: A Perspective from Various Agencies," Global Competition Review (October 2023)

Hosted by:

Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP and Jeny Maier, Axinn, Veltrop & Harkrider LLP

When are MFNs good and when are they bad? A "most favored nation" (MFN) price requirement ensures that a buyer receives the lowest price that a seller is offering to other buyers. Under U.S. antitrust law, such MFNs are typically viewed as a procompetitive outcome of price bargaining between parties. But recently, the use of MFNs by Amazon's internet retailing platform has been challenged as an anticompetitive business practice. In this episode, Alicia Downey and Barry Nigro talk to economist Tasneem Chipty about the potential competition concerns raised by MFNs generally and platform MFNs specifically. Listen and learn in what circumstances most favored nation requirements might raise antitrust red flags.

With special guest:

Tasneem Chipty, Managing Principal, Chipty Economics

Related Links:

Tasneem Chipty, "Platform MFNs: Can Asking for the Lowest Price Discourage Competition?", Pricing Conduct Committee Newsletter (ABA Antitrust Law Section Jan. 9. 2024)

Hosted by:

Alicia Downey, Downey Law LLC and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

Large amounts of information are collected during merger control and behavioural competition law investigations. What are the personal data protection issues raised? Dan Rupprecht, Director for Europe of iDiscovery Solutions, joins Aaron Yeater and Matthew Hall to discuss the differences between these two types of investigations, why and how the EU/UK and U.S. approaches differ in this area, the technology that is used and the future. Listen to this episode to learn more about protection of personal data when working in these areas.

With special guest:

Dan Rupprecht, Director for Europe, iDiscovery Solutions

Related Links:

European Commission data protection (GDPR)
UK GDPR

Hosted by:

Aaron Yeater, Analysis Group, Inc. and Matthew Hall, McGuireWoods London LLP

In recent years competition agencies in several jurisdictions have undertaken studies to assess the state of competition within their borders. Canada now joins the list. In this episode, co-hosts Alicia Downey and Barry Nigro speak with economist Matthew Osborne about the Canadian Bureau of Competition’s 2023 report, “Competition in Canada from 2000 to 2020: An Economy at a Crossroads.” Listen to this episode to learn about how Matthew and his team analyzed competition across the Canadian economy during a critical decade.

With special guest:

Matthew Osborne, University of Toronto Mississauga

Related Links:

Competition in Canada from 2000 to 2020: An Economy at a Crossroads

More about Matthew Osborne

Hosted by:

Alicia Downey, Downey Law LLC and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP

The UK merger control system provides for voluntary filings but that does not mean parties to deals can hide from the regulator, the UK Competition and Markets Authority (CMA). But how does the CMA's Mergers Intelligence Committee (MIC) identify deals to ask about and review the informal briefing papers which can be submitted by parties hoping to avoid a full filing? Eleni Gouliou, a Director of Mergers at the CMA, who has chaired MIC, joins Anora Wang and Matthew Hall to discuss the work of MIC and its place within the CMA's merger review processes. Listen to this episode to learn more about this area of the CMA's merger control work, which is increasingly important now that the UK is outside the EU merger control regime.

With special guest:

Eleni Gouliou, Director of Mergers, UK Competition and Markets Authority

Related Links:

UK Competition and Markets Authority "Guidance on the CMA's mergers intelligence function" (December 2020)
UK Competition and Markets Authority merger inquiry outcome statistics

Hosted by:

Anora Wang, Arnold & Porter Kaye Scholer LLP and Matthew Hall, McGuireWoods London LLP

The interplay between patent law and competition law has been a consistent focus for the antitrust agencies over the years, most notably in the pharmaceutical sector between brand and generic drugs. But will the FTC take a new approach to dealing with branded drug company patents listed in the FDA's "Orange Book"? Mika Ikeda, Competition Counsel at Johnson & Johnson joins Jaclyn Phillips and Jeny Maier to discuss the FTC's historical interest in Orange Book listings and what actions the agency may take in the future. Listen to this episode to learn more about FTC policy related to competition in drug markets, and why the "Orange Book" is orange!

With special guest:

Mika Ikeda, Senior Counsel, Competition Law, Johnson & Johnson

Related Links:

Federal Trade Commission Statement Concerning Brand Drug Manufacturers’
Improper Listing of Patents in the Orange Book (Sept. 14, 2023)

Hosted by:

Jaclyn Phillips, White & Case LLP and Jeny Maier, Axinn, Veltrop & Harkrider LLP

The hype around cryptocurrency is at an all-time high, as the industry makes a major push to go mainstream. But is it all a giant pump-and-dump scheme? Software engineer and celebrated crypto critic Molly White and the SEC's Associate Director of Enforcement Carolyn Welshhans join Anant Raut and Aaron Yeater for a braintwister of a discussion on such topics as what is money; if blockchain is so secure how does so much crypto keep getting stolen; and is crypto a giant scam. Listen to this episode to learn more about whether ordinary investors will be left holding the bag when the crypto bros cash out.

With special guests:

Molly White, Software Engineer and Founder, Web3 is Going Just Great and Carolyn Welshhans, Associate Director of the Division of Enforcement, Securities and Exchange Commission

Related Links:

Web 3 is Going Just Great

Hosted by:

Anant Raut and Aaron Yeater, Analysis Group, Inc.

Self-preferencing by digital platforms has become ubiquitous in today's antitrust discourse. But has enough focus been put on economic analysis to understand the procompetitive benefits of self-preferencing conduct? Emilie Feyler and Dr. Veronica Postal, Senior Consultants at NERA Economic Consulting, speak with Jaclyn Phillips and Barry Nigro about their assessment of the economic literature on self-preferencing. Listen to this episode to learn more about what the empirical research has to say and if there are still gaps to fill.

With special guests:

Emilie Feyler, Senior Consultant, NERA Economic Consulting and Dr. Veronica Postal, Senior Consultant, NERA Economic Consulting

Related Links:

Can Self-Preferencing Algorithms Be Procompetitive?

Hosted by:

Jaclyn Phillips, White & Case LLP and Barry Nigro, Fried, Frank, Harris, Shriver & Jacobson LLP