Clarification, Privacy, Transparency Called for in US Antitrust Laws
Antitrust laws need clarification and U.S. patent laws need to be reformed, especially because there's more economic evidence available worldwide, economists and antitrust lawyers said at a George Mason Law Review antitrust event Thursday. Some also sought more transparency and privacy protections, and a boost in the number of people working on antitrust cases. Panelists touted the superiority of U.S. antitrust laws.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The U.S. is viewed as a model and leader on antitrust laws, said FTC Office of International Affairs Director Randolph Tritell, because the nation was involved in antitrust laws before this type of law became common internationally in the 1990s. The FTC and Justice Department have worked together to streamline the waiver process, and the FTC played a major role in creating the safeguards related to transactions, Tritell said. FTC Chairwoman Edith Ramirez plays a key role in ensuring the critical processes used in deal review are fair in actuality and in perception, as did her predecessors, he said.
A challenge with antitrust law is that there's no clear definition of what constitutes a noncompetition goal, Baker Botts Senior Counsel James Rill said. “This is an issue that is permeating the world” because every jurisdiction has varied trade concerns and goals, he said. It’s not clear when a transaction or trade deal is an issue of foreign policy or economic policy, Rill said. “If there is going to be a noncompetition result, let’s call it that,” he said. “The second essential principle is one of transparency. If you’re going to have a noncompetition result, let it be public.”
“U.S. laws are pretty transparent, but there are some areas that could use some clarity,” said General Electric Senior Counsel-Competition Law and Compliance Aimee Imundo. There has been a “drumbeat” for more clarity on Section 5 of the FTC Act, which allows the agency to “go after unfair competition,” because some people think the agency could abuse the provision's “open endedness,” Imundo said. “I don’t think it has been abused,” she said, “but I would like to see it clarified.” Another clarification Imundo said she would like is related to proposed whistleblower legislation that she said would “make a mess of the efforts” companies have taken to “foster strong cultures of compliance.”
The EU has seen private antitrust actions “mushroom” in the past few years, George Mason University Law professor Damien Geradin said. Reena Gambhir, a partner at Hausfeld, said there have been 59 private anti-damage claims thus far in 2015. China’s antitrust law has been in effect for only six years and is still transitioning, said Elizabeth Wang, principal at Charles River Associates. “China is heading down this road of patents,” Stephen Harris of Winston & Strawn said.
The EU has been reluctant to use economics to protect the competitive process, because economics is seen as a problem that can’t be solved, or one where it’s “hard to distinguish right from wrong,” Compass Lexecon Europe Senior Managing Director Jorge Padilla said. “Economic thinking and research is becoming increasingly influential in the formation of antitrust policy and antitrust enforcement,” Subramaniam Ramanarayanan of NERA Economic Consulting said. The FTC still protects the competitive process even though there's an increased reliance on economic evidence, he said. “There are clear benefits to uniformity in competition law across regimes, however differences in assumptions and circumstances can lead to different optimal antitrust rules even if objectives and understanding of economic principles are shared.”
“We take it for granted in the U.S. that antitrust lawyers are economically informed,” University of Florida Levin College of Law professor Daniel Sokol said. Antitrust has become boring to the larger political community because it’s so technocratic, he said. Antitrust laws and policies are misused less in the U.S. than in other jurisdictions, because America has safeguards and due process in place, Sokol said. But antitrust laws in the U.S. are weakened when it comes to consumer protection, he said, saying the FTC doesn’t always go far enough to promote competition.
“Intellectual changes affect competition laws,” said William Kovacic, ex-FTC chairman and current global competition professor of law and policy at the George Washington University Law School. “Made in China now means top-of-the-line electronic goods," he said. Over time, other jurisdictions will go through similar transformations, he said.