AEP President, Robert H. Bork, Jr., joined Washington Legal Foundation in a discussion on "Antitrust Paradox" Redux: A Market Competition Policy Back at War with Itself. Watch in the link below. 

Robert H. Bork, Jr., discusses his father’s seminal work – The Antitrust Paradox – with CEI’s Jessica Melugin and Iain Murray, as well as Section 230, Judge Bork’s distinction between vertical and horizontal mergers, and the “piling on” by state AGs against targeted companies like Google and Facebook.

Learn more and order your copy of The Antitrust Paradox here.

On April 21, 2021, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a teleforum titled "The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr." Judge Robert H. Bork's famous work, The Antitrust Paradox, has been republished so that the new generation of general practitioners and antitrust thinkers alike can bring his work to bear on their own. Senator Mike Lee, who wrote the republished edition's foreword, and Robert Bork, Jr., discussed the book, the present state of antitrust issues, and more.

Featuring: 

• Robert H. Bork, Jr., President, The Bork Foundation; President, Antitrust Education Project
• Sen. Mike Lee, United States Senate, Utah
• Moderator: Dean Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society 

​In this era of antitrust overdrive, what strategies can overcome overzealous regulators and unsympathetic judges?
 
Many of the elements in Qualcomm’s victory over a Federal Trade Commission lawsuit are peculiar to that Gordian knot of a case. But there are some takeaways from Qualcomm’s experience that any business can adapt.
 
Qualcomm General Counsel Donald J. Rosenberg highlighted some of these elements in a recent Law 360 interview. Here are some of the takeaways we see from that interview:
 

1. Be prepared well in advance, anticipating challenges to come through long-term planning. This is especially important in a time when regulators and judges are applying exotic new theories to antitrust law.
   
   
2. Message early, often and consistently. In the case of Qualcomm, it highlighted its role as an “outsourced innovation lab” that supported technological development for much of the rest of the industry.
   
   
3. Be prepared for the long fight. “You have to always think about the possibility of losing or not completely winning at the district level,” Rosenberg said. “Making sure you have the right record and basis for the appellate review, which in this case worked spectacularly well.”
   
   
4. Keep it simple. Thomas C. Goldstein of Goldstein & Russell, brought in for the appeal, said he based his approach on a simple proposition:
   
   “Antitrust law is intended to protect consumers, not competitors. And the FTC just had no theory, and the district court had no findings, about how Qualcomm’s licensing practices harmed consumers.”

 
All of this may seem basic, but many have stumbled past the basics on their way to stumbling in court. As the U.S. Senate debates radical changes to antitrust law from both the left and the right, every corporation will need the kind of focus and discipline Qualcomm showed.

This morning, several Republican senators in the Senate Commerce Committee hearing sounded sympathetic to Lina Khan’s nomination to serve on the Federal Trade Commission. Many on the right are so cheesed off at “woke” corporations that they seem ready to sign on to a radically progressive take on antitrust law.
 
Kudos then to Jeffrey Westling, a fellow at R Street, who nails it in an incisive article explaining exactly what is wrong with Sen. Hawley’s, “The Trust Busting for the 21st Century Act.”
 
This bill would amend the Sherman Act to exclude the need for defining a given market in specific circumstances, force defendants to show that commercially reasonable alternatives didn’t exist for anti-competitive conduct, and eliminate the Consumer Welfare Standard in favor of protecting economic competitors.
 
Westling takes care to delineate the careful way the law is currently used by courts to examine a firm’s conduct and the market it serves to determine if an anti-competitive harm has occurred.
 
The money quote:
 
The proposal would arbitrarily change the standard from focusing on consumer welfare to protecting economic competition, a rebranding that carries little legal benefit and serves purely political and rhetorical ends. Current jurisprudence already carefully examines whether competition is harmed. As the U.S. Supreme Court has explained, the “law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. It does so not out of solicitude for private concerns but out of concern for the public interest.”
 
So far, this is too much for even conservative senators who would use antitrust law to bludgeon companies they don’t like. As emotions boil over, it will take cool intellects to stop the momentum of a left-right coalition that wants to create a nebulous standard that would allow government to control business.
 
In this morning’s hearing, Sen. Mike Lee said that the elements are “already in place” in current antitrust law to protect the public. All that’s needed, he said, is to apply “the right facts, evidence and cases” under the Consumer Welfare Standard. Let us hope Republicans listen to Mike Lee instead of the siren call of Josh Hawley’s progressive approach.

​Is Sen. Josh Hawley’s extreme lurch to the left the first sign that the Republican Party is returning to the progressive populism of Teddy Roosevelt in his Bull Moose incarnation? Or is Hawley just a fist-bumping outlier?
 

• Like a man swatting at a fly with a loaded shotgun, Hawley’s irritation at woke corporations has led him to propose a basket of radical, anti-business proposals in his “Trust-Busting for the Twenty-First Century Act.” It is a basket of proposals that are big government personified, aiming at social media companies but giving the government sweeping oversight of all American business. Elizabeth Warren, you’ve just been one-upped … by Josh Hawley!

 
What would the senator from Missouri do?
 

• Hawley would ban mergers and acquisitions for firms with a market cap of over $100 billion. Hawley is aiming at Amazon, Google, Apple and Facebook. But he is also subjecting ExxonMobil, Procter & Gamble, Berkshire Hathaway, Johnson & Johnson, Bank of America, Walt Disney, Pepsi-Co, Cisco Systems and dozens of other corporations to a rule in which they are essentially unable to acquire anything new.

 
This is not a recipe for more competition. It is a recipe for the fossilization of American capitalism.
 

• Hawley would also lower the threshold for prosecution under existing federal antitrust laws, replacing the prevalent “consumer harm” standard with one that “protects competition.”

 
This is a neo-Brandesian move that Lina Khan and Elizabeth Warren would applaud (if they weren’t afraid of the cooties that come for progressives mentioned in the same breath as Josh Hawley). The senator’s legislation jettisons the Consumer Welfare Standard that has anchored antitrust law for almost a half century, and returns us back to the subjectivism of past jurisprudence.
 

• Hawley would require companies that lose federal antitrust lawsuits to “forfeit all their profits resulting from monopolistic conduct.” This is a corporate death penalty. With punishment that Draconian, expect corporate executives every morning to politely ask regulators and the politicians who control them how high they should jump. If Hawley’s bill is to strike back at “woke” corporations, then his bill is an own-goal.

 

• And finally, Hawley would give the Federal Trade Commission new power to designate and regulate “dominant digital firms” in different online markets. In the name of opening up more space for conservative voices, Hawley would subject social media companies to regulation by Biden-appointed Democrats. If you dislike the restrictive view some social media companies take toward conservatives, wait until you put them in a state of perpetual investigation and potential prosecution by woke politicians and regulators in Washington, D.C.

 
Taken together, this is a sweeping assumption of government power that would be perfectly in sync with the socialist direction of AOC and the ultra-progressive dreams of the Biden Administration. Is Hawley a harbinger of things to come? Or is he fist-bumping his way to irrelevance?
 
Whatever the answer, his “Trust-Busting for the Twenty-First Century Act” shows the extent to which many so-called conservatives in Congress have lost touch with conservative thought. To paraphrase Jeff Foxworthy, if your solution to big, powerful companies is even bigger and more powerful government, you just might be a progressive.