The Battle with Big Tech: Analyzing Antitrust Enforcement and Proposed Reforms

Fordham Journal of Corporate & Financial Law Volume 28 Issue 2 Article 1 2023 The Battle with Big Tech: Analyzing Antitrust Enforcement and Proposed Reforms Youngjae Lee Fordham University School of Law Morgan Hagenbuch Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/jcfl Part of the Antitrust and Trade Regulation Commons, Banking and Finance Law Commons, Business Administration, Management, and Operations Commons, Business Law, Public Responsibility, and Ethics Commons, and the Business Organizations Law Commons Recommended Citation Symposium, The Battle with Big Tech: Analyzing Antitrust Enforcement and Proposed Reforms, 28 Fordham J. Corp. & Fin. L. 293 (2023). This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Journal of Corporate & Financial Law by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . SYMPOSIUM THE BATTLE WITH BIG TECH: ANALYZING ANTITRUST ENFORCEMENT AND PROPOSED REFORMS WELCOME AND INTRODUCTORY REMARKS Youngjae Leei Associate Dean and Professor of Law, Fordham University School of Law Morgan Hagenbuchii Fordham University School of Law i. Youngjae Lee is Professor of Law and Associate Dean for Research at Fordham University School of Law. ii. Morgan Hagenbuch served as the Symposium Editor for Volume XXVIII of the Fordham Journal of Corporate & Financial Law. Morgan earned her bachelor’s degree from the Brown University, and will earn her law degree from Fordham University School of Law. 293 294 FORDHAM JOURNAL OF CORPORATE & FINANCIAL LAW [Vol. XXVIII PANEL ONE: HOW DID WE GET HERE? A REVIEW OF MAJOR ANTITRUST CASES, QUESTIONS, AND CONTROVERSIES Harry Firstiii Charles L. Denison Professor of Law, New York University School of Law Jonathan Jacobsoniv Senior Of Counsel, Wilson Sonsini Goodrich & Rosati Spencer Weber Wallerv John Paul Stevens Chair in Competition Law, Loyola University Chicago School of Law iii. Harry First is the Charles L. Denison Professor of Law at New York University School of Law. From 1999-2001 he served as Chief of the Antitrust Bureau of the Office of the Attorney General of the State of New York. Professor First’s teaching interests include antitrust, regulated industries, international and comparative antitrust, business crime, and innovation policy. Professor First is the co-author of the casebook Free Enterprise and Economic Organization: Antitrust (7th ed. 2014) (with John Flynn and Darren Bush), as well as a casebook on regulated industries (with John Flynn). He was twice a Fulbright Research Fellow in Japan and taught antitrust as an adjunct professor at the University of Tokyo. Professor First’s most recent scholarly work has focused on various aspects of antitrust enforcement and theory. Professor First is a contributing editor of the Antitrust Law Journal, foreign antitrust editor of the Antitrust Bulletin, a member of the executive committee of the Antitrust Section of the New York State Bar Association, and a member of the advisory board of the American Antitrust Institute. iv. Jonathan Jacobson is Senior Of Counsel in Wilson Sonsini Goodrich & Rosati’s New York office. Considered one of the country’s preeminent antitrust litigators and thought leaders, Jonathan has taken a lead role in many high-profile antitrust litigations, investigations, trials, and appeals. He served as the Chair of the ABA’s Section of Antitrust Law from 2017-2018. Among other noteworthy representations, Jonathan has served as lead counsel for Coca-Cola in several cases, including PepsiCo v. Coca-Cola, a leading monopolization case under Section 2 of the Sherman Act. He also argued the Vitamin C case in the Supreme Court and on remand; led the representation of American Express in United States v. Visa USA; defended Google in the Dreamstime, Digital Advertising, KinderStart, Person, TradeComet, and myTriggers cases; defended Netflix in In re Online DVD Rental Antitrust Litigation, and Live Nation and Clear Channel in Heerwagen, In re Live Concert Antitrust Litigation, and It’s My Party v. Live 2023] THE BATTLE WITH BIG TECH 295 KEYNOTE ADDRESS THE NEW ANTITRUST PARADOX Maureen K. Ohlhausenvi Section Chair - Antitrust & Competition Law (Firmwide), Partner, Baker Botts Nation. Jonathan was appointed by Congress to serve on the Antitrust Modernization Commission, responsible for reviewing and recommending potential changes to the nation’s antitrust laws. In addition to serving as a past Chair of the ABA’s Section of Antitrust Law, he previously served as an officer, council member, and in several other Antitrust Section positions, including editorial chair of Antitrust Law Developments (6th ed.). He has written or edited numerous articles and books spanning the gamut of antitrust topics, including exclusionary practices, merger enforcement, government and other civil litigation matters, and cartel enforcement. v. Spencer Weber Waller is the John Paul Stevens Chair in Competition Law, Director of the Institute for Consumer Antitrust Studies, and Professor at Loyola University Chicago School of Law where he teaches antitrust, intellectual property, civil procedure, and international litigation courses. He is a member of the Advisory Board of the American Antitrust Institute and the editorial boards of the Antitrust Law Journal and the World Competition Law and Economics Review. Professor Waller is the author, co-author, or editor of eight books and over one hundred articles on United States and international antitrust, including Antitrust and American Business Abroad, the leading treatise in the field, and the first full-length biography of Thurman Arnold, the founder of modern antitrust enforcement in the United States. He is the co-editor and contributor to Brands, Competition Law and IP (Cambridge University Press 2015). His recent scholarship focuses on antitrust, brands, class actions, high-tech industries, innovation, and intellectual property. He is the recipient of the 2014 Concurrence Antitrust Writing Award. Professor Waller previously taught and served as associate dean at Brooklyn Law School. vi. Maureen K. Ohlhausen chairs the firm’s Global Antitrust and Competition practice. Her practice focuses on antitrust, privacy and data security and consumer protection investigations and litigation both in the U.S. and abroad. She advises top-tier clients across a wide variety of industries including technology, retail, telecommunications, social media, and life sciences. Maureen is sought after for her depth of experience both nationally and globally on antitrust and Federal Trade Commission (FTC)-related matters. She is known for her relationships with officials in the U.S. and abroad, with a particular emphasis on Europe and China. She most recently led the FTC as Acting Chairman a (...truncated)