American Bar Association

American Bar Association SECTION OF ANTITRUST LAW

2016 MIDWINTER COUNCIL MEETING

The Windsor Court Hotel New Orleans, LA

January 16, 2016 2:00 - 5:00 p.m.

The Gallery

A G E N D A (As of 1/11/16) Presenter(s) 1. Consent Agenda [Items in which no debate or discussion is expected; any Council member may remove an item for further discussion] 2. Reports of Council Liaisons/Special Guests A. Canadian Bar Association Rod Frank (for Susan Hutton) B. Department of Justice Antitrust Division*** Baer C. Federal Trade Commission** Ramirez D. Law Student Division (Written report only –Hyatt)* E. Multistate Antitrust Task Force/NAAG^** Domen F. Young Lawyers Division (Written report only –Alvarado- Rivera)* 3. Officer Reports/Updates A. Chair Henry, R. i. Recent Activities ii. Upcoming Events/Projects iii. Other B. Chair-Elect MacLeod C. Vice Chair Jacobson i. Action item—Committee Long Range Plans Approval* ii. Discussion—Creation of a new Administrative Committee D. Immediate Past Chair Feller E. Committee Officer Garza i. Committee Activities Chart*

ii. Committee Reports a. Economics* Stockdale/ Tsai b. Exemptions and Immunities* Kruse c. Federal Civil Enforcement* Render F. Consumer Protection Officer* Zych G. Finance Officer* O’Connor i. Budget update ii. Reserves Projects a. Action item—Research Institute Project Approval* H. International Officer Gleklen I. Program Officer* Henry, B. i. Action items

a. Regulation/Competition Symposium (healthcare/financial services) – with Loyola Law School (September 2016) b. Antitrust in Americas 2017 – with Barra Mexicana (June 2017)

J. Publications Officer* Nigro K. Secretary and Communications Officer* Chavez i. Action item—Approval of Minutes ii. CONNECT update

iii. Membership and Diversity Committee* Perlman/Tabor a. Action item—Diversity Strategic Plan Approval*

iv. Section Website Analytics Report* L. Section Delegates Ross/ Zanfagna i. Summary of HoD Resolutions – 2016 Midyear Meeting* 4. Section Director’s Report* Travis 5. Other Business *Attachment ^**Presentation at Council Meeting, January 16; and Leadership Session, January 17 **Presentation at Leadership Session, January17 ***Presentation at Leadership Session, January 18

TO: Council, Section of Antitrust Law FROM: Jason Hyatt, Liaison from ABA Law Student Division RE: Report from Law Student Division Liaison DATE: January 6, 2016 The Law Student Division has been busy with the Membership & Diversity Committee (M&D) over the past few months. Law students are thankful that the ABA and the Section of Antitrust Law made student membership free for all ABA law students. As Liaison, I have been working with the Membership & Diversity Committee to ensure that more students join the Section of Antitrust Law. The Section of Antitrust Law (SAL) is working with the Law Student Division (LSD) to: provide content for the LSD monthly newsletter to inform law students of upcoming programs, events, opportunities and other information; explore passive programming for law students to help them become acquainted with the field of antitrust and help them develop a passion for the subject matter; and create a webinar on "Why Consumer Protection?" which would include professionals from across the country in one webinar, dispersed to law students with the help of the LSD. We have discussed with M&D ways to entice more students to join SAL as well as how to entice students to get more involved. The committee is interested in developing more programs for law students that are either free or low cost. Additionally, SAL has the opportunity to allow a set number of students to attend the Spring Meeting for free, so the focus has been on spreading the word about this opportunity to more law students. The LSD also has the opportunity to advertise any of SAL's upcoming programs or initiatives that are meant to target law students. The LSD is working to get a complete calendar on their homepage which would include a multitude of events from across the ABA sections, divisions, and forums. If anyone in SAL has anything they wish to advertise to law students, please contact me directly so I can relay the details to LSD. In regards to content on the LSD website, if there is

material that anyone in SAL believes would be helpful for law students (i.e. blog posts, YouTube videos, etc.) there is an opportunity to have this information posted in the appropriate location on the LSD website. Currently, the LSD is concentrated on two major projects. The first project is to encourage law students to attend the ABA Midyear Meeting in San Diego, which will take place from February 3-9. The second concentration of the LSD is on encouraging law students to apply and run for various positions within the LSD. The application processes are varied with some deadlines as early as January 15th. Thank you very much for your time. I look forward to continuing to work with the SAL and inspiring law students to pursue their passions in antitrust.

REPORT TO COUNCIL FOR 2016 MIDWINTER MEETING Report by: Jesús M. Alvarado-Rivera SAL Position: YLD Liaison Email: [email protected] The Antitrust Law Committee (ALC) of the Young Lawyers Division (YLD) has been working on several projects for the past months. Here is a summary of our work. Top three initiatives:

1. The ALC is partnering with the Canadian Bar Association on an upcoming panel discussion, and to seek young lawyers in each jurisdiction to write publications for the each other’s newsletter (i.e., Canadian lawyers writing pieces for the ALC newsletter and vice versa).

2. The ALC is targeting to have 2 new 101/201-series articles published by the first half of the year.

3. The ALC is launching a “Practicum” series of webinars to provide introductory-level information to young lawyers interested in antitrust, and working out the details now. At least one program will likely be co-sponsored with the ABA Section of Antitrust Law’s Federal Civil Enforcement Committee, and another with the SAL’s Joint Conduct Committee.

Top three achievements for the past quarter:

1. The ALC published its quarterly newsletter. 2. The ALC assisted several young lawyers in finding additional writing

and leadership opportunities in the ABA’s Section of Antitrust Law, including two young lawyers that worked with the SAL’s Pricing Conduct Committee to attend programs with esteemed antitrust professors (Steve Salop, Dan Crane) and prepared summaries jointly with the professors of their statements.

3. The ALC held its first 101-series teleconference, co-sponsored with the SAL’s Joint Conduct Committee, in November.

Programming/CLE/101-201 Articles: Several programs are in the works, including a co-sponsorship with the Canadian Bar Association relating to antitrust implications of cross-border transactions. The ALC is also working on gathering 101-201 articles. Communications/Meetings: The ALC emailed its membership about possibilities for involvement and received positive feedback, including many members seeking to become more involved in the ALC. The ALC is working on developing programs and writing opportunities for these members. Also, I have sent several emails to ALC members and YLD Representatives to communicate opportunities within different Committees of the SAL. In October 2015, I attended the YLD Fall Conference in Little Rock, AR. The Conference provided young lawyers with an extensive CLE program and gave me the chance to meet the YLD’s leadership. It was a great venue to give young lawyers an overview of the great benefits offered by the SAL. Miscellaneous: The ALC is working on sponsoring two in-person networking events—one on the Los Angeles area and one in Dallas. ALC also plans to sponsor another event at the ABA Section of Antitrust Law Spring Meeting in D.C., which will take place in April.

MEMORANDUM

TO: Jonathan Jacobson (Chair, Long Range Planning Committee & Section Vice Chair

FROM: Advertising Disputes & Litigation (ADL) Committee John E. Villafranco (Chair)

Jessie F. Beeber (Vice Chair) Christopher A. Cole (Vice Chair) John D. Graubert (Vice Chair) David G. Mallen (Vice Chair) Terri Seligman (Vice Chair) Tiffany Ge (Young Lawyer Representative)

SUBJECT: Advertising Disputes & Litigation Committee Long Range Plan for 2015-17 DATE: December 16, 2015

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This Memorandum sets forth the Long Range Plan for the Advertising Disputes & Litigation (ADL) Committee. The Memorandum provides: (1) committee background; (2) relevant anticipated policy issues likely to arise over the next three years; and (3) long term plans to strengthen the committee.

I. Committee Background

A. Scope of Current Charter

The committee was initially launched in 2009 as the Private Advertising Litigation (PAL) Committee as part of the Section’s efforts to expand its consumer protection offerings. In November 2013, the Committee sought and received section approval to change the name of the Committee to the Advertising Disputes & Litigation (ADL) Committee to more accurately reflect the scope of the Committee’s work. Whereas the initial name suggested that the Committee’s work was limited to private advertising litigation, the revised name more accurately reflects that the Committee also addresses developments in contested self-regulatory proceedings, such as cases before the National Advertising Division (NAD) of the Council of Better Business Bureaus and National Advertising Review Board (NARB) and litigation involving the Federal Trade Commission and the offices of state attorneys general.

The revised committee description is consistent with the Committee’s charge:

The Advertising Disputes & Litigation Committee ("ADL") is your resource for tracking and understanding false and deceptive advertising and marketing issues that arise in litigated cases and self-regulatory proceedings.

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ADL focuses on consumer class actions and competitor challenges under Section 43(a) of the Lanham Act. The Committee also covers other adversarial proceedings, primarily before the Advertising Self-Regulation Council, with emphasis on National Advertising Division, National Advertising Review Board, and Electronic Retailing Self-Regulation Program cases. Our Committee will follow developments and trends in the area of advertising and marketing law that flow from contested proceedings and consider the procedures intended to ensure truthfulness and accuracy in advertising through direct challenge. In addition to sponsoring or co-sponsoring several panels at the Spring Meeting every year, we hold regular committee programs on topics of interest and send email summaries of important decisions to our members. We will also provide guidance for lawyers and legal departments who are anticipating possible litigation, challenging false advertising by competitors, or responding to charges that a client's advertising is false. Prevailing in an advertising dispute entails mastery of discovery issues and trial strategy, an understanding of how best to use extrinsic evidence (including consumer perception surveys), and advanced knowledge of self-regulatory precedent and practice. Committee membership will help you sharpen these skills.

B. Interaction with Other Committees

ADL works closely with a number of other committees and plans to continue to collaborate to leverage efforts. The Committee works most often with the Section’s consumer protection committees – the Consumer Protection (CP) Committee, which focuses on consumer protection regulation and enforcement, and the Privacy & Information Security (PRIS) Committee, which focuses on developments related to privacy, data security, and related technology issues. The Committee co-sponsors many events with these two committees, including the monthly CP and PRIS updates.

The Committee also has worked with various practice skills and litigation committees, such as the Civil Practice and Procedure Committee, the Corporate Counseling Committee, and the Trial Practice Committee. We hope to expand offerings related to these relevant practice skills by regularly communicating with leadership from those committees that overlap with relevant advertising issues. We also hope to expand collaboration with other substantive legal committees, including Compliance & Ethics, Intellectual Property, International, and Legislation.

Finally, while we have co-sponsored a few programs with certain industry committees, there is opportunity to expand our offerings that are focused on a particular sector of industry. Each of the industry committees faces unique advertising, consumer protection, and privacy issues and featuring programs targeted towards those audiences presents an opportunity. The newly established Agriculture and Food Committee, along with the Insurance and Financial Services Committee, likely provide the most opportunities for collaboration given the rise in litigation and enforcement actions directed at those sectors.

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C. Membership

We presently have almost 350 members, which represents an increase of almost 100 members over the 2014-2015 year. Many of these new members joined the section as a result of the efforts of the Committee’s Working Group on Advertising Self-Regulation (Working Group), described in greater detail in Section D. Continuing such targeted efforts in areas of interest likely to generate enthusiasm inside and outside of the Section is a worthwhile option to explore to continue to increase membership and bolster activity amongst existing members.

In terms of membership composition, the majority of members are from the private defense firm bar in Washington, D.C. and New York. We have been exploring possible approaches for diversifying membership, including by hosting events outside of the Washington, D.C. and New York regions and soliciting input from sectors that are typically less involved, including academics, in house counsel, international attorneys, and government attorneys. We plan to consider possibilities for partnering with local law schools and their professors to host programs in order to increase activity amongst academics. We have had some success at recruiting outside counsel to the Section and plan to continue those efforts by co-sponsoring programs with the Corporate Counseling Committee geared towards outside counsel interest. A similar approach may prove fruitful as we try to increase membership amongst the international bar.

D. Recent Accomplishments

The Committee continues to focus on providing high quality regular programming on interesting and timely topics. For the 2014-2015 ABA year, ADL sponsored or co-sponsored more than 21 programs including monthly updates on advertising litigation and self-regulations, consumer protection, and privacy issues, and special installments on hot topics such as cross-border enforcement trends, TCPA litigation, and the standard for irreparable harm in Lanham Act cases. We also continue to offer networking events, such as the annual summer networking event, and during the Section’s Spring Meeting.

Additionally, the efforts of the Working Group were a unique and notable success in a number of ways. First, the Working Group garnered interest from inside and outside existing Section membership and led to an increase in members, particularly amongst in-house counsel. Second, the Working Group’s efforts culminated in the publication of a comprehensive Working Group Report, which was presented and distributed at the Spring Meeting. The Working Group Report contributed to positive publicity for the Committee and the larger Section – both within and outside of Section members. Third, and most importantly the Working Group Report was very well received and led to a number of substantive revisions to NAD’s rules. On November 1, 2015, the Advertising Self-Regulatory Council (ASRC) issued a press release commending the

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report and highlighting the multitude of substantive revisions to ASRC procedures that were being implemented in response to the report.1

The Committee remains active in co-sponsoring the consumer protection monthly updates with the CP Committee. The monthly updates provide helpful, ongoing updates for notable cases and developments in the area. The monthly updates also offer younger Section members with an opportunity to get involved and to gain substantive exposure to relevant advertising and consumer protection issues.

The Committee also expects to complete the Claim Substantiation Handbook shortly, which will culminate a substantial effort to provide a valuable treatise on claim substantiation.

II. Anticipated Policy Issues

A. Major Anticipated Policy Issues within Committee Charter Likely to Arise Within Next 3-5 Years

1. Continued Increase in Consumer Class Actions for Consumer Products

Over the past five years, the industry has seen a steady flow of class actions filed by the plaintiffs’ bar related to labeling and advertising claims for a variety of consumer products. Many have attributed the cause of the increase to pleading standards and the comparative ease to bringing a false advertising case as opposed to a product liability action. In any event, the trend does not appear to be dissipating and means that ADL’s work will be particularly important relative to larger consumer protection efforts of the section.

There has also been a sharp spike in the number of advertising cases that end up in binding arbitration. The New York Times reported on this trend in a series of articles dated October 31 and November 1, 2015. See http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=0 (Arbitration Everywhere; Stacking the Deck of Justice) and http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html (Arbitration: Privatization of the Justice System). The Committee is considering programming and substantive projects related to this trend.

2. Increased Litigation Related to Privacy and Data Security Issues

To date, most of ADL’s work has focused on advertising disputes in the false advertising arena. However, as privacy and data security issues continue to increase in importance and publicity, there has also been an increase in litigation actions related to privacy and data security practices. For example, entities that experience a data breach almost always face private consumer class actions following notice of the breach. Companies may also face consumer class actions related to allegedly false or misleading privacy policies. The Committee should ensure that it continues

1 See Notice of Revisions to the NAD/CARU/NARB Procedures, Effective 11.1.15, available at: http://www.asrcreviews.org/wp-content/uploads/2015/10/Notice-of-Revisions-to-the-NAD.pdf.

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to monitor developments both in the area of false advertising and other areas such as privacy and data security and work with the PRIS committee, including PRIS’s current efforts with regard to the European program.

3. Federal Enforcement

The Committee has typically concentrated on private litigation disputes and left state and federal enforcement of consumer protection issues primarily to the CP Committee. However, state and federal enforcement also fall within the scope of the ADL Committee charter. With the inception of the Consumer Financial Protection Bureau (CFPB) and the Federal Communications Commission’s reclassification of internet service providers as common carriers subject to FCC rules, there are a number of novel and interesting jurisdictional issues flowing from consumer protection enforcement matters. ADL, along with the CP and PRIS committees as applicable, should dedicate more resources to state and federal enforcement issues as they continue to grow in importance.

4. Globalization of Consumer Protection

The Committee has hosted a number of programs discussing the increasingly international nature of consumer protection issues. For example, we co-hosted with the CP Committee a panel on consumer protection enforcement in Canada and have co-hosted a program on cross-border consumer protection enforcement and litigation trends. The number and importance of cross-border disputes, whether enforcement or private litigation, is likely to continue in the coming years. The recent European Court of Justice ruling that companies cannot rely on a 15-year old safe harbor pact to transfer European consumers’ personal information to the U.S. is just one example of recent international consumer protection issues that merit attention.

B. Plans to Address Anticipated Policy Issues

We believe that our current approach to advertising issues will facilitate addressing the identified anticipated policy issues. In addition, we intend to more regularly partner with industry committees to address developments that are particularly relevant to particular industry sectors. For example, cases discussing the scope of the CFPB’s authority and jurisdiction are particularly relevant to the financial services industry and thus present an opportunity to collaborate with the Insurance and Financial Services Committee. Cases related to the FCC’s intention to regulate internet service providers as common carriers would be particularly relevant to the Media and Technology Committee. Leveraging the work of industry committees should help to more efficiently and proactively identify emerging trends.

An additional possibility for addressing anticipated policy issued involves leveraging ABA Connect and related social media platforms. At present, it is not entirely clear the direction that the section plans to take with regard to ABA Connect. Developing an approach that facilitates more regular blog posts and encouraging daily use of the site for following relevant developments will help to actively monitor emerging issues.

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III. Long-Term Plans to Strengthen the Committee

A. Modification of Scope of Charter

While we are satisfied with the described scope of the ADL charter, we believe the Committee should take a more active role in sponsoring programs related to federal and civil enforcement given such matters fall within the scope of the existing charter.

B. Plans to Strengthen/Expand Committee Membership

As discussed in Section I.C above, we plan to expand offerings targeting particular industry sectors to expand membership beyond the customary private defense bar. We also hope to work more regularly with academics, federal and state enforcers, and attorneys outside of the New York and DC area.

C. Principal Weaknesses/Impediments Limiting Committee Progress

The lack of active engagement with the plaintiffs’ bar is the principal weakness of the committee and we hope to address by more regularly involving plaintiffs’ attorneys in relevant programs. In order to advance this objective, we will leverage current relationships with the plaintiffs’ bar and will seek to include, whenever appropriate, at least one plaintiff attorney on every program.

D. Infrastructure for Ongoing Activities

The present infrastructure works well and we do not recommend any changes to committee infrastructure at this point.

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ABA Section of Antitrust Law Competition Torts Committee

Long Range Plan

The leadership of the Competition Torts (”Competition Torts”) Committee is pleased to present its long range planning objectives and goals for the next three to five years.


The current leadership of the Competition Torts Committee consists of: Matthew D. Kent and Nicholas G. Grimmer (Co-Chairs), and Vice-Chairs: Dean M. Harvey (plaintiff’s attorney; responsible for committee programs), Rachel Adcox (former DOJ Antitrust Division attorney; responsible for committee programs), Angelo M. Russo (defense attorney; responsible for newsletter), and James Eiszner (defense attorney; responsible for recruiting and publications). Marc Tobak is the Young Lawyer Representative, Al Pfeiffer is the Responsible Council Member, and Christie Thompson is the Committee Operations Representative. The Competition Torts Committee’s leadership is comprised of a diverse group of individuals (e.g., gender, sexual orientation) and perspectives (e.g., plaintiff’s bar, former government attorney).

A. Charter

The current charter reads:

The Competition Torts Committee focuses on competition law -both federal and state law -other than the "traditional" antitrust statutes. In disputes involving business competition and anticompetitive practices, business torts (such as claims for unfair trade practices, interference with contractual relations, and fraud) and civil RICO claims are often used as adjuncts to, or in lieu of, antitrust claims. Likewise, as states strengthen their consumer protection statutes, actions under those statutes are another common means outside of the "traditional" antitrust area for litigants to press claims and police competition practices.

The Committee Leadership believes the charter accurately reflects the Committee's appropriate focus in the Section, but has proposed minor changes below. The charter has not limited the Committee's activities. Specifically, the Committee's approved programs and newsletters in recent years have often confronted the substantive areas of the Committee charter through procedural, counseling or litigation based lenses that are common to all (or nearly all) traditional antitrust claims or issues. Examples of our broad purview can be found in the committee programs that we have developed over the last two years:

• Preparing for an Antitrust Trial as an Associate (August 2015) • From High-Tech Labor to Sandwich Artists: The Law and Economics of Employee Solicitation and

Hiring (March 2015) • Bringing Value to Trade Association Clients: A Primer for Junior Lawyers (March 2015) • Don’t Guess at Ethics (Spring Meeting 2015) • What the Heck, Write a Check (E-Discovery Program at the Spring Meeting 2015)

We have also partnered with the International Committee to provide updates on business tort claims in other jurisdictions. This diversification of the Committee's substantive charter area through different lenses provides benefit to the Committee members as well members of the Section generally. The Committee can accordingly offer value as the Committee of choice among those who have broadly varied practices where antitrust is an important, but not sole, revenue center.

The Committee at times suffers from the lack of focus inherent in the claim of a broad mandate coupled with the previous focus of civil RICO (an area where there are few devoted practitioners). To create value to our members, we are going to focus on highlighting business tort claims that are brought in conjunction with, or in lieu of, antitrust claims. The Competition Torts Committee will also work to grow our presence with the plaintiff’s bar and with government antitrust enforcers. Over the next three years the Committee must strive to iterate a focused value proposition while retaining the positive aspects of a broad mandate. The Committee will achieve this goal by assessing the current grass roots common threads in its membership via improved membership outreach as further described below.


The Committee has worked diligently over the last two years to increase its interaction with other Committees. We have co-sponsored programs with the Health Care Committee, International Committee, Agricultural Committee, Young Lawyer Division and Labor & Employment Division of the ABA. .

The Committee is also seeking to grow its relationship with the Plaintiffs’ bar and intends to partner with the Civil Redress Committee to host telephonic programs about cutting-edge business tort issues. We also plan to collaborate with the State Enforcement Committee since state statutes and common law are generally the source of competition torts claims. We hope to energize our membership by inviting attorneys that may not otherwise be involved in the Antitrust Section.

The Committee will also seek to target its outreach to other Committees by offering content as ancillary to the core antitrust practice as possible without being duplicative. The Committee will work to establish a more concrete identity as the go to source for all competition related legal education outside of traditional antitrust by leveraging the material its members find most useful.

C. Membership

The Committee membership grew over 10% last year and we currently have 280 members. We are working to grow our Committee through systematic contacts with Plaintiffs’ attorneys and RICO practitioners. We are also trying to increase our members’ involvement in the Committee by recruiting volunteers for upcoming programs and to draft articles in the Committee’s newsletter. Finally, we have embraced the Connect platform as the Committee’s preferred method of communication. We hope to increase posting rates on Connect and develop “real-time” content for our members through the use of Connect.

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Over the next three years the Committee will seek to drive activity to Connect and determine additional ways to use Connect as a recruiting wedge for the Committee.


The Committee has an active annual agenda, including the issuance of at least three newsletters annually, the planning of at least four programs throughout the ABA year, and regular communications through the Connect.

Each edition of the Committee’s newsletter highlights upcoming Committee events; features several articles on recent litigation and substantive developments of interest to the membership; and includes the Committee’s Civil RICO Issue Index, a unique and useful grid providing a quick reference on developments concerning over two dozen different RICO issues. The Committee also sponsors committee programs and other programs, independently and in conjunction with committees within and outside the Section, aimed at practical issues faced by practitioners in the area - on topics ranging from managing effective electronic discovery, to risk assessing of an unfair competition case, to the fundamentals of federal and state RICO statutes.

Moreover, the Committee regularly puts on diverse, interactive, and informative live programs at the Spring Meeting - our programming has covered topics such as Settlement Offsets, Section 5 of the FTC Act, E-Discovery, Employee Non-Compete Agreements, California’s Unfair Competition Law, and Indirect Purchaser Settlements, as well as featured prominent government, plaintiff and defense advocates. The Committee leadership encourages its members to suggest activities that will enhance our collective learning and practice, as well as to suggest and submit newsletter articles for publication.

The Committee also publishes its newsletter at least three times annually. The newsletter has grown in coverage and substance in the past few years. The Committee has continued to maintain its RICO grid, which is a user friendly resource to track recent developments in RICO jurisprudence.

The Committee promptly updates its members on important developments in the relevant law via its members via Connect


A. Major Issues in Next 3-5 Years

We do not foresee any groundbreaking developments in RICO or business torts jurisprudence. However we have identified a number of issues that we believe will likely remain or become significant issues for our Committee membership.

1. International Business Torts. There have been a number of recent decisions in Canada, the U.K. and Australia that bear directly on the feasibility of business tort claims in foreign jurisdictions. The Competition Torts Committee has sponsored programs highlighting these developments and will continue to review these decisions to determine policy issues that may arise.

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2. Healthcare third party payer practices. Recently a series of class actions has been brought against Aetna, UHC, and BCBS for their post payment audit practices. Antitrust and RICO and Section 502(a)(1)(B) ERISA claims are being asserted, and some large settlements have been reportedly reached. As the healthcare market remains likely to be one of the most interesting and dynamic markets in the near future, and as the implementation of Affordable Care Act continues to be of broad interest, the Committee will endeavor to leverage this public interest into new membership.

3. Section 5 of the FTC Act. One area that may see additional development is follow-on litigation under state laws from increased enforcement of Section 5 of the FTC Act prohibiting "unfair" methods of competition. Since a large number of states have Little FTC Act counterparts to Section 5, it is foreseeable that an increase in Section 5 enforcement by the Federal Trade Commission will lead to an expansion of similar claims under analogous state statutes. The FTC entered into a consent order on a Section 5 claim against Intel just under five years ago. At that time, a significant increase in state little FTC Act claims was predicted as a related consequence. How this prediction panned out, and why should be reviewed.

4. Multi-state unfair competition claim classes. As the Class Action Fairness Act (CAFA) continues to affect class action litigation and removal there is likely to be further development in the area of (a) certification of multi-state classes (and subclasses) under state unfair competition laws, and (b) limitations on punitive damages.

5. California Unfair Labor Practices. New claims are being brought against companies for unfair competition based on use of slave labor and/or other “unfair” labor practices.

5. “Cyber-torts”. Especially in the area of competitive torts involving employee poaching and/or trade secrets, plaintiffs are increasingly supplementing their claims with non-traditional claims involving private rights of action under various cyber-crime statutes, especially the Computer Fraud and Abuse Act and its state law analogues. This development has caused a tension between, on one side, law enforcement agencies and private companies interested in protecting computerized information and, on the other side, privacy organizations and courts that are concerned that these statutes may result in liability for merely surfing the Internet. Resolution of this tension will significantly affect the availability of these civil remedies for competitive torts occurring in a cyber-context.”


Both the use of RICO to address litigation related business torts and the issues surrounding the continuing healthcare business model wars could merit newsletter articles which could be repurposed into committee programs. This might naturally transition into a program or newsletter dedicated to a review of the heightened role of business torts and RICO in a post Chicago school world.

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III. Long Term Plans to Strengthen the Committee

A. Scope of Charter

We believe that the Charter should be modified as follows:

The Competition Torts (f/k/a Business Torts and Civil RICO) Committee focuses on competition law beyond the “traditional” antitrust statutes. Increasingly, counsel in disputes involving competitors and/or anticompetitive practices rely on a range of “business competition” torts—including unfair trade practices, interference with contractual relations, and fraud, and civil RICO claims—often used as adjuncts to, or in lieu of, antitrust claims. Likewise, as states strengthen their consumer protection statutes, actions under those statutes are another common means outside of the “traditional” antitrust area for litigants to press claims and police competition practices.1

To strengthen the Committee’s presence, we will look for ways to make our charter better known and understood, both within the Section and outside the Section. We will achieve this through quality and timely programing, newsletters, and Connect posts. The Committee will strive to iterate a focused value proposition while retaining the positive aspects of a broad mandate. The Committee will achieve this goal by assessing the current grass roots common threads in its membership via improved membership outreach and greater responsiveness to member value choices.

B. Membership

Diversity (age, gender, ethnicity, plaintiff v. defendant, etc.) remains a key goal of the Committee with regard to its membership. The Committee has a great reputation for sponsoring diverse panels and we intend to continue that tradition. We hope to drive our membership to skew younger and inclusive of more plaintiff’s attorneys over the coming years. We aim to do this via (1) participation in publication efforts (beginning new people in newsletter and cite checking roles and developing a steady bench of reliable active members, giving people greater responsibility as they achieve milestones), (2) continued programming and recruiting efforts with the Young Lawyers Division and plaintiff’s attorneys, (3) targeted personal appeals from the Committee Leadership; and (4) consistent presentation of opportunities on Connect.

1 Below is a comparison of our proposed charter and our current charter: The Competition Torts (f/k/a Business Torts and Civil RICO) Committee focuses on competition law inside the United States (state and federal) and outside of the United States, as well as litigation beyond the “traditional” antitrust statutes. In Increasingly, counsel in disputes involving business competitioncompetitors and/or anticompetitive practices, business torts (such as claims for rely on a range of “business competition” torts—including unfair trade practices, interference with contractual relations, and fraud), and civil RICO claims are —often used as adjuncts to, or in lieu of, antitrust claims. Likewise, as states strengthen their consumer protection statutes, actions under those statutes are another common means outside of the “traditional” antitrust area for litigants to press claims and police competition practices.

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C. Principal Impediments

A significant impediment to the implementation of the Committee’s objectives is increasing member involvement in Committee activities. We hope to continue to expand the use of Connect, our newsletter, and our programs to stimulate wider participation in Committee activities.

D. Ongoing Activities

1. CLE and programs: We are considering or planning a number of committee programs for the upcoming year, including programs on: (a) Competition Torts: War Stories; (b) ACPERA/RICO Update; (c) Non-Competes: State By State; (d) Health Care & RICO; (e) Litigating with the Agencies; (f) Business Torts Around the Globe; (g) Antitrust v. RICO: What’s the Difference?; (h) Competition Torts: Filling the Antitrust Gaps; (i) Class Action Settlements; (j) The FTC’s Section 5 Policy Statement and Consumer Protection; (k) Intentional Interference vs Vigorous Competition; (l) Competition Cyber-Torts.

2. Publications: “RICO State by State” was last published in 2011; the Committee will submit a proposal for a new 2017 edition this year. And our “Business Torts & Unfair Competition Handbook” was last published in 2014; we will likely propose an update in 2018 for publication in 2019 or 2020. The Committee will also issue three newsletters in the coming year, each with two or three substantive articles and the unique RICO case grid feature.

3. Technology: The Committee Leadership has begun to make greater use of Connect to distribute information about breaking case developments and programs of potential interest to members. We intend to make such notifications standard practice for legal developments in our Committee's area of focus. More importantly we will use Connect as a tool to recruit new active members to participate in Committee projects and activities and publications.

4. Joint Activities with Other Committees: The Committee will seek to target its outreach to other Committees by offering content as ancillary to the core antitrust practice without being duplicative. The Committee will work to establish a more concrete identity as the go-to source for all competition-related legal education outside of traditional antitrust by leveraging the material its members find most useful. The Committee will actively work to partner with the Advertising Disputes and Litigation Committees on consumer protection topics and encourage further Plaintiff participation. We also plan to work with the State Enforcement Committee to highlight potential state law business tort and competition claims.

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49185294.1 ABA AT E&I 2015-16 Long Range Plan

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M E M O R A N D U M

TO: Calvin Goldman Long Range Planning Committee FROM: Exemptions and Immunities Committee Layne E. Kruse, Chair Vittorio Cottafavi, Vice Chair Stephen M. Medlock, Vice Chair Charles C. Moore, Vice Chair Katherine S. Phillips, Vice Chair Todd Hutchison, Young Lawyer Representative CC: Jonathan M. Jacobson, Committee Officer Arthur Burke, Responsible Council Member Amy Manning, Committee Operations Committee DATE: December 15, 2015 RE: Exemptions and Immunities Committee Long Range Plan


A. The Committee Charter

The Exemptions and Immunities Committee is chartered to address judicially created immunities from the antitrust laws, including the Noerr-Pennington doctrine, the state action doctrine, as well as statutory exemptions, including, among others, the McCarran-Ferguson Act. More broadly, it deals with the fundamental issue of the scope of the antitrust laws. Judicial action and legislative efforts have limited the scope of antitrust laws since the laws were first passed. This Committee monitors this key issue, which impacts how antitrust laws affect the economy.


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B. Membership

The Committee currently has 241 members. Our members are comprised predominantly of private practitioners, although a small number of law students, government attorneys, and practitioners based outside the United States are included.

Although other committees are larger, we believe that our Committee tends to include lawyers who specialize in antitrust issues. We also believe that most members of the Committee are members of other Section committees, and that the Committee may not be the primary committee that draws members into the Section. Nonetheless, we believe tracking the key issues surrounding the scope of the antitrust laws must be a high priority for the Section.

C. Committee Interaction

The Committee’s mission in many ways touches on the work of other committees within the Section that involve exemptions and immunities. For example:

Agriculture and Food Committee. The Committee shares jurisdiction over the Capper-Volstead Act, among other statutory exemptions.

Health Care and Pharmaceuticals Committee. The Committee interacts with the Health Care Committee regarding the state action and Noerr doctrines. In particular, Health Care Committee is a co-sponsor of our 2016 Spring Meeting program on telemedicine and the impact of N.C. Dental.

Insurance and Financial Services Committee. The Committee shares responsibility for the McCarran-Ferguson Act and its application with the Insurance and Financial Services Committee (“IFS Committee”). Likewise, the doctrine of implied repeal naturally involves interacting with this committee, as many implied repeal cases involve financial services industries. We also interact on the filed-rate doctrine, which is frequently raised as a defense in the insurance industry.

International Committee. The Committee has undertaken efforts to keep its members informed on exemptions with international implications, and in particular, the Foreign Trade Antitrust Improvements Act (“FTAIA”). We co-sponsored a committee program series last year on FTAIA issues. We also need to work more closely with Canada and other jurisdictions that have regulated industries exemptions. One recent example of our E&I Committee work was the fact we provided a representative to meet with staff members from the Japanese competition authority who wanted to discuss shipping exemptions.

Transportation and Energy Industries Committee. The Committee has worked with the Transportation and Energy Industries Committee in light of the industry-specific exemptions for trucking, railroads, and airlines, as well as the use of the state action and filed rate doctrines in such industries.


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Trade, Sports and Professional Associations Committee. Our Committee also works with the Trade, Sports and Professional Associations Committee on sports immunities.

Our connections to numerous substantive committees results in joint offerings with other committees for programs and extends the Committee’s reach beyond its own membership base.


Our Committee has had excellent leadership in the past with Greg Luib and John Roberti. The accomplishments included:

Publications. The Committee published A Handbook on the Scope of Antitrust in 2015. This book is a first-of-its-kind, integrated treatment of all statutory and judicially created limits on the scope of the federal antitrust laws. This publication was also an update to the Committee’s 2007 publication, Federal Statutory Exemptions from Antitrust Law. The new handbook on the scope of antitrust should realize significant sales. The Committee is working on a new edition of its State Action Practice Manual, with publication expected in 2016..

Spring Meeting Programs. We have co-sponsored a Spring Meeting program for the last three years. In 2016, we will have a program with Health Care Committee on telemedicine restrictions by the states and role of N.C. Dental.

Use of Connect. We have used Connect to report on new cases and developments in the areas of exemptions and immunities. We have focused on making sure cases are reported as soon as possible.

Commentary on Legislative and Regulatory Proposals. The Committee has continued to be active in developing and supporting Section commentary on proposed legislation, regulations, and other policy issues involving antitrust exemptions and immunities.

II. Policy Issues

We believe that the policy issues listed below will be the most significant under the Committee’s purview, but we also face a more fundamental issue: How much of the economy has opted out of our antitrust system? Is that a problem or are ad hoc exemptions acceptable ways to fine tune the application of the antitrust laws?

A. The State Action Doctrine

The FTC’s case against the North Carolina Board of Dental Examiners puts the "active supervision" prong of the state action test front and center. North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101 (2015). The Court agreed with the FTC’s position that state occupational licensing boards comprised of market participants must satisfy the active supervision requirement. This may spur additional suits against other


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types of state boards involving regulated professionals. Moreover, every State must now reassess its boards to determine if there is "active supervision." Courts and state legislatures may need to address this issue.

In addition, we expect the proper framing of the clear articulation prong of the state action doctrine will be addressed. In other words, how foreseeable must the state’s authorization to displace competition be? How general can the statutory authorization to regulate be to qualify as clear articulation? The Supreme Court spoke to the clear articulation test in FTC v. Phoebe Putney Health System, Inc., 133 S.Ct. 1003 (2013), narrowing the foreseeability test to cover only situations in which the anticompetitive conduct is the “inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature.” How this test will play out in the lower courts will be of particular interest to the Committee and its membership.

The Committee expects to address these issues through updates to Connect, newsletters, Spring Meeting programs, committee programs, its contributions to the Annual Review of Antitrust Law Developments, and its publication of a new edition of its State Action Practice Manual. Further, the Committee’s Handbook on the Scope of Antitrust Law addresses developments in the state action doctrine.

B. The Noerr Doctrine

The Noerr-Pennington doctrine is an exemption issue that is frequently litigated. In particular, the most likely area of further development is in the pharma industry. The misrepresentation to government agencies has caught the attention of courts. In addition, there may be more development on the pattern exception, which raises the issue of whether each act of petitioning in a pattern of petitioning must satisfy the objectively baseless test and subjectively baseless requirements for sham petitioning.

The Committee’s Handbook on the Scope of Antitrust Law addresses significant developments in the Noerr case law since the publication of the Noerr monograph in 2009.

C. Statutory Immunities

We anticipate that efforts to enact or to repeal existing statutory exemptions and immunities will continue. In recent years, there have been efforts to repeal the exemptions for railroads and (at least in part) the McCarran-Ferguson insurance exemption. The Section and the Committee has generally supported efforts to repeal statutory exemptions. Given that repeal issues are very political it is unlikely that we will see any exemptions actually repealed.

On the other hand, proposals for new exemptions and immunities will continue to be introduced in Congress. The Committee will continue to assist the Section in preparing and presenting comments and testimony opposing proposals for new exemptions. The Committee developed a template for use in assisting the Section in drafting comments to Congress and other policy makers regarding newly proposed exemptions and immunities.


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Through programs, newsletters, and Connect entries, the Committee intends to provide a leading role in educating its members about Congressional and other efforts to repeal current, or introduce new, exemptions and immunities, as well as the application of existing statutory exemptions and immunities in the courts. As with other areas in our purview, the Committee’s Handbook on the Scope of Antitrust Law addresses significant developments in the statutory immunities area. It built on the prior publication, Federal Statutory Exemptions from Antitrust Law Handbook in 2007.

D. Implied Immunities

Although Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007), appeared to have expanded the scope of the doctrine of implied repeal, lower court decisions interpreting Credit Suisse have been relatively limited, except perhaps in the context of exchange-listed securities, where implied repeal has been read fairly broadly. It remains to be seen whether the courts will significantly expand the doctrine outside of this context.

E. International Issues

The Committee continues to see significant activity on the international front with regard to exemptions and immunities. Several issues will likely receive attention over the next several years. First, will be the application of U.S. law to international conspiracies, including in particular the continuing development of FTAIA jurisprudence.

A second area of interest will be the application of the related doctrines of sovereign immunity, act of state, and sovereign compulsion to preclude antitrust liability for partially state- owned firms, including many such firms in China.

Third, it will be important to focus the Committee’s efforts on understanding the immunities granted by foreign antitrust authorities. Non-U.S. exemptions will continue to be of importance to our members, especially on the difficult intersection of antitrust and regulation.

Fourth, another international issue is the issue of maintaining export exemptions, such as those in the Webb Pomerene Act, in a global environment where over 100 jurisdictions have competition laws.

Finally, a key area that could be considered an exemption is the increasing use of national security tests for approval of mergers that have nothing to do with anti-competitive effects. In the U.S., there is CFIUS review, and in other countries there are similar processes.


The Committee provides important services to the membership of the Section through publications and programming. The goals of the Committee include: (1) to produce a mix of publications and programming that provides the timely, relevant, and useful information to our members; (2) to ensure that the Committee remains valuable to our members’ practices; and (3) to make the most productive use of electronic communications to deliver the Committee’s work product.


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A. Scope of Charter

Revised in 2015, the Committee’s charter now more accurately characterizes its purview—that is, addressing the scope of the antitrust laws. That scope, of course, is defined primarily in terms of exemptions and immunities (both statutory and non-statutory). The Committee, however, has dealt with other doctrines, such as preemption and primary jurisdiction. These areas may not necessarily be viewed as traditional exemptions or immunities, but they nonetheless directly affect the application and extent of the antitrust laws.

In addition, the Committee expends significant efforts to address international issues, including statutory exclusions from the U.S. antitrust laws, including the FTAIA; the related doctrines of act of state, sovereign immunity, and foreign sovereign compulsion; and industry-specific exemptions and exclusions from non-U.S. antitrust laws, including blocking exemptions.

B. Membership

A key goal of the Committee will be both to strengthen the ties to our existing members, and to expand the audience for our various offerings. We address these issues below.

1. Expanding Membership

The Committee believes that extending its profile and expanding its membership will naturally involve substantial outreach beyond the Section. We plan to continue three membership expansion initiatives identified in our previous long range plan: (1) efforts to attract current Section members; (2) introducing members of other ABA sections to our Section, even if it does not involve joining our Committee; and (3) targeted outreach to government lawyers and young lawyers. Another potential initiative relates to our non-US members-- e.g., the similar regulatory exemptions that exist in Canada and the U.K. This highlights the intersection between regulation and competition in most countries.

The Committee believes that its only realistic path to expanding the size of its roster is to work with other committees to maximize exposure for the Committee’s offerings. We have uniformly found our partnerships to be preferable to going it alone. Of course, we will be successful only if we provide useful and high quality programs and publications of our own.

We further believe that we can assist the Section generally in expanding membership by reaching outside the Section with our offerings. In the past, we have jointly planned programs with the Administrative Law Section (on Noerr) and the Intellectual Property Law Section (on sham litigation). The positive reception we have received from these two sections suggests that there may be opportunities to expand the Section’s membership by partnering with the other sections, such as Business Law.

Finally, we believe that targeted outreach to certain underrepresented groups in our membership is warranted. In particular, we plan to continue affirmatively seeking out government lawyers, younger lawyers, and minority lawyers to participate as contributors. One of the outreach efforts we hope to replicate going forward is co-sponsoring programs with the


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Young Lawyers Division (“YLD”). The Committee also plans to reach out to in-house counsel and attorneys in state attorneys general offices to increase participation by those two underrepresented groups in Committee newsletters, programs, and other activities. In light of North Carolina Dental, the interest of state authorities has increased.

2. Strengthening Membership

We plan to enhance the loyalty of our membership in two ways. First, we plan to continue our program of identifying members interested in contributing and providing them with opportunities for contribution and recognition. Second, we must provide relevant and high quality programming and resources to the membership of the Section at large, but particularly to our own roster.

To be successful, our recruitment efforts also require that we offer opportunities for Section-wide recognition to our contributors. The Committee will continue to identify our strongest contributors to the Section leadership with the hope that, if appropriate, these contributors may be considered for leadership positions within the Section as they become available.

C. Challenges and Limitations Faced by the Committee

The nature of the Committee is that its substantive focus is narrow and specialized. Typically, an antitrust exemption will be particularly interesting to a narrow audience affected by it. Even exemptions with broader application, such as the Noerr and state action doctrines, are often viewed as complicated and esoteric even by antitrust practitioners.

Another challenge faced by the Committee is that it lacks the membership size of other committees, and therefore draws on a smaller base of contributors. The leadership at times can be stretched. One specific implication of our limited membership is that we often encounter difficulties finding volunteers to draft contributions.

D. Technology and Other Innovative Forms of Delivering Value to Members

The Committee makes use of its Connect page to publicize upcoming events and to report on relevant developments.

The Committee uses Connect to provide updates, as well as substantive content in the form of exemption-specific case updates.

E. Plan for Ongoing Activities

All the Committee leadership is required for the Committee successfully to plan programs and produce publications. Our YLRs have been a valuable resource. Our planning for membership, publications, and programs uses an integrated approach since programs and publications must provide platforms for our contributors and serve to increase our membership.

The following projects will be the focus of our ongoing activities:


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1. Continued marketing of the Handbook on the Scope of Antitrust. As mentioned above, the Committee published A Handbook on the Scope of Antitrust in 2015. This handbook is more detailed than our Antitrust Law Developments submissions. It includes topics, such as the FTAIA and sovereign immunity, that have not been considered elsewhere in our publications. It is an excellent publication.

2. State Action Manual. Work is progressing on schedule for a 2016 publication of a new edition of this valuable ABA publication. The revisions will include comprehensive treatment of the recent N.C. Dental and Phoebe Putney decisions and their implications for practitioners navigating state action issues.

3. Antitrust Law Developments Updates. The Committee will continue to contribute its chapters to the Annual Review of Antitrust Law Developments. We intend to offer opportunities to our contributors to draft these updates.

4. Connect Development. A key focus will be turning our Connect page for our committee into a better resource for members of the Section interested in learning about exemptions and immunities. This has become a major project for one of our Vice Chairs.

5. Newsletters. Our relatively small membership roster makes it rather challenging to populate newsletters with substantive articles. Rather than abandoning newsletters altogether, we have experimented in the past with various formats for our newsletters. Our goal remains providing the most useful and relevant news to our membership.

6. Commentary on Exemptions and Immunities Proposals. We will continue to support the Section in any comments or testimony regarding legislation or other policy proposals involving exemptions and immunities.

8. Key Partnerships. The Committee will continue to maintain its close ties with other committees within the Section, including the Health Care, Agriculture and Food, IFS, TEI, Trade, International, and Legislation Committees. We will work with these committees to develop programming that addresses our common interests.

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We believe it is critical to have a committee focused on the fundamental question of what is the scope of the antitrust laws. We will continue to explain these issues to the membership of the Section.

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FEDERAL CIVIL ENFORCEMENT COMMITTEE LONG RANGE PLAN

1. Committee Background

A. Scope of current charter

The Federal Civil Enforcement Committee monitors developments in antitrust and consumer protection enforcement policy and actions at the Antitrust Division of the U.S. Department of Justice and at the Federal Trade Commission. We report on these developments and actions through our newsletter and through a variety of outreach efforts, including our listserv. We traditionally sponsor two panels at the Antitrust Spring Meeting, Agency Update with the DOJ DAAGs and Agency Update with the FTC Bureau Directors, in addition to other programs.

B. Interaction with other committees

Our committee has a broader focus than many of the substantive committees, due to the fact that we cover all civil enforcement by the agencies. This causes us to focus more on agency-specific procedural matters, and less on specific substantive issues; however, we cover substantive antitrust issues as well as they arise. We work cooperatively with other committees through our brown bags, teleseminars, and Spring Meeting proposals. Some of those committees include the Consumer Protection, Economics, Exemptions and Immunities, Intellectual Property, International, Joint Conduct, Mergers & Acquisitions, and Unilateral Conduct committees. This year, we have also worked to become more involved with the State Enforcement Committee.

For the sake of completeness, we currently mention DOJ’s major criminal enforcement cases and initiatives in our semi-weekly “roundups”; otherwise, we do not currently cover criminal enforcement. We work with the Cartel committee on matters involving Antitrust Division-wide matters such as budget and staffing.

C. Membership

As of this writing our committee has approximately 400 members. Our membership is diverse in every sense of the term, and includes many current and former government attorneys. Increasing membership, particularly government attorney membership, is one of our top goals. We look forward to working with the Section on this challenge; see the discussion below.

D. Recent accomplishments

Programs. As of February 2015, we are off to an active start for the 2014-15 year. We have had eight brown bags since September, including two in our “Nuts and Bolts of Mergers” series. We will present four programs at this year’s Spring Meeting. We have several more programs in the planning stages for after this year’s Spring Meeting.

Publications. We are current with our deadlines and obligations to the 2014 Annual Review of ALD. We just completed a new edition of the FTC Practice Manual (last published in 2007), available now. We have just received approval from B&T for a

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second edition of the DOJ Practice Manual, tentatively scheduled for publication in January 2018.

Newsletters and periodic publications. Twice a month, we publish our “Agency Round-ups,” summaries of all the news and developments at the agencies since the last Round-up. We publish four newsletters a year and have already issued two for the 2014-15 year. These are hyperlinked to the source documents. Our roundups and their hyperlink accessibility have received very positive reviews. We also publish four newsletters a year, and have already published two for the 2014-15 year as of February 2015. We have an editorial board of more junior attorneys who assist with the newsletter and the Round-Ups. This has helped us introduce those attorneys to working with our committee, and also has funneled them into more in-depth ABA publication projects. This newsletter format is very successful and we plan to continue it.

Website. We keep our committee page on the ABA website up to date and have assigned a vice-chair to keep it current. We also keep our Connect page up to date. Participation of leadership and general membership. Our committee does an excellent job of sharing responsibilities among the committee’s leadership (Co-Chairs, Vice Chairs, and Responsible Council Member). We designated a vice-chair as a resource for planning brown bags and teleseminars, but encourage all vice-chairs to plan and present programs and all have done so. We experimented in the past with rotating responsibility for the newsletter because it can be time-consuming, but the editorial board handles a lot of the work and so we are not rotating this responsibility any more. We will continue to reach out to the committee’s general membership for assistance with brown-bags and publications, as has worked in the past. Our committee has always faced a challenge in attracting members because agency lawyers are one of our major constituencies but the fees to join the ABA have been prohibitive. Our RCM just reported on our last monthly call that the rate for government lawyers to join the ABA is now $70 and joining the Section is free. This should make a big difference in the ability of government lawyers to participate.

2. Anticipated Policy Issues

Our committee expects to devote significant resources to addressing the following policy issues during the coming years, through CLE programs, an active listserv, publications, and other policy and educational tools.

FTC Act Section 5. The scope of Section 5 has been debated for several years now (or more), most recently in a February 2015 FTC symposium. We will continue to keep our members advised about this debate. Net Neutrality, Privacy, and other Internet Issues. We need to increase our focus on this issue, which has not been a big area for us. High-Tech Industries and Innovation. The agencies continue to be concerned about

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striking the right balance between enforcement and innovation. We will continue to focus on this area in our programming ad articles. Healthcare competition and pharmaceutical industry issues. This has been a big focus of the FCE Committee in the past, and will continue to be.

Trends in merger enforcement. We will focus on trends that emerge in the agencies’ merger enforcement, such as the real or perceived trend toward more frequent use of structural remedies. Civil non-merger enforcement issues. Civil litigation by the agencies regularly generates new topics and issues, such as the use of compliance monitors. Case versus non-case activity. We will continue to examine the role of guidelines, hearings and reports, especially where the agencies have not coordinated or have even opposed each other, to understand why such activity is undertaken as opposed to using case enforcement, and whether the mix is appropriate, effective and predictable.

FTC/DOJ clearance. This is a perennial topic for good reason. As technology and business models continue to disrupt the old clearance-by-industry model, clearance battles are likely to recur.

Coordination with the states, other agencies, and foreign officials. The relationship between the state AGs and the federal agencies remains inconsistent. The relationship between the FTC and DOJ, on the one hand, and other federal agencies, on the other, has produced occasionally confusing results from the perspective of industry. US coordination with the EU has improved but coordination with other jurisdictions, including Korea and China, appears to be more difficult. Our committee will continue to offer programs and newsletter articles in this area.

3. Long term plans to strengthen the Committee

A. Increase government attorney participation The Committee has been focused for a number of years on this goal, and has made some good strides. The name change to the Federal Civil Enforcement Committee more accurately conveys this Committee’s focus, which we believe may have resolved confusion that was a barrier to increasing membership. In addition, the Section has worked with the ABA to lower to price of ABA membership, to attract more government agency members. Our membership roster (from Connect), however, includes 27 FTC attorneys and 11 DOJ attorneys, so we still have more work to do. We need to reach out to our current agency members to find out what we could do to increase our appeal to their colleagues, so we plan to pursue the possibility of a membership survey in 2015.

B. Improve communication

The question of whether Connect is an effective tool for reaching our membership is an issue we are evaluating. As of December 2014, we had 517 members on our listserve

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and only 397 members who had joined Connect. Moving exclusively to Connect means that we will not be in communication with 100 or more of our members. We promote Connect in all of our listserve emails in hopes that our members will shift. We plan to continue to work with the Section to improve our use of Connect. C. Increase consumer protection programming. The Committee programs and articles continue to reflect a competition bias. This improved this year with the appointment of a vice-chair who is a CP lawyer and who is active in other Section CP activities. We will continue to co-sponsor programs with the CP and other committees, but we need to increase our efforts to address CP enforcement.

Paula Render Chair

CHI‐181956507v1

Memorandum

To: Long Range Planning Committee Jonathan M Jacobson, Chair Patricia Brink, Member

From: Insurance and Financial Services Committee Henry McFarland, Co-Chair

Eric Stock, Co-Chair Brent Austin, Vice-Chair Brandon Bigelow, Vice-Chair Bret Fulkerson, Vice-Chair Mike Miller, Vice-Chair Elizabeth Prewitt, Vice-Chair David Brenneman, Young Lawyer Representative

CC: Deborah A. Garza, Committee Officer

Subrata Bhattacharjee, Responsible Council Member Christie Thompson, Responsible Committee Operations Co-Chair

Re: Insurance and Financial Services Committee Long Range Plan

DATE: January 7, 2016

______________________________________________________________________________ I. Introduction

The Insurance and Financial Services Committee (the “Committee”) provides its members with updates on recent developments, informative and analytic articles, timely programs, and networking opportunities. The Committee has been carrying out its mission as set forth in its charter. Over the next few years, we plan to continue these activities and to achieve the following goals:

• To remain a valuable resource for all of our members, • To provide a forum for discussion of a wide range of competition and consumer

protection issues in the financial services and insurance industries,

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• To be a source for diverse and varied perspectives on cutting edge issues facing professionals in insurance and financial services.

When our last long range plan was submitted three years ago, the Committee planned to continue to devote significant resources to respond and adapt to two important trends in the financial and insurance sectors. First, the response to the financial crisis and particularly the formation of the Consumer Financial Protection Board focused increased attention to consumer protection issues in those sectors. Second, the financial and insurance industries have become more international, and issues involving these industries are typically faced in many different countries. Both these trends are continuing, and we plan to continue to ensure that our committee is adapting to them.

In addition, we have been responding and adapting to other important developments in our industries. There have been a number of major criminal and administrative investigations in the finance industry, including the LIBOR, Foreign Exchange (FOREX), and municipal bond investigations. Those investigations have resulted in a number of guilty pleas and convictions. We will continue to keep our members informed about the criminal enforcement issues in our industries and, together with the Cartels and Criminal Practice Committee, will continue to provide a forum for discussion of the issues involved in such enforcement. We also plan to pursue other important developments in our industries, such as the increase in health insurance mergers and the spread of interchange fee regulation.

Compared to other committees within the Section, the Committee’s charter is fairly narrow in its scope. Accordingly, we are naturally somewhat limited in terms of the range of issues that we cover. But that narrowness of focus can also serve as one of our Committee’s core strengths. Within our core areas, we are able to provide services to our members that reflect our Committee’s deep competence within its area of focus. We will also continue to capitalize on the extraordinary expertise among our Committee members, as well as our highly qualified group of advisors (described in more detail below, under Advisory Committee), to assess how we are serving our members and to find ways to serve them better.

Our “narrow but deep” status affects the way that we serve our members. We have made a concerted effort to make the work that the committee produces – whether Connect posts, newsletters, committee teleconferences, or spring meeting panels – more focused in terms of its depth. For example, our newsletters typically contain only two to four articles, but they are relatively long and substantive. Similarly, rather than try to serve as a source of breaking news, our listserv posts (which we have moved to Connect) have been consolidated into a bi-weekly review that covers the key events in a more comprehensive manner. (Occasionally we will send out a special announcement if there is truly breaking news that we feel our membership would benefit from seeing promptly). We have also made efforts to develop networking events because we believe our members value contacts in our covered industries. Finally, we have worked very hard to develop creative and interesting programs that go beyond the traditional topics—a good example is our 2015 Spring Meeting program on antitrust in two-sided markets.

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Below we describe the steps we wish to take to take to become an even better resource for our members. While we believe the charter is generally appropriate, we suggest some changes that will clarify our mission and thus make our committee more attractive to new members – and of greater interest to the Antitrust Section’s current and prospective members. We also describe our plans for programs, publications, and other projects in the years ahead.

II. Committee Background

A. Current Charter with Proposed Revisions

Our current Charter is set forth below. We propose some minor revisions to the Charter to reflect the most recent legal and market developments (as well as some stylistic improvements). As we propose below, we would like to see the charter more directly address consumer protection issues and in particular those that relate to the Consumer Financial Protection Bureau, which would seem to be squarely within the Committee’s purview. By expanding the charter in this way, we believe that the Committee could attract more potential members and would develop a core and consistent source of potential programming and other work. The proposed revisions are shown below in redline.

The Insurance and Financial Services Committee is dedicated to providing a forum for the discussion of a wide range of competition and consumer protection issues that affect insurance and financial markets and institutions. We strive to be a valuable resource for members with a variety of perspectives, including that of antitrust, competition, and consumer protection lawyers and that of lawyers and business people involved in the the insurance industry and a broad array of insurance and financial services industries, including the securities and commodities markets, banking, payment systems, and a broad array of other financial services.

Our Committee programs and newsletter publications seek to address the wide variety of competition and consumer protection developments that affect insurance and financial services, including civil and criminal enforcement proceedings, litigation, competition and consumer protection policy at the regulatory agencies, and legislation, and litigation. We aim to present the views not only of industry participants and private practitioners, but also of representatives of a wide variety of government agencies including the Antitrust Division of the Department of Justice, the Federal Trade Commission, State Attorneys General, the Consumer Financial Protection Bureau, the Securities and Exchange Commission, the Federal Reserve Board, the Office of the Comptroller of the Currency, and state antitrust, consumer protection, and insurance regulators.

With our diverse membership, the Committee offers a forum for members to engage in lively debate on the many competition and consumer protection issues currently facing the insurance and financial services industries. We keep our members apprised of new developments, as well as Committee activities and programs, principally through email alertsthe Section’s Connect platform. In addition, a more detailed discussion of recent court decisions, merger activity, government enforcement activities and pending legislation of interest is provided in our Committee’s newsletter. The newsletter is published at least two times per year.

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Recent events have enhanced the relevance of Committee activities to the Section’s membership. The recent collapse of leading financial institutions and insurance companies during last decade’s financial crisis, as well as the significant number of criminal, administrative, and and market manipulation investigations stemming from the financial sector, has have led to increaseding calls for regulation, and to questions about the role of competition and free markets in these sectors. The Committee is also involved in addressing the unique consumer protection issues that financial institutions face with in connection with new regulations and regulators. The Committee continues to monitor, analyze, and develop programs bearing on these issues for the benefit of the Section’s membership.

B. Committee Membership

As of October 2015, our committee had 297 members, which is about a 20% increase over the number from 2013 (248 members). As has been the case for several years now, a review of our roster indicates that the committee comprises mostly U.S.-based private defense-bar practitioners, followed in frequency by economists, in-house lawyers, and federal and state enforcers. We also have some plaintiff-side private practitioners, law students and professors, and members from a number of countries outside the United States. While the largest group of international members is from Canada, we also have members from Europe (particularly Brussels and the U.K.), as well as Korea, Australia, and India.

C. Committee Interactions

The Committee works cooperatively and effectively with many other Section committees and co-sponsors numerous events with other committees, ranging from networking events to substantive panels. In particular, we have worked very closely with:

• the Cartel & Criminal Practice Committee on issues relating to criminal antitrust enforcement in the financial services industry;

• the International Committee on issues relating to international antitrust enforcement in

the financial services industry and issues involving finance and insurance that arise in multiple jurisdictions;

• the Healthcare and Pharmaceuticals Committee and the Mergers & Acquisitions Committee on issues relating to insurance company mergers;

• the Consumer Protection Committee on issues and programming relating to consumer

protection in the financial services industry; and

• the Transportation and Energy Committee and other substantive committees on issues that arise in multiple industries, such as our Spring Meeting panel that examined the antitrust analysis of two-sided markets.

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We also regularly interact with other organizations, especially the enforcement agencies. We have had speakers from the Department of Justice, the Federal Trade Commission, the European Commission, and the New York Attorney General’s office on panels in several of our recent programs.

Our interactions with these other substantive committees and external organizations have helped to extend the Committee’s reach beyond the traditional U.S. antitrust practitioners in the financial services and insurance industries. Our ability to cross-pollinate with other SAL committees, particularly the ones with a consumer protection focus, will ensure that the Committee remains the leading voice in competition and consumer protection law for the financial services and insurance industries.


We are proud of many recent accomplishments, including the following:

1. Publications

• We have issued very substantive newsletters with articles covering a range of important issues and jurisdictions. Our most recent newsletter, published in the Spring of 2015, covered antitrust issues relating to contingent commissions in the insurance industry, recent litigation relating to alleged foreign exchange manipulation, and updated regulatory guidance received from the Federal Reserve and DOJ relating to bank merger analysis. Prior issues have covered other timely issues of interest in the financial services industry, such as the Durbin Amendment.

• We are at the final stages in publishing the latest edition of our book relating to antitrust in the insurance industry, as well as a new publication, the Private Equity Antitrust Handbook, which we believe will serve a broad audience as a resource to lawyers and non-lawyers who work in that space.

2. Programs

• In late 2013 and early 2014, we held professional networking events in New York City and Washington, D.C. for practitioners and enforcement agency attorneys interested in insurance and financial services issues, co-sponsored by several other SAL committees.

• At the 2015 Spring Meeting, we co-sponsored and led a widely-attended program on two-sided markets at which several recent high profile matters were discussed, including the American Express and Google cases.

• In February 2015, we hosted a Town Hall meeting to discuss recent antitrust and consumer protection matters, and to energize interest in the Committee.

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• In September 2015, we held a very timely program on health insurance company mergers, co-hosted with the Healthcare and Pharmaceuticals Committee and the Mergers & Acquisitions Committee.

• In November 2015, we held a program on interchange fee regulation in various jurisdictions.

3. Other

• We have successfully transitioned our Committee to the Connect platform, and have a biweekly post of recent developments in the financial services and insurance industries.

• We continue to engage our Advisory Committee, which is made up of leading U.S. and Europe-based in-house and firm (whether economic consulting or law) practitioners, as a resource for brainstorming about possible programming and other activities that would be of interest to our membership. The Advisory Committee has played an invaluable role in developing ideas for Spring Meeting panels, newsletter articles, teleconferences and other programming. The Advisory Committee includes:

o Kyriakos Fountoukakos of Herbert Smith Freehills LLP in Brussels o Margaret Guerin-Calvert of Compass-Lexecon o Elinor Hoffmann of the New York Attorney General’s Office o William Katz of Thompson & Knight o Michael McCluggage of Edwards Wildman o James Overdahl of Delta Strategy Group o Suzanne Wachsstock of American Express o Joel Winston of Hudson Cook

III. Anticipated Policy Issues

A. Benchmark Manipulation Cases

There have recently been a large number of cases relating to alleged coordinated efforts by individuals at financial services companies to manipulate the prices in certain financial markets specifically by influencing benchmarks important to those markets. Examples include the LIBOR and FOREX investigations undertaken by the U.S. Department of Justice, other federal regulatory bodies, and other enforcers throughout the world. The antitrust investigations in some of these cases have been undertaken in parallel with investigations by enforcers responsible for investigating fraud and market manipulation. These multi-jurisdictional, multi-enforcer, investigations have forced practitioners, enforcers and scholars to grapple with numerous complex issues, including how these different enforcers can or do work together, especially when one or more of the enforcers is pursuing a criminal case, and when the targets of

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the investigation may include individual employees as well as the financial institution itself. We have and will continue to address these issues in our programs and publications.

B. Criminal Liability for Antitrust Offenses

In addition to navigating a patchwork of regulations, financial institutions also face potential criminal liability for antitrust offenses that can and have resulted in convictions and other types of criminal dispositions, such as a non-prosecution or deferred prosecution agreements. We will endeavor to contribute to the discussion on the risks financial institutions face, and the implications of such criminal convictions and dispositions for the implicated institution themselves and for the industry as a whole.

C. Two-Sided Markets

The issue of how to analyze two-sided markets under the antitrust law is one that pervades much of the current antitrust enforcement and litigation environment area. Determining how to incorporate the two-sided nature of competition into an antitrust analysis of these markets is important for antitrust enforcement in a wide range of industries.

The credit card business is one of best known examples of an industry characterized by two-sided competition. As a result of the case that the Department of Justice and several state attorneys general brought against American Express, the question of how to analyze competition in the credit card industry has become prominent within the overall two-sided markets discussion. Analysis of this market may set a precedent for the analysis of other industries. As the leaders in considering how the antitrust laws apply in the credit card industry, our Committee is in a strong position to participate in and even lead the discussion of how to analyze antitrust issues in two-sided markets. We intend to do so.

D. Antitrust Exemptions and Immunities

Because the industries we cover are heavily regulated, exemptions continue to be a key focus of our Committee’s work. For example, the McCarran-Ferguson Act’s exemption of the “business of insurance” from federal antitrust laws is persistently under threat of repeal or amendment. In addition, parties in financial services antitrust investigations sometimes contend that antitrust enforcement is preempted by securities laws regulations (see, e.g. Credit Suisse v. Billing, 551 U.S. 264 (2007)). The tension between the desire to increase regulation of industries that were at the center of the financial crisis, and the argument that with more regulation antitrust laws should step aside, will continue to play out in the courts and elsewhere. We intend to be at the forefront of that debate.

E. Global Regulatory Developments

Financial services companies, as well as many insurance companies, are increasingly global and are subject to regulation in multiple jurisdictions. In financial services, the interplay

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among regulations is particularly complex since the world of finance and payment systems have become essentially borderless. For example, there are important regulations to interchange rates that apply in Europe, Australia, and elsewhere. Regulatory developments in those and other countries often have a competition policy component, and questions that arise as regulatory issues in one jurisdiction may arise as antitrust issues in the United States.

We believe our members would benefit from learning about regulations in other jurisdictions and tools for navigating them. These regulations, and the effect that they have on competition, may illuminate competitive realities about these markets that are relevant to ongoing litigation and enforcement proceedings in the U.S. For example, regulations to guarantee financial stability may limit entry. In addition, regulation based on concerns some institutions may be “too big to fail” may have implications for merger policy.

F. Consumer Protection

Ever since the onset of the financial crisis several years ago, consumer protection issues in financial services have received unprecedented levels of national, indeed global, attention. With passage of the Dodd-Frank Act and formation of the Consumer Financial Protection Bureau (CFPB), there have been substantial legal and regulatory changes to report on and discuss. We believe that the development of the CFPB and related regulation should be a major focus of the committee in the coming years.

G. Health Insurance Mergers

Merger and acquisition policy concerning health insurance will receive a great deal of attention as the United States struggles to restrain the growth of healthcare costs. The U.S. Department of Justice and state Attorneys General currently are reviewing two deals that may bring seismic change to the health insurance industry: Aetna’s $37 billion acquisition of Humana and Anthem’s $54 billion acquisition of Cigna. The parties to both deals appear to have received second requests from the Department of Justice. These deals have drawn significant criticism from groups like the American Hospital Association; have been the subject of congressional hearings; and have even been an issue in the upcoming presidential election. We expect there will be tremendous interest in these deals in the coming year. Furthermore, there may be additional proposals for mergers in health insurance or possibly for alternatives to merger that in turn may raise significant antitrust issues.

We plan to serve as a resource to members and non-members seeking the latest news concerning developments involving health insurance mergers as well as other antitrust and consumer protection issues that arise concerning health insurance.

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IV. Long Term Plans to Strengthen the Committee

A. Scope of Charter

As discussed in Section II above, the scope of our charter is narrow but generally appropriate. We have suggested a few specific changes to our charter that would clarify the work of the committee. (See the proposed revised charter in Part II.A.)

B. Strengthening and Expanding Membership

The narrow scope of our charter limits our ability to expand our Committee’s membership. Nonetheless, our committee has a number of natural assets when it comes to attracting members. We have deep expertise in two highly specialized industries, and those industries play key roles in the functioning of the economy. Moreover, issues encountered in those industries, such as two-sided markets and benchmark pricing, are also often encountered in other industries. We have joined with other industry committees to sponsor programs on those and other issues of common concern.

Since the last Long Range Plan, we have worked hard to expand our membership through our energetic Vice-Chairs and our YLRs, who have been actively engaged in involving new potential members in our activities through networking events and the inclusion of young lawyers and law students in committee projects. These efforts have succeeded, and, as noted above, Committee membership has grown about 20% since our last Long Range Plan. We plan to continue to strengthen and expand our membership in a number of ways.

• Our recent developments updates on Connect as well as our newsletter, The Exchange, are valuable tools for recruitment as they are passed along to recipients who may wish to join the Committee.

• The increase in regulation following the financial crisis presents an opportunity to recruit new members to the Committee and to the Section, especially from underrepresented groups, such as foreign lawyers and plaintiffs’ lawyers. That is also true of the major investigations in our industries, such as the LIBOR and FOREX investigations, which involve agencies and legal proceedings both inside and outside the United States. We believe we can recruit lawyers who work at law firms involved in those major investigations domestically and abroad. Many of them may not be members of the Section.

• We intend to identify and directly target specific foreign attorneys, plaintiffs’ attorneys, and in-house attorneys to increase membership from underrepresented constituencies. Our recent program on the American Express decision included a plaintiffs’ attorney and our program on the regulation of interchange fees included three European attorneys and an in-house attorney. We will continue to include members of these groups on our panels.

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• We also plan to bring on additional young lawyers, and believe we have made significant headway in this regards. We have actively recruited young lawyers and law students to committee projects, such as the newsletter and other publication projects. We are also planning a program designed to appeal to young lawyers.

• We plan to continue planning events that have some light content but are principally meant to be social and networking occasions. These events are designed to attract non-Section members in addition to Section members, with a special efforts being made to attract more diverse members. We are currently planning such an event to be held in New York City and cosponsored with a local New York bar association.

• We will also use our Advisory Committee to serve the additional function of helping bring in new members due to our advisors’ diverse geographic and industry backgrounds.


• The challenges and limitations faced by the Committee largely result from our relatively narrow, industry-focused charter.

• Perhaps because of our narrow focus, we have had only a small share of our Spring Meeting proposals accepted. We are working with other committees to develop programs of broader appeal.

• We need to ensure that we cover not only the antitrust issues but also the many important consumer protection issues that arise in our industries. We have been working with the consumer protection-oriented committees to develop programs in this area.

• The LIBOR and FOREX investigations may conclude in the next few years, which could potentially reduce Section members’ interest in financial services. We will direct our efforts to providing meaningful programming to address the next wave of enforcement actions.

D. Technology

• Our committee recently completed the migration from the listserv to Connect, and now relies completely on Connect for sending announcements and updates.

• The committee will continue sending biweekly updates on important events through Connect. The biweekly frequency seems to strike an appropriate balance between providing up to date information and not bombarding members with too many messages.

• We also will explore expanding the use of Connect, for example by placing more useful materials in its library.

• We also plan to continue to maintain and update our web page.

E. Plans for Ongoing Activities

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1. Publications

We are almost finished with an update to the Insurance Industry Handbook and hope that it will be available for the Spring Meetings of 2016. We also have several other publication projects.

• Publication of a Handbook on Private Equity and Antitrust. The first drafts of the chapters of this book have been completed and are now undergoing editorial review. We hope to have this book available at the 2016 Spring Meetings.

• Publication of an Update to the Bank Merger Handbook. We anticipate putting forward a proposal for this project to the Council this Section year.

• Antitrust Law Development Updates. The Committee will continue to contribute its sections to the Annual Review of Antitrust Law Developments.

• The Exchange. Our biannual newsletter was redesigned less than 4 years ago, and there seems no reason for further design changes. The biannual frequency also seems appropriate given the length of the articles involved. We will continue to publicize the opportunity to write articles to the membership as a whole and to young lawyers as a way of increasing involvement with the committee. Drafting newsletter articles is a key method for recruitment of new members The Exchange will also continue to be open to articles on developments outside the United States and to developments in consumer protection.

• Connect Updates. We will continue to provide members with our biweekly updates on recent developments on the Connect platform.

2. Programs

• Substantive programs. We will continue our focus on delivering high quality informal substantive programs. These programs will expand our membership by dealing with important issues in areas where our industries interact with other industries, such as health insurance. We will develop committee programs based on proposals that were judged too narrow for Spring Meetings but might be suitable for the smaller groups. We also are planning a program specifically geared to young lawyers, which will also help expand our membership.

• Continued Use of Networking Events. We will run at least one networking event each year. These events may be run with other committees, such as Consumer Protection or Cartels and Criminal Practice, which deal with issues that involve our industries. We are also planning on a networking event to be run jointly with a local bar association in New York.

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3. Other

• Partnerships with Other Committees. We will continue our fruitful partnerships with a number of other committees, such as Consumer Protection, Criminal and Cartel Practice, Exemptions and Immunities, Healthcare and Pharmaceutical, and International. These partnerships enable us to develop more comprehensive coverage of the issues in our area.

• Targeted Recruiting. We will continue to recruit new members to our Committee and the Section by targeting underrepresented groups and identifying key individuals who could benefit from and contribute to the Committee’s activities.

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TO: Long Range Planning Committee Amanda L. Wait, Member

FROM: Media and Technology Committee Ankur Kapoor, Co-Chair Gregory P. Luib, Co-Chair Jamillia P. Ferris, Vice Chair Lisa Kimmel, Vice Chair Gregory V.S. McCurdy, Vice Chair Scott A. Scheele, Vice Chair David S. Turetsky, Vice Chair Craig A. Waldman, Vice Chair Nandu Machiraju, Young Lawyer Representative

CC: Roxann E. Henry, Chair Deborah A. Garza, Committee Officer

Arthur J. Burke, Responsible Council Member Christie G. Thompson, Co-Chair, Committee Operations Committee

DATE: December 28, 2015

RE: Media and Technology Committee Long-Range Plan

This Long-Range Plan (Plan) is divided into three principal sections: (1) an overview of the Media and Technology Committee (Committee); (2) a discussion of the anticipated policy issues likely to arise over the next three to five years, and our plans to address them; and (3) long-term proposals to strengthen the Committee.

There are also three principal long-range initiatives reflected throughout this Plan:

1) to continue to rethink, update, and diversify our publications to provide the most timely and relevant information to our members, particularly on mobile platforms;

2) to contribute to, and enhance programming and scholarship in, antitrust and consumer protection law as it applies to media and technology industries; and

3) to improve our outreach and communications with our members, members of other Antitrust Section committees, and those outside the Section, in order to increase the Committee’s value to their practices and to encourage broad participation in Committee activities.

I. Committee Overview

A. Scope of Charter

The Media and Technology Committee was originally formed in August 2009 through the merger of two industry committees then in existence: (1) the Communications Committee and (2) the Computer & Internet Committee. Originally named the Communications and Digital Technology Industries Committee, the Committee was renamed the Media and Technology Committee in November 2012. The renaming did not affect the mandate of the Committee, as described in our charter immediately below.

The Committee is responsible for law and policy issues that affect competition in the development and commercialization of the hardware, software, and distribution networks for voice, data, and information. The Committee’s mandate includes sectors like telecommunications, information technology, and social media. As communications and computer industries converge over time, this Committee will continue to address the legal and policy issues that confront competitors, customers, suppliers, regulators, and policymakers on issues as diverse as (1) competition among distributors and distribution media, (2) competition among content providers, (3) vertical integration of content and distribution, and (4) access to intellectual property and communications networks.


The Media and Technology Committee focuses on industries that cut across a vast swath of the global economy. Consequently, we interact with many other committees within the Section. Issues of significance to our Committee may also be particularly interesting and relevant to, among others, members of the following committees: Consumer Protection, Federal Civil Enforcement, Intellectual Property, International, Joint Conduct, Mergers & Acquisitions, Privacy & Information Security, and Unilateral Conduct.

We anticipate partnering with these and other committees in our upcoming projects. For example, at the 2016 Spring Meeting, we are co-sponsoring programs with the International, Unilateral Conduct, Transportation & Energy Industries, Consumer Protection, and Advertising, Disputes & Litigation Committees. In addition, we recently co-sponsored a committee program on the Nuts and Bolts of FCC Merger Review with

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the M&A Committee, as well as a networking event with the IP Committee.1

C. Membership

We currently have approximately 715 members. Our membership has remained fairly stable over the past three years. As of November 2012, we had approximately 730 members. Given the recent membership challenges faced by the ABA more generally, we are pleased to see our numbers holding steady. Online, we currently have about 300 members in our LinkedIn group. Our online membership has increased over the past few years. As of November 2012, we had only approximately 80 LinkedIn members.

Our membership includes a wide array of U.S. and foreign enforcement officials, in-house lawyers, private practitioners, trade association counsel, academics, economists, and law students. Not surprisingly, our membership includes representatives of major media and technology firms, including, among others, Amazon, Apple, AT&T, Ericsson, Google, IBM, Intel, Microsoft, Sprint, Time Warner, and Verizon. Our Committee also has international reach: approximately 15 percent of our membership is comprised of individuals based outside the United States, including in particular Canada and Europe.

As described in greater detail elsewhere in this Plan, we will continue our efforts to increase Committee membership, particularly with respect to younger and minority practitioners. We also will continue to encourage existing members to increase their participation in our various Committee activities.


Our recent and ongoing accomplishments include the following:

1. Recent Publications

Shortly after we issued our previous long-range plan in 2012, the Committee launched a monthly “e-Bulletin” that summarizes recent key cases and developments in the media and technology areas, both in the United States and internationally. For the past approximately two years, we have published the e-Bulletin on a biweekly basis. This publication provides our membership with easy access to recent developments across the media and technology areas.

The Committee also is nearing the final stage of publishing a new handbook, Antitrust in Technology Industries. This book, which we hope to publish in mid-2016, will be the Section’s first handbook focused solely on antitrust issues in technology markets. We believe there will be significant interest in this book on the part of Section

1 Our Committee has worked very closely with the IP Committee over the past few years. In particular, our areas of focus overlap significantly with respect to IP-competition issues within technology industries. Our Committee, however, addresses antitrust (and consumer protection) issues across the media and technology space.

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members and other practitioners involved in technology industries.

2. Spring Meeting and Committee Programs

For the upcoming 2016 Spring Meeting, our Committee is co-sponsoring three programs, covering the following topics: (1) native advertising; (2) the European Commission’s (EC) Digital Single Market initiative; and (3) divergent merger review standards across agencies. Over the past three years, the Committee has sponsored on average two Spring Meeting programs per year.

The Committee also has been active in sponsoring committee and other programs. For example, during the 2014-15 ABA year, we held six committee programs, one teleseminar, and one networking event. We are on track this year to match those numbers, having already held two committee programs and a networking event. We are currently developing additional programs addressing competitive issues raised by cyber-security threats and innovation in transportation markets. We hope to hold those two programs in early 2016.

3. Other Developments

Our other recent efforts have focused on developing our membership base and ensuring that we meet the needs of our members. To that end, we have continued our practice of conducting a membership survey each Fall to solicit feedback from our members on our various Committee activities. Feedback from our membership surveys has confirmed our members’ interest in our biweekly e-Bulletin and helped drive our decision, discussed below, to revive our substantive newsletter, Icarus. We also have held networking events aimed at expanding our membership base. Finally, we have continued to use LinkedIn as an additional means of communicating information to our members.

II. Anticipated Policy Issues and Plans to Address Them

Antitrust law, media and telecommunications regulations, intellectual-property regimes, and standard-setting bodies are all complex areas of the law and policy which frequently intersect and overlap with one another. Sometimes those areas come into real or perceived conflict with one another. We anticipate that these areas of tension will supply the Committee with significant opportunities for discussion and for publication over the coming three to five years.

Areas of particular interest are discussed below. We identified several of these areas in our previous long-range plan; they continue to be significant areas of focus for the Committee. We also have identified additional policy issues—involving the sharing economy, technology platforms, and cybersecurity—which we are likely to address in our work over the next few years.

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A. Regulation of Broadband Access

We expect that “net neutrality” and the 2015 Open Internet Order, which was adopted by the Federal Communications Commission (FCC) and is being challenged in the D.C. Circuit Court of Appeals, will continue to receive national attention in the coming years. If it is upheld in the D.C. Circuit and the Supreme Court, the FCC’s continued implementation of the new rules will be of interest. And if it is not, the FCC can be expected to seek other methods and legal authority to regulate broadband internet access service. More generally, FCC leadership and the antitrust agencies have expressed their interest in ensuring competition for broadband internet access services as a supplement to or replacement for other channels of communication (e.g., for online video distribution in lieu of wireline or satellite services), including in other policy-making initiatives, merger reviews, and litigation.

Over the next three years, our Committee plans to sponsor a number of programs relating to developments in the Open Internet proceeding, as well as broader programs that address the ways in which the federal agencies conceive of broadband access, how technology developments are shaping their enforcement priorities, and how they assess mergers in the broadband area. Earlier this year, we touched on this latter issue in a committee program discussing the FCC’s merger review process.

B. What Is the “Relevant Market”?: Convergence and Multi-Sided Markets

Another issue critical to technology industries is the increasing challenge in defining markets, as previously distinct services begin to converge with one another. As telecom and video delivery services move toward IP platforms, we are seeing new and different ways in which entities from ostensibly different industries compete with one another—while still being subject to very different regulatory regimes. For example, video is no longer primarily provided by a cable company that delivers its service through a coaxial cable or satellite. Rather, video may now be delivered to consumers through a cable, fiber, or LTE wireless broadband connection from an over-the-top provider such as Netflix.

In addition, some media and technology areas, such as cable television, may be understood as multi-sided markets that serve multiple and distinct groups of customers. Not only are there traditional subscribers and advertisers, but there are video programming suppliers and internet edge content suppliers that seek distribution to subscribers.

As a result of these developments, it is increasingly challenging to assess what constitutes a properly defined relevant market and what kinds of market and network effects arise within and across markets as a result of particular firm conduct. We will provide a forum for the latest learning on these issues, as well as competing positions and viewpoints on these issues, through our publications and programming efforts.

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C. Technology Platform Issues

Beyond the relevant-market-definition issues associated with multisided markets discussed in the preceding section, technology platforms present challenging issues for courts and competition agencies evaluating allegations of anticompetitive conduct. Those issues include, for example, the proper role of dynamic efficiencies and network effects in the competitive analysis, as well as the larger issue of balancing the preservation of competition on the one hand and promotion of innovation on the other.

Technology platforms that have caught the eye of competition authorities include, among others, Internet search engines, mobile-phone operating systems, music-streaming services, and mobile-applications stores. In addition to the firm-specific investigations currently underway in various jurisdictions, the EC recently launched an inquiry into digital platforms as part of its Digital Single Market initiative.

The Committee will continue to focus significantly on technology platform issues, in both our publications and programs. In addition, we, along with several stakeholders, are currently exploring potential Section comments to the EC on its platform inquiry.

D. Antitrust and Standard-Setting Bodies

Standard-setting organizations (SSOs) have become ground zero for many of the battles between large firms that earn significant revenue through licensing technology contributed to information and communication technology (ICT) standards, on the one hand, and device and other ICT equipment manufacturers that are net licensees, on the other. (These developments have been sometimes referred to as the smartphone wars.)

Over the past few years, courts and antitrust enforcement agencies across the globe have struggled to define the obligations of firms that contribute technology to standards and agree to license on fair, reasonable, and nondiscriminatory (FRAND) terms. In addition, in an effort to define those obligations for themselves, the battling stakeholders have been working to influence intellectual property rights (IPR) policies at key SSOs across the globe. Most recently, the Institute of Electrical and Electronics Engineers (IEEE) updated its IPR policy to impose more stringent conditions on firms that agree to contribute technology to standards and to license their patents on FRAND terms. In response to a request from IEEE for a business review letter, the Department of Justice (DOJ) Antitrust Division stated that it had no present intention to challenge the revised policies.

The Committee expects law and enforcement policy on (1) unilateral-conduct issues associated with the licensing of standard-essential patents and (2) joint-conduct issues associated with SSO IPR policies will continue to develop over the next several years. These issues are highly relevant to all firms operating in the ICT sector and thus are important to the Committee’s agenda. We will follow and report on this area throughout the coming years, likely in the form of both regular e-Bulletin updates and committee programs addressing the most significant developments. We will continue to partner with the IP Committee, as appropriate, on the latter. Finally, our forthcoming

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Handbook on Antitrust in Technology Industries will provide significant coverage of the antitrust issues encountered by SSOs and their members.

E. The Intersection of Competition Law and Intellectual Property Rights

The intersection of competition law and intellectual property rights affects media and technology industries in numerous and varied contexts, and the legal and policy issues in this area continue to evolve. In addition to issues involving industry standards and IP, companies in the media and technology space are often engaged in buying and selling IP, and must evaluate infringement risk as they plan new products. Courts and agencies are continuing to assess merger and conduct issues in the secondary market for patents, including activity associated with patent assertion entities (PAEs). Courts and agencies are grappling with complicated questions involving relevant markets and competitive effects when patents are bought and sold in large portfolios, and the Federal Trade Commission is expected to complete its long-awaited empirical analysis of PAE activity in the near future. Meanwhile, DOJ is conducting a review of the consent decrees it reached in the ASCAP (2001) and BMI (1994) cases. In particular, DOJ is evaluating whether it should modify the consent decrees to better address the existing copyright-licensing practices regarding jointly-owned works of music.

Going forward, we expect to continue our close partnership with the IP Committee to identify and present programs on the many competition issues involving IP rights that are relevant to media and technology firms. We also will address several areas at the IP-antitrust interface in our forthcoming Technology Industries treatise, including horizontal and vertical restraints involving IP.

F. Unilateral Conduct

The telecommunications and high-technology industries have been the subject of extensive investigations and, in some cases, enforcement actions involving claims of monopolization and abuse of dominant position (e.g., IBM, Microsoft, Intel, and Google). A number of reasons may account for this—such as the exclusivity that intellectual property protections may confer, consolidation within relevant industries and markets, and concerns about leveraging power in concentrated industries with actual or perceived oligopoly or oligopsony structures.

Despite the long and evolving history of single-firm conduct cases since the 1970s and 1980s, the law remains unsettled in significant respects and poses some unanswered questions, including: What legal standards appropriately distinguish procompetitive discounting and bundling from unlawful exclusionary behavior? In what scenarios should individual companies be held accountable for refusing to deal with competitors and other market participants? What remedies are appropriate to redress and deter such conduct? What can the agencies and courts do to address Section 2 issues quickly and effectively in rapidly evolving industries, and how can they avoid inconsistent outcomes?

Going beyond the Sherman Act, the Federal Trade Commission has invoked its standalone FTC Act Section 5 authority over unilateral conduct by several technology

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companies over the past decade, including Dell, N-Data, Intel, and Google/Motorola Mobility. In light of the recently issued Section 5 policy statement, the circumstances under which the FTC will apply Section 5 to unilateral conduct by such firms remains an open issue.

We will address these various unilateral conduct issues through our e-Bulletin publication, as well as committee and other programs. In addition, we are devoting a chapter in our Technology Industries treatise to monopolization claims in the technology area.

G. Sharing Economy

The recent emergence of online and mobile peer-to-peer business platforms in certain sectors of the economy—known as the sharing economy—presents several complex yet interesting competition, consumer protection, and economic issues. These new platforms have the potential to revolutionize, and in some cases are already revolutionizing, highly-regulated and other heretofore stable industries, such as local transportation and property rentals.

The relatively quick development of the sharing economy raises competition issues as incumbent firms react to the entry of new firms and business models, as well as consumer protection issues, as authorities seek to ensure that such new entrants do not take advantage of consumers. More generally, governments in the United States and around the world are assessing how, if at all, to apply decades-old regulations written with conventional suppliers in mind to new businesses that are vastly different.

The Committee will address the legal and policy issues raised by the sharing economy through our e-Bulletin newsletter and committee programs. One of the programs we are currently developing will focus on the impact of the sharing economy on local transportation markets around the world.

H. Technology and Security

The communications industry is at the center of several interesting issues relating to technology, data security, and privacy that affect consumers and individual companies, as ISPs (wireline and wireless) provide the highways that not only are a vital part of America’s critical infrastructure and commercial fabric, but are also the means by which information is wrongly exfiltrated by a variety of unsavory actors.

For example, nation-state hackers have allegedly targeted the business secrets of U.S. companies in order to provide that information to their own national companies to help them compete in the marketplace. The U.S. government has recently adopted a sanctions regime to address potential hacking cases and has been entering into agreements with countries (recently with China) to bar such conduct, which may tip the competitive playing field. State Attorneys General also have brought cases against foreign companies that have allegedly used stolen software to compete unfairly against U.S. companies.

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At the same time, the rapid sharing of cybersecurity threat information is considered a promising tool to reduce the effective lifecycle of many such threats. To facilitate this, the DOJ and FTC have issued joint guidance on when this sharing among competitors would not raise competition issues; in addition, an antitrust exemption covering such sharing was recently enacted by Congress as part of the omnibus budget bill.

Finally, the emerging Internet of Things raises security concerns that include the protection of consumer information, and even physical safety as more systems and competing devices of various kinds have IP addresses and connect directly or indirectly to the internet. Cybersecurity and privacy are among the critical issues that may affect the advance of this major technology trend, as well as consumer trust and adoption. On the regulatory front, the FCC and FTC continue to work out how jurisdiction over certain evolving areas should be divided, and congressional action in this area is possible.

The Committee will address the competition, consumer protection, and privacy issues raised by the increasingly close connection between data security and technology through our e-Bulletin newsletter. We also will coordinate with the Consumer Protection and Privacy Committees to deliver relevant programming on these issues.

* * *

We expect that these many legal and policy questions will provide the Committee with ample topics for our programming and publication efforts in the coming years.


A. Scope of the Charter

The Committee’s framework of responsibilities largely has not changed in the three years since the issuance of the Committee’s previous long-range plan. The one notable development is a greater focus on consumer protection issues in the media and technology areas. However, we have not yet determined the proper role of the Committee in the consumer protection area; that is something we will continue to assess over the next year or two. As a result, we would not recommend formally modifying our charter at this time.

B. Membership Plans

The Media and Technology Committee has a strong membership, with approximately 715 members in total and about 300 members in our LinkedIn group. In fact, our Committee has one of the largest memberships in the Section, behind only M&A and International in number of members.

Going forward, the Committee will employ a variety of measures to sustain its membership, encourage new members to join, and enhance participation by both members and non-members. Specific steps will include: (1) conducting an annual survey of Committee members, the most recent of which we completed in November

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2015; (2) potentially holding an open “town hall” meeting for both Committee members and other interested persons; (3) continuing to recruit new contributors to our various publications, including in particular our biweekly e-Bulletin and our newsletter, Icarus; (4) continuing to explore the use of mobile platforms to connect with our members; (5) exploring the use of an advisory committee, which would consist of our most significant contributors and other selected members; and (6) developing programming with non-ABA entities, such as the Federal Communications Bar Association, whose membership’s interests are substantively aligned with those of our own members.

A very important goal for the Committee is to diversify its membership, especially by increasing the numbers of members who practice outside the United States, in-house counsel, newly practicing lawyers, minority lawyers, and non-antitrust lawyers. In addition, we will seek to take advantage of the fact that our Committee leadership includes attorneys at the FTC and DOJ to increase the number of government lawyers involved in our Committee. We discuss below specific proposals to achieve these objectives.

C. Past Weaknesses and Plans to Address

The primary challenges for our Committee have been: (1) finding the optimal strategy for communicating with our substantial Committee membership, particularly on the mobile devices and platforms on which they are most likely to read Committee content; and (2) creating unique programming to differentiate ourselves from other Section programming, given the popularity of media and technology antitrust issues.

We intend to address these challenges by continuing to improve and expand the Committee’s mechanisms for delivering information to our members and involving our members in Committee activities. Specifically:

• e-Bulletin. We have regularly published what is now a biweekly e-Bulletin, drafted by volunteer Committee members and overseen by a Committee Vice Chair. The e-Bulletin has become our primary means of communicating with our members about timely developments in a frequent, systematic way. The Committee members involved have taken a major, active role and should be rewarded with greater Section leadership roles in the future, which will also enable new members’ active participation in Committee activities and scholarship. In recruiting new volunteers for the e-Bulletin, we will emphasize our need for younger lawyers, consumer-protection lawyers, and lawyers who practice outside the U.S. so that we can strengthen our coverage of consumer-protection and international developments. Finally, we will periodically assess the optimal frequency of the e-Bulletin. At this time, it appears that a biweekly publication schedule is appropriate. However, it may be that our membership becomes interested in more frequent or less frequent but more in-depth updates.

• Icarus. The last issue of our newsletter, Icarus, revolved around First Amendment issues in the application of antitrust and consumer-protection law in media and technology. It contained multiple sophisticated articles and was

10

supplemented with a committee program discussing these issues. While this was a success—membership survey responses indicated a strong interest in our newsletter—the Committee has struggled over the past two years to produce another issue of Icarus. However, we have begun a concerted effort to re-launch Icarus, having set a goal of producing at least one issue during the current ABA year. We have assigned this project to a Vice Chair and have begun lining up volunteers to draft substantive articles. We are considering several potential formats for the next issue, including a symposium, a year-in-review, or a collection of articles on various media and technology issues.

• Programming. We have plans to leverage the skills and insights of our members

in helping to conceive of, plan, and organize our committee programs, teleseminars, and networking events. For example, we plan to work with the editors of our e-Bulletin, who are constantly monitoring media and technology developments, to come up with ideas for committee programs to hold during the rest of the ABA year. We are also exploring different programming formats, such as a series of committee programs covering a broad topic in the media and technology space. Finally, we are seeking to be more involved in programming that addresses consumer protection issues that frequently arise in media and technology industries.

• Social Media. We have set up a LinkedIn group to which we post content in

addition to Connect. (We previously maintained a Twitter account; however, based on resource limitations, among other reasons, we decided to consolidate our online postings in LinkedIn.) Going forward, we will develop a more sophisticated understanding of our members’ use of social media outlets and mobile platforms through our annual membership survey and potentially an advisory committee that we are exploring. We will tailor our publications, programming, and other activities via those outlets used most frequently by our members. D. Ongoing Activities

1. Substantive Committee Programs

Looking ahead, we will aim to initiate and sponsor five to six Committee programs and/or teleseminars each year focusing on a variety of timely subjects. As mentioned above, we are well on our way to meeting that goal this ABA year. In addition, the Committee has expended significant efforts in proposing and developing Spring Meeting programs. We are co-sponsoring three such programs at the 2016 Spring Meeting.

2. Networking Opportunities

In addition to our substantive programs, we are responding to member demand for networking opportunities by hosting two or three social gatherings during the current ABA year. Earlier this month, we and the IP Committee held a successful networking

11

event featuring FTC Chairwoman Ramirez and AAG Bill Baer in Washington, D.C., which drew over 50 attendees. We are currently developing another networking event with the Asian American Bar Association of New York, to be held in 2016 in New York City. To the extent we are able to hold a third event, it would likely take place sometime next year in Northern California.

3. Publications and Newsletters

We have several different publications underway:

• our biweekly e-Bulletin publication covering recent developments; • Icarus, our substantive newsletter analyzing trends and legal and policy issues

within media and technology industries; • our contributions to the Regulated Industries chapter of Antitrust Law

Developments (8th ed.) and the 2015 Annual Review of Antitrust Law Developments; and

• a new Handbook on Antitrust in Technology Industries, which we expect to

publish in mid-2016.

We believe that these different forms of communication with our members—from short, periodic updates on recent events to more in-depth analyses of industry trends to comprehensive coverage of relevant legal doctrines—will help meet the broadest possible audience by offering information in broader ways than we have done previously.

4. Technology and Innovative Forms of Delivering Value to Our Members

The Committee actively contributes to the Section’s social media offerings through our LinkedIn account, where we post the same content as on Connect. We have continued the practice of assigning responsibility for our LinkedIn account to our Young Lawyer Representative. We also continue to assess the optimal use of Connect. The Committee moved exclusively to Connect (from the list-serv) in March 2015. We use Connect primarily to distribute our e-Bulletin and announcements of upcoming programming. In addition, our members periodically post recent judicial and agency developments on Connect. We are considering how best to use Connect. In particular, we are trying to determine how frequently to post, given the number of other communications our members typically receive. Finally, we will explore how best to use the Committee’s existing webpage. It is in need of updating; however, we want to have a better idea of how, if at all, our members use the webpage before undertake that updating.

We also use technology to receive information from our members. For example, we conduct an annual online survey of our members. We intend to use our electronic channels to solicit member input on their preferred forms of content delivery, as well as their participation in Committee activities.

12

5. Joint Activities with Other Committees

The Committee actively seeks opportunities to co-sponsor programs and other events with our fellow Section committees. As discussed above in Section I.B, we interact frequently with other committees, including in particular the IP, International, and Federal Civil Enforcement Committees. We also have begun working more closely with the Section’s three consumer-protection-focused committees.

99997.033822 EMF_US 58672958v3

13

MEMORANDUM

TO: Jonathan Jacobson (Chair, Long Range Planning Committee & Section Vice Chair)

FROM: Privacy and Information Security (PRIS) Committee Gene Burrus (Chair)

Khaliah Barnes (Vice Chair) Chris Casamassima (Vice Chair) Aryeh Friedman (Vice Chair) Lydia Parnes (Vice Chair) Yael Weinman (Vice Chair) Eric Whisler (Young Lawyer Representative)

SUBJECT: Draft Privacy and Information Security Committee Long Range Plan for 2015-17 DATE: January 8, 2015

*****

This Memorandum sets forth the Long Range Plan for the Privacy and Information Security (PRIS) Committee. The Memorandum provides: (1) committee background; (2) relevant anticipated policy issues likely to arise over the next three years; and (3) long term plans to strengthen the committee.



The area of privacy and information security remains an area of dynamic expansion and importance, fueled by the rapid pace of technological advances, data use in business and government, and increasing criminal threats to privacy and security. Therefore a critical goal of PRIS remains to ensure that timely updates and analysis are provided to our growing number of members through a variety of channels. We continuously monitor and provide reports on privacy issues affecting technology, business practices, legislation, regulatory and self-regulatory initiatives.

PRIS is also engaged in drafting comments on proposed legislation in the US and international jurisdictions. In collaboration with the other consumer protection committees, we publish a newsletter several times a year that addresses current events and provides analysis of privacy and data security issues. In addition we offer a variety of programming on privacy topics throughout the year.

PRIS leadership is composed of people with diverse professional backgrounds including government, law firm, in house, trade organizations and consumer advocacy groups. The breadth

1

and depth of experience in leadership and in our membership enables us to deliver unique value to the membership.

B. Interaction with Other Committees and Sections

As privacy and data security issues often arise within or in connection with other Section practice areas, PRIS frequently collaborates with other committees within the Section to develop programs, panels and publications. For example:

• There are monthly calls for Consumer Protection committee chairs

• The Consumer Protection committees jointly publish a newsletter

• Co-sponsorship of numerous Spring Meeting programs, webinars and other programs

We will continue to explore joint efforts and programming with other Sections in the ABA, where Privacy and Information Security impact those practice areas.

C. Membership

Membership in our committee now stands at over 400 people. We have used a blog, our webpage, and monthly update programs to drive membership, interest and participation. Membership includes people from law firms, government, in house, consumer advocacy groups and trade organizations. As a committee we do face the challenge that unlike the Antitrust-focused committees in the Section, we are not the primary “go-to” organization for Privacy professionals. We believe that a focus on deep policy thinking and analysis over practical compliance (which tend to be saturated by other organizations) will allow us to better attract lawyers to focus interest in our committee. We will continue to leverage our relationships with government lawyers, and seek to expand to attract plaintiff attorneys. The Consumer Protection committees have launched an in house forum to recruit and interest professionals working in house. In addition, there are joint plans with the other Consumer Protection committees to host a reception at the 2016 Spring Meeting.


The Committee continues to focus on providing high quality regular programming on interesting and timely topics. PRIS sponsored or co-sponsored numerous programs, including monthly updates on developments in privacy and information security and frequently held forums for in house counsel. In addition, we expect to have published by the 2016 Spring Meeting the Consumer Data and Privacy Handbook. .


A. Major Anticipated Policy Issues within Committee Charter Likely to Arise Within Next 3-5 Years

2

1. Intersection of Privacy and Antitrust

Especially in technology industries, privacy is emerging as a key competitive differentiator and may inherently involve tradeoffs with other aspects of products or services delivered by companies in those industries. As a key aspect of competition, privacy appears poised to emerge as a significant antitrust issue in mergers that threaten to reduce competition in privacy, in Section 1 litigation where companies coordinate around addressing privacy concerns in anticompetitive ways, and in Section 2/Abuse of Dominance cases where dominant firms violate privacy laws in order to gain competitive advantages over rivals. This coming intersection is beginning to be mentioned by enforcement officials around the world, and will likely accelerate.

2. Privacy Legislation

Around the globe, countries are developing and passing privacy related legislation to address everything from encryption, collection, storage, and use of data. In the Federal, State, and International arenas, PRIS must be in a position to alert and educate members on developments, and comment on pending legislation where appropriate.

3. Acceleration of Cybercrime

As companies, governments, and consumers increasingly find themselves the victims of cyber criminals, breaching computer systems and stealing data or shutting down systems, managing both the technical and legal issues around prevention of and liability for cyber crime will be of ever increasing importance.

4. Access by Governments

As investigation and prevention of terrorism remains at the forefront of concern for governments around the world, resolution of issues surrounding cross border access by governments to data held by companies will need to be resolved. PRIS will need to track litigation and legislation and be in a position to educate membership, provide forums for discussion, and comment on pending legislation where appropriate.

5. International Developments

While related to all substantive areas outlined above, it seems important to call out international developments as an area all to itself as important to address. Technology advancement means even the smallest local businesses as well as mulit-nationals are dealing with data an information crossing borders, stored “in the cloud”, and processed by providers that may be based in foreign jurisdictions. Recent developments like those in “safe harbor” rules highlight the importance of maintaining a world-wide vision for the Committee.


We believe that our current approach to advertising issues will facilitate addressing the identified anticipated policy issues. In addition, we intend to more regularly partner with industry

3

committees to address developments that are particularly relevant to particular industry sectors. For example, cases discussing the scope of the CFPB’s authority and jurisdiction are particularly relevant to the financial services industry and thus present an opportunity to collaborate with the Insurance and Financial Services Committee. Cases related to the FCC’s intention to regulate internet service providers as common carriers would be particularly relevant to the Media and Technology Committee. Leveraging the work of industry committees should help to more efficiently and proactively identify emerging trends.

An additional possibility for addressing anticipated policy issued involves leveraging ABA Connect and related social media platforms. At present, it is not entirely clear the direction that the section plans to take with regard to ABA Connect. Developing an approach that facilitates more regular blog posts and encouraging daily use of the site for following relevant developments will help to actively monitor emerging issues.

Finally, to kickstart the international component and drive membership among international privacy lawyers (who, unlike in the antitrust practice, have not necessarily heard of the Section), the Committee should consider (perhaps in concert with other CP committees) a conference in Europe.

III. Long-Term Plans to Strengthen the Committee

A. Scope of Charter

The PRIS charter sets for the long term goal of providing critical content on the broad array of privacy and data security issues likely to be of most interest and value to our members. The charter is flexible enough to adapt to rapid changes in the field and does not appear to need any amendment in order to encompass our long term goals.

B. Plans to Strengthen/Expand Committee Membership

As discussed in Section I.C above, we plan to expand offerings targeting particular industry sectors to expand membership beyond the customary private defense bar. We also hope to work more regularly with academics, federal and state enforcers, and attorneys outside of the DC area. Internationally, we need to consider programming, conferences or other means of direct outreach to a group of lawyers that have not previously heard of the Antitrust Section. We are considering the feasibility of putting on a Privacy focused conference, or perhaps combine with other Consumer Protection committees to put on a broader conference in an international location, most likely Europe.

C. Principal Weaknesses/Impediments Limiting Committee Progress

The lack of active engagement with the plaintiffs’ bar is the principal weakness of the committee and we hope to address by more regularly involving plaintiffs’ attorneys in relevant programs. In addition, the fact that this Committee isn’t the “must belong” organization for privacy

4

professionals means we sometimes are a second thought to many professionals who lack budget and time to participate in more than one professional organization.

D. Infrastructure for Ongoing Activities

We are transitioning to the Connect infrastructure for communications with membership and believe that infrastructure will work well. We do not recommend any changes to committee infrastructure at this point.

5

ABA SECTION OF ANTITRUST LAW

TRADE, SPORTS, AND PROFESSIONAL ASSOCIATIONS COMMITTEE

LONG RANGE PLAN

December 15, 2015

Chair: Ryan Tisch

Vice Chairs:

Bob Hubbard Mark Katz Gary Kubek Creighton Macy Denes Rothschild (YLR) Kimberly Scott Gail Slater

DCACTIVE-34607478.1

I. COMMITTEE BACKGROUND


• The TSPA Committee provides the primary forum for SAL members to locate content and interact with one another on issues that have to do with association antitrust issues.

• This includes, specifically, cartel and other joint conduct issues arising from association activity, antitrust consequences of association formation and governance, and industry-specific antitrust policy (i.e. sports exemptions and the interaction between antitrust and labor law in professional sports leagues and players’ associations).

• TSPA benefits from strong overlaps with the mandates of other SAL committees, including Exemptions and Immunities, Mergers and Acquisitions, and Joint Conduct. This has led to a large quantity of co-sponsored programming and content creation in recent years.


• As noted above, TSPA has successfully co-sponsored Spring Meeting panels, brown bags, and other committee programming with a number of other SAL committees. Specifically, we have traditionally been close with Exemptions and Immunities, but we continue to look for other opportunities to work with other committees.

• We continue to work with Books & Treatises to update relevant portions of the ALD, and to advance our update of the ABA Antitrust and Associations Handbook.

C. Membership

• The Committee currently has 365 members, which is in line with our expectations. Active members have increased significantly, as evidenced by the larger roster of authors in our newsletter and the number of participants in our Connect discussions.

II. ANTICIPATED POLICY ISSUES

A. Identification of Major Trends and Policy Issues within the TSPA Charter Likely to Arise in the Next 3-5 Years

• Continued antitrust issues surrounding player rights and controversies between player classes and associations and the professional sports leagues;

DCACTIVE-34607478.1

• Continued antitrust issues related to sports player amateurism, likeness rights, and injuries and the college sports associations (primarily the NCAA);

• Additional controversies between upstart sports leagues and establishment associations (for example the Elite Rodeo Athletes/Professional Rodeo Cowboy Association controversy);

• Controversy between localities and professional sports leagues;

• Continued development of state action immunity doctrine as it relates to professional licensing boards and other associations with partial state oversight;

• Antitrust investigations of professional association governance, including restrictive rules on client poaching, pricing, and membership;

• Ongoing involvement of trade associations in antitrust conspiracies; and

• Involvement of associations in IP-related issues such as standard setting.


• The Committee plans to continue its development of targeted written and program content to address major developments in state action immunity and sports association law, and to develop new content targeted to other areas.

• The Committee plans to continue to develop strong rosters of speakers in the tight-knit communities affected by anticipated policy developments, particularly in professional sports leagues, the largest national commercial trade associations, and in state level professional licensing groups.

• The Committee plans to develop further its growing roster of expert authors in anticipated areas of policy development.

III. LONG TERM PLANS TO STRENGTHEN THE COMMITTEE

A. Scope of Charter

• Should the Charter of the Committee be modified, and if so, how?

The Committee does not see a need to modify the Charter at this time.

• If so, how will modification of the Charter impact other Section Committees?

DCACTIVE-34607478.1

N/A

• If so, what steps will the Committee take to implement modification of its Charter?

N/A

B. Membership: Identify plans to strengthen/expand Committee membership

• The Committee plans to expand official membership by numbers by at least 25% in the next 3-5 years, and to be able to represent that 50-75 of its official members are active in Committee work at any given time.

• Key efforts will include:

Expanding our existing, highly successful personal outreach efforts to build our roster of junior lawyers willing to work on programming and written content;

Formation of a pilot law student “working group” for sports association law, in conjunction with sports law groups at key schools;

Continue to develop our roster of regular speakers engaged on key topics (building on very successful efforts in the last 2 years to identify and cultivate expert speakers in the ongoing sports cases and the N.C. Dental case);

Engage in coordinated outreach to general counsels of trade associations, via speaking invitations and invitations to provide written content, with the aim of creating an “association counsel” panel within the Committee;

Extend efforts to use the YLR and related young lawyers’ events and programming to expand membership among young lawyers; and

Mandate annual town halls to promote identification of unfulfilled demand for programming and other content.

C. Principal weakness or impediment limiting Committee progress in the past, and how the Committee plans to address

• The Committee came out of a less-active period during the last 12-18 months, partly due to a relative paucity of exciting developments in its core subject matter.

DCACTIVE-34607478.1

• That period is over. In the past 18 months, the Committee has produced a higher amount of content and programming than during any other recent timeframe, driven by fast-paced developments in sports, state action immunity, and association governance issues.

• We plan to continue our excellent momentum and use it to build a bigger, more comprehensive committee over the next five years.

D. Ongoing activities: Identify plans to strengthen the Committee’s ongoing activities for the next several years and how the Committee leadership is organized to accomplish these goals

• CLE and non-CLE Programs

The Committee has presented or co-sponsored at least two programs at each of the last 2 Spring Meetings, and has consistently proposed 4-5 high-quality Spring Meeting programs each year of the last Long Term Plan period. We will continue to do so and anticipate continued success.

The Committee has substantially increased the volume of its live programming (brown bags, teleseminars) over the past 12-18 months, and will continue to do so, aiming for roughly a dozen Committee-sponsored programs per year (exclusive of Spring Meeting content).

• Publications (all Committees should check Section Long Range Publications plans to identify publications that may be coming up for a new edition) and newsletters

The Committee has revived Ass’n, its twice-annual newsletter, and used the opportunity to draw in additional members to active Committee participation; the goal is to continue publishing two editions of Ass’n annually.

The Committee is currently working on two publications that will take it through at least half of this Long Range Plan: the next edition of Antitrust and Associations and ALD 8.

The Committee is undertaking a review of existing literature to determine whether any new publications should be planned to augment its current offerings.

• Technology and other innovative forms of delivering value to members

TSPA has fully transitioned its online offering to Connect and has one of the most active Connect discussion sites of any SAL committee, with over 120 active discussions posted. That figure

DCACTIVE-34607478.1

far surpasses our short term goals and offers valuable information to our membership. We hope to further expand the group of leaders and members who actively communicate on key developments via Connect and believe that a healthy level of activity would have 3-5 updates/discussions posted weekly.

We have toyed with the idea of a “wiki” resource that sources key information and analysis on foundational caselaw and significant developments, to be hosted on Connect, but have not in the past found a workable formulation for such a project. The Committee will designate a task force to consider whether such an effort should be undertaken and to plan to do so if the answer is yes.

• Joint activities with other Committees

The Committee plans to continue working with other Committees, in particular E&I and M&A, to create written and program content. We also plan to expand our reach to include more active joint programming with Joint Conduct and the Young Lawyers.

We hope that other issues will call for increased collaboration with subject matter committees like International, Media & Technology, and International.

DCACTIVE-34607478.1

December [ ], 2015

ABA SECTION OF ANTI-TRUST LAW

UNILATERAL CONDUCT COMMITTEE

LONG RANGE PLAN 2016-2018 I PRIMARY MANDATE AND GOALS OF COMMITTEE (CHARTER)

A. Existing Charter

The current Charter of the Unilateral Conduct Committee indicates that its goal is to be a

comprehensive source of information on the application of competition law to dominant firms

and to offer diverse perspectives and foster informed debate over the laws and policies governing

unilateral antitrust conduct worldwide. In addition, the Committee’s charter indicates that it

assists the Section of Antitrust Law and the larger ABA in responding to requests for

commentary on unilateral conduct competition policy in general.

B. Proposed Changes to Charter

The Committee believes that the existing Charter remains largely appropriate in

substance.

P a g e | 2

II PRIMARY SUBSTANTIVE AREAS OF ANTICIPATED FOCUS

A. Previously Noted Areas of Focus

In the Committee’s previous long range plan, it identified a number of areas of

anticipated focus, including: engaging in international developments with respect to

monopolization and abuse of dominance (with a particular focus on China) and a continued focus

on issues of IP rights and high technology. It also noted a focus on issues related to bundling and

tying and Most Favored Nations agreements. Additionally, the Committee anticipated focusing

on issues regarding the interaction of Section 5 and Section 2, specifically whether Section 5

does and should have an independent and broader application. Finally, the Committee addressed

the broad theme of integrating unilateral conduct analysis with the ideals of consumer protection.

B. Updated Areas of Focus

Going forward, the Committee notes that developments in the assessment of market

power and anticompetitive effects may have led to an increased impact of antitrust theories based

on unilateral conduct on marketplace behavior. Market share as a screen may be dropping.

Similarly, in areas such as aftermarket and lock-in cases, market definition has supported use of

unilateral conduct theories. The Committee intends to devote attention to this area to describe

these developments and their import.

On the international front, the Committee intends to continue to study and report on

parallel developments across jurisdictions, comparing and contrasting the standards used to

evaluate unilateral conduct. For example, we recently completed a brown bag program looking

at how different jurisdictions treat “product hopping.” In addition to advancing practitioners

understanding of the similarities and differences in standards, the Committee expects to

contribute to international advocacy by the Section on enforcement standards.

P a g e | 3

III ADMINISTRATIVE ASPECTS OF COMMITTEE WORK

A. Membership

Over the past three years, the Committee’s membership has grown substantially. We

reported 550 members at the time of our last Long Range Plan. The spreadsheet reporting our

current membership shows approximately 900 members. This is a healthy membership and the

Committee programs have the potential to thus reach a significant audience.

Over the coming three years, the Committee seeks to both to engage a broader section of

the membership in the active work of the Committee, and also expand and diversify the

membership, particularly with an emphasis on diversification of the members actively

participating in the Committee’s activities. We have designed and expect to implement in the

upcoming year membership outreach programs, focused in particular on newer and diverse

attorneys, to encourage an interest and participation in the activities of the Committee. Part of

that effort is the diverse leadership of the Committee whose active roles should encourage the

diversification of the participating members.

At the same time, the Committee intends to promote generally more active participation

in the Committee. We have broadened the number and nature of our substantive activities and

expect that those additional activities will foster (indeed their success depends upon) active

participation. Use of Connect has proved a valuable and effective tool for encouraging and

obtaining volunteers for these efforts.

B. Vice-Chair Responsibilities

The Committee has worked, over the last year or two, and will continue to work, to

assign specific areas of responsibilities to its Vice-Chairs. All Vice-Chairs took an active role in

the development and submission of Spring Meeting Proposals. In addition to that activity, the

Committee’s Vice-Chairs have the following portfolios:

P a g e | 4

Scott Sher: Special Project – Antitrust Compendium (see below); International Comments

Tanisha James ALD VII Update; Membership Recruitment and Diversity

Rebecca Valentine Committee Programs and Spring Meeting Program Session Chair

Michael Lawrence Committee Programs

Rocky Tsai Publications

Kim Van Winkle Newsletter

Joshua Chad (Young Lawyer Representative):

Connect and Social Media

IV COMMUNICATIONS & OUTREACH EFFORTS

A. Newsletter

The Committee’s newsletter, which has been recently renamed “Monopoly Matters” has

been revamped and is now appearing semi-annually. The Committee’s goal is to ensure

continuity in this regard over the coming year or two and to increase the substantive depth and

focus of the newsletter.

B. Web Site

The Committee has enhanced the value of the website to its membership by creating a

Compendium of Section 2 cases that should serve as a valuable resource to practitioners. The

Compendium was a substantial undertaking and is also one of our various activities that will

allow increased participation in the Committee as we work to maintain and update it. In addition

to maintaining the Compendium, the Committee will continue to monitor the website on a

regular basis to ensure that it is up to date and that is serves as a resource and point of access for

Members.

P a g e | 5

C. Connect

The Committee has fully switched over to Connect. We have 670 Community Members.

The Committee has had an active program of publishing recent developments through Connect.

We are in the midst of re-tooling that program to broaden its reach to include international

developments and to create a team (again with an eye to increased Membership participation)

with responsibility for those update. The Committee intends to rely exclusively on Connect as

its social media.

D. Relationships with other Committees and Organizations

As noted above, the Committee has been active, particularly in its work in preparing

commentaries, in liaison with other sections of the ABA, particularly the International Section.

The Committee, of course, has also been active in cooperating with other committees in various

programs and Spring Meeting panels. The Committee has not been as active as it could have

been in outreach efforts to other international associations. This is an area it plans to expand over

the coming years, with a goal both of delivery of better and more comprehensive programming,

and also building membership.

The Committee has been active in the work of the ICN Unilateral Conduct Working

Group and has contributed to the ICN UCWG work products, including its workbook and its

recommended practices, and also participating actively in the ICN’s workshops and annual

meetings. The Committee will continue this work.

V MAJOR PROJECTS PLANNED

The Committee has two major publications in the works. One, a handbook on Standard

Setting, is progressing well. The second, a monograph on Monopsony, has hit a road bump and

the Committee is reconsidering leadership of that project. The Committee will also examine

whether an update is needed of the publication, Monopolization and Dominance: An

P a g e | 6

International Perspective.” Consistent with the priorities stated above, the Committee is inclined

to undertake that update if appropriate. Finally, the Committee is undertaking the rewrite of

Chapter 2, Monopolization and Related Offenses.

ABA Section of Antitrust Law Committee Activities Chart

December 1, 2015

Advertising Disputes & Litigation (ADL) Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations John E. Villafranco Jessie Beeber

Christopher Cole John Graubert David Mallen Terri Seligman

Tiffany Ge Christine Sommer Svetlana Gans

Members Newsletters

Current period

Last period Last year

Current Period

Current Year

Plan (Number)

316 316 259 0 0 Not Specified

Sponsored Programs: Description (Last period)

Date Co-Sponsoring Committees Title Type Attendees

9/8/2015 CP, PRIS, Corporate Counseling

Consumer Protection Monthly Update Committee Program

28

9/16/2015 CP, PRIS Privacy and Information Security Monthly Update Committee Program

10



28


19



25

11/17/2015 N/A Teleseminar: What's New in Advertising Law, Claim Support and Self-Regulation?: A Recap of NAD's Conference

Committee Program

21



29

12/14/2015 CP The ABA Working Group Report on the Advertising Industry Self-Regulatory System

Committee Program

3


25

12/2015 CP Teleseminar: The Use of Experiments in False Advertising Litigation.

Committee Program

TBD

TBD N/A Teleseminar: Analysis Group Program on Surveys and Experiments in the Context of Litigation

Committee Program

TBD

Diversity and Other Membership Outreach Efforts

Date Description of Initiative

TBD Law school program to reach out to young attorneys

TBD ABA Advertising, Consumer Protection, and Privacy Law Networking Happy Hour

Publications

Title Status Status Last Period Original Date

Current Date

“What’s In Store” – Article re NAD’s changes to its procedures following the Self-Regulation Working Group Report

Submitted for Publication Drafting - Terri Seligman is leading the effort

December, 2015

December, 2015

Consumer Protection in China In progress – John Graubert In progress – John N/A N/A

Sponsored Programs: Number

Type Compl. Sched. Plan Prior Year Committee Prog. 6 3 16+ 23

Teleseminar 0 1 1 0

Town Hall 0 0 1 0

Spring Meeting 0 0 9 4

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

leading team to discuss options Graubert leading team to discuss options

ASRC/NAD Practice Manual In progress - John Villafranco leading team to discuss options

In progress - John Villafranco leading team to discuss options

N/A N/A

CP/ADL Bi-Monthly Update Bi-Weekly Bi-weekly Ongoing Ongoing

Symposium on Science, Advertising and the FTC In progress – John Graubert leading team to discuss options

In progress – John Graubert leading team to discuss options

N/A N/A

Other Developments Relevant for Council Review

Committee has a plan for and has begun using Connect for committee events, news and sharing of information. So far this year, there are 24 Connect messages posted on ADL’s Connect page.

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Agriculture and Food Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Vandy Howell August Horvath

Anthony Aaron James Pizzirusso Daniel McInnis

Adrian Fontecilla Steven Cernak Adam Biegel

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

213 212 188 1 2 3



9/2 3 Spring Meeting Proposals Accepted:

- Taming the Beast – Corporate Counsel Speak

- Marijuana, Twenty-Three States and Counting…

- Technology, Big Data and Juries: What Persuades?

11/2015 Reached out to speakers for marijuana panel dates in Dec or Jan. Invited Devika Kewalramani (ethics) and Bryna Dahlin (legal environment). Working on dates.

Committee Program /Teleconference



8/2015 Jamie Pizzirusso reached out to the Diversity Committee to discuss strategies

9/2015 Chairs/Vice-Chairs reached out to own firm ABA members for interest in Agriculture and Food Committee

10/2015 Chair letter to members

Publications


Current Date

Agriculture and Food Newsletter #1 Released Working Oct 13, 2015

Agriculture and Food Handbook Second draft went to B&T. Hope to have book out by Spring meeting.

Second draft to B&T early Nov, final draft to Council early Dec, Council comments early Jan, final draft early Feb

Still hope to have

completed book to ABA Publishing

Feb 15


Three more installations of “The Afternoon Snack: Recent News in Food & Agriculture” have been posted on the discussion board in the past period.

Our second substantive newsletter will be released in January.

Putting together three teleconference/committee program panels for Dec – Feb. - Marijuana panel - FDA Action and Inaction in Food Litigation - Sell by Dates on Food: Center for Food Integrity


Type Compl. Sched. Plan Prior Year Committee Prog. 0 0 3-5 4

Teleseminar

Town Hall

Spring Meeting 7 Submissions 3 Accepted 1-3 1

AMECURRENT 706724197.3 14-Jun-13 21:45

ABA Section of Antitrust Law Committee Activities Tracking Chart

December 1, 2015

Cartel and Criminal Practice Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Mark Rosman Michelle M. Burtis

Joyce E. Choi Alan R. Dial Stacy E. Frazier Adam C. Hemlock Randal T. Hughes J. Brent Justus Roberta D. Liebenberg John F. Terzaken

Milosz Gudzowski

Hill B. Wellford

Members Newsletters List Serv/Blog Messages

As of today

As of your last report

As of the beginning

of the ABA year

Since your first

report

Since the beginning of the ABA

year

No. in Annual

Plan

As of today

As of your last

report

As of the beginning of the ABA year

712 705 693 1 1 3 9 8 9

Sponsored Programs: Description Since 9/3/15


September 21, 2015

-- Navigating the Globe – Cartel Enforcement Around the World: UK update

Committee 30

September 22, 2015

-- Extradition and Antitrust: Where Are We Now? Committee 41

November 2015

-- Bi-Monthly Criminal Antitrust Enforcement Update Committee --

November 19, 2015

-- Hot Topics in Antitrust and Criminal Enforcement Committee 41

November 20, 2015

-- Ask Me Anything About... Cartel Investigations in Latin America Committee 11

November 30, 2015

Compliance and Ethics

Insurance and Financial Services

Cartel Facilitators: When Vertical Conduct Crosses over to Horizontal Liability

Committee 49



TBD Outreach to Women’s Antitrust Organization and Cartel Enforcement Group

TBD Recruitment of International Attorneys

TBD Examining recruitment of law students


Type Since the beginning of the ABA year

Upcoming/ Scheduled

No. in Annual Plan

During the last ABA year

Committee Prog. 5 1 9+ 8

Teleseminar 0 1 1 2

Town Hall 0 2 2 1

Spring Meeting N/A 2 1 1

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Publications

Title Status as of today Status as of your last report

Original Pub. Date

Current Antic. Pub. Date

International Criminal Cartel Handbook In Process In Process May 2016 May 2016

Sentencing/Leniency Handbook Finalizing Draft In Process October 2015

December 2015

ALD 2015 Annual Review 4th Draft Submitted In Process January 2016

January 2016


-- Cartel and Criminal Practice Committee Newsletter for Fall 2015

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Civil Practice & Procedure

Leadership

Chair(s) Vice Chairs YLR RCM Operations Elizabeth A.N. Haas Tiffany Rider

Ian R. Conner Danielle Haugland Paul Saint-Antoine Kathleen P. Wallace Ronald F. Wick Eric J. Wilson

Erica Weisgerber Sean P. Gates

Adam Biegel

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

571 571 590 1 1 5



11/9/15 Fall Panel & Reception – Be the Boss: Making it Rain Town Hall 25 (39 pre-registered)

12/1/15 Healthcare and Pharmaceuticals; Federal Civil Enforcement

The Steris-Synergy Case: A Post Mortem Committee 45

12/11/15 Healthcare and Pharmaceuticals; State Enforcement; Intellectual Property

Product Hopping Cases: Where Are We and Where Are We Headed

Committee 68

12/16/15 So Now You’ve Pleaded Guilty: Implications of Criminal Pleas in

Civil Litigation

Committee 43

Prior:

9/17/15 Playing eDisco Ball with the Agencies…Do You know the Rules? Committee 27

3/16/15 So The Agency Wants to Talk: Advice and Issues in Pre-Complaint Depositions

Committee 47 dialed in

3/9/15 Membership and Diversity Committee

Women in Antitrust Litigation Committee 29 attendees

2/2/15 Get Up, Stand Up: Preparing For Your First Oral Argument Committee 21 dialed in (48 pre-registered)


Type Compl. Sched. Plan Prior Year Committee Prog. 1 3 10 8

Teleseminar 1

Town Hall 1 1 1

Spring Meeting 15 proposed; 1 accepted

3 approved


December 1, 2015



We have a significant focus on diversity and discuss at each of our monthly calls how to attract diverse members. When planning content generated by the committee, we focus on outreach to diverse groups to ensure we can attract diverse members. We actively solicit participation of diverse members in Committee activities. Each vice-chair responsible for each Committee activity will ensure that a diverse cross-section of the Section is involved.

We are focusing on further exposure of our committee to attract more members. Each vice-chair responsible for each Committee activity/publication will identify other committees in which its members may have an interest in our activity/publication and ask the leadership of the appropriate committee to share it with its members.

Publications


Current Date

The Indirect Purchaser Litigation Handbook Working through comments from Council. Targeting November 4 for print version

Complete. Submitted to ABA Publishing November 2015.

November 2015

Obtaining Discovery Abroad Editing phase. Danielle just edited a chapter on obtaining discovery from Italy.

Awaiting further instruction/input.

Jury Instruction Handbook Assisting on as needed basis Antitrust Law Developments, Eighth Edition Has a full slate of drafters


The Committee formed the Young Lawyers Advisory Panel (“YLAP”) in 2012 with a pair of goals: (1) filling the void in legal writing between rapid-fire client alerts and more inscrutable law review articles; and (2) providing meaningful opportunities for young antitrust lawyers to show off their writing mettle. The panel, consisting of 25 members, published a monthly e-bulletin newsletter entitled “Perspectives in Antitrust” beginning in December 2012. We have continued the “Perspective in Antitrust” Newsletter in 2015. We are continuing to create a pipeline active members by giving further opportunities to YLAP members within committee programs.


December 1, 2015

Competition Torts Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Matthew Kent Nick Grimmer

Angelo M Russo Dean Harvey James Eiszner Rachel Adcox

Marc Tobak Alfred C. Pfeiffer Christie Grymes Thompson

Members Newsletters

Current period


Current Year

Prior Year Plan (Number)

280 280 274 0 4 3



8/24/2015 Young Lawyers Division

Preparing for an Antitrust Trial as an Associate Committee Program

43

Sponsored Programs: Description (Planned)


12/15/2015 Multistate Indirect Purchaser Actions: Using the Consumer Protection Statutes of Illinois Brick Repealer

(R. Adcox)

Committee Program

24

1/2016 ACPERA/RICO Update (M. Kent) Committee Program

TBD

2/2016 Non-Competes: State By State (D. Harvey) Committee Program

TBD

3/2016 Health Care & RICO (A. Russo) Committee Program

TBD

Spring Meeting

Unilateral Conduct Private Jury Trials: Reality or Reality TV? (R. Adcox) Spring Meeting Program

TBD

5/2016 Litigating with the Agencies (M. Kent) Committee Program

TBD

7/2016 One of the below rejected Spring Meeting proposals Committee Program

TBD

TBD International Committee

Business Torts Around the Globe

Committee Program

TBD

TBD Civil Redress

ACPERA in Civil Litigation Committee Program

TBD

TBD Competition Torts: Filling the Antitrust Gaps (Everything You Need to Know)

Committee Program

TBD

TBD Trial Practice Antitrust War Stories: Competition Torts Edition Committee Program

TBD

TBD Class Action Settlements: A Thorny Briar Patch Committee Program

TBD

TBD The New Section 5: Antitrust Economics Rules? Committee Program

TBD

TBD Dominance and Disruption: Uber and Airbnb Edition Committee Program

TBD


Type Completed Scheduled Annual Plan Prior Year Committee Prog. 1 1 6 0

Town Hall 0 0 0 1 Spring Meeting 0 1 11

(Proposed) 1

AMECURRENT 706724197.3 14-Jun-13 21:45

http://www.americanbar.org/customerprofile.cust=00554630.html


December 1, 2015

TBD Intentional Interference or Vigorous Competition? A Primer Committee Program

TBD

TBD When Competitors Cyber-Attack! Committee Program

TBD



Ongoing

Recruiting Diverse Panelists. Our 2015 Spring Meeting programs had both minority and female speakers. We are committed to seeking out diverse speakers for future programs.

Ongoing

Encouraging Diverse Leadership. Women and LGBT attorneys occupy leadership positions in our Committee, both at the Chair and Vice Chair level. Our Vice-Chairs also represent a cross section of the antitrust bar, including attorneys from plaintiffs and defense firms.

Publications

Title Status Status Last Period Original Date Current Date

Competition Torts News In progress (3 issues per year) 11/2015 1/2016 RICO State by State In progress


Our Committee is working with Books & Treatises on the third edition of the “RICO State by State” publication.

Our Committee is submitting its long-range plan for council review at the Mid-Winter Meeting.

AMECURRENT 706724197.3 14-Jun-13 21:45


Tor#: 3285407.1

Compliance and Ethics

Leadership Chair(s) Vice Chairs YLR RCM Operations

Anita Banicevic Holden Brooks Jacquelyn Stanley Subrata Bhattacharjee Christie Thompson

Doug Tween Jason Dubner

Thomas Lang

Michele Lee

Dorothy Raymond

Deborah Salzberger

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

305 305 261 0 1 3



Nov 23/15 International Developments re: In-House Attorney Client Privilege

Brown bag 61



• Recruiting Diverse Authors. Efforts are continually made to recruit authors for newsletters that are diverse. As an example, our fall newsletter contained four articles, two of them authored by women.

• Encouraging Diverse Leadership. Women occupy leadership positions in our Committee, both at the

Chair and Vice Chair level. Our Vice-Chairs also represent a cross section of the antitrust bar; we have outside counsel and in-house counsel.

• Recruiting Diverse Panelists. Our programs have included both minority and female speakers. We are committed to seeking out diverse speakers for future programs.

Publications


Current Date

Antitrust Compliance: Perspectives and Resources for Corporate Counsellors

Still under way (working with Corporate Counselling Committee)

Under way


We have 2 brown-bag programs scheduled for January as well as a Town Hall meeting. In addition, we expect to soon post a list of compliance related resources to our Connect site.

Finally, the next edition of our newsletter is being formatted and will be circulated in early January.



Teleseminar 2 2 2 0

Town Hall 1 1 1

Spring Meeting 2 4


Committee Name

Leadership

Chair(s) Vice Chairs YLR RCM Operations Svetlana Gans Trish Conners

Dan Blynn Kathryn Farrara Nancy Felsten Michelle Christian Harvey Saferstein Benita Kahn (retiring) Sean Royall

Kenzie Rakes Seth Silber Christine Thompson

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

508 517 In progress

0 0*



10/13/15 ADL, PRIS Consumer Protection Update Call 28

10/14/15 PRIS Co-sponsored: Privacy and Information Security Update Call

11/3/15 CP Committee Networking Event at NAAG conference In-person 50

11/10/15 ADL, PRIS Consumer Protection Update Call 25

11/17/15 ADL Teleseminar: What's New in Advertising Law, Claim Support and Self-Regulation?: A Recap of NAD's Conference

Call 21

12/8/15 ADL ABA Working Group Report on the Advertising Industry Self-Regulatory System

Call 3

12/15/15 PRIS Privacy & Information Security Update Call 25

1/20/15 MT Hear from Enforcers: TSR and Do Not Call Enforcement Developments (Working Title, date on hold)

Call



See below for initiatives

Publications


Current Date

Claims Substantiation Handbook Delayed; to B&T, December 2015

In progress; first manuscript to B&T expected October 2015.

Spring

Meeting 2016

Bi-Weekly CP/ADL Developments Update Bi-Weekly

Bi-Weekly Federal Enforcement Developments Update (new feature – now capturing FTC and CFPB non-litigation developments, looking to capture International & DOJ (Consumer Protection Branch)

Bi-Weekly

Bi-Weekly State Enforcement Developments Bi-Weekly New project; have done two updates thus far.

*What’s in Store Newsletter (*we took it out of our annual plan because we were going to work on the stand-alone publication


Type Compl. Sched. Plan Prior Year Committee Prog. 11 3 8 plus CP

updates 15

Teleseminar 1 1

Town Hall 1 9 (including law school

programming) Spring Meeting TBD 8

AMECURRENT 706724197.3 14-Jun-13 21:45


instead. Given the timeline however, we decided to add the Newsletter back in our repertoire in the meantime.)


1. Agreed to be on the fast track for Committee Long Range Plan for submission to Council November 2015

2. Developed and issued membership survey in conjunction with LRP

3. Working with LRP Committee on Section’s LRP re Consumer Protection

4. Drafted international comments on Columbia Unfair Competition legislation

5. Submitted 16 Consumer Protection related Spring Meeting proposals on behalf of 3 CP committees

6. Chairing working group on stand-alone CP publication

7. Revamping newsletter to include federal and state enforcement columns; December update – we expect the newsletter to issue this month and it will include federal and state enforcement columns.

8. Developing International working group with ITF and International Committee; December update: had first call November 2015 and are planning to do a joint program with (1) GALA on international food regulation and with (2) Compliance & Ethics on Canadian advertising law.

9. Developing Law School working group (focusing on CP professors) to continue to offer Why CP programs to a wider array of law students.

10. Working to expand under-represented groups, including state bar, West Coast attorneys, in-house counsel, law schools & students, and international through various working groups.

11. Our plan is to transition to Connect, but we want to get our committee off the ground first, given new leadership. We aim to transition in early 2016.

12. December update: We have developed an In-house Working Group and it’s first call will be early December 2015.

13. December update: We followed up on the state CP Networking Event by sending a group email to the attendees with info on how to take advantage of the NAAG group membership...at least some of those 8 new members should be State Enforcers. Will follow up again in a few weeks.

AMECURRENT 706724197.3 14-Jun-13 21:45


for October 1, 2015 to November 30, 2015 Period

Corporate Counseling Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Jerry Swindell Derek Ludwin

Kathy Beasley, Joel Cohen, Rani Habash, Elai Katz, Sara Walsh

Melissa Whitehead Gail Levine Adam Biegel

Members

Newsletters

Connect/List Serv/ Blog Messages

Current period


Current Year


Current period

Current Year

Last Year (8/14-7/15)

633 639 639 1 4 4 17C/0/0 34C/0/0 83C/7LS



Teleseminar 0 0 0 1

Town Hall 0 0 0 1

Spring Meeting TBD 2

2 2 (sponsor) 1 (co-

sponsor)


Date Co-Sponsoring Committees

Title

Type

Attendees

10/9/15 N/A September Antitrust Update for In-House Counsel Committee 34

10/13/15 Consumer Protection Consumer Protection Update Committee 28

10/28.15 Trade, Sports & Professional Associations

Antitrust Counseling on Trade Associations: From the In-House Perspective

Committee 41

11/9/15 N/A October Antitrust Update for In-House Counsel Committee 24


Date

Description of Initiative

Ongoing We have enlisted a vice-chair to have responsibility for membership efforts, including follow-up from CCC events, collaborating with the Membership Committee and Section Staff, and developing membership initiatives. The focus of these efforts is on increased participation of in-house counsel in CCC activities.

Publications

Title

Status

Status Last Period Original Date Current Date

The Antitrust Counselor Published Published Fall 2015 10/1/15 The Antitrust Counselor In production N/A Winter 2015 12/15/15

Antitrust Compliance Book Proposal in Draft Proposal in Draft N/A Proposal TBD 2015


We continue to work with our Advisory Board to elicit increased participation of in-house counsel in Committee programming. As reported in June 2015, we intend to continue to work with the Connect transition team to enhance audience participation in the Monthly Update For In -House Counsel in the absence of the previously-used direct listserv messages.


Distribution & Franchising 10/8/15

Leadership

Chair(s) Vice Chairs YLR RCM Operations Alicia Downey Craig Falls

Celeste Saravia Joy Fuyuno Jeff White Kati Robson

Melanie Hallas Paula Martucci Amy Manning

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

399 392 381 1 (in process)

0 3

Sponsored Programs: Description




Ongoing practice of ensuring speaker diversity on Committee and Spring Meeting Committee-sponsored program panels.

Publications


Current Date

The Law and Economics of Product Distribution B&T review B&T review 12/2014 12/2015?

Pocket Guide to Distribution and Franchising Issues (f/k/a Thumbnail Guide to Distribution Antitrust Cases)

Vice chairs overseeing this project are drafting a sample segment for authors to use as a template

Topic outline done, along with written plan for creating more practical, user-friendly content

7/2016


First edition of our bimonthly e-bulletin, Up the Downstream, edited by Celeste Saravia, posted on 10/23/15; next edition will be posted by Kati Robson before 12/31/15..

The Chair posted a note to members with updates on Committee activities and a reprint of a recent article by Bob Langer about RPM.

We held regular Monthly leadership calls held in October and November.

We anticipate that the Spring Meeting program proposals that were not accepted will be calendared as committee programs in the coming months.

The Newsletter had two authors drop out at the last minute. The entire committee is making an effort to recruit authors and fill the pipeline. This is an ongoing topic of concern and discussion in our conference calls.


Type Compl. Sched. Plan Prior Year Committee Prog. 0 1 (in process

for January) 3 5

Teleseminar (CLE) 0 0 2 0

Town Hall 0 0 0 0

Spring Meeting - 1 (D&F Primary sponsor)

2 (D&F co-sponsor)

4 proposed/D&F

as primary sponsor;

6 proposed/ D&F as co-

sponsor

2


December 1, 2015

Economics Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Donald Stockdale

Joanna Tsai Cani Fernandez Matthew Hall James Langenfeld Deena Jo Schneider

Robert McNary Michael Kheyfets (Economist)

Sean Gates Adam Biegel

Members Newsletters ListServ/Blog Messages

Current period


Current Year


Current period

Current Year

Last Year

587 587 534 0 1 2 2 5 15



12/10/15 Co-Sponsored: Implications of Sixth Circuit’s Collins Inkjet Corp. v. Eastman Kodak Co. Decision

Committee Program

37

12/14/15 Fundamentals of Antitrust Economics Series: Market Definition Committee Program

75

1/11/16 A Session with the Chief Economist of the EU Commission DG Comp Committee Program

47

1/14/16 Co-Sponsored: Can Profitable Price Increases Be Collusive? Committee Program

1/25/16 Co-Sponsored: The CFTC’s Antitrust Mandate Committee Program



Ongoing We periodically seek volunteers from our list of members for various projects – this includes publications and newsletters.

Publications


Current Date

ALD Chapter 6 –

Monthly drafts have been submitted as required. 2015 Update published Spring

2015 Spring 2015



Teleseminar

Town Hall 0 0 1 0

Spring Meeting 3 1

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Distribution Handbook

Sending new draft to B&T committee by 12/4.

Implementing suggested edits from B&T committee

Spring 2014

Early 2016 (?).

Proving Antitrust Damages

Council has reviewed the manuscript but noted that the citations are outdated and need to be updated. Tasneem Chipty, editor of the book, has assessed the situation and expects the necessary revision to be completed by March 2016.

Draft has been submitted to B&T Committee

Spring 2015 ?


The ABA Board of Directors have approved the Economic Research Grant in the amount of $15,000 per year for the next three fiscal years. Joanna Tsai is working with Julianna Theberge at the ABA to post marketing materials for the program to solicit proposals for the grant. Marketing materials are due to go out to the Sections of Antitrust Law and Intellectual Property Law listservs this week.

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Exemptions & Immunities Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Layne E. Kruse Vittorio Cottafavi

Stephen M. Medlock Charles C. Moore

Katherine S. Phillips

Todd Hutchison Arthur J. Burke Amy Manning

Members*

Newsletters List Serv/Blog

Messages**

Current Period

Last Period

Last Year Current Period

Current Year

Plan (Number)

Current Period

Current Year

Last Year

241 240 218 0 2 3 7 30 35



4/2017 Exemptions & Immunities Committee

Approved: Telemedicine: Are old definitions restricting competition? (Layne Kruse)

Spring Meeting

10/2016 Trade, Sports and Professional Associations

Baseball Exemption Program Planned (Todd Hutchison) [still being planned; speakers backed out.]

Committee Program

6/24/15 Transportation and Energy

Oneok, Inc. v. Leerjet, Inc. and the Future of State Antitrust Preemption

Committee Program

22



Ongoing

Vice Chair is coordinating with Membership and Diversity Committee



Upcoming/ Scheduled

No. in Annual Plan


Committee Prog. 0 1 3 4

Teleseminar 0 0 0 0

Town Hall 0 0 0 0

Spring Meeting 0 2 (one main sponsored and

one co-sponsored)

2 1

48915403.1


December 1, 2015 * Member counts are taken from CONNECT. ** Current period and current year numbers reflect posts (including updates to original posts) on CONNECT Bulletin Board.

Publications


Original Pub. Date

Current Antic. Pub.

Date 2015 Review of Antitrust Law Developments: Chapter 13 (General Exemptions and Immunities) & Chapter 14.H (Organized Labor)

ALD Annual Review is progressing.

Kate Phillips is in charge and she has three primary drafters.

January 2016

State Action Practice Manual (3d edition)

Exemptions & Immunities Committee to receive in February 2016 for final review. We have reached out to our authors.

Vittorio Cottafavi is in charge of this project. Books & Treatises signed off on our book proposal on 3/3/15.

2016 Later in 2016

ALD8 (revisions to the same key areas as are in the Annual Review)

Started drafting

Stephen Medlock is project leader

2017

E&I Update Newsletter

Expected three editions; one in fall to be published.

Charles Moore, editor; Todd Hutchison; asst. editor

2015 – 16


Steve Medlock represented ABA E&I Committee in October 2015 at meeting with Japanese Fair Trade Commission (JFTC) representative who requested meeting with private attorneys to discuss shipping exemption; this was at the request of the Section Chair

We officially announced our move to CONNECT on our list-serv on 5/7/15.

We continue to monitor and report on legislative developments in the exemptions area.

48915403.1


December 1, 2015

Federal Civil Enforcement Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Paula Render Shylah Alfonso

Elinor Hoffmann Randall Weinstein Jeffrey Jacobovitz Carla Hine Joshua Soven

Justin Bernick Hill Wellford Adam Biegel


As of today


As of the beginning of the ABA

year

Since your first

report


year

No. in Annual

Plan

As of today

As of your last

report


433 406 377 1 1 3 11 3 0

*sponsored/co-sponsored

Sponsored Programs: Description Since 9/1/15


10/29/15 “Nuts and Bolts” of Responding to a Governmental Second Request

Cmte Prgrm 58

12/2/15 Intellectual Property, Media and Technology

The 1995 Licensing Guidelines Twenty Years Later: A Discussion with Agency Leadership

Cmte Prgrm 51

12/3/15 Membership and Diversity

Speed Networking Happy Hour Cmte Prgrm 30

12/8/15 Modification of Consent Decrees: The BMI/ASCAP decree and effects on competition

Cmte Prgrm 30

9/9/15 Co-Sponsored: The FTC’s New Section Policy Statement: A Step Forward?

Cmte Prgrm 37

12/1/15 Co-Sponsored: The Steris-Synergy Case: A Post Mortem Cmte Prgrm 45



Ongoing Vice-chair in charge of membership and diversity working with diversity committee

12/3/15 Membership and Diversity Speed Networking Happy Hour



Upcoming/ Scheduled

No. in Annual Plan



Teleseminar 0 0 1 1

Town Hall 0 0 0 0

Spring Meeting 0 11 proposed 2 3


December 1, 2015

Publications


Original Pub. Date

Current Antic. Pub.

Date ALD Update Most recent draft submitted on

schedule Spr ‘16 Spr ‘16

DOJ Practice Manual, revised edition In progress. We have recruited all the editors. 2018 2018

FCE Newsletter November 2016


9/2015: Recruited volunteers to assist with ABA comments on review of consent decree in BMI Music case

9-10/2015: Evaluating how to improve use of Connect and ABA website, and updating both

11/15/15: Most recent “Round-Ups” published to listserve and Connect (summary of recent events and developments at the agencies). We continue to publish these twice a month.


Global Private Litigation Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Bruce Simon Jeffrey LeVee

Gregory P. Hansel Jon Lawrence Melissa H. Maxman Hollis L. Salzman Judith Zahid

Meegan Hollywood Fiona A. Schaeffer Subrata Bhattacharjee Backup: John Roberti

Members Newsletters

Current period (Aug. – Aug.)

Last period Last year Current Period (Aug. – Aug.)

Current Year

Plan (Number)

175 152 Unknown 1 (Aug. 2015)

2 (Mar. 2015, Aug. 2015)

2-3

Sponsored Programs: Description (Current period)


10/30/15 International Committee

Brazil’s Piece of the Global Private Antitrust Enforcement Puzzle Telephonic Program

7



Ongoing The Committee is working with WAPA to garner diverse participation.

Ongoing A Committee member is actively working with the Diversity Committee.

Publications


Current Date

Update to the Class Actions Handbook (co-sponsored with the Trial Practice Committee)

The Council approved this book proposal approved in June 2015. We have received the first drafts of all of the Chapters and have edited about half of them and gotten them back to the authors; the other half should be back to the authors in January. Second drafts are due in March and the target publishing date is still November 2016.


Connect Blogging Project: Committee members have volunteered to participate in a two-week "posting" rotation and commit to posting recent news articles, or writing short summaries of recent developments on international private litigation issues. The project is designed to keep committee members engaged and aware of recent developments in international private enforcement, and also to invite committee members to become more active participants in the committee. The project began in July 2014, and we will have volunteers committed to the project for 2016.

Joint Program with Law Schools: The first of the joint programs was completed at UC Hastings College of the Law on March 3, 2015. We are in the process of trying to schedule another program for the fall of 2016.

Young Lawyer and International Outreach Programs: The committee seeks to expand the membership of the Section among young lawyers and international lawyers through a variety of outreach initiatives. In addition, the Committee leadership would be


Type Compl. Sched. Plan Prior Year Committee Prog. 0 1 (Oct. 2015) 2-3 1

Teleseminar 0 1 1 1

Town Hall 0 0 0 1



willing to participate in the Section’s mentor program for foreign officials at the Spring Meeting.

Plaintiffs Writing “Bench”: The Committee created a group of writers for section publications who are engaged in the practice of plaintiffs’ antitrust litigation to further advance the section’s outreach program.

NAI-1500755842v1


December 1, 2015

Health Care and Pharmaceuticals Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Jeff Brennan Philip Nelson

Patrick English Michael Gleason Amy Paul Lauren Rackow Anthony Swisher Nick Widnell

Brad Howells Seth Silber John Roberti

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

658 658 595 1 1 4 [Note: Only includes

Chronicle. We also have “Recent

Developments” that is bi-

monthly and a Weekly “Week

in Review”]



9/9/15 None Recent Antitrust Developments in the Health Care & Pharmaceuticals Markets: July & August 2015 Update

Committee Program

15

9/18/15 Insurance and Financial Services Committee

Health Insurance Mergers: What Will the Industry Look Like After Aetna/Humana and Anthem/Cigna?

Committee Program

82

10/20/15 Membership & Diversity Committee

The FTC's New Section 5 Policy Statement: A Step Forward? Networking Event

Committee Program/

Networking Event

57

10/22/15 None International Antitrust Developments in Health Care & Pharmaceuticals: March through September 2015

Committee Program

28

10/29/15 M&A Committee Structural and Behavioral Remedies in Pharmaceutical Mergers: EU vs. US Committee Program

35

11/24/15 None Recent Antitrust Developments in the Health Care & Pharmaceuticals Markets: November 2015 Update

Committee Program

9



Teleseminar May 12-13 1 (Bi-Annual Antitrust

Healthcare Conference)

1 0

Town Hall 0 0 0 0

Spring Meeting 2 proposals accepted and

speakers contacted

Submitted 10 proposals; also co-sponsored 8

Not under our control so no

number

1, plus 2 co-sponsored

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015



October November

October: completed setting up a Zoomerang survey of members with help of JulianWiley November: distributed survey and collecting responses.

Ongoing Each of our committee publications has at least one female editor

Ongoing We always have at least one woman on each committee program panel, as well often having a government lawyer or economist.

Ongoing At our committee programs and in the Chronicle, we advertise our activities and encourage people to contact us. This outreach continues to bring out new volunteers.

Ongoing

We have an ongoing effort to identify and contact by email “in-house” counsel at pharmaceutical companies and other health care industry in an effort to solicit their support. We spent considerable time developing email lists and then emailing them a letter from the co-chairs that described what we do and attached illustrative newsletters.

Publications


Current Date

Health Care Mergers and Acquisitions Handbook

Submit to B&T in what believe is final form (Vice Chair Gleason working with former Vice Chair Knight)

Responding to edits from B&T that required more work than expected

Spring 2015

December 2015

(waiting for B&T to pass on to Counsel)

Pharmaceutical Industry Handbook

Turned over some draft chapters. Recruiting authors to replace authors that dropped out. Finishing other chapters.

Vice Chair (Paul) working with editors (Coe and Grise). Coe reported on 10/7 that would start turning over chapters shortly.

June 2015 July 2016

Antitrust Health Care Handbook Sent in edited versions of first 4 chapters to B&T; other chapters being edited

Vice Chairs (Widnell and Swisher) are editing chapters and expect to send complete draft to B&T by November 26th.

January 2016

January 2017

Antitrust Law Developments-2015 Annual Update Have submitted revised and updated drafts; moving along on schedule

Vice Chair (Gleason) assigned and he assembled drafters. First draft submitted and recently returned with edits. Second draft (and response to edits) underway.

January 2016

January 2016

Antitrust Law Developments-8th Edition Have assembled team of people to work on this.

Vice Chair (Gleason) is assembling drafters

January 2017

January 2017


In addition to our regular newsletter (Antitrust Health Care Chronicle), we also publish a weekly report (Week in Review) and a bi-monthly report (Health Care Recent Developments). These have been going out on schedule. We are adding editors to the Chronicle to keep this moving on schedule.

We have continued to have an “advisory board.” This allows us to recognize and include people who want to be particularly active in the Committee (e.g., young lawyers that work on our three newsletters, a “consumer protection” lawyer that has been particularly effective in helping us organize programs, a European lawyer, and a state attorney general lawyer who has volunteered to help us organize programs related to her job).

AMECURRENT 706724197.3 14-Jun-13 21:45

ABA Section of Antitrust Law Committee Activities Chart—December 1, 2015


Leadership

Chair(s) Vice Chairs YLR RCM Operations Eric Stock Henry B. McFarland

Brent R. Austin Brandon Bigelow Bret Fulkerson Michael Miller Elizabeth B. Prewitt

David R. Brenneman

Subrata Bhattacharjee Christie Thompson

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

275 281 272 0 0 2



9/18/15 Healthcare Health Insurance Mergers: What Will the Industry Look Like After Aetna/Humana and Anthem/Cigna? (82)

Program 82

9/21/15 International; Cartel and Criminal Practice

Navigating the Globe: the Competition & Markets Authority, Financial Conduct Authority and Competition Concurrency in the UK

Program 33

11/4/15 International; Interchange fee regulation Program 35

11/30/15 Cartel and Criminal Practice

Cartel Facilitators Program 49



3/3/16 Networking event in New York City is being planned.

September Sent out start of year message suggesting ways for members to get more involved.

TBA Program geared towards young lawyers

TBA Town Hall being planned

Publications


Current Date

Newsletter Expect issue next week Periodically published Insurance Handbook In final review Final stage

Private Equity Antitrust Handbook Waiting B&T comments on draft Drafting stage

Bank Mergers Handbook Starting to draft proposal Early exploration ALD Annual Review Drafts submitted Drafts being prepared.


We switched from the list serve to Connect. We have sent 59 Connect Messages.

We are scheduling an Advisory Committee meeting for early January.



Teleseminar

Town Hall 0 1 1 1

Spring Meeting

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

Intellectual Property Committee October 8–December 2, 2015

Leadership

Chair(s) Vice Chairs YLR RCM Operations Renata Hesse

Hartmut Schneider Logan Breed Robert P. Davis Alexander Okuliar Dina Kallay Jonathan R. Lutinski

David J. Shaw James Musgrove John Roberti


Current period


Current Year


This Reporting

Period

Through Last

Reporting Period


669 672 599 16 15 55 14 66 10

Sponsored Programs: Description


12/2/15 Media and Technology and Federal Civil Enforcement Committees

Fall Networking Event: The 1995 Licensing Guidelines Twenty Years Later: A Discussion with Agency Leadership

Committee Program

51

11/18/15 Unilateral Conduct and International Committees

Distinguishing Product Innovation from Predation: An Examination of U.S. and EU Antitrust Laws

Committee Program

64

10/8/15 Antitrust and Intellectual Property Conference Committee Program

143

8/26/2015 Section of Intellectual Property Law

Huawei-ZTE: The Quintessential European Essential Patents Decision?

Committee Program

51

7/9/2015 Kimble v. Marvel: What Does It Mean for Patent licensing, patent misuse, and antitrust?

Committee Program

46



12/2/15 Networking event with Bill Baer and Edith Ramirez scheduled for December 2.

Ongoing Work with the Membership & Diversity Committee on takeaways and other documents for networking and outreach events.

February Developing program for in-house counsel

Publications


Current Date

Intellectual Property and Antitrust Handbook Published In process – with B&T Intellectual Property Misuse—Licensing and Litigation

In process – Council approved proposal

In process – Council approved proposal

Antitrust Law Development—IP Chapter Update Initial draft submitted; revisions in process In process

Antitrust Law Developments VIII In process Public Domain and eBulletin (recently combined) combination complete In process




Teleseminar 2

Town Hall

Spring Meeting 3-5 3


October 8, 2015

We participated in comments on the ASCAP/BMI consent decrees, but the Section ultimately decided not to submit. We participated in drafting intellectual property guidelines for the Korean Fair Trade Commission, which were recently submitted, and we participated in the recent comments to the Canadian Competition Bureau relating to their proposed Intellectual Property Enforcement Guidelines and in the response to the recent Questionnaire distributed by the NDRC in China on IP misuse. We are currently assisting in reviewing a draft IP chapter in the ABA Handbook on Antitrust Jury Instructions.


December 1, 2015

International Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations John Taladay Cecil Chung

Thomas Collin Jon Gowdy

Casey Halladay Megan Jones

Krisztian Katona Julie Soloway

Yan Luo Daniel Weick

Fiona Schaeffer John Roberti

Members Newsletters

Current Report

Last Report

Start of ABA Year

Current Report

Current ABA year

No. in Annual Plan

817 817 817 1 1 4

Sponsored Programs: Description (Since 09/01/2015)


9/21/2015 Cartel & Criminal Practice Navigating the Globe: the Competition & Markets Authority, Financial Conduct Authority and Competition Concurrency in the UK

Committee 33

9/22/2015 Cartel & Criminal Practice Extradition and Antitrust: Where Are We Now? Committee 41

9/23/2015 SIL–China SIL–International Antitrust

Seven Years in Beijing: China’s Merger Reviews of International Law Committee 21

9/25/2015 A SMARTER Section 5 Committee

10/13/2015 Town Hall Meeting Town Hall 16

10/22/2015 Pricing Conduct Most “Dis”-Favored Nations: Recent Scrutiny of MFNs in the US and Abroad Committee 59

10/30/2015 Global Private Litigation Brazil’s Piece of the Global Private Antitrust Enforcement Puzzle Committee 7

11/18/2015 Unilateral Conduct Distinguishing Product Innovation from Predation: An Examination of U.S. and EU Antitrust Laws Committee 64

12/11/15 International Task Force SIL–China SIL–International Antitrust

Recent Antitrust-IP Developments in China Committee 31

--/--/2016 CBA–International Merger Control and Foreign Investment Review Regimes Committee

--/--/2015 Meet the Enforcer Series Committee Committee Programs Blackout Period 03/18/2016 — 04/24/2016



ongoing Committee programs and teleseminars: The Committee seeks to involve members as speakers and panelists. Our “Town Hall” meeting is structured to encourage member participation.

ongoing International Antitrust Bulletin: Articles focus on developments of interest to international members, and we seek their involvement in contributing articles.

ongoing Regional Listserv Reporters: The Committee representatives report on developments in their geographic areas.

ongoing Development of Asia initiative with Vice Chairs and Young Lawyer Representatives to increase committee exposure in China, India and Korea.


Type Completed Scheduled Annual Plan Prior ABA year Committee Prog. 8 3 4 26

Teleseminar 0 0 0 0 Town Hall 1 0 1 1

Spring Meeting — 5 — 9


December 1, 2015

Publications

Title Current Status Status Last Report Original Publish

Date

Current Anticipated

Publish Date ALD VII, 2015 Annual Review, Ch. 12 Ongoing Ongoing Jan. 2016 Jan. 2016 ALD VIII, Ch. 12 Ongoing Ongoing Spring 2017 Spring 2017 Handbook On Multijurisdictional Competition Law Investigations (Online) Ongoing Ongoing Ongoing Ongoing

Obtaining Discovery Abroad, 3d ed. Editors are reviewing first drafts.

Editors are reviewing first drafts. Spring 2016 Fall 2016

International Antitrust Cooperation Handbook Current edition under

review to determine if an updated is warranted

Current edition under review to determine if an

updated is warranted TBD TBD



Joint Conduct Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations John Delacourt

Mike Fanelli Nick Levin

Ryan Marth Samantha Knox

Shannon McClure Joanne Lewers

Chris Abbott Tara Koslov John Roberti

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

559 557 524 0 0 4



11/23/2015 Young Lawyers Division – Antitrust Law

Joint Conduct 101 Series – Session 1: Rule of Reason, Quick Look, and Truncated Rule of Reason

Committee Program

35

01/14/2015 Economics Defeating Price Fixing Allegations with Evidence that Defendants Believed Price Increases Would Be Unilaterally Profit-Maximizing

Committee Program

N/A

01/25/2016 Economics The CFTC’s Antitrust Mandate Committee Program

N/A

Jan. 2016 Young Lawyers Division – Antitrust Law

Joint Conduct 101 Series – Session 2: Joint Ventures Committee Program

N/A



Fall 2015 Reached out to potential new authors to encourage diversity in newsletter content. Adopted similar approach for outreach to new brown bag organizers/moderators.

Publications


Current Date

Handbook on the Rule of Reason Review by Council; Awaiting publication

Review by Council; Awaiting publication

November 2015

Awaiting update

from B&T

Proof of Conspiracy under the Federal Antitrust Laws

Lead Editor resigned due to other work and personal commitments. Committee identifying a new Lead Editor and developing a revised timeline with B&T.

Drafts of 8 of 9 chapters submitted to editorial team by authors.

Spring 2016 TBD


Fall Edition of Cartel & Joint Conduct Review (newsletter) – Editors have now received 3 of 3 articles. Newsletter is a bit behind the mid-November target publication date, but should be out by early December.

“Thought Leader” Program – Program launched on Connect in September. There have been a number of high quality postings since that time. To increase the frequency of postings, the Committee has recruited two new regular contributors.

ALD Annual Review and ALD 8 – ALD Annual Review teams have submitted all sections and are on-schedule. The same group of drafters and editors has agreed to work on ALD 8, which should enhance efficiency and uniformity.



Teleseminar 0

Town Hall 0

Spring Meeting 0 0 of 5 proposals accepted

1

ABA Section of Antitrust Law

Committee Activities Tracking Chart

November 30, 2015

Legislation Committee

Leadership Chair(s) Vice Chairs YLR RCM Operations

James Burns Anant Raut

Anna Chehtova

Alek Livshits Alysa Hutnik John Roberti

Members

Newsletters

List Serv/Blog

Messages

As of

today

As of your

last report

As of the

beginning

of the ABA

year

Since

your

first

report

Since the

beginning

of the ABA

year

No. in

Annual

Plan

This

reporting

period

Through

the last

reporting

period

As of the

beginning of

the ABA year

67 on

Connect

50 on

Connect

N/A 0 0 1 34 27 61

Sponsored Programs: Description Since 07/2015

Date Co-Sponsoring

Committees Title Type Attendees

Oct 26 ACPERA - Ten Years Later Brown bag 27

tbd

(Jan/Feb

2016)

The 114th Congress – An Antitrust Outlook Brown Bag tbd



Continuing

Committee VC Anna Chehtova has recruited approximately 20 student volunteers (diverse and non-diverse) to

assist us in tracking state legislation. She and YLR Alek Livshits will oversee these students in posting state

legislative developments to our Connect page.

We successfully recruited Kellie Lerner (woman lawyer/plaintiff lawyer) to participate in Committee programs

and making blog posts last year, and she has now taken the lead, with VC Anna Chehtova, in coordinating and

moderating our upcoming brown bag on ACPERA. Kellie acts as a “VC without title,” and her contributions are

important to our Committee, particularly given its small leadership.

Publications

Title Status as of today Status as of your last

report

Original

Pub. Date

Current

Antic. Pub.

Date N/A



Type Since the

beginning of

the ABA year

Upcoming/

Scheduled

No. in

Annual Plan

During the

last ABA

year


Teleseminar 0 0 0 0

Town Hall 0 0 0 0

Spring Meeting 3 Proposed/1

accepted (co-

sponsorship)

2 proposed

ABA Section of Antitrust Law

Committee Activities Tracking Chart

November 30, 2015

We continue to make blog posts as events warrant, and have increased output, federal and state, this quarter. Anant Raut leads the

posting of federal legislative developments, with assistance from the remainder of the leadership team.

We have also fully incorporated YLR Aleksandr Livshits into our activities; he is making posts, co-leading our student outreach with

VC Anna Chehtova, and will be getting involved in our upcoming programs. As we did with Anna Chehtova last year, we intend to

treat Alek as another “VC without title” and he has embraced that role.

Anna Chehtova and Committee Member Kellie Lerner led our brown bag on ACPERA on Oct. 26, and they moderated that program.


December 1, 2015

Media and Technology Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Ankur Kapoor Gregory P. Luib

Jamillia P. Ferris Lisa Kimmel Gregory V.S. McCurdy Scott A. Scheele David S. Turetsky Craig A. Waldman

Nandu Machiraju Arthur J. Burke Christie G. Thompson

Members

Newsletters List Serv/

Blog Messages

Current period

Last period

Last year

Current Period

Current Year

Plan (2015-16)

Current Period

Current Year

Last Year

714 710 700-725

4 (biweekly

e-bulletins)

8 (biweekly

e-bulletins)

26 (biweekly

e-bulletins)

14: Connect

(7) LinkedIn

(7)

22: Connect

(14) LinkedIn

(8)

56: Connect

(17) LinkedIn

(18) Twitter

(21)

Sponsored Programs: Description (Current Period)


11/16/15 Mergers & Acquisitions

Nuts and Bolts of FCC Merger Review Committee Program

31


Type Completed Upcoming/ Scheduled

No. in Annual Plan Prior Year

Committee Program 1 1 5-6 6

Teleseminar 0 0 0 1

Town Hall/Networking Event 0 1 2-3 1

Spring Meeting 0 2 n/a 2

1


December 1, 2015



Oct. – Nov. 2015

We circulated an online membership survey on our CONNECT bulletin board to gather our members’ views on our publications, programming, and other efforts. We will evaluate the feedback we receive and incorporate it as appropriate into our various committee activities.

December 2015

We will hold a networking event on December 2 with FTC Chairwoman Ramirez and AAG Baer. The event, which we are co-sponsoring with the IP Committee, will address the issue of whether the FTC/DOJ IP Guidelines should be revisited.

Fall 2015

We are investigating co-sponsorship opportunities with non-ABA entities, including the Federal Communications Bar Association and the Asian American Bar Association of New York, in an effort to increase our committee membership.

Ongoing We have several committee members working on a host of projects, including drafting and editing our biweekly e-bulletin, drafting and editing our committee publications, and participating in committee programs.

Publications (Other than E-Bulletins and Icarus Newsletters Noted Above)


Current Date

Annual Review of Antitrust Law Developments (Chapter 14.B)

Drafting underway Drafting underway Spring 2016

Spring 2016

Handbook on Antitrust in Technology Industries Partially reviewed by Books & Treatises

Partially reviewed by Books & Treatises Early 2016 Mid-2016

Telecom Antitrust Handbook

Considering proposal for second edition, per B&T’s request for proposal in 2016

Considering proposal for second edition, per B&T’s request for proposal in 2016

2017-18 2017-18


We are revising our committee long range plan and will submit a revised plan to the Long Range Planning Committee in mid-December. Along with several stakeholders, we are exploring potential Section comments to the European Commission regarding its technology platform inquiry in connection with its Digital Single Market initiative.

2


Mergers & Acquisitions Committee November 30, 2015

Leadership

Chair(s) Vice Chairs YLR RCM Operations Norman A. Armstrong, Jr.

Ronan P. Harty Michael Keeley Michael H. Knight Mary N. Lehner Robert L. Magielnicki, Sr. Mary K. Marks

Megan Browdie Tara Koslov Adam Biegel

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

914 Approx 900 Approx 850

1 2 3



9/18/15 Health Care Health Insurance Mergers Teleconf 82

10/27/15 None Conversation between Jon Leibowitz and Josh Wright Teleconf 20

10/29/15 None Structural and Behavioral Remedies on Pharma Mergers: Eu v. US

Teleconf 35

11/16/15 Media and Technology Nuts and Bolts of FCC Merger Review Teleconf 31

TBD None Mergers and Acquisitions in Brazil Teleconf

TBD None Disgorgement Teleconf

TBD None HSR Teleconf



Ongoing Direct Membership Outreach: In the last 24 months (since December 2013) we have added approximately 140 members, increasing our roster by more than 15%.

Ongoing

Attractive Projects: Our projects continue to be a big draw. We estimate the committee has had 150 active members over the past ABA year who have been involved in various activities, including: two chapters of ALD 2015, brown bag programs, the new Mergers & Acquisitions book, the new Premerger Notification Practice Manual, Section comments projects, the website merger agreement database, updating of the product market catalogue and other website updating, and The Threshold. To that list, we can now add two chapters for ALD (8th).



Teleseminar --- --- --- ---

Town Hall N/A --- --- ---

Spring Meeting 3 3 3

#87705554v1 DMSLIBRARY01\27620910.v1


Publications


Current Date

Mergers and Acquisitions: Understanding the Antitrust Issues (4th Ed.)

The book is completed and has been published.

The book was awaiting publication.

Pub by Spring Mtg

2015 Fall 2015

Premerger Notification Practice Manual (5th Ed.) Published just prior to the 2015 Spring Meeting.

Draft submitted to Committee and PMNO for final reviews

Spring Mtg 2013

Pub just prior to Spring Meeting

2015

The Threshold

Published Summer (Aug.), and will publish Fall (early Dec.) and Spring (early April) editions.

Premerger Coordination: The Emerging Law of Gun Jumping and Information Exchange (2d Ed.)

The Committee has discussed and decided not to pursue updating at this time.

The Committee was considering whether to update the book.

n/a n/a


1. Website Project: Antitrust-Related Clauses in Merger Agreements. A team of volunteers has produced a database of antitrust related clauses in publicly available merger agreements. The database is now “live.” It is accessible through an HTML clickable outline/table of contents, with relevant merger clauses accessible both by deal name and by specific topics, such as “Cooperation,” “Conditions Precedent,” “Defense Strategy,” or “Reverse Break Fees.” We plan to update it regularly. 2. Participation in Antitrust internal Comments projects. The Committee will, as in the past, participate in Section comments on proposed foreign laws or regulations. We have already done this in September 2015 on proposed Colombian legislation and in October on competition law in Singapore. 3. Website Project: Product Market Catalog. The catalog has been updated through December 2014; the additions will be added to the website shortly. 4. Two Chapters of ALD 2015. The committee is responsible for two chapters—Joint Ventures, and Mergers and Acquisitions. Morrison and Forrester is the primary drafter for the Mergers and Acquisitions Chapter and Covington is the primary drafter for the Joint Venture Chapter. 5. ALD (8th). We have arranged for drafters of two chapters of the new ALD (8th), to be published in 2017. Cravath is the primary drafter for the Mergers and Acquisitions Chapter and Cleary is the primary drafter for the Joint Venture Chapter.

Prepared and submitted by: Norman A. Armstrong, Jr. and Ronan P. Harty, Committee Co-Chairs, November 30, 2015.

#87705554v1 DMSLIBRARY01\27620910.v1


Pricing Conduct Committee Name

Leadership

Chair(s) Vice Chairs YLR RCM Operations Melanie Aitken Dale Grimes

Sarah Zielinski Frank Qi James Nichols Thomas Ensign Meghan Rissmiller

Tom York Alfred C. Pfeiffer, Jr. Amy Manning

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

551 522 455 1 1 3



October 7, 2015

N/A Consider the Cost of the Cost-Price Test Committee Program

19

December 7, 2015 (tentative)

December 10, 2015

Economics Committee

Economics Committee and Unilateral Conduct Committee

Ticket Pricing in Secondary Markets

Implications of Sixth Circuit's Collins Inkjet Corp. v. Eastman Kodak Co. decision

Committee Program

Committee Program

37



Ongoing

Invitation sent to all attendees of committee programs sponsored or co-sponsored by the PCC, to join the Committee. Participation in project involving women in leadership in the Section: the project organized a series of interviews with women in leadership in the Section at Spring Meeting (interviews to be posted to the Section site, and used otherwise as helpful in recruiting women to join and become more involved in the Section).

Publications


Current Date

Updated Primer on Price Discrimination Finalized Approved by Books & Treatises July 2015 July 2015


We continue to develop our new last year "Price Tags" feature where recent articles and links are posted on our Connect page. We have a new editorial board that is assisting with the Price Point, our thrice yearly Newsletter. We have populated half with lawyers and half with economists.

We were the first Committee to rise to Anthony Chavez's challenge to insert live links to each article in our Price Point publication (starting with the summer 2015 edition).

We have submitted draft for ALD Supplement; we have staffed the group to handle the next edition of ALD. We submitted 8 Spring



Teleseminar 0 0 0 0

Town Hall 0 0 1 1


AMECURRENT 706724197.3 14-Jun-13 21:45 WSLegal\052213\00011\12826503v1


Meeting proposals.We have terminated our Listserv.

AMECURRENT 706724197.3 14-Jun-13 21:45 WSLegal\052213\00011\12826503v1


Privacy and Information Security

Leadership

Chair(s) Vice Chairs YLR RCM Operations Gene Burrus Lydia Parnes, Yael

Weinman, Chris Casamassima, Aryeh Friedman, Khaliah Barnes

Eric Whisler Christine Sommer Christie Thompson

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

401 ? ? 0


Date

Co-Sponsoring Committees

Title Type Attendees

10/13/2015 Consumer Protection; Advertising

Consumer Protection Update Committee Program

28

10/8/2015 Safe Harbor Program Committee Program

26

10/14/2015 Consumer Protection; Advertising

Privacy and Information Security Update Committee Program

19



Publications


Current Date


Working with other CP committees on plans for developing publication platform for next year. Privacy Handbook nearing completion. VCs developing member recruitment initiatives.


Type Compl. Sched. Plan Prior Year Committee Prog. 3 2 2 ?

Teleseminar

Town Hall

Spring Meeting

AMECURRENT 706724197.3 14-Jun-13 21:45


December 1, 2015

State Enforcement Committee

Leadership

Chair(s) Vice Chairs YLR RCM Operations Victor J. Domen, Jr.

Tracy Wertz Darcy Brosky Gwendolyn Cooley Richard Lawson Amy McFarlane Elisabeth Stein

George Laevsky Paula C. Martucci Adam J. Biegel


As of Today


As of the beginning

of the ABA year

Since your first

report


year

No. in Annual

Plan

This reporting

period

Through last

reporting period


303 286 276 0 0 2 1 16 6

Sponsored Programs: Description 09/01/2014


9/10/14 Media & Technology Data Breach Prevention, Response & Management Teleseminar 65

9/30/14 Health Care & Pharmaceuticals

Vertical Integration in Health Care: A Cost/Benefit Analysis Committee Program

75

1/9/15 Insurance & Financial Services

Insurance Brokers Bid-Rigging: “The Scandal and Aftermath” Committee Program

36

2/23/15 Privacy & Data Security

Data Security & Privacy: Here a Breach, There a Breach Committee Program

33


Competition analysis and the role of State Enforcers in Non-Reportable health Care Transactions

Committee Program

25

3/19/15 Media & Technology Can US Warrants Reach Cloud Email Stored Abroad? Committee Program

34

5/13/15 Federal Civil Enforcement

Practicing Before the Enforcement Agencies Committee Program

36


Product Hopping Cases: Where are we and where are we headed Committee Program

Winter 2015 Consumer Protection Consumer Protection Program Teleconference



Upcoming/Scheduled

No. in Annual Plan

During the last ABA

year Committee Prog. 1 7 7

Teleseminar 0 0

Town Hall

Spring Meeting 5 2 4


December 1, 2015

Winter 2015 Exemptions & Immunities

Ensuring State Action Immunity for State Licensing Boards Committee Program

Winter 2015 Consumer Protection Data Privacy Breaches Committee Program

January 2016 Disgorgement as a Remedy Committee Program

January 2016 Affordable Care Act, Challenges for State AG’s Committee Program

February 2016 Consumer Protection Lanham Act Committee Program

March 2016 RPM’s Committee Program



Ongoing

The group membership program through NAAG provides a good means of also recruiting new Committee members, although some neglect to enroll separately in the Committee. Membership was discussed and encouraged at the October NAAG Fall Meeting in Little Rock. The SEPEG grant program is also a recruitment tool within NAAG. In June 2015 we accepted applications for 10 new SEPEG recipients for the 2015-2016 ABA Year. In August 2015 SEPEG grants were awarded to 7 grantees. Finally, efforts this year to do joint programs with other committees has, we believe, increased the Committee’s appeal to corporate counsel and the plaintiff bar as well as to foreign attorneys.

Publications

Title Status as of Today Status as of your last report

Original Pub. Date

Current Antic. Pub. Date

Antitrust Law Developments (ALD) Update and 8th Ed.

Members assigned and current on all deadlines Current

State Antitrust Enforcement Handbook Final Editing Phase Current 12/2015 Spring 2016

Class Action Practice Prepared to begin when needed New tba tba


1. State Enforcement is working with the Publications Committee on a new edition of the Committee’s own publication, the State Antitrust Enforcement Handbook which will be published in the Spring of 2016. Our editor, assistant editors and drafters finalized the second draft and it is currently in the final editing stages. Publications has indicated that we are on target for a February 2016 publication. 2. State Enforcement awarded five (5) SEPEG’s to five (5) to state enforcers for 2013-2014. We were given approval to expand the program and as a result ten (10) state enforcers were selected for the 2014-2015 ABA year. The recipients are now participating in State Enforcement activities and publications. State Enforcement’s also submitted reserve proposal to the Advisory Board on Section Reserves to continue the program at a 10 participant level and the proposal was approved for the 2015-2016 ABA Year. We accepted applications for new SEPEG recipients in June and July 2015. We awarded 7 SEPEG grants to grantees in August 2015. 3. For the 2016 Spring Meeting we submitted 21 proposals for programs (15 as a sponsor and 6 as a co-sponsor.) 5 proposals as a sponsor or co-sponsor were accepted. Those programs not accepted will be developed as Committee Programs.


December 1, 2015

4. During the Spring Meeting State Enforcement hosted a meeting of our own self-created Advisory Committee to solicit thoughts and ideas that can further the mission of the committee for the upcoming year. The Advisory Committee is made up of antitrust practitioners from the private bar, DOJ, FTC and state AG’s. This year’s meeting generated nearly two dozen ideas for the committee to pursue over the upcoming ABA year. We plan to meet with the Advisory Committee again at the 2016 Spring Meeting. 5. State Enforcement was one of the first committees to volunteer for and develop an ABA Connect page and we continue to try to post items when appropriate. Our YLD Rep. is responsible for posting items and has done an excellent job when called upon but others have also posted items. As the Council knows, several committee members are public officials and cannot provide much commentary on decisions but can certainly get matters posted. Finally, we have successfully migrated all of our members to ABA Connect and eliminated our List Serv. 6. Finally, Kevin O’Connor, Finance Officer for the Section, informed us that a new grant program, the State Enforcer Training Program, for up to 10 state enforcers to attend merger training programs sponsored by the Section and the DOJ and FTC was approved by the Council. We worked with Kevin to submit a budget for the 2015-2016 ABA Year and will begin implementing the new program shortly. We reached out to federal enforcers to coordinate training for state enforcers and received a list of programs from the FTC to consider for state enforcer attendance. We are also researching additional training opportunities. Our plan is to compile a list of the training programs and then accept applications from state enforcers interested in attending the available training. We will approve a limited number of applicants for training based on the funding available for this program. This program should be up and running in 2016.


Transportation and Energy Industries Committee (December 1, 2015)

Leadership

Chair(s) Vice Chairs YLR RCM Operations Amanda Wait Paul Brown

Karen Kazmerzak David Meyer Leigh Oliver Brian Rafkin Bill Stallings

Laura Collins Alysa Zeltzer Hutnik Amy Manning

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

360 354 354 1 1 2



11/30/15 n/a Expedia Orbitz Approval: What it say about travel industry competition

Committee Program

41



Ongoing Volunteer list; committee leadership continues to develop a list of past and potential volunteers. We started this initiative last year and it has proven very useful . For example, we recently utilized this list to identify volunteers to monitor substantive developments of interest to our members.

October 1, 2014 and ongoing

Substantive update monitoring per our annual plan.

Publications


Current Date

Transportation, Energy & Antitrust (committee newsletter)

First issue published November 2015

Published two issues last year on schedule

November 2015 and

March 2016

November 2015 and

March 2016

Energy Antitrust Handbook (updated edition of existing Handbook) Incorporating edits from B&T Received edits from

B&T 2015 March 2016

ALD Update Complete Complete ALD8 On track per schedule




Teleseminar 0 0 0 0

Town Hall 0 0 1-2 0

Spring Meeting 0 0 1-2 2

99997.032162 EMF_US 58438521v1

AMECURRENT 706724197.3 14-Jun-13 21:45


Trial Practice Committee December 1, 2015

Leadership

Chair(s) Vice Chairs YLR RCM Operations Brian Grube William M. Katz, Jr.

Bonny Sweeney Stephen Weissman Robert J. Wierenga

David Reichenberg Martha Goodman

Irv Scher Amy Manning

Members Newsletters

Current period


Current Period

Current Year

Plan (Number)

500+ 500+ -- 1 1 2



7/20/15 n/a FTC v. Sysco Corporation: Food(Distribution) for Thought Teleseminar 80+



2015-16

We believe we have more plaintiff bar participation than any other committee. We continue to have active participants from outside the leadership on the Evidence Handbook, Jury Instructions Handbook, Supplement to the ALD VII, ALD VIII, and the (anticipated) Spring Meeting programs. We also are planning committee programming focused on trial/litigation skills for younger lawyers.

Publications


Current Date

Evidence Handbook Publication pending Publication pending -- 11/15 ALD Annual Review Drafting Drafting 1/16 1/16 Model (Civil) Jury Instructions Handbook Council review ongoing Submitted to Council -- 2/16 Antitrust Class Action Handbook Drafting Drafting -- 12/16 ALD 8 Planning Planning -- 4/17


We are turning our attention to programming. We received approval again this year to sponsor the mock trial at the Spring Meeting. This year’s trial will focus on a merger challenge. In addition, we are developing a series of brown bags/teleseminars. Potential topics include (among others):

1. Fundamentals program for junior lawyers dealing with handling adverse expert witnesses.

2. Mitigating the collateral civil litigation damage that can ensue from a government investigation, settlement, or lawsuit.

3. Program exploring reasons for recent trial victories for the FTC and DOJ in antitrust cases, both merger and non-merger. Is it the “white hat,” the pre-complaint discovery, the standard or proof, or something else. Enforcers and private practitioners debate the factors and warning signs to take into account when litigating against the government and the common attributes in rare government losses.

4. Program exploring similarities and differences between strategies and arguments that can be persuasive to antitrust enforcers during investigations and in a courtroom: What types of evidence and arguments fly better in a courtroom than at the agencies, and vice versa, and how should parties and the agencies prepare for this potential divergence?

5. Program exploring potential strategies and considerations lawyers may consider to incorporate trial strategy into discovery, including how the record being created is best geared for summary judgment or trial; ideas such as conducting focus groups and mock trials in advance of even summary judgment could be explored.



Teleseminar 1 0 2 0

Town Hall 0 0 0 0


Memorandum

To: Council, ABA Antitrust Section

From: Economics Committee

Date: December 29, 2015

Re: Economics Committee Winter 2016 Report to the Council

This report discusses the recent activities of the Economics Committee and compares those activities and

accomplishments with the goals the Committee set forth in its Long-term Plan and Annual Plan. The

report also identifies certain challenges facing the Committee, particularly in recruitment.


The Economics Committee serves as a major economics resource for the Section and other Committees.

The Committee has three key roles. The first is to provide continuing education for the Section's lawyer

members on basic economic theory and analysis, the role of economics in antitrust and consumer

protection, and the development and evolution of economic thinking. The second is to provide economic

insights and commentary on the interface between economics and antitrust and consumer protection law

and on the evolution of learning in these disciplines as each affects the other. The third is to work with

other committees where possible to integrate economic insights and commentary with the legal topics of

those committees.

Because the focus of the Committee is on the interplay of economics and antitrust and consumer

protection law, the Committee recognizes that its interests intersect with those of other Antitrust Section

Committees. Thus, the Committee frequently co-sponsors presentations with other committees and also

works with other committees on publications.

II. Membership

The Economics Committee has continued to try to expand its membership, and generally it has been

successful. Membership in the Economics Committee grew from 483 in December 2013, to 547 in 2014,

to 587 in December 2015, an increase of over twenty percent over the two-year period. The committee’s

membership includes both attorneys and economists and includes people working in government,

academic institutions, private economic consulting firms, and law firms.

Based on a review of current Economics Committee members, it appears that membership in the

Economics Committee breaks down as follows:

45% Lawyers

23% Economists

8% Government

6% Academic

14% Other

3% Unknown

In addition, it appears that 26% of our members are women, and 14% are from outside the United States.

Although the Committee has made progress in diversifying our membership, the statistics above make

clear that more can be done. In particular, as noted in our Long-term Plan and 2015-2016 Annual Plan,

the Committee would like to increase the number of committee members who are economists (including

those that work at private consulting firms, academic institutions, or government entities), women and

minorities, young professionals, and international members.

One of the stated goals of the Committee’s Long-term Plan was to increase interaction with and

participation by consulting firms and academic and government economists. We have tried to attract

economists in private consulting firms by attempting to disseminate announcements of Committee

programs beyond the Committee’s membership, by hosting programs at the offices of various economic

consulting firms, and by inviting economists from such firms to be speakers at various committee

programs. We have been somewhat less successful in attracting academic economists, in part because

they have more outlets for their professional interaction and see less direct benefit from involvement in

the Antitrust Section. We have also tried to expand participation by government economists, both by

inviting government economists to speak at Committee programs and by encouraging Committee

members to forward announcements of programs to government economists who are not members of the

Committee.

The Committee also has tried to attract more women and minorities as members, though one obstacle to

attracting more women and minorities to the Committee is that women tend to represent a smaller

percentage of Ph.D. economists than they represent in other fields and professions. Nevertheless, we

have been fortunate to have three women as Committee Co-chairs or Vice-chairs who have been

extremely active in Committee activities and programs. We have also made significant efforts to invite

women and minorities as speakers at programs.

The Committee also has sought to attract more young lawyers and economists. We have tried to

accomplish this in part by offering a series of brownbag programs on Fundamentals of Antitrust

Economics, which are targeted to young antitrust attorneys. We have also used Connect to try to solicit

young volunteers to help with treatises and with our newsletter, and we generally have been pleased with

the response. Nevertheless, we recognize that it would be useful if we could identify a cost-effective way

to recruit young members while they were still in law school or graduate school.

Finally, the Committee hopes to increase the number of international members. The Committee is

fortunate this year to have two vice-chairs who are European, and we are taking advantage of their

expertise to try to sponsor programs that take place in the EU and to develop program ideas that cover EU

and well as US law. For example, in January the Committee will host a brownbag featuring Massimo

Motta, the Chief Economist of the EU’s DG Comp. We also are trying to feature antitrust law beyond the

US and the EU, as evidenced by our Spring Meeting program submissions and the pricing program that

was accepted, which will cover Canadian and Asian as well as US and EU law.

III. Programs

The Committee continues to offer programs that either educate the Section’s lawyer members on basic

economic theory and antitrust economics or address the intersection of economics and legal antitrust

issues. And it has attempted to increase the number of programs it sponsors or co-sponsors. During the

2013-2014 fiscal year, for example, the Committee sponsored four non-Spring Meeting programs and

three Spring Meeting CLEs. Last year, we increased the number of non-Spring Meeting programs to

nine, although the number of Spring Meeting programs the Committee sponsored dropped to two. This

year, the Committee so far plans to sponsor ten non-Spring Meeting programs, and three of its Spring

Meeting proposals were selected as well. And we hope to add additional programs as the year proceeds.

We note that, in our Annual Plan, we only identified six non-Spring Meeting Programs.

Consistent with the Committee’s goals, we have sponsored, and are planning to sponsor, a number of

programs intended to educate lawyers about basic economic principles, including principles of antitrust

economics. Thus, in addition to our tradition Spring Meeting program on “Fundamentals – Economics,”

we began last year to offer a five-part brownbag series that goes into greater depth on the subjects of

market definition, market power, unilateral competitive effects, coordinated and vertical competitive

effects, and econometrics. Because the program proved quite popular last year, we are repeating it this

year.

We also are continuing the Committee’s tradition of holding brownbags for the DOJ and FTC chief

economists. This year, however, we are expanding the program to add a brownbag for DG Comp’s Chief

Economist, Massimo Motta.

The Committee also is taking advantage of having two EU antitrust attorneys as Vice-Chairs, by trying to

develop more programs that compare antitrust doctrine across jurisdictions. Thus, for example, the

Committee proposed a Spring Meeting program, entitled “Price War: Reconciling Conflicting National

Pricing Restraints,” which will discuss how different countries treat different types of pricing restraints.

We also hope to hold a Town-Hall meeting for the Committee, but have not yet set a date.

Finally, we continue to be on the look-out for new antitrust cases or new antitrust policy issues that raise

interesting economic issues that could provide the basis for an interesting program. Thus, for example,

we will be sponsoring a program on the Comcast/Time-Warner merger in which the lead economists at

the DOJ and FCC, along with the main economic experts both for the merging parties and one of the main

opponents will discuss the main economic issues raised by that merger, including evaluating the impact of

the merger on bargaining power.

IV. Publications

This is proving to be a particularly busy year for the Committee in terms of publications. As we have in

past years, we are drafting Chapter 6 of the ALD Annual Update. In addition, however, we have a

separate staff of volunteers who are in the process of drafting Chapter 6 for the ALD 8th Edition.

We are also in the process of completing our revisions to the Distribution Handbook and Proving

Antitrust Damages. Additionally, we have been asked to review two treatises – Market Power Handbook

and Market Definition in Antitrust and recommend whether a new edition is warranted.

Finally, we are trying to expand our newsletter by, among other things, including summaries of the

various programs and CLEs that the Committee has sponsored.

V. Other

We have kick started the ABA Antitrust Section Economics Grant Program (“AASEGP”). The grant will

be available to lawyers and economists who conduct original empirical economic research that explores a

topic relevant to domestic and/or foreign antitrust and consumer protection law and policy. We started to

post and circulate a request for proposal within the ABA and in other research networks on December 1st.

The application materials are due February 29th, 2016. The Award Selection Committee, which will be

chaired by the Chair of the Antitrust Section or his/her delegate, one of the Co-Chairs of the Economics

Committee, and one member from each of the following Section committees: Consumer Protection,

Economics (who should be a practicing economist); International; Mergers & Acquisitions; and Unilateral

Conduct, expect to announce awards on April 29th, 2016.

Finally, we recently completed our switch over to Connect and have disconnected our ListServe. We are

also trying to expand the reach of our notifications, by, inter alia, asking other committees to forward our

announcements to their members.

Annual Plan 2015-2016

1

Economics Committee

I. Leadership.

Who are the Committee Leaders?

Co-Chairs Donald K. Stockdale, Jr.

Joanna Tsai

Vice Chair Cani Fernandez

Matthew Hall

James Langenfeld

Deena Jo Schneider

Young Lawyer Representative Robert McNary

Young Economist Representative Michael Kheyfets

Responsible Council Member Sean P. Gates

Responsible Committee Operations Co-Chair Adam Biegel

II. Committee Organization.

Identify which person on the Committee

Leadership team will have responsibility for the

following

Membership Recruitment and Involvement Cani Fernandez, Deena Jo Schneider, Robert McNary,

and Michael Kheyfets

Connect and other technology Michael Kheyfets

Committee Updates and Newsletters Cani Fernandez/Matthew Hall

Publications Donald Stockdale

Committee Programs All

III. Committee Communication.


2

How will the Committee Leadership communicate?

Time of Monthly Conference call (e.g., first

Tuesday of each month)

Not yet determined. This past year, the calls occurred

on the second Tuesday of the month.

Will there be Committee Town Halls? If so, when? Maybe. See Section IV(5) below.

Will there be a Committee Meeting at the Spring

Meeting?

Yes.

IV. Membership.

Ensuring Member Involvement and Recruitment

What are the greatest challenges that the committee

faces in recruiting new members?

Informing potential members about what the

Committee does and encouraging lawyers and

economists to join and to contribute to the activities of

the committee.

What are the greatest challenges that the committee

faces in engaging current members?

There appear to be 2 main challenges: (1) informing

members of potential opportunities (though we hope

that LinkedIn and Connect can help), and (2)

persuading members to commit to completing projects.

Please identify at least three ways that you intend to

recruit new members to your committee.

(1) Solicit new members at ABA meetings and

appropriate programs and brown bags;

(2) Attempt to increase the number of lawyer

members by reaching out to law firms and

government agencies;

(3) Attempt to increase the number of economist

members (particularly younger economists) by

reaching out to private consulting firms,

government agencies and academics through

committee member contacts.

(4) Continue to expand web presence through

LinkedIn and Connect;

(5) Host a networking event or Town Hall during

the year with a fellow committee.

Please identify at least three programs, publications

or other projects that will provide volunteer

opportunities for your committee members.

(1) Find volunteers to draft Ch. 6 of the ALD 8th

ed.

(2) Find volunteer drafters and editorsto help

revise the Market Power and Market


3

Definition Handbooks.

(3) Solicit contributors to Committee newsletter

(4) Identify speakers for Committee Programs on

Economics Fundamentals or other programs

V. Diversity

Our Section’s goal is to ensure that our

membership benefits by ensuring that people of

different races, genders, sexual orientations, levels

of experience, and career choices (e.g., working for

the government, plaintiff-side representations, in-

house, small law firms) can and do participate

(“Section Diversity”).

What are the greatest challenges that your

committee faces in ensuring Section Diversity?

(1) The Committee has had some difficulties

attracting lawyer members, and economists are

lawyers who are women or minorities

(2) Women and some minorities represent a

smaller percentage of Ph.D economists than

they represent in other fields and professions,

and that has made it somewhat more difficult

to attract women and minority economists as

members. Having said that, the Committee

has been fortunate that women and minorities

have been among the most active members of

the Committee, and we hope to build on this

active base.

(3) Some of the law firms from whom we recruit

members have relatively low numbers of

minorities on their staff.

Please describe at least three specific activities

planned to increase participation by women

lawyers, minority lawyers, young lawyers,

corporate counsel, government lawyers, foreign

lawyers, the plaintiffs’ bar, and/or non-lawyers.

(1) The Committee plans to host a series of

Committee Programs on Fundamentals of

Antitrust Economics that focus on specific

antitrust issues (such as the economics of

foreclosure) and which are targeted to young

lawyers.

(2) We plan to ask all of our members, including

women, minorities, or who work in

government agencies to give extra effort in

asking friends and colleagues to identify and

solicit women and minorities to join the

committee.


4

(3) We are fortunate that two of our vice-chairs

are EU attorneys who, we hope, will assist us

in attracting foreign members.

VI. Committee Programs.

Please provide a schedule of planned programs and teleseminars for the upcoming year. As you complete this

schedule, please consider the following:

Type of Program. There are generally four types of programs that you should consider:

Committee Programs, also known as brown bags, are generally one-hour programs on a particular topic

of interest. Committee programs are free to Section Members, and are $25 for non-members.

Committee Update programs are recurring programs in a subject matter area. These programs can occur

monthly, quarterly, or at other intervals. Committee update programs are free to Section Members, and

are $25 for non-members.

Teleseminars are programs where CLE credit is offered. There is generally more detail required and a

more rigorous approval process. Teleseminars are generally [$] for Members and [$] for non-Members.

Town Hall programs are programs put on by committees to inform their membership about Committee

activities, and to solicit involvement and volunteers. These Town Hall programs are free to Section

Members, and are $25 for non-members.

General Subject Matter. If known, please indicate the program’s topic area. If a program is planned for some

months in the future, please provide as much information as possible, and at a minimum indicate the general

subject matter, such as whether the program will cover recent developments, fundamentals, surveys across

jurisdictions or trends.

Date. Please provide the approximate date for the program, which will be confirmed after the program, has been

approved.

Diversity Opportunity. Please indicate how the program will support Section Diversity among speakers or

participants. If the program is to be scheduled with another ABA Section or organization, please consult your

assigned Committee Operations co-chair for assistance on obtaining those approvals.

Please see the sample schedule below.

Type of Program General Subject Matter Date Diversity Opportunity

Committee Program Recent FTC Consent September 2015 We will include government

speakers and there will be interest


5

among plaintiffs’ firms.

Committee Program Fundamentals of Antitrust

Writing

October 2015 We plan to co-sponsor with the

Young Lawyers’ Division.

Town Hall Update on Committee

Activities

October 2015

Teleseminar Using Economists in

Developing Your Antitrust

Case.

November 2015 We will seek to engage non-

lawyer economists and seek co-

sponsorship from other ABA

sections.

Committee Update Developments in our

subject matter area in 2015

December 2015 We will seek out diverse speakers

from government and plaintiffs’

firms.


Committee Program Brownbag with Francine

LaFontaine, Director of the

FTC’s Bureau of

Economics

September 2015 The main speaker will be a

woman and a representative of the

FTC.

Committee Program Brownbag with European

Commission Chief

Economist

TBD We hope that at least one of the

attorneys on the panel will be a

woman.

Committee Program Brownbag on Economics

Issues in the Comcast/Time-

Warner Merger

October 2015 We hope to have at least one

female speaker

Committee Program 3 to 5 brownbag on the

economics of various

antitrust topics, such as the

economics of vertical

foreclosure and mergers that

increase bargaining leverage

Beginning

October 2015

We hope to co-sponsor with the

Young Lawyers Division

Committee Program Develop brown bag

programs throughout the

year in response to new

developments in economics

TBD We will seek diverse speakers

from government, academia and

the private sector.


6

and antitrust.

Town Hall Host a Town Hall or

networking event (possibly

with another committee) to

inform members of the

Committee’s planned

activities/publications and

encourage member

participation

Fall 201 We will seek diverse speakers and

encourage participation by

diverse members.

VII. Committee Updates and Newsletters

Please identify the newsletters and other regular updates that the committee provides to its members. Please

include both newsletters and non-newsletter communication channels such as blogs or CONNECT.

Newsletter/Update Name and Brief

Description.

How many will be published? Dates of Publication

Newsletters We hope to publish 2 Fall 2015 and Spring 2016

Notify members, via our Webpage,

Linked-In and Connect of important

papers and speeches relevant to antitrust

Economics that should be of interest to

antitrust attorneys and economists

Periodically throughout the year.

VIII. Book & Treatises Projects

Project/Book Title Brief Description Project Leaders Date for

Completion

Status

ALD Annual Update Draft Ch. 6 of the ALD Annual James Spring 2016 Working on first


7

Update Langenfeld and

Robert McNary

draft

Distribution

Handbook (Revision)

Revision of the Distribution

Handbook

James

Langenfeld,

Quentin

Wittrock,

Theodore Banks.

End of 2015 Implementing

final edits from

B&T Committee

Proving Antitrust

Damages

Revision of Proving Antitrust

Damages

Tasneem Chipty,

Catherine Beagan

Flood

End of 2015 Implementing

final edits from

B&T Committee

ALD (8th ed.) Drafting Ch. 6 of the ALD (8

th

ed.)

James

Langenfeld,

Deena Jo

Schneier

Spring 2017 Yet to be started

Market Power

Handbook

Evaluate whether new edition

is warranted

TBD Proposal for

new edition

by Spring

2016

Yet to be started

Market Definition in

Antitrust

Evaluate whether new edition

is warranted

TBD Proposal for

new edition

by Spring

2016

Yet to be started

IX. Monitoring Developments. Describe how the committee will stay abreast of developments in the

committee’s areas of interest, including new cases and agency actions, legislative proposals, and policy

initiatives.

Substantive Area How is it being monitored? Responsible Person

Economics of Antitrust Volunteers are monitoring DOJ

and FTC web sites for new

working papers; and reviewing

economic journals and working

papers for significant new articles.

Joanna Tsai


8

X. Other Activities and Projects. Please identify any planned committee activities not described above,

particularly if there are budgetary constraints.

Planned Activity/Project Estimated Date Any Support Needed?

Monitor public consultations by competition

authorities in the EU and other jurisdictions; identify

those where Section input might be useful; and

contribute to the development of any Section response

Ongoing International Committee(?)

XI. Summary – Recap: Major Goals and Activities. Using the information provided above, please list the

major projects, goals and dates for completion for the year

Date Planned Activity

September Brownbag with FTC B of E Director Francine LaFontaine

October Brownbag on Economic Issues Raised by the Comcast/Time-Warner Merger

First brownbag on Fundamentals of Antitrust Economics

November Brownbag on Fundamentals of Antitrust Economics

December Brownbag on Fundamentals of Antitrust Economics

Publication of the Distribution Handbook and Proving Antitrust Damages

Publication of first newsletter.

January Brownbag on Fundamentals of Antitrust Economics

February Brownbag on Fundamentals of Antitrust Economics


9

March No brownbags during blackout period

Publication of second newsletter

April No brownbags during blackout period.

May Brownbag on Fundamentals of Antitrust Economics

June

July

August

The Draft Annual Plan is due to Diane Odom ([email protected]) on or before July 31, 2015.

Final Annual Plan is due to Diane Odom [email protected]) on or before August 28, 2015.

We confirm that:

our Committee’s Leadership has reviewed and discussed the above plan;

we have discussed our plan with the Responsible Council Member and a Committee Operations Co-

Chair;

each of us understands and is committed to completing the assigned tasks and achieving the stated goals;

and

we believe that the goals that we have listed are achievable.

Signed:

_/s/ Donald K. Stockdale, Jr._____________

Committee Co-Chair

/s/ Joanna Tsai


10

Committee Co-Chair

/s/ Cani Fernandez

_________________________________

Committee Vice-Chair

/s/ Matthew Hall

_________________________________


/s/ James Langenfeld

_________________________________


/s/ Deena Jo Schneider

_________________________________


Economics Committee Long Range Plan

Updated April 9, 2015

To: Howard Feller, Chair, Antitrust Section

From: Donald Stockdale, Jr., Chair, Economics Committee

This document responds to your request that the Economics Committee (“Committee”) produce

a long range plan that: (1) identifies the economics issues involving antitrust that are likely to

arise and be important over the next three to five years; (2) describes how the Committee intends

to address these issues; and (3) explains how the Committee intends to expand its membership

over the next three to five years.


1. Current Charter

The Economics Committee serves as a major economics resource for the Section and other

Committees. The Committee has three key roles. The first is to provide continuing education for

the Section's lawyer members on basic economic theory, the role of economics in antitrust and

consumer protection, and the development and evolution of economic thinking. The second is to

provide economic insights and commentary on the interface between economics and antitrust and

consumer protection law and on the evolution of learning in these disciplines as each affects the

other. The third is to work with other committees where possible to integrate economic insights

and commentary with the legal topics of those committees.

2. Interaction with other committees

Within the Antitrust Section, the activities of the Economics Committee do not stand alone, as

this is not an organization of pure economic research. Rather, the focus of the Committee is on

the interplay of economics and antitrust and consumer protection law. Thus, the Committee

frequently co-sponsors presentations with other committees and also works with other

committees on publications.

3. Membership

As of February 2015, The Economics Committee currently had approximately 550 members. Its

membership includes both attorneys and economists and includes people working in the

government, academic institutions, private economic consulting firms, and law firms.

4. Recent Accomplishments

The Committee has sponsored various programs, sponsored publication projects and contributed

to those of other committees, and used the Internet extensively in Committee activities.

2

The Committee has created and continues to sponsor programs that provide economics and

econometrics fundamentals for various topics in antitrust economics and econometrics. These

programs include what has become an annual program on Antitrust Economics and

Econometrics Fundamentals at the Spring Meetings. In recent years, we also have sponsored

brown bag sessions with the new economists heading the economics sections at the Antitrust

Division and the FTC. This year we sponsored a series of brownbags on the Fundamentals of

Antitrust Economics, with sessions on market power, market definition, unilateral competitive

effects, coordinated and vertical effects, and econometrics. We also have created and sponsored

(or co-sponsored) and will continue to create and sponsor brown bags, CLE programs,

teleseminars, and program sessions on important economics-related issues. For example, this

year we co-sponsored brownbags on “Anti-Steering Rules” and “Antitrust and Zero-Price

Products,” and last year we co-sponsored an event with the Canadian Bar Association on Retail

Mergers.

The Committee has been very active in publications. In recent years, the Committee has

contributed to updates and new editions of ALD, contributed to an update of the Section’s book

on Mergers and Acquisitions, and produced monographs on Market Power, Market Definition,

and Econometrics. Current publication projects include contributing to the annual update of the

ALD, to a book entitled the Distribution Handbook, and to a book on Proving Antitrust

Damages. The Committee publishes a newsletter once or twice a year and has been involved in

the "Free Lunch" column published in Antitrust magazine. The Committee is also actively

involved in leading the Section’s Economics Grant Program, the first recipient of which was

chosen in 2012.

The Committee also uses its website, listserv, and Connect to provide useful material to Section

members. It has posted an annotated summary of Daubert cases, which is now being updated. It

also has posted on its website bibliographies of basic readings on the principles of antitrust

economics, game theory, and econometrics. The Committee is continuing its program of posting

brief summaries of selected recent economics papers, including economic research done at the

FTC and Antitrust Division, to its listserv. These are also being published on our website.

I. Anticipated Policy Issues

Economists and economic learning continue to play a central role in the creation and

enforcement of US antitrust policy. This role is certain to continue over the next three to five

years. With this as background, we have sought to identify a number of economic issues that are

likely to be important to the development and evolution of antitrust across a range of legal

concerns (e.g. mergers, monopolization, class action cases, etc.). The Economics Committee

expects to be able to provide input to the Antitrust Section to help shape the development of

policy in these areas.

The broad areas that we have identified in which major legal and policy issues will likely arise

over the next three to five years (although there may well be others) are described below.

3

1. Empirical Methods in the Analysis of Vertical Mergers.

In their review of the proposed joint venture between Comcast and NBC Universal, both the

Antitrust Division of the Department of Justice and the Federal Communications Commission

were forced to consider various forms of potential vertical foreclosure. For example, merger

opponents claimed that the joint venture would have the incentive and ability to harm competing

multichannel video programming distributors (MVPDs) by: (1) permanently foreclosing rivals

from the joint venture’s video programming, (2) temporarily foreclosing rivals from the joint

venture’s programming, and (3) raising rivals’ costs by increasing the price of programming to

rival MVPDs. There were also claims that the joint venture would have the incentive and ability

to engage in customer foreclosure by disadvantaging programming networks owned by upstream

rivals that were close substitutes to networks owned by the joint venture. During the review

process, both the potential joint venture partners and various opponents filed empirical studies

and models that sought to estimate whether it would be profitable for the joint venture to engage

in such foreclosure strategies. Both these models and the FCC’s order analyzing the models

significantly advanced the analysis of vertical transactions. The Economics Committee seeks to

further advance the economic analysis of vertical foreclosure, in particular the use of empirical

analyses, in ways that can be understood by courts and lawyers and imported into legal analysis.

The Committee, as appropriate, may seek to work with the Mergers and Acquisitions and Joint

Conduct Committees on these issues

2. Mergers That Enhance Bargaining Power

Many industries, including media, high-tech, and health care industries, are characterized by

bargaining between providers and distributors. A merger in such industries may affect the fees

negotiated between providers and distributors if it changes the value of an agreement relative to

the value of disagreement. According to some, such as Professor Aviv Nevo, a recent former

Chief Economist at the DOJ’s Economic Analysis Group, the effect of the merger can depend on

whether the incremental gain from adding another provider decreases or increases. The change

in ownership does not by itself cause the merged entity to raise prices, but the merger would

provide the incentive and opportunity for the merged entity to adopt a negotiating tactic that

would result in higher prices. Bargaining leverage is a source of market power and a merger that

involves an increase in bargaining leverage is a form of lessening of competition. Two methods

to empirically measure the effects of increased leverage are: (1) willingness-to-pay (WTP)

models, and (2) merger simulation using a bargaining model. WTP models are already

commonly used to evaluate hospital mergers. In the Comcast/Time Warner Cable merger, the

issue of increased bargaining leverage as a result of the consolidation has also been raised. The

Economics Committee seeks to further understand and advance the economic analysis of

mergers where bargaining leverage comes into play.

3. Coordinated Interaction

In recent years, enforcement agencies, courts, and academic economists have focused less on

how mergers may increase the risk of coordinated interaction than on how mergers may generate

unilateral effects. In addition, there appears to have been far less empirical research into and

fewer quantitative models for analyzing how mergers may increase the risk of coordinated

interaction. The Economic Committee will encourage discussion of the conditions under which

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mergers may significantly increase the risk of coordinated interaction and what empirical tests

might be used to assess these risks. The Economics Committee may, as appropriate, seek to work

with the Mergers and Acquisitions and Joint Conduct Committees on these issues.

4. Should Efficiencies be Given Greater Weight in Merger Analysis?

How regulatory agencies should treat merger related efficiencies remains an important issue,

particularly in an economic climate that has generated numerous strategic transactions. One issue

is which welfare standard – a total welfare or consumer welfare standard -- should be applied in

evaluating claimed merger efficiencies. The current Merger Guidelines employ a consumer

welfare standard where only the share of merger-related efficiencies that is passed through to

consumers is considered as a counterweight to potential post merger price increases. This is not

the only view of how efficiencies should be weighed, at least in terms of exercising prosecutorial

discretion. For example, a recent Canadian Supreme Court decision, Commissioner v. Tervita,

has entrenched a total welfare standard in Canada, where benefits of the merger are considered

even if they are retained by the merged firms, and not necessarily passed on directly to

consumers, and even quantified efficiencies that marginally exceed quantifiable anticompetitive

effects can “save” a merger. A related issue is how fixed costs should be treated. The general

approach has been not to count them or to discount them heavily. Questions have been raised as

to whether reductions in fixed costs cause price reductions in the real world environment. The

Economics Committee seeks to develop economic views which can appropriately be imported

into legal analysis. It may also, as appropriate, seek to work with the Mergers and Acquisitions

Committee on these issues, as well as the CBA and sister organizations to examine recent

thinking on this issue in other jurisdictions.

5. Proper Standards for Assessing Single-Firm Conduct Under Section 2

of the Sherman Act

The appropriate standards for assessing single-firm conduct under Section 2 of the Sherman Act

continue to be an important and controversial issue. For example, what standard should be used

to judge exclusionary conduct: the “profit sacrifice” test, DOJ’s disproportionality standard, or

some other standard? Should a monopolist's unilateral, unconditional refusal to deal with a

competitor ever result in antitrust liability? When should bundling be considered predatory?

Should there be a safe harbor for exclusive dealing agreements and if so what should it be? In

addition, are different standards applicable under Section V of the Federal Trade Commission

Act? The Economics Committee will develop programs on these issues and will work as seems

appropriate with the Unilateral Conduct Committee.

6. Key Economic Issues at the Nexus of Antitrust and Intellectual

Property

A number of significant economic issues arise at the nexus of the intellectual property laws and

the antitrust laws, including reverse payment - or "pay-for-delay" - patent settlements and also

the licensing of standard essential patents. Although the Supreme Court, in its 2013 Actavis

decision, held that reverse payment agreements should be evaluated under the rule of reason,

lower courts likely may differ in how they apply this ruling. In addition, there continues to be

litigation on standard essential patents. The Economics Committee will look for opportunities to

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hold programs or contribute to monographs or articles on this issue, and it may also, as

appropriate, seek to work with the Intellectual Property Committee on these issues.

7. New Economic Approaches to Antitrust Damages

It is still not uncommon in major cases involving substantial damages for the economic analyses

to be overly simplistic. In recent years, however, economists have developed more sophisticated

tools of analysis. Courts, as in the recent Uniloc USA, Inc. v. Microsoft Corporation decision in

the U.S. Court of Appeals for the Federal Circuit, appear to recognize weaknesses of earlier,

simpler damage calculations. This disparity raises a number of important economic issues

regarding the proper approach to calculating antitrust damages. The Economics Committee seeks

to take the lead in stimulating research and discussion on these issues. It also has contributed to

Proving Antitrust Damages, which should be published shortly.

8. Economics Issues in Class Certification and Other Group Litigation

Class certification in antitrust cases raises a number of economic issues that are often not

properly appreciated or fully understood by the courts. The Economics Committee made a start

on stimulating economic research and discussion in this area several years ago by producing

papers by economists and lawyers that identified the key economic issues in class certification.

The FTC has taken an increasingly active interest in these issues, and other regulatory bodies

have also noted their importance. Additionally, recent court decisions have recognized the

difficulty of proceeding with certain proposed classes because of their size and complexity.

Similar issues are presented by antitrust litigation brought by state or federal regulators on behalf

of individuals adversely affected by the conduct being challenged. We plan to expand our work

on these issues and hope to stimulate continued interest and activity by antitrust agencies,

including discussion of the changes in the type and amount of economic analysis in antitrust

class certification and other litigation. We may explore possible collaborative efforts on these

issues with the Civil Practice and Procedure, Federal Civil Enforcement, and State Enforcement

Committees as well as others.

9. Economic Considerations in Robinson-Patman Litigation

In recently revising its Fred Meyer Guides, the FTC declined to state that the advertising and

promotional allowance and services provisions of the Robinson-Patman Act apply only where

anticompetitive effects have been shown, as is required under the price discrimination

provisions. It also did not include the reasonable value to the seller (as opposed to cost to the

customer) as a means of evaluating the proportionality of promotional offers. The revised Guides

may encourage additional litigation under the Act, which has been generally criticized for years

as anti-competitive by lawyers, economists, and occasionally courts, including the Supreme

Court of the United States. The Economics Committee will explore opportunities to join this

dialogue and encourage the use of economic analysis in analyzing future Robinson-Patman Act

and similar litigation, working as appropriate with the Pricing Conduct Committee and possibly

others.

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10. Role of Economic Analysis in Consumer Protection

The rise of the Internet and e-commerce has brought new challenges to consumer protection

regulation. As a result, there is increased interest in the Section in this area. Economic analysis

will play an important role in informing regulatory decisions relating to consumer protection.

The Economics Committee will identify the important issues in this field and examine the

appropriate role of economic analysis in addressing them. The Committee will work to build ties

to the consumer protection economists within the FTC’s Bureau of Economics. It also plans to

work, as appropriate, with the Consumer Protection Committee to develop programs on these

issues.

11. Weighing Economic Testimony

As economic testimony becomes more critical in antitrust litigation and more complex, there has

been an increasing need for tools to assist courts in deciding when and how to admit and how

best to evaluate economic arguments. The use of Daubert criteria has expanded generally in

litigation, and Daubert challenges now routinely play an important role in antitrust suits.

Various other procedural steps such as the use of special masters or court appointed experts also

have been proposed or are being developed to assist courts in dealing with highly technical and

often conflicting expert testimony, and in distinguishing the best economics arguments. The

Economics Committee will disseminate information and encourage discussions of these

developments, including updating our listing of summaries of decisions applying Daubert on our

web site. The Economics Committee, as appropriate, will seek to collaborate with the Trial

Practice and the Civil Practice and Procedure Committees as well as other committees, on these

issues.

II. Ways the Economics Committee Intends to Address Key Issues

The Economics Committee is addressing key issues through programs, publications, and its

listserv and web site. The Committee has sponsored, and will continue to sponsor, brown bags,

teleseminars, and Spring Meeting sessions concerning important events and issues. The

Economics Committee also will continue to contribute to the ALD and its updates and will

pursue other publication projects. It is now completing work on the Distribution Handbook and

Proving Antitrust Damages. Additionally, the Committee’s newsletter provides an opportunity

for lawyers and economists to publish on various issues in antitrust economics. Finally, the

Committee has taken the lead on the ABA Antitrust Section Economics Grant Program, which

supports original empirical research that explores topics relevant to domestic and/or foreign

antitrust and consumer protection law and policy.

The Committee is also working on Internet-based projects to create tools for attorneys and

economists to draw upon economic work related to antitrust law. It also recently updated its

website bibliographies on antitrust economics fundamentals, game theory, and econometrics

fundamentals, and it may add additional bibliographies.

The Committee also is continuing to implement an important new program that will use its

listserv, web site, and Connect to increase its members’ access to cutting edge economic

research. The Committee will continue to send brief summaries of selected recent economics

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papers, along with links to those papers, to its listserv. Those summaries and links will also be

posted to the Committee’s web site. Papers to be summarized will be identified by continuously

monitoring web sites a number of web sites where recent economics papers are posted, including

those used by the FTC’s Bureau of Economics and the Antitrust Division’s Economic Analysis

Group as well as the web site of the Social Science Research Network (SSRN). The Committee

has already recruited a number of volunteers to monitor these web sites and prepare summaries

for the papers.

III. Plans to Strengthen the Committee and Expand Its Membership

1. Scope of Charter

The Committee does not anticipate any need for changes in its charter.

2. Expanding Committee Membership

The Committee has been relatively successful in expanding its membership over the last three

years. When we last submitted our long-range plan, the Committee had fewer than 400

members. As of February 2015, it has a membership of over 550, an increase of over 35%. We

hope to expand our membership further, in part by the means discussed below.

3. Economic Training for Lawyers

Our program to provide economic training for lawyers has been quite successful in increasing

membership and participation and in furthering the goals of the Committee. We have found that

there is significant demand for antitrust economics courses for lawyers and have offered a

number of such courses. Our Economics Fundamentals program at the Spring Meeting has been

well-attended consistently, and this year’s extended brownbag series on Fundamentals of

Antitrust Economics also appears to have been well-received. We will continue to hold such

courses in the future. We are considering ways to increase the audience for these courses,

including having them in different locations, and making the content of these courses available

on our web site.

4. Expanded Involvement in Programs and Publications with Industry

and Substantive Antitrust Section Committees

Most antitrust lawyers do not think about economic issues in a vacuum; rather they consider

them in the context of specific legal issues or problems. Thus, it is important for the Committee

to gear at least a portion of its activities directly at the legal implications of the economic issues.

As part of this effort, we routinely contact the leadership of other committees (especially

industry committees) to see whether they have any programs, brown bags, publications or other

activities that would benefit from the participation of an economist if their committee does not

already have economist members willing to participate. Doing this also helps to make the section

and committee more attractive for economists by providing greater opportunities for economists

to work with section lawyers. We plan to work with the section's Committee Officer to identify

appropriate substantive section committees with which to arrange a liaison relationship, to take

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effect when the new section year begins in August. We have been working jointly on projects

with the Pricing Conduct Committee and others for specific programs and publications.

5. Increase Interaction and Participation by Private Economic

Consulting Firms and Academic Economists

Members of the section are the primary target consumers of economic consulting services in the

antitrust area. We are working to educate the management of such economic consulting firms

and the economists who work for them on the business and professional benefits of greater

involvement within the Antitrust Section and of the exposure that can be obtained by

participation in programs and publication of the Economics Committee. The Committee also

benefits from interaction and participation by academic economists and economics students who

bring in new ideas and the most current thinking in the field. We have found, however, that

getting academic economists who are not invested in private consulting has been difficult

because they have more outlets for their professional interaction and less direct benefit from

involvement in the Antitrust Section. In addition, the Section's attribution policy with respect to

publications makes it difficult for academicians to get appropriate credit from their institutions

for writing done on Section projects. This makes it more difficult to attract them to participate in

such activities. Nevertheless, the committee is committed to increasing the involvement of

academic economists in our activities We have been fairly successful in expanding the

involvement of private consulting firms and academics in committee projects through direct

personal mailings from committee leadership. Thus far, we have been successful in having

private economists teach basic programs and participate at the spring meetings. More can be

done, however. In particular, we are considering ways to approach the leadership of private

consulting firms to have them encourage their young economist to participate and to approach

academic economics departments to encourage Ph.D. students to become involved in Committee

activities.

6. Expand Participation by Government Economists

To expand participation by government economists, we plan to approach again senior

management at government agencies to encourage broader participation. We have also reached

out to government economists and sought their participation in both CLEs and brownbag

programs. We also will continue our long-standing practice of inviting any newly appointed

chief economist in the Bureau of Economics or the Antitrust Division to give a brown bag.

7. Learn About the Preferences and Goals of Members and Potential

Members

Finally, we seek to learn about the preferences and goals of members and potential members so

that we can create programs that will attract new membership and implement changes, if any, to

make our Committee more attractive. We are considering a small, informal survey of economists

and attorneys currently active in the section to understand why they joined the Committee and

what they are looking for. We also may conduct a similar survey of economists and attorneys not

currently active in the section to understand why they have not participated and what we could

do better. We will also consider a Committee reception.

49298500.1 - 1 -

Memorandum

To: Council, ABA Antitrust Section

From: Exemptions and Immunities Committee

Date: December 29, 2015

RE: Exemptions and Immunities Committee Report for Mid-Winter Council Meeting

This report highlights issues from our Annual Plan and our Long Range Plan for consideration by the Council.

I. Why Have an E&I Committee?

It is always helpful to answer this fundamental question. The role of the E&I Committee overlaps with many other substantive committees, such as Health Care, Agriculture, Trade, Sports, etc. Accordingly, one can argue that E&I is unnecessary, given these overlapping issues, or at least its growth opportunities are limited since members may want to be more active in committees with a broader focus. However, despite these claims, we believe the Section needs the E&I Committee One committee should be charged with taking an overall view of exemptions and immunities. One of the key problems with antitrust is the continuous effort to cut back on the scope of antitrust. The E&I committee should take the lead on answering what should be the scope of antitrust for both domestic and international issues. A good example of its virtue is the fact that E&I provided a representative this year to meet with representatives of the JFTC in D.C. on shipping exemptions since Japan is considering changes to its law. They wanted to meet with an attorneys involved in and familiar with this issue. This is an example of the continuing scrutiny of scope issues by non-US jurisdictions who seek guidance on the direction of antitrust. .

II. What are you doing on Publications?

Books: One of our Committee’s best books is the Handbook on the Scope of Antitrust, published in 2015. Professor Chris Sagers was the editorial chair and principal author. The concept reflects the story of our Committee and was published under the leadership of Greg Luib and John Roberti. As explained in the preface, it is a first-of-its-kind, one-stop book that treats all exemptions and immunities in “an integrated fashion as components of one body of law.” In the past we have had books like Federal Statutory Exemptions from Antitrust Law (2007), but the Scope of Antitrust Law attempts to tie everything together. (This book also reflects more reliance on the work of a single, professional academic to as principal author, although Chris was at one time VC of the Committee. Although plenty of volunteers were involved, a single primary author is often better able to create an integrated whole).

We have an excellent State Action Handbook, and the Third Edition should be published in 2016. We also continue to write key sections of ALD on exemptions and immunities---both the annual review and the new ALD edition.

49298500.1 - 2 -

Newsletter: The goal in the annual plan is to publish three times a year, which we have consistently done. One is already out for the fall. We have had difficulty getting articles from our younger members, but that is not unique to our committee. It reflects the time pressure everyone is under.

Connect: In our committee page on Connect, we are providing posts regarding new opinions and engaging our members to do the same.

III. What Programs do you offer?

In 2016, we will sponsor two Spring Meeting programs: One on North Carolina Dental fallout, i.e., telemedicine and the impact of North Carolina Dental (Counsel for LegalZoom who sued North Carolina over State Bar restrictions will also participate). This will be an interesting debate format. Another co-sponsored program is on marijuana, which is obviously related to E&I and the Committee’s free-wheeling views on the scope of antitrust. . The Trade, Sports Committee is also sponsoring program on sports regulation that might touch on the baseball exemption. This illustrates an issue that we face because good programs exist on exemptions in many other areas. We are not exclusive. We are ecumenical and encourage all committees to take up the exemptions banner.

We will confess that our plans for Committee programs have not gone well this fall, but not for the lack of trying. We targeted to have one committee program this fall, but since it was on the baseball exemption that was at issue in two pending federal court cases, we were unable to secure the participation of someone to speak up for baseball. We plan to do better in 2016. In the past our committee has worked with several other committees on sponsoring programs—most recently, for instance, on international scope issues for US antitrust law. .

IV. Where are growth opportunities on Membership?

Today we have about 250 members. Given all the considerations, that is a good number. Let’s be realistic. Our overall membership challenge is that E&I is often viewed as an “additional” committee, rather than a primary substantive membership committee. As we like to say—only specialists join, not the dabblers in antitrust.

A. International

An untapped resource may be the international membership. The scope of antitrust is often an issue in non-US jurisdictions. As explained in our Long Range Plan, we should develop more of an international focus, although exemptions are often very fact specific to a particular jurisdiction. As stated in the Plan, one good example is the problem of national security reviews for mergers. It is now common across the globe with varying results. CFIUS review in the US and in other jurisdictions under various names provide rationales for new security related antitrust exemptions. Are there other common issues that would attract international members?

B. Enforcers

Another membership angle is that all E&I issues should draw attention of international enforcers and state enforcers. The FTC and DOJ, of course, try to beat back the efforts to curb antitrust.

49298500.1 - 3 -

We know what side they are on. Generally, however, the idea of exemptions and immunities finds more sympathy among state and foreign enforcers due to politics. This situation was highlighted with N.C. Dental, and it continues to be an issue with state enforcers who defend state licensing boards. . This creates an interesting tension, and all enforcers should participate to keep up.

C. Women and Young Lawyers

Our YLRs have done an effective job. Our articles have been written by young lawyers. We have constantly welcomed women lawyers who are interested in this area, including in government, in firms and in-house. Although I have not tracked the participation by women in our committee as compared to other committees, I have the impression that we can do better. I want to use our Committee programs to make sure participation improves.

LEK


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M E M O R A N D U M

TO: Calvin Goldman Long Range Planning Committee FROM: Exemptions and Immunities Committee Layne E. Kruse, Chair Vittorio Cottafavi, Vice Chair Stephen M. Medlock, Vice Chair Charles C. Moore, Vice Chair Katherine S. Phillips, Vice Chair Todd Hutchison, Young Lawyer Representative CC: Jonathan M. Jacobson, Committee Officer Arthur Burke, Responsible Council Member Amy Manning, Committee Operations Committee DATE: December 15, 2015 RE: Exemptions and Immunities Committee Long Range Plan


A. The Committee Charter

The Exemptions and Immunities Committee is chartered to address judicially created immunities from the antitrust laws, including the Noerr-Pennington doctrine, the state action doctrine, as well as statutory exemptions, including, among others, the McCarran-Ferguson Act. More broadly, it deals with the fundamental issue of the scope of the antitrust laws. Judicial action and legislative efforts have limited the scope of antitrust laws since the laws were first passed. This Committee monitors this key issue, which impacts how antitrust laws affect the economy.


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B. Membership

The Committee currently has 241 members. Our members are comprised predominantly of private practitioners, although a small number of law students, government attorneys, and practitioners based outside the United States are included.

Although other committees are larger, we believe that our Committee tends to include lawyers who specialize in antitrust issues. We also believe that most members of the Committee are members of other Section committees, and that the Committee may not be the primary committee that draws members into the Section. Nonetheless, we believe tracking the key issues surrounding the scope of the antitrust laws must be a high priority for the Section.

C. Committee Interaction

The Committee’s mission in many ways touches on the work of other committees within the Section that involve exemptions and immunities. For example:

Agriculture and Food Committee. The Committee shares jurisdiction over the Capper-Volstead Act, among other statutory exemptions.

Health Care and Pharmaceuticals Committee. The Committee interacts with the Health Care Committee regarding the state action and Noerr doctrines. In particular, Health Care Committee is a co-sponsor of our 2016 Spring Meeting program on telemedicine and the impact of N.C. Dental.

Insurance and Financial Services Committee. The Committee shares responsibility for the McCarran-Ferguson Act and its application with the Insurance and Financial Services Committee (“IFS Committee”). Likewise, the doctrine of implied repeal naturally involves interacting with this committee, as many implied repeal cases involve financial services industries. We also interact on the filed-rate doctrine, which is frequently raised as a defense in the insurance industry.

International Committee. The Committee has undertaken efforts to keep its members informed on exemptions with international implications, and in particular, the Foreign Trade Antitrust Improvements Act (“FTAIA”). We co-sponsored a committee program series last year on FTAIA issues. We also need to work more closely with Canada and other jurisdictions that have regulated industries exemptions. One recent example of our E&I Committee work was the fact we provided a representative to meet with staff members from the Japanese competition authority who wanted to discuss shipping exemptions.

Transportation and Energy Industries Committee. The Committee has worked with the Transportation and Energy Industries Committee in light of the industry-specific exemptions for trucking, railroads, and airlines, as well as the use of the state action and filed rate doctrines in such industries.


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Trade, Sports and Professional Associations Committee. Our Committee also works with the Trade, Sports and Professional Associations Committee on sports immunities.

Our connections to numerous substantive committees results in joint offerings with other committees for programs and extends the Committee’s reach beyond its own membership base.


Our Committee has had excellent leadership in the past with Greg Luib and John Roberti. The accomplishments included:

Publications. The Committee published A Handbook on the Scope of Antitrust in 2015. This book is a first-of-its-kind, integrated treatment of all statutory and judicially created limits on the scope of the federal antitrust laws. This publication was also an update to the Committee’s 2007 publication, Federal Statutory Exemptions from Antitrust Law. The new handbook on the scope of antitrust should realize significant sales. The Committee is working on a new edition of its State Action Practice Manual, with publication expected in 2016..

Spring Meeting Programs. We have co-sponsored a Spring Meeting program for the last three years. In 2016, we will have a program with Health Care Committee on telemedicine restrictions by the states and role of N.C. Dental.

Use of Connect. We have used Connect to report on new cases and developments in the areas of exemptions and immunities. We have focused on making sure cases are reported as soon as possible.

Commentary on Legislative and Regulatory Proposals. The Committee has continued to be active in developing and supporting Section commentary on proposed legislation, regulations, and other policy issues involving antitrust exemptions and immunities.

II. Policy Issues

We believe that the policy issues listed below will be the most significant under the Committee’s purview, but we also face a more fundamental issue: How much of the economy has opted out of our antitrust system? Is that a problem or are ad hoc exemptions acceptable ways to fine tune the application of the antitrust laws?

A. The State Action Doctrine

The FTC’s case against the North Carolina Board of Dental Examiners puts the "active supervision" prong of the state action test front and center. North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101 (2015). The Court agreed with the FTC’s position that state occupational licensing boards comprised of market participants must satisfy the active supervision requirement. This may spur additional suits against other


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types of state boards involving regulated professionals. Moreover, every State must now reassess its boards to determine if there is "active supervision." Courts and state legislatures may need to address this issue.

In addition, we expect the proper framing of the clear articulation prong of the state action doctrine will be addressed. In other words, how foreseeable must the state’s authorization to displace competition be? How general can the statutory authorization to regulate be to qualify as clear articulation? The Supreme Court spoke to the clear articulation test in FTC v. Phoebe Putney Health System, Inc., 133 S.Ct. 1003 (2013), narrowing the foreseeability test to cover only situations in which the anticompetitive conduct is the “inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature.” How this test will play out in the lower courts will be of particular interest to the Committee and its membership.

The Committee expects to address these issues through updates to Connect, newsletters, Spring Meeting programs, committee programs, its contributions to the Annual Review of Antitrust Law Developments, and its publication of a new edition of its State Action Practice Manual. Further, the Committee’s Handbook on the Scope of Antitrust Law addresses developments in the state action doctrine.

B. The Noerr Doctrine

The Noerr-Pennington doctrine is an exemption issue that is frequently litigated. In particular, the most likely area of further development is in the pharma industry. The misrepresentation to government agencies has caught the attention of courts. In addition, there may be more development on the pattern exception, which raises the issue of whether each act of petitioning in a pattern of petitioning must satisfy the objectively baseless test and subjectively baseless requirements for sham petitioning.

The Committee’s Handbook on the Scope of Antitrust Law addresses significant developments in the Noerr case law since the publication of the Noerr monograph in 2009.

C. Statutory Immunities

We anticipate that efforts to enact or to repeal existing statutory exemptions and immunities will continue. In recent years, there have been efforts to repeal the exemptions for railroads and (at least in part) the McCarran-Ferguson insurance exemption. The Section and the Committee has generally supported efforts to repeal statutory exemptions. Given that repeal issues are very political it is unlikely that we will see any exemptions actually repealed.

On the other hand, proposals for new exemptions and immunities will continue to be introduced in Congress. The Committee will continue to assist the Section in preparing and presenting comments and testimony opposing proposals for new exemptions. The Committee developed a template for use in assisting the Section in drafting comments to Congress and other policy makers regarding newly proposed exemptions and immunities.


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Through programs, newsletters, and Connect entries, the Committee intends to provide a leading role in educating its members about Congressional and other efforts to repeal current, or introduce new, exemptions and immunities, as well as the application of existing statutory exemptions and immunities in the courts. As with other areas in our purview, the Committee’s Handbook on the Scope of Antitrust Law addresses significant developments in the statutory immunities area. It built on the prior publication, Federal Statutory Exemptions from Antitrust Law Handbook in 2007.

D. Implied Immunities

Although Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007), appeared to have expanded the scope of the doctrine of implied repeal, lower court decisions interpreting Credit Suisse have been relatively limited, except perhaps in the context of exchange-listed securities, where implied repeal has been read fairly broadly. It remains to be seen whether the courts will significantly expand the doctrine outside of this context.

E. International Issues

The Committee continues to see significant activity on the international front with regard to exemptions and immunities. Several issues will likely receive attention over the next several years. First, will be the application of U.S. law to international conspiracies, including in particular the continuing development of FTAIA jurisprudence.

A second area of interest will be the application of the related doctrines of sovereign immunity, act of state, and sovereign compulsion to preclude antitrust liability for partially state- owned firms, including many such firms in China.

Third, it will be important to focus the Committee’s efforts on understanding the immunities granted by foreign antitrust authorities. Non-U.S. exemptions will continue to be of importance to our members, especially on the difficult intersection of antitrust and regulation.

Fourth, another international issue is the issue of maintaining export exemptions, such as those in the Webb Pomerene Act, in a global environment where over 100 jurisdictions have competition laws.

Finally, a key area that could be considered an exemption is the increasing use of national security tests for approval of mergers that have nothing to do with anti-competitive effects. In the U.S., there is CFIUS review, and in other countries there are similar processes.


The Committee provides important services to the membership of the Section through publications and programming. The goals of the Committee include: (1) to produce a mix of publications and programming that provides the timely, relevant, and useful information to our members; (2) to ensure that the Committee remains valuable to our members’ practices; and (3) to make the most productive use of electronic communications to deliver the Committee’s work product.


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A. Scope of Charter

Revised in 2015, the Committee’s charter now more accurately characterizes its purview—that is, addressing the scope of the antitrust laws. That scope, of course, is defined primarily in terms of exemptions and immunities (both statutory and non-statutory). The Committee, however, has dealt with other doctrines, such as preemption and primary jurisdiction. These areas may not necessarily be viewed as traditional exemptions or immunities, but they nonetheless directly affect the application and extent of the antitrust laws.

In addition, the Committee expends significant efforts to address international issues, including statutory exclusions from the U.S. antitrust laws, including the FTAIA; the related doctrines of act of state, sovereign immunity, and foreign sovereign compulsion; and industry-specific exemptions and exclusions from non-U.S. antitrust laws, including blocking exemptions.

B. Membership

A key goal of the Committee will be both to strengthen the ties to our existing members, and to expand the audience for our various offerings. We address these issues below.

1. Expanding Membership

The Committee believes that extending its profile and expanding its membership will naturally involve substantial outreach beyond the Section. We plan to continue three membership expansion initiatives identified in our previous long range plan: (1) efforts to attract current Section members; (2) introducing members of other ABA sections to our Section, even if it does not involve joining our Committee; and (3) targeted outreach to government lawyers and young lawyers. Another potential initiative relates to our non-US members-- e.g., the similar regulatory exemptions that exist in Canada and the U.K. This highlights the intersection between regulation and competition in most countries.

The Committee believes that its only realistic path to expanding the size of its roster is to work with other committees to maximize exposure for the Committee’s offerings. We have uniformly found our partnerships to be preferable to going it alone. Of course, we will be successful only if we provide useful and high quality programs and publications of our own.

We further believe that we can assist the Section generally in expanding membership by reaching outside the Section with our offerings. In the past, we have jointly planned programs with the Administrative Law Section (on Noerr) and the Intellectual Property Law Section (on sham litigation). The positive reception we have received from these two sections suggests that there may be opportunities to expand the Section’s membership by partnering with the other sections, such as Business Law.

Finally, we believe that targeted outreach to certain underrepresented groups in our membership is warranted. In particular, we plan to continue affirmatively seeking out government lawyers, younger lawyers, and minority lawyers to participate as contributors. One of the outreach efforts we hope to replicate going forward is co-sponsoring programs with the


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Young Lawyers Division (“YLD”). The Committee also plans to reach out to in-house counsel and attorneys in state attorneys general offices to increase participation by those two underrepresented groups in Committee newsletters, programs, and other activities. In light of North Carolina Dental, the interest of state authorities has increased.

2. Strengthening Membership

We plan to enhance the loyalty of our membership in two ways. First, we plan to continue our program of identifying members interested in contributing and providing them with opportunities for contribution and recognition. Second, we must provide relevant and high quality programming and resources to the membership of the Section at large, but particularly to our own roster.

To be successful, our recruitment efforts also require that we offer opportunities for Section-wide recognition to our contributors. The Committee will continue to identify our strongest contributors to the Section leadership with the hope that, if appropriate, these contributors may be considered for leadership positions within the Section as they become available.


The nature of the Committee is that its substantive focus is narrow and specialized. Typically, an antitrust exemption will be particularly interesting to a narrow audience affected by it. Even exemptions with broader application, such as the Noerr and state action doctrines, are often viewed as complicated and esoteric even by antitrust practitioners.

Another challenge faced by the Committee is that it lacks the membership size of other committees, and therefore draws on a smaller base of contributors. The leadership at times can be stretched. One specific implication of our limited membership is that we often encounter difficulties finding volunteers to draft contributions.

D. Technology and Other Innovative Forms of Delivering Value to Members

The Committee makes use of its Connect page to publicize upcoming events and to report on relevant developments.

The Committee uses Connect to provide updates, as well as substantive content in the form of exemption-specific case updates.

E. Plan for Ongoing Activities

All the Committee leadership is required for the Committee successfully to plan programs and produce publications. Our YLRs have been a valuable resource. Our planning for membership, publications, and programs uses an integrated approach since programs and publications must provide platforms for our contributors and serve to increase our membership.

The following projects will be the focus of our ongoing activities:


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1. Continued marketing of the Handbook on the Scope of Antitrust. As mentioned above, the Committee published A Handbook on the Scope of Antitrust in 2015. This handbook is more detailed than our Antitrust Law Developments submissions. It includes topics, such as the FTAIA and sovereign immunity, that have not been considered elsewhere in our publications. It is an excellent publication.

2. State Action Manual. Work is progressing on schedule for a 2016 publication of a new edition of this valuable ABA publication. The revisions will include comprehensive treatment of the recent N.C. Dental and Phoebe Putney decisions and their implications for practitioners navigating state action issues.

3. Antitrust Law Developments Updates. The Committee will continue to contribute its chapters to the Annual Review of Antitrust Law Developments. We intend to offer opportunities to our contributors to draft these updates.

4. Connect Development. A key focus will be turning our Connect page for our committee into a better resource for members of the Section interested in learning about exemptions and immunities. This has become a major project for one of our Vice Chairs.

5. Newsletters. Our relatively small membership roster makes it rather challenging to populate newsletters with substantive articles. Rather than abandoning newsletters altogether, we have experimented in the past with various formats for our newsletters. Our goal remains providing the most useful and relevant news to our membership.

6. Commentary on Exemptions and Immunities Proposals. We will continue to support the Section in any comments or testimony regarding legislation or other policy proposals involving exemptions and immunities.

8. Key Partnerships. The Committee will continue to maintain its close ties with other committees within the Section, including the Health Care, Agriculture and Food, IFS, TEI, Trade, International, and Legislation Committees. We will work with these committees to develop programming that addresses our common interests.

* * *

We believe it is critical to have a committee focused on the fundamental question of what is the scope of the antitrust laws. We will continue to explain these issues to the membership of the Section.


48807753.1 Error! Unknown document property name.

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Exemptions and Immunities Committee

I. Leadership.


Chair Layne E. Kruse ([email protected])

Vice Chair Vittorio Cottafavi ([email protected])

Stephen M. Medlock ([email protected])

Charles C. Moore ([email protected])

Katherine S. Phillips ([email protected])

Young Lawyer Representative Todd Hutchison ([email protected])

Responsible Council Member Arthur J. Burke ([email protected])

Responsible Committee Operations Co-Chair Amy Manning ([email protected])


Identify which person on the Committee Leadership team will have responsibility for the following

Membership Recruitment and Involvement Vittorio Cottafavi

Connect and other technology Steve Medlock

Committee Updates and Newsletters Charles Moore (editor); Todd Hutchinson (asst. editor)

Publications Kate Phillips

Committee Programs All



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Time of Monthly Conference call (e.g., first Tuesday of each month)

Third Thursday of each month, at 3:00 pm Eastern

Will there be Committee Town Halls? If so, when? None planned at this time.

Will there be a Committee Meeting at the Spring Meeting?

The committee plans to participate in the welcome reception and any committee corridor events that may take place at the Spring Meeting.

IV. Membership.


What are the greatest challenges that the committee faces in recruiting new members?

The relatively narrow focus of our committee means, among other things, that there are fewer opportunities to engage practitioners and thereby recruit new members.

The Committee’s challenges remain the same. We have a fairly narrow scope and in years where there isn’t active exemptions and immunities litigation it can be difficult to attract attention to our programming.

What are the greatest challenges that the committee faces in engaging current members?

Compared to several other committees in the Section, our narrow substantive focus typically yields fewer avenues – such as case developments, publications, and programs – through which to engage current members.

Please identify at least three ways that you intend to recruit new members to your committee.

We will seek to co-sponsor a committee program with the Young Lawyers Division and/or another ABA section, as we have done on several occasions in the recent past.

We will seek additional involvement in committee activities on the part of FTC, DOJ, and state AG attorneys.

We will continue our practice of maximizing co-sponsorship opportunities in delivering our committee programming. Exposure to members of other Section committees remains an important avenue to recruiting new members to our committee.



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We will consider putting on Committee programs concerning recent developments in Noerr and the business of baseball exemption—those seem to be pretty active areas of litigation.

Please identify at least three programs, publications or other projects that will provide volunteer opportunities for your committee members.

We plan to have non-leadership members assist in drafting portions of the ALD Annual Review for which our committee is responsible.

We plan to ask non-leadership members to draft substantive articles for our committee newsletter, E&I Update.

We plan to ask non-leadership members to draft summaries of relevant developments for distribution on Connect.

We plan to ask non-leadership members to monitor developments on key exemptions and immunities.

V. Diversity

Our Section’s goal is to ensure that our membership benefits by ensuring that people of different races, genders, sexual orientations, levels of experience, and career choices (e.g., working for the government, plaintiff-side representations, in-house, small law firms) can and do participate (“Section Diversity”).

What are the greatest challenges that your committee faces in ensuring Section Diversity?

Although our committee has made some inroads of late in expanding the diversity of our membership to include law students, government attorneys, and non-U.S. practitioners, our membership does tend to skew toward more experienced practitioners.

Please describe at least three specific activities planned to increase participation by women lawyers, minority lawyers, young lawyers, corporate counsel, government lawyers, foreign lawyers, the plaintiffs’ bar, and/or non-lawyers.

We will continue our recent practice of involving law students in committee projects, where appropriate, including for example in the drafting of case summaries for distribution on Connect. Our hope is that upon entering the practice of law, the students involved in our committee activities will join the ABA and the Section.

We will seek to increase participation in our committee by corporate counsel by reaching out to our corporate



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counsel contacts to participate in a committee program, draft a newsletter article addressing an industry-specific exemption.

We will utilize the connections of our Young Lawyer Representative and Vice Chairs to reach out to less experienced practitioners and get them involved in various committee activities.



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Committee Program (as Spring Meeting)

Two Strikes Against Baseball Exemption: How will the minor league players and scouts fare?

[October 2015] This series, which would be co-sponsored by Sports Committee, include speakers from plaintiffs’ firms.

Committee Program (or Spring Meeting)

The Fallout from NC Dental: An Update from the Field: How have states implemented Supreme Court’s decision in North Carolina Dental

This program will include speakers from state AGs. Academic moderator, then panelists including an FTC person, a state enforcer, one plaintiff-side attorney and one defense-side attorney:

Prof. Chris Sagers (Academic)

Commissioner Olhausen (FTC)

Greg Luib

Kathleen Foote (State enforcer)


Does Copper Volstead provide any immunity?

TBD


Financial Services: Role of Exemptions and Immunities

TBD Co-sponsor – Insurance and Financial Services


Health Care and Telemedicine: Are State Boards blocking competition?

TBD Co-sponsor – Health Care



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Please identify the newsletters and other regular updates that the committee provides to its members. Please include both newsletters and non-newsletter communication channels such as blogs or CONNECT.

Newsletter/Update Name and Brief Description.


E&I Update – Our committee newsletter Three editions planned About October 2015; February 2016; June 2016

Connect Bulletin Board – We will post summaries of relevant cases and information regarding important developments in the exemptions area.

As warranted; typically 3-5 times a month

TBD

VIII. Books & Treatises Projects

Project/Book Title Brief Description Project Leaders Date for Completion

Status

ALD Annual Review Our committee contributes Chapter XIII (General Exemptions and Immunities) and Section H (Organized Labor) of Chapter XIV (Regulated Industries)

Kate Phillips Deadlines per ALD Annual Review Schedule

We are gathering workers

State Action Practice Manual (3d edition)

Third edition of our comprehensive treatment of the state action doctrine. The second edition was published in 2010.

Vittorio Cottafavi; Erica Weisgerber

2016 First drafts of revised/updated chapters are due to the co-editors by October 1.



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IX. Monitoring Developments. Describe how the committee will stay abreast of developments in the committee’s areas of interest, including new cases and agency actions, legislative proposals, and policy initiatives.


State action doctrine, LGAA, Legislative development

Westlaw/Lexis alerts, regular review of antitrust publications

Layne Kruse

Noerr-Pennington doctrine Same Vittorio Cottafavi

Filed rate doctrine; FTAIA; Other international exemptions

Same Steve Medlock

Capper-Volstead; labor exemption Same Charles Moore McCarran-Ferguson; primary jurisdiction; miscellaneous statutory exemptions

Same Kate Phillips

X. Other Activities and Projects. Please identify any planned committee activities not described above, particularly if there are budgetary constraints.


Monitor legislative developments and, where appropriate, participate in drafting Section comments addressing exemptions/immunities legislation

As warranted No

XI. Summary – Recap: Major Goals and Activities. Using the information provided above, please list the major projects, goals and dates for completion for the year


July 2015 July 31 – Submit draft annual plan

August 2015 August 4-6 – Post-Annual Meeting

August 28 – Submit final annual plan

September 2015 September 17 – Third Thursday

September ___ – Submit ALD first draft

September ___ – Spring Meeting proposals due

September 30 – Committee activities chart due



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October 2015 October 15 – Third Thursday

October ___ – Submit ALD second draft

October 15 – Publish E&I Update (Fall 2015 Edition)

October – Committee program

November 2015 November ___ – Submit ALD third draft

November 19 – Third Thursday

November 25 – Committee activities chart due

December 2015 December 1 – Submit ALD inserts through November

December 17 – Third Thursday

December 16 – Committee/Vice Chair/YLR performance evaluations due

January 2016 January 21 – Third Thursday

January 5 – Submit ALD final inserts

January – Committee program

February 2016 February 18 – Third Thursday

February 15 – Publish E&I Update (Winter 2015 Edition)

February 17 – Committee activities chart due

March 2016 March 17 – Third Thursday

April 2016 April 21 – Third Thursday

April 15-17 – Spring Meeting

May 2016 May 19 – Third Thursday

May – Committee program

June 2016 June 16 – Third Thursday

June 15 – Publish E&I Update (Summer 2016 Edition)

June 16 – Committee activities chart due

July 2016 July 21 – Third Thursday



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We confirm that:

• our Committee’s Leadership has reviewed and discussed the above plan;

• we have discussed our plan with the Responsible Council Member and a Committee Operations Co-Chair;

• each of us understands and is committed to completing the assigned tasks and achieving the stated goals; and

• we believe that the goals that we have listed are achievable.

Signed:

/s/ Layne E. Kruse Layne E. Kruse, Committee Chair

/s/ Vittorio Cottafavi Vittorio Cottafavi, Committee Vice-Chair

/s/ Stephen M. Medlock Stephen M. Medlock, Committee Vice-Chair

/s/ Charles C. Moore Charles C. Moore, Committee Vice-Chair

/s/ Katherine S. Phillips Katherine S. Phillips, Committee Vice-Chair

MEMORANDUM

TO: Council, ABA Section of Antitrust Law

FROM: Federal Civil Enforcement Committee

DATE: December 29, 2015

RE: Federal Civil Enforcement Committee

The FCE Committee has been very active since Fall 2014, continuing on the great

momentum that Hill Wellford created (and Howard Morse before him). Our programs and publications have been popular. We have had a slower start this fall than we did last year, but we will make up for it in 2016.

I. COMMITTEE BACKGROUND

Our focus is on agency developments and actions on the civil side. We frequently co-sponsor programs with other committees, such as Consumer Protection, Unilateral Conduct, Mergers and Acquisitions, and State Enforcement. The Section constituencies that we view as our primary focus are private attorneys whose practice focuses on merger review and other civil antitrust enforcement, private attorneys who focus on CP, and agency attorneys. We do not view attorneys from other countries or plaintiffs’ attorneys as primary constituencies, although we try to include them in our programs.

II. MEMBERSHIP

We began the year with 377 members and currently have 422. The committee tends to fluctuate around the number 400. We are not focused on reaching a particular number but on serving our constituencies effectively and on ensuring that we are focused on the all the constituencies we can serve.

Private attorneys who focus on antitrust enforcement. We believe we are serving this group

very effectively. Our programs generally have 60-80 dial-ins. Our “Nuts and Bolts of Mergers” series has been very well-attended., especially by private attorneys. We get very positive feedback on our bi-weekly “Round-Ups” (see below under “Publications”).

Antitrust agency attorneys. As far as agency lawyers are concerned, this continues to be a

challenge. Agency lawyers are a minority among our members. Historically the cost of membership was been a barrier, although the Section and the ABA have addressed this to a great

extent with the special rates for government lawyers. Second, we believe (based on anecdotal, not empirical, evidence) that agency attorneys may not have a full grasp of the value of Section participation. We believe that the FCE should be a forum for engagement between the agencies and the private bar that practices before them, so we plan to tackle these issues. We plan to talk to former agency lawyers who are currently active members of the Section, to get their insight into how we can be more useful to agency lawyers.

CP agency attorneys. Our strategy for reaching this group is to do so primarily in concert

with the CP committee, since there is not a natural delineation between our two committees. As we get programs scheduled for next year, we will aim for two-three programs on CP issues. One of our Spring Meeting proposals that got accepted was “The FTC and the New Frontier of Privacy,” chaired by Shylah Alfonso.

Diversity. Our vice-chairs include men and women, and include both outside and agency

attorneys. We recognize the Section’s mandate to make our panels diverse and have generally succeeded in doing so. As for young lawyers, we have done networking events and “why join an agency?” programs that have been well-attended. We also have an editorial board that has allowed us to involve some terrific younger lawyers. They have been a very committed and hard-working group and we would like to see a pathway into other Section leadership positions for them. They have earned it and the existence of such a pathway would enable us to recruit new board members.

III. PROGRAMS

Last year, the FCE Committee sponsored eight Committee programs and three Spring Meeting programs. These programs were extremely popular, with dial-ins ranging from 60 to 80. Our “Nuts and Bolts of Mergers” programs tackle a specific task or issue in merger review, such as developing white papers or preparing the HSR filing. Our other programs have focused on recent developments, recurring key issues, and other topics of interest to our constituents. In addition, we co-sponsored seven Committee Programs and three Spring Meeting programs.

So far this year, the FCE Committee has sponsored four Committee programs and has a

fourth that is being scheduled for January 26 or 29. We have also co-sponsored another two. Our goal is to sponsor at least eight programs (including one teleseminar), so we will have a busy spring and summer. We proposed 11 Spring Meeting programs, of which three were accepted.

IV. PUBLICATIONS

DOJ Practice Manual (2d ed.). This new edition is scheduled for publication in 2018, and is on schedule. Randy Weinsten is the VC in charge and is doing a fantastic job.

ALD 8 and ALD 2015 Update. Our contributions to these have been proceeding on

schedule. Round-Ups and Newsletter. Our twice-monthly Round-Ups summarize activities,

developments, and news from the agencies. They have been very popular in the past although now that we are publishing them through Connect, we don’t know how popular they are. We need to explore whether we can get statistics on how many views they get. A new vice-chair has struggled to get these out on a regular basis, so that VC and I will be working together this year to solve any

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issues. Our editorial board of young lawyers are all veterans, having handled these for several years, so the issues should be easily addressed. The same VC is working on converting our newsletter template to one that we hope will be easier to use, and our next newsletter is scheduled to come out this week.

ABA Comments. Our committee is often called on to contribute to comments to be

submitted by the ABA, usually on relatively short deadlines. This year we contributed volunteers to assist with ABA comments on the review of the consent decree from the BMI Music case.

Web presence. We have had a call with Anthony Chavez to better understand how to use

the ABA website and Connect. Currently, we have some work to do to get both updated and to make Connect a more dynamic conversation rather than just a place where we post things (where they are, unfortunately, hard to find).

Library of merger litigation forms. We have talked about putting together a library of case

management orders, protective orders, confidentiality and trial procedures orders, and other orders from prior cases for use by agency and private lawyers in future litigation cases. We need to canvass Section members (both agency and private) to see if such a library would be useful.

NAI-1500741299v1

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FEDERAL CIVIL ENFORCEMENT

I. Leadership.


Chair Paula Render

Vice Chair Shylah Alfonso

Elinor Hoffmann

Randall Weinstein

Jeffrey Jacobovitz

Carla Hine

Joshua Soven

Young Lawyer Representative Justin Bernick

Responsible Council Member Hill Wellford

Responsible Committee Operations Co-Chair Adam Biegel


Identify which person on the Committee Leadership team will have responsibility for the following

Membership Recruitment and Involvement Elinor Hoffmann and Jeffrey Jacobovitz

Connect and other technology Justin Bernick

Committee Updates and Newsletters Carla Hine (Newsletter and FCE Round-Ups)

Publications DOJ Manual – Randy Weinstein; ALD8 – Josh Soven and Shylah Alfonso; ALD Update – Shylah Alfonso

Committee Programs All committee members; Jeff Jacobovitz as coordinator/resource person




2

Time of Monthly Conference call (e.g., first Tuesday of each month)

First Thursday of the month

Will there be Committee Town Halls? If so, when? No

Will there be a Committee Meeting at the Spring Meeting?

Yes

IV. Membership.


What are the greatest challenges that the committee faces in recruiting new members?

Although our committee focuses on the agencies, we don’t have a lot of agency participation.

What are the greatest challenges that the committee faces in engaging current members?

We regularly offer the membership opportunities to get involved, but rarely get any volunteers.

Please identify at least three ways that you intend to recruit new members to your committee.

Continued robust programming

Networking program in DC

Use of Connect to solicit/encourage membership

Please identify at least three programs, publications or other projects that will provide volunteer opportunities for your committee members.

We invite volunteers to serve on our editorial board, which produces our monthly Round-Ups and helps with the newsletter.

We have involved a number of members in our forthcoming second edition of the DOJ Practice Manual.

We’ll seek volunteers to help with ALD8 and ALD Update 2015.

V. Diversity

Our Section’s goal is to ensure that our membership benefits by ensuring that people of different races, genders, sexual orientations, levels of experience, and career choices (e.g., working for the government, plaintiff-side representations, in-house, small law firms) can and do participate (“Section Diversity”).


3

What are the greatest challenges that your committee faces in ensuring Section Diversity?

Our membership and the audience we are trying to reach (agency lawyers and lawyers who practice in front of the agencies) are not a very diverse group.

Please describe at least three specific activities planned to increase participation by women lawyers, minority lawyers, young lawyers, corporate counsel, government lawyers, foreign lawyers, the plaintiffs’ bar, and/or non-lawyers.

Program aimed at young lawyers on practicing before and working at the agencies (young lawyers)

Brown bags (we always try to include at least one diverse panelist, and often include government lawyers)

Programs focused on economics (economists)


Please provide a schedule of planned programs and teleseminars for the upcoming year. As you complete this schedule, please consider the following:

Type of Program. There are generally four types of programs that you should consider:

Committee Programs, also known as brown bags, are generally one-hour programs on a particular topic of interest. Committee programs are free to Section Members, and are $25 for non-members.

Committee Update programs are recurring programs in a subject matter area. These programs can occur monthly, quarterly, or at other intervals. Committee update programs are free to Section Members, and are $25 for non-members.

Teleseminars are programs where CLE credit is offered. There is generally more detail required and a more rigorous approval process. Teleseminars are generally [$] for Members and [$] for non-Members.

Town Hall programs are programs put on by committees to inform their membership about Committee activities, and to solicit involvement and volunteers. These Town Hall programs are free to Section Members, and are $25 for non-members.

General Subject Matter. If known, please indicate the program’s topic area. If a program is planned for some months in the future, please provide as much information as possible, and at a minimum indicate the general subject matter, such as whether the program will cover recent developments, fundamentals, surveys across jurisdictions or trends.

Date. Please provide the approximate date for the program, which will be confirmed after the program, has been approved.

Diversity Opportunity. Please indicate how the program will support Section Diversity among speakers or participants. If the program is to be scheduled with another ABA Section or organization, please consult your assigned Committee Operations co-chair for assistance on obtaining those approvals.


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Please see the sample schedule below.


Committee Program Recent FTC Consent September 2015 We will include government speakers and there will be interest among plaintiffs’ firms.

Committee Program Fundamentals of Antitrust Writing

October 2015 We plan to co-sponsor with the Young Lawyers’ Division.

Town Hall Update on Committee Activities

October 2015

Teleseminar Using Economists in developing your antitrust case.

November 2015 We will seek to engage non-lawyer economists and seek co-sponsorship from other ABA sections.

Committee Update Developments in our subject matter area in 2015

December 2015 We will seek out diverse speakers from government and plaintiffs’ firms.

Type of Program General Subject Matter Date Diversity Opportunity Committee Program The FTC and Section 5 September Government lawyers Committee Program Nuts & Bolts of Mergers:

Planning for the Second Request

September Government lawyers, economists

Committee Program Agency Litigation Update October Young lawyers Committee Program Vertical mergers November Economists Teleseminar Health care efficiencies November Government lawyers, in-house

lawyers, economists


Please identify the newsletters and other regular updates that the committee provides to its members. Please include both newsletters and non-newsletter communication channels such as blogs or CONNECT.

Newsletter/Update Name and Brief Description.



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Committee newsletter Three Fall, Winter, Spring

FCE Round-Ups 20 Biweekly

VIII. Book & Treatises Projects

Project/Book Title Brief Description Project Leaders Date for Completion

Status

DOJ Practice Manual – Second edition

How the DOJ Antitrust Division works

Randy Weinstein Fall 2017

ALD8 FCE Portion Josh Soven and Shylah Alfonso

ALD Update 2015 FCE portion Shylah Alfonso March 2016

IX. Monitoring Developments. Describe how the committee will stay abreast of developments in the committee’s areas of interest, including new cases and agency actions, legislative proposals, and policy initiatives.


Agency developments Editorial board monitors to put together biweekly FCE Round-Ups

Carla Hine

X. Other Activities and Projects. Please identify any planned committee activities not described above, particularly if there are budgetary constraints.



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Library of Sample Pre-trial Orders for Merger Litigation

March 2016 TBD

XI. Summary – Recap: Major Goals and Activities. Using the information provided above, please list the major projects, goals and dates for completion for the year


September Committee programs; biweekly Round-Ups; submission of Spring Meeting programs; ALD Update 2015

October Committee programs; biweekly Round-Ups; newsletter; ALD Update 2015

November Committee programs; a teleseminar; biweekly Round-Ups; ALD Update 2015

December Committee programs; biweekly Round-Ups; ALD Update 2015

January Committee programs; biweekly Round-Ups; ALD Update 2015

February Committee programs; biweekly Round-Ups; planning for Spring Meeting programs; newsletter; launch merger pretrial orders database

March Committee programs; biweekly Round-Ups

April Committee programs; biweekly Round-Ups; newsletter

May Committee programs; biweekly Round-Ups; a teleseminar

June Committee programs; biweekly Round-Ups

July Committee programs; biweekly Round-Ups

August



We confirm that:

our Committee’s Leadership has reviewed and discussed the above plan;


7

we have discussed our plan with the Responsible Council Member and a Committee Operations Co-Chair;

each of us understands and is committed to completing the assigned tasks and achieving the stated goals; and

we believe that the goals that we have listed are achievable.

Signed: /s/ Paula W. Render Committee Chair /s/ Shylah R. Alfonso Committee Vice-Chair /s/ Carla A. R. Hine Committee Vice-Chair /s/ Elinor R. Hoffman Committee Vice-Chair /s/ Jeffrey S. Jacobovitz Committee Vice-Chair /s/ Joshua H. Soven Committee Vice-Chair /s/ Randall M. Weinstein Committee Vice-Chair

1A/74497186.2


1. Committee Background

A. Scope of current charter

The Federal Civil Enforcement Committee monitors developments in antitrust and consumer protection enforcement policy and actions at the Antitrust Division of the U.S. Department of Justice and at the Federal Trade Commission. We report on these developments and actions through our newsletter and through a variety of outreach efforts, including our listserv. We traditionally sponsor two panels at the Antitrust Spring Meeting, Agency Update with the DOJ DAAGs and Agency Update with the FTC Bureau Directors, in addition to other programs.

B. Interaction with other committees

Our committee has a broader focus than many of the substantive committees, due to the fact that we cover all civil enforcement by the agencies. This causes us to focus more on agency-specific procedural matters, and less on specific substantive issues; however, we cover substantive antitrust issues as well as they arise. We work cooperatively with other committees through our brown bags, teleseminars, and Spring Meeting proposals. Some of those committees include the Consumer Protection, Economics, Exemptions and Immunities, Intellectual Property, International, Joint Conduct, Mergers & Acquisitions, and Unilateral Conduct committees. This year, we have also worked to become more involved with the State Enforcement Committee.

For the sake of completeness, we currently mention DOJ’s major criminal enforcement cases and initiatives in our semi-weekly “roundups”; otherwise, we do not currently cover criminal enforcement. We work with the Cartel committee on matters involving Antitrust Division-wide matters such as budget and staffing.

C. Membership

As of this writing our committee has approximately 400 members. Our membership is diverse in every sense of the term, and includes many current and former government attorneys. Increasing membership, particularly government attorney membership, is one of our top goals. We look forward to working with the Section on this challenge; see the discussion below.

D. Recent accomplishments

Programs. As of February 2015, we are off to an active start for the 2014-15 year. We have had eight brown bags since September, including two in our “Nuts and Bolts of Mergers” series. We will present four programs at this year’s Spring Meeting. We have several more programs in the planning stages for after this year’s Spring Meeting.

Publications. We are current with our deadlines and obligations to the 2014 Annual Review of ALD. We just completed a new edition of the FTC Practice Manual (last published in 2007), available now. We have just received approval from B&T for a

2A/74497186.2


second edition of the DOJ Practice Manual, tentatively scheduled for publication in January 2018.

Newsletters and periodic publications. Twice a month, we publish our “Agency Round-ups,” summaries of all the news and developments at the agencies since the last Round-up. We publish four newsletters a year and have already issued two for the 2014-15 year. These are hyperlinked to the source documents. Our roundups and their hyperlink accessibility have received very positive reviews. We also publish four newsletters a year, and have already published two for the 2014-15 year as of February 2015. We have an editorial board of more junior attorneys who assist with the newsletter and the Round-Ups. This has helped us introduce those attorneys to working with our committee, and also has funneled them into more in-depth ABA publication projects. This newsletter format is very successful and we plan to continue it.

Website. We keep our committee page on the ABA website up to date and have assigned a vice-chair to keep it current. We also keep our Connect page up to date. Participation of leadership and general membership. Our committee does an excellent job of sharing responsibilities among the committee’s leadership (Co-Chairs, Vice Chairs, and Responsible Council Member). We designated a vice-chair as a resource for planning brown bags and teleseminars, but encourage all vice-chairs to plan and present programs and all have done so. We experimented in the past with rotating responsibility for the newsletter because it can be time-consuming, but the editorial board handles a lot of the work and so we are not rotating this responsibility any more. We will continue to reach out to the committee’s general membership for assistance with brown-bags and publications, as has worked in the past. Our committee has always faced a challenge in attracting members because agency lawyers are one of our major constituencies but the fees to join the ABA have been prohibitive. Our RCM just reported on our last monthly call that the rate for government lawyers to join the ABA is now $70 and joining the Section is free. This should make a big difference in the ability of government lawyers to participate.

2. Anticipated Policy Issues

Our committee expects to devote significant resources to addressing the following policy issues during the coming years, through CLE programs, an active listserv, publications, and other policy and educational tools.

FTC Act Section 5. The scope of Section 5 has been debated for several years now (or more), most recently in a February 2015 FTC symposium. We will continue to keep our members advised about this debate. Net Neutrality, Privacy, and other Internet Issues. We need to increase our focus on this issue, which has not been a big area for us. High-Tech Industries and Innovation. The agencies continue to be concerned about

3A/74497186.2


striking the right balance between enforcement and innovation. We will continue to focus on this area in our programming ad articles. Healthcare competition and pharmaceutical industry issues. This has been a big focus of the FCE Committee in the past, and will continue to be.

Trends in merger enforcement. We will focus on trends that emerge in the agencies’ merger enforcement, such as the real or perceived trend toward more frequent use of structural remedies. Civil non-merger enforcement issues. Civil litigation by the agencies regularly generates new topics and issues, such as the use of compliance monitors. Case versus non-case activity. We will continue to examine the role of guidelines, hearings and reports, especially where the agencies have not coordinated or have even opposed each other, to understand why such activity is undertaken as opposed to using case enforcement, and whether the mix is appropriate, effective and predictable.

FTC/DOJ clearance. This is a perennial topic for good reason. As technology and business models continue to disrupt the old clearance-by-industry model, clearance battles are likely to recur.

Coordination with the states, other agencies, and foreign officials. The relationship between the state AGs and the federal agencies remains inconsistent. The relationship between the FTC and DOJ, on the one hand, and other federal agencies, on the other, has produced occasionally confusing results from the perspective of industry. US coordination with the EU has improved but coordination with other jurisdictions, including Korea and China, appears to be more difficult. Our committee will continue to offer programs and newsletter articles in this area.

3. Long term plans to strengthen the Committee

A. Increase government attorney participation The Committee has been focused for a number of years on this goal, and has made some good strides. The name change to the Federal Civil Enforcement Committee more accurately conveys this Committee’s focus, which we believe may have resolved confusion that was a barrier to increasing membership. In addition, the Section has worked with the ABA to lower to price of ABA membership, to attract more government agency members. Our membership roster (from Connect), however, includes 27 FTC attorneys and 11 DOJ attorneys, so we still have more work to do. We need to reach out to our current agency members to find out what we could do to increase our appeal to their colleagues, so we plan to pursue the possibility of a membership survey in 2015.

B. Improve communication

The question of whether Connect is an effective tool for reaching our membership is an issue we are evaluating. As of December 2014, we had 517 members on our listserve

4A/74497186.2


and only 397 members who had joined Connect. Moving exclusively to Connect means that we will not be in communication with 100 or more of our members. We promote Connect in all of our listserve emails in hopes that our members will shift. We plan to continue to work with the Section to improve our use of Connect. C. Increase consumer protection programming. The Committee programs and articles continue to reflect a competition bias. This improved this year with the appointment of a vice-chair who is a CP lawyer and who is active in other Section CP activities. We will continue to co-sponsor programs with the CP and other committees, but we need to increase our efforts to address CP enforcement.

Paula Render Chair

CHI‐181956507v1

FCE Committee Members as of 1/5/15

TypeCount of Type

Defense Firm 196Unknown 77FTC 31Firm 27Corporation 27Plaintiff's Firm 16Consultants 14DOJ 13XUS 12Academic 9State 7ABA 5Vendor 4

0

50

100

150

200

250

Total

Total

Vendor 4Media 3Govt (not DOJ or FTC) 3Grand Total 444

[email protected] Fax: 216.566.5800 Phone: 216.566.5605 sf 11944352.1

M E M O R A N D U M

December 29, 2015

TO: SAL Officers and Council

FROM: Thomas F. Zych

RE: Consumer Protection Officer Report – January 2016

The Section’s consumer protection initiatives have been engaged for the first half of the Section year not only in traditional programming, publication and membership growth, but more widely in a strategic exercise meant to build on the current consumer protection structure and offerings to make the Section a more compelling destination for practitioners, enforcers and academics involved in the full range of consumer protection disciplines. The Section strategic planning report to be presented to Council will provide the high-level view of this process. At the operational level, assessing current strengths and gaps, identifying new activities and products, and addressing the competition for membership and substantive contributions all are at the heart of current CP planning. Most involved in the Section’s CP activities view the next several years as pivotal to the future of consumer protection in the Section. The following areas of focus are at the core of the current effort.

OUTREACH

The principal CP committees have identified, formed and charged working groups to drive outreach to key consumer protection constituencies, namely:

• State enforcers

• In-house counsel

• CP plaintiff’s counsel

• International CP professionals

• Academics

December 29, 2015 Page 2

The Section already enjoys a strong relationship with the outside counsel and

federal enforcement communities, but has room to grow in these additional constituencies. Each working group is tasked with developing targeted outreach approaches. Along with the State Enforcement Committee, the Consumer Protection Committee now is producing frequent state AG enforcement updates, and our leadership connections with state enforcers are being used to recruit membership and participation. Likewise, direct outreach to in-house lawyers with CP portfolios is being aimed at developing compelling substantive offerings and providing opportunities for engagement and Section participation and this outreach likely will be reflected in the location, content and draw of the 2016 Consumer Protection Conference. The other working groups are engaged in parallel efforts.

PUBLICATIONS

The Consumer Protection leadership also has engaged in laying the groundwork for a potential CP-dedicated periodical publication. While any actual production requires a resolution of the Section’s publication support structure, recent contributions to The Source, the frequent consumer protection-related developments updates and stand-above work product like the Advertising Disputes and Litigation Committee’s advertising self-regulation reports will indicate that generating Section-worthy content will not be a stumbling block.

The second edition of Consumer Protection Law Developments is nearing completion, as is the Claims Substantiation Handbook, both representing substantial work.

PROGRAMMING

This year’s CP Spring Meeting consumer protection track is both larger and more diverse than in previous years. The full range of consumer protection disciplines is represented, with particularly timely programs on privacy and data security.

Planning for the 2016 CP Conference is underway. As with other focused stand-alone Section programs, this year’s conference will require fresh thinking and a willingness to break from tradition to reclaim growth.

January 8, 2016

TO: Officers and Council

FROM: Kevin O'Connor

RE: Finance Officer Report

The following are the most recent financial activities of the Section.

1. Monthly Operating Report

The monthly operating report for December 2015 is attached. The Section's revenues and

expenses for the first four months of FY2016 appear to be on track as compared to the

budget and the previous year.

2. Long Term Investments

As of January 7, 2016, the value of the Section's long term investment funds was$10,995,248. The current weighting is 62% stocks and 38%bonds. The Section also hasshort term money market position of $436,904.

3. Advisory Board on Section Reserves

With the assistance of Section staff, the Reserves Board sent an email in December 2015

to the entire leadership soliciting ideas for new projects that potentially could be funded

from Section reserves for FY2016. The list of previously approved reserves projects

funded for FY2016 and brief summaries of the projects are posted on the LeadershipPortal. Dashboards for current projects are also included as part of your materials. Many

thanks to the Responsible Council Members who have provided a Council link to theseprojects.

The Reserves Board is also receiving evaluations for existing projects. The Reserves

Board will present its recommendations for the funding of reserves projects for FY2016at the Spring Council Meeting in Apri12016.

Finally, I should note that the addition of Julianna Theberge to the SAL staff has greatly

facilitated the work of the Reserves Board and her efforts and expertise are greatly

appreciated.

4. The Research Institute is considering research and writing projects for FY2016 under theleadership of Ted Voorhees and Bill Kolasky. The Institute will be forwardingrecommendations to the Council as they finalize their review.

15055516.1

ABA LOB Summary Report (3 Year Historical - B

1)

Fiscal Year: 2016

Period: DEC-15

ABA Fund: B3: SECTION FUNDS

ABA Resp: 15030: ANTITRUST LAW

FY2015

DEC-14 Y

TD

DEC-15 Period

DEC-15 Y

TD

FY2016

FY2014 Actual

ActualActual

Line Of Business

ActualActual

Budget

REVENUE

428,212

405,393

120,396DUES

(32)

76,120384,000

03ABMTG: MEETINGS

1,851,5152,204,150

00305MTG:SPRING MEETING

0550

2,483,700

1,851,5152,204,150

003ABMTG:MEETINGS Total

0550

2,483,70010ABPUB: PUBLICATIONS

777,239

626,056

164,275

1001PUB:BOOKS

0117,552

617,585

6,937

11,6865,059

1011PUB:MAGAZINES

(9,799)(7,746)

2,000

23,56525,743

3,6991016PUB:JOURNALS

(3,070)4,498

30,100

1,693(131)

(267)

1023PUB:WEB BASED PUBLICATIONS

0(136)

300

809,434

663,354

172,76610ABPUB:PUBLICATIONS Total

(12,870)114,168

649,985

20ABCLE: CLE

538

672

02000CLE:CLE GENERAL ACTIVITY

00

100

634,865

393,278

255,309

2006CLE:CLE SEMINARS

0180,303

728,300

635,403

393,950

255,309

20ABCLE:CLE Total

0180,303

728,400

303AGEN: GENERAL &ADMINISTRATION

265,708

217,747

62,730

3031GEN:G&A GENERAL ACTIVITY

(5,042)41,423

262,938

265,708

217,747

62,730

303AGEN:GENERAL &ADMINISTRATION Total

(5,042)41,423

262,938306AGOV: GOVERNANCE

57,00543,669

274

3062GOV:SECTION GOVERNANCE

00

38,700

57,005

43,669

274

306AGOV:GOVERNANCE Total

00

38,70070ABCOM: COMMITTEES/COMMISSIONS/COUNCILS

8,5256,555

1,6757003COM:SECTION COMMITTEES

01,215

5,0008,525

6,5551,675

70ABCOM:COMMITTEES/COMMISSIONS/COUNCILS Total

01,215

5,0004,055,802

3,934,819613,150REVENUE TOTAL

(17,944)413,779

4,552,723EXPENSE

03ABMTG: MEETINGS

728

1,3780

0301MTG:ANNUAL MEETINGS

00

8,1000

00

0302MTG:PRIOR ANNUAL MEETING

038

200

874,689

902,639

13,7250305MTG:SPRING MEETING

267

579

1,092,600875,416

904,017

13,72503ABMTG:MEETINGS Total

267

617

1,100,90010ABPUB: PUBLICATIONS

364,962

202,935

71,4261001PUB:BOOKS

1,20965,072

191,282194,437

217,260

56,3991011PUB:MAGAZINES

2,48212,021

201,400

237,018

224,709

78,7501016PUB:JOURNALS

301

62,679

285,500

58,213

54,155

14,0521023PUB:WE6 BASED PUBLICATIONS

4,67017,947

61,000

Page 1 of 2

1/8/201610:52 A

M

ABA LOB Summary Report (3 Year Historical - B

1)

Fiscal Year: 2016

Period: DEC-15

ABA Fund: B3: SECTION FUNDS

ABA Resp: 15030: ANTITRUST LAW

FY2015

DEC-14 Y

TD

DEC-15 Period

DEC-15 Y

TD

FY2016

FY2014 Actual

ActualActual

Line Of Business

ActualActual

Budget

15,95114,843

342

1024PUB:OTHER PUBLICATIONS

00

15,000870,581

713,902

220,969

10ABPUB:PUBLICATIONS Total

8,663157,719

754,182

20ABCLE: CLE

13,84333,715

889

2000CLE:CLE GENERAL ACTIVITY

02,982

26,400

687,559

345,840

233,017

2006CLE:CLE SEMINARS

8,418111,147

858,599

(17,717)(11,456)

(10,739)2009CLE:CLE CONFERENCES

0(4,035)

0683,684

368,098

223,16720ABCLE:CLE Total

8,418110,094

884,999

303AGEN: GENERAL &ADMINISTRATION

639,133

683,433

201,000

3031GEN:G&A GENERAL ACTIVITY

(1,126)184,951

812,219

639,133

683,433

201,000

303AGEN:GENERAL 8 ADMINISTRATION Total

(1,126)184,951

812,219

306AGOV: GOVERNANCE

00

39

3061GOV:GOVERNANCEGENERALACTIVITY

00

0

524,726563,705

31,8053062GOV:SECTION GOVERNANCE

3318,339

573,100

524,726563,705

31,844306AGOV:GOVERNANCE Total

331

8,339573,100

30ABMEM: MEMBERSHIP

26,47925,027

9,6133003MEM:MEMBERSHIP DEVELOPMENT

520

3,59050,000

26,47925,027

9,613

30ABMEM:MEMBERSHIP Tntal

520

3,59050,000

40ABPRJ: SPECIAL PROJECTS

110

04001 PRJ:SPECIAL PROJECTS GENERAL ACTV

00

0122,961

196,41516,720

4006PRJ:OTHER PROJECTS

1,41818,487

149,4007,176

31,3472,168

4007PRJ:SECTION SPECIAL PROJECTS

00

17,400344,894

427,813

19,8394008PRJ:SECTION RESERVE PROJECTS

10,43615,036

727,000

475,041655,576

38,72640ABPRJ:SPECIAL PROJECTS Total

11,85433,522

893,800

70ABCOM: COMMITTEES/COMMISSIONS/COUNCILS

81,45196,166

22,3847003COM:SECTION COMMITTEES

2,4515,532

80,90081,451

96,16622,384

70ABCOM:COMMITTEES/COMMISSIONS/COUNCILS Total

2,4515,532

80,9004,176,513

4,009,924761,429EXPENSE TOTAL

31,378504,364

5,150,101(120,711}

~~5~1Q~~~~,~,,~,,; ~~47,8~NETREVENUE OVER/(UNDER) EXPENSES

(49,321)(90,585)

(597,378)1,359,660

(277,007)(38,283)

NON-OPERATING TOTAL

0279,908

01,238,948

(352,112)(186,562)

NET CHANGE IN U

NRESTRICTED NET ASSETS

(49,327)189,322

(597,378)1,238,948

(352,112)(186,562)

NET CHANGE IN T

OTAL ASSETS

(49,321)189,322

(597,378)

Page 2 of 2

1/8/201610:52 A

M

Working name for proposal: Research grant for a biography of Victor Morawetz Person or Group submitting request: Bill Kolasky, on behalf of Marc McClure Person originating proposal: Marc McClure Contact Person (contact information): [email protected] Proposal: I am submitting this proposal on behalf of Marc McClure. Marc is an Associate Professor of History at Walters State Community College, Morristown, Tennessee. He is seeking a grant of $5,000 to help fund his ongoing research for a monograph on Victor Morawetz. Marc hopes to complete his full monograph by August 2016, but in the meantime hopes to publish articles on Morawetz in various journals, including ABA publications if possible. Morawetz was a leading American corporate lawyer practicing in New York during the Progressive Era, who played an important role in the events leading up to the creation of the Federal Trade Commission in 1914. Marc’s study will focus on three phases of Morawetz’s life beginning with his role in the development of corporation law with the publication of the his 1882 text The Private Law of Corporations and his formation of General Electric, three of the great railroad systems, and U.S. Steel for J.P. Morgan between 1893 and 1901. This phase will also consider Morawetz’s directorship of the Santa Fe railroad and other factors that made him a nationally recognized authority on corporation law, finance and business operations. The second phase relates to Morawetz’s extensive role in shaping federal legislation that created the regulatory state and other acts touching upon new federal power in the nation’s economic life during the era of reform. This phase will first consider his contributions to the development of the Hepburn Act, the Federal Reserve Act, and the Federal Trade Commission and will then turn to his role in shaping federal authority over vital economic sectors during World War I, which resulted in an almost complete rollback of antitrust enforcement during the war. The final phase of the study will examine Morawetz’s contribution to the legal profession, most especially through his role in the formation of the American Law Institute and his influence on its initial restatement of corporation and antitrust law. Marc has already conducted research in Washington relating to the public phase of Morawetz’s contribution. He anticipates traveling to work in the ALI archives at the University of Pennsylvania and various other archives in New York and Massachusetts to gather materials for the first and last phase of Morawetz’s life, and is seeking a grant from the Section to support this further research. Additional background for proposal: Marc has previously published a book-length biography of George Rublee, entitled Ernest Endeavors: The Life and Public Works of George Rublee. His book was one of the primary sources for my article on Rublee and his role in the formation of the Federal Trade Commission in my trustbusters series for Antitrust magazine, which was how I first came to know Marc. I am also attaching a copy of Marc’s CV and a working papers he presented on Morawetz at an Ohio Valley History Conference in Clarksville, Tennessee just last week.

Amount of funding requested: $5,000 Time frame: Next six months Assessment of benefits: Marc’s book on Victor Morawetz should help deepen our understanding of the events leading up to the formation of the Federal Trade Commission and of the purpose underlying Section 5 of the FTC Act, which outlaws “unfair methods of competition.” There is still continuing debate over the scope of the FTC’s authority under Section 5, which further scholarship should help inform. People who are likely to be able and willing to help develop concept: Bill Kolasky

MEMORANDUM


FROM: Brian R. Henry, Program Officer

DATE: January 8, 2016

RE: Midwinter Council Meeting - Program Report (2015-2016)

__________________________________________________________________

2015-2016 Core Conferences

Merger Practice Workshop – October 1, 2015 GWU Jack Morton Auditorium, Washington, DC Co-Chairs: Jackie Grise & Jerry Swindell Staff Lead: Sheri Mead 2015 Attendance: 153 inclusive of 28 faculty

Last Held: October 2013 (135 participants inclusive of 24 faculty)

Note: We should offer again in 2017 as attendance increased and again feedback was extremely positive. Barry Nigro received very positive feedback from his firm’s associate attendees. Kudos to Jackie and Jerry for helping us grow this conference.

1

Antitrust & Intellectual Property Conference – October 8, 2015 Stanford Law School, Stanford, CA Cosponsor: Stanford Law School (50/50 split) & ABA IP Section Section Co-Chair: Sean Gates Staff Lead: Laura Brown

2015 Attendance: 147 inclusive of 32 faculty and 32 law students. (35 fewer paid attendees than budgeted)

Last Held: October 2013 (166 participants inclusive of 30 faculty)

Note: Sean organized a stellar conference with a strong faculty combined with great content. Some other IP conferences were being offered over the same time frame which could account for our lower than budgeted turnout. As we plan 2017, we need to determine if we should repeat with Stanford Law School, Berkeley (which has also been a cosponsor) or try a new location such as San Diego.

Antitrust Law & Economics Institute for Judges – October 18-21, 2015

GMU (cosponsored with GMU and the Federal Judicial Center), Washington, DC

ABA Co-Chair: Amanda Reeves Staff Lead: Margaret Stafford 2015 Attendance: 30 (but all were federal judges) Last Held: October 2014 – 40 attendees (only 7 federal judges)

Note: Amanda did a nice job moving the programming forward. We do not have any financial obligations. We need to work closely with the

2

Federal Judicial Center to make sure the word gets out about the program and registrations are timely handled. During Fall Council meeting, Council approved renewing SAL cosponsorship for the next three years (’16-’18).

Fall Forum – November 12, 2015 National Press Club, Washington, DC Co-Chairs: Heather Tewksbury & Gary Zanfagna Staff Lead: Laura Brown

Attendance: 195 inclusive of 18 faculty. Budget goal was 177 paying attendees. Last Held: November 2014 (193 participants inclusive of 30 faculty)

Website: www.ambar.org/ATFallForum Notes: Unique program incorporating six judicial faculty and luncheon table discussion topics. Received consistent, excellent reviews - particularly from government attendees. Well-attended by the media; need to assess whether we can enhance media relationship and interaction. Also, need to request copies of all materials created following SAL programming.

Sherman Act @ 125 Reception – November 12, 2015 Hay-Adams, Washington, DC Staff Leads: Laura Brown & Margaret Stafford

Notes: The reception held after the Fall Forum, the evening prior to the DOJ John Sherman Award Ceremony honoring The Hon. Diane P. Wood (our former Council Judicial liaison). Invitees to the reception included the Fall Forum attendees.

Next Generation of Antitrust Scholars – January 22, 2016 NYU, New York Cosponsor: NYU School of Law ($7,000 ABA commitment) ABA Co-chair: Ned Cavanagh Staff Lead: Patricia Harris Last Held: January 2014 (60 participants inclusive of 25 faculty)

3

http://www.ambar.org/ATFallForum

Website: www.ambar.org/ATScholars

Note: Two sessions from prior conferences are posted on the SAL conference page and youtube.com

International Cartel Workshop – February 3-5, 2016 The Palace Hotel, Tokyo, Japan Cosponsor: IBA (no financial or administrative commitment) ABA Co-chairs: Jarrett Arp & Don Klawiter Staff Lead: Laura Brown

Last Held: February 2014 (335 participants inclusive of 34 free; 46 paying faculty)

Website: www.ambar.org/ATCartel

あなたが登録していますか？ Have you registered? (Japanese)

注册是开放的 Registration is open (simplified Chinese)

Notes: This is our first Cartel Workshop in Asia. We will need Council assistance in personal outreach marketing both individually to your clients & colleagues and also suggestions for print media, especially in the Pacific Rim The brochure is on the website and has been mailed. As of December 23, registration is at 176 with 29 faculty!

Spring Meeting – April 6-8, 2016 JW Marriott Hotel & National Press Club ABA Co-chairs: Paul Friedman & Peggy Ward Staff Lead: Margaret Stafford

Last Held: April 2015 (3,029 participants inclusive of 125 waived & 162 paying faculty)

Website: www.ambar.org/ATSpring

Notes:

4

http://www.ambar.org/ATScholars

• On December 11, held pre-SM planning call for all Chairs and Moderators. New best practice; excellent way to kick off session planning.

• On December 22, draft brochure sent to Session Chairs/Moderators and to Council for review.

Antitrust in Healthcare Conference – May 12-13, 2016 The Ritz-Carlton, Arlington, VA Cosponsors: AHLA & the ABA Health Law Section Section Co-chairs: Leigh Oliver Staff Lead: Laura Brown Last Held: May 2014 (76 participants inclusive of 22 faculty) Website: www.ambar.org/ATSymposium

Notes: We have participated successfully in this multi-cosponsorship since 2000. The administrative responsibilities rotate between the three groups. The ABA Health Law Section will administer the 2016 conference. The Section will review & approve budgets, programming and faculty. Even if we are not the primary organizer, it is very important that our panel diversity policy is administered throughout.

Antitrust in Asia – June 2-3, 2016 The Langham Hotel, Hong Kong Co-chairs: Chris Hockett & Koren Wong-Ervin Staff Lead: Margaret Stafford Last Held: May 2014 (247 participants inclusive of 30 faculty) Website: www.ambar.org/ATAsia

Notes: This is the third conference with the Antitrust in Asia Series following New Delhi and Beijing. It was budgeted at a loss as the current goal for this particular conference is to increase brand awareness, gain membership (50 joined in 2014 ) and non-dues revenue exposure.

5

Sentencing Guidelines Symposium – June 2016 George Mason University, Washington DC Co-chairs: Katie Hellings, Scott Hammond & John Terzaken Staff Lead: Laura Brown Last Held: 2014 (76 participants inclusive of 22 faculty) Website: www.ambar.org/ATSymposium

Notes: This member benefit conference is budgeted at a loss as has been done since inception in 2008. The format is typically a u-shaped discussion format with a small audience. The goal is to provide content for the Source or Journal.

Global Seminar Series – Year 2

Concept: The purpose of this new series is to develop and maintain the Section's involvement with the competition and consumer protection bar across the globe. Each seminar will take place internationally and will combine one or two CLE sessions with a networking opportunity with the goal of staying connected in destinations between full CLE Conferences. The Chair of each series is responsible for introducing the panel and highlighting the Section and value of Section membership. Please check out the www.ambar.org/ATSeminarSeries for future locations.

London – November 28, 2015

Location: Jones Day law firm Chair: Kathy Fenton Staff Lead: Laura Brown

Faculty: Lorenzo Coppi (Compass Lexecon), Bill Kovacic (King’s College year), and Gabriel McGann (The Coca-Cola Company)

Notes:

6

http://www.ambar.org/ATSeminarSeries

• Theme – 2016 U.S. Election Impact on Competition Law • Attendance was only about 30; well-below rsvps. • Need to consider whether to hold these events in conjunction

with other international competition law events to draw better attendance.

Beijing – TBD

Chair: Roxann Henry Staff Lead: Margaret Stafford Notes:

• Due to limited Staff resources, this program has been cancelled. New Delhi – May 2016

Chair: Al Pfeiffer Staff Lead: Margaret Stafford

2015-2016 Teleseminars

Staff Lead: Diane Odom Programs Committee Chair: Andrea Murino Programs Committee Vice-Chair: Jason Daniels Co-sponsored with ABA Center for Professional Development

Date Topic Attendance August 27 Whistleblowing in Antitrust: Prospects and Pitfalls 10 September 29 Conducting Antitrust Audits as Part of an Effective

Compliance Program 50

November 17 What’s New in Advertising Law, Claim Support and Self-Regulation: A Recap of the NAD Conference

21

February/Early March

Antitrust Developments in Travel and Transportation

May Sports and Antitrust May/June Tyson Foods v. Bouaphakeo – Implications for Class

Certification and Injury Analysis

7

May/June Update on Antitrust Developments in Pharma June/July Virtual Book Release Party: Rule of Reason Handbook July/August Economic Fundamentals for Antitrust September Discovery Issues in Antitrust Cases and Second Requests SAL Co-Sponsorships Invitation Declines – Due to need to maintain our brand reputation and already high demands on Staff, we decline program co-sponsorship opportunities for programs on topics that are far afield from SAL core expertise. We will continue to review proposals to determine if a cosponsorship fits with our branding and the conference product we produce individually. We receive many requests; however, not all have the quality and depth in programming or fit with our brand image. It is important to remember that there is no such thing as in name only or with no staff involvement—all things ABA involve our staff. Pending Approval of Proposed 2016-2017 Conferences (MacLeod) October Masters Course October Antitrust Law & Economics Institute for Judges November Fall Forum February Consumer Protection Conference March Spring Meeting June Antitrust in Americas TBD Two-three Global Seminar Series (Seoul, Europe, tbd) ACTION ITEM: Need Council approval for the following cosponsorships:

• Regulation/Competition Symposium (healthcare/financial services) – with Loyola School of Law (September 2016)

• Antitrust in Americas 2017 – with Barra Mexicana (June 2017)

Pending Approval of Proposed 2017-2018 Core Conferences (Jacobson)

8

October Mergers Workshop October Antitrust & Intellectual Property October Antitrust Law & Economics Institute for Judges November Fall Forum January Next Generation Scholars February International Cartel Workshop April Spring Meeting May Antitrust in Healthcare June Antitrust in Asia TBD Two-three Global Seminar Series

9

ASSOCIATION YEAR ~W l :> · 2ffl6

CHAIR Rox;inn l. H1.•mv

2000 Pennj\'Jv~1ni.:1 Awnu1!, NW W.1:-hinginn. DC .!0006

CHAIR RECT WilliMll C. Ma<:L1= .. od

H.>5() K. S1rN'I, NW Wa!1hing1on, OC .!OO{F

VICE CHAIR km;ith.ln M. J..1n1l>so11

I .l01 Av(•nue of 1he ,\rneric.:,1~ New Y(Jfk. NY I O()l r).(..02.!

COMMITIEE OFFICER D<~b<',rnh 1\ . Gar.za

W.tshington, DC

CONSUMER PROTECTION OFFICER

Thom(l°:' f:. 7..yrh. Sr. Ck".'f:'l~1mt. O H

FINANCE OFFICER Kevin J. O'Connor

M;,idi~on. WI

IMMEDIATE PAST CHAIR H(J\.\';lrd Fdler Ric:hm)nd. VA

INTERNATIONAL OFFICER J11n,1th;u, I. Clcklc•n

W,\!,.hington, DC

PROGRAM OFFICER Bri.-10 R. H1-:n,v

At lanta, t_;,.\ PUBLICATIONS OFFICER

B<>rnard A Nigro, Jr. W;1:-hington. OC

SECRETARY AND COMMUNICATIONS OFFICER

I. Anthnny Chavez ~pring. T.X

SECTION DELEGATES Oougl.1s C. Ro~~

s.~.~llle. WA t~.iry Zani,,gna ;\.1orri:-town .. NJ

COUNCIL MEMBERS Subr,'Jta Bh~U<1ch;1rjc:.'t"~

Toronto, C 1n;Hfa

Arthur J. Burh~ New York, NY

S1.ev,m I. Crtn,lk Ann .Arhor, Ml

Sc"·'ill' Cii'lle!> Lf,~ An~d<S. CA

Alvs,, Zr:h l t·•r Hut11ik · w ,·1shington, O<

T,1r,1 I. Ko:-lov \.\la<;hinston, DC

C,,i l L Levin(• \.Va<;hington, nc

P,lula C. Martu<.T:i f.:iyt'lr(•vi lk•, AK

l,w1es ll. Mw1grovp Toronl.t"J, Canada

Alfrt:.·d C. Pif.'iifN. Ir. S;1n F-r,1nt".·i!>CO, CA

Fion:~ A. S,.:ha£.•fier New York, NY

Irving Scher Ne:-w)brk NY

~th Sill»:ir w.,~hini?t; ,n, DC

Chri i.lini:.' I. ~O!Tln1f !r

\'V,1:-hington, DC

Hill B. Wellford W,1:-hinglon, DC

NON-U.S. LAWYER REPRESENTATIVE

Am;1fk•u c:. l<ihE.• im Nt'\oVYnrk. NY

NON-LAWYER REPRESENTATIVE

O:un•II L. Willi,11w, Bt•vt::rly Hills, CA

DOJ REPRESENTATIVE Wilkunf. ll.-ter

Wt1f.h inglon. D(:

FTC REPRESENTATIVE f.dith R,un irf>7.

W;1:-hing!on, D< :

JlJDICIAL REPRESENTATIVE Su~an Y. llbton

S,rn fr;rni·i'-f"O, CA

STATE ATIORNEYS GENERAL REPRESENTATIVE

Victor j. Dl)men Na~hvilte. ·r N

HOARD OF GOVERNORS REPRESENTATIVE Jimnw Coodm.an

Okl:~ho(na Ci 1y, 01<

YOUNG LAWYERS DIVISION REPRESENTATIVE

J<:•slls M. Alvar;ldn-RivN,1 \.Vashi11glo11, DC

SECTION DIRECTOR Jo,urnt~ T ra\tis.

Chii:.,go. 11.

AMERICAN BAR ASSOCIATION

December 29, 2015


FROM: Bernard A. Nigro, Jr., Publications Officer~

RE: Publications Report

I. FINANCIAL PERFORMANCE

Section of Antitrust Law 321 North Clark Street Chicago, IL 60654-7598 (312) 988-5550 FAX: (312) 988-5637 E-mail: ant [email protected] www.Ambar.org/antitrust

The following highlights the Section's net publications revenue and its top ten titles by gross revenue for the first quarter of Fiscal Year 2016.

Publication Revenues Expenses 1 Net

ALD VII $23,380 $5,296 $18,084 New Titles and Backlist $94,172 $56,355 $37,817

TOTAL $117,552 $61,651 $55,901

The ABA follows GAAP for inventoried products. When books are initially printed, the expense is entered as a negative (the value of the books on the shelf) and then deducted as the books are sold. After 18 months, unsold books are revalued based on estimated number of units sold and, if appropriate, a financial write-off may occur (i.e., the value of the books is reduced is decreased and the difference is recorded).

Promoting Competition 1 ProH~cting Consumer!-

(1,:lth t\ B,.\ Anl'itrust Ll\'\.' Anm,al Spring Meeiing j April 6 - H, 2016 ! \-Va!thi ng:tnn, DC

ABA Annual Mt~'f.•ting • August 4-9. 2016 • StH1 Frnncisco, CA

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Ql FY 16 Top 10 List

Gross Units Moved

Book Title Revenue (includes

courtesy copies)

Mergers and Acquisitions: Understanding $23 ,572 167 the Antitrust Issues (Fourth)

Antitrust Law Developments (Seventh) $23,380 158

2014 Annual Review of Antitrust Law $21,024 154 Developments

Premerger Notification Practice Manual $14,167 68 (Fifth)

Intellectual Property Handbook $8,034 91

RICO State by State (Second) $3,137 19 - -

Handbook on Scope of Antitrust $1,919 26 -

Market Definition in Antitrust: Theory $1,433 7 and Case Studies

Econometrics: Legal, Practical and $1,247 17 Technical Issues (Second)

Antitrust Discovery Handbook (Third) $1,247 11

IL MAJOR PUBLICATIONS

A. Antitrust Law Developments (Eighth)

Darren Tucker is Chair of Antitrust Law Developments (Eighth) and is supported by a team of six editors. All committees have identified their chapter lead and drafters. First drafts are due in January. Publication is on track for Spring 2017.

B. Antitrust Law Developments Annual Review 2015

The 2015 Annual Review remains on track for publication in Q 1 2016. Steve Bradbury and Valerie Williams are the chairs of this project. The Editorial Board members have worked hard to keep their chapters on schedule and provide comments and edits to the drafts in a timely fashion. Three chapters are slightly behind schedule: Chapter 9 (parts

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H-K) - Private Antitrust Suits; Chapter 12 - Antitrust and International Commerce; and Chapter 14.I - Regulated Industries: Sports. The Editorial Board members who have the lead on these chapters have been following up with the drafters. In addition, the Chairs are reaching out directly to the respective Committee and Project Chairs of these three chapters to resolve any roadblocks and move the process forward.

C. Consumer Protection Law Developments (Second)

The second edition of Consumer Protection Law Developments is in the final stages of the editorial process. We are awaiting one chapter. This book, spearheaded by editorial chairs Christine Sommer and David Savrin, is targeted to be published in early 2016.

III. BOOKS AND TREATISES COMMITTEE

A. Recent Releases

We have recently published (or we are in the process of publishing soon) the Intellectual Property Handbook, the Primer on the Federal Price Discrimination Laws (4th Edition), Mergers and Acquisitions (4th Edition), the Insurance Antitrust Handbook, and the Indirect Purchaser Litigation Handbook.

B. Books Expected to be Published Within the Next Several Months

The following book is expected to be ready for Publication in early 2016: the Civil Jury Instructions book.

C. Proposals in Progress

We are working with committees on the following proposals:

• RICO State by State (Third) • Antitrust Compliance (Third)

I encourage Responsible Council Members to work with their committees to see that relevant book proposals are part of their committee's annual plan. If you have not reviewed your committee's annual plan to confirm that all publications obligations have been honored, please do so to confirm that publications plans are on track.

D.

E.

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Pipeline

The following books are in the process of being drafted and edited:

• Rule of Reason

• Product Distribution Economics

• Proving Antitrust Damages

• Consumer Data Handbook

• Advertising & Claim Substantiation

• Insurance

• Agricultural and Food

• Civil Jury Instructions

• Indirect Purchaser Litigation

• Evidence (Third)

• Healthcare Mergers & Acquisitions

• Energy

• Private Equity

• Sentencing & Leniency

• Monopsony Monograph

• Technology Industries

• Pharmaceutical Handbook

• Healthcare Handbook (Fifth)

• State Enforcement (Third)

• Proof of Conspiracy

• Standards Setting

• Obtaining Discovery Abroad

• State Action Practice (Third)

• Class Action Handbook

• IP Misuse (Second)

• DOJ Civil Antitrust Practice & Procedure (Second)

E-book Initiative

The Content Delivery Task Force continues to evaluate opportunities to test market an e-book. While the Section offers e-books today, we sell very few. We believe that our membership increasingly favors receiving content by electronic medium, making it imperative that we develop a distribution model that makes e-books attractive to our members and an efficient means of distribution for the Section.

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F. Book Production Process Improvement Initiatives

Over the last several months, we have worked with ABA staff to identify ways to improve our book production process to reduce unnecessary delays and lower the frustration level experienced by those involved. As a result, we have developed a Manuscript Submission Checklist (attached) and will likely be making other changes to increase efficiency and improve quality. We have reached the following preliminary conclusions:

• We should change our process to defer any formatting of the book into camera-ready style until we have the book in final and approved by Council.

• Given the expense associated with outsourced typesetting, we are considering whether we can develop formatting templates that would make it easier for our authors or editors to perform this final step. This might be a possible project for the Section reserves to fund.

• We will continue to experiment with outside copy editing on selected books, but keep an open mind, as it is not clear that there is enough value added to warrant the expense and possible delay.

• We will probably not insist on subject matter indexes for all of our books, either by our own project chairs or by the ABA typesetters, as indexes do not always materially enhance the value of our books.

IV. PERIODICALS

Tina Miller will provide an oral report on the periodicals. As always, we continue to publish fantastic periodicals under her direction.

A. Antitrust Law Journal

80/2 (PNB symposium); shipped.

80/3 (European law symposium); typesetting underway. Printing complete March 2016.

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81/1 (Freestanding articles) TBD - may flip order and make this 80/3 if the freestanding articles are finished before the symposium articles, which is looking more likely every day (more articles may/probably will be included. Status chart as of May 27 attached; needs updating).

81/2 (Conditional pricing symposium) - most articles are in editing process; some not yet received - symposium editors Su Sun and Kelly Smith Fayne.

81/3 (UDAP symposium) approved by Editorial Board - symposium editors Matt Sawchak and Bruce Hoffman.

82/1 (Matsushita symposium) approved by Editorial Board - symposium editor Andy Gavil.

B. Antitrust Magazine

The Fall issue was mailed from the new printer in Georgia on December 10. The process went smoothly, and apart from the four or so extra days it now takes, seems to be working well. We are very pleased with the end product and with the customer service we received throughout. The issue will be posted on the magazine web page next week.

Spring issue - to be published March 2016. Theme: Anniversary of Rule 23 (Greg Wrobel and Ellen Meriwether, theme editors; Working group meeting regularly to plan issue; most articles secured).

Summer issue- to be published July 2016.

C. The Antitrust Source

Attachment

The December Source will be out by December 22. Great job by issue editors Paul Costa and Allan Shampine. Work continues on collecting numbers and working on improvements. We're making good progress on increasing articles in the pipeline, and February, April, and June now look very healthy.

ABA Section of Antitrust Law Books & Treatises Committee

Manuscript Submission Checklist

Note to Project Chairs: This Manuscript Submission Checklist is intended to assist you in ensuring that any manuscript submitted to the Books & Treatises Committee for review is ready for review and to reduce the likelihood that the manuscript will need substantial additional revisions. Please complete this checklist and submit it to the responsible member of the Books & Treatises Committee when you submit the manuscript for review. Thank you.

Title of Publication: ------------------~ Edition: 0 First O Second D Third D Fourth D Fifth D Other: __

Date of most recent previous edition (if applicable): __ _

Project Chair(s): ------------------

Sponsoring Committee(s): ----------------

Date: -------

l . Has each chapter of the publication been drafted or revised consistent with the book proposal? 0Yes 0No

2. Has the text been drafted/updated to include discussions of significant new cases and/or other important developments? D Yes D No

3. Have all footnotes been drafted/updated to the extent possible to include citations to the most recent relevant authorites? (Note: It is particularly important to ensure that all footnotes in new editions of prior publications are updated to add new cases decided since the previous edition.)

0Yes 0No

4. Have all footnotes been reviewed and revised to the extent possible to eliminate citations to older authorities that are not significant and/or are merely duplicative of more recent decisions cited in the footnote? (Note: It is also important to ensure that all footnotes in new editions of prior publications are pruned of citations to older cases that are needlessly duplicative.) D Yes O No

5. Has the entire manuscript been reviewed to ensure compliance with style and format requirements, including the Bluebook and the Section's Style Guides? D Yes D No

6. Has the Foreword been drafted/revised? 0Yes 0No

7. Has the Preface been drafted/revised to include a list of each contributor by name and briefly explain the nature of the contributions to the publication? D Yes D No

January 11, 2016

To: Officers and Council

From: J. Anthony Chavez

Re: Report of Secretary and Communications Officer

Summary of Recent Action Items. Attached to this report is a summary of all

action items taken by Council between the Fall Council Meeting and January

10, 2016. At the Midwinter Council Meeting, I will move to include that

summary (with any updates to the relevant dates that comments were

submitted and insertion of links to the submitted comments) in the minutes

of the Midwinter Council Meeting. Please provide any proposed revisions to

the summary before the Midwinter Council Meeting.

Lexology. The Section has been approached by Globe Business Publishing

about the possibility of offering SAL members the delivery of a co-branded

version of Lexology by email as an additional member benefit, with content

specifically tailored for SAL members. The proposal states: “Lexology is a

tailored content hub and legal newsfeed service emailed to more than

245,000 senior lawyers worldwide on a daily basis. By working in

collaboration with over 470 law firms globally, Lexology delivers

comprehensive, up-to-date, quality content.”

Overview of Connect. While Connect does not appear to be the next social

network (see Members Connecting on Connect below), it provides members

with the ability to easily access information previously distributed by any

particular Committee and allows members to more easily access content

distributed by other Committees by browsing and using of the site’s search

functionality. To facilitate the further use of this platform, I will be

recommending that the Section contract for additional support services from

Higher Logic starting in Fiscal Year 2017. I believe that the expense of such

additional support would be a prudent use of Section Reserves. I have

requested a proposal from Higher Logic.

Transition to Connect. At the last Midwinter Meeting, the Corporate

Counseling Committee was the first Committee to “volunteer” to help lead

the transition to Connect by phasing-out its existing listserv. It was soon

followed by the Media and Technology Committee and the Transportation

and Energy Industries Committee. Over the last year, Committees have been

phasing out their committee discussion lists in stages. After a long year with

resistance to phasing-out committee listservs and difficulties with the

implementation of Connect, the last two general Committees (Consumer

Protection and Intellectual Property) are scheduled to phase-out their

existing listservs before the end of the first quarter.

Deactivation of Committee Listservs. Because we have had some

inadvertent posts on the listservs of Committees that had fully transitioned

to Connect (including some posts by leaders in other Committees), we will

start deactivating those listservs. For the remaining Committees that have

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http://connect.abaantitrust.org/communities/community-home/?CommunityKey=c0f0a055-0925-4af0-b999-1c3879c749e7

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=c0f0a055-0925-4af0-b999-1c3879c749e7

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=005e91f1-ba3b-4e8b-8f81-6610a90c2807

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=992223f0-c028-4dea-a5db-cd48d6eedff9

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=992223f0-c028-4dea-a5db-cd48d6eedff9

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=36a210e2-dc13-444d-9041-427a2162b676

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=36a210e2-dc13-444d-9041-427a2162b676

http://connect.abaantitrust.org/communities/community-home/?CommunityKey=cefbd05f-6dd2-45d2-845a-2ce480dc3ba4

not completed the transition, we will make sure that any posts are approved

by Committee Leadership before distribution.

Open Forum. The Open Forum is now set up for Full Moderation to limit

posts. I will work with Committee Operations and volunteers to coordinate

periodic posts on the Open Forum with links to upcoming programs, recent

newsletters and other periodic updates, and new resources available in

Committee Libraries. With the implementation of Full Moderation, the

default setting for the Open Forum was changed to real time notices. We will

generally limit posts to one per day.

Members Connecting on Connect. As you can see by scrolling through the

membership tab on Antitrust Leadership community, a number of individuals

in the Section Leadership have not yet taken the first step of adding a photo

to their profile. This first step is a tangible indication of support for this

platform. Please note that the percentage of the SAL Leaders with photos is

much higher than the percentage for other SAL members. I have been

monitoring total Profiles Created, profiles with photos, and members with

more than two contacts as indicators of Connect as a social network. Here is

the current status: 782 Profiles Created on Connect (up 152 since Jan. 2015),

631 profiles with photos (up 92 since Jan. 2015), and 548 Profiles with more

than two contacts (up 15 since last year). Considering that a member with a

Linkedin profile can import that profile in less than a couple of minutes (and

photo associated with that profile), the number of members with profiles

and photos on Connect remains relatively low. The number of members with

more than two contacts is also disappointing.

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http://connect.abaantitrust.org/communities/community-home/community-members?communitykey=fac6f7ea-165f-43e5-ba1d-965813b16b45&tab=communitymembersdashboard&Execute=1

Committee Content. There are significant differences in the level of

committee activity (with respect to the number of posts and the value of

posts) and in the extent that different committees have placed Committee

content on Connect. While some committees now have copies of all their

Committee content on Connect, for other committees, a member would

need to check both the Committee ABA page and the Connect Committee

page. With respect to one of the Committee presenting at the Fall Council

Meeting, at that time, the most recent newsletter in its Connect Library was

“Summer 2014” (missing Fall 2014, Spring 2015, and Summer 2015) and the

most recent annual plan is for 2013-2014. That Committee has updated its

Library on Connect.

Engagement by Committee Leadership. Although Committee chairs were

encouraged to send at the beginning of the ABA year a message introducing

the new committee leadership and explaining projects, programs and

publications for the coming year and Committee Operations prepared a

template to facilitate such communication, a number of committees did not

provide such a communication. Attached is a Committee by Committee

breakdown on contributors between September 1, 2015 and January 8,

2016. The report shows the number of messages posted by each contributor.

The ideal is broad participation by a number of members as opposed to posts

by a few individuals. The Global Private Litigation Committee’s recent post

thanking contributors is an example of how Committee Leadership can

interact with members.

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http://connect.abaantitrust.org/communities/community-home/?CommunityKey=6140418f-f21d-4120-97bb-f42dea9f361a

http://connect.abaantitrust.org/communities/community-home/digestviewer/viewthread/?GroupId=115&MessageKey=f1f8e6f8-bd4d-41e1-9bc3-dfe993dbf357&CommunityKey=6140418f-f21d-4120-97bb-f42dea9f361a&tab=digestviewer%23bm0

Real Time Notices versus Daily Digests. When Connect was set up, the

default setting resulted in each member receiving a separate daily digest for

the Open Forum and for each of that member’s Committees. While many

members of the SAL Leadership belong to a large number of different

Committees, SAL members, have an average of less than three subscriptions

on Connect. As part of the transition to using Connect as the primary means

for Committee communications, most of the general Committees have

decided to change the default setting on Connect so that Committee

members will receive real time notices instead of a daily digest (just like the

Committee listserves). The same change has been made for the Open Forum.

A member has the option of changing his/her profile to receive a daily digest

instead of real time notices. The following All Discussion Subscriptions Report

shows for each Committee the number of members receiving real time

notices, the number of members receiving daily digests, and the number of

members who have unsubscribed.

Post on Connect by Sending an Email. A member of any Connect community

can post on Connect by simply sending an email. I have managed to post

using my phone. A member will only be able to post on his/her Committees

and will need to use their email address associated with Connect. The

Committee email addresses are available on the Connect homepage (click

Support and then Committee Email Addresses).

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http://connect.abaantitrust.org/home

http://connect.abaantitrust.org/support

http://connect.abaantitrust.org/support/new-item2

Open Access for Committee Content. All SAL members are able to access

content posted on any Connect Committee page. A member will need to join

a particular committee to post to that committee’s Bulletin Board.

Analysis from the Firms. SAL encourages members to post their law firm

case alerts or other substantive articles right on the Connect homepage in

the Analysis from the Firms section or by sending an email to

[email protected]. Just add a title and summary

sentence, and a link to the article. Per SAL Policy, content is limited to legal

analysis. Law firm news or pure marketing content is not permissible. Use

good judgment. If an article sounds too promotional, then do not post it.

Upcoming Events. To reduce the need for posting multiple program notices,

emails generated by Connect now provide a link to the Section’s Upcoming

Events page.

SAL’s Other Social Media: Linkedin Group – 6,888 members, Twitter – 3,509

followers, Facebook – 943 likes. Unlike these other forms of social media,

Connect can help the Section maintain a connected community while

protecting content.

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http://connect.abaantitrust.org/home

mailto:[email protected]

http://connect.abaantitrust.org/events/futureevents

http://connect.abaantitrust.org/events/futureevents

All Discussion Subscriptions (January 7, 2016)

Active Records With At Least One

Subscription Average Subscriptions Per Active Record Average Subscriptions Per Active Record With At Least One Subscription

7,946 2.51 2.70

Discussion Name Daily Digest Real Time Total Subscribed Unsubscribed Never

Subscribed Total Not

Subscribed

Current Community Members

Past Community Members

% Unsubscribed

Advertising Disputes & Litigation 3 309 312 11 2 13 325 91 3.4%

Agriculture and Food 42 173 215 8 0 8 223 69 3.6%

ANALYSIS FROM THE FIRMS 65 7 72 15 0 15 87 21 17.2%

Antitrust | Consumer Protection Law Digest 83 6 89 25 0 25 114 31 21.9%

Antitrust Leadership 0 486 486 1 3 4 490 56 0.2%

Cartel and Criminal Practice 0 648 648 14 5 19 667 149 2.1%

Civil Practice and Procedure 85 445 530 15 1 16 546 147 2.8%

Competition Torts (formerly Business Torts and Civil Rico)

49 215 264 8 2 10 274 91 2.9%

Compliance and Ethics 63 238 301 17 2 19 320 80 5.3%

Consumer Protection 479 2 481 27 3 30 511 158 5.3%

Corporate Counseling 103 469 572 27 4 31 603 145 4.5%

Distribution and Franchising 60 335 395 10 1 11 406 90 2.5%

Economics 89 483 572 13 3 16 588 142 2.2%

Exemptions and Immunities 34 198 232 8 2 10 242 61 3.3%

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Federal Civil Enforcement 41 370 411 13 1 14 425 105 3.1%

Global Private Litigation (formerly Civil Redress)

38 135 173 4 1 5 178 48 2.3%

Health Care and Pharmaceuticals 60 563 623 15 3 18 641 138 2.4%

Insurance and Financial Services 42 224 266 9 5 14 280 81 3.3%

Intellectual Property 622 4 626 31 4 35 661 161 4.7%

International Committee 51 705 756 40 3 43 799 185 5.0%

International Task Force 26 1 27 0 0 0 27 31 0.0%

Joint Conduct 71 485 556 10 1 11 567 119 1.8%

Law Students Community 169 7 176 16 21 37 213 314 8.3%

Legislation 51 23 74 4 0 4 78 67 5.1%

Media and Technology 0 707 707 12 3 15 722 172 1.7%

Membership and Diversity Committee 59 0 59 3 0 3 62 33 4.8%

Mergers and Acquisitions 119 752 871 25 4 29 900 198 2.8%

Open Forum 0 7,733 7,733 718 76 794 8,527 3,259 8.5%

Pricing Conduct 0 535 535 9 4 13 548 124 1.7%

Privacy and Information Security 59 321 380 15 2 17 397 137 3.8%

Public Education and Oral History 3 0 3 0 0 0 3 25 0.0%

Section of Antitrust Law Council 0 43 43 0 0 0 43 0 0.0%

State Enforcement 56 237 293 1 1 2 295 82 0.3%

Trade, Sports and 0 366 366 4 0 4 370 111 1.1%

8

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Professional Associations

Transportation and Energy Industries 344 3 347 14 1 15 362 93 3.9%

Trial Practice 0 524 524 7 2 9 533 125 1.3%

Unilateral Conduct 0 675 675 9 4 13 688 142 1.3%

Young Lawyer Representatives 0 41 41 0 1 1 42 2 0.0%

21,442 1,160 209 1,369 22,811 7,130

About This Report A record can be a contact or company record; this report includes data for both. Active is defined as a record that is not disabled (or pending email confirmation or pending approval for non-integrated clients). The statistics referencing "active records" only include data for active records.

• Total Subscribed is the number of current community members who are subscribed (i.e. are receiving discussion emails). • Unsubscribed is the number of current community members who have unsubscribed (i.e. are no longer receiving discussion emails). • Never Subscribed is the number of current community members who have never subscribed (i.e. have never received discussion emails). • Total Not Subscribed is the number of current community members who are not subscribed (i.e. Unsubscribed + Never Subscribed). • % Unsubscribed is the percentage of current community members (excluding those who have never subscribed) that have unsubscribed (i.e. Unsubscribed /

(Current Community Members - Never Subscribed) * 100).

9



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Contributors of approved discussion messages created between 9/1/2015 and 1/8/2016

Discussion Name Name Number of Messages Per Contributor

Advertising Disputes & Litigation

Camille Sasena 23 Chongyang Tiffany Ge 1 Christopher Cole 8 John Villafranco 2 Kathryn Farrara 1 Nancy Felsten 5 Ross Fisher 1

Agriculture and Food Anthony Aaron 1 Bryan Ricchetti 2 Dina Older Aguilar 3 Vandy Howell 1

ANALYSIS FROM THE FIRMS Anita Banicevic 1 George Sanderson 1 Matt Sawchak 2 Matthew Hall 18 Stephen Feldman 3 Steven Cernak 3

Antitrust | Consumer Protection Law Digest

Patrick Kelleher 19 Stephen Feldman 325 Suzanne Wahl 43

Cartel and Criminal Practice Adam Hemlock 1 Brent Justus 3 Denes Rothschild 1 Gerald Connell 1 Joyce Choi 1 Lisl Dunlop 1 Mark Rosman 4 Robert Connolly 2 Ross Fisher 1

Civil Practice and Procedure Danielle Haugland 6 Erica Weisgerber 3 Gabrielle Kohlmeier 1 Justin Bernick 1 Kathleen Wallace 4 Paul Saint-Antoine 1 Ross Fisher 1

Competition Torts (formerly Business Torts and Civil

Angelo Russo 1 Nicholas Grimmer 2



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Rico) Compliance and Ethics Anita Banicevic 5

Anthony Chavez 2 Deborah Salzberger 1 Dorothy Raymond 1 Heather Brooks 2 Jason Dubner 1 Joseph Murphy 4 Kathleen Beasley 1 Marc Tobak 1 Robert Connolly 1

Consumer Protection Anita Banicevic 2 Camille Sasena 34 Chongyang Tiffany Ge 1 Christopher Cole 4 John Villafranco 2 Kathryn Farrara 1 Kenzie Rakes 11 Nancy Felsten 5 Patricia Conners 6

Corporate Counseling Anita Banicevic 1 Barbara Sicalides 2 Barry Nemmers 3 David Park 1 Derek Ludwin 6 Edward Marschner 1 Elai Katz 5 Elinor Hoffmann 1 J Betts 1 Jaime Taronji 1 Jerome Swindell 8 Joel Cohen 3 Joel Grosberg 1 Joseph Murphy 3 Kathleen Beasley 6 Marc Tobak 6 Melissa Whitehead 2 Michael Kheyfets 1 Rani Habash 1 Ross Fisher 1 Sara Walsh 6 Steven Cernak 1

11





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Mohammad Shouman 6 Ross Fisher 1 Scott Hazelgrove 3 Stephen Fairchild 6

Trial Practice David Reichenberg 1 Martha Goodman 2

Unilateral Conduct Gabrielle Kohlmeier 1 John Oxenham 1 Joshua Chad 4 Kim Van Winkle 1 Mark Botti 6 Michael Kheyfets 1 Rocky Tsai 1 Ross Fisher 3

Young Lawyer Representatives

Denes Rothschild 1 Justin Bernick 1

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Actions taken by Council between the Fall Council Meeting and January 10, 2016

International Comments

Proposed Comments of the American Bar Association Sections of Antitrust Law, Intellectual

Property Law, International Law, and Science & Technology Law on proposed amendments to

the Korean Fair Trade Commission’s Review Guidelines on Unfair Exercise of Intellectual

Property Rights.

• Submitted for review and approval by Council on January 1, 2016 by International

Officer Jonathan Gleklen. Upon approval by Council, the proposed Comments will be

submitted and cleared in accordance with the ABA Expedited Blanket Authority

Procedure.

o The KFTC draft is a result of its recent consultation, on which the Sections

commented this past October (Comments of the American Bar Association

Sections of Antitrust Law, International Law, Intellectual Property Law, and

Science and Technology Law on the Korea Fair Trade Commission's Proposed

Guidelines for Unfair Exercise of IP Rights).

• Voting via electronic mail before the close of business of January 6, 2016.

• Approved by Council on January 6, 2016 “with such non-substantive changes as the

International Officer, in consultation with the Chair, deems reasonable and

appropriate.”

• There were no votes in opposition to the proposed comments.

• The SAL participants in the drafting were Koren Wong-Ervin, Dina Kallay, and Steve

Harris. The Section received the KFTC's draft on December 20, 2015 with a response

date of January 13, 2016 so Koren, Dina, and Steve (and their counterparts in the other

Sections) did exceptional work over the holidays to turn these around. Chair Henry and

International Officer Gleklen expressed their sincere thanks to Koren, Dina, and Steve

for their efforts.

17

http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_comments_20151030_ip_guidelines.pdf




Other Council Action Items

FY15 Retrospective Analysis of Merger Decision Outcomes Award

• On December 11, 2015, Chair Roxann Henry informed the Council of the

recommendation of the Retrospective Analysis of Merger Decisions Outcomes Award

Committee to grant the 2014-2015 First Place Award to the paper titled, “Efficiencies

Brewed: Pricing and Consolidation in the U.S. Beer Industry,” by Orley C. Ashenfelter,

Daniel S. Hosken, and Matthew C. Weinberg and requested Council approval of the FY15

Retrospective Analysis of Merger Decision Outcomes Award.

• Background: The Retrospective Analysis of Merger Decisions Outcomes Award

Committee consisted of: James F. Rill (Chair), Ilene K. Gotts, Hillary Greene, William

Kovacic; Philip Nelson, David Scheffman, Daniel Sokol, and Ted Voorhees. The selection

criteria required that the article had to have been published before January 1, 2015.

Council discontinued this reserves project award after this year and rolled further work

in this area to be considered under the new Research Institute reserves project.

• Voting via electronic mail before the close of business on December 16, 2015.

• Approved by Council on December 16, 2015.

• There were no votes in opposition.

Section Sponsorship level for the ABA Spirit of Excellence Award

• On December 15, 2015, Chair Roxann Henry informed the Council that the Director of

the ABA Commission on Racial and Ethnic Diversity has requested that the Section

increase the Section’s sponsorship level for the ABA Spirit of Excellence Award from

$1,000 level to $2,500 (a total commitment by the Section of $2,500).

• Background: The ABA Spirit of Excellence Awards celebrate the efforts and

accomplishments of lawyers who work to promote a more racially and ethnically diverse

legal profession and are presented to the lawyers who excel in their professional

settings; who personify excellence on the national and international level; and who have

19

http://www.americanbar.org/groups/diversity/DiversityCommission/SpiritAwards/soenominations.html

demonstrated a commitment to racial and ethnic diversity in the legal profession.

• Voting via electronic mail before the close of business on December 16, 2015.

• Approved by Council on December 16, 2015.

• There were no votes in opposition.

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TO: Section of Antitrust Law Council FROM: Membership and Diversity Committee (M&D) DATE: January 7, 2016 RE: Report to Council for Midwinter 2016 (FY2016 Q2) MEMBERSHIP DATA At our last report, the Section membership reflected 7,781 total members in the Section of Antitrust Law; this total consists of 5,843 attorneys, 1,356 associate members, and 582 student members. These membership numbers, however, are at risk of decreasing significantly at the end of this month for three reasons: (1) membership drop due to nonpayment of dues; (2) implementation of the new “Clean Slate” rule; and (3) expiring law student graduate memberships. We will discuss each in turn. Membership Drop for Nonpayment. A membership drop is scheduled to occur on January 29 for nonpayment of dues. In November 2015, the Section was at risk of losing 1,146 (nearly 15%) of its members for nonpayment alone. Since November, the Section has been diligent in reaching out through e-mail and mail to those members at risk of being dropped. Despite this effort, members are not renewing their dues as quickly as we would hope. As of January 6, 2016, there are currently 990 members that are at risk of losing their Section membership. As the deadline approaches, the committee will also be assisting staff in sending individual emails to those members that still have not renewed their membership. “Clean Slate” Rule. The ABA implemented a new rule that terminates Section memberships when the member transitions from Student to Lawyer status. In prior years, ABA would simply convert a student’s membership from Student to Lawyer upon admission to the bar. This means that graduating Student members in the Section that have been admitted to the bar are dropped from our rolls and remain so, unless they actively rejoin the Section as New Bar Admittees. The ABA has postponed the upload of New Bar Admittees until this month, and at that time, we will learn how it has impacted the Section’s membership. Expiring Law Student Graduate Members. ABA student memberships expire 18 months following law school graduation if the member has not been admitted to the bar and been converted to Lawyer/New Bar Admittee status. The ABA has delayed the expiration of

these memberships until this month, which means that additional memberships may expire, unless they renew as Associate memberships. MEMBERSHIP RECRUITMENT AND RETENTION INITIATIVES MEMBERSHIP WEBSITE Advisory Board Members Henry Su and Ross Fisher are continuing to work on the next phase of revising the membership website by identifying gaps in our current content that may be relevant to our targeted marketing groups. COORDINATION OF MEMBERSHIP RECRUITMENT/RETENTION EFFORTS WITH

SUBSTANTIVE COMMITTEES

The M&D Committee continues to host calls with the substantive committee vice chairs responsible for membership and diversity, to identify the problems that other committees face in recruiting members. We hosted a call for December 15, 2015, but due to a technical issue, it was not well attended. That issue will be resolved in time for the next call, scheduled in the spring. Last year, these calls aided the M&D Committee.

GENERAL NETWORKING EVENTS The M&D Committee has co-hosted several networking events with other substantive committees throughout the United States. Our last networking event was a speed networking reception co-hosted by the Federal Civil Enforcement Committee on December 3, 2015. The format was creative, fun, and memorable; we would encourage other committees to consider ways to “think outside the box” when hosting networking events. LAW STUDENTS

Law Student Programming & “Why Antitrust?” and “Why Consumer Protection/Privacy?”

We continue to host “Why Antitrust?” programs at law schools around the world. The remaining schools currently scheduled for this fiscal year are the following:

• Howard University Law School • Northwestern University School of Law • Seattle University School of Law • Stanford Law School (in conjunction with the Antitrust-IP October

conference) • University of Texas Law School • University of Washington School of Law • William & Mary Law School • University of California – Irvine School of Law (recently added)

Law Student Division

We had a conference call with representatives of the Law Student Division (LSD) to discuss ways in which the Section and LSD can work together. The LSD is interested in featuring people from the Section periodically in its Division newsletter and would like to explore additional ways to feature the Section. We will continue to work with them. PLAINTIFFS’ BAR Vice Chair Eugene Benick continues to head up outreach to plaintiffs’ lawyers on behalf of the M&D Committee. He is continuing to work with substantive committee vice chair Hollis Salzman to develop a plaintiffs’ speakers database. WOMEN

Women in Leadership Interview Project The M&D Committee continues to create video profiles of accomplished female Section leaders, past and present. Vice Chair Kathryn Hellings will coordinate with Samantha Knox and Sarah Zielinski to identify interviewees and coordinate studio time for this year.

Women Networking Events The M&D Committee continues to work with The Grapevine, a D.C.-based organization for women antitrust professionals, to offer its second of two panel discussions in Washington, D.C, specifically focused on recruiting female members. Vice Chair Shimica Gaskins and Advisory Board Members Goldie Walker and Ross Fisher have been diligent in coordinating this event. The second event will be a breakfast hosted at Hunton & Williams. USDOJ DAAG for Economic Analysis, Nancy Rose, has confirmed her availability at the end of April or the beginning of May. We are also reaching out to the outgoing FTC Bureau of Economics Director, Francine LaFontaine. We have extended an invitation to the incoming FTC BE Director Ginger Jin, but at this time, she is unwilling to commit to any engagements. The date for this event remains to be determined, but is tentatively scheduled to occur sometime between April 26 and May 10. YOUNG LAWYERS

Dinner & Discourse In an effort to further engage younger members and recruit new ones, in the coming year, the M&D Committee has begun work on hosting a series of small dinners that permit individuals to interact with senior professionals and Section leaders in a more relaxed and intimate setting. Vice Chair Cynthia Lagdameo is working on hosting an event in New York, NY for some time after the Spring Meeting blackout period ends. Advisory Board Member Sean Flaim and Vice Chair Lori Lustrin are working on approaching hosts for dinners in Washington, D.C.

Section Mentorship Program The M&D Committee, in conjunction with the YLD Antitrust Law Committee, is in its fifth year of sponsoring a mentorship program in Washington, DC, Los Angeles, San Francisco, New York, and Toronto. Due to a miscommunication, we were required to postpone the mentorship program’s launch until the end of January. After receiving questions about accessing the mentorship application form, we learned that the mentorship application had not been launched outside of the committee. We have regrouped and will launch the program this month.

Disseminating Section Volunteer Opportunities to Young Lawyers As part of our effort to engage our newer attorneys, Advisory Board member Sean Flaim and YLD Liaison Jesus Alvarado-Rivera has been reaching out to committee chairs to solicit volunteer opportunities for young lawyers and new Section members. The purpose of disseminating this information is to recruit law students and newer attorneys and to make it easier for newer members to become involved in the Section, as part of a larger effort to develop a pipeline of younger members. Despite repeated solicitations, neither Jesus nor Sean have received any response. DIVERSITY INITIATIVES

Ambassador Program Pilot (formerly known as the Diversity Grant Section Reserves Proposal)

Vice Chair Eugene Benick is leading this pilot program to offer stipends to minority, plaintiffs’ bar, and other underrepresented attorneys to attend the Spring Meeting, in an effort to increase the Section’s overall diversity. Recipients may not be current members of the Section. Further, recipients will be required to host at least two events: one in-person event in the city where they work and one webinar/teleconference. In implementing this initiative, our goal is to recruit and actively engage new members. We have finalized the application, as well as the process for reviewing applications and monitoring stipend recipients, and it is currently with the ABA General Counsel’s office for review.

Diversity Strategic Plan We have revised the Section’s proposed Strategic Plan. The revised plan takes to heart the recommendations of the ABA’s Goal III Reports, as well as information provided by the Commission on Race in the Profession, to create metrics and identifiable goals for the Section. The revised plan is attached to this memo for the Council’s consideration. cc: Vice Chairs, Membership and Diversity Committee

Deborah Morgan, Assistant Director, ABA Section of Antitrust Law

AMERICAN BAR ASSOCIATION SECTION OF ANTITRUST LAW

DIVERSITY AND INCLUSION PLAN

2016-2018

EXECUTIVE SUMMARY

The Membership and Diversity Committee respectfully requests that the Council review and adopt the attached proposed Diversity and Inclusion Strategic Plan. The proposed plan is a substantial revision from the original plan adopted by the Council in 2013.

The proposed plan encompasses the following four strategic goals:

1. increase diversity in membership; 2. increase accessibility for members with disabilities; 3. increase diversity in programming; and 4. assess areas where diversity can be improved.

In the current plan, the Section adopted several long-range goals and action items for the

Section. Reviewing the current plan, it appears the Section has achieved each of its identified long-range goals, which includes designating committee vice chairs responsible for member recruiting and diversity purposes; coordinating strategic marketing and communication efforts targeted specifically to students and young lawyers; and addressing the marketing demand for programming for women in the profession. The proposed plan builds on these achievements. Also, applying best practices outlined in the ABA Goal 3 Report, the proposed plan states specific metrics for determining success. These specific goals include the following:

• increasing law student membership by 15% over three years (October 2015 vs.

October 2018) (Note: Law student membership as of October 2015: 868); • increasing Associate membership by 15% over three years (October 2015 vs.

October 2018) (Note: Associate membership as of October 2015: 1,372); • retaining a diversity consultant to analyze Section membership for diversity

information and to advise on strategic ways in which to target underrepresented groups;

• ensuring that 100% of electronic Section publications and CLE materials are accessible to persons with disabilities by end of fiscal year 2018;

• investing financially in coordinating strategic marketing and communication efforts targeted specifically towards consumer protection professionals and the plaintiffs’ bar;

• offering on an annual basis at least two events (either on a committee or Section-wide level) targeted towards women in the profession; and

• revising the Section’s strategic plan for diversity and inclusion once every three years.

Once approved, we ask that the Council make this plan publicly available on the Section’s

website.

1

AMERICAN BAR ASSOCIATION SECTION OF ANTITRUST LAW

DIVERSITY AND INCLUSION PLAN

2016-2018 INTRODUCTION

The American Bar Association Section of Antitrust Law (the “Section”) embraces the principles of diversity and inclusion. We do not view diversity as any single characteristic and appreciate that each member offers unique and valuable skills and perspectives that can advance the work of the Section. We believe that a diverse and fully engaged Section membership allows us to marshal these skills and perspectives to enrich the practice of antitrust and consumer protection law.

The Section is also committed to ensuring that all members are able to fully and

meaningfully participate in its work. As the practice of antitrust and consumer protection law becomes increasingly global in scope, the goal of a diverse and inclusive Section can only be achieved with the support and participation of the Section’s leaders, committees, and members. Towards that end, the Section has developed a new Diversity and Inclusion Plan to advance its progress towards a diverse membership and a culture of leadership that fosters inclusion.

BACKGROUND

The Section has long been a leader in recognizing the importance of fostering a diverse and inclusive environment. As one of the first sections to implement an annual strategic plan for diversity nearly 20 years ago, the Section implemented a series of initiatives that has resulted in a consistent increase in the diversity of its membership and its leadership.

ABA’s Goal III, which was adopted in 2008, mirrors the Section’s priorities in seeking to

achieve the following: 1. Promoting full and equal participation in the Association, our profession, and the justice

system by all persons; and

2. Eliminating bias in the legal profession and the Justice System.

While we recognize the strides we have made in improving Section diversity and engaging our membership, it is important to ensure these efforts continue. Specifically, the Section must improve its outreach towards membership segments that are underrepresented (e.g., law students and young attorneys), as well as cater to those segments that are growing (e.g., women, consumer protection, plaintiffs’ bar, and international practitioners). The Section has accordingly reexamined its membership data to identify areas of improvement, to update its strategic diversity-related goals, and to establish a revised action plan.

The Section has also seen dramatic growth in the number of Associate members, which

includes international attorneys not barred in the United States, and economists, and other professionals. Over the last four years, the number of Section Associate members has increased by 25 percent. In addition, nearly 75% of reporting members were over the age of 40 while law

2

students make up a nominal percentage of its membership. At the same time, a large number of Section members do not report demographic information, and obtaining more accurate and complete data is a prerequisite to the success of the Section’s efforts.

STRATEGIC GOALS In furtherance of the Section’s goals and values, the Section has developed the following strategic objectives for diversity and inclusion. Diversity reflects the effort to ensure sufficient numbers of targeted populations are represented, and inclusion addresses how well the diverse individuals are included in all aspects of the organization. For purposes of this plan, however, references to “diversity” generally represents both diversity and inclusion.

Goal I. Increase Diversity in Membership

Diversity is one of the ABA’s four strategic goals. Consequently, it merits dedicated resources, increased visibility, and active top-down support throughout the year. To reinforce the Section’s prioritization of diversity, the Section will ensure that diversity-related materials are easily accessible to current and prospective members and prominently displayed on our website. Section leadership also seeks to encourage committees and publications to take ownership of realizing these goals, and will recognize those committees that make significant progress towards improving diversity.

The Section is aware that antitrust and consumer protection law is a distinct niche and historically does not draw as many members as broader practice areas like civil litigation, international law, or business law. Further, we understand that many practitioners in this area may not devote their full-time practice to antitrust or consumer protection issues. These realities may limit the depth and breadth of the membership pool available to the Section. The Section must adjust its outreach efforts to account for these realities by targeting its outreach efforts to those membership segments that are underrepresented and nurturing those segments with demonstrated growth. The Section also recognizes the importance of expanding its outreach to law students and young lawyers. Growing this membership segment is critical to the Section’s continued growth and improvement. The Section will leverage its existing programs – including the “Why Antitrust?” and “Why Consumer Protection?” programs, the Janet Steiger Fellowship, and the Young Lawyer Representative Program, the YLD-MEO Mentoring Program – to encourage students and young lawyers to become involved in the Section. The Section will also target certain marketing efforts, including brochures, newsletters, and websites, to students to increase their awareness of the Section and the scope of antitrust and consumer protection law. To further the Section’s efforts to recruit more law students, we will also focus on expanding our outreach to law professors. The Section’s goal in pursuing these initiatives is to increase its law student membership by 15% over the next three years.

Further, the Section believes that improving its outreach to women in the profession is a priority. There are several examples nationwide of successful associations and informal networking groups for women in antitrust and consumer protection law. The Section recognizes this market demand and is committed to meeting this demand by implementing an initiative to expand outreach to women in the profession. The Section will aim to offer at least two substantive programs annually

3

that are geared towards women, dedicate resources to host/focus on women-centered programming, and provide settings for women to gather. In order to achieve this goal, the Section will work with the Liaison to the Commission for Women in the Profession to identify programs.

We will also continue to enrich our outreach to international, consumer protection, and plaintiffs’ bar practitioners. The Section currently enjoys strong relationships with several affinity bar associations, including the National Bar Association and the Hispanic National Bar Association and frequently speaks at regional and national events hosted by such organizations. The Section will continue to leverage its relationships with affinity and international bar associations and create targeted marketing efforts towards international members.

Specifically, the Section will expand its effort to reach out to international practitioners,

building on its international conferences and Global Seminar Series. The Section has increased its resources targeted towards recruiting international practitioners and other Associate members. As a result of the Section’s efforts, the Section’s Associate membership has increased significantly over the last five years. The Section will build on its current efforts and seek to increase its Associate membership by 15% over the next three years (October 2015 vs. October 2018).

Goal II. Increase Accessibility for Members with Disabilities The Section will continue our outreach to disabled members by ensuring accessibility to Section programming and providing membership benefits that address the needs of practitioners with disabilities. Towards that end, the Section will ensure that its electronic publications and materials are routinely made accessible to persons with disabilities and that all videos are closed-captioned.

Goal III. Increase Diversity in Programming The Section continues to excel in providing programming that features a diverse array of

speakers and panelists. Our goal is to build on this success by expanding our programming to encompass soft skills across practice areas and take greater advantage in partnering with affinity groups, other ABA resources, and law schools.

The Section will also strive to expand its market presence and highlight its commitment to diversity by: (a) developing additional programming, sponsoring research projects, and publishing articles focusing on diversity-related issues in consumer protection, antitrust, and law practice management; (b) developing programming specifically for its women members; and (c) seeking to increase the number of programs it co-sponsors with affinity bar associations.

Goal IV. Assess Areas Where Diversity Can be Improved

The Section believes in the principle that “if you measure it, you can improve it.” Currently, the Section does not have demographic data for approximately 52% of its members. Absent more complete reporting data, it is difficult to obtain meaningful measurements of our progress. Since 2013, the Section has worked proactively to collect more complete demographic data for its membership, while respecting member sensitivities. This included offering incentives to provide demographic data and simplifying the process for updating member profiles. These efforts

4

were helpful in gaining demographic data from an additional five percent of Section membership. In order to address this issue further, the Section will retain a diversity consultant to advise on strategies for gathering more complete information while remaining mindful of privacy concerns.

Further, recognizing that diversity encompasses a variety of factors, including practice area, geography, and seniority in the profession, the Section will continue to ensure its programming reflects a fair cross-section of experiential and geographic diversity within the profession.

5

Entity Web Analytics Report Key

Key Definitions: Unique Visitor: The number of individual people that come to the site during a specific time frame. Visit: The total number of people that come to the site. A visit could consist of multiple page views. The visit persists until 30 minutes of inactivity or 12 hours of continuous activity. Page Views: The amount of pages that were viewed on the site. Page Views / Visit: The average amount of page views that were viewed on each visit. Example: John Smith came to the ABA website 4 times in the month of October. Each time he viewed 3 pages. Also, during the month of October, Bill Henry came to the ABA website 6 times and viewed 3 pages each time. October Results for the above scenario: Unique Visitors: 2 (1 for John Smith and 1 for Bill Henry) Visits: 10 (4 for John Smith and 6 for Bill Henry) Page Views: 30 (12 for John Smith and 18 for Bill Henry) Page Views / Visit: 3 (30 Page Views divided by 10 Visits) Report Definitions: Key Metrics Report: Shows the amount of unique visitors, visits, pages views and page views per visit, by week, for the reporting month. (See definitions above) Rolling Page Views:Charts page views over time; will eventually show one year. Left Navigation Elements: Buckets page views into the left navigation selections on the entity’s web pages. Since Home Page usually sees the majority of the traffic, an additional category was included for Home Page. Logged in Status: Counts the number of pages viewed while a visitor was either logged in or not logged in. Time Spent on Entity Pages (min): Average amount of minutes that a visitor spends on entity pages in total.

Return Frequency: Shows the number of days between repeat visits from an entity’s visitors. Top Pages: Ranks the pages on the site based on those that receive the most views. File Downloads: Shows how many times visitors download files from the site. File types that are being tracked are exe,zip,wav,mp3,mov,mpg,avi,wmv,doc,pdf,xls,xml,ram,txt,ppt,pptx,xlsx,docx, and flv. Top Entry Pages: Shows, by percentage and by total visits, which pages on the site are the first pages seen by a visitor. Top Referring Domains: A referrer is the Web page location visitors were at before coming to the site. This report shows which domains referred visitors to the site. Search Keywords: Displays a breakdown of each search keyword that has been used to find entity pages externally. (i.e. Using Google, Yahoo, Bing, etc.)Google now does not share search terms and all Google Search Terms will be grouped together under “Keyword Unavailable.” Internal Searches: Displays a breakdown of each search keyword that has been used to find entity pages internally. (i.e. Using the Americanbar.org Search Box) Server Page Views: Populates what server a page is located on when the page is viewed.(i.e. CQ5, SharePoint or Teamsite) Browsers: Identifies the browser type and version used by each visitor. This report only includes data from non-mobile devices. Mobile Technology: Shows the types of devices for each mobile device that is used to navigate to the site. 404 Page Previous Page: Shows the page name that was viewed right before a visitor was taken to a 404 Error Page. Entities can then go to these previous pages and locate the link that is in error and correct the path. Bounce Rate: Calculates each time a page is the entry page to the entities site and how often visitors leave the entities site without accessing any other pages.(i.e. when a visitor views one page on the site and then leaves) Committee Page Views: Shows page views for designated committees.(For entities that do not have committees, this report will not exist).

Antitrust LawAntitrust LawAntitrust LawAntitrust LawCreated: Nov 01, 2015 5:09 PM CST

Key MetricsKey MetricsKey MetricsKey MetricsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Date (week beginning)Date (week beginning)Date (week beginning)Date (week beginning) Unique VisitorsUnique VisitorsUnique VisitorsUnique Visitors VisitsVisitsVisitsVisits Page ViewsPage ViewsPage ViewsPage Views Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Sep 26, 2015 326 360 949 2.64Oct 3, 2015 996 1,253 3,639 2.90Oct 10, 2015 867 1,068 3,038 2.84Oct 17, 2015 1,163 1,434 3,944 2.75Oct 24, 2015 1,655 2,005 4,705 2.35Oct 31, 2015 73 80 175 2.19TotalTotalTotalTotal 4,4784,4784,4784,478 6,2006,2006,2006,200 16,45016,45016,45016,450 n/an/an/an/a

Rolling Page ViewsRolling Page ViewsRolling Page ViewsRolling Page ViewsAntitrust Law - Sat. 1 Nov. 2014 - Sat. 31 Oct. 2015

Page 1 of 7Page 1 of 7Page 1 of 7Page 1 of 7


Left Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Entity Content CategoryEntity Content CategoryEntity Content CategoryEntity Content Category Page ViewsPage ViewsPage ViewsPage Views1. Committees 3,969 24.4%2. Publications 3,339 20.5%3. Home Page 2,616 16.1%4. Awards & Fellowships 2,326 14.3%5. About Us 2,082 12.8%6. Events & CLE 955 5.9%7. Resources 634 3.9%8. Section Membership 240 1.5%9. Contact Us 107 0.7%

10. Young Lawyers 5 0.0%TotalTotalTotalTotal 16,27316,27316,27316,273

Logged In StatusLogged In StatusLogged In StatusLogged In StatusAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Logged In StatusLogged In StatusLogged In StatusLogged In Status Page ViewsPage ViewsPage ViewsPage Views1. Not Logged In 11,268 68.5%2. Logged In 5,175 31.5%

TotalTotalTotalTotal 16,44316,44316,44316,443

Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Antitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Entity ContentEntity ContentEntity ContentEntity Content Time SpentTime SpentTime SpentTime Spent1. Antitrust Law 5.23

TotalTotalTotalTotal n/an/an/an/a

Return FrequencyReturn FrequencyReturn FrequencyReturn FrequencyAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Return FrequencyReturn FrequencyReturn FrequencyReturn Frequency VisitsVisitsVisitsVisits1. less than 1 day 836 34.1%2. longer than 1 month 426 17.4%3. 1 to 3 days 347 14.1%4. 3 to 7 days 325 13.2%5. 14 days to 1 month 292 11.9%6. 7 to 14 days 228 9.3%




Top PagesTop PagesTop PagesTop PagesAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

PagePagePagePage Page ViewsPage ViewsPage ViewsPage Views1. http://www.americanbar.org/groups/antitrust_law.html 2,556 15.5%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 1,486 9.0%3. http://www.americanbar.org/groups/antitrust_law/leadership.html 866 5.3%4. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 664 4.0%5. http://www.americanbar.org/groups/antitrust_law/events_cle.html 635 3.9%6. http://www.americanbar.org/groups/antitrust_law/committees.html 604 3.7%7. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 559 3.4%8. http://www.americanbar.org/groups/antitrust_law/publications.html 417 2.5%9. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 380 2.3%

10. http://www.americanbar.org/groups/antitrust_law/resources.html 353 2.1%11. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project/steiger_fellows_2015.html 328 2.0%12. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine.html 299 1.8%13. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio/committee_program 287 1.7%14. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_issue_archive.html 213 1.3%15. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/atmidwinter2016.html 198 1.2%16. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information.html 172 1.0%17. http://www.americanbar.org/groups/antitrust_law/about_us.html 165 1.0%18. http://www.americanbar.org/groups/antitrust_law/resources/comments_reports_amicus_briefs/2015_commen 149 0.9%19. http://www.americanbar.org/groups/antitrust_law/membership.html 142 0.9%20. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/l_student_writing_competition.htm 134 0.8%21. http://www.americanbar.org/groups/antitrust_law/awards_fellowships.html 133 0.8%22. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_toc.html 131 0.8%23. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 128 0.8%24. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information/committee_resources 121 0.7%25. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source/past_issues.html 119 0.7%26. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 119 0.7%27. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine/antitrust_magazine_issue_archive.html 117 0.7%28. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 116 0.7%29. http://apps.americanbar.org/dch/committee.cfm?com=AT307000 111 0.7%30. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio.html 111 0.7%




File DownloadsFile DownloadsFile DownloadsFile DownloadsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

File DownloadFile DownloadFile DownloadFile Download InstancesInstancesInstancesInstances1. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_steiger_application.docx 411 13.7%2. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_v8i1_full.pdf 72 2.4%3. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_baker.pdf 51 1.7%4. http://www.americanbar.org/content/dam/aba/publications/antitrust_law/at_2016_scholar_res_announcement.pdf 49 1.6%5. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_79i3_full.pdf 45 1.5%6. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/mw2016_agenda.pdf 41 1.4%7. http://www.americanbar.org/content/dam/aba/administrative/antitru...ip/resources/activity_chart_containing_all_committee_programs.doc 38 1.3%8. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/writing_comp_entry_form.docx 38 1.3%9. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/committee_programs_summary_chart.xlsx 36 1.2%

10. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_full_toc.pdf 28 0.9%11. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/blank_committee_activities_chart.docx 26 0.9%TotalTotalTotalTotal 2,9932,9932,9932,993

Top Entry PagesTop Entry PagesTop Entry PagesTop Entry PagesAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Entry PagesEntry PagesEntry PagesEntry Pages VisitsVisitsVisitsVisits1. http://www.americanbar.org/groups/antitrust_law.html 1,644 26.6%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 1,052 17.0%3. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 335 5.4%4. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 279 4.5%5. http://www.americanbar.org/groups/antitrust_law/leadership.html 238 3.9%6. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 132 2.1%7. http://www.americanbar.org/groups/antitrust_law/events_cle.html 115 1.9%8. http://www.americanbar.org/groups/antitrust_law/about_us.html 91 1.5%9. http://www.americanbar.org/groups/antitrust_law/publications.html 90 1.5%

10. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine.html 85 1.4%11. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 80 1.3%




Top Referring DomainsTop Referring DomainsTop Referring DomainsTop Referring DomainsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Referring DomainsReferring DomainsReferring DomainsReferring Domains VisitsVisitsVisitsVisits1. Typed/Bookmarked 2,547 41.1%2. google.com 1,708 27.5%3. bing.com 127 2.0%4. google.co.uk 68 1.1%5. facebook.com 58 0.9%6. google.ca 50 0.8%7. yahoo.com 45 0.7%8. google.co.in 43 0.7%9. google.co.jp 41 0.7%

10. google.it 32 0.5%11. hg.org 27 0.4%


Search KeywordsSearch KeywordsSearch KeywordsSearch KeywordsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Search Keywords - AllSearch Keywords - AllSearch Keywords - AllSearch Keywords - All SearchesSearchesSearchesSearches1. Keyword Unavailable 3,253 95.5%2. aba antitrust 10 0.3%3. antitrust law journal 9 0.3%4. aba antitrust section 7 0.2%5. antitrust jury instructions 6 0.2%6. aba section of antitrust law 4 0.1%7. antitrust issues in mergers and acquisitions 4 0.1%8. financial services antitrust 3 0.1%9. vic doman tenn antitrust 3 0.1%

10. american bar association antitrust 3 0.1%11. janet steiger fellowship 3 0.1%


Internal SearchesInternal SearchesInternal SearchesInternal SearchesAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Referring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search Keyword InstancesInstancesInstancesInstances1. 22Considering the+Cost+of+the+Cost-Price+Test+ 2 11.1%2. TERRY CALVANI+ORAL+HISTORY 2 11.1%3. Mackenzie Houck 2 11.1%4. block 20exemption%20regulation 2 11.1%5. merger simulation 2 11.1%6. Unilateral conduct+Newsletter+archive 2 11.1%7. Annual Review+of+Antitrust+Law+Developments 1 5.6%8. healthcare mergers 1 5.6%9. scholar in+residence 1 5.6%

10. health 20care%20and%20pharmaceuticals 1 5.6%11. leniency 20program 1 5.6%

TotalTotalTotalTotal 18181818

Server Page ViewsServer Page ViewsServer Page ViewsServer Page ViewsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

ServerServerServerServer Page ViewsPage ViewsPage ViewsPage Views1. CQ5 13,412 81.6%2. TeamSite 2,901 17.6%3. Personify 123 0.7%4. undefined 5 0.0%5. OTHER 2 0.0%




BrowsersBrowsersBrowsersBrowsersAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

BrowsersBrowsersBrowsersBrowsers VisitsVisitsVisitsVisits1. Microsoft Internet Explorer 11 1,339 21.6%2. Google Chrome 46.0 1,143 18.4%3. Google Chrome 45.0 937 15.1%4. Mozilla Firefox 41.0 444 7.2%5. Safari 9.0 429 6.9%6. Microsoft Internet Explorer 10 297 4.8%7. Microsoft Internet Explorer 9 189 3.0%8. Safari 8.0 154 2.5%9. Mozilla Firefox 38.0 103 1.7%

10. Safari 9.0.1 97 1.6%11. Mozilla Firefox 40.0 83 1.3%


Mobile TechnologyMobile TechnologyMobile TechnologyMobile TechnologyAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

DeviceDeviceDeviceDevice VisitsVisitsVisitsVisits1. unspecified 5,444 87.8%2. Apple iPhone 471 7.6%3. Apple iPad 131 2.1%4. Samsung Galaxy S4 (GT-I9500) 7 0.1%5. AT&T Galaxy S5 (SM-G900A) 5 0.1%6. Verizon Galaxy S5 (SM-G900V) 5 0.1%7. Google Nexus 4 (E960) 5 0.1%8. Sprint Evo 4G LTE 5 0.1%9. Lenovo S660 4 0.1%

10. Motorola DROID Ultra 4G LTE (XT1080) 4 0.1%11. Google Nexus 5 (D820) 3 0.0%


404 Page Previous Page404 Page Previous Page404 Page Previous Page404 Page Previous PageAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Previous Page URLPrevious Page URLPrevious Page URLPrevious Page URL InstancesInstancesInstancesInstances1. unspecified 85 80.2%2. https://www.google.com/ 5 4.7%3. http://www.americanbar.org/groups/antitrust_law/membership/young_lawyer_resources.html 4 3.8%4. https://www.google.com 2 1.9%5. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/fallcouncil2015.html 2 1.9%6. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0cckqfjabahukewjqkcikms3iahum2b4k 1 0.9%7. http://www.americanbar.org/groups/antitrust_law/leadership/spring_cle_infoandresources.html 1 0.9%8. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&ved=0cf0qfjajahukewjn6af61stiahudci4 1 0.9%9. http://apps.americanbar.org/dch/comadd.cfm?com=at315000&pg=3 1 0.9%

10. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information.html 1 0.9%11. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0cdeqfjadahukewjhhaa759piahxd2d4k 1 0.9%




Bounce RateBounce RateBounce RateBounce RateAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

PagePagePagePage BouncesBouncesBouncesBounces Bounce RateBounce RateBounce RateBounce Rate1. http://www.americanbar.org/groups/antitrust_law.html 623 21.8% 37.9%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 506 17.7% 48.1%3. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 142 5.0% 42.4%4. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 123 4.3% 44.1%5. http://www.americanbar.org/groups/antitrust_law/events_cle.html 72 2.5% 62.6%6. http://www.americanbar.org/groups/antitrust_law/publications.html 51 1.8% 56.7%7. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio/committee_program 50 1.7% 79.4%8. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/l_student_writing_competition.htm 45 1.6% 60.0%9. http://apps.americanbar.org/dch/committee.cfm?com=AT301000 44 1.5% 69.8%

10. http://www.americanbar.org/groups/antitrust_law/about_us.html 44 1.5% 48.4%11. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 43 1.5% 60.6%

TotalTotalTotalTotal 2,8592,8592,8592,859 46.3%46.3%46.3%46.3%

Committee Page ViewsCommittee Page ViewsCommittee Page ViewsCommittee Page ViewsAntitrust Law - October 2015 (1 Oct 2015 - 31 Oct 2015)

Full URL in WindowFull URL in WindowFull URL in WindowFull URL in Window Page ViewsPage ViewsPage ViewsPage Views1. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 380 12.8%2. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 119 4.0%3. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 116 3.9%4. http://apps.americanbar.org/dch/committee.cfm?com=AT307000 111 3.7%5. http://apps.americanbar.org/dch/committee.cfm?com=AT311000 97 3.3%6. http://apps.americanbar.org/dch/committee.cfm?com=AT301000 93 3.1%7. http://apps.americanbar.org/dch/comadd.cfm?com=AT315000&pg=3 87 2.9%8. http://apps.americanbar.org/dch/committee.cfm?com=AT311500 78 2.6%9. http://apps.americanbar.org/dch/comadd.cfm?com=AT320250&pg=1 77 2.6%

10. http://apps.americanbar.org/dch/committee.cfm?com=AT315000 73 2.5%11. http://apps.americanbar.org/dch/committee.cfm?com=AT311550 64 2.2%



Antitrust LawAntitrust LawAntitrust LawAntitrust LawCreated: Dec 01, 2015 12:01 PM CST

Key MetricsKey MetricsKey MetricsKey MetricsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Date (week beginning)Date (week beginning)Date (week beginning)Date (week beginning) Unique VisitorsUnique VisitorsUnique VisitorsUnique Visitors Vis...Vis...Vis...Vis... Page ViewsPage ViewsPage ViewsPage Views Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Oct 31, 2015 1,263 1,550 3,942 2.54Nov 7, 2015 1,285 1,606 4,025 2.51Nov 14, 2015 1,169 1,562 4,084 2.61Nov 21, 2015 782 977 2,371 2.43Nov 28, 2015 383 441 1,124 2.55TotalTotalTotalTotal 4,2684,2684,2684,268 6,1356,1356,1356,135 15,54615,54615,54615,546 n/an/an/an/a

Rolling Page ViewsRolling Page ViewsRolling Page ViewsRolling Page ViewsAntitrust Law - Mon. 1 Dec. 2014 - Mon. 30 Nov. 2015



Left Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Entity Content CategoryEntity Content CategoryEntity Content CategoryEntity Content Category Page ViewsPage ViewsPage ViewsPage Views1. Committees 3,750 24.2%2. Publications 2,885 18.6%3. Home Page 2,584 16.7%4. Awards & Fellowships 2,161 14.0%5. About Us 2,124 13.7%6. Events & CLE 1,082 7.0%7. Resources 604 3.9%8. Section Membership 191 1.2%9. Contact Us 91 0.6%

10. Young Lawyers 2 0.0%TotalTotalTotalTotal 15,47415,47415,47415,474

Logged In StatusLogged In StatusLogged In StatusLogged In StatusAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)



Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Antitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)



Return FrequencyReturn FrequencyReturn FrequencyReturn FrequencyAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Return FrequencyReturn FrequencyReturn FrequencyReturn Frequency VisitsVisitsVisitsVisits1. less than 1 day 975 35.6%2. longer than 1 month 439 16.0%3. 3 to 7 days 359 13.1%4. 1 to 3 days 336 12.3%5. 7 to 14 days 325 11.9%6. 14 days to 1 month 306 11.2%




Top PagesTop PagesTop PagesTop PagesAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

PagePagePagePage Page ViewsPage ViewsPage ViewsPage Views1. http://www.americanbar.org/groups/antitrust_law.html 2,527 16.3%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 1,420 9.1%3. http://www.americanbar.org/groups/antitrust_law/leadership.html 915 5.9%4. http://www.americanbar.org/groups/antitrust_law/events_cle.html 727 4.7%5. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 548 3.5%6. http://www.americanbar.org/groups/antitrust_law/committees.html 443 2.8%7. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 420 2.7%8. http://www.americanbar.org/groups/antitrust_law/publications.html 362 2.3%9. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 361 2.3%

10. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 325 2.1%11. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio/committee_program 300 1.9%12. http://www.americanbar.org/groups/antitrust_law/resources.html 282 1.8%13. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project/steiger_fellows_2015.html 264 1.7%14. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/atmidwinter2016.html 251 1.6%15. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine.html 219 1.4%16. http://apps.americanbar.org/dch/comadd.cfm?com=AT320000&pg=2 200 1.3%17. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_issue_archive.html 189 1.2%18. http://www.americanbar.org/groups/antitrust_law/resources/comments_reports_amicus_briefs/2015_commen 178 1.1%19. http://www.americanbar.org/groups/antitrust_law/leadership/spring_CLE_infoandresources.html 149 1.0%20. http://www.americanbar.org/groups/antitrust_law/committees/mergers_contract_provisions_database/merg 149 1.0%21. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 146 0.9%22. http://www.americanbar.org/groups/antitrust_law/about_us.html 145 0.9%23. http://www.americanbar.org/groups/antitrust_law/membership.html 135 0.9%24. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio.html 135 0.9%25. http://www.americanbar.org/groups/antitrust_law/awards_fellowships.html 122 0.8%26. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/l_student_writing_competition.htm 120 0.8%27. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 119 0.8%28. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine/antitrust_magazine_issue_archive.html 115 0.7%29. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_toc.html 112 0.7%30. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/fallcouncil2015/council_agenda.html 100 0.6%




File DownloadsFile DownloadsFile DownloadsFile DownloadsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

File DownloadFile DownloadFile DownloadFile Download InstancesInstancesInstancesInstances1. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_steiger_application.docx 490 16.3%2. http://www.americanbar.org/content/dam/aba/publications/antitrust_law/at320000_newsletter_2015fall.pdf 125 4.2%3. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_v8i1_full.pdf 59 2.0%4. http://www.americanbar.org/content/dam/aba/publications/antitrust_law/at_2016_scholar_res_announcement.pdf 55 1.8%5. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_79i3_full.pdf 38 1.3%6. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/mw2016_agenda.pdf 37 1.2%7. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/writing_comp_entry_form.docx 34 1.1%8. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/at_spring_sessions.pdf 34 1.1%9. http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/oct15_wright_10_19f.pdf 33 1.1%

10. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/council_agendas/fall/2015_agenda_fall_agenda_full.pdf 32 1.1%11. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_baker.pdf 32 1.1%TotalTotalTotalTotal 3,0093,0093,0093,009

Top Entry PagesTop Entry PagesTop Entry PagesTop Entry PagesAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Entry PagesEntry PagesEntry PagesEntry Pages VisitsVisitsVisitsVisits1. http://www.americanbar.org/groups/antitrust_law.html 1,650 27.1%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 1,057 17.3%3. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 267 4.4%4. http://www.americanbar.org/groups/antitrust_law/leadership.html 233 3.8%5. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 213 3.5%6. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 203 3.3%7. http://apps.americanbar.org/dch/comadd.cfm?com=AT320000&pg=2 140 2.3%8. http://www.americanbar.org/groups/antitrust_law/events_cle.html 119 2.0%9. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 91 1.5%

10. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 87 1.4%11. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/l_student_writing_competition.htm 72 1.2%




Top Referring DomainsTop Referring DomainsTop Referring DomainsTop Referring DomainsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Referring DomainsReferring DomainsReferring DomainsReferring Domains VisitsVisitsVisitsVisits1. Typed/Bookmarked 2,640 43.0%2. google.com 1,563 25.5%3. bing.com 129 2.1%4. google.co.uk 95 1.5%5. google.it 52 0.8%6. google.fr 51 0.8%7. yahoo.com 49 0.8%8. google.co.jp 44 0.7%9. google.ca 43 0.7%

10. thinkbrg.com 40 0.7%11. google.de 35 0.6%


Search KeywordsSearch KeywordsSearch KeywordsSearch KeywordsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Search Keywords - AllSearch Keywords - AllSearch Keywords - AllSearch Keywords - All SearchesSearchesSearchesSearches1. Keyword Unavailable 3,083 94.4%2. aba antitrust 18 0.6%3. antitrust law journal 12 0.4%4. aba section of antitrust law 7 0.2%5. aba antitrust fall forum 2015 7 0.2%6. aba antitrust section 5 0.2%7. aba antitrust spring meeting 2016 4 0.1%8. aba antitrust fall forum 3 0.1%9. international committee of aba antitrust section 3 0.1%

10. antitrust law and professional sports 3 0.1%11. privacy committees 3 0.1%


Internal SearchesInternal SearchesInternal SearchesInternal SearchesAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Referring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search Keyword InstancesInstancesInstancesInstances1. antitrust jury+instructions 19 55.9%2. model jury+instructions+antitrust 3 8.8%3. healthcare and+pharmaceutical+ 2 5.9%4. price 20point 2 5.9%5. Interchange Fee+Regulation+in+the+EU+and+Elsewhere 1 2.9%6. pharmaceutical 1 2.9%7. 22false advertising%22 1 2.9%8. interlocking 1 2.9%9. 22federal civil+enforcement%22 1 2.9%

10. professional insurance+in+merger 1 2.9%11. antitrust pass+on+defense 1 2.9%


Server Page ViewsServer Page ViewsServer Page ViewsServer Page ViewsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

ServerServerServerServer Page ViewsPage ViewsPage ViewsPage Views1. CQ5 12,774 82.2%2. TeamSite 2,672 17.2%3. Personify 93 0.6%4. undefined 6 0.0%




BrowsersBrowsersBrowsersBrowsersAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

BrowsersBrowsersBrowsersBrowsers VisitsVisitsVisitsVisits1. Google Chrome 46.0 2,028 33.1%2. Microsoft Internet Explorer 11 1,320 21.5%3. Safari 9.0 413 6.7%4. Microsoft Internet Explorer 10 340 5.5%5. Mozilla Firefox 42.0 327 5.3%6. Safari 9.0.1 220 3.6%7. Mozilla Firefox 41.0 186 3.0%8. Safari 8.0 146 2.4%9. Microsoft Internet Explorer 9 136 2.2%

10. Chrome Mobile 46.0.2490 132 2.2%11. Mozilla Firefox 38.0 87 1.4%


Mobile TechnologyMobile TechnologyMobile TechnologyMobile TechnologyAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

DeviceDeviceDeviceDevice VisitsVisitsVisitsVisits1. unspecified 5,328 86.8%2. Apple iPhone 437 7.1%3. Apple iPad 173 2.8%4. Samsung Galaxy S3 LTE (GT-I9305) 30 0.5%5. Samsung Galaxy S4 Mini (GT-I9195) 29 0.5%6. BlackBerry Q10 9 0.1%7. Samsung Galaxy S6 (SM-G920A) 7 0.1%8. Verizon One M8 for Windows (6995 LVW) 5 0.1%9. Nokia Lumia 1020 (RM-875) 5 0.1%

10. BlackBerry Z10 4 0.1%11. Google Nexus 4 (E960) 4 0.1%


404 Page Previous Page404 Page Previous Page404 Page Previous Page404 Page Previous PageAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Previous Page URLPrevious Page URLPrevious Page URLPrevious Page URL InstancesInstancesInstancesInstances1. unspecified 55 55.6%2. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/fallcouncil2015.html 8 8.1%3. https://www.google.com/ 7 7.1%4. http://www.americanbar.org/groups/antitrust_law/leadership/spring_cle_infoandresources.html 4 4.0%5. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information.html 2 2.0%6. https://shop.americanbar.org/sso/logintemplates/defaultlogin.aspx?template=default&vi=7&vt=7cad3db09 1 1.0%7. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0cb4qfjaaahukewjji_dnv_niahwfph4k 1 1.0%8. https://www.google.com 1 1.0%9. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project/steige 1 1.0%

10. http://www.coherentecon.com/news/2015/1/19/n1me9krm332ga0nzzxhub1v6752a5a 1 1.0%11. https://shop.americanbar.org/sso/login.aspx?template=default&vi=7&vt=5cf133e561de0f740b8cca37eee7b13 1 1.0%




Bounce RateBounce RateBounce RateBounce RateAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

PagePagePagePage BouncesBouncesBouncesBounces Bounce RateBounce RateBounce RateBounce Rate1. http://www.americanbar.org/groups/antitrust_law.html 618 21.9% 37.5%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 520 18.4% 49.2%3. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 125 4.4% 58.7%4. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 82 2.9% 40.4%5. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 82 2.9% 30.7%6. http://www.americanbar.org/groups/antitrust_law/events_cle.html 69 2.4% 58.0%7. http://www.americanbar.org/tools/digitalassetabstract.html/co.../publications/antitrust_law/at307000_newsletter_2015fall.pdf 59 2.1% 92.2%8. http://www.americanbar.org/tools/digitalassetabstract.html/co.../publications/antitrust_law/at325050_newsletter_2015fall.pdf 57 2.0% 87.7%9. http://apps.americanbar.org/dch/committee.cfm?com=AT304000 55 1.9% 85.9%

10. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/l_student_writing_competition.htm 45 1.6% 62.5%11. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 44 1.6% 68.8%


Committee Page ViewsCommittee Page ViewsCommittee Page ViewsCommittee Page ViewsAntitrust Law - November 2015 (1 Nov 2015 - 30 Nov 2015)

Full URL in WindowFull URL in WindowFull URL in WindowFull URL in Window Page ViewsPage ViewsPage ViewsPage Views1. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 361 13.4%2. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 325 12.0%3. http://apps.americanbar.org/dch/comadd.cfm?com=AT320000&pg=2 200 7.4%4. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 119 4.4%5. http://apps.americanbar.org/dch/committee.cfm?com=AT307000 88 3.3%6. http://apps.americanbar.org/dch/committee.cfm?com=AT325050 86 3.2%7. http://apps.americanbar.org/dch/committee.cfm?com=AT311550 85 3.1%8. http://apps.americanbar.org/dch/committee.cfm?com=AT301000 85 3.1%9. http://apps.americanbar.org/dch/committee.cfm?com=AT304000 82 3.0%

10. http://apps.americanbar.org/dch/committee.cfm?com=AT311500 78 2.9%11. http://apps.americanbar.org/dch/comadd.cfm?com=AT311500&pg=3 68 2.5%



Antitrust LawAntitrust LawAntitrust LawAntitrust LawCreated: Jan 01, 2016 12:00 PM CST

Key MetricsKey MetricsKey MetricsKey MetricsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Date (week beginning)Date (week beginning)Date (week beginning)Date (week beginning) Unique VisitorsUnique VisitorsUnique VisitorsUnique Visitors Visi...Visi...Visi...Visi... Page ViewsPage ViewsPage ViewsPage Views Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Page Views / Visit (lharden)Nov 28, 2015 790 969 2,923 3.02Dec 5, 2015 956 1,223 3,429 2.80Dec 12, 2015 666 828 2,094 2.53Dec 19, 2015 152 192 442 2.30Dec 26, 2015 131 158 510 3.23TotalTotalTotalTotal 2,4302,4302,4302,430 3,3703,3703,3703,370 9,3989,3989,3989,398 n/an/an/an/a

Rolling Page ViewsRolling Page ViewsRolling Page ViewsRolling Page ViewsAntitrust Law - Thu. 1 Jan. 2015 - Thu. 31 Dec. 2015



Left Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsLeft Navigation ElementsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Entity Content CategoryEntity Content CategoryEntity Content CategoryEntity Content Category Page ViewsPage ViewsPage ViewsPage Views1. Committees 2,851 30.6%2. Publications 1,770 19.0%3. Home Page 1,502 16.1%4. About Us 1,421 15.3%5. Events & CLE 572 6.1%6. Awards & Fellowships 552 5.9%7. Resources 410 4.4%8. Section Membership 175 1.9%9. Contact Us 60 0.6%


Logged In StatusLogged In StatusLogged In StatusLogged In StatusAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)



Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Time Spent on Entity Pages (min)Antitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)



Return FrequencyReturn FrequencyReturn FrequencyReturn FrequencyAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Return FrequencyReturn FrequencyReturn FrequencyReturn Frequency VisitsVisitsVisitsVisits1. less than 1 day 531 34.1%2. longer than 1 month 277 17.8%3. 3 to 7 days 199 12.8%4. 1 to 3 days 192 12.3%5. 14 days to 1 month 185 11.9%6. 7 to 14 days 175 11.2%




Top PagesTop PagesTop PagesTop PagesAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

PagePagePagePage Page ViewsPage ViewsPage ViewsPage Views1. http://www.americanbar.org/groups/antitrust_law.html 1,479 15.7%2. http://www.americanbar.org/groups/antitrust_law/leadership.html 550 5.9%3. http://www.americanbar.org/groups/antitrust_law/events_cle.html 428 4.6%4. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 359 3.8%5. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 350 3.7%6. http://www.americanbar.org/groups/antitrust_law/committees.html 314 3.3%7. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 261 2.8%8. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio/committee_program 261 2.8%9. http://www.americanbar.org/groups/antitrust_law/publications.html 255 2.7%

10. http://www.americanbar.org/groups/antitrust_law/leadership/leadership_meetings/atmidwinter2016.html 241 2.6%11. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_magazine.html 219 2.3%12. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 191 2.0%13. http://www.americanbar.org/groups/antitrust_law/resources.html 151 1.6%14. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 112 1.2%15. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_issue_archive.html 111 1.2%16. http://www.americanbar.org/groups/antitrust_law/membership.html 105 1.1%17. http://www.americanbar.org/groups/antitrust_law/committees/committee_program_audio.html 98 1.0%18. http://www.americanbar.org/groups/antitrust_law/resources/comments_reports_amicus_briefs/2015_commen 88 0.9%19. http://www.americanbar.org/groups/antitrust_law/about_us.html 87 0.9%20. http://apps.americanbar.org/dch/committee.cfm?com=AT301000 81 0.9%21. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information/committee_resources 79 0.8%22. http://apps.americanbar.org/dch/comadd.cfm?com=AT301000&pg=1 75 0.8%23. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 74 0.8%24. http://apps.americanbar.org/dch/committee.cfm?com=AT307000 72 0.8%25. http://apps.americanbar.org/dch/committee.cfm?com=AT311500 72 0.8%26. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 72 0.8%27. http://www.americanbar.org/groups/antitrust_law/leadership/spring_CLE_infoandresources.html 71 0.8%28. http://apps.americanbar.org/dch/committee.cfm?com=AT304000 70 0.7%29. http://www.americanbar.org/groups/antitrust_law/leadership/committee_information.html 68 0.7%30. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal/alj_toc.html 67 0.7%




File DownloadsFile DownloadsFile DownloadsFile DownloadsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

File DownloadFile DownloadFile DownloadFile Download InstancesInstancesInstancesInstances1. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_steiger_application.docx 129 7.7%2. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/mw2016_agenda.pdf 40 2.4%3. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/mw2016_attendees.xlsx 32 1.9%4. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_v8i1_full.pdf 26 1.5%5. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_full_toc.pdf 21 1.2%6. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_baker.pdf 18 1.1%7. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_79i3_full.pdf 18 1.1%8. http://www.americanbar.org/content/dam/aba/administrative/antitrust_law/leadership/resources/at_sal_econ_grant.pdf 17 1.0%9. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_contreras.pdf 17 1.0%

10. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_80i1_tsai_wright.pdf 17 1.0%11. http://www.americanbar.org/content/dam/aba/publishing/antitrust_law_journal/at_journal_79i3_toc.pdf 15 0.9%TotalTotalTotalTotal 1,6841,6841,6841,684

Top Entry PagesTop Entry PagesTop Entry PagesTop Entry PagesAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Entry PagesEntry PagesEntry PagesEntry Pages VisitsVisitsVisitsVisits1. http://www.americanbar.org/groups/antitrust_law.html 923 27.5%2. http://www.americanbar.org/groups/antitrust_law/awards_fellowships/steiger_fellowship_project.html 283 8.4%3. http://www.americanbar.org/groups/antitrust_law/publications/antitrust_law_journal.html 164 4.9%4. http://www.americanbar.org/groups/antitrust_law/leadership.html 161 4.8%5. http://www.americanbar.org/groups/antitrust_law/publications/the_antitrust_source.html 134 4.0%6. http://www.americanbar.org/groups/antitrust_law/events_cle.html 85 2.5%7. http://apps.americanbar.org/dch/committee.cfm?com=AT329400 68 2.0%8. http://apps.americanbar.org/dch/comadd.cfm?com=AT325050&pg=1 67 2.0%9. http://apps.americanbar.org/dch/committee.cfm?com=AT939371&edit=1 61 1.8%

10. http://www.americanbar.org/calendar/2014/02/antitrust-international-cartel-workshop.html 53 1.6%11. http://apps.americanbar.org/dch/committee.cfm?com=AT301000 53 1.6%




Top Referring DomainsTop Referring DomainsTop Referring DomainsTop Referring DomainsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Referring DomainsReferring DomainsReferring DomainsReferring Domains VisitsVisitsVisitsVisits1. Typed/Bookmarked 1,237 36.7%2. google.com 971 28.8%3. bing.com 83 2.5%4. google.co.uk 67 2.0%5. hg.org 28 0.8%6. google.co.in 27 0.8%7. google.co.jp 27 0.8%8. cgsh.com 22 0.7%9. google.de 19 0.6%

10. google.com.hk 18 0.5%11. google.ca 18 0.5%


Search KeywordsSearch KeywordsSearch KeywordsSearch KeywordsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Search Keywords - AllSearch Keywords - AllSearch Keywords - AllSearch Keywords - All SearchesSearchesSearchesSearches1. Keyword Unavailable 1,830 94.1%2. aba antitrust section 8 0.4%3. issues in unilateral conduct 8 0.4%4. antitrust law journal 5 0.3%5. aba international cartel task force 4 0.2%6. aba antitrust 4 0.2%7. nick grimmer co-chair, com... section of antitrust law 4 0.2%8. antitrust section aba leadership 3 0.2%9. aba antitrust cartel conference tokyo 3 0.2%

10. aba section of antitrust 3 0.2%11. antitrust source 3 0.2%


Internal SearchesInternal SearchesInternal SearchesInternal SearchesAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

Referring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search KeywordReferring Internal Search Keyword InstancesInstancesInstancesInstances1. pricing and+conduct+committee 1 11.1%2. ashworth college 1 11.1%3. antitrust law+development 1 11.1%4. antitrust jury+instructions 1 11.1%5. Dawn raid 1 11.1%6. trade 2C sports%2C+and+professional+associations 1 11.1%7. Antitrust Practice+Guide 1 11.1%8. piecemeal litigation 1 11.1%9. advertising disputes 1 11.1%


Server Page ViewsServer Page ViewsServer Page ViewsServer Page ViewsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

ServerServerServerServer Page ViewsPage ViewsPage ViewsPage Views1. CQ5 7,215 76.8%2. TeamSite 2,150 22.9%3. Personify 27 0.3%4. undefined 5 0.1%




BrowsersBrowsersBrowsersBrowsersAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

BrowsersBrowsersBrowsersBrowsers VisitsVisitsVisitsVisits1. Microsoft Internet Explorer 11 911 27.0%2. Google Chrome 47.0 751 22.3%3. Google Chrome 46.0 413 12.3%4. Mozilla Firefox 42.0 224 6.6%5. Microsoft Internet Explorer 10 187 5.5%6. Safari 9.0 173 5.1%7. Microsoft Internet Explorer 9 98 2.9%8. Safari 9.0.1 79 2.3%9. Safari 8.0 48 1.4%

10. Google Chrome 43.0 35 1.0%11. Mozilla Firefox 38.0 33 1.0%


Mobile TechnologyMobile TechnologyMobile TechnologyMobile TechnologyAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

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404 Page Previous Page404 Page Previous Page404 Page Previous Page404 Page Previous PageAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

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Committee Page ViewsCommittee Page ViewsCommittee Page ViewsCommittee Page ViewsAntitrust Law - December 2015 (1 Dec 2015 - 31 Dec 2015)

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SUMMARY OF RESOLUTIONS

AMERICAN BAR ASSOCIATION HOUSE OF DELEGATES 2016 MIDYEAR MEETING SAN DIEGO, CALIFORNIA

FEBRUARY 8, 2016

REPORT # SUBJECT 10A NEW YORK COUNTY LAWYERS ASSOCIATION CRIMINAL JUSTICE SECTION Urges the Department of Justice and the Federal Bureau of Prisons to amend

their policies with respect to monitoring emails between attorneys and their incarcerated clients to permit attorneys and their incarcerated clients to communicate confidentially via email and thereby maintain the attorney-client privilege.

10B NEW JERSEY STATE BAR ASSOCIATION Supports constitutional equality for women, urges the extension of legal rights,

privileges and responsibilities to all persons, regardless of sex, and reaffirms support of and affirmatively act toward the goal of the ratification of the Equal Rights Amendment to the U.S. Constitution.

100 SECTION OF DISPUTE RESOLUTION SECTION OF HEALTH LAW SECTION OF SCIENCE AND TECHNOLOGY LAW Urges lawyers and all interested parties to increase the use of alternative

dispute resolution (ADR) processes to resolve health care disputes. 101 STANDING COMMITTEE ON PARALEGALS Grants approval and reapproval to several paralegal education programs,

withdraws the approval of three programs at the request of the institutions, and extends the term of approval to several paralegal education programs.

102 CRIMINAL JUSTICE SECTION

Urges legislatures to review all statutes criminalizing consensual noncommercial sexual conduct, in private and between persons who have the legal capacity to consent, and, to repeal or amend such statutes to criminalize only sexual acts that are nonconsensual, commercial, public, or that involve individuals who lack the legal capacity to consent.

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_10A.docx

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_10B.docx

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_100.docx



103 SECTION OF INTERNATIONAL LAW STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY STANDING COMMITTEE ON PROFESSIONAL DISCIPLINE TASK FORCE ON INTERNATIONAL TRADE IN LEGAL SERVICES Amends the black letter of Rule 5.5 of the ABA Model Rules of Professional

Conduct and the ABA Model Rule for Registration of In-House Counsel, to include language specifying that the court of highest appellate jurisdiction may, in its discretion, allow foreign in-house lawyers who do not meet the ABA definition of foreign lawyer because they cannot be “members of the bar” to be able to practice as in-house counsel in the U.S. and to be so registered.

104 STANDING COMMITTEE ON SPECIALIZATION

Reaccredits the Civil Pretrial Practice Law program of the National Board of Trial Advocacy of Wrentham, Massachusetts as a designated specialty certification program for lawyers for an additional five-year term.

105 COMMISSION ON THE FUTURE OF LEGAL SERVICES STANDING COMMITTEE ON PROFESSIONAL DISCIPLINE CRIMINAL JUSTICE SECTION LAW PRACTICE DIVISION STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS STANDING COMMITTEE ON CLIENT PROTECTION

Adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016 and urges that each state’s highest court, and those of each territory and tribe be guided by the Model Regulatory Objectives when they assess the court’s existing regulatory framework and any other regulation they may choose to develop concerning non-traditional legal service providers.

106A SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE

Urges Congress to amend 5 U.S.C. §552(a)(1) of the Freedom of Information Act (FOIA) to require that when a standard drafted by a private organization is exempted from Federal Register publication because it has been “incorporated by reference” (IBR) into a substantive rule of general applicability, the rulemaking agency must ensure meaningful free public availability of the incorporated text.

106B SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE Urges Congress to amend the rulemaking provisions of the Administrative

Procedure Act.






107 COMMISSION ON DIVERSITY AND INCLUSION 360 Encourages all state, territorial and tribal courts, bar associations and other

licensing and regulatory authorities, that have mandatory or minimum continuing legal education requirements (MCLE) to modify their rules to include as a separate credit, programs regarding diversity and inclusion for the legal profession of all persons regardless of race, ethnicity, gender, sexual orientation, gender identity or disabilities, and programs regarding the elimination of bias.

108A SECTION OF INTELLECTUAL PROPERTY LAW

Opposes intellectual property laws and agency and court interpretations of intellectual property laws that impose the payment of the government’s attorney fees on a party challenging a decision of the United States Patent and Trademark Office in federal district court, unless the statute in question explicitly directs the courts to award attorney fees.

108B SECTION OF INTELLECTUAL PROPERTY LAW Supports interpretation and application of the statutory six-year patent damages

period (35 U.S.C. §286) as limiting availability of the judicially created laches defense as a bar to legal damages for patent infringement.

108C SECTION OF INTELLECTUAL PROPERTY LAW Supports the traditional rule that the first sale of patented goods (as opposed to

a mere license) by U.S. patent owners or their licensees triggers the defense of patent exhaustion with respect to an allegation of patent infringement related to those goods.

109 LAW STUDENT DIVISION LAW PRACTICE DIVISION NATIONAL CONFERENCE OF BAR EXAMINERS SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR SENIOR LAWYERS DIVISION TORT TRIAL AND INSURANCE PRACTICE SECTION

Urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination in their respective jurisdictions.

110 YOUNG LAWYERS DIVISION Urges the United States Supreme Court to record and make available video

recordings of its oral arguments.




http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_108C.docx



111 COMMISSION ON YOUTH AT RISK COMMISSION ON HOMELESSNESS AND POVERTY SECTION OF HEALTH LAW SECTION OF SCIENCE AND TECHNOLOGY LAW Urges state, local, territorial and tribal child welfare and juvenile justice

agencies to provide adequate resources for assessing and treating emotional and behavioral disorders of children in their custody, including psychosocial and clinical interventions, recreational opportunities and supportive services that can reduce the need for prescribing psychotropic drugs.

112A SECTION OF FAMILY LAW SECTION OF REAL PROPERTY, TRUST AND ESTATE LAW SECTION OF SCIENCE AND TECHNOLOGY LAW Adopts the ABA Model Act Governing Assisted Reproductive Technology

Agencies (ART), dated February 2016, which provides model licensing legislation governing ART agencies and recommends consideration and adoption of the Model Act by appropriate governmental agencies and legislatures.

112B SECTION OF FAMILY LAW SECTION OF REAL PROPERTY, TRUST AND ESTATE LAW SECTION OF SCIENCE AND TECHNOLOGY LAW Urges the United States Department of State to seek specific negotiations

regarding a possible Hague Convention on private international law concerning children, including international surrogacy arrangements.

113 STANDING COMMITTEE ON LAWYER REFERRAL AND INFORMATION SERVICE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK AUSTIN BAR ASSOCIATION BROOKLYN BAR ASSOCIATION CINCINNATI BAR ASSOCIATION OREGON STATE BAR SECTION OF CIVIL RIGHTS AND SOCIAL JUSTICE

STANDING COMMITTEE ON DISASTER RESPONSE AND PREPAREDNESS

STANDING COMMITTEE ON GROUP AND PREPAID LEGAL SERVICES LAW PRACTICE DIVISION Urges courts and legislative bodies to adopt rules or enact legislation to

establish an evidentiary privilege for confidential communications between a client and a lawyer referral service for the purpose of retaining a lawyer or obtaining legal advice from a lawyer.





114 SECTION OF CIVIL RIGHTS AND SOCIAL JUSTICE (WILL BE WITHDRAWN) COMMISSION ON HOMELESSNESS AND POVERTY Urges Congress to enact legislation to make permanent the tax deduction for

donation of wholesome food inventory as previously codified in Internal Revenue Code section 170(e)(3)(C).

115A NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Revised Uniform Athlete Agents Act, promulgated by the National

Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

115B NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Revised Uniform Residential Landlord and Tenant Act,

promulgated by the National Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

115C NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Uniform Commercial Real Estate Receivership Act, promulgated

by the National Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

115D NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Uniform Home Foreclosure Procedures Act, promulgated by the

National Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

115E NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Uniform Recognition and Enforcement of Canadian Domestic-

Violence Protection Orders Act, promulgated by the National Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.




http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_115C.docx

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_115D.docx

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_115E.docx

115F NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Approves the Uniform Trust Decanting Act, promulgated by the National

Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

116 COMMISSION ON WOMEN IN THE PROFESSION SECTION OF BUSINESS LAW COMMISSION ON DISABILITY RIGHTS COMMISSION ON SEXUAL ORIENTATION AND GENDER IDENTITY Urges public companies in the United States to diversify their boards to more

closely reflect the diversity of society and the workforce in the United States. 117 NATIONAL NATIVE AMERICAN BAR ASSOCIATION STATE BAR OF SOUTH DAKOTA Urges bar admission authorities to consider the impact on minority applicants in

deciding whether to adopt the Uniform Bar Examination (UBE) in their jurisdiction and to consider including subjects not included on the UBE, particularly Indian Law in each state or territory with sizable American Indian populations or trust land.

300∗ HEALTH LAW SECTION Urges Congress to enact legislation to encompass services provided by

advanced practice providers within the locum tenens exception to the prohibition on reassignment of Medicare billing privileges.

∗ This resolution with report was received after the November 18, 2015 filing deadline. Pursuant to §45.5 of the House Rules of Procedure, this late resolution will be considered by the House of Delegates if the Committee on Rules and Calendar recommends a waiver of the time requirement and the resolution is approved by a two-thirds vote of the delegates voting.

http://www.americanbar.org/content/dam/aba/directories/policy/2016_hod_midyear_115F.docx




Staff Director's Report MIDWINTER COUNCIL MEETING

The Windsor Court Hotel

New Orleans, LA

January 16, 2016

Happy New Year! Despite the relatively short period between the Fall Council Meeting and the Midwinter Meeting, the Antitrust staff has been extremely busy with Section projects (Laura Brown, Kennan Carnegie, Patricia Harris, Hannah Mokijewski, Deborah Morgan, Tony Nguyen, Diane Odom, John Pitts, Margaret Stafford, Julianna Theberge, Joanne Travis, and Julian Wiley). I am pleased to announce the latest addition to our staff, Eugenia Jefferson. Eugenia joined our staff on January 4, 2016, as Program Specialist. In this capacity, Eugenia will have primary responsibility for the management, execution, and tracking of Section-based digital and print marketing strategies, including campaigns focused on membership recruitment and retention, and Section conferences and programs. She will also manage the Section’s members-only collaboration platform, Connect, and various other communications and marketing-related projects. Eugenia will also provide supplemental support for the Section’s technology and website activities. Eugenia comes to us from Golin, a Public Relations Agency in Chicago, where she served as a Freelance Associate/Media Connector, executing digital and traditional corporate communications campaigns for industry-leading brands, including, TransUnion, McGladrey, YMCA, and Dow Chemical. Eugenia’s communications successes include securing national mainstream and trade media placements with outlets like FOX Business, The Wall Street Journal, Bloomberg BNA, and Food Safety magazine. She monitored and tracked brands’ media coverage and developed monitoring reports. Eugenia also identified social media opportunities through which brands could engage and conducted daily monitoring to identify relevant opportunities for brands to enter the ongoing news conversations. She also constructed media pitches leveraging industry research and subject matter expertise. Eugenia has an MS in Integrated Marketing Communications and a BA, in Journalism. She can be reached at 312/988-5458 ([email protected]). We are working to fill the last open position, in the Meetings Unit, after which, we will be fully staffed! Since the last Council Meeting, a substantial percentage of staff time/efforts have been focused on a large volume of Section activities such as the Midwinter Meeting, the Next Generation of Antitrust Scholars Conference, the International Cartel Workshop, the Spring Meeting, Antitrust in Asia, and other programming initiatives and special projects. Staff also provided substantial support for committee activities, including committee programs and teleseminars, new technology initiatives, membership and outreach initiatives and numerous special projects (including Section Reserves projects, several of which are new). Staff continues to manage and execute the Section budget, respond to a large volume of telephone and e-mail inquiries and requests relating to committee programs; teleseminars; CLE conferences; outreach initiatives and other Section activities. Staff also coordinates and regularly participates in Section leadership conference calls. There are also ongoing projects and activities initiated by the larger ABA, of which the Section staff regularly participate and sometimes spearhead. The Antitrust Section staff recently selected to participate in a Meetings Revenue Audit, conducted by ABA Internal Audit. Internal Audit used the Antitrust Law 2015 Spring Meeting as part of their sample. In light of the size and complexity of the Spring

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Meeting, it required a substantial amount of staff time to pull and provide the requested data. Thankfully, we have good systems in place, and we keep good records. Staff also participate ongoing in a variety of ABA training and educational sessions. Following are highlights of staff projects and activities over the past couple of months. BUDGET Staff executed/monitored Section budget for first quarter of the fiscal year, including providing monthly explanation of substantial budget variances to Financial Services and reconciling any budget discrepancies. There is also regular communication with the Section Finance Officer and ABA Financial Services, regarding the budget and finance related issues. Preliminary work has begun in preparing the draft High Level General Revenue budget for FY2017, and the FY2017 Section budget. COMMITTEE ACTIVITIES Since the Fall Meeting, staff provided administrative support for 33 committee programs and two (2) teleseminars, with combined attendance of nearly 1,100; and collected 132 speaker releases for submission to ABA Copyrights Department. Staff prepared Brown Bag MP3s for the website, and worked closely with committees to provide data for updating Committee Activities Chart. Staff worked with committees to organize networking events by preparing contract agreement with vendor, preparing and sending collateral for distribution, and processing necessary payments to vendors. Staff collected copyright releases for eight newsletters, updated leadership data and generated historical reports for the Nominating Committee. Staff is continuing to work with the Committee Officer and Committee leaders on revisions to Committee Brochure. Staff worked on revisions to the Responsible Council Member (RCM) and Chair committee evaluation survey, and distributed and collected evaluations for the Committee Officer. Staff collected/compiled Committee Activity Charts for the Midwinter Council agenda. Staff also completed the term-ending report for the Committee Officer and Committee Ops.

CONFERENCES/MEETINGS Fall Council, Fall Forum, and the Sherman Act@125 Reception seem to have been a success based on the feedback. Staff completed closeout reports, including CLE reconciliation. Global Seminar Series in London (November 24, 2015) - The venue and faculty were great. Unfortunately, the turnout was smaller than anticipated; however, the event provided a good opportunity for the Section attendees to network with colleagues from the IBA. Next Generation of Antitrust Scholars - We have 90 registrants (including speakers) for this conference. www.ambar.org/ATScholars International Cartel Workshop planning is moving along. We are working with the cochairs on course materials and finalizing logistics. We are still about 70 away from our target goal so please let us know if you have suggestions regarding individuals we can market to for this conference. You, your clients and colleagues can register online at www.ambar.org/ATCartel. Spring planning continues to be in full force. Faculty letters are out. Planning calls have begun, including a spring cochairs call with the session chairs. The brochure is in the final phase and is scheduled to be printed and mailed soon. The PDF should be online by mid-January. A postcard reminder was mailed and we are creating an HTML to go out the last week in January. If your firm is doing a group registration, please email Patricia Harris for a group form - [email protected].

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http://www.ambar.org/ATScholars

http://www.ambar.org/ATCartel


Antitrust in Asia is in the pre-development stages of the brochure and confirming faculty. We will soon apply for CLE accreditation and send out faculty letters. As mentioned in November, we are looking for suggestions of individuals or small firms we can market to for each of these conferences. Please email [email protected] with suggestions. The Sentencing Symposium is in the initial planning stages and we hope to have information soon so we can build out a website. 2016-17 programming is being finalized with Bill MacLeod, so staff is working on locking in venues and building websites, drafting budgets, and creating checklists for the conference chairs.

MEMBERSHIP/MARKETING/OUTREACH Staff developed campaigns that targeted Section members slated to be dropped for nonpayment of dues (January 29, 2016). Last year the ABA Board of Governors approved a new membership drop schedule that implemented a primary drop in January and two secondary drops: one in September and one in April. The September drop did not exist in FY2015. The ABA delayed two membership processes until January 2016. The uploading of New Bar Admittees (NBAs) has been delayed due to a new “Clean Slate” rule. The “Clean Slate” rule terminates Section, Division, and Forum (SDF) memberships when the member goes from student to lawyer status. Implementation of the Clean Slate rule will result in lower lawyer SDF membership counts. The ABA has also delayed expiring law student graduate memberships. ABA student memberships expire after 18 months following law school graduation if the member is not admitted to the Bar and moved into the NBA program. Therefore, both of these processes will now be conducted during the month of January. It is important to note that this will cause a decrease in Section membership that is not counted as part of the January 29 Drop for Non-Pay. There are currently 990 potential drops for non-payment of dues for the Antitrust Section (740 lawyers and 250 associates). Staff is working continually to reduce those numbers via the targeted membership campaigns.

Staff coordinated regular membership solicitation to non-member attendees of committee programs, and networking events. The campaigns reiterate the value of membership in the Antitrust Section. Staff also provided support for the Section’s Mentoring program, and participated in monthly Membership and Diversity Committee conference calls. Membership numbers as of December 29, 2015 were 5,937 lawyers; 1,404 associates; and 1,285 law students. We have experienced a substantial increase in law student members, since free ABA and SDF membership became free; the Antitrust law student membership numbers were 503 during this same period in December 2014. PUBLICATIONS Staff worked with ABA Publishing to market new publications through committee programs and other avenues identified by Books & Treatises vice chairs. Staff participated in monthly Books & Treatises conference calls. The Section sold over $8,200 in publications through the ABA Bookstore on Cyber Monday and Cyber Friday (titles 3 years and older). Staff completed the bid process and prepared the agreement for the services of a new printer for Antitrust Magazine. The printer is Perfect Image Printing located in Marietta, Georgia. RESERVES PROJECTS Staff initiated additional marketing for the Janet D. Steiger Fellowship Project directly to law students from participating states. Staff is collecting applications and will distribute to the various state and territory agencies for consideration in late January. TECHNOLOGY

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The Section is currently working with The Antitrust Source board to strategize its social media presence, in addition to collecting further analytics on activity via its web page, email blasts and mobile application. The Section is involved with the ABA in discussions about improving the Association’s web presence. Scott Martin and Julian Wiley are participants of the ABA Website Task Force. The Section worked with the ABA Design team to create images that gave a brand to our over 180 committee programs and networking events; they now appear on the Shop ABA site. Section staff is also involved in ABA task force discussions to design new email templates for use by ABA entities. Section staff is represented in a newly created ABA Higher Logic Discussion Group. The Section’s Networking Event request form was revised to ensure that a member setting up an event acknowledges/agrees to the “Requirements for Committee‐Organized U.S. Networking Events/Receptions” document, before being allowed to proceed with the form.

OTHER PROJECTS Staff has been reviewing policies, and reviewing and editing webpages throughout the Section website. Staff reviewed monthly financial ledger sheets and made transfers as necessary. Staff also prepared and submitted a Section ad for sponsorship of the ABA Spirit of Excellence Award Luncheon. The level of giving increased to $2,500 from $1,500. Staff also coordinated the Law Student Writing Competition submissions and worked on logistics for hosting the Delegates Breakfast cosponsored with the Sections of Business Law, International Law, Real Property, Taxation, and the Law Practice Division, during the ABA Midyear Meeting in San Diego. Attached is the list of the current Section staff and organizational chart. If you have questions or comments concerning anything in this report or other staff-related activities, please do not hesitate to contact me at 312/988-5575 or [email protected]. i:/users/libsa/staff/Director Report/2016MWMtgReport

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Section Director Joanne Travis 312-988-5575 • Overall management of Section operations and staff • Policy matters, amicus briefs and blanket authority requests • Budget and Finance • Section Officer & Council activities

Assistant Director Deborah D. Morgan 312-988-5606 • Manages Administrative Unit • Section Membership and Outreach Activities • Section Publications • Special Projects

Meetings Director Margaret M. Stafford 312-988-5776 • Manages Meetings Unit • Conference Marketing • International CLE Conferences • Spring & Leadership Meetings

Senior Meeting Planner Laura Brown 312-988-5792 • Spring & Leadership Meetings • Conference Marketing • CLE Conferences

Program Assistant (Meetings) Kennan Carnegie 312-988-5796 • Assist with Conference Marketing • CLE Accreditation • Faculty CVs and Releases

Meetings & Marketing Coordinator Patricia Harris 312-988-5609 • Registration & CLE Reconciliation • Online Conference Marketing • Conference Calendar













Program Specialist Eugenia Jefferson 312-988-5458 • Responsible for management and execution of the Section's digital and print marketing strategies/campaigns • Provides support for Section membership and outreach activities and special projects • Provides supplemental support for the Section's technology and website activities

Program Assistant Hannah Mokijewski 312-988-5907 • Administers Section procurement and administrative processes and special projects

Special Projects Assistant Anthony (Tony) Nguyen 312-988-6726 • Administrative Support for Special Projects • Administrative Support for Section budget activities

Committee Administrator Diane D. Odom 312-988-5702 • Committee Services • Committee Programs (formerly called Brown Bags) • Teleseminars

Office Administrator/Membership Assistant John Pitts 312-988-5550 • General Section Inquiries • Committee/Membership Support

Program Specialist Julianna Theberge 312-988-5586 • Section Reserves Projects • Special Section Projects and Initiatives













Technology and Communications Specialist Julian Wiley 312-988-6258 • Section Web Site and Content Management • Technology Guidance and Support to Section Leadership and Staff

Senior Meeting Planner (VACANT) 312-988-6041 • Annual & Spring Meetings • Conference Marketing • Domestic CLE Conferences



Assistant Director – P12E208 GR Funded–FT

Deborah Douglas Morgan, x5606

Meetings Director – V11E034 GR Funded-FT

Margaret Stafford, x5776

Senior Meeting Planner – V08E033 60%General Revenue, 40% Section Funded-FT Laura Brown, x6041

Senior Meeting Planner – V08E033 Section Funded-FT

Vacant

Technology & Communications Specialist – 108E087

Section Funded-FT Julian-Robert Wiley, x6258

Meetings & Marketing Coordinator – V02N030

Section Funded-FT Patricia Harris, x5609

Off Admin/ Memb Asst – A02N005

Section Funded-FT John Pitts, x5550

Section Director – P13E202 GR Funded-FT

Joanne Travis, x5575

Section of Antitrust As of January 4, 2016

Split Funding

Section Funded

Gen Operations Funded

Program Specialist – P08E201 Section Funded-FT

Eugenia Jefferson, x5458

Program Assistant – P02N218

Section Funded-FT Hannah Mokijewski, x5907

Program Assistant – P02N218

Section Funded-FT Kennan Carnegie, x5796

Program Specialist – P08E201

Section Funded-FT Julianna Theberge, x5586

Committee Administrator – P08E217

Section Funded-FT Diane Odom, x5702

Special Projects Assistant – P02N218

Section Funded-FT Anthony Nguyen, x6726

American Bar Association

Documents

Transcript of American Bar Association