The Future of Antitrust Law

In the future, I do not expect that there will be much standardization of antitrust laws. The goal of harmonization that people have been talking about for ten or fifteen years now is going to remain a goal, not a reality. The differences that exist between nations and continents are rooted in culture and politics and institutions that are not going to change very easily. There will be small steps in the progress of harmonization on the international front. However, the European system is always going to be more intrusive and regulatory because their economic traditions are more intrusive and regulatory. Conversely, in the United States, the words government regulation are bad words. In our country, there is a stronger force toward less regulation and more reliance on free trade practices.

In the United States, we have arrived at a very high level of consensus over antitrust policy, certainly higher than I remember in the early part of my career. Back then, there was a fight over incorporating more economics into antitrust law. That issue has died. No one argues over the importance of economic analysis anymore. In fact, there is a certain steadiness now to antitrust law in the United States, and to the extent that there is not, it is because court decisions are much less predictable than policy. At the regulatory level, from the Justice Department and the Federal Trade Commission, rulings are very consistent from one administration to the next . That is a good thing. It certainly does not mean that antitrust law is dead. We still have our debates about particular theories and enforcement programs. But outside those debates, there is still vigorous antitrust enforcement going on. We are bringing more cartel cases than ever, which are non- controversial . In addition, there are many merger challenges. Antitrust agencies are still blocking deals and requesting remedies. However, we do not have the harebrained cases of twenty years ago, where one administration brought a criminal price fixing case against Cuisinart for resale price maintenance. Something like that happening now is inconceivable.

What could be better? I would like to see the whole class action area reformed. Class certification proceedings are all too often a joke, with plaintiffs getting by, and getting classes certified, on intellectually empty arguments that for some reason courts just accept. I have some hope that the recent rule changes allowing for liberalized interlocutory appeals of class certification decisions will help, but it is too early to tell.

In the same part of the antitrust world, Im ready to support an overhaul of the Illinois Brick indirect purchaser rule. The Supreme Courts holdings that only the direct purchaser can bring a federal antitrust claim, and in that claim there is no defense that the overcharge was passed on downstream, has not turned out to be a great thing for the business community or for the orderly disposition of overcharge cases. Too many states permit indirect purchaser suits under state laws, meaning that we now end up with federal direct purchaser cases and a couple of dozen uncoordinated state indirect purchaser cases. Its an unruly mess. I would federalize the whole thing, prohibiting state indirect purchaser suits under preemption principles, and letting both directs and indirects sue in federal court subject to pass through defenses. That would be more fair and far less costly to deal with.

Daniel M. Wall is a Partner in Latham & Watkins San Francisco Office and Chair of the Global Antitrust and Competition Practice Group. His practice focuses on complex antitrust litigation, government investigations and counseling , areas in which he has gained national recognition. Mr. Walls subspecialty is monopolization litigation under Section 2 of the Sherman Act, generally considered the most sophisticated type of antitrust litigation. He has represented in such cases the likes of Intel, Microsoft, Eastman Kodak, Compaq Computer and Varian Medical Systems. In addition, Mr. Wall has represented clients in dozens of government antitrust investigations spanning the gamut from merger reviews under Hart-Scott-Rodino procedures, to cartel investigations, and to single-firm conduct investigations by the Justice Department, the Federal Trade Commission, and State Attorneys General. Mr. Wall is among the handful of California antitrust lawyers recommended in Chambers USA, Legal Media Groups Expert Guide to Competition and Antitrust Lawyers , and similar publications .

Mr. Wall has been a speaker at numerous continuing legal education and other programs on antitrust, including those sponsored by the ABA Antitrust Section, the Practicing Law Institute, the Conference Board, the National Law Journal Seminars - Press, and National Economic Research Associates. He is a frequent commentator in the media on antitrust issues, including appearances on The NewsHour with Jim Lehrer (PBS), various programming on CNN and CNNfn, CBS Marketwatch, TechTV, and Fox News, and interviews with The New York Times, The Wall Street Journal, Barrons, Business Week, The Los Angeles Times, USA Today and numerous other publications. Mr. Wall is the Founder and Editor-in-Chief of Antitrust Magazine, a publication of the ABA Antitrust Section.

Mr. Wall received his J.D. from the University of Santa Clara in 1980, magna cum laude, and his B.A. from the University of California, Davis.