Consumer Protection and Antitrust

One of the biggest challenges in antitrust remains how to deal with consumer protection issues. Such issues as Internet privacy, telemarketing practices, and direct-to-consumer (DTC) drug advertising have been focuses of enforcement activity by the FTC and the states, and of significant public and political interest. To address consumer protection issues effectively, antitrust lawyers need to become more familiar with, and encourage further development of, information economics. Questions that need to be better addressed include: How do consumers get information? How do they process it? How should they receive it? What are the competitive consequences of providing it? Information economics needs to play a greater role in consumer protection challenges so that advice and decisions can become more analytically sophisticated. Right now, very little economic analysis is part of consumer protection challenges in many instances, and we are left with plaintiffs or consumers who say an activity was unfair, while defendants or sellers say it is fair. That is not a very productive or coherent dialogue to have. A more objective and dispassionate economics-based analysis, that looks at the consequences of information provision in particular contexts, is needed. In consumer protection, as with antitrust analysis a quarter-century ago, we need to develop a framework for economic analysis and a ranking of the importance of the variables involved in the analysis.

The most significant advance in antitrust analysis in the past few decades was the incorporation of sophisticated economic analysis into the decision-making of the antitrust enforcement agencies and the courts. While disputes remain , particularly with respect to analysis of some vertical merger and distribution issues, the general analytical economic framework that has been developed facilitates both analysis and wellaccepted, procompetitive conclusions. The extension and development of such an accepted analytical framework in the international and the consumer protection contexts is the challenge for antitrust lawyers for the future.

Stephen Paul Mahinka is a partner in the Washington, D.C. office, manager of the Antitrust Practice, one of the nations largest, chair of the firms Life Sciences Interdisciplinary Practice Group , a member of the FDA/Healthcare Regulation Practice, and a member of the firms Advisory Board. Mr. Mahinka is involved in counseling on and litigation of antitrust and trade regulation matters, and food and drug and healthcare regulation.

Mr. Mahinkas practice includes counseling and litigation concerning mergers and joint ventures ; protecting market exclusivity of drug products; product development and FDA approval or clearance of prescription and OTC drugs and dietary supplements; pricing and price discrimination; marketing and advertising; licensing and product promotion and distribution agreements; and Department of Justice (DOJ), Federal Trade Commission (FTC), Food and Drug Administration (FDA) and state investigations.

Mr. Mahinka has published nearly 60 articles on antitrust and FDA/healthcare regulation matters, including FDA and antitrust issues in pharmaceutical industry protection of market exclusivity, energy mergers and joint ventures, multistate antitrust and consumer protection investigations, and pricing, mergers, and vertical relationships in regulated and deregulated industries. He has presented nearly 60 speeches on antitrust and FDA/ healthcare regulatory matters at programs sponsored by such groups as the American Bar Associations Section of Antitrust Law and the Food and Drug Law Institute.

Mr. Mahinka served as a law clerk to the Chief Justice of the Massachusetts Appeals Court .