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Antitrust and Silicon Valley: New Themes and Direction in Competition Law and Policy

March 1 @ 9:00 am - 6:00 pm

Sponsored by Santa Clara University School of Law*, the Santa Clara Law Review, the Santa Clara Center for Global Law and Policy, The Heafey Center for Trial and Appellate Practice, and the California Lawyers Association: Antitrust, UCL & Privacy Section

Learn more about the CLA Antitrust, UCL & Privacy Section here.

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Symposium Schedule

Speaker Bios

Ticket Prices:

  • Registering as a Student: Free
  • Registering for MCLE credit: $30
  • Speakers and other Attendees: Free

Location: This event will take place in Charney Hall, in the Panelli Court Room, rooms 103 and 104.

This day long symposium will feature well-known antitrust and competition lawyers, experts and scholars.

There will be a continental breakfast served in the earlier portion of the day, lunch served in the afternoon, and a reception after the event with food and drinks.

The program will qualify for 7 hours of continuing legal education and 1.5 hours of ethics credit under the California MCLE regulations.

Topics covered:

The authors and presenters will address a number of contemporary and challenging issues facing antitrust lawyers, judges, and policy makers. These topics include:

  • Concept of dominance in technology fields such as search engines and platform markets;
  • Platform markets and two-sided markets;
  • Intellectual property and its interface with antitrust law;
  • Competition and collusion issues in markets for pharmaceutical products; and
  • How antitrust effects “gig economy” markets.

For additional information, please contact Marsha Levinson, Symposium Editor of the Santa Clara Law Review at mlevinson@scu.edu

* The Symposium has received generous support of the following School of Law departments: Center for Global Law and Policy; Heafey Center for Trial and Appellate Practice, and High Tech Law Institute


Symposium Schedule:

8:00 am Continental Breakfast
8:45 am Welcome and Introductions

Beverly Bergstrom, Editor in Chief, Santa Clara Law Review

Marsha Levinson, Symposium Editor, Santa Clara Law Review

Lindsay Lutz, Senior Counsel, Intel Corporation

9:00 am Panel I: Patent, Intellectual Property and Antitrust

Moderator: Peter Huston – bakerbotts.com/people/h/huston-peter

Mark Lemley – William H. Neukom Professor of Law, Stanford University Law School
Unfair Disruption of Existing Markets as Legal Injury

Michael Carrier – Distinguished Professor of Law, Rutgers University School of Law
Pharmaceuticals and Antitrust

Peter Lee – Professor of Law, University of California Davis School of Law
Retheorizing the Impact of Intellectual Property Rights on Industry Structure

Discussion and Comments on Presentations

10:15 am Break
10:30 am Panel II: Monopolization and the Problems of Dominance and Anti-competitive Performance

Moderator: Abiel Garcia – gibsondunn.com/lawyer/garcia-abiel/

John Mark Newman – Professor of Law, University of Memphis Law School
Antitrust in Attention Markets: Objections and Responses

Maurice Eitel Stucke – Professor of Law, University of Tennessee College of Law
Risks and Regulation of Data-opolies

Orly Lobel – Don Weckstein Professor of Law, University of San Diego Law School
Gentlemen Prefer Bonds: How Employers Fix the Talent Market

Discussion and Comments on Presentations

11:45 am Lunch
12:15 pm Keynote Address: A Historical Perspective on Antitrust Law and Practice in Silicon Valley

Daniel M. Wall — Lathrop & Watkins, LLP

Discussion and Comments

1:00 pm Panel III: Antitrust Law in Silicon Valley — Platform Markets, EU Enforcement and other Antitrust Issues

Bonnie Sweeney — Hausfeld (invited)

Tom Lavalle — Former General Counsel, Rambus and Xilinix

Paula Blizzard — Deputy Attorney General, CA Attorney General’s Office

Brendan P. Glackin — Lieff, Cabraser, Heimann & Bernstein, LLP

2:30 pm Panel IV: Competition Law Policy and Issues of Enforcement

Moderator: Rob McNary – crowell.com/Professionals/Robert-McNary

Joseph Coniglio – Sidley Austin, LLP Washington. D.C.
Economizing the Totalitarian Temptation: A Risk-Averse Liberal Realism for a Post-Neoliberal Political Economy and Competition Policy

Barak Orbach – University of Arizona School of Law
Innovation, Antitrust Enforcement & Fiduciary Duties

Discussion and Comments on Presentations

3:30 pm Break
3:45 pm No-poach Agreements and Litigation in Silicon Valley

This panel will feature a screening of the new documentary film, “When Rules Don’t Apply”, on the Silicon Valley saga involving tech company no-poach agreements, the subsequent U.S. Department of Justice criminal antitrust case and the class actions on behalf of engineers and animators in Silicon Valley. A panel including the film’s director and advisors and antitrust experts will discuss the implicated antitrust and labor issues, including wage suppression and restrictions on competition for highly skilled labor in Silicon Valley.

Chris Benner, Ph.D. – Dorothy E. Everett Chair in Global Information and Social Entrepreneurship and Director, Everett Program for Technology and Social Change, University of California, Santa Cruz

U.S. Department of Justice attorney (invited)

David Donnenfield – Filmmakers Cooperative, San Francisco

Dean Harvey – Lieff, Cabraser, Heimann & Bernstein, LLP

Donald J. Polden – Professor of Law, Santa Clara University (moderator)

5:15 pm Adjourn and Reception for Speakers and Attendees


Speakers:

The speakers presenting at the Symposium, including those who responded to a call for papers and those who will be submitting an article for the Law Review symposium issue
are as follows:

Michael CarrierMichael Carrier
Distinguished Professor, Rutgers Law School
Co-Director, Rutgers Institute for Information Policy and Law

Web Book Treatise
SSRN
@profmikecarrier

Title of Article: tbd

Michael A. Carrier is a leading authority in antitrust and intellectual property law. Professor Carrier is a co-author of the leading IP/antitrust treatise, “IP and Antitrust Law: An Analysis of Antitrust Principles Applied to Intellectual Property Law.” He also is the author of “Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law” and has written more than 100 book chapters and law review articles in leading journals. Professor Carrier’s scholarship has been cited in numerous courts; he has testified in front of the FDA, FTC, National Academies, and Senate Judiciary Committee; and he is frequently quoted in the media.


Joseph V. ConiglioJoseph V. Coniglio
Attorney, Sidley Austin LLP
SSRN

Joe Coniglio is an associate in the Washington, DC office of Sidley Austin LLP, where he represents clients before the Department of Justice and Federal Trade Commission in all areas of antitrust law, and a graduate of Georgetown University Law Center.

While in law school, Joe was a paralegal specialist in the Technology and Financial Services Section of the DOJ’s Antitrust Division, where he worked on civil compliance, merger, and litigation matters in the technology and financial services sectors, as well as on a criminal antitrust investigation while on detail in the Fraud Section of the DOJ’s Criminal Division. He also worked as a legal intern at the FTC in the Office of Commissioner Joshua D. Wright, where he focused on policy and enforcement issues relating to the intersection of antitrust and intellectual property. In addition, Joe interned at the Competition and Infrastructure Policy Division in the Wireless Telecommunications Bureau of the Federal Communications Commission, where he worked on a variety of matters involving competition policy in the mobile broadband industry.

Joe is an editor of the North America Column for Competition Policy International, a leading thought resource for the global antitrust and competition policy community, and has published several articles addressing contemporary issues in antitrust law, competition policy, and political economy.


Peter LeePeter Lee
Professor of Law, UC Davis School of Law
Faculty web page
SSRN

Peter Lee teaches and writes in the areas of patent law, innovation, and technology transfer. His current scholarship explores the institutional context of innovation as well as the intersection of intellectual property law and academic science. His recent works have appeared in The Yale Law Journal, California Law Review, Duke Law Journal, Michigan Law Review, and other leading journals. Professor Lee has received numerous awards for his scholarly work, including the UC Davis Chancellor’s Fellowship, the Samsung-Stanford Patent Prize, and inclusion in West/Thomson’s annual Intellectual Property Law Review. He has served as a Visiting Scholar at Melbourne Law School and speaks widely on intellectual property matters in the United States and abroad.

Professor Lee received his undergraduate degree from Harvard University, where he studied the history and philosophy of science. He received his J.D. from Yale Law School, where he was a member of The Yale Law Journal. Professor Lee joined the UC Davis faculty after clerking for Judge Barry G. Silverman of the Ninth Circuit Court of Appeals.

At UC Davis, he teaches Patent Law, Intellectual Property, International Intellectual Property and Development, Property, and a seminar on Innovation and Technology Transfer. Professor Lee received the Distinguished Teaching Award in 2016.


Mark LemleyMark Lemley
William H. Neukom Professor, Stanford Law School
Director, Stanford Program in Law, Science, and Technology
Senior Fellow, Stanford Institute for Economic Policy Research
Affiliated Professor, Stanford Symbolic Systems Program
Partner, Durie Tangri LLP
Co-founder, Lex Machina Inc.

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and as affiliated faculty in the Symbolic Systems program. He teaches intellectual property, patent law, trademark law, antitrust, the law of robotics and AI, video game law, and remedies. He is the author of seven books and 170 articles, including the two-volume treatise IP and Antitrust. His works have been cited more than 265 times by courts, including 15 times by the United States Supreme Court, and more than 16,000 times in books and law review articles, making him the most-cited scholar in IP law, one of the four most cited legal scholars in any field in the last five years, and one of the five most cited legal scholars of all time. He has published 9 of the 100 most-cited law review articles of the last twenty years, more than any other scholar. His articles have appeared in 23 of the top 25 law reviews, in top economic journals such as the American Economic Review and the Review of Economics and Statistics, and in multiple peer-reviewed and specialty journals. They have been reprinted throughout the world, and translated into Chinese, Japanese, Korean, Spanish, Italian, and Danish. He has taught IP law to federal and state judges at numerous Federal Judicial Center and ABA programs, has testified seven times before Congress, and has filed more than 50 amicus briefs in the U.S. Supreme Court, the California Supreme Court, and the federal circuit courts.

Mark is a founding partner of Durie Tangri LLP. He litigates and counsels clients in all areas of intellectual property, antitrust, and internet law. He has argued 26 federal appellate cases and numerous district court cases as well as before the California Supreme Court. He has participated in more than three dozen cases in the United States Supreme Court as counsel or amici. His client base is diverse, including Genentech, Dykes on Bikes, artists, and nearly every significant Internet company.

Mark is a founder of Lex Machina, Inc., a startup company that provides litigation data and analytics to law firms, companies, courts, and policymakers. Lex Machina was acquired by Lexis in December 2015.

Mark has been named California Lawyer’s Attorney of the Year twice. He received the California State Bar’s inaugural IP Vanguard Award. He won the 2018 World Technology Award for Law. In 2017 he received the P.J. Federico Award from the Patent and Trademark Office Society. He has been named a Young Global Leader by the Davos World Economic Forum and Berkeley Law School’s Young Alumnus of the Year (back when he was young). He has been recognized as one of the top 50 litigators in the country under 45 and one of the 25 most influential people in IP by American Lawyer, one of the 100 most influential lawyers in the nation by the National Law Journal, and one of the 10 most admired attorneys in IP by IP360. He is a member of the American Academy of Arts and Sciences, the American Law Institute, and the IP Hall of Fame.

Mark clerked for Judge Dorothy Nelson on the United States Court of Appeals for the Ninth Circuit and has practiced law in Silicon Valley with Brown & Bain and with Fish & Richardson and in San Francisco with Keker & Van Nest. He has previously held faculty positions at Berkeley Law School and the University of Texas School of Law. In his spare time, Mark enjoys cooking, travel, yoga, and feeding his addiction to video games (at this writing, Assassin’s Creed: Odyssey).


Orly LobelOrly Lobel
Don Weckstein Professor of Law, University of San Diego
Website
SSRN
You Don’t Own Me Amazon, Barnes & Noble
Talent Wants to Be Free Amazon, B&N, Indie Bound, 800-CEO-READ
Title of Article: Gentlemen Prefer Bonds: How Employers Fix the Talent Market

Orly Lobel is the Don Weckstein Professor of Law at the University of San Diego and the award-winning author several books and numerous articles in top journals. Lobel received her doctoral and law degrees from Harvard University and Tel-Aviv University. She clerked on the Israeli Supreme Court. Her research focuses on employment law, intellectual property law and behavioral law and economics. Her best-selling book You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side (Norton 2017) has been nationally and internationally acclaimed and received rave reviews from the Wall Street Journal, the Financial Times, the New Yorker, NPR, Modern Law, Times Higher Education, the Washington Blade, and more. Her book Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids and Free Riding (Yale University Press 2013), is the winner of several prestigious awards, including Gold Medal Axiom Best Business Books 2014, Gold Medal Independent Publisher’s Award 2014, the 2015 Gold Medal of Next Generation Indie Books and Winner of the International Book Award. She is also the co-author of Employment Law (Employment Law, 6th Edition (Rothstein et al) Thompson Reuters 2019 and The Encyclopedia of Employment and Labor law and Economics (Elgar 2009). Lobel is the recipient of prestigious research grants, a member of the American Law Institute and serves on numerous advisory boards. She was recently named one of The Marker Magazine’s 50 sharpest minds. In 2016 Lobel was invited to Washington DC to present Talent Wants to be Free at the White House, a meeting which resulted in a presidential call for action.


John NewmanJohn Newman
Assistant Professor of Law, University of Memphis School of Law
Title of Article: Antitrust in Attention Markets: Objections and Responses

John Newman is an assistant professor at the University of Memphis School of Law. Professor Newman’s articles on competition and innovation policy have appeared in theUniversity of Pennsylvania Law Review, Washington University Law Review, Vanderbilt Law Review, George Washington Law Review, and a number of other journals. His commentary on antitrust enforcement has been featured by a variety of popular media outlets, including CNBC, the New York Times, Business Insider, and Bloomberg. He has been invited to speak before the U.S. Federal Trade Commission, U.S. Senate policy staff, and at academic institutions within the United States and abroad. He also serves as an advisory-board member of the American Antitrust Institute and regularly advises private-sector clients on contemporary antitrust matters.

Prior to joining the Memphis Law faculty, Professor Newman served as an Honors Program trial attorney with the U.S. Department of Justice Antitrust Division in Washington, D.C. While earning his J.D. with highest honors from the University of Iowa College of Law, Professor Newman served as research assistant to Herbert Hovenkamp, was managing editor of the Iowa Law Review, and published student notes in journals at the University of Iowa and the University of Virginia.


Barak OrbachBarak Orbach
Professor of Law, University of Arizona James E. Rogers College of Law
Title of Article: Innovation, Antitrust Enforcement, and Fiduciary Duties.

Barak Orbach is a Professor of Law at the University of Arizona James E. Rogers College of Law, a member of the American Law Institute, the Executive Committee of the Association of American Law Schools’ Section on Antitrust and Economic Regulation, and the Executive Council of the Arizona State Bar’s Antitrust Section, as well as a Fellow of the American Bar Foundation. He is one of the nation’s most well- known authorities on antitrust law. Professor Orbach teaches and writes about antitrust, corporate governance, risk management, compliance, intellectual property, and regulation. He published over 40 articles, essays, and book chapters in these areas.

Additionally, Professor Orbach is the author a leading casebook on regulation, Regulation: Why and How the State Regulates (Foundation Press, 2012). Professor Orbach is also recognized as the leading legal scholar of the motion picture industry. His study of the motion-picture industry is credited with contributing to a change in the pricing of movies in the United States. Discussions of Professor Orbach’s work appeared in The Atlantic, Forbes, Fortune, Mother Jones, Maclean’s, NPR, Quartz, Slate, Sports Illustrated, The Wall Street Journal, The Washington Post, and many other media outlets.

Over the years, Professor Orbach has delivered talks and advised government agencies, companies, and organizations in more than twenty countries. Additionally, Professor Orbach frequently serves as an expert witness in antitrust cases. Professor Orbach holds undergraduate degrees in law and economics from Tel Aviv University and masters and doctorate degrees in law from Harvard Law School. Before joining academia, Professor Orbach served as an Advisor for Law & Economics to Israel Antitrust Authority and worked as an associate with Cleary, Gottlieb, Steen & Hamilton, New York.


Don PoldenDonald J. Polden
Dean Emeritus and Professor of Law, Santa Clara Law
Title of article: tbd

Donald J. Polden is Dean Emeritus and Professor of Law at Santa Clara University School of Law. Polden served as Dean of Santa Clara University School of Law from 2003 to 2013. Previously to being appointed as Santa Clara Law’s Dean, Polden served as Dean and Professor of Law at the University of Memphis (1993-2003). He currently teaches Antitrust Law and Sports Law at Santa Clara.

Polden is the author of several law review articles on topics of federal antitrust and securities law and American legal education and books and book chapters on federal antitrust law and employment law. His antitrust articles have been cited by federal district and appellate courts and the United States Supreme Court and his book on employment law and practices.

He also practiced law in the federal and state courts, principally in the areas of federal antitrust law, securities law and employment law. His trial and appellate practice cases include four antitrust jury trials and numerous appellate appearances and arguments in appeals of antitrust cases in the Eighth and Fifth Circuit Courts of Appeal and the United States Supreme Court.


Maurice E. Stucke

Maurice E. Stucke
Professor of Law, University of Tennessee College of Law
Faculty Webpage
SSRN Author Page

Maurice E. Stucke is a Professor of Law at the University of Tennessee. He has co-authored two books, Virtual Competition: The Promise and Perils of the Algorithm-Driven Economy (Harvard University Press 2016) and Big Data and Competition Policy (Oxford University Press 2016). HarperCollins will publish in 2019 his book, with Ariel Ezrachi, Competition Overdose: How The Market Ethos Can Both Cure And Poison Us. His work, along with other scholars, now labeled as the progressive, anti-monopoly, New Brandeis School, is introducing a new way of thinking about privacy, competition, and consumer protection in the digital economy, an approach that challenges the antitrust conventional wisdom in place since the 1980s. He has testified before, and provided expert reports for, multiple governments and inter-governmental agencies.

Professor Stucke received a Fulbright Scholar grant in 2010-2011 to teach at China University of Political Science and Law in Beijing. In 2012, he was a Senior Fellow at the University of Melbourne. In 2015 and 2017, he visited University of Oxford, where he was an Academic Visitor at its Institute of European and Comparative Law, a Fellow at its Centre for Competition Law and Policy, and a Senior Associateship at Pembroke College.

Professor Stucke serves as one of the United States’ non-governmental advisors to the International Competition Network, as a Senior Fellow at the American Antitrust Institute, and on the boards of the Institute for Consumer Antitrust Studies and the Academic Society for Competition Law.


Daniel M. WallDaniel M. Wall
Partner, Lantham & Watkins

Since graduating from Santa Clara Law in 1980, Mr. Wall has litigated nearly 100 antitrust cases and argued over a dozen antitrust appeals, including in the United States Supreme Court. He is known for his exceptional courtroom skills, and in particular his ability to craft easy-to-understand defenses of complex business practices. At the same time, Mr. Wall is expert in the merger review process, having steered more than 50 mergers through FTC and DOJ reviews, and litigating five. Mr. Wall also litigates complex commercial cases involving contract and other non-antitrust issues.

Mr. Wall has earned the highest recommendations from every significant publication ranking antitrust lawyers. He is the only antitrust lawyer currently designated as a “Star Individual” by Chambers USA, and the only litigator in Band 1 of the nationwide category for US antitrust lawyers.

Mr. Wall began his career as a trial lawyer in the Antitrust Division of the US Department of Justice, where he was a member of the trial team in United States v. AT&T. He is an active speaker at antitrust conferences and currently teaches “Antitrust Investigations and Litigation” at Berkeley Law.


Robin FeldmanRobin Feldman *
Title of Article: Viral Licensing: Ensuring the Public Interest When Taxpayers Fund Pharmaceutical Research

Robin Feldman is the Arthur J. Goldberg Distinguished Professor of Law and Director of the Institute for Innovation Law. She received a bachelor’s degree from Stanford University and a J.D. from Stanford Law School, graduating the Order of the Coif and receiving the Urban A. Sontheimer Award for graduating second in the class. Professor Feldman served in the Articles Department of the Stanford Law Review. After graduation, she clerked for The Honorable Joseph Sneed of the U.S. Court of Appeals for the Ninth Circuit.

Professor Feldman received the Rutter Award for Teaching Excellence, the Visionary Award from the UC Hastings Board of Directors, and the 1066 Foundation Award for Scholarship. In 2015, she was honored by the American Lawyer Publications as one of the Women Leaders in Law & Tech, the sole academic to receive the honor.

Professor Feldman has published three books, Drug Wars: How Big Pharma Raises Prices & Keeps Generics Off the Market (Cambridge 2017), Rethinking Patent Law (Harvard 2012) and The Role of Science in Law (Oxford 2009), as well as more than 50 articles in law journals including at Harvard, Yale, and Stanford, in the New England Journal of Medicine, and in the American Economic Review. Her work has been cited extensively by the White House, numerous federal and state agencies and members of Congress. Her IP/Antitrust work was cited by parties on both sides during a recent Supreme Court case. She has appeared frequently before committees of the US House & Senate, the California legislature, and federal agencies such as the FTC, DOJ, USPTO, and the National Academy of Sciences. She participated in the GAO’s report to Congress on Artificial Intelligence and in the Army Cyber Institute’s threatcasting exercise on weaponization of data.

Professor Feldman has chaired the Executive Committee of the Antitrust Section of the American Association of Law Schools. In 2012 she was elected to the American Law Institute, where she serves as an advisor to the ALI’s Restatement of Copyright Project.

Professor Feldman directs the UC Hastings Institute for Innovation Law with its flagship program, the Startup Legal Garage. Startup Legal Garage has been named one of the most innovative law school programs in the country and recognized by the American Association of Law Schools as one of the nation’s “Innovative & Other Outstanding Programs.” Information on the Institute, including regarding funding, can be found at innovation.uchastings.edu

*Will not present at the Symposium but has submitted a paper.

Details

Date:
March 1
Time:
9:00 am - 6:00 pm
Event Category:

Organizer

Santa Clara Law Review
Email:
lawreview@scu.edu
Website:
http://digitalcommons.law.scu.edu/lawreview/

Venue

Charney Hall 102/103, Panelli Courtroom
500 El Camino Real
Santa Clara, CA 95050 United States
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    Antitrust and Silicon Valley: New Themes and Direction in Competition Law and Policy

  • March 1
  • 9:00 am - 6:00 pm
  • Charney Hall 102/103, Panelli Courtroom