All of this said, why do I dwell on the characteristics of a good story? The answer is that I believe a good story will provide the agencies and the ultimate arbiter with the flexibility they need to prosecute anticompetitive conduct, even if, at first blush, it does not fit neatly within a pre-existing Sherman or Clayton Act box. Put differently, because I spent 40 plus years as a defense attorney, I know that the best defense is often a good offense: if the Commission sues under Section 7, a defense attorney will wrap the case up into a series of threshold issues (like market definition) to make it more difficult for a prosecutor to prevail; likewise, if the Commission sues under Section 5, a defense attorney will argue that the conduct is clearly legal under some existing Sherman Act case law, in order to persuade a judge that the Commission is acting out of turn. A good story, however, can help and ALJ or federal judge focus on the big picture – whether (in the agency case) the case involves multiple practices by a dominant firm, a merger in an industry that has a recent history of collusion and concentration, or, conversely (in the defendant(s)’ case), a firm that has sought to play fair or a merger in an industry with the prospect of entry or dynamic efficiencies. Far too often, however, I think we all get caught up in putting cases in perfect economic and legal boxes and lose sight of the fact that while the law and economics matter, the big picture matters too.
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To conclude and give you something to apply all of these considerations to in your own spare time, I’d like to make an observation about what I see as the most significant issue on the horizon in the high-tech sphere and that is the need for firms and enforcers to balance the need to protect consumer privacy on the one hand, and vigorous competition on the other.
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