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Speech

Deputy Assistant Attorney General Andrew Forman Delivers Remarks at the 2024 Hal White Antitrust Conference

Location

Washington, DC
United States

Remarks as Prepared for Delivery

Thank you very much for that kind introduction, Nicholas. It is an honor to be invited to speak at this esteemed conference with so many luminaries of the antitrust community.

I have now been on the job for a little over two years, and I continue to be so thankful for, and humbled by, the opportunity to work alongside the many fantastic economists, lawyers, paralegals and others at the Antitrust Division. It is on their shoulders that I get a chance to talk with you all tonight.

Conferences like these are a great time to explore the complexities and nuances that make antitrust and economics such richly rewarding fields. It is particularly fitting in this setting as we also celebrate Dr. Hal White, who pushed the use of economics in antitrust to new heights and whose contributions to the profession remain front and center today. So it is in that spirit, and with that legacy in mind, that I want to cover three topics that I’ve been reflecting on lately that relate to where antitrust economics is today and where we’re going.

First, I want to celebrate the tremendous contributions of our Expert Analysis Group at the Antitrust Division.

Second, I want to discuss whether “antitrust litigation” is “out of whack,” as Justice Gorsuch is reported to have said recently. “Antitrust litigation” of course covers a broad canvass, but I want to focus on a topic that I am sure is near and dear to this audience’s heart, namely some issues related to expert witnesses.

And third, I want to share some thoughts on how platform-related competition issues appear to be presenting across more industries, whether traditionally thought of as platform industries or not. It is important that antitrust analysis and enforcement take that into account.

The Antitrust Division’s Expert Analysis Group (EAG)

First, if you will indulge me, I want to brag about a core part of our team.

Sound economics, both theory and empirical work, plays an essential role in our thinking and enforcement at the Antitrust Division. The Americans we serve are enormously fortunate to have a dedicated in-house group of world-class economic and expert practitioners. They work hand in glove with our legal teams and the rest of our public servants. Every day and in many different ways, their hard work and insights help advance the mission of antitrust enforcement and policy.

As probably all of you know, we call that part of our team EAG. Some of you are even alumni. We recently changed the name from “Economic Analysis Group” to “Expert Analysis Group” to reflect more accurately their broad expertise and the work they do. EAG has around 40 PhD economists and a dozen statisticians, data scientists and financial analysts. We also are building a technology team as a part of EAG to help augment our expertise around algorithms and other technologies. And we are constantly on the lookout for those willing to join the team, so spread the word.

That team supports the entire mission of the Antitrust Division and, like the rest of the division, it is understaffed and overworked. But as the boxing saying goes, they punch above their weight.

As you may know, our EAG teammates are essential contributors to investigations and enforcement matters of all sizes. They participate in interviews, review documents, conduct research, comment on deposition outlines, contribute to complaints, anticipate arguments that parties may raise and bring their valuable perspective to all manner of projects in litigation. EAG sits with the lawyers at counsel table when appropriate and on occasion may take part of an investigative deposition.

On top of this, they perform highly sophisticated data analysis and do everything needed to assist with expert reports and expert testimony. Members of EAG also have testified or prepared to testify to support important cases. Of course, in addition to enforcement, they also are thought leaders on cutting-edge competition policy issues.

I want to highlight a few specific examples of their tremendous contributions.

First, the Antitrust Division has now won three civil trials in a row, in addition to many merger abandonments. Part of the reason for the victories is that we have gotten better at using plain language and real-world analysis to explain the “why” behind our cases, using evidence that illustrates the competition at stake in the merger and the risks to real people in real ways. Working with our legal team, EAG has been a key contributor to all the work that has gone, and continues to go, into this priority. Their contributions cannot be overstated.

For example, in Penguin/Random House, EAG helped transform a pile of documents — both emails and minutes from editorial meetings — into a usable data set showing the degree of competition between the merging firms. This was then depicted in user-friendly charts that illustrated the timing of bidding and how much authors benefitted from competition between the parties. This reflected an extraordinary amount of work and was tremendously valuable for both understanding and explaining the competition threatened by the transaction.

Similarly, in the JetBlue/Spirit litigation, EAG figured out common-sense ways to demonstrate that the features JetBlue offered travelers — for a higher fare — were just not valued that much by customers who chose Spirit.

Second, on more of a policy front, EAG was instrumental in incorporating the latest economic thinking into the new Merger Guidelines. We are proud to have conducted an incredibly inclusive modernization process, with multiple rounds of public comments, numerous public meetings and comments from all corners of the Antitrust Division and Federal Trade Commission. The result was a document that reflects modern economic theory and analysis generally, as well as in connection with specific ways that competition presents itself in today’s economy, including around platforms that I will discuss a bit more shortly. When you combine that rigorous process and economic thinking with the fact that the new guidelines reflect fidelity to the law, we are optimistic about their future. Key parts of that optimism are due to the incredible talent and efforts of the lead drafters, including Susan Athey and Dave Lawrence for the Justice Department and Aviv Nevo and Ken Merber for the FTC, but also to broader EAG and BE economic teams that were deeply engaged throughout the process.

In sum, I have learned a ton from my colleagues in EAG during my time at the division. I am so thankful for their work on behalf of Americans and competition enforcement around the world.

Is Antitrust Litigation “Out of Whack”?

Now I want to turn to another econ-related topic I have been thinking about lately. Recently, Justice Gorsuch, speaking at another local antitrust conference, was reported to have said that antitrust litigation has become “a little out of whack.”[1]

I dare say we probably all agree with Justice Gorsuch that there is room for improvement. Although there may be several areas to improve, I submit that expert-related issues, for both lawyers and economists, is one of them.

One district judge wrote a few years ago that the parties’ “costly and conflicting” experts “essentially cancel[led] each other out.”[2] Other judges have experimented with different hearing formats, such as so-called “hot tubs,” where the experts debate in real-time based on questions from the judge, which one judge thinks can facilitate more “candid and unmediated exchanges between the experts.”[3]

Experts play an important role in our system. At bottom of course, expert testimony should help a judge or jury evaluate a merger or conduct. Neither judges nor jury pools are identical, so there is no optimal testimony or report. But the current posture of litigation seems to be leading to an arms race of both sides hiring experts that serve as advocates as much as independent experts.

No one is naïve. Experts are hired by clients and have come to conclusions consistent with at least key parts of the client’s perspectives or else they wouldn’t be testifying. Nevertheless, reading the article about Justice Gorsuch’s comments got me thinking — is there anything specific to expert witnesses that we can do to make antitrust litigation a little less out of whack?

I’ll offer three interrelated ideas. Although these may not be novel, more can be done around them in my view, so I thought they were worth mentioning.

First, work regularly for both plaintiffs and defendants. If an expert always supports one side, it can send a signal that the expert starts from a pre-conceived idea about which side is right, and then works backwards to find the analysis that supports that side. We certainly notice these things at the Antitrust Division, and we also hear from others that experts that are perceived as “hired guns” are less persuasive. Everyone benefits from hiring experts who are experienced working on both plaintiff- and defendant-side issues.

Second, approach the issues head-on. There are at least a couple different ways to do so. In our field, I think sometimes we talk past each other, perhaps because responding directly to another expert raises concerns about conceding what the playing field is or somehow reveals a perception about the strength of the response. Ultimately, however, talking past each other is not really persuasion at all.

The other way to take issues head on is to concede what needs to be conceded. Not every fact supports the conclusion a party might want its expert to reach. Not every inference is equally sound.

In my view, the best — and ultimately most persuasive — experts are those who know how to not only answer questions directly but to concede what they must and explain why their key opinions nevertheless remain sound. It seems to me that fighting scorched earth for every inch may be unhelpful to the trier of fact and can undermine credibility.

Third, let’s find ways to narrow issues, focus on key facts and shorten expert reports. Cases usually don’t turn on the sixth or seventh most important issue. Usually there are two or three issues that really make or break a case. Courts have noticed this one too. I think this is why some courts prefer different types of engagement with experts or other concepts to get to the real crux of the most important issues.

Lawyers share a lot of responsibility here. We lawyers tend to want to present every argument and discuss every good document. Lawyers may also try to use anything at their disposal, including a footnote near the end of the report, to try to undermine the opposing side’s credibility or make a mountain out of a molehill. That said, recognizing that judges and juries sometimes may latch onto facts or issues that we didn’t expect to carry the day, it seems we can be more efficient and direct on the core issues.

Narrowing the issues also can help us streamline expert reports. Mark Twain is credited with saying that he wrote a long letter because he didn’t have time to write a short one. I think I’m probably not the only one who thinks that expert reports shouldn’t regularly need multiple hundreds of pages, with a thousand footnotes, citing multiple thousands of sources. It’s fair to ask the question — is this really the best we can do to help a trier of fact?

Of course, expert testimony will need to be streamlined for trial, and there are benefits to doing so sooner, at the report writing stage. I’m not saying that a report on a complex subject should be reduced to a few pages.

But an expert with a sharper focus on key facts comes across as confident in their knowledge of the case and the issues, which builds credibility. One tactic can be to avoid finalizing key aspects of the report too early. Starting too early can turn the report into a repository for evidence and arguments and can make it more likely that parts of the report won’t play into the focus of the trial presentation.

How Do We Think About “Platformization” of Industry?

Finally, I’d like to end on some thoughts about a much-discussed topic these days, namely platforms. Put another way, we are observing what seems to be more “platformization” across more aspects of the economy. Antitrust enforcement and policy need to keep pace.

Some platforms already have attracted a lot of attention. For example, it is now widely recognized how digital platforms can serve as intermediaries between multiple types of consumers, service providers, software tools or other platforms.

Understanding how competition works in these situations has allowed us to enhance our understanding of the potential risks to competition around platforms. For example, our learnings helped inform the new Merger Guidelines generally and specifically with new Guideline 9 dedicated to multi-sided platforms, including around issues such as network effects, conflicts of interest, switching and multi-homing, multi-level entry and other entry barriers and disintermediation (or lack thereof).

As we look across the economy today, platform-like issues seem to be arising with increasing frequency, even beyond the more familiar examples. We are seeing many businesses combine different services or functions into some sort of “integrated stack” that is, or functions like, a platform. In addition to pure technology markets, we are observing these kinds of issues in healthcare, finance, consumer products and automobiles, just to name a few. Although there are some differences in these areas, for each we are finding ourselves asking if the “integrated stack” is procompetitive or might it increase risks to competition on the merits by, for example, requiring multi-level entry or otherwise raising entry barriers? It’s our job to try to tell the difference as we evaluate a merger or conduct.

With platforms, as with any product or service, our analysis starts by trying to understand how competition presents itself. Assistant Attorney General Kanter has spoken about this frequently, and the Supreme Court has been saying it for years. In its most recent antitrust opinion, the Court – speaking through Justice Gorsuch – said that antitrust requires “a careful analysis of market realities.”[4] So how do we sort through the market realities of a platform?

As we say in the Merger Guidelines, we think about not only competition between platforms, but also competition on a platform and competition to displace a platform.[5] In doing so, we are mindful that market definition is a tool to help aid the competitive analysis and not a rigid, overly formalistic exercise. It thus makes sense that there are different ways to establish a relevant market, just as it makes sense that a market need not have “precise metes and bounds,”[6] as reflected in the Supreme Court precedent.

For example, it may make sense to define narrower markets to cover discrete aspects of platforms (or one part of a bundle of services), if that reflects facts and market realities. But it could also make sense to define markets more broadly around a platform or stack if that is the best way to evaluate competition and consistent with ordinary course information, economic tools or other indicia of relevant markets. And we should keep in mind that there is not always a single correct relevant market, but different approaches can both be correct in different circumstances.

At bottom, we should be focusing our analysis on any potential sources of actual or potential economic power implicated by conduct or a merger and the associated threats to competition. If a particular market definition does not allow us to do that, then I submit we should think about the market differently, not end the analysis.

For those seeking more insights relating to platforms, here is another plug. I would highly recommend the platform-related writing by our world class Chief Economist, Dr. Susan Athey.

In closing, I wanted to return to Dr. White and his immense legacy. Conferences like this are a valuable opportunity to step back from our day-to-day grind and think deeply about how we advance our profession. Hearing different ideas and viewpoints allows us to think about ways to improve and innovate. I appreciate the opportunity to share a few of my perspectives.

Thank you.


[1] Ben Remaly, Gorsuch: antitrust litigation has become “out of whack,” GCR (Feb. 26, 2024), https://globalcompetitionreview.com/gcr-usa/article/gorsuch-antitrust-litigation-has-become-out-of-whack

[2] New York, et al., v. Deutsche Telekom AG, et al., 439 F. Supp. 3d 179, 187 (S.D.N.Y 2020).

[3] In re Capacitors Antitrust Litig., No. 14-CV-03264, 2020 WL 870927, at *2 (N.D. Cal. Feb. 21, 2020).

[4] NCAA v. Alston, 594 U.S. 69, 93 (2021).

[5] Merger Guidelines, U.S. Dep’t of Justice & Fed. Trade Comm’n (2023), § 2.9.

[6] Merger Guidelines, U.S. Dep’t of Justice & Fed. Trade Comm’n (2023), § 4.3.


Topic
Antitrust
Updated June 4, 2024