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unidentified
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Thank you. | |
| Absolutely. | ||
| Thank you so much. | ||
| Thank you very much. | ||
| Earlier today, the Senate Foreign Relations Committee considered the nominations of former Senator David Perdue to be ambassador to China and Monica Crowley to be chief protocol officer. | ||
| Watch the confirmation hearing in full tonight at 9 p.m. Eastern on C-SPAN. | ||
| C-SPAN now, our free mobile app, or online at c-SPAN.org. | ||
| James Boesberg is Chief Judge of the U.S. District Court for Washington, D.C. | ||
| He spoke about antitrust enforcement during a conference hosted by the American Bar Association. | ||
| During his remarks, Judge Boseberg declined to weigh in on threats of impeachment from the Trump administration after he blocked an executive order deporting Venezuelan citizens. | ||
| This runs about an hour and 15 minutes. | ||
| Good morning, everyone. | ||
| My name is Amy Manning. | ||
| I am the co-chair of the Antitrust Practice Group at McGuire Woods, and I am also the programs officer for the ABA Antitrust Section. | ||
| I want to thank you first for being at this panel, but as programs officer, I also want to thank you for being at this conference. | ||
| This is the second largest number of attendees we've ever had, and it's a wonderful opportunity for all of us to come together as professionals and talk about the information and things that matter most to us. | ||
| At this panel, you're going to hear a view from the bench. | ||
| We are going to, excuse me, we're going to cover everything from what makes an antitrust case unique to discovery, to effectively utilizing experts, managing hearings and oral argument, trials, appeals, and a number of other really interesting pieces of advice that this wonderful panel has to share with you. | ||
| We have a packed agenda, so I do not know if we will get to answer questions from the audience. | ||
| But if you do have questions about these judges' views on antitrust, there is a QR code, and you can put in written questions and they will show up here. | ||
| But no promises about whether we will have time for that. | ||
| So to introduce my panel, we have Judge Gonzalez-Rogers, who is from the Northern District of California District Court. | ||
| We have Chief Judge Proctor from the United States District Court for the Northern District of Alabama. | ||
| We have Chief Judge Bozberg from the United States District Court for the District of Columbia. | ||
| We have Judge Coate from the United States District Court for the Southern District of New York. | ||
| And we have Judge Ginsburg from the U.S. Court of Appeals for the DC Circuit. | ||
| A view from the bench. | ||
| So let's start right in and have a conversation about what makes antitrust cases so unique. | ||
| And Judge Gonzalez-Rogers, we'd like to start with you. | ||
| Yeah, good morning, everyone. | ||
| Welcome to the ABA Antitrust Conference. | ||
| I want to thank the leadership as I finish off my last year as being judicial rep to the section. | ||
| It's been a fun time. | ||
| So what makes it different? | ||
| I would say there are three big things that make it different. | ||
| One, discovery. | ||
| Discovery in antitrust cases is some of the most complex that we as judges see. | ||
| We're going to get into that in more detail. | ||
| Two, experts. | ||
| You cannot try an antitrust case without experts. | ||
| And if you show up in my courtroom on day one and you don't have one, makes me skeptical about what you're doing because experts are core to antitrust law. | ||
| And I would say three, trials are different. | ||
| They may be more like class action trials, but many class action trials don't get tried. | ||
| At least that's what I've told. | ||
| I've tried four. | ||
| They're different. | ||
| I think they offer an opportunity to be creative. | ||
| And I would implore you to think about that. | ||
| Many of the judges who you will be in front of do not have antitrust experience. | ||
| So creativity is another way that they can be different. | ||
| It's not just the same old case. | ||
| And I would say finally, it's a specialty bar. | ||
| You all know each other. | ||
| And that has both challenges and advantages. | ||
| So that's kind of the overview. | ||
| I think we're going to get into each of those more deeply, but that's my overview for you, Amy. | ||
| Thank you. | ||
| Judge Ginsburg, when we were getting ready for the panel, you talked about the open textured nature of the antitrust statutes. | ||
| So tell us your thoughts about that. | ||
| Well, yes, the Supreme Court put it rather succinctly when they said about 50 years ago that the antitrust statutes are common law statutes, a phrase that has never been applied as far as I know to anything else before or since. | ||
| A common law statute in the sense that the statute embodies the concept of a restraint of trade, which was a common law concept that had acquired a bit of learning over the course of the 19th century before incorporation in 1890 in the statute. | ||
| And the court's point was that doesn't mean that the Congress truncated the common law as it was in 1890, but rather incorporated the evolutionary aspects of the common law. | ||
| And that has, I think, permitted and blessed and invited the evolutionary incorporation of economics into the statutes. | ||
| So now, of course, economics evolves as well. | ||
| Industrial organization economics over the last 60 years has made significant advances, the result of which is that a lot of doctrines in antitrust law have been discarded. | ||
| You can think of the four cases piece by piece disassembling all of the restraints on all of the per se condemnations on vertical restraints. | ||
| Four cases over 40 years. | ||
| Oddly enough, all of them anticipated by Justice White in the first of those four cases. | ||
| But that really puts us in a very different position than we are ordinarily with almost every other statute and indeed almost all the common law insofar as we expressly incorporate economics. | ||
| Thank you. | ||
| Others on the panel, thoughts about what makes antitrust cases different? | ||
| Well, I'll speak briefly to a different, slightly different question. | ||
| We talked about how they are different compared to other cases. | ||
| I'm going to speak about how they may be different for me. | ||
| If you remember back in kindergarten, there was a project you got, and you would have to circle what did not belong in that picture. | ||
| And you're looking along the panel here, and you're saying, okay, Northern District of California, Southern District of New York, District of Columbia, Northern District of Alabama. | ||
| We're not exactly, the 11th Circuit and the Northern District are not exactly the fertile ground in which antitrust litigation grows. | ||
| So, what happens when someone like me who doesn't have a lot of antitrust experience nor economic education? | ||
| I was a BA in individual directions at Carson Newman, where I played linebacker. | ||
| So, I walk in, let me just give a real-world example. | ||
| In 2013, I walk into a courtroom with the top antitrust lawyers, or some of them, in the country. | ||
| Some of you are here, were in that courtroom that day for the Blue Cross Blue Shield MDL. | ||
| And I realize that I am presiding over a case where you have devoted your entire career to this very narrow area, and I'm a generalist and I've got to catch up. | ||
| And that's truly a challenge, but it also means you've got to recognize that when you walk into a courtroom like that and be in a position to make things user-friendly for someone like me. | ||
| So, that's something I want you to be thinking about. | ||
| I'm sure you already have to some degree, but be thinking about during the time we're going to spend together this morning. | ||
| All right, so let's talk about discovery. | ||
| Judge Gonzalez-Rogers said that it is very complex, it is broad, it is deep, it is very expensive. | ||
| I often say that I think antitrust exists right at the exact border of law and business, and so therefore, if you have an antitrust problem, a lot of your business documents are relevant. | ||
| So, how do you appropriately manage discovery? | ||
| And, Judge Coate, why don't we start with you? | ||
| Thank you. | ||
| I want to just say how pleased I am to be here today and participate in this conference. | ||
| So, I think there are many ways to, as a judge, efficiently manage discovery in a complex case as antitrust cases normally are. | ||
| And I think antitrust lawyers who are excellent in litigating antitrust cases have expertise in litigation, not just in antitrust. | ||
| If you're a plaintiff's lawyer, you are someone who probably thinks about what you want to say in your summation before you write your complaint. | ||
| You have a view of the long game, understanding what evidence you need to develop and what ways you're going to follow to develop that evidence. | ||
| And you're thinking about what the defenses are that you expect to meet. | ||
| And, of course, as a defendant, you are thinking about those defenses and how to undermine the plaintiff's case right from the beginning. | ||
| So, I say this because discovery should be focused. | ||
| If there are going to be disputes, they should be identified early on. | ||
| You should be communicating to the court if you have disputes you can't resolve between yourselves or among yourselves why the particular piece of evidence you want is important or why the other side really hasn't made it. | ||
| This is available to watch online at our website, cspan.org. | ||
| We are going to leave this here for now for remarks from President Trump, made just a short time ago. | ||
| So we look forward to that. | ||
| It's in Miami at Doral. | ||
| And you can be trust: the markets today are way down. | ||
| The worst day is here because of the terror. | ||
| So, how's it going? |