Slade Bond

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Slade Bond

Slade Bond

@SladeBond

Chair, Policy @CGL_Law • Former Principal Deputy Assistant Attorney General for Legislative Affairs @TheJusticeDept • Chief Antitrust Counsel @HouseJudiciary

Washington, D.C. Katılım Mart 2009
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Slade Bond
Slade Bond@SladeBond·
Personal news: I am thrilled to join @CGL_Law! The firm was founded by Jonathan Cuneo, a hero of mine and predecessor on the @HouseJudiciary. Jon stood up to powerful corporations during his career, and was a source of inspiration for me during my time as Chief Counsel of the Antitrust Subcommittee. I look forward to working alongside an immensely talented team to advance the policy, litigation, and regulatory priorities of CGL's clients to help safeguard competition and protect consumers across the country.
Cuneo Gilbert Flannery & LaDuca, LLP@CGFL_Law

Cuneo Gilbert & LaDuca is proud to welcome @SladeBond as Chair of Public Policy and Legislative Affairs. A former Principal Deputy Assistant Attorney General and Chief Counsel of the House Antitrust Subcommittee, Slade brings unparalleled expertise from over a decade of top-tier government service. Congressional leaders from both parties have recognized Slade for his bipartisan approach to advancing economic justice and consumer protection. Read more here: cuneolaw.com/2024/12/18/cun…

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Slade Bond
Slade Bond@SladeBond·
It's good to hear that words matter, you were arguing a minute ago that adding "basically" to a phrase means you can use words outside of their plain legal meaning. Again, the bill requires proof of harm to competition. Depending on the alleged conduct, either the enforcer must show the anticompetitive effects of the conduct or rebut the defendant’s showing that the conduct is procompetitive. In either case, the factfinder will consider the same types of evidence that ordinarily inform a competitive effects analysis. That's no different from how courts approach burden shifting under the Sherman Act. Here's the relevant text if helpful: #id6e7d58982f334487a3dc587461762f41" target="_blank" rel="nofollow noopener">congress.gov/bill/118th-con…
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Joseph V. Coniglio
Joseph V. Coniglio@JosephVConiglio·
@SladeBond @neil_chilson Again, words matter. I didn't say none of the conduct allows for procompetitive justifications. I said the justifications allowed are not general (ie anything that lowers prices/increases output) and limited to compliance with law, privacy/security, technical functionality.
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Joseph V. Coniglio
Joseph V. Coniglio@JosephVConiglio·
Exactly. So (1) for most of the conduct the plaintiff does not have the initial burden to show harm and (2) for none of the conduct is there an ability to present procompetitive justifications generally. That's why it looks more like "per se" more than the standard rule of reason
Slade Bond@SladeBond

Indeed, although I appreciate your enthusiasm for having sprung some kind of trap while retreating from defending your construction of a per se rule or regulation. For the Act's general prohibitions under section 3(a)(1)-(3), the burden is on the enforcer to show that the conduct would materially harm competition. For the Act's specific prohibitions under sections section 3(a)(4)-(9), the burden is on the defendant to show the conduct did not and would not materially harm competition. Again, because there is burden shifting under the Act, there's an opportunity for the defendant to show that otherwise illegal conduct does not materially harm competition, and also an opportunity for the defendant to show that the enforcer did not meet its burden that conduct under section 3(a)(1)-(3) materially harms competition. It's not a fair reading of the bill to suggest that a court doesn't have an opportunity to consider the competitive effects of conduct, or that the defendant does not have an opportunity to prove that the conduct is procompetitive.

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Slade Bond
Slade Bond@SladeBond·
@JosephVConiglio I was going to give you and @neil_chilson the last word but help me understand your point here that none of the conduct allows for consideration or procompetitive effects if it is either required as part of the prima facie case or in response to an affirmative defense.
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Slade Bond
Slade Bond@SladeBond·
@JosephVConiglio @neil_chilson Sorry to torment you with words, guys. I see now that "basically" means none of the adjacent words carry the same meaning as they do in legal practice. Carry on.
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Joseph V. Coniglio
Joseph V. Coniglio@JosephVConiglio·
I get to paid to call out antitrust stupidity, which is a full-time job these days, thanks for that I said basically because while it’s case by case it is 1) sector specific and 2) focused on per se bans not reasonableness, which is like typical regulation and unlike Sherman act
Slade Bond@SladeBond

I generally avoid getting pulled into debates on this platform, particularly with people who are paid to disagree with you. But the claim that antitrust legislation like AICOA is “regulatory” in any meaningful sense is incorrect. When Congress intends to delegate rulemaking authority, it does so clearly, typically through the Administrative Procedure Act (APA) or another express grant of authority. AICOA does so in a limited respect, giving the antitrust agencies APA rulemaking authority to define “data.” But it does not grant broader rulemaking authority to define the Act's core terms or obligations, and ultimately enforcers and courts have discretion to interpret it. That design is intentional---antitrust enforcement is law enforcement, not regulation. Just as with the antitrust laws and pro-competition statutes like the CREATES Act, AICOA is written to be enforced through case-by-case adjudication, where enforcers must prove violations against specific defendants. Saying this is “basically ex ante regulation” is akin to saying the Sherman Act is regulatory.

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Slade Bond
Slade Bond@SladeBond·
I think when you say "ex ante regulation," you really mean laws that are not generally applicable, rather than whether an agency adopts a legislative rule (APA rulemaking) or a law that is enforced on a case-by-case basis subject to established criteria and burden shifting (monopolization enforcement). And when @JosephVConiglio says "per se rule," he really means a law that uses criteria he views as being different than a competitive effects analysis of a section 2 claim (although he hasn't responded to my earlier point on material harm to competition). Do I have that right?
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Slade Bond
Slade Bond@SladeBond·
I generally avoid getting pulled into debates on this platform, particularly with people who are paid to disagree with you. But the claim that antitrust legislation like AICOA is “regulatory” in any meaningful sense is incorrect. When Congress intends to delegate rulemaking authority, it does so clearly, typically through the Administrative Procedure Act (APA) or another express grant of authority. AICOA does so in a limited respect, giving the antitrust agencies APA rulemaking authority to define “data.” But it does not grant broader rulemaking authority to define the Act's core terms or obligations, and ultimately enforcers and courts have discretion to interpret it. That design is intentional---antitrust enforcement is law enforcement, not regulation. Just as with the antitrust laws and pro-competition statutes like the CREATES Act, AICOA is written to be enforced through case-by-case adjudication, where enforcers must prove violations against specific defendants. Saying this is “basically ex ante regulation” is akin to saying the Sherman Act is regulatory.
Joseph V. Coniglio@JosephVConiglio

Nice try. AICOA isn’t just regular old consumer welfare law enforcement. It’s basically ex ante regulation with per se bans of common and overwhelmingly pro-competitive behavior to protect competitors.

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Slade Bond
Slade Bond@SladeBond·
Indeed, although I appreciate your enthusiasm for having sprung some kind of trap while retreating from defending your construction of a per se rule or regulation. For the Act's general prohibitions under section 3(a)(1)-(3), the burden is on the enforcer to show that the conduct would materially harm competition. For the Act's specific prohibitions under sections section 3(a)(4)-(9), the burden is on the defendant to show the conduct did not and would not materially harm competition. Again, because there is burden shifting under the Act, there's an opportunity for the defendant to show that otherwise illegal conduct does not materially harm competition, and also an opportunity for the defendant to show that the enforcer did not meet its burden that conduct under section 3(a)(1)-(3) materially harms competition. It's not a fair reading of the bill to suggest that a court doesn't have an opportunity to consider the competitive effects of conduct, or that the defendant does not have an opportunity to prove that the conduct is procompetitive.
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Slade Bond
Slade Bond@SladeBond·
I appreciate your enthusiasm on this, but I'm revoking your and @JosephVConiglio's right to describe legislation using Latin terms until someone can explain how the words "per se" and "ex ante" actually apply to a cause of action created by Congress with enforcement criteria subject to a rebuttable presumption. I guess reasonable people can disagree on a vibes-based approach, but these words have meaning in the case law and Congress.
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Neil Chilson ⤴️⬆️🆙📈 🚀
Neil Chilson ⤴️⬆️🆙📈 🚀@neil_chilson·
@SladeBond You keep trying to force me into a binary. I said it was "more regulatory." And in any case, it is Evan who described AICOA in regulatory terms: x.com/neil_chilson/s…
Neil Chilson ⤴️⬆️🆙📈 🚀@neil_chilson

@SladeBond In any case, Joe's response is to Evan who is actually describing AICOA in regulatory terms -- as ex ante restricting conduct. Joe is correct to point out that this is different than a court applying the consumer welfare standard to a specific company's conduct.

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Slade Bond
Slade Bond@SladeBond·
@neil_chilson Yes, the law that creates a cause of action to address anticompetitive barriers to generic drug price competition. So you think a privately enforceable cause of action is regulatory now?
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Slade Bond
Slade Bond@SladeBond·
Neil, hope you're doing well. Do you think the CREATES Act is ex ante regulation?
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Neil Chilson ⤴️⬆️🆙📈 🚀
Neil Chilson ⤴️⬆️🆙📈 🚀@neil_chilson·
This is nitpicking. There is a spectrum between general principles applied case-by-case and detailed regulation that attempts to draw lines ex ante. Supporters don't like how courts currently apply existing antitrust principles so -- so AICOA shifts antitrust law along the spectrum toward ex ante rules. That makes it more regulatory.
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Slade Bond
Slade Bond@SladeBond·
So by "per se" what you really mean is that it's not your preferred analysis rather than a per se rule. Per se liability in the antitrust context applies to irredeemable conduct that lacks any procompetitive justification. It requires no further analysis, unlike a burden-shifting framework where a defendant can justify otherwise illegal conduct. Regardless, the Act requires showing that the defendant's conduct materially harmed competition, which would include economic analyses similar to other antitrust laws. So I'm not sure how it fails to meet your new test either.
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Joseph V. Coniglio
Joseph V. Coniglio@JosephVConiglio·
@SladeBond The point is it isn’t doing the general economic reasonableness analysis that is core of the Sherman Act. So it is per se from that perspective, but firms can present one of these other limited defenses (eg security) could be justified on non antitrust/consumer welfare grounds.
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Slade Bond
Slade Bond@SladeBond·
Not hearing an answer to my question, but to answer yours, a procompetitive justification under the Sherman Act can include privacy and security. Also wondering why you think a defendant being able to rebut a violation of the Act through a clear showing that otherwise illegal conduct was necessary to protect privacy is a per se rule (or bad).
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Joseph V. Coniglio
Joseph V. Coniglio@JosephVConiglio·
@SladeBond Do defenses include standard and general procompetitive justifications under the Sherman Act or are they limited to privacy, security, compliance with law, fraud prevention?
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Slade Bond retweetledi
Amanda Lewis
Amanda Lewis@amandalws·
So excited to participate, along with my colleague @SladeBond, at this timely and important conference on labor and antitrust with @BedoyaUSA as the headliner! Thanks to @johnmarknewman and Eric Posner for organizing a much-needed space to discuss and develop this area of activism, advocacy, and law on behalf of workers. Register via the QR code below!
John Mark Newman@johnmarknewman

#Antitrust Event Alert: “Countervailing Power: Antimonopoly for Workers” in Memphis on May 15. Along with my co-organizer Eric Posner (UChicago), we've assembled a rockstar lineup of speakers. Free to attend. RSVP via QR code below. Short 🧵 on panel topics follows: ⏬ (1/3)

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ROCC
ROCC@roc_coalition·
@AGRobBonta is standing up for small businesses and consumers by taking on Amazon's anticompetitive price fixing practices. See our most recent summary here, and follow for more as this investigation proceeds. theroccoalition.com/rocc-applauds-…
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Slade Bond
Slade Bond@SladeBond·
This is an incredibly important action by the @JusticeATR to drive down healthcare costs by ending anticompetitive restrictions on price competition. AAG Assefi: "New York-Presbyterian has known for years that the American consumer wants budget-conscious health plans that reduce healthcare costs. But rather than offer consumers choice, New York-Presbyterian uses its market power to protect its margins, impede competition from rival hospitals, and prevent employers and unions from creating these plans."
Amanda Lewis@amandalws

Very excited to see @JusticeATR file this important antitrust enforcement action in the healthcare sector. Putting a stop to anticompetitive conduct by dominant healthcare systems like @nyphospital will go a long way toward promoting patient access to affordable, high-value care. According to the complaint, "NYP’s contracts with health insurance companies unlawfully deny patients the choice of insurance plans that prioritize NYP’s lower-cost competitors. The United States seeks an order prohibiting NYP from entering into or enforcing these illegal contractual plan design restrictions, which reduce competition among hospitals, raise healthcare costs, and deny consumers seeking healthcare in New York City access to budget-conscious health insurance plans." justice.gov/opa/pr/justice…

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@neil_chilson @JosephVConiglio @elonmusk @BarackObama @taylorswift13 @cristiano @BillGates @NASA