Albert Foer and the Revival of Antitrust

Albert Foer is stepping down as President of the American Antitrust Institute (AAI).

He will be succeeded by Diana Moss.

Foer is the founder of the organization, now in its 17th year.

AAI is an institution that serves as a counterweight to conservatives that have dominated the antitrust debate for the last four decades.

Prior to AAI, there was no counterweight.


“There was no counterweight — certainly nothing organized,” Foer told Corporate Crime Reporter in an interview last week. “I learned that when I was at the Federal Trade Commission. We were under tremendous political fire. I had the semi-secret assignment of trying to build a public defense for the FTC’s Competition Bureau.”

“I looked around and found out — there is nobody out there. So, the question was — who cares about antitrust? Who cares? Finding people who care and bringing them together and helping to develop their thinking and their ability to influence both government and the public has been our achievement.”

“The overall impact of AAI has been to keep the flame alive — the flame that inspired John Sherman and later inspired Louis Brandeis and Woodrow Wilson,” Foer said. “It has to do with a concern that over-concentration of economic power is bad for the country, it’s bad economically, it’s bad politically and it needs to be scrutinized with great care. We have helped to keep that flame alive in a difficult time. We may have a difficult time going forward as well.”

One major achievement if AAI is the production of a 27 minute movie about antitrust titled — Fair Fight in the Marketplace.

The narrator is National Public Radio’s Mara Liasson.

“The movie was made with a cy pres grant that came out of the California vitamin cartel cases,” Foer said. “A foundation-like organization was created under the direction of the California public interest advocate Harry Snyder. We worked with Harry for a couple of years planning the movie and arranging for the grant. The grant allowed us to make both the movie and to put up a website —”

“The movie is 27 minutes long. It won two awards for documentaries. It played on public television around the country — sometimes on at 3 o’clock in the morning. But it played on public television around the country.”

“The idea was to create a documentary that could be used in high schools. And we made a strong effort to get the film into the California schools. One of the things we learned is that education is highly decentralized. And it was extremely difficult to do what we were trying to do.”

“We trained some teachers. We appeared at various education conventions in California. But I’m not sure we had a great deal of success in getting it into the curriculum.”

“But recently, we had a call from Apple. They were putting together a compliance program, probably under pressure from the Justice Department, and they wanted to know if they could license our film to include it in their compliance program.”

“We worked out a deal with Apple. And that inspired us to decide that we are going to present similar opportunities to corporate counsel all over the country. We will be inviting them to think about their compliance programs and to consider using this film. If you want to encourage your employees to be thinking seriously about antitrust and why it is important to them as employees and as consumers, it is a great stimulant.”

“I just recently showed the film in Guatemala. Guatemala and other countries from Central America have signed an agreement with the European Union. And one conditions is that they must have a competition law. Guatemala does not have a competition law. Guatemala is one of those countries with a small number of families that control some concentrated industries. They have to pass a law by 2016. And the question is — will the big business interests either kill the law entirely or make sure that what gets passed has no teeth?”

Foer and AAI also had an impact on the Antitrust Modernization Commission.

“It was a Congressionally mandated Commission,” Foer said. “It looked like it was going to be stacked with conservatives. There was a real risk that it would undermine what we think of as robust antitrust enforcement. We put together a variety of working groups so that each time there was a request for public comments, we were the first ones in line — before the American Bar Association. We were also coming in with expert recommendations and information. And I think that helped the Commission to change course. Essentially, this conservatively based Commission endorsed the status quo. We are not happy with the status quo, but it was a kind of an inoculation going forward. At least we hope it was an inoculation against many of the proposals that had been kicking around that would have substantially undermined that level of antitrust that currently exists. So, we had an important role there as a moderating influence on something that could have been very bad.”

“There are a number of areas where we introduced concepts and approaches. We have been leaders in developing the idea that buyer power can be an antitrust concern. We have brought systems thinking into things. We are trying to look at the role of systems and networks and platforms and what their impact on competition may be. We have brought a lot of information to the table on cartels, particularly international cartels and how they harm consumers — whether there is adequate enforcement. We have pushed the idea that antitrust is not merely about short term price effects, but is also deeply concerned with choice for consumers, choice for small and medium sized businesses and innovation. It’s not just short term static efficiencies that are important, but also dynamic efficiencies — longer term impacts.”

AAI has also intervened to try and stop some big mergers. And some mergers were blocked.

“In this business, you can rarely identify causation,” Foer said. “We got a lot of credit on the AT&T/T-Mobile case. But there are so many other reasons that go into decisions of this sort. Anybody that claimed they were the cause could be laughed at. You just keep fighting the cases. We don’t get into a lot of individual cases. But we do write a lot of amicus briefs. In some of our amicus briefs, we have seen impact. The court doesn’t say — AAI convinced us. But we do think we have turned things around or got a second hearing. Our success in the Supreme Court has not been great, nor was there any reason to anticipate that it would be.”

[For the complete q/a transcript of the Interview with Albert Foer, see 28 Corporate Crime Reporter 44(11), November 20, 2014, print edition only.]

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