Articles Posted in Publications

Takings and KoontzIf you read The Antitrust Attorney Blog regularly, you might have noticed that I think that the governments—federal, state, and local—tend to overreach into our business, our pursuits, and our lives. And I have strongly advocated that we apply the federal antitrust laws to counter the bloating influence of governments everywhere into our markets.

You may have also noticed my interest in property and real estate. Part of that is personal—I believe that real-estate investing is a great idea. There are many advantages to it. And my wife and I are real-estate investors. Besides antitrust, my firm offers real-estate litigation (in addition to appeals, business litigation, and challenges to government conduct).

Well, these interests have collided into a massive project that I just completed with Luke A. Wake of the National Federation of Independent (NFIB) Small Business Legal Center. We finished the initial version of a law review article entitled Legislative Exactions After Koontz v. St. Johns River Management District.

Update: We are excited to announce that the Georgetown International Environmental Law Review published our article.

This isn’t the first time that Luke Wake and I have written something together. Last year, we published an antitrust article entitled The Market-Participant Exception to State-Action Immunity. Back when I was with DLA Piper, we also worked on an amicus brief together for the NFIB in the U.S. Supreme Court case of FTC v. Phoebe Putney Health System, Inc. Luke is a rising star in the legal world, so you should remember his name.

Koontz v. St. Johns River Management District

In 2013, the Supreme Court enhanced property rights in the United States when it decided Koontz. It was a sharply split decision that included an expertly written dissent by Justice Elena Kagan, who in my view is coming close to equaling Justice Antonin Scalia as the Supreme Court’s top writer.

As an aside, Justice Kagan (then Professor Kagan) was my Administrative Law professor at Harvard Law School and the wit that you see in her opinions was on full display in class. (She did, by the way, mention one day in class that Justice Scalia was her favorite Justice; I don’t think she meant that from an ideological perspective).

Koontz arose in the context of what is called the unconstitutional conditions doctrine, as applied to Takings law. If you don’t know what a Taking is, you can read this short article distinguishing eminent domain and inverse condemnation (takings).

First, some quick background. In 1987, the Supreme Court held in the case of Nollan v. California Coastal Commission that governments cannot attach conditions to permit requirements unless the condition bears a “nexus” to the impact of the proposed project. In 1994, the Supreme Court in Dolan v. City of Tigard further held that such conditions must also bear a rough proportionality to the harm from the proposed project.

The names of the plaintiffs in these cases conveniently rhyme, so people in the takings arena refer to this doctrine as the Nollan and Dolan requirements.

Here is what happened: Coy Koontz, an entrepreneur in the Orlando, Florida area, sought to develop some property that he held. Sounds reasonable enough. The property was zoned commercial and he sought a permit for its development.

Florida, however, had enacted comprehensive environmental restrictions that required a state agency to review any such applications to determine whether the proposed project will reduce wetlands. So, in this case, Mr. Koontz couldn’t develop his land unless the St. Johns River Management District blessed the project.

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The Antitrust Paradox by Robert Bork

When you are an antitrust lawyer, an exciting day each quarter is the arrival of a fresh issue of the Antitrust Law Journal. I’ve previewed these issues in the past, here and here. Once again, the Antitrust Law Journal has arrived and it looks like a great one.

This issue includes an extensive symposium entitled “Robert Bork and Antitrust Policy.” A superstar collection of authors—including Herbert Hovenkamp, Richard Epstein, William E. Kovacic, Judge Douglas H. Ginsburg and many others—discuss Bork’s contribution to antitrust law. And my fellow summer associate from Gibson Dunn & Crutcher (from more than a few years ago), Adam J. Di Vincenzo, wrote the Editor’s Note.

Outside of the antitrust world, Robert Bork is known primarily for his Senate confirmation hearings after his Supreme Court nomination. For those of you that weren’t paying attention during the 1980s, Bork arrived at the Senate hearings as an exceptionally well-qualified nominee by President Ronald Reagan to the US Supreme Court. But for ideological reasons, they rejected him, beginning the phrase and culture of “Borking” a judicial nominee that, although qualified, may not satisfy political litmus tests. Since that time, of course, judicial nominations have, unfortunately, devolved into ideological warfare.

If you were around during the 1970s, you might also remember that Robert Bork was the acting head of the Department of Justice that fired Special Prosecutor Archibald Cox during the Saturday Night Massacre, arising out of Watergate near end of the Nixon Administration.

But—whatever you think of Robert Bork politically—he is a candidate for the antitrust-law Mount Rushmore. His most famous antitrust contribution is a book called “The Antitrust Paradox: A Policy at War with Itself.” As you can tell from the title, it was written during a time of flux and uncertainty in antitrust (1978).

You can read the outstanding articles in the Antitrust Law Journal for more detail, but in a nutshell, Bork’s major contribution with this book was to help set the goals of antitrust law toward consumer welfare. This more narrow approach contrasted with common temptations to use antitrust law as social policy to, for example, protect certain businesses from large companies. Or to use antitrust law as a means to attack “bigness” for other reasons.

Bork was highly influential in persuading antitrust participants that antitrust is really only concerned with activity that harms competition, which is the premise of the antitrust injury requirement. There is, of course, great debate over what, exactly, is consumer welfare and even whether total welfare is a better goal. And his emphasis on using economics to develop antitrust doctrine is mainstream, but there is plenty of room for debate within that framework.

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As you know, I am a big fan of the Antitrust Law Journal, which is produced by the American Bar Association’s Antitrust Law Section. It is the journal where antitrust lawyering meets antitrust economics and academics. I like to hang out at this intersection.

A couple weeks ago, another issue of the Antitrust Law Journal arrived. I haven’t had a chance to read any of the articles yet—as I’ve been fortunately quite busy—but I skimmed it and it looks like a good one. Let’s review it together.

It is a double symposium issue, which is great because symposium issues can be a bummer if you don’t like the topic. This gives you twice the odds of liking at least some of the articles. The two topics are (1) Patent Assertion Entities, and (2) Politics and Antitrust.

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antitrust blizzardJust like the Antitrust Law Journal, I am a big fan of Antitrust Magazine, also published by the American Bar Association. Whereas the Antitrust Law Journal is celebrated for its depth and economic and academic focus, Antitrust Magazine offers great practical discussion of cutting-edge issues targeted to antitrust lawyers like myself.

The magazine is perfect for long plane flights—like the one I had yesterday from New York. I pass up the Wi-Fi option on flights to read my favorite medium, actual paper. It is refreshing to the point that I actually look forward to this time to sit and read without electronic interruption.

Of course, I had my almost four-year-old son next to me, so my interruptions came in a different form. Minus an occasional frustrated outburst borne from too much traveling, he behaved quite well and fell asleep in the final twenty minutes of the five-hour flight to Sunny San Diego. We enjoyed New York, but it is always great to be home.

The theme of the Spring 2014 Antitrust Magazine is “Trying a Cartel Case.” Success in trial, of course, arrives only with great preparation well before trial and the articles in the magazine effectively made that point.

Trial is an important skill, but it is merely the tip of the larger mountain that you create from the very beginning of a case. Everything you do should advance toward summary judgment and trial and seemingly insignificant or minor decisions early in a case could have much larger ramifications later.

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UmpireA few years ago, now-Chief Justice then-Nominee John Roberts invoked an umpire analogy during his confirmation hearings, explaining that “My job is to call balls and strikes and not to pitch or bat.” I love baseball, so I can appreciate any description that marries law and baseball.

Without getting into the substance of Chief Justice Robert’s point, let’s examine that analogy in a slightly different context:

Let’s say you are in the midst of a serious competitive ballgame. You reach the seventh inning, the score is tied 3 to 3 (good pitching, lots of great defensive plays, maybe a solo home run, and a couple manufactured runs for your team—something for everyone). The umpires have called a good game, but they haven’t been perfect.

You are the home team, so you go out to pitch in the top of the seventh inning. But instead of a batter coming up for the other team, the home plate umpire takes off his mask, grabs a bat and goes up to bat. Well, this is unexpected. Suddenly you are playing against the umpire?

Okay, you are a good pitcher, you can handle it. It is odd, but life is about making adjustments. You wait for a new umpire, but the spot behind the catcher remains vacant. What is going on? You call a time-out and ask.

After hearing the answer, you go back to the mound thinking “this is crazy.” The umpire is, indeed, now competing against you. But there isn’t a new umpire. The original umpire is still the umpire. He will still make the calls, while playing the game.

Pitch one: A fastball right down the middle, an obvious strike. No swing. “Ball One,” you hear from behind the batter’s helmet. That doesn’t seem fair. But, you’ve seen worse calls, so you ready pitch two.

Pitch two: A change-up over the plate. “Ball two.” Now, you are livid. Two strikes, but your hitter is calling the game, so you are behind in the count 2-0. This is the point where you start to ready your bean-ball pitch, but you smartly realize that if you throw at the hitter, the umpire, who is also the hitter, will probably throw you out of the game.

Pitch three: Another fast-ball down the middle. You know he won’t swing. “Ball three.” The umpire-hitter then takes first base. “That was only ball three,” you yell at the foolish ump, who can’t count. You were initially angry, but you see that he made a fool of himself for not being able to count, so your anger subsides a little. You chuckle, while getting ready to throw another pitch.

But then the umpire explains that not only does he still make the calls, but he can also change the rules during the game. So, at least for now, three balls not four balls is a walk. At this point, you let out a string of expletives, articulating that it isn’t really competition if the other side doesn’t have to follow the rules and can change them at will.

So, that was half-way amusing, but what’s the point?

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Cable MergerAntitrust attorneys do everything that a lawyer can do: They litigate in both courts and agencies; they counsel clients; and they participate in mergers & acquisitions. If you are a young lawyer or law student that can’t decide what type of legal activity you like best, try antitrust and competition law—you can do it all.

In the mergers & acquisitions category, antitrust’s most recent obsession is the deal between Comcast Corp. and Time Warner Cable., Inc.

Competition Policy International (CPI) was kind enough to ask me to write a few words expressing my thoughts, and you can read them here. You can view the other Comcast-TWC articles from the CPI Antitrust Chronicle here.

I won’t go into a lot of detail because you can read the actual article (which is less than five pages), but I thought I’d provide a little introduction into my thinking.

Usually in these circumstances, you will see commentary on one side stating that, of course, the merger should be approved, maybe even “as is.” On the other side, you will read analyses that the world will fall apart if the merger is not blocked forever.

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I was excited to find a brand-new crisp copy of the Antitrust Law Journal at my San Diego office today. That may seem like an odd statement, but I am admittedly a bit of a law nerd, particularly when it comes to antitrust and competition issues.

Many lawyers today have, unfortunately, lost the enthusiasm for law that they once had in law school or early in their careers. I have not. I love legal ideas and arguments, and the deeper I can explore a subject, the better.

What is great about antitrust and competition law is that unlike many areas of practice, it is well-connected to the academic and economic world. Indeed, I believe that to truly excel in this area, an attorney must follow and even participate in the exchange of ideas that might seem academic. The ideas in the Antitrust Law Journal, and antitrust articles in university law journals, for example, quickly infiltrate their way into agency practice and court decisions.

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Welcome. My name is Jarod Bona and this is my new antitrust blog—The Antitrust Attorney Blog. My antitrust and competition practice is global, but I am fortunate to live in Sunny San Diego with my wonderful wife and son. If you’ve never been to San Diego, I highly recommend it.

I am starting this blog to participate in the “market-place of ideas,” primarily on antitrust and competition issues. But I will probably dabble in other areas too, as—like most antitrust lawyers—I do more than just antitrust. Indeed, after my clerkship, I started my career as an appellate attorney in Washington, DC, and I continue to litigate non-antitrust cases in both appellate and trial courts.

I graduated from Harvard Law School in 2001, then clerked in Minneapolis for Judge James B. Loken of the United States Court of Appeals for the Eighth Circuit. I then joined the Appellate and Constitutional Law Group of Gibson Dunn in Washington, DC before moving to California and eventually DLA Piper. I also spent several years in DLA Piper’s Minneapolis office. Update: I now work for my own law firm–Bona Law PC.

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