The New Trend of Antitrust Cases May 8, 2018

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Presentation transcript:

The New Trend of Antitrust Cases May 8, 2018 Max Minzner Jenner & Block LLP mminzner@jenner.com

Antitrust Liability In Energy Start From First Principles….. Market Power is Pervasive in Energy Pipelines Transmission Distribution Why Aren’t Antitrust Claims Equally Pervasive?

A Set of Defensive Regimes in Energy 3 Regimes Creating Strong Antitrust Protection The State Action Doctrine States Choices are Generally Immune Federal Preemption The FPA/NGA Preempt Some State Claims Filed Rate Doctrine Courts (and Others) May Not Reexamine Filed Rates

An Eroding Defensive Wall? Erosion From Litigation? OneOk: More Limited Scope of Preemption Erosion From Technology? May Make Competition More Possible Erosion From Regulatory Change? The Rise of Markets in Energy Erosion From Legislation? Market Manipulation Under Energy Policy Act of 2005

Strategic Response to Changing Risk Investment Strategies Asset Holdings with Less Exposure Regulatory Strategies Approaches to Achieve Antitrust Protection Litigation Strategies The Last Resort