THE EXCHANGE. American Bar Association Spring 2012 Section of Antitrust Law

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1 DO ADVERTISING INJURY INSURANCE POLICIES COVER ANTITRUST ACTIONS? BY DAVID M. SIMON & FLORENCE A. CRISP 1 Edwards Wildman Palmer LLP Antitrust cases are often costly to defend and present the possibility of potentially crippling damages. Companies accused of antitrust violations accordingly have every incentive to vigorously pursue insurance coverage for their defense costs and any resulting liability. Insurers have every incentive to strictly construe coverage provisions. Firms alleged to have violated antitrust laws have looked to a variety of insurance policies, including advertising injury policies, in the hope of finding coverage. The resulting disputes have been the subject of a number of court decisions, including two recent circuit court decisions: Rose Acre Farms v. Columbia Casualty Co. 2 and Trailer Bridge, Inc. v. Ill. Nat. Ins. Co. 3 Advertising injury insurance policies generally cover injuries arising out of the insured s defamatory or disparaging statements or misappropriation of another s advertising idea in the insured s advertising or commercial speech. Such injuries, on their face, seem far afield from the harm resulting from a price-fixing cartel. As Judge Posner of the Court of Appeals for the Seventh Circuit recently observed: Antitrust liability... is a major business risk... It is hardly likely that parties to an insurance contract would 1 Mr. Simon and Ms. Crisp are partners in the Chicago, IL and Providence, RI offices of Edwards Wildman Palmer LLP F.3d 765 (7th Cir. 2011) F.3d 1135 (11th Cir. 2011). seek to cover such a serious risk indirectly through an advertising injury provision aimed at misappropriation and other intellectual-property torts. 4 Some antitrust actions, however, involve allegations of unlawful conduct carried out through published price lists, advertisements incorporating below-cost prices, and other advertising or commercial speech. Given the high stakes for insureds and insurers alike, it is not surprising that numerous courts have been asked to decide whether such allegations trigger coverage under advertising injury insurance policies. Three decades of litigation have produced two lines of decisions. Decisions in one line generally have held that advertising injury policies provide coverage for antitrust actions that include allegations that insureds made false, defamatory, or disparaging statements in advertising or other commercial speech. Decisions in the other line including Rose Acre Farms and Trailer Bridge generally have held that advertising injury policies do not provide coverage for antitrust actions with allegations that insureds fixed prices or committed other antitrust violations only incidentally related to advertising or other commercial speech. Advertising injury insurance policies generally cover injuries... far afield from the harm resulting from a pricefixing cartel. The results of these two lines of decisions differ, but their basis generally has been the same namely, coverage turns on the policy s definition of a covered injury and whether the antitrust action included allegations of an injury caused by the insured s ad- 4Rose Acre Farms, 662 F.3d at 768. vertising or other commercial speech, rather than an injury solely caused by price-fixing or similar antitrust violations. COVERAGE TURNS ON THE POLICY S DEFINITION OF A COVERED INJURY AND THE CONTENT OF THE ALLEGATIONS, NOT ON THE NAME OF THE ACTION. An advertising injury policy typically provides coverage for an action that seeks damages for injuries arising out of, inter alia, the insured s defamatory or disparaging statements or misappropriation of another s advertising idea in the insured s advertising. Policies that define advertising injury separately from personal injury also generally require that the defamatory or disparaging statement have been made in the course of the insured s advertising. 5 Policies that instead define personal and advertising injury typically do not impose this additional requirement. 6 Whether a policy will provide coverage for an action that asserts antitrust claims against an insured generally will be determined by examining the policy s definition of a covered injury and analyzing whether the specific allegations against the insured allege an injury within that definition. It makes no difference that for strategic adversarial reasons this cause of action was labeled antitrust ; it is not the form or title of a cause of action that determines the carrier s duty to defend, but the potential liability suggested by the facts alleged or otherwise available to the insurer. 7 5See, e.g., Travelers Prop. Cas. of Am. v. Hillerich & Bradsby Co., Inc., 598 F.3d 257, 263 (6th Cir. 2010). 6See, e.g., Trailer Bridge, Inc., 657 F.3d at CNA Cas. of Cal. v. Seaboard Sur. Co., 176 Cal. App. 3d 598, 611 (1986). 9

2 COVERAGE FOR ANTITRUST ACTIONS THAT ALLEGE FALSE, DEFAMATORY, OR DISPARAGING STATEMENTS IN ADVERTISING OR OTHER COMMERCIAL SPEECH. In some actions that have asserted antitrust claims, advertising injury policies have been held to provide coverage based on allegations included in the antitrust or related tort claims that insureds had made false, defamatory, or disparaging statements in advertising or other commercial speech. 8 8See, e.g., Liberty Life Ins. Co. v. Commercial Union Ins. Co., 857 F.2d 945, (4th Cir. 1988) (applying South Carolina law, reversed and remanded a grant of summary judgment in favor of insurers because the district court which had decided that policies did not provide coverage for various actions (including some that had asserted antitrust claims) that alleged that the insured had attempted to destroy a competitor s business through, inter alia, unfair competition and disparagement had not addressed whether the alleged acts of unfair competition and disparagement had arisen in connection with the insured s advertising activities); CNA Casualty of California, 176 Cal. App. 3d at 611 (under California law, insurers had a duty to defend an antitrust action that included allegations that the insured had made misrepresentations to eliminate competition, had misappropriated and misused property interests and trade secrets, and had misrepresented competitors business, property and rights to their customers in an effort to disrupt their business relationships, because the allegations were arguably within the policies coverage for libel, slander, defamation, piracy, unfair competition, or idea misappropriation); California Shoppers, Inc. v. Royal Globe Ins. Co., 175 Cal. App. 3d 1, 16, (1985) (affirmed a decision that recognized that, under California law, a policy provided coverage in an Unfair Practices Act case based on the insured s alleged sale of below-cost advertising ); Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663 (1981) (under New York law, a policy provided coverage for an antitrust action because the action was based on allegations of commercial disparagement in publicity by the insured). But see Blue and Gold Fleet, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL (Cal. 10 NO COVERAGE FOR ANTITRUST ACTIONS THAT ALLEGE PRICE- FIXING OR THE COMMISSION OF OTHER ANTITRUST VIOLATIONS ONLY INCIDENTALLY RELATED TO ADVERTISING OR OTHER COMMERCIAL SPEECH. Advertising injury policies generally have been held not to cover antitrust actions with allegations that insureds had fixed prices or committed other antitrust violations only incidentally related to advertising or a variety of other forms of commercial speech. Cases addressing these issues have involved a variety of challenged practices. App. 2006) (declined to follow CNA Casualty of California and held that a policy did not provide coverage for an antitrust action in which a competitor alleged that the insured had made defamatory statements about the competitor s business and services). For cases in which the allegations were included in tort claims see, e.g., Travelers Prop. Cas. of Am., 598 F.3d 257 (under Kentucky law, a policy provided coverage for an action in which antitrust claims had been dismissed, but that also had asserted a tortious interference with prospective economic advantage claim, because the claim alleged that the insured had conspired with another defendant that had disparaged the plaintiff s product); Curtis- Universal, Inc. v. Sheboygan Emergency Med. Servs., 43 F.3d 1119, 1124 (7th Cir. 1994) (under Wisconsin law, a policy provided coverage for an antitrust action because, in addition to an antitrust claim, the action included a claim for tortious interference with contractual relations that alleged either defamation or product disparagement); Tire Kingdom, Inc. v. First S. Ins. Co., 573 So. 2d 885, 887 (Fla. Dist. Ct. App. 1990) (under Florida law, a policy provided coverage for an antitrust action because, in addition to antitrust claims, the action included, inter alia, claims for defamation); Tews Funeral Home v. Ohio Cas. Ins. Co., 832 F.2d 1037, 1040, 1042, 1044 (7th Cir. 1987) (under Illinois law, a policy provided coverage for an antitrust action because, in addition to antitrust claims, the action included, inter alia, claims for defamation). [C]overage turns on the policy s definition of a covered injury and whether the antitrust action included allegations of an injury caused by the insured s advertising or other commercial speech Trade Association Certification Rose Acre Farms v. Columbia Casualty Co. 9 held that, under Indiana law, a policy did not cover an antitrust action that alleged price fixing, notwithstanding allegations that the price-fixing conspiracy involved the use of a trade association certification. The policy did not provide coverage even if, as the insured asserted, the use of the certification constituted advertising and the action accordingly included allegations relating to the use of this advertising as part of the conspiracy. 10 The policy, the court explained, covered the use of another s advertising idea in your advertisement, and thus was limited to liability to the other whose advertising idea is used by the insured without the other s permission. 11 The insured s use of the purported advertising in this case did not involve misappropriation, and therefore provided no basis for coverage. 12 The court further explained that [a]ntitrust liability, moreover, is a major business risk, especially for one of the largest companies in a major market. It is hardly likely that parties to an insurance contract would seek to cover such a serious risk indirectly through an advertising injury provision aimed at misappropriation and other intellectual-property torts F.3d 765 (7 th Cir. 2011). 10Id. at Id. at 766, Id. at Id. at 768.

3 False Public Statements Trailer Bridge, Inc. v. Illinois National Insurance Co. 14 held that, under Florida law, a policy did not cover an antitrust action that alleged price fixing, notwithstanding allegations that the insured had made false public statements justifying price increases in an effort to conceal an alleged pricefixing conspiracy. The insured asserted that its public statements involved the use of an alleged co-conspirator s idea and thus fit within the policy s definition of the use of another s advertising idea in your advertisement. 15 Rejecting this assertion, the court stated: No facts were alleged in the underlying complaint on the basis of which the underlying plaintiffs might have recovered damages because of advertising injury ; and the underlying plaintiffs could not have recovered such damages because the allegedly misappropriated advertising idea was not that of the underlying plaintiffs, but rather was alleged to have been the advertising idea of other parties altogether. 16 The court found, moreover, that certain statements by Trailer Bridge s Chief Executive Officer concerning general market conditions that the underlying plaintiffs asserted were attempts to conceal the alleged price fixing conspiracy were not advertising F.3d 1135 (11 th Cir. 2011). 15Id. at Id. at 1139; see also Del Monte Fresh Produce N.A., Inc. v. Transp. Ins. Co., 500 F.3d 640, 646 (7th Cir. 2007) (under Illinois law, a policy did not provide coverage for an antitrust action that alleged that the insured had falsely labeled its product as having unique characteristics because the conduct at issue in the class actions is not [the insured s] advertising; it is [the insured s] fraudulent conduct to undermine its competitors advertising ) F.3d at False Response to a Non-Party Customer Inquiry Champion Laboratories v. American Home Assurance Co. 18 held that, under Illinois law, a policy did not cover an antitrust action in which automotive filter customers alleged that the insured had fixed filter prices, notwithstanding an allegation that the insured had falsely represented a competitor s costs as its own. It was not alleged that the insured used a competitor s advertising ideas to sell its filters. The alleged damages did not arise out of the insured s use of a competitor s advertising. The false representation, moreover, was not an advertisement within the meaning of the policy because the communication was directed at one customer not at the general public or a specific market segment and was done to respond to the specific customer s concern about price increases not to attract customers or supporters. 19 Advertisements That Disparaged Non-Parties Microsoft Corp. v. Zurich American Insurance Co. 20 held that, under Washington law, a policy did not provide coverage for Microsoft customers actions alleging unfair, anticompetitive, and monopolistic practices because, inter alia, the customers were clearly not the victims of disparaging Microsoft advertisements WL (N.D. Ill. 2010). 19Id. at *5-*6; see also Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400 (Miss. 1997) (under Mississippi law, a policy did not provide coverage for an antitrust action that alleged price-fixing, notwithstanding allegations that the insured had sent one or more letters to customers explaining its higher prices, because the reference in the action to the letters did not allege advertising. Moreover, there was no causal connection between the letters and the alleged injury resulting from the higher prices) WL at *1, *7 (W.D. Wash. 2001). Narrow Definition of Unfair Competition Open Software Foundation v. United States Fidelity & Guaranty Co. 21 held that, under Massachusetts law, a policy did not cover an antitrust action that alleged that the insured participated in a buyers cartel, notwithstanding that the claims included allegations of unfair competition, because unfair competition, as used in the policy, meant palming off rather than any illegal or unfair method of competition. [S]tatements... that the... plaintiffs asserted were attempts to conceal the alleged price fixing conspiracy were not advertising. Non-Public Disparagement of Non-Party Competitor QSP, Inc. v. The Aetna Casualty and Surety Co. 22 held that, under Connecticut and New York law, a policy did not cover an antitrust action against insureds that allegedly monopolized school and youth group magazine fund-raising by disparaging competitors. Customers (rather than competitors) asserted the antitrust claims. The alleged disparagement neither was directed at the customers, nor took place through advertising. With no public dissemination of disparaging materials, customers were not disparaged, so there was no causal connection between advertising and the customers alleged injuries. Finally, the customers alleged injuries arose out of and resulted from the alleged monopolization, rather than out of or from the alleged disparagement. 23 The common law unfair competition F.3d 11, 13, (1st Cir. 2002) Conn. 343 (2001). 23Id. at , ,

4 claims in the antitrust action similarly were held not to provide a basis for coverage. 24 Tariffs USX Corp. v. Adriatic Insurance Co. 25 held that, under Pennsylvania law, a policy did not provide coverage for an antitrust action based on monopolization, notwithstanding that the insured publicly announced its rates through tariffs that it was required to file. The tariffs were not a form of advertising and the injuries allegedly caused by the monopolization were not caused by the tariffs. Labeling Westowne Shoes, Inc. v. City Insurance Co. 26 held that, under Wisconsin law, a policy did not cover an antitrust action that included an unfair competition claim based on the insured s alleged sale of improperly labeled products. The labeling of products did not constitute advertising activity, and the alleged damages resulted from the sale, not their labelling [sic]. Advertising of Allegedly Illegally Fixed Prices Sentry Insurance A Mutual Co. v. Flom s Corp. 27 held that, under Michigan law, a policy did not cover an antitrust action that alleged that the insureds fixed prices, notwithstanding that the insureds advertised the allegedly fixed prices. There were no allegations that the injury from defendants price-fixing activities resulted from any advertising by the insureds. Association Rule International Insurance Co. v. Florists Mutual Insurance Co. 28 held that, 12 24Id. at F. Supp. 2d 593 (W.D. Pa. 2000) WL at *4-*5 (7th Cir. 1996) F. Supp. 187, (E.D. Mich. 1993) Ill. App. 3d 428 (1990). under Illinois law, a policy did not provide coverage for an antitrust action against an insured florists association. The action was based on an association rule requiring that customer orders resulting from the association s advertisements be processed only through the association s clearinghouse and not through a competitor s clearinghouse. The court stated that an in-house rule prescribing conditions for processing floral arrangements that have been advertised in a particular way is not related to advertising activity such that an injury attributable to the rule can be considered an advertising injury. The fact that the purpose of FTD s Rule 18(b) was to protect its advertising investment is of no consequence when the injury is alleged to have been caused, not by the advertising, but by the rule. [W]e do not believe that the allegations of the underlying complaint support a conclusion that there is a causal connection between FTD advertising activity and the injury alleged in the Federal suit. 29 Price Posting Lazzara Oil Co. v. Columbia Casualty Co. 30 held that, under Florida law, policies did not provide coverage for an antitrust action in which it was alleged that the insured attempted to fix prices by, inter alia, requiring customers to post their prices, because the price posting by customers was of no consequence with regard to the insurance policies at issue that provide for coverage in the event that [the insureds ] advertising causes some type of injury. No Advertising or False, Defamatory, or Disparaging Statement Allegations Central Dakota Radiologists, P.C. v. Continental Casualty Co. 31 held that, 29Id. at F. Supp. 777, 780 (M.D. Fla. 1988) F. Supp. 323 (D.N.D. 1991). under North Dakota law, a policy did not cover an antitrust action that alleged monopolization by the insured but made no reference to the use of advertising material. Other decisions have held that policies did not cover antitrust actions because there were no allegations of false, defamatory, or disparaging statements. 32 EXCLUSIONS Policy exclusions have been held to bar coverage of antitrust actions that advertising injury policies otherwise would have covered. Violation of a Penal Statute Exclusion Several decisions have held that policies do not cover antitrust actions because the policy excluded coverage for actions arising out of a violation of a penal statute. 33 A recent example of 32For two Ohio law decisions, see Motorists Mutual Insurance Co. v. National Dairy Herd Improvement Ass n, 141 Ohio App. 3d 269 (2001) (a policy did not cover an antitrust action based on the insured s exclusion of businesses from an association that resulted in the businesses being denied a certification material to their sales), and Westfield Ins. Co. v. Trent, 2010 WL (Ohio Ct. App. 2010) (similarly holding that the policy did not provide coverage for an antitrust action based on an alleged group boycott). For an Indiana law decision, see Westfield Insurance Co. v. Gil Behling & So, 2010 WL (N.D. Ind. 2010) (a policy did not cover an antitrust action that alleged that the insured conspired to restrain or restrict bidding on a public construction project). 33See, e.g., American Guarantee and Liability Insurance Co. v. Shel-Ray Underwriters, Inc., 844 F. Supp. 325, 331 n.2 (S.D. Tex. 1993) (under Texas law, a policy did not provide coverage for an antitrust action that alleged that the insured had made knowingly false representations because, inter alia, the policy excluded coverage for actions arising out of a violation of a penal statute. ); Cubic Corp. v. Insurance Co. of North America, 33 F.3d 34, 36 (9th Cir. 1994) (under California law, the policies did not cover an antitrust action that alleged that the insured had committed criminal bribery because the policies exclude[d] coverage

5 such a decision is Rose Acre Farms v. Columbia Casualty Co., which held that, under Indiana law, a policy did not provide coverage for an antitrust action that alleged a conspiracy to fix prices because, inter alia, the policy excluded coverage for actions that arose out of a criminal act. 34 Not all decisions, however, have concluded that the violation of a penal statute exception bars coverage for an antitrust action. Curtis-Universal, Inc., 35 for example, held that, under Wisconsin law, the violation of a penal statute exclusion did not preclude coverage for a civil antitrust action, notwithstanding that it alleged, inter alia, pricefixing. (Judge Posner, interestingly, authored both Rose Acre Farms and Curtis-Universal, Inc.) Violation of Any Antitrust Law Exclusion Reagan National Advertising v. Hartford Casualty Insurance Co. 36 held that, under Texas and Utah law, a policy that stated that it did not apply to personal and advertising injury arising out of a violation of any antitrust law did not provide coverage for an antitrust action, notwithstanding that the action also included common law claims, because all of the claims were based on allegations of anti-competitive actions and monopolistic conduct. 37 for actions taken in violation of a penal statute ; the policies coverage for advertising injury arising out of unfair competition did not include unfair competition based on criminal bribery; [i]t would be absurd to suppose that advertising includes promotion of the product by bribery ; and it would have violated California public policy to insure against liability arising from the insured s criminal conduct) F.3d at F.3d at F. App x. 608 (10th Cir. 2006). 37Id. at 611. Knowledge of Falsity Exclusion American Guarantee and Liability Insurance Co. held that, under Texas law, a policy did not cover an antitrust action that alleged that the insured had made knowingly false representations because, inter alia, the policy excluded coverage for actions arising out of a statement made with knowledge of its falsity. 38 Policy exclusions have been held to bar coverage of antitrust actions that... otherwise would have [been] covered. Publishing Business Exclusion Travelers Insurance Co. v. Lesher 39 held that, under California law, a policy did not provide coverage for an antitrust action against a newspaper that allegedly used improper discount advertising rates to push a competitor out of business because the policy excluded coverage for insureds in the publishing business. 40 AMBIGUITY COULD OPEN THE DOOR. A finding that an advertising injury policy provision is ambiguous may permit an insured to obtain coverage for an antitrust action that the policy otherwise would be deemed not to F. Supp. at 331; see also Del Monte Fresh Produce N.A., Inc., 500 F.3d at (under Illinois law, a policy did not provide coverage for an antitrust action that alleged that the insured had sent knowingly false letters to its competitors regarding its patent rights because the policy excluded coverage for actions arising out of a statement published by the insured with knowledge of its falsity ) Cal. App. 3d 169 (1987). 40Id. at cover. In Knoll Pharmaceutical Co. v. Automobile Insurance Co. of Hartford, 41 an insured pharmaceutical company sought coverage for an antitrust action by its customers. The action alleged that the insured had caused them not to purchase a competitor s drug and to pay more for the insured s drug by, inter alia, disparaging a competitor s drug through alleged false representations in advertisements that there were no equivalents to the insured s drug. The district court held that, under Illinois law, the policy s definition of advertising injury as arising out of disparaging advertising was ambiguous as to whether it was limited to disparagement of the customers who asserted the antitrust action or whether it also encompassed disparagement of competitors. 42 Interpreting this ambiguity in favor of the insured and relying on a finding in the underlying antitrust action that there was a sufficient causal connection between the allegedly disparaging advertising and the alleged damages suffered by the customers, the district court held that the policy provided coverage for the antitrust action. 43 In BASF AG v. Great American Assurance Co., 44 however, the appeals court that would have considered an appeal in Knoll Pharmaceutical Co. reached a different conclusion. Under Illinois law, for the policies to provide coverage, the customers antitrust action would have had to include allegations that could tacitly sketch a claim that is within the scope of the policy, i.e., a claim that the insured had slandered, libeled, defamed or disparaged the customer-plaintiffs or their products. 45 The action s allegations that the insured had disparaged a competitor s drug thus did not sup F. Supp. 2d 1026 (N.D. Ill. 2001). 42Id. at Id. at F.3d 813 (7th Cir. 2008). 45Id. at

6 port coverage. 46 Permitting these allegations to provide a basis for coverage would mean that the breadth of insurance coverage could be extended indefinitely. 47 The customerplaintiffs, moreover, pursued only economic damages for the injuries they suffered from the artificially high price for [the insured s drug], which stemmed from monopolization and fraudulent concealment of [the insured] and others this is a paradigmatic antitrust injury. If we allow [the insured] to shoehorn these collateral claims into the policies coverage of slander, libel, or disparagement, then an insured could easily transform a run-of-the-mill antitrust or securities action into a suit seeking redress of libel, slander, or disparagement. 48 The appeals court accordingly rejected the district court s reliance on Knoll for the proposition that the policies were ambiguous. In reversing the district court s grant of summary judgment for the insured, the appeals court noted that the district court relied almost exclusively on the decision in Knoll. 49 We are not certain that the complaints [at issue in Knoll] alleged claims within the scope of the policies [at issue in Knoll] either. But the appeal of that case settled before we had the opportunity to adjudicate its merits. Therefore, the district court s reliance on the Knoll decision was understandable, if regrettable. 50 While the holding in Knoll thus has been undermined by the appellate ruling in BASF AG, Knoll nevertheless highlights the risks inherent in a finding that an advertising injury policy provision is ambiguous. 46Id. at Id. at Id. 49Id. at Id. CONCLUSION Whether an advertising injury policy covers an antitrust action generally turns on the policy s definition of a covered injury and the analysis of the allegations against the insured, without regard for the names or titles of the action asserted. Policies accordingly have been held to cover antitrust actions with allegations that insureds made false, defamatory, or disparaging statements in advertising or other commercial speech but generally not to cover actions with allegations of price-fixing or other antitrust violations only incidentally related to advertising or other commercial speech. If the policy is found to be ambiguous, however, the scope of coverage may be significantly broader. SPRING MEETING PROGRAMS (Continued from page 8) BEHAVIORAL ECONOMICS IN ANTITRUST AND CONSUMER PROTECTION LAW Wednesday, Mar. 28, 3:45-5:15 Behavioral economics, which examines how individual and market behavior are affected by deviations from the rationality assumptions underlying conventional economics, has generated significant attention from both academics and policy makers. A panel of distinguished scholars will discuss how behavioral economics impacts antirust and consumer protection law and policy. Session Chair: Bruce H. Kobayashi, George Mason University Law School Moderator: Steve C. Salop, Georgetown University Law Center Speakers: William E. Kovacic, George Washington University Law School Janis K. Pappalardo, Assistant Director, Consumer Protection, Bureau of Economics, FTC Maurice E. Stucke, University of Tennessee College of Law Avishalom Tor, University of Notre Dame Law School * * * ANTITRUST COMPLIANCE IN THE FINANCIAL SERVICES INDUSTRY Thursday, Mar. 29, 8:15-9:45 The Muni Bond and Club Bidding investigations demonstrate the importance of compliance training to financial services companies with employees who regularly and legitimately interact with rivals. Run as a mockcompliance session, this program explores how best to train employees on traditional antitrust violations, including privilege issues that arise when doing so, as well as more subtle compliance questions involving collaborations with rivals. Session Chair: Renata B. Hesse, Senior Counsel to the Chairman for Transactions, Federal Trade Commission Moderator: Scott A. Scheele, Assistant Chief, Networks and Technology Enforcement Section, U.S. Department of Justice, Antitrust Division Speakers: Traci Coughlain, Vice President, Sales and Business Strategy, Click 4 Compliance John M. Nannes, Skadden, Arps, Slate, Meagher & Flom LLP Nicola Northway, Managing Director, Group Competition Law, Barclays Bank PLC Mark Shelton, General Counsel, Americas, and Global Head of Investigations, UBS AG 14