Antitrust attorneys help companies navigate competition issues created by organic growth or acquisition under national and international laws and regulations. Antitrust attorneys straddle the line between litigation and corporate attorneys. They may advise about possible antitrust regulatory issues in an acquisition or other transaction and also represent companies in litigation, especially against the Department of Justice, Federal Trade Commission, or similar foreign government agencies. The stakes in antitrust cases can be very high “bet the company” litigation and involve complicated, sophisticated issues that can turn on minute details. Antitrust lawyers tend to be smart, methodical, and cerebral. Antitrust practitioners work across industries, and each engagement requires the attorneys to understand the products or services at issue, how they are made, how they are sold, how firms compete, and how they collaborate. It is common for antitrust attorneys in the U.S. to spend at least part of their careers working for the Department of Justice or FTC.
In our guide, Practice Perspectives: Vault’s Guide to Legal Practice Areas, attorneys from law firms with top-ranked Antitrust practices share insights about their practice, including what types of cases they work on and what kind of training they recommend to excel at their field of law. Keep reading for their insights!
What types of cases/deals do you work on?
Daniel P. Culley, Partner—Cleary: Antitrust can come into play in front of government agencies or courts. Unlike many other firms, at Cleary Gottlieb we don’t have separate teams of “antitrust lawyers” and “litigators”—all of our antitrust lawyers are litigators. We are always thinking about building a record to defend our clients in court—even when we are in front of government agencies, we have to be ready to challenge their decisions if they are not in our client’s favor—and that makes us more effective advocates. We also get a huge diversity of experiences, both in the range of industries involved and the type of matter.
A big part of my practice involves appearing before government agencies. Essentially, we’re persuading the government not to sue our clients and, if the government does, defending them in court. These investigations most frequently involve mergers, convincing the government that a proposed transaction
won’t lead to higher prices, lower quality, or lower output. I have recently been involved in securing antitrust approval for a variety of deals, such as LVMH’s acquisition of Tiffany & Co. and its acquisition of a 50% stake in Mr. Shawn C. Carter’s Ace of Spades Holdings, owner of champagne brand Armand de Brignac; Arcelor Mittal in its sale of ArcelorMittal USA to Cleveland-Cliffs, Inc.; and clearance from the DOJ’s Antitrust Division for Veolia’s acquisition of Suez S.A. I was involved in securing merger clearance in T-Mobile’s merger with Sprint for a combined enterprise value of approximately $146 billion. My role involved leading economic and engineering advocacy of the transaction before both the DOJ and FCC, leading numerous presentations to those agencies, and preparing economic and engineering witnesses to do the same. In parallel to merger clearance, we defended T-Mobile in a lawsuit brought by 17 Attorney Generals, the highest-profile merger challenge ever brought by state AGs, culminating in a two-week trial.
I also handle civil litigation with private parties. Over the past few years, I have been involved in sprawling litigations, such as a price-fixing case brought by class-action plaintiffs against our client DHL Global Forwarding, as well as in the defense of Goldman Sachs in a class action brought against numerous foreign exchange dealers alleging antitrust conspiracies.
Finally, my practice also encompasses criminal investigations. Certain “hard core” antitrust violations, such as price fixing, are also prosecuted criminally, punishable by up to 10 years in prison. These cases are similar to other white-collar criminal investigations: we negotiate with the government to secure leniency, a plea agreement, or ultimately head to trial. Most recently, I have been defending a technology firm in connection with a wage-fixing and no-poach cartel investigation.
Sonia Pfaffenroth, Partner—Arnold & Porter: While some antitrust attorneys may focus primarily on certain industries or certain types of matters, I practice across areas—merger investigations, cartel investigations, internal investigations and compliance counseling—with a particular focus on private antitrust litigation. I have defended clients in government investigations and civil litigation relating to allegations of price-fixing and bid rigging. I have represented companies in private civil litigation involving claims of monopolization and exclusive dealing. I have advised clients in merger investigations, and I have defended clients in litigation resulting from acquisitions. Although I have been an antitrust practitioner for many years, I have been fortunate to maintain a varied practice throughout.
Julie McEvoy, Partner—Jones Day: At any given time, I have a mix of government investigations and private litigation on my plate. The most complex cases, such as those involving the intersection of antitrust, intellectual property, and regulatory law, are often the most fun. Though these cases are complicated, they also present three different ways to view an issue—and therefore three different ways to win.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Daniel P. Culley: I recommend taking Antitrust Law, learning as much economics as possible, and getting involved in a clinic or trial class. We aren’t economists working with data ourselves, but we do work closely with economic experts and need to be able to intuit and explain their work, and to frame the story coming out of the businesses’ documents and witnesses to fit in that framework. That doesn’t mean you need a background in economics to be successful, but it does give you a head start. Clinics and trial courses are useful because there is really no substitute for working through the nuts and bolts of a litigation matter. Even though the part of our practice in front of government agencies isn’t quite as formal, the basic skills are the same.
Sonia Pfaffenroth: For those still in school—take an antitrust class or classes in economics. It can help you decide if antitrust is an area that really interests you, and it is a fascinating subject to explore even if it does not end up being your area of primary practice. In terms of skills, particularly as a junior attorney, I encourage associates not to specialize too early on. Focus on developing experience in litigation, internal investigations and deal work. Work on branching out across areas of substantive expertise and work to develop “niche” expertise that you can bring to bear across clients. Having a broad experience base allows you to be nimble and pivot between assignments and clients. It also provides the opportunity to work with variety of more senior attorneys, who may develop into mentors as your career develops. And, perhaps most importantly, working on a variety of different matters can help you determine what types of work you personally find the most fulfilling.
Julie McEvoy: Beyond the basics (such as taking an antitrust class or two in law school), I would recommend taking an improvisation class. Seriously. Learning how to tell a story and being able to think on your feet—quickly—are essential skills for any lawyer. The most effective advocates have mastered both of these skills, and antitrust lawyers must call on them to simplify and explain complex economic concepts to regulators and factfinders alike.
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