The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Jack Pace is a partner in White & Case’s New York office and head of the firm’s Competition Section for the Americas. He represents clients in various industries in complex litigation and investigations, most of which arise under the antitrust or unfair competition laws. He also has a busy pro bono practice focusing on healthcare, education, and criminal appeals. He obtained both his law degree and undergraduate degree (major in Political Science, minor in Classical Civilizations) from Fordham University.
Gina Chiappetta is an associate in White & Case's New York office and a member of the firm's Global Antitrust/Competition Group. Her practice focuses on counseling clients in various industries and litigating high-risk class-action matters involving antitrust and intellectual property. Gina also maintains an active pro bono practice focused on seeking post-conviction relief for wrongfully convicted individuals and individuals who were convicted in violation of their constitutional rights.
Describe your practice area and what it entails.
Gina: White & Case’s antitrust practice works on a full range of competition issues in virtually all jurisdictions. The range of conduct that may implicate the antitrust laws is broad. In fact, some government officials seem to believe that antitrust is the law of everything. As a result, our antitrust lawyers represent clients in a variety of matters including cross-border mergers and acquisitions, joint ventures, licensing and distribution arrangements, criminal investigations, civil investigations and enforcement actions, private class-action litigation, and routine business strategy decisions.
The practice is not black and white, and antitrust law and enforcement are influenced by a number of factors, including the “school of thought” favored by political administrations and the judges who decide cases. It is critical for attorneys to stay up to date on the ever-changing legal landscape. Moreover, because antitrust statutes are so broad (and, frankly, vague), successfully litigating a case or providing sound advice to clients will often require attorneys to become experts in their clients' industries, unique business strategies, competitors, and the specific facts at issue in a case.
What types of clients do you represent? (Please feel free to list actual clients.)
Jack: White & Case antitrust clients tend to have a few things in common: their predicament is complicated; they see that we live in a global market and want a law firm capable of performing in that market; and, if there’s trouble, they probably want to fight instead of surrender. Those traits cut across industry lines, so I’ve been lucky to represent companies and individuals in the life sciences, medical devices, technology, fintech, private equity, traditional financial services, agriculture, chemicals, insurance, cable, and even potash industries. And currently I’m representing a few clients involved in the startup stages of these industries. Finally, the firm is very aware of the larger significance and obligation of the lawyer in society. As a result, we represent a large number of clients pro bono publico in matters consistent with our values.
What types of cases/deals do you work on? (Please feel free to share actual cases/deals.)
Jack: The Botox antitrust litigation is a representative example. Plaintiffs challenged one of the most successful brands on earth based on what I think was the first “killer acquisition” theory: the plaintiffs argued that Allergan’s attempt to assist an inexperienced, struggling company (the CEO was indicted in Korea) to launch a product actually was an effort to prevent competition from that company. It wasn’t. But to convince a California judge and jury of that fact required a team not only with extensive trial experience, but also with the creativity to take on the orthodoxy that products like Botox had “market power.” So, we were hired to replace the law firm already working on the litigation, and we obtained a great result for our client. The plaintiffs agreed to a settlement for less than the cost of defense, and the Botox franchise has flourished ever since.
How did you choose this practice area?
Gina: I think it’s fair to say that I ended up practicing antitrust law mostly by accident. After college, law school, and a stint as a summer associate at White & Case, I had no idea what sort of law I wanted to practice and was open to most practice areas. Just a few days after joining the firm, I was asked to join a trial team defending the merger of two healthcare companies against a lawsuit brought by the DOJ. I worked closely with many antitrust partners and associates for months. When the trial was over, some of those same partners and associates asked me to work on another antitrust matter. I enjoyed working with the team and found, to my sincere surprise, that antitrust is interesting—so I joined the group.
What is a typical day like and/or what are some common tasks you perform?
Jack: The firm highly encourages our lawyers to take on leadership responsibilities wherever it would help the firm. I have one of those roles now, serving as head of our Competition Section for the Americas. So, a typical day involves balancing that role with my client service. For example, in the morning I might have a meeting to help a partner develop a budget for a new matter, followed by a meeting with a People Advisory Manager to discuss associate performance. In the afternoon, I might have a videoconference with a partner in our DC office and an associate in our NY office to discuss the strategy for an upcoming deposition, followed by a call with a client to discuss the antitrust risks of a business decision the company is considering. I’m lucky that, most days, my leadership work complements my client work. So, when your management asks you to take on what some call an “administrative” task, say “Yes!”
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Gina: In addition to taking the obvious “Antitrust Law” class, students interested in antitrust will likely benefit from courses that provide background on mergers and acquisitions (and specifically the economic motivations behind these transactions); introduce them to the class certification process; cover the litigation of damages, injunctive relief, and other remedies; and discuss the procedural and substantive issues underlying complex litigation (e.g., litigation involving multiple parties, large-scale discovery, standing, multidistrict litigations, management of parallel private and public enforcement actions, and the adjudication of state claims in federal court or vice versa).
Outside of the law school context, developing an understanding of antitrust economics and staying apprised of guidance and other policy statements made by the DOJ and FTC will be very valuable to anyone looking to practice antitrust law.
What do you like best about your practice area?
Jack: The best part of antitrust is that it’s challenging. A good example comes from when I was an associate working on the genetically modified seeds antitrust litigation. At that time in the early 2000s, the case law heavily favored class certification in antitrust. Class actions are an important part of litigation, but courts had begun presuming class certification was appropriate and ignoring the requirements of the Federal Rules. We represented Syngenta, then the biggest agribusiness in the world and one of several defendants accused of conspiring to fix the prices of GM seeds. We needed to devise a creative strategy to beat the odds, so we dug into the facts and found evidence of how farmers placed different values on the unique features of GM seeds. So, whether class members were injured by the defendants’ pricing required investigating each class member—defeating the purpose of a class action. The court denied class certification, the court of appeals affirmed, and we created a precedent still cited today. That experience of solving a difficult problem and getting a great result for our client helped confirm that I wanted to be an antitrust lawyer.
What misconceptions exist about your practice area?
Gina: I think one of the biggest misconceptions about antitrust law is that it's a monotonous or narrow practice. In reality, antitrust statutes are incredibly broad and have been interpreted and developed more by judges than by lawmakers. This means that there is an enormous range of conduct in nearly every industry that a plaintiff or enforcer can argue implicates antitrust laws, and the cases vary considerably. It also means that litigating antitrust claims often requires an understanding of other areas of law (e.g., intellectual property, mergers and acquisitions, torts).
More broadly, antitrust cases are a master class in complex, large-scale litigation. The procedural complexities can often be as challenging and hard fought as the substance of a case, and provide lawyers with unique experience and skills that can be applied to most other practice areas.
What is unique about your practice area at your firm?
Jack: Aside from simply being bigger than nearly every antitrust practice in the world, we seem to have a few unique features. While most antitrust cases settle, our group has averaged more than one antitrust trial per year for more than a decade. Trials are some of the best and most difficult experiences a litigator can have. And sometimes I wonder if our group has more than its share of frustrated artists because we often find ourselves pursuing arguments no one has made before. As far as I know, we’re the only antitrust group to have a list of “firsts” on its website. (It’s now a two-page, single-spaced, two-column sight to behold on whitecase.com.)
What are some typical tasks that a junior lawyer would perform in this practice area?
Gina: As with any practice area, the day-to-day tasks performed by junior associates will depend heavily on their clients’ needs and the phase of the litigation they are working on. When advising clients on antitrust issues, junior lawyers will often research a client’s industry or find case law that applies to the specific scenario a client presents.
Junior associates working on a litigation may help to draft pleadings or perform research to support motion-to-dismiss briefings early in a case. During discovery, junior associates will likely assist with the preparation of and responses to discovery requests, document review and fact development, preparation for depositions, and research to support discovery motion practice. As antitrust cases often implicate complex regulatory, economic, and class certification issues, junior associates are also routinely relied upon to identify evidence to support expert opinions. In later phases of a case, junior attorneys will leverage their familiarity with the record to support summary judgment briefings and other pre-trial motions, and contribute to preparation of pre-trial materials like exhibit lists.