Weil’s experts reveal all about the high-stakes world of antitrust law and why becoming a lawyer here requires a tolerance for risk.
Chambers Associate: How would you describe antitrust law?
Brianne Kucerik, partner: Antitrust is an exciting and dynamic field that impacts every business and consumer in the US. The practice incorporates both legal and economic analyses and provides the opportunity for cutting-edge legal work.
Eric Hochstadt, partner: Every case is different, involving completely different industries and markets with each having a unique set of competitive conditions.
Jeff White, partner: The antitrust laws are about protecting competition and consumers. They have relevance to products and services sold on a daily basis, and without the antitrust laws we would undoubtedly see much higher prices for those same products and services, less quality, and less innovation.
CA: What do the partners do in this area?
JW: Simply put, antitrust partners talk to clients and senior business officials at the world’s largest companies in order to give them prudent, business-oriented advice. Partners manage the overall case strategy for clients. In addition, partners regularly interact with government agencies and private lawyers. Antitrust is one of a few areas that spans corporate (M&A) and litigation, so it’s actually quite broad. Practitioners can be working on a high-profile merger matter one moment and then a bet-the-company litigation the next.
Adam Hemlock, partner: With regard to antitrust litigation, partners lead the direction and strategy and drive the key aspects of the litigation, but we include our highly talented associates in all aspects of the case, including high-level strategy and case management.
BK: For antitrust M&A, partners advise clients on the antitrust risk raised by transactions under consideration and develop and implement strategies for securing antitrust regulatory clearance for the transaction as quickly and efficiently as possible.
“Antitrust is an exciting and dynamic field that impacts every business and consumer in the US.”
CA: What do the senior associates do?
AH: Senior associates are typically responsible for the day-to-day management of the case as well as handling advanced aspects, such as supervising briefs, memos, legal and fact analyses, and communications with the client and government. They also mentor and help train the junior attorneys while they also get experience in advanced skill sets.
BK: They are critical members of the team. They become experts on the client or industry at issue and ensure that the matter runs smoothly, including interfacing with the client, with antitrust counsel for the other party to the transaction, and with the US antitrust agencies.
EH: They also drive the projects to implement the case strategy. For example, if we are moving to dismiss a case for failing to state a plausible claim for relief, the senior associates are drafting the outline for partner review and preparing the initial draft of the brief. Similarly, senior associates will participate in interviews as part of a fact investigation, deposition preparation, and (depending on the case) taking or defending depositions.
CA: What do the junior associates do?
JW: Junior associates research and analyze a company’s products/services and the competitive landscape for that company’s particular industry. They also assist the teams in developing arguments and supporting evidence.
AH: The juniors are on the “front lines” of fact development and handle the first drafts of briefs, memos, deposition outlines, and certain correspondence with the client and government. They work directly with the partners on key aspects of the case and are given many chances to participate in advanced work so they develop their skills.
BK: Our M&A transaction matters tend to be staffed leanly so junior associates often have an opportunity to shine and really take ownership of certain aspects of a matter. Partners will rely heavily on associates regardless of their year, although senior associates are more likely to take the lead on communications with the client or antitrust agency.
“If a transaction triggers antitrust filings outside the US, antitrust attorneys often coordinate those filings and processes worldwide.”
CA: What kind of work is involved day to day?
EH: The “day in the life” of an antitrust litigator runs the gamut. Some days you could be in court arguing dispositive motions, other days you are meeting with clients and C-suite executives to prepare for depositions and discuss case strategy. And some days take you back to law school, and you have to read cases and edit a brief. The common denominator is people skills, as you are always interacting and working with team members from the most junior associate and paralegal to the General Counsel and CEO of a client.
BK: Antitrust attorneys advising on M&A transactions research relevant industries, products and competitors and prepare antitrust risk analyses and advocacy materials for the US antitrust agencies. They also work with clients to respond to voluntary information requests or subpoenas from the US antitrust agencies once an investigation is opened, which can include informal client interviews or formal depositions. If a transaction triggers antitrust filings outside the US, antitrust attorneys often coordinate those filings and processes worldwide.
AH: Those practitioners focusing on cartel investigations are involved in very deep fact investigation and analysis, which can include interviewing witnesses, reviewing documents, and bringing together massive amounts of information to determine the overall exposure of the client and to inform strategy.
CA: What are the highs and lows of working in this area?
JW: It can be very stressful handling a client’s most sensitive or highest-stakes matters (whether mergers or litigations), but it is also very rewarding helping clients achieve their most important goals.
BK: We advise clients on their most important and high-profile business objectives. The high is seeing those objectives realized and achieved. The downside is that you don’t always have control over your schedule because of the time sensitivity associated with high-profile transactions.
EH: As an antitrust litigator, the ultimate high is winning a case and achieving your client’s objective. The low is that sometimes you have to deal with opposing counsel who are unreasonable with extensions or the normal professional courtesies that make a litigation run smoothly.
CA: Describe your latest case: what was the client's problem? What was your role? How did you spend your days?
AH: Many of my days are spent in my office – some periods of time are devoted to quiet reading, writing and analysis, while others include meetings with team members to collaborate on various issues in the case, or to figure out our case strategy. Our teams are very dynamic and interactive, and we make sure that everyone gets to play a role in the work at all levels.
EH: Recently, I represented a client defending against putative nationwide class actions. The plaintiffs sought to create a multidistrict litigation, so I spent time analyzing the petition with the client and our team, and we successfully opposed it.
JW: Recently, I was assisting a client in a joint venture with its competitors acquiring a state-of-the-art, next-generation petrochemicals plant in Texas that was under construction and of critical importance to the industry. The FTC conducted an in-depth investigation into the competitive implications of the deal. I spent most of my days helping the client navigate this process, advancing arguments and devising new strategies to help resolve the FTC’s concerns and get the deal through.
“We advise clients on their most important and high-profile business objectives.”
CA: What are the current trends shaping antitrust?
AH: In the world of cartels, there is a lot of focus on so-called “no-poach” agreements, pursuant to which employers agree with one another not to hire each other’s employees. The Justice Department is particularly focused on these agreements as being harmful to competition and they are pursuing investigations in this space.
EH: Public and private antitrust enforcement in the health care and pharmaceutical sectors continues to be aggressive.
BK: One of the most important trends to watch is the debate surrounding the goals of the antitrust laws in the US and how that will impact antitrust enforcement going forward, particularly in the health care, pharmaceutical and tech sectors where currently there is a great deal of scrutiny.
CA: What would you say the future of antitrust practice looks like?
JW: I would say that the future looks very bright. Antitrust will never go away and will always adapt with changes in the economy and technologies.
EH: Across the three pillars of antitrust – criminal enforcement, mergers and civil non-merger enforcement – the work should remain busy.
BK: As the debate surrounding the goals of the antitrust laws in the US continues, we will need to anticipate and address more novel theories of harm. Antitrust enforcement will be less predictable, at least in the near term.
“Antitrust will never go away and will always adapt with changes in the economy and technologies.”
CA: What is the most interesting antitrust case you have worked on?
BK: I frequently work on transactions in the pharmaceutical and medical device spaces, which are always interesting given the nature of the products at issue. At the closing of one transaction, I received a note from the client saying that they would be able to develop and deliver a life-saving drug to patients more quickly as a direct result of Weil’s work on the matter. That was particularly rewarding.
AH: For me, it would have to be the Auto Parts cartel investigations and class actions; we represented two clients (Bridgestone and Calsonic) in what was the largest antitrust litigation in history. The case included over 100 defendants, 50 separate litigations, DOJ and state investigations, and various direct action cases. Weil took a lead role among the dozens of law firms and drove much of the strategy. We worked with some great lawyers and got great results for our clients.
EH: I defended C&S Wholesale Grocers in an antitrust class action trial. Following a two-week trial, the jury returned a quick verdict for our client finding no conspiracy. I have had a lot of interesting cases over the years, but the rush from a (favorable) jury verdict was an unparalleled experience.
CA: What personal qualities make a good antitrust lawyer?
EH: A creative person who rolls up his or her sleeves to know the facts. The Sherman Act is a general statute and the law has been developed in the cases. So much of antitrust is arguing why the particular facts of your case are similar or distinguishable from prior cases in other industries, depending on the side you are on for your client.
Being a good antitrust lawyer requires a combination of lawyering skills, including oral and written advocacy, an understanding of economics, interpersonal skills for large cases with multiple co-defendants and plaintiffs’ counsel, and liking risk and the high-stakes poker game that is inherent in virtually every antitrust matter due to the size of the potential litigation exposure or the transformative transaction being challenged by regulators.
AH: Same as any lawyer – smart, hardworking, patient, thoughtful, team-oriented, and a good case manager.
JW: They need to be business-oriented. Developing a deep understanding of the client’s business and strategic goals is key and the ability to frame arguments and supporting evidence in a manner that resonates with government agencies, courts or opposing parties is essential.
BK: Good judgment is critical to success (and even more important than a background in economics).
CA: What can students do to prepare themselves for a career in antitrust law?
EH: Ideally, they should intern for a court and government agency if they are interested in being an antitrust litigator. Being around any judge will help them develop good judgment, and working for one of the antitrust authorities will sensitize them to the investigation and potential enforcement process.
BK: I would suggest that interested students begin to monitor what is happening at the DOJ Antitrust Division and US Federal Trade Commission. The antitrust agencies publish guidance when they announce enforcement actions, and agency officials make frequent speeches on current enforcement topics and trends. These are incredibly helpful resources for students thinking about pursuing a career in antitrust.
JW: It’s important that they take as many antitrust classes as possible. In addition to interning at government agencies (FTC/DOJ) or State AGs office, I’d suggest they read the papers to keep up with the latest news and developments in the business world.
CA: Could you describe the opportunities that you feel are unique to Weil, Gotshal & Manges?
AH: We are one of the few firms with particular strength in both litigation and merger work.
JW: It’s rare for an area of law to provide such diversity of work. Weil has a destination antitrust practice with leading practitioners and provides comprehensive counseling on all aspects of antitrust.
BK: Our practice at Weil is diverse and crosses all disciplines, providing associates with the opportunity to develop a wide-ranging skill set.