Antitrust in 2021 - the view from White & Case

Antitrust

As industries across the economy are expected to receive more scrutiny, antitrust attorneys will be called upon to help clients navigate all the latest regulations and laws. Being able to keep up to speed with various industries and learning to get comfortable with the unfamiliar are just two of the qualities you’ll need to succeed, as White & Case’s seasoned antitrust lawyers explain…

Chambers Associate: In a few sentences, what is antitrust law?

John Chung, partner: Antitrust law consists of the set of rules regulating competition in the markets that make up our economy. In simple terms, competitors cannot collude to fix prices or production levels, to divide markets, or to rig bids. Monopolists cannot use anti-competitive tactics, including mergers, to obtain or maintain their monopolies. There are large gray areas of potentially anti-competitive conduct around these basic principles.

Jaclyn Phillips, associate: In the US, antitrust is largely a court-made doctrine because the statutes setting forth the law are not very detailed. The antitrust laws are meant to protect consumers from the effects of decreased competition, like high prices.

CA: Why is it important?

Heather-Marie Burke, partner: Antitrust law is important because it protects competition for the benefit of consumers.

JC: If companies in a market do not compete, consumers lose, and as a result, the economy suffers. Competition spurs innovation and reduces prices in the long run. Without antitrust laws, corporations would have much more power over pricing, and markets would be more inefficient.

“Being able to help your clients navigate these laws before (or after) a business practice is challenged is essential to avoid these potentially huge penalties.”

JP: Because antitrust law has developed through case law, rather than being governed by detailed statutory language, it has changed over time, and is still changing. Not only is it important that the laws are interpreted in a way that protects consumers, businesses also have to be able to understand the parameters of the law and have some certainty in order to be able to engage in competition-enhancing conduct. The antitrust laws can result in criminal penalties and/or treble damages resulting in billions of dollars in exposure. Being able to help your clients navigate these laws before (or after) a business practice is challenged is essential to avoid these potentially huge penalties.

CA: What kind of work is involved day-to-day?

JP: Truthfully, the day-to-day work is always changing. As an antitrust lawyer, you can work in litigation, mergers, investigations, counseling, etc. It is truly a dynamic practice. During a litigation, work will vary depending on the phase of the case ranging from legal or factual research, drafting, expert work, witness prep, discovery, trial prep, and more. Litigation for an antitrust litigator has all the excitement and challenges of any other type of litigation, with the added benefit of a specialized knowledge of the antitrust laws and a deep dive into the industry you’re working in. Outside of litigation, clients are always reaching out with really interesting questions about whether they can (or should) engage in certain business practices, potential liability, etc. Digging into different industries and understanding different business models is just as fun and challenging as understanding the intricacies of the legal question at issue.

JC: Antitrust requires you to understand and oftentimes predict what effect certain conduct could have on the market (prices, availability of goods, and so on). Economics plays an important role in making these predictions.

“Digging into different industries and understanding different business models is just as fun and challenging as understanding the intricacies of the legal question at issue.”

HMB: As a litigator, I am generally working on a particular case during any given day, so my work depends on the stage of the case. In my current case, we are in discovery so my day-to-day involves meeting and conferring with plaintiffs, drafting discovery letters, overseeing document review and production, interviewing potential witnesses and working with experts as they develop their expert reports.

CA: What are the highs and lows of the practice?

JP: The legal and business questions in antitrust cases are always interesting, unique, and complex. In my practice, I have been on the side of both plaintiffs and defendants, which really has given me a broad understanding of the laws and the impact of them on both sides of the equation. Regardless of which side you are on, whether you are involved in a litigation, representing a merging party, or have another role, the outcome of an antitrust proceeding can have a huge impact on not just your client, but the way businesses function or practices in an industry take shape. Like many areas of law, antitrust is fast paced and always changing. Clients have unique and important concerns that will be time sensitive and challenging. Antitrust litigation in particular can take years—that can be both a good and bad thing. While you may be anxious to reach a resolution, you should also relish the chance to be involved in many aspects of a sprawling case, sometimes that can mean being involved from the filing of the complaint, through trial, and various appeals.

JC: Each antitrust case is different. Each case usually involves a different industry with its own unique features and practices. Learning about a new industry for the first time is challenging and rewarding. The practice does not get old. One difficult aspect of antitrust practice is that sometimes, it is difficult to provide clients with absolute certainty about a business practice. As lawyers, we crave certainty, but some gray areas of antitrust could go either way in terms of liability.

“Like many areas of law, antitrust is fast paced and always changing. Clients have unique and important concerns that will be time sensitive and challenging.”

HMB: My personal high of the practice is when we go to trial. Trial is exciting and intense and pressure-filled. You bond with your trial team in a way that you wouldn’t normally since you’re all living together in the same hotel and working crazy hours. I think the lows of the practice would vary depending on your personality, but for me, the lows are when things are slow—either when the case is moving slowly during discovery or when a case isn’t that complex and doesn’t have as many moving parts.

CA: What is a partner's typical role in matters?

HMB: It can vary depending on the size and complexity of the case, but generally I work on strategy for the case; review and revise drafts of motions, discovery, correspondence, etc.; interview witnesses and prepare deponents for depositions; meet and confer with the plaintiffs; present oral arguments in court; and coordinate with the client on strategy and planning.

JC: A partner needs to understand the client’s specific goals, formulate a plan to achieve those goals, and work with the team to execute that plan.

JP: Partners are part of the day-to-day team and work with the associates closely. Partners are able to use their experience to think of unique legal theories and case strategies.

“As an antitrust associate, you should be ready to dive into legal and factual issues, take discovery, and negotiate with opposing parties.”

CA: What do associates do?

HMB: Associates do many of the same things that partners do. Usually they are the first ones drafting motions and correspondence, attending and preparing for witness interviews, reviewing documents and educating the team on various subject matters, etc.

JP: Antitrust matters can be very large and there are endless opportunities to become an expert in a part of it, making you a go-to team member regardless of your level. As an antitrust associate, you should be ready to dive into legal and factual issues, take discovery, and negotiate with opposing parties. Associates are key to keeping the day-to-day of a matter on track and being aware of all the moving pieces that feed into the ultimate strategy.

JC: Associates are integral to all of the steps above. Antitrust cases are multi-faceted and require extensive factual development, expert testimony, constant motion practice, and ultimately a trial on the merits.

CA: What impact did the Covid-19 pandemic have on the practice?

HMB: Not much. We now need to conduct our oral arguments before the Court via Zoom, and depositions need to occur via Zoom, but that was really the only impact COVID had.

JP: Our group really did an amazing job at staying and becoming closer as a team during the pandemic. As an associate who spent the beginning of the pandemic working at home with a toddler and no childcare, I was (and am) immensely grateful for my group and the firm for their understanding and flexibility. I think we learned we can go above and beyond not just to help each other, but to deliver the same amazing client service as we did. We made an effort to be transparent about the landscape, and make an effort to stay apprised of how the changing world is impacting our clients and each other.

“Staying on top of the daily updates regarding antitrust and learning about different industries can be a full-time job in itself.”

CA: What will keep the team busy in 2021 and beyond?

HMB: We have a very large case right now, Staley v. Gilead, that is keeping the team very busy and will for the next few years. I imagine there also will be more government investigations with the Biden administration, so that will keep the team busy as we help clients with those investigations.

JP: In the US, our group has particular expertise in pharma matters and work involving pharma and IP. Staying on top of the daily updates regarding antitrust and learning about different industries can be a full-time job in itself. While we don’t know exactly where we will end up as these issues continue to take center stage, the changing state of antitrust law will no doubt lead to more challenges and opportunity.

JC: The new administration has an ambitious antitrust agenda, and if recent high-level appointments are any indication, the new administration is serious about making progress on that agenda. Industries across the economy can expect to see greater scrutiny.

CA: What qualities make for good antitrust lawyers?

JP: To me, I have always found that being a team player is one of the best qualities you can have as an antitrust lawyer. I’m sure that is true in all practices, but antitrust matters are generally so complicated, unique, and big that it really takes being collaborative and flexible to do the best job that you can for your clients. Having the desire to pitch in to help your teammates is essential not just because it will solidify those friendships with your colleagues and help you become someone the team trusts, but because dipping your toe in many aspects of the case and learning from your team will help you become a better and more well-rounded antitrust lawyer. Antitrust lawyers should have a desire to learn and think creatively. It is just as important to understand your client’s business, industry, and market they’re operating in as it is to understand the law. You may become an expert in something you never would have expected, but the willingness to learn, ask questions, and be willing to do the work to get up the learning curve is essential.

HMB: The same qualities that make for any good lawyer—desire to work hard, attention to detail, good judgment. It helps if lawyers have a good understanding of economics as well.

JC: Being at ease with the unfamiliar is helpful. A willingness to dive in, unpack, and then understand the unfamiliar will go a long way to providing sound antitrust advice.

“You may become an expert in something you never would have expected, but the willingness to learn, ask questions, and be willing to do the work to get up the learning curve is essential.”

CA: What separates the White & Case team from its peers?

HMB: We are known for being aggressive in our cases—against private plaintiffs or the government. We don’t back down and we fight hard for our clients. We also have particular expertise in the pharmaceutical space.

JC: White & Case has some of the most accomplished antitrust practitioners in the legal profession. More importantly, the antitrust lawyers at White & Case are part of a cohesive network spanning many offices and countries. There is no other firm better equipped to handle the complex, multi-jurisdictional antitrust cases that are the norm. And White & Case prepares the case for trial from day one. Our track record at trial is unmatched.

CA: What impact, if any, will calls for greater social justice have on the practice?

JC: I have always viewed antitrust and social justice as having overlapping goals. Antitrust condemns the accumulation of corporate power through anti-competitive means, and social justice seeks to remedy many of the same ills arising from unbridled corporate power. I expect there to be a natural cross-pollination of ideas across antitrust and social justice, including diversity within the antitrust bar.

HMB: Our group, spearheaded by one of our partners, Dana Foster, began an antitrust racial justice task force last summer. A number of us have taken on pro bono cases for prisoners in Louisiana seeking racial equality.

“Antitrust condemns the accumulation of corporate power through anti-competitive means, and social justice seeks to remedy many of the same ills arising from unbridled corporate power.”

CA: What advice would you give to students interested in the area?

HMB: Learn more about it. Take an antitrust class in law school and see if you like it. It’s not well known, but our cases are some of the most complex cases you will find. They are usually very large, and they have large amounts of damages, which makes them incredibly important to our clients and they keep us all very busy.

JP: Try it out! Whether that means taking a class, working in antitrust during law school, or doing reading on your own, the more you learn formally or informally will help you figure out what you like and what you don’t. There are interesting new books out now and an endless stream of news items on antitrust – even if you haven’t, or won’t be able to, take a course in law school, there are so many ways to start to learn and see if this is an area for you.

JC: Antitrust is a hot topic, and it’s frequently in the news. There is no shortage of ways to start getting involved and learning about antitrust. I would add economics to the mix of coursework. You can gain a much better understanding of antitrust principles with a solid grounding in economics.