What is your favorite part of practicing in antitrust litigation?
My favorite part about my practice is one of the reasons I chose antitrust—on a given day I can do a variety of activities in a number of areas (litigation, investigations, merger clearance, and client counseling). My favorite type of antitrust litigation, however, is merger litigation. This arises when the reviewing agency, either the DOJ or the FTC, determines after a long investigation, called a "second request," that a transaction will unlawfully reduce competition. The agency can attempt to block the transaction by seeking a preliminary injunction in federal court. This type of litigation is fast and complex and requires specialized experience and skills to perform successfully. You essentially have to conduct a mini-trial (from extensive discovery to hearing) in a few months. I also love getting to learn quickly about a different industry with every deal or litigation matter. I have had to become an expert in everything from laboratory-testing services, house paint, industrial spray guns, cable equipment, and more.
Name and describe one case that anyone who practices in antitrust litigation should know.
There are dozens of important cases that every antitrust lawyer should know but one key case is Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962). Many antitrust cases (particularly merger cases) are won or lost based on relevant-product-market definition, a concept in antitrust that evaluates demand-side substitution—where can customers turn to purchase substitutes for a product when the price of that product increases? Those substitutes and that product comprise a relevant product market. Brown Shoe lays out the basic indicia that courts and federal agencies use when determining whether two products are in the same relevant product market.
Describe a case on which you have worked that involved a lot of the key issues in antitrust litigation.
I worked on a merger investigation from its very beginning to litigation—where the parties were successful—in less than one year. The key issues were the definition of the relevant product and geographic markets and the ease of entry and expansion into those relevant markets. The reviewing agency was unable to prove its defined relevant markets and that the transaction foreclosed competition in court, and the client won. Success required taking and defending dozens of depositions in a very short time period, responding to written and electronic discovery requests, drafting dozens of court filings, and traveling thousands of miles.
What is a common mistake people make when practicing antitrust litigation?
One common mistake that people make when practicing merger litigation is assuming that it is like ordinary civil litigation. The laws, the speed, and the strategy can be different. For instance, a preliminary injunction to block a merger is preliminary in name only; they can be mini-trials. Most mergers blocked at the preliminary stage, prior to a full administrative trial before the FTC or a trial for permanent injunction, dissolve for a variety of reasons. Thus, preliminary-injunction proceedings in merger litigation assume greater significance than those in ordinary litigation. Counsel who does not prepare for a preliminary-injunction hearing as he or she would for a full trial is primed for failure.
What advice would you give to junior attorneys in antitrust litigation? Are there any key skills that new lawyers should develop to excel in antitrust litigation?
Junior attorneys interested in antitrust litigation should read and become very familiar with the basic antitrust cases. These cases arise repeatedly in a variety of circumstances and lay out the basic framework for antitrust law. Additionally, new lawyers should take a crash course in economics or accounting or read an economics or accounting textbook if they have not done so already (the ABA Antitrust Section and a number of private organizations have brown-bag lunches or seminars on a variety of topics that target junior associates specifically). Junior antitrust associates will be surprised by the amount of time spent looking at company balance sheets. Likewise, junior antitrust associates should become Microsoft Excel experts. Sometimes before an economist is hired to serve as an expert, associates will need to run simple analyses of market shares or pricing or sales data.
What trends have you seen in antitrust litigation over the last several years?
Certainly in the last several years pleading standards have risen. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), stands for the proposition that antitrust plaintiffs must meet a very high pleading burden to withstand a motion to dismiss. The theory behind this is that antitrust litigation in particular (as compared to other complex litigation) can subject a defendant to onerous discovery obligations and the potential for treble damages (allowed by statute) is great. Given these circumstances, plaintiffs with little evidence of an antitrust conspiracy, other than parallel conduct, for example, can attempt to coerce defendants into settling because the risk of going forward in terms of cost and financial liability is too high. Companies now have very powerful case law to cite in motions to dismiss.
What do you do to stay abreast of emerging issues in antitrust litigation? Are there any specific practice publications or web resources that are particularly helpful?
I read many antitrust-related newsletters and articles to stay on top of hot issues in antitrust. MLex is a great online publication that is probably the timeliest with breaking antitrust news. I also read Antitrust Source, Antitrust Journal, Antitrust Magazine, Competition Law360, Mergermarket, and The Deal regularly. The Wall Street Journal and the New York Times, theDealbook, in particular, are the leading sources for business and deal news. Finally, for more academic reading, the Antitrust & Competition Policy Blog is unparalleled.
What changes do you expect to see in this practice over the next five years?
I predict more law students and junior attorneys will want to become antitrust lawyers. With the prominent news coverage of the failed AT&T/T-Mobile merger and the Apple e-books case, antitrust law has become a household concept. I do quite a bit of law-school recruiting for my firm, Hogan Lovells US LLP, and many more law students than ever before have expressed an interest in antitrust. I suspect there is a strong connection.
If you weren’t practicing in antitrust litigation, which area of law would you like to practice and why?
This seems like a lame answer, but I would not want to practice another area of the law. I am extremely lucky to love antitrust, my daily work activities, my colleagues, and my firm. But maybe if I were not a lawyer, I would open a small restaurant or a sandwich shop. The sandwiches would all be named for Supreme Court justices.
Interview conducted by Lindsey Nelson, a content editor for the Young Advocates Committee.
Meghan Edwards-Ford is an associate with Hogan Lovells US LLP, in Washington, D.C.