10 Things To Know About Antitrust
There's a lot to like about antitrust practice, including the sheer diversity of this area.
Ed. note: Welcome to the latest installment of Better Know A Practice Area, a series introducing readers to different practice areas. Each post is written by an editor at Practical Law who previously practiced in that area and currently writes about it. Prior columns have covered capital markets and corporate governance, securities litigation and enforcement, patent litigation, executive compensation, commercial transactions, labor and employment, real estate, startup law, and bankruptcy.
Today’s topic: antitrust law.
- What do you do in a typical day?
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The practice of antitrust falls into several big categories: civil and criminal litigation, merger and transactional work, and counseling. Some antitrust lawyers specialize in one or two of these areas, while others maintain broad practices that cover all of them.
A typical day for an antitrust associate on a litigation matter could involve drafting a motion to dismiss antitrust claims in a price-fixing class action or working with an economist to prepare an expert report on antitrust damages claims. On a merger matter, an associate might spend the day analyzing market share information to evaluate the antitrust risk of a planned merger or drafting a white paper in favor of a merger to the Federal Trade Commission or Department of Justice. On the counseling side, a typical day could involve reviewing a client’s IP licenses for antitrust issues or preparing a presentation to train a client’s salespeople about avoiding antitrust violations.
And, let’s face it, antitrust involves a lot of documents. As a junior associate, some document review is inevitable. After several years, the role shifts to managing document collection and production.
- Who do you work with?
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A client training might involve one partner and one associate, while a significant merger investigation could involve several partners, senior and mid-level associates, and a small army of junior attorneys. Within the firm, antitrust attorneys collaborate most often with M&A attorneys and general litigators.
Mid-level and senior associates work frequently with external vendors on document productions, economic experts in litigation and merger investigations, and attorneys at other firms in joint defense groups. Contact with clients and government investigators increases with seniority.
Firms structure their antitrust practices in varying ways that can have an impact on the type of work a junior associate does. For example, some firms fold their antitrust attorneys into the litigation department, so that junior associates may be staffed to other types of matters as well. Some firms have dedicated attorneys to handle the somewhat specialized work of pre-merger antitrust filings while others do not.
- What does a common career path look like?
A combination of law firm and government experience is common, such as spending a few years at a law firm, followed by a stint at the DOJ or FTC, and then returning to a law firm. Antitrust attorneys who reach a management position or otherwise burnish their reputation at one of the agencies may return to a law firm as counsel or partner.
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That said, antitrust litigators – especially outside of Washington, D.C. – are less likely to have spent time working in government. Plenty of antitrust attorneys also spend their whole careers in government, including at state attorney general’s offices. And some antitrust attorneys land in-house positions, though only certain industries need in-house antitrust specialists, like pharmaceutical and tech companies.
- If variety is the spice of life, how spicy is this practice area?
Ghost pepper spicy. The work in private practice ranges from civil and criminal litigation to deal advice to compliance and day-to-day counseling. Government agencies offer additional opportunities to focus on policy and advocacy work, international relations, and appellate work, among other things.
Besides that, one of the best things about antitrust is that each new matter is an opportunity to learn an industry from top to bottom. Antitrust lawyers become experts in all kinds of surprising areas.
- How much wear and tear?
Transactional and merger work can be demanding because of tight deadlines and pressure to get a deal closed. Merger litigation, though uncommon, involves preliminary injunctions and moves at an intense pace. Class-action litigation tends to have a longer time horizon but can still involve time crunches around major milestones and, needless to say, becomes more fast-paced the closer it gets to trial. Many government antitrust lawyers work just as hard as their law firm counterparts, especially in litigation-heavy practice areas, but there are certainly government roles that offer a better balance.
- Of the people in this practice group who hate it, what exactly do they hate about it?
The documents. Collecting them. Reviewing them. Producing them. This is a little-loved part of any legal practice involving government investigations or commercial litigation. Because many parts of a company’s operations are relevant to an antitrust inquiry, the size of the document productions can be truly enormous.
- Of the people in this practice group who love it, what exactly do they love about it?
Antitrust lawyers are constantly learning and are proud of their versatility. They get to practice in an area of law that is always evolving and that touches on virtually every aspect of our economy. The strong public policy element of antitrust means there are always interesting debates to be had about how aggressive enforcement should be, what types of business conduct the antitrust laws should address, and which economic and legal tools should be applied. Antitrust is also growing and evolving globally as new countries adopt and refine antitrust regimes of their own, and a career in antitrust can involve many opportunities to work with colleagues abroad.
- Are there common avenues out of this practice area?
There are no well-beaten paths away from antitrust altogether, given that it’s a fairly specialized area of law. Attorneys who gain strong litigation experience might move into other litigation areas, and those who develop particular expertise in an industry may also be positioned to move into non-legal business roles.
- What are some market trends that impact this practice area?
Both M&A activity and antitrust enforcement have been on the upswing in the U.S. in recent years, keeping antitrust lawyers very busy – though federal enforcement activity may dial back under the Trump administration. Changes in our economy, including the rise of the tech giants and the advent of the sharing economy, are raising new challenges and generating interesting debates about what role antitrust has to play, if any, in policing business practices in a fast-changing landscape. The practice of antitrust is also ever more global, thanks to growing international operations and transactions, aggressive enforcers in Europe, and countries like China increasingly flexing antitrust enforcement muscle.
- If you had to recommend one candidate from a room crowded with recent bar exam graduates, what specific qualities would he or she have that would ensure success in this practice area?
A keen intellect and a strong sense of curiosity will ensure that a candidate continues to learn and enjoy practicing for many years. Good judgment is essential to be able to sort through the many gray areas that arise in antitrust and provide useful advice to clients. The candidate should also be comfortable with economics.
Janelle Wrigley (© Matt Greenslade/photo-nyc.com)
Janelle Filson Wrigley is the Managing Editor of Practical Law’s Antitrust team. Prior to joining Practical Law, she was an associate with Simpson Thacher & Bartlett in New York and a staff attorney at the Federal Trade Commission in Washington, D.C.
