DC ROUNDTABLE A decade at the top To mark Global Competition Review ’s 10th birthday, PARTICIPANTS JAMES CLASPER invited some of Washington’s top antitrust lawyers to reflect on a decade of practising law in the United States John DeQ Briggs Howrey Terry Calvani What have been the biggest changes in US coordinated way, We also have to deal with Freshfields Bruckhaus Deringer antitrust law in the past 10 years? the inevitable fallout of US private litigation and, in the future, of European litigation. Donald Klawiter B RIGGS : There have been at least three major Morgan Lewis & Bockius changes – one in mergers and acquisitions, K OLASKY : I would broaden Jan’s comment to another in general litigation, and another say that the biggest change over the past 10 William Kolasky WilmerHale in the infrastructure demands placed on years has been the globalisation of antitrust. law firms. On the merger side, the agencies’ You see it not only in multinational cartels Tad Lipsky Latham & Watkins demand for empirical data is enormous now, cases, but also in merger control, where and has shifted from theoretical economic any large deal has to be notified in multiple Janet McDavid Hogan & Hartson constructs to empirical data in a major jurisdictions. way. That, in turn, has required law firms Todd Miller Baker & Miller to establish infrastructures that can absorb, K LAWITER : Yes, because of globalisation, understand and analyse data – and present cases are bigger and happen faster. Especially Tim Muris O'Melveny & Myers arguments based upon it. On the litigation in the cartel area, an investigation starts as side, there have been two dramatic develop- a ‘sprint’ the moment the subpoena hits the Joe Sims Jones Day ments. The first is that juries are understood street or the dawn raid happens. It used to far better now than they were 10 years ago; be more of a marathon. There’s a very dif- the second is that a great amount of litiga- ferent dynamic today in terms of how we set tion now involves class actions. up our practices; lawyers dealing with these cases must be ready to start the sprint the just in the US. And, until recently, follow- M C D AVID : Another major change is the second the investigation begins. That can be on class actions didn’t start to appear until growth of international cartel enforcement. very hard when 10 other cases are going on the government’s criminal case was close We’re no longer dealing solely with the anti- at the same time. There’s far more intensity to resolution. Now, all you need is a single trust division in a cartel investigation; we’re today than there was 10 years ago. newspaper story anywhere in the world and also dealing with agencies around the world. – kapow! – you’ve got a hundred treble- That requires us to coordinate not only with L IPSKY : International involvement doesn’t damage class actions in the US. It happened multiple offices of our own firm in many just extend to cartels and merger cases. If in the European magazine paper cartel jurisdictions, but also with local counsel in you’re challenging the competitive practices investigation, it happened in the air cargo places where we don’t have offices, because of a big firm like an Intel or a Microsoft investigation and it happened in the graph- it has to be done in a centralised and wholly you’re fighting in five or 10 jurisdictions, not ics processors investigation. The minute 18 GLOBAL COMPETITION REVIEW
DC ROUNDTABLE doing our standard process of going to the company and collecting its electronic mate- rials. At the start of the process we essen- tially take everything and sort it out later, because the techniques and software we have for that are so sophisticated now that it is an efficient way to avoid disrupting the client. We did a sweep about 18 months ago for a different client and collected an aver- age of four gigabytes of electronic material per person, which is shocking enough; in this more recent transaction we collected an average of eight gigabytes per person. When you take 30 or 40 people and collect eight gigabytes per person, that’s a heck of a lot to sort through. William Kolasky C ALVANI : This means discovery has become much more expensive. One area where increased costs have had adverse conse- there’s a newspaper story, if it appears on before or didn’t exist at anywhere near the quences, is in reportable transactions at the a Tuesday, you can count on there being 50 same level of intensity – or they were han- low end of the spectrum. There the transac- class actions before the end of the week. dled by somebody else as opposed to an tion costs associated with a second request Even in civil cases such as Dentsply , which antitrust lawyer. In addition, it used to be – particularly where there are reviews in is just a garden-variety exclusive-dealing that antitrust cases were about hard assets; multiple jurisdictions – may impinge on the case, there are follow-on class actions – the today’s antitrust cases are more often than value of the deal itself. I fear that costs may trick being, if you can find a way to make not about intangible assets. When you’re be deterring smaller transactions from tak- any kind of a horizontal allegation, you’re dealing with intangible assets, such as intel- ing place. off to the races. lectual property, your analysis is inevitably more complicated than when you’re dealing B RIGGS : A quick footnote to Joe’s point M URIS : Ten years ago I was practising with with steel plants. That adds another level of – not only do you have to know how to col- Jim Rill in a great boutique firm that han- complexity to the process. lect data and sort it electronically, you also dled the universe of antitrust issues. That have to understand European privacy law. boutique format could not be nearly as suc- K OLASKY : Another aspect of case manage- You can’t just go in and collect data from cessful now. In today’s environment, you ment that is radically different today is the a server in Europe in the way you can in need greater scale and increased speciali- volume of electronic discovery. It used to be the US, without falling afoul of some very sation. And antitrust is an area of increas- the case that in a merger investigation you serious criminal laws. Again, that requires ing specialisation; it now requires a lot of produced a thousand boxes of documents management and resources. extremely detailed and arcane knowledge. – and that was seen as a lot. Now, with the heavy use of e-mail and electronic discov- What skills are no longer necessary in B RIGGS : That’s absolutely correct – and cli- ery, the volume of information that your your practice? ents are also much more sophisticated than contract lawyers and staff attorneys have to they were. Clients will go to one law firm wade through is huge. M C D AVID : Clients don’t ask for – and don’t for a merger at the Federal Trade Commis- want – legal memoranda any more, except on sion, to another one for a merger at the S IMS : As an indicator of our times, I’m han- the most sensitive issues where it is essentially a Department of Justice, to yet another one dling a transaction right now where we’re for a criminal matter and another one for a monopolisation matter. Clients view the field as very splintered; they no longer see a single full-service law firm as the obvious choice in all cases. S IMS : All of these points can be summarised by saying that the practice of antitrust law is much more complex than it was a decade ago. When we were starting our careers, antitrust law wasn’t as complicated or as fast as it is today. I suspect that, in addi- tion to doing a lot of law, most of the peo- ple around this table end up doing a lot of management. You cannot represent signifi- cant antitrust defendants without managing a very complex process that includes the media, Capitol Hill and a whole collection Tad Lipsky of different fronts that either didn’t exist WWW.GLOBALCOMPETITIONREVIEW.COM 19
Recommend
More recommend
