Questions re: antitrust law Forum

[Dougie98]

Recently, I've become intrigued by the area of antitrust law. If any of you could assist in answering a few of my questions, I would greatly appreciate it!

(1) I've heard that, in order to practice antitrust law, one needs to have a fairly firm background in economics. To what extent is this true?
(2) It appears as though D.C. is the undisputed antitrust hub. That said, is antitrust a viable practice area to enter into in other cities (specifically, in New York)?
(3) What would a day in the life of an antitrust lawyer entail (i.e. document review, due diligence, economic analysis, etc.)?
(4) How complementary are antitrust law and IP law?

[jdhopeful14]

1) Not true at all.
2) Sure.
3) Depends. Some antitrust practitioners do litigation, while others may help M&A lawyers with deals.
4) Not sure.

[vanwinkle]

Recently, I've become intrigued by the area of antitrust law. If any of you could assist in answering a few of my questions, I would greatly appreciate it!

(1) I've heard that, in order to practice antitrust law, one needs to have a fairly firm background in economics. To what extent is this true?
(2) It appears as though D.C. is the undisputed antitrust hub. That said, is antitrust a viable practice area to enter into in other cities (specifically, in New York)?
(3) What would a day in the life of an antitrust lawyer entail (i.e. document review, due diligence, economic analysis, etc.)?
(4) How complementary are antitrust law and IP law?

1) Nope. It can help, but it really isn't a requirement.

2) DC is a logical hub since government antitrust regulation originates from there. However, corporations all over the country want to hire people to review mergers/acquisitions for antitrust problems, defend against private antitrust lawsuits, etc. As such there are firms in all the major markets with at least some antitrust representation.

3) Not that different from any other kind of corporate lawyer. If they're on the litigation side, they'll do document review, trial preparation and discovery, legal research and writing (motions and briefs), etc. If they're on the M&A side they'll be drafting and reviewing merger proposals designed to survive antitrust scrutiny, preparing presentations for their clients on the issues, helping devise strategies to avoid litigation, etc. To that end, really antitrust review is just one part of M&A work.

4) Not very. There could be an antitrust action over the merger of two IP companies, but the client will want an antitrust specialist, not an IP specialist. The fact that it's about IP companies is largely tangential.

[BJWriter26]

I'm assuming that "not required" still suggests that one have at least a passing understanding of monopoly, competitive pricing, and the like? Also, does the character of the work differ between New York and D.C. (i.e. do NY firms tend to do more antitrust work with banks and other financial institutions)? Or are they fairly similar (given that antitrust concerns arise in a variety of industries)?

[blsingindisguise]

It's probably not a practice area I'd overthink going into law school. I mean it might make a nice talking point that you're interested in antitrust, which would be unusual, but the chances you'd actually practice antitrust coming out of school are very low.

[hmlee]

I'm assuming that "not required" still suggests that one have at least a passing understanding of monopoly, competitive pricing, and the like? Also, does the character of the work differ between New York and D.C. (i.e. do NY firms tend to do more antitrust work with banks and other financial institutions)? Or are they fairly similar (given that antitrust concerns arise in a variety of industries)?

Yes, but taking antitrust as a class should teach you this. An econ degree really isn't required. At least not by the DOJ.

[Black-Blue]

(4) How complementary are antitrust law and IP law?

IP antitrust is a hot area academically, but in practice they usually have nothing to do with each other because the IP issues and antitrust issues are dealt separately by separate people.

[Julio_El_Chavo]

(4) How complementary are antitrust law and IP law?

There are three common ways that antitrust could play a role in an IP litigation case:

1) A Professional Real Estate Investors v. Columbia Pictures claim of sham litigation: This would involve showing that a patent or copyright infringement suit was both objectively baseless and subjectively intended to interfere directly with the business operations of the defendant, not through wining the case on the merits, but merely by maintaining the lawsuit and costing them lawyers/experts fees. Basically, you allege this when a big company is suing your client (a smaller company) for patent/copyright infringement that looks pretty baseless. You allege that the big company is just trying to drive your client out of business by keeping them in a long, drawn-out IP litigation suit.

2) A Walker Process claim: This claim involves an allegation that, before an IP infringement suit was brought, the patent/copyright in question was KNOWN to be fraudulently or improperly acquired. This involves some kind of lying at the Patent Office to get a bogus patent/copyright and then bringing suit against someone to enforce the bogus patent/copyright. This kind of claim is appealed to the Federal Circuit because it deals directly with whether a patent is valid or not.

3) Hatch-Waxman cases often involve antitrust claims by generic drug makers who are not the first to file ANDAs because the plaintiff generic drug maker wants to be able to make the new drug as soon as possible. This kind of suit arises when the first ANDA filer sues the original drug creator alleging that the patent on the drug is invalid. The original drug manufacturer and the first ANDA filer then agree to a settlement which basically looks like an agreement to maintain a monopoly under the antitrust laws. This is when the plaintiff generic drug maker sues because the settlement agreement between the first ANDA filer and the original manufacturer delays when the plaintiff generic drug maker can start making the drug. The issue of whether the patent is valid or not often plays a pivotal role in deciding whether there's some kind of anticompetitive agreement between the first ANDA filer and the original drug manufacturer because if the patent is valid, the ANDA filer should have sought judgment on the merits instead of settlement.

[Anonymous User]

Bump.

Any antitrust associates out there? I have a phone call Tuesday w/ a partner who does antitrust work in DC. I understand some basics (got some good info from vanwinkle's poast), but can someone elaborate what junior antitrust associates do?

Perhaps someone can expand upon vanwinkle's response: doc review of what? What type of legal research? What is antitrust scrutiny? Etc... Thx

(3) What would a day in the life of an antitrust lawyer entail (i.e. document review, due diligence, economic analysis, etc.)?

3) Not that different from any other kind of corporate lawyer. If they're on the litigation side, they'll do document review, trial preparation and discovery, legal research and writing (motions and briefs), etc. If they're on the M&A side they'll be drafting and reviewing merger proposals designed to survive antitrust scrutiny, preparing presentations for their clients on the issues, helping devise strategies to avoid litigation, etc. To that end, really antitrust review is just one part of M&A work.

[Anonymous User]

I do not think it is a requirement to have an economics background, but it can definitely help. A professor told me specifically that if you had background in economics, then antitrust would be the place for you.

[Anonymous User]

Recently, I've become intrigued by the area of antitrust law. If any of you could assist in answering a few of my questions, I would greatly appreciate it!

(1) I've heard that, in order to practice antitrust law, one needs to have a fairly firm background in economics. To what extent is this true?
(2) It appears as though D.C. is the undisputed antitrust hub. That said, is antitrust a viable practice area to enter into in other cities (specifically, in New York)?
(3) What would a day in the life of an antitrust lawyer entail (i.e. document review, due diligence, economic analysis, etc.)?
(4) How complementary are antitrust law and IP law?

(1) A "background" in economics generally doesn't mean anything more than an undergraduate economics degree, or anything else that shows interest/knowledge in economics. antitrust attorneys need familiarity with basic economics concepts (e.g., in defining a product market, antitrust attorneys need to understand how elasticity works), but nothing more. Actual economists do all the heavy-lifting.

(2) It's certainly viable in New York, although I think being in DC would be an advantage if you want to practice antitrust long-term, simply because the DOJ and FTC are there. It's fairly common in antitrust (more so than in most other practices, I believe) for private practitioners to do a stint in the government at some point, and I'm not sure if you'd have the same opportunities being based in New York. But as a first-year I don't know much, so you should probably talk to antitrust attorneys in New York about this.

(3) It's not too different from what most other attorneys do. Mergers and litigation involve huge amounts of document review. Attorneys also give antitrust advice (analyzing whether a merger or joint venture is likely to succeed, determining potential remedies to make a merger work, advising clients whether or not they can enter into certain agreements with other companies, instructing them on what to never say, etc.), handle litigation matters (brief writing, etc.,), and sometimes represent individuals in criminal proceedings. It's nothing too unusual. The serious economics analysis is generally done by professional economists, not attorneys.

(4) There's some overlap. Often a defense to a patent infringement claim will be coupled with antitrust claims. But on the one IP-antitrust case I worked on, both sides cleanly divided the work between the two practice groups. The IP attorneys handled the IP aspects of the case, and the antitrust attorneys handled the antitrust aspects. So there was no need for any of the antitrust attorneys to become engrossed in IP law (thankfully). I assume that's fairly typical except in the few areas where there's substantial overlap (which Julio_El_Chavo explains).

[Elston Gunn]

Can anyone say what exit ops are like for antitrust attorneys other than governnment? I assume there's not a lot of in house antitrust attorneys. Are there antitrust boutiques/how easy is it to transition to small firms? I know most will just be speculating, but even speculation would be helpful.

[Anonymous User]

Can anyone say what exit ops are like for antitrust attorneys other than governnment? I assume there's not a lot of in house antitrust attorneys. Are there antitrust boutiques/how easy is it to transition to small firms? I know most will just be speculating, but even speculation would be helpful.

+1 to this. the only thing i am aware of personally is someone that went V5 (DC) --> FTC

[Anonymous User]

Attorneys also give antitrust advice (analyzing whether a merger or joint venture is likely to succeed, determining potential remedies to make a merger work, advising clients whether or not they can enter into certain agreements with other companies, instructing them on what to never say, etc.),

can you (or anyone) elaborate on this? is this just making sure mergers don't violate Sherman? i am assuming there is more but really dont know what that entails...thx!

[Anonymous User]

(4) How complementary are antitrust law and IP law?

There are three common ways that antitrust could play a role in an IP litigation case:

1) A Professional Real Estate Investors v. Columbia Pictures claim of sham litigation: This would involve showing that a patent or copyright infringement suit was both objectively baseless and subjectively intended to interfere directly with the business operations of the defendant, not through wining the case on the merits, but merely by maintaining the lawsuit and costing them lawyers/experts fees. Basically, you allege this when a big company is suing your client (a smaller company) for patent/copyright infringement that looks pretty baseless. You allege that the big company is just trying to drive your client out of business by keeping them in a long, drawn-out IP litigation suit.

2) A Walker Process claim: This claim involves an allegation that, before an IP infringement suit was brought, the patent/copyright in question was KNOWN to be fraudulently or improperly acquired. This involves some kind of lying at the Patent Office to get a bogus patent/copyright and then bringing suit against someone to enforce the bogus patent/copyright. This kind of claim is appealed to the Federal Circuit because it deals directly with whether a patent is valid or not.

3) Hatch-Waxman cases often involve antitrust claims by generic drug makers who are not the first to file ANDAs because the plaintiff generic drug maker wants to be able to make the new drug as soon as possible. This kind of suit arises when the first ANDA filer sues the original drug creator alleging that the patent on the drug is invalid. The original drug manufacturer and the first ANDA filer then agree to a settlement which basically looks like an agreement to maintain a monopoly under the antitrust laws. This is when the plaintiff generic drug maker sues because the settlement agreement between the first ANDA filer and the original manufacturer delays when the plaintiff generic drug maker can start making the drug. The issue of whether the patent is valid or not often plays a pivotal role in deciding whether there's some kind of anticompetitive agreement between the first ANDA filer and the original drug manufacturer because if the patent is valid, the ANDA filer should have sought judgment on the merits instead of settlement.

I propose another way. However, I'm only partway through my antitrust course, so I don't know if this is entirely accurate:
Patents can be used as a defense to an antitrust claim. The government effectively grants you a legal monopoly on your invention. However, this can get tricky in certain scenarios, e.g. where a group of competitors pool their patents together to keep other rising competitors out of the market.

[Anonymous User]

Attorneys also give antitrust advice (analyzing whether a merger or joint venture is likely to succeed, determining potential remedies to make a merger work, advising clients whether or not they can enter into certain agreements with other companies, instructing them on what to never say, etc.),

can you (or anyone) elaborate on this? is this just making sure mergers don't violate Sherman? i am assuming there is more but really dont know what that entails...thx!

Attorneys often cannot "make sure" that a merger doesn't violate the antitrust laws, but they can analyze the probability that the the government will not oppose it, and consider whether there are any safer ways to structure the merger or any available remedies (e.g., divestitures of certain assets) that will save the merger in the event the government opposes it. This can actually be quite complicated. Attorneys have to consider the possible product and geographic markets, which entities will count as competitors, potential efficiencies that may justify an increase in concentration, and so on. And if the client decides to go through with the merger, then the attorneys generally have to defend the merger, produce mountains of documents to the government, respond to all the government's requests, advocate on behalf of the client, etc.

I'm not too sure about exit options beyond the FTC/DOJ, but it seems that antitrust attorneys usually get good litigation experience that would aid them at a smaller firm, even one that doesn't do much antitrust.

[Anonymous User]

Attorneys often cannot "make sure" that a merger doesn't violate the antitrust laws, but they can analyze the probability that the the government will not oppose it, and consider whether there are any safer ways to structure the merger or any available remedies (e.g., divestitures of certain assets) that will save the merger in the event the government opposes it. This can actually be quite complicated. Attorneys have to consider the possible product and geographic markets, which entities will count as competitors, potential efficiencies that may justify an increase in concentration, and so on. And if the client decides to go through with the merger, then the attorneys generally have to defend the merger, produce mountains of documents to the government, respond to all the government's requests, advocate on behalf of the client, etc.

I'm not too sure about exit options beyond the FTC/DOJ, but it seems that antitrust attorneys usually get good litigation experience that would aid them at a smaller firm, even one that doesn't do much antitrust.

Thank you for the explanation! Are junior associates looking at the potential effects in geographic markets, or mainly conducting diligence etc... I guess my question is: what does the day-to-day life of a junior antitrust associate look like?

[Anonymous User]

Antitrust associate here.

(1) A background in economics could be helpful, and an interest in economics is definitely helpful, but you don't really need to know much. You'll learn the relevant concepts in your law school antitrust course. As another poster mentioned, the bulk of the economic analysis is done by economists. As a lawyer, you'll need to be able to converse with them and use their findings but, most likely, you'll have been working with the subject matter for a few years before you are responsible for that.

(2) There is a good amount of antitrust work in NYC too. Differences in types of cases and prominence of practice have more to do with firm (or the specific partners bringing in work) than city (as between DC/NYC). Some firms will also have a lot of cross-office work, so the types of cases don't really differ. Most firms don't have separate antitrust groups as far as associate assignments are concerned, though. That is, usually antitrust work is part of a general litigation group, so getting in with the partners who do antitrust work will be on you. The only firms I can think of in NYC with prominent antitrust practices and where associates are assigned to do antitrust work exclusively are Skadden, Wilson Sonsini, and possibly White & Case. So, if you decide you are seriously interested in antitrust, it's worth asking about how work is assigned when you are interviewing for SA positions, so that you can either get into an antitrust-only group or make efforts early on to get to know a partner who does a lot of antitrust work. Outside of DC and NYC (in the U.S.), antitrust work is less common. There are some CA firms that do a decent amount too.

(3) This depends on whether you do litigation or transactional antitrust work. At some firms (e.g. where antitrust is a standalone group), you may be able to do both. On the litigation side, it can be a mix of private litigation and government investigations. Both involve a lot of document review for junior associates (mostly looking for communications with competitors, business documents indicating how decisions were made and for what reasons, etc). Antitrust litigation can be particularly doc review heavy because, especially with government investigations, the scope of document requests can be very broad with limited ability to negotiate them. Otherwise, the tasks are similar to any other litigation work - legal research, etc. On the deal side, part of what junior associates do is help to assess the industry/competitive effects of the deal early on. This usually entails going through publicly available information (and possibly data rooms) to collect market information. As far as the approval stage, junior associates help write white papers to present the case for antitrust approval (there may also be affidavits and depositions involved), help prepare HSR filings, etc. For a first year, these things basically involve more doc review, but with a narrower scope.

(4) There can be overlap between IP and antitrust issues but they aren't usually dealt with in depth by the same people. I do think that a basic IP class in law school is helpful. I have worked on several cases that rested heavily on IP issues (most often patent issues) and it helps to understand the basics. The extent to which tasks are handled by antitrust counsel, IP counsel, or both depends a lot on each client's preferences and relationship with counsel. Regardless, the antitrust issues usually depend on the IP arguments, so it's difficult to avoid working with the IP issues somewhat. For example, as a junior, you may end up looking through documents containing patent applications and related communications, with the task of finding evidence that a party did or did not think a patent was valid. You learn as you go along, and it's not like a law school IP class is going to teach you how to understand whatever scientific content is at issue, but knowing the basics of IP processes/standards is a good start.

[Anonymous User]

Can anyone say what exit ops are like for antitrust attorneys other than governnment? I assume there's not a lot of in house antitrust attorneys. Are there antitrust boutiques/how easy is it to transition to small firms? I know most will just be speculating, but even speculation would be helpful.

FTC/DOJ Antitrust are the most logical steps, but both are competitive (ha!... sorry) so I don't actually see the move happening a lot. For people who exit relatively early on, I see a lot of movement to boutiques/smaller markets, often into general commercial litigation or white collar crime (for those who worked a lot on gov't investigations while in antitrust). I have seen people go in-house as well (generally to their clients), though it is more difficult to go in house with antitrust experience (even if entirely deal-side) than general corporate experience. I don't know anyone who has moved to an antitrust position in-house (usually they function as generalists, which is why it is more difficult to make the move with specialized experience like antitrust work). Some very large companies have in-house antitrust lawyers (the Disneys and Googles and Apples of the world), though they're tough jobs to get and usually require several years of experience (i.e. they aren't looking for fourth-year associates, as far as I know).

[Anonymous User]

To the Antitrust associate above or other antitrust associates:

Is there substantive Antitrust work between V50- V100? I am asking b/c I have an interest in this practice and am not sure what his high up the Vault rankings I can make it...I have spoken w/ an Antitrust partner b/w V50-V100 and he was very informative and down to earth, and he could be a partner/ practice group leader worth working for....is a lower vault worth it or should I aim as high up the rankings as possible... Obviously the higher vault ranking seems like it gets "better" work but I don't really know what to think.

[Anonymous User]

To the Antitrust associate above or other antitrust associates:

Is there substantive Antitrust work between V50- V100? I am asking b/c I have an interest in this practice and am not sure what his high up the Vault rankings I can make it...I have spoken w/ an Antitrust partner b/w V50-V100 and he was very informative and down to earth, and he could be a partner/ practice group leader worth working for....is a lower vault worth it or should I aim as high up the rankings as possible... Obviously the higher vault ranking seems like it gets "better" work but I don't really know what to think.

If you want to do antitrust the only rankings that matter are Chambers bands. I don't think you should avoid the practice area just because you can't get hired by A&P or Cleary or whatever. Lower-ranked firms generally don't do the biggest deals, but they still often do mergers worth more than $1b. Once you've determined which firms to target, read about their recent antitrust matters and see what interests you.

[Anonymous User]

To the Antitrust associate above or other antitrust associates:

Is there substantive Antitrust work between V50- V100? I am asking b/c I have an interest in this practice and am not sure what his high up the Vault rankings I can make it...I have spoken w/ an Antitrust partner b/w V50-V100 and he was very informative and down to earth, and he could be a partner/ practice group leader worth working for....is a lower vault worth it or should I aim as high up the rankings as possible... Obviously the higher vault ranking seems like it gets "better" work but I don't really know what to think.

If you want to do antitrust the only rankings that matter are Chambers bands. I don't think you should avoid the practice area just because you can't get hired by A&P or Cleary or whatever. Lower-ranked firms generally don't do the biggest deals, but they still often do mergers worth more than $1b. Once you've determined which firms to target, read about their recent antitrust matters and see what interests you.

thank you!

[Anonymous User]

Do any current FTC or antitrust attorneys out there have any summer reading suggestions for those interested in antitrust law? Basic economics books, etc? I don't have an UG degree in Econ but I am interested in the subject.

[Anonymous User]

Do any current FTC or antitrust attorneys out there have any summer reading suggestions for those interested in antitrust law? Basic economics books, etc? I don't have an UG degree in Econ but I am interested in the subject.

Don't waste your free time reading about the law. The economics behind antitrust law really aren't that difficult - you'll either figure it out on the job or learn it from an antitrust class.

[Anonymous User]

Do any current FTC or antitrust attorneys out there have any summer reading suggestions for those interested in antitrust law? Basic economics books, etc? I don't have an UG degree in Econ but I am interested in the subject.

This is going to sound stupid, but roughly 95% of the stuff you need to know about antitrust econ can be learned through Wikipedia and the Antitrust Law in a Nutshell book (both of which are probably free, if you're still a student).