Tag Archives: Antitrust

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Flexible Staffing for Antitrust Boom

Any way you slice it, antitrust is a booming practice area.  A year ago, Bloomberg Law projected that antitrust would be a top practice set to power Biglaw growth in 2022 and beyond.  The wisdom of that prediction was reinforced by what turned out to be an immensely competitive lateral market for antitrust partners, with a string of high-profile lawyers changing firms.  The 2022 lateral market was so strong that even partners without portable books of business were a hot commodity.  In 2023, the FTC has already proposed a broad ban on non-compete agreements, and the FTC and DOJ appear ready to issue revised merger guidelines based on last year’s “joint public inquiry aimed at strengthening enforcement against illegal mergers.”

As law firms confront an influx of major antitrust matters, some of which will arise on short notice, flexible staffing is playing an important role in serving clients efficiently and effectively.  Given this need, Bridgeline Solutions, a Lateral Link company, recently established a dedicated Antitrust Practice Group co-chaired by Bridgeline’s CEO, Craig Brown, and one of its senior executives, the Group’s Managing Director, David Copeland.  Craig is a former government attorney who practiced as an antitrust attorney with Kaye Scholer, the same firm at which David was a Chambers-ranked antitrust counselor for 25 years, including 15 years as a partner.

Although Bridgeline Solutions’ services have included antitrust since the company’s inception, the booming activity in this vital area drove the decision to establish a standalone Antitrust Practice Group.  The Group will advise on best practices in all areas of antitrust and will staff and manage Second Requests.  Additionally, the Group will continue to provide premier Biglaw-trained antitrust attorneys to assist on mergers as well as non-merger substantive antitrust matters.

The Antitrust Practice Group will also continue to assist in educating the public and practitioners in antitrust law and its evolution.  For example, Craig and David were instrumental in procuring Jonathan Kanter, Assistant Attorney General of the Antitrust Division of the Department of Justice, as the keynote speaker for the 2022 Milton Handler Lecture at the NYC Bar Association.  In delivering this Lecture, AAG Jonathan Kanter sharply criticized the “consumer welfare standard” that has been the hallmark of civil antitrust enforcement since the 1980s.  Instead, Mr. Kanter signaled that the Antitrust Division would prioritize “protecting competition” under his leadership.  “Companies that test our resolve . . . do so at their own risk and will continue to confront aggressive antitrust enforcement. As one of my predecessors explained, some deals should never leave the boardroom.”

After much anticipation, that tough talk is now translating into action.  In October, the DOJ successfully blocked Penguin Random House from acquiring Simon & Schuster.  In December, the Federal Trade Commission sued to block Microsoft’s $69 billion acquisition of video game publisher Activision, an ambitious effort that illustrates Chair Lina Khan’s willingness to bring cases that may be difficult to win. Law firm and corporate legal department leaders who wish to learn more about the Bridgeline Solutions Antitrust Practice Group’s services are invited to contact Craig Brown (917-551-0711) and/or David Copeland (570-517-1759).

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The 2022 Milton Handler Lecture: Refocusing Antitrust Enforcement On Competition

Assistant Attorney General Jonathan Kanter last week delivered highly anticipated remarks in person at the New York City Bar Association, where he was the keynote speaker of the 2022 Milton Handler Lecture. The head of the Antitrust Division of the Department of Justice, Mr. Kanter has been widely expected to take a vigorous enforcement approach. His May 18 speech was an opportunity to signal more explicitly what that might look like. And although he avoided any comment on specific fact patterns, his remarks made clear that busy times are ahead for the antitrust bar. 

Under Mr. Kanter’s leadership the touchstone of civil antitrust enforcement will be “protecting competition.” This marks an intentional departure from the “consumer welfare standard” that has predominated since the 1980s. In Mr. Kanter’s view, “consumer welfare is a catchphrase, not a standard.” It “systematically biases antitrust toward underenforcement” by neglecting to acknowledge the breadth of objectives that the Sherman and Clayton Acts were originally intended to pursue. “Senator Sherman himself expressed a goal of protecting not only consumers, but also sellers of necessary inputs, such as farmers.” Mr. Kanter noted that the Supreme Court endorsed this broad conception in the 1958 Northern Pacific case, when it described the Sherman Act as a “comprehensive charter of economic liberty.”

Mr. Kanter argued that in addition to unjustifiably narrowing the scope of antitrust enforcement, the consumer welfare standard is unintuitive and cumbersome to administer. “It cannot be that a business trying to understand the legality of its merger must undertake months of analysis to produce a complex simulation model, or that a court must decide an antitrust case by deciding among dueling consultants’ white papers reporting on simulations.”

Rather, Mr. Kanter believes we must “get back to first principles and focus on the policies that Congress was trying to advance in passing the antitrust laws.” Assessment of the competitive effects of a merger should include “real-world evidence, economics, expertise, and common sense.” As Mr. Kanter put it, if “somebody tells you that the NL East looks competitive this year, you understand what they mean.”

Mr. Kanter took the opportunity to put companies on notice that his team “will remain vigilant and undeterred,” noting that the Department has already sought to block anticompetitive deals in the airline and healthcare sectors. “Companies that test our resolve in these and other areas do so at their own risk and will continue to confront aggressive antitrust enforcement. As one of my predecessors explained, some deals should never leave the boardroom.”

The event marked the latest installment of a distinguished antitrust lecture series that dates back nearly half a century, and it was the first Handler Lecture since the pandemic. Craig Brown, CEO of Bridgeline Solutions (sister company of Lateral Link) and Co-Chair of the NYC Bar’s Handler Lecture Subcommittee identified Mr. Kanter as a potential speaker and met with him to explain the Handler Lecture’s storied history. Mr. Kanter graciously agreed to participate. Craig’s connection to Milton Handler goes back decades, to when Craig was an antitrust & litigation associate with Kaye Scholer and Professor Handler was still a practicing named partner of the firm (Kaye Scholer Fierman Hays & Handler).

Craig joined hosts Zach Sandberg and David Lat on this week’s episode of Movers, Shakers & Rainmakers. They discussed Mr. Kanter’s remarks, as well as Craig’s trajectory from antitrust lawyer to Bridgeline Solutions CEO. Continuing the antitrust theme, the hosts also talked about Covington & Burling’s hiring this week of partner Ryan Quillian, formerly the Deputy Assistant Director of the Technology Enforcement Division at the Federal Trade Commission.