Transcript | Antitrust Conversations: Antitrust Litigation

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Allison Smith:

Hello. I'm Allison Smith. I'm an associate with Wilson Sonsini's antitrust group, and I'm joined here today by my colleague Ken O'Rourke, a partner in the antitrust group. Ken has been an antitrust litigator for about 35 years and has experience for the full gamut of cases from multibillion-dollar mergers to international cartels. Ken, thank you for joining me today.

Ken O’Rourke:

Allison, thank you. Thank you for that kind introduction. You know, time flies when you're having fun. And one thing, as you know as an antitrust litigator, is we work hard, but we enjoy what we're doing. You know, the antitrust laws-- the main law, of course, has been around, the Sherman Act, for more than a hundred years, yet here we are today still arguing back and forth in our cases what does it mean. How do you apply this hundred-year-old law to technology of today-- or cases, to industry today? And it's also ever-changing. So it's a lot of fun intellectually. It's also a lot of fun because of the people we get to practice with.

But let's break it down a bit. Give us a sense, an overview of the types of antitrust litigation that we see.

Allison:

Sure. So, I see three main distinctions. And the first is civil versus criminal. Price-fixing cases and those types of violations can actually be criminal violations under federal law. And then on the civil side, you've got another distinction by the type of plaintiff that you're facing, and that can be either government entities at the federal or state level or private companies, who may be suing a customer, a competitor, or supplier for some sort of violation that has harmed them.

And the final distinction I would draw is between merger litigation, which is challenging the potential future effects of an acquisition, versus conduct cases that are challenging prior conduct by a company and its effect on the market.

So, Ken, you know, you mentioned it's different than complex business litigation. How do you advise clients given the complexity of these cases?

Ken:

So each case brings its own challenges, its own issues, but in the big picture sense when we're talking to clients, oftentimes, there is a parallel criminal action, as you've mentioned. The Department of Justice is investigating an industry for price fixing. At the same time, we're litigating-- our client has been sued, or we are bringing a suit because of alleged price fixing. And so that's different than complex litigation.

You don't typically have a parallel criminal investigation, the result of which is, among other things, witnesses may assert the Fifth Amendment and not testify. That could be a witness who could be helpful, actually, to talk about the key events and explain that they're not as...evil, if you will, as what the other side—how they're characterizing it. But they're unavailable because they're just asserting the Fifth and not testifying at all. Or a company that's being investigated may have an obligation to cooperate with DOJ and turn over documents. When they do, those documents, very often, go straight to the civil plaintiffs as well.

Of course, I haven't even mentioned class action. So, you know class actions. How does that fit in?

Allison:

We do see class actions a lot in antitrust litigation, particularly brought by purchasers. And the interesting thing there is that with these global supply chains that so many companies use today, and there's so many different components that get added until final end product, you can have multiple classes at different levels of that supply chain from a direct purchaser to maybe a retailer to your end consumer, like you and me, who purchased that device in its final form. And class actions add another layer to the litigation, both substantively and procedurally, of course, through the class certification proceedings. And those highlight another thing that I love about antitrust litigation, which is the heavy focus on economics and the fact-specific nature of it. You really have to understand the industry and how the industry works in order to understand the effect of the conduct at issue. And oftentimes, you're working very closely with economists to do complicated econometric analyses in order to prove in the class action context common impact on all of those class members, and so it's fun to have economists become part of your legal team, as well, to help with those issues.

Ken:

Right. Usually, we'll try to talk to them early and often, because their view of the industry and the way the transactions unfolded leading up to the litigation are often very important to the overall story that we're going to tell, whether we're, you know, bringing the case on behalf of the civil plaintiff or defending the case on behalf of the defendant.

So with all of this complexity and so many different moving parts, how do you advise a client when they're facing antitrust civil litigation?

Allison:

I think you have to break it down. And I think the first thing that's easy to lose sight of throughout the length of litigations-- as you know, these cartel cases can go for a decade or more-- is, what is the client's objective? And that may differ in different situations. It may be to get out quickly without too much disruption of the business, or it could be they need to protect a very important business product or business service that's being attacked. And it could be, you know, truly an existential crisis for the company, this litigation. And so, once you have that objective in mind, that can shape the rest of your strategy. Because, of course, you want to be most efficient in the shortest route to that objective for your clients. So, you do have all these different perspectives. You have some experience as a chief legal officer of a large corporation.

How does your role as an in-house lawyer, who's dealing with all these different businesspeople who have different perspectives, differ from your role now that you're back in private practice as outside counsel?

Ken:

Well, when I went into the general counsel position that you mentioned, I thought I had a pretty good sense of what that would be like, having been an outside litigator for so many years, by working with lots of in-house lawyers over the years. Boy, was I wrong. The in-house lawyer has such a different perspective because they have a different audience. What's the best result for the client? How are we going to get there quickest and most effectively? Of course, that's fundamentally important. At the same time, the client wants to layer on other objectives of things they want to do. And you mentioned some of those already. And so, you have to take that into account. The client brings that.

The client knows its business, it knows its industry, it knows its management, it often knows the main players sometimes on the other side of the case. And the client, the general counsel, the legal team, the chief litigation lawyer, they know the company and how they like to handle litigation. And that's something that we, as outside lawyers, strive to learn. We always want to know their business better, but we're not going to know it as well as they know their business.

Well, I've been doing this for 35 years, plus or minus. I started young. Ha!

Let me ask you. You've been an antitrust litigator now for about five years. What do you look forward to in your career as it's unfolding?

Allison:

You know, antitrust law is so dynamic that I'm just excited to see what the next, you know, hopefully, 30 years of my career will also look like, given how quickly it changes, because industries change, and the antitrust laws are, you know, often really through judge-made case law, and just having to adapt to all those new situations.

Ken:

So, Allison, I'm glad we had a chance to chat today. I enjoyed it. Thank you.

Allison:

Ken, thank you for sharing all your expertise.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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