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Hot Practice
by LISA STANSKY

Antitrust law booms in era of mergers and breakups

If you want your legal handiwork to touch the lives of those around you, become an antitrust lawyer.

Antitrust is already part of your life. Turn on your computer—its Microsoft innards are part of one whopping case. Gas up your car. Plenty of antitrust activity in those recent oil company mergers. Call a friend. Your local phone company is the offspring of one of the most monumental corporate breakups in legal history.

The spate of recent mega-mergers—and governmental concerns about their impact on the free market—made antitrust a household word.

"Every day you now see things in the newspaper involving antitrust," says Janet McDavid, a partner with the Washington, D.C., office of Hogan & Hartson who chairs the American Bar Association’s Section of Antitrust Law. "My family finally understands what it is I do."

What you do as an antitrust lawyer can mean many things, depending on your inclinations, and whether you wish to launch your career in a public or private sphere. There are coveted posts with the U.S. Department of Justice, but government jobs extend beyond that realm. Any number of federal and state governmental bodies offer opportunities to young lawyers who endeavor to become champions of the laws on the books.

In the private arena, there are opportunities to serve as a business adviser, regulatory advocate, and courtroom litigator for your corporate clients. Your work may range from counseling clients, finessing governmental approval for deals from various regulatory agencies, or litigating in the courtroom as you defend against a governmental enforcement action or protect your client’s interests in private suits.

Why does antitrust have the limelight? "The economy is hot," says Federal Trade Commission Chairman Robert Pitofsky, pointing to several factors. On top of high-profile mergers and acquisitions, he notes, there are a host of other corporate restructuring tactics that raise antitrust issues. Particularly in high-tech industries, "firms are entering into arrangements which require governmental oversight," Pitofsky says.

Remember that the FTC shares responsibility for governmental oversight of big deals, and Pitofsky observes that his agency is "swamped with antitrust business."

Interested in a specific industry? Link up with the antitrust squadron of the federal agency with oversight authority. For example, telecommunications fans might seek work with the Federal Communications Commission.

Don’t overlook state arenas. Lawyers in the field say the attorney general’s offices across the nation have boosted their antitrust enforcement activity, creating additional opportunities. Every state has its own antitrust laws to enforce, and each state attorney general’s office has an antitrust section, says Charles James, chair of the antitrust law committee of the ABA’s Section of Business Law.

If the words "public policy" make your heart flutter, antitrust law is hog heaven. One central policy question—how to protect consumers without hampering free commerce—is the intriguing central policy issue involved in antitrust practice, Pitofsky says.

Economic theory is an integral part of antitrust practice, which gives the field an interdisciplinary, intellectually stimulating depth.

"In the last four years or so, economics has become indispensable to an antitrust practice," says William Page, a professor at Mississippi College School of Law in Jackson, Miss. Page is chair of the antitrust and trade regulation committee of the ABA’s Section of Administrative Law & Regulatory Practice.

Antitrust demands the mastery of statutory, administrative, and case law. Antitrust actions can proceed as criminal or civil cases, both with high stakes.

"You start off with individual executives going off to jail," not to mention the threat of tens of millions of dollars in criminal fines, says James, a partner in the Washington, D.C., office of Jones, Day, Reavis & Pogue. On the civil side, he adds, there’s the possibility of treble damages in civil suits.

On top of this heady intellectual work, lawyers in the private sector must know a client’s business inside and out—literally. Just ask the Antitrust Law Section’s McDavid, who spent time packing fish in cans when she was representing a major tuna producer involved in a proposed merger.

"Antitrust requires us to understand intimately the business in which our clients are engaged," she says. McDavid also donned a helmet and rode around in a tank as a member of a task force looking for ways to consolidate the defense industry in post-Cold War times.

You may wonder whether your practice will ebb and flow with changing governmental regimes that may be more or less likely to make antitrust enforcement a priority. There certainly have been ups and downs since 1890, when Congress enacted the granddaddy of antitrust laws, the Sherman Antitrust Act. But lawyers in the field say the practice is flexible enough to ride the political waves.

"There certainly is what antitrust lawyers describe as a pendulum," says James, noting that Republicans tend to place more faith in unfettered economic forces than Democrats. Yet the practice adapts to partisan shifts. "The transactions change to meet the transactional climate," James says. Pitofsky notes that the current political climate has a "more bipartisan centrist approach to antitrust," which should reduce fluctuations in enforcement that marked earlier decades.

If you’re enthused about antitrust, you’ll want to put that basic antitrust course on your roster, along with any advanced seminars. The economics angle is also important, practitioners say. If you can find a course on law and economics, or even on basic economic theory, seriously think about signing up.

"Take some kind of economics, any kind of class in law school that focuses on economics and the regulatory arena," advises Timothy Burke, chair of the Antitrust Law Section’s committee on business torts and unfair competition. Burke, who has practiced some 30 years, says one challenge stems from applying longstanding laws to our rapidly evolving economic conditions.

When learning the law, be patient. "The learning curve for antitrust is extremely flat for a long period of time," says David Evans, chair of the Antitrust Law Section’s Internet committee.

Where you work will affect what you learn, notes Evans, an associate with Washington, D.C.’s Arent Fox Kentner Plotkin & Kahn. He’s worked for large firms, where he says there’s greater opportunity to watch cutting-edge lawyers in action. "You do learn by osmosis."

Antitrust law is a part of your life. Now you have the chance to make it your livelihood as well.

Lisa Stansky is a lawyer and freelance writer in New Orleans.

Resources on Antitrust Law

For $10 a year, you can become a student member of the American Bar Association’s Section of Antitrust Law (312-988-5609, www. abanet.org/antitrust). That buys you three issues yearly of Antitrust, the section’s magazine, plus three issues of the Antitrust Law Journal. The section’s 30 committees—covering a host of substantive law areas, industry specialties, and skills topics—are open to you. Then there’s the section’s annual spring meeting, where you can meet practitioners. The section web site’s Law Student Link contains information about outreach efforts to law students. The site includes information on the section’s Racial and Ethnic Minority Externship Program, the Law Student Writing Competition, and other timely information.

Also for $10 a year, law students can join the Section of Administrative Law & Regulatory Practice (202-662-1528, www.abanet.org/adminlaw). Membership entitles you to attend the section’s four yearly meetings. You will also get a subscription to two quarterly publications: Administrative & Regulatory Law News, and the Administrative Law Review.

Membership in the Business Law Section (312-988-5680) is free for Law Student Division members. Periodicals included with membership are Business Law Today magazine and The Business Lawyer journal. To learn about the section’s antitrust law committee, visit www.abanet.org/buslaw/antitrus/home.html.

To join any ABA section, call 800-285-2221.