Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Monday, June 23, 2008

The Best US Antitrust Practitioners?

Posted by D. Daniel Sokol

In looking at the individual rankings from the recently released Chambers 2008 US rankings for both DC and NY, one striking difference between the two lists is that the DC rankings are heavily populated by former agency people (and indeed former senior ranking agency people) while the New York list has far fewer people with ANY agency experience.

How important is agency experience, and in particular senior agency experience?  If I was a general counsel and I had a complex merger that raised serious pontetial antitrust issues (and I think that it is particularly the case with mergers), I would in almost every case want to hire someone with agency experience for a number of reasons: 1. former agency people may have better credibility before the agencies, 2. former agency people may have a bit more of an insider's sense of the agencies in terms of understanding the agency's thought process and perhaps could better reassue me as the client, 3. if the deal goes bad because of antitrust concerns, I would want to be able to cover myself to my superiors in my company by saying that I had hired someone with lots of experience dealing with the agencies who know the US antitrust agencies inside and out.  I think that none of these reasons cannot be overcome by someone who is really good and has never worked at an agency (and there are a number of people with agency experience who seem to be less good than those that have it), but is is striking how nearly all of the best practitioners in DC have agency experience.  This raises a larger question of whether or not if a deal goesfor competitive bid and there are complex antitrust issues, do GCs nearly automatically choose a separate DC antitrust practice for the legal work even if they choose a NY firm for deal work?  My suspicion in talking to general counsels is that this happens quite a bit.  If so, the big question to me is, given the per partner profits of NY based firms, why don't NY firms plug in senior antitrust agency people into their practices more often either poaching directly from government or via lateral hires?

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Comments

This is an excellent analysis. I would add one more factor. Perhaps the most significant reason to use antitrust counsel closely tied to the agencies (whether or not former agency people) is their insight and credibility on the toughest issue of all: if you have a deal that is potentially troublesome, do you immediately follow up the HSR filing with a trip over to the FTC or DOJ, or do you even make a pre-filing trip over to talk about it? This issue comes up in many, many industrial deals where you are talking a four to three or even a three to two combination, the HHI is apparently sky-high, but there is industrial logic to the deal, and qualitative aspects to it that do not surface in a top level look.

Posted by: Jeff Lipshaw | Jun 23, 2008 6:20:59 AM

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