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Biden Appointments, BigLaw Hires Signal Hot Antitrust Scene

By Justin Wise for

Recruiting efforts both inside the federal government and among major corporate defense firms are beginning to provide a snapshot of what the antitrust space could look like during President Joe Biden’s tenure in the White House.

Recent moves by the administration to appoint champions of antitrust reform signaled to some observers that it could be positioning itself to be far more aggressive in checking corporate power, especially that of Big Tech, than previous administrations. At the same time, growing attention on the issue is placing a premium on former antitrust regulators in the private sector.

In early March, several BigLaw firms hired antitrust lawyers with experience in the Department of Justice or the Federal Trade Commission, including former FTC Competition Director Ian Conner and Ryan Shores, a DOJ official who led its enforcement action against Google LLC last fall alleging illegal monopolies in web search and search advertising.

“It is no less than the market at work,” Jeffrey Lowe, a global practice leader at legal search firm Major Lindsey & Africa who helps place former government officials in BigLaw, told Law360 Pulse. “The demand is high for their services.”

The revolving door between private and public practice is a longtime fact of life in Washington, and it’s swung both ways seven weeks into the Biden administration. In the legal profession, dozens of BigLaw alums are now occupying roles in the White House and DOJ. Attorney General Merrick Garland has also suggested that corporate attorneys with experience defending major tech companies won’t be locked out of his Antitrust Division.

But Biden has also appointed civil rights lawyer Vanita Gupta as the head of the DOJ Civil Division and Tim Wu, a Columbia Law School professor and proponent of breaking up big tech companies, as a White House adviser. He is reportedly set to name Lina Khan, a Columbia Law professor known for groundbreaking work on antitrust, to the Federal Trade Commission. Gupta and Khan must be confirmed by the Senate.

The appointments, coupled with some lawmakers’ push to toughen existing laws, could portend a more active antitrust regulatory state in the years ahead. And such a scene will leave businesses on even higher alert for antitrust counsel in matters such as mergers and government investigations.

“Wu and Khan have publicly supported broader and more aggressive antitrust enforcement, as well as legislative changes that will broaden antitrust mandates and make it easier for a plaintiff to bring a claim,” Shores, now a partner at Shearman & Sterling LLP, told Law 360. “If this is the direction that the enforcement agencies and Congress go, it certainly means more demand for antitrust lawyers.”

Biden Admin Antitrust Team Starts To Take Shape

Jeff Hauser, executive director of the Revolving Door Project at the Center for Economic and Policy Research, told Law360 Pulse that it’s “still very early,” as multiple key posts in the administration have yet to be named. Those include a permanent FTC chair and head of the DOJ’s Antitrust Division, a position progressives want to come from the public sector or the plaintiffs’ bar.

So far, the Biden administration’s senior DOJ appointments include many officials who have flipped between posts in government and corporate defense. Lisa Monaco, a prospective deputy attorney general, was the Obama administration’s chief counterterrorism adviser before becoming a partner at O’Melveny & Myers LLP, where her clients included Exxon Mobil Corp. and Apple Inc., according to a government disclosure form.

Ethics rules bar officials from engaging in matters that pose conflicts of interest, but a host of progressive groups say the rules don’t address the inherent problems in lawyers representing corporate clients in industries they are later tasked with regulating. When Garland said during a confirmation hearing that some of the best antitrust lawyers in the U.S. have an association with Big Tech and that they should not be excluded for that reason, some progressives were worried.

“The suggestion that you couldn’t find brilliant antitrust lawyers who haven’t represented companies like Amazon — that’s just not true,” said Molly Coleman, executive director of People’s Parity Project, a group that is also pushing the administration to diversify the types of legal professionals it considers for federal judgeships.

Hauser, a former DOJ antitrust lawyer, last week sent a letter to the White House asking it to set a policy demanding that officials “entangled in Big Tech” through past employment or family ties recuse themselves from deliberations over antitrust personnel and policy.

The appointments of Wu, Khan and Gupta represent a sharp break from the revolving door, however.

Wu and Khan, for example, are outspoken critics of Big Tech who have worked in academia and government. Khan first gained notoriety as a Yale Law School student after writing the article “Amazon’s Antitrust Paradox,” which is credited with shifting antitrust conversations beyond consumer welfare. She’d be among five FTC commissioners, three of them Democrats, if confirmed.

Wu worked as an adviser in the Obama administration and has advocated for new approaches to antitrust analysis. His 2018 book “The Curse of Bigness” addressed corporate concentration across industries and ways to confront what he argued is an existential threat to democracy. Wu will serve on the National Economic Council as a special assistant to the president for technology and competition policy.

“The appointment of Wu is an important sign,” Michael Kades, a former FTC attorney and director of markets and competition policy at the Washington Center for Equitable Growth, told Law360 Pulse. “It puts somebody in the NEC who is focused on competition policy, that’s a sign that the administration is taking this seriously.”

A Rush To Stock Antitrust Practices

A complete picture of the antitrust regulatory scene has yet to emerge. However, many BigLaw firms are already building out practices focused on mergers, cartels and litigation, Gloria Sandrino, a principal at legal recruiting firm Lateral Link, told Law360 Pulse. She said it’s unprecedented to see firms building out all three of those practice areas at the same time.

The appointments of Wu and Khan seemed to reinforce firms’ need to expand if they’re looking to get more business, following a period of relative dormancy during the Trump administration, Sandrino said.

“There are going to be huge neon signs in terms of where antitrust is going to go” once FTC and DOJ appointments are finalized, she said. “But what I hear from law firms, they feel pretty good about reading the tea leaves based on Wu and Khan.”

Morrison & Foerster LLPLatham & Watkins LLPGibson Dunn & Crutcher LLPWilson Sonsini Goodrich & Rosati PCMcDermott Will & Emery LLP and Shearman in recent weekshired partners with senior DOJ or FTC experience. Lowe, the Major Lindsey partner, said the moves showed this space is only getting “hotter” after progressively gaining more attention in Washington.

Much of that attention is centered on Big Tech. The DOJ, the FTC and dozens of state attorneys general have filed actions against Google and Facebook Inc. saying they have illegally maintained monopolies. A 2020 congressional report has also accused Inc., Facebook, Google and Apple Inc. of anti-competitive business practices. State legislatures are taking aim at the industry as well, making lawyers with expertise in this area a hot commodity.

Attorneys with government experience and insight into how legal strategies are devised have always been appealing in the private sector, and it’s been no different in this space historically. They do have to deal with ethics laws constraining what matters former government officials can be involved in when immediately returning to the private sector; Biden has also issued ethics rules barring his departing senior government appointees from communicating with its officials for two years.

The Revolving Door Project obtained data for 63 non-economist, attorney-level staff members who departed the DOJ Antitrust Division between February 2014 and June 2020. More than half of them subsequently joined private law firms, according to data shared with Law360 Pulse. In recent years, companies like Facebook and Amazon have also hired former top DOJ antitrust officials as in-house counsel.

“This difficult-to-nail-down intangible experience is just as valuable in the legal world as it is in politics,” James Madison University professor Timothy LaPira, who studies the revolving door in lobbying, told Law360 Pulse.

The more recent partner hires reflect a “hunger” from firms, no matter their size, to be involved in this space somehow, Sandrino said. While much attention is on the federal level and Big Tech, practices focused on state investigations and smaller companies will likely see a lot of activity as well.

“It’s become the legal policy area to focus on industries that many consider to be too big or out of control,” Sandrino said. “I meet with firms, and a lot of the conversations are focused on antitrust.”

–Additional reporting by Bryan Koenig and Matthew Perlman. Editing by Brian Baresch and Marygrace Murphy.