The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
We invited the top ten firms in each practice area, as ranked by over 17,000 associates from across the country in Vault’s annual Associate Survey, to be featured in this guide. Cleary ranks 1st in Antitrust.
Elaine Ewing, Partner—Antitrust
Ms. Ewing is a partner based in the Washington, D.C. office. Her practice focuses on antitrust counseling and antitrust litigation. She joined the firm in 2007 and became a partner in 2016. Ms. Ewing received a J.D. degree from Harvard Law School in 2007 and an undergraduate degree from Amherst College in 2004.
Please provide an overview of what, substantively, your practice area entails.
There are two major components to my practice. First, merger clearances—securing antitrust approvals of mergers and acquisitions. Second, antitrust litigation—primarily defending companies who are the subject of government investigations and/or private civil litigation.
This transaction/litigation split is typical at Cleary Gottlieb. We don’t think of “antitrust lawyers” and “antitrust litigators” separately. Instead, all of our antitrust lawyers are litigators. This helps us be more effective lawyers—when we are working to secure a merger clearance, we have the perspective of a litigator, and can better think about how we might defend the deal if it is challenged by antitrust regulators. And as litigators, we often represent companies we know very well from years of working on their transactions.
It also means that, even as a senior lawyer, I’ve never had to choose between “corporate” and “litigation”—I do both every day.
What types of clients do you represent?
One of the great things about antitrust is the wide variety of products and industries that I get to learn about. My clients range from technology companies (Google) to consumer products companies (Coca-Cola, Whirlpool) to chemical companies (Dow Chemical) to health care companies (Medtronic) and beyond. As an antitrust lawyer, I learn their businesses inside and out. Whether it’s defending a client’s business practices in court or negotiating with regulators in connection with a transaction, I have to understand the companies’ products and business models and how they fit in with the law.
What types of deals and/or cases do you work on?
On the transactional side, antitrust lawyers work on obtaining merger clearances—basically, convincing the antitrust authorities in the U.S. and other countries that a proposed transaction won’t lead to higher prices or otherwise harm competition. As I’m writing this, I’m spending a lot of time on the Dow/DuPont $130 billion merger of equals, which was announced in December 2015 and will involve advocacy to the regulatory authorities in the U.S. and Europe, as well as numerous filings around the world, which Cleary Gottlieb is coordinating. I’m also working on Air Liquide’s $13 billion acquisition of Airgas, which will create the largest industrial gas supplier in North America.
In litigation, our job is usually explaining to a court why a company’s business practices (pricing, contracts, product design, etc.) don’t violate the antitrust laws. (Sometimes, we act for plaintiffs, and get to argue that another company’s practices do violate the antitrust laws, which is an interesting change of pace.) I’m currently working on the ongoing Keurig monopolization litigation. Like many of Cleary Gottlieb’s cases, this cases raises novel issues of antitrust law, including under what circumstances—if ever—a company’s product design can be an antitrust violation. The Second Circuit recently upheld a District Court decision denying a competitor’s motion for a preliminary injunction that would have stopped Keurig from introducing its new brewer, which was a big victory for our client. Our motions to dismiss the complaints are pending.
How did you decide to practice in your area?
I went into law school thinking I wanted to be a litigator; I was only vaguely aware of antitrust. As I talked with lawyers during the law firm interview process and learned more about different practice areas, antitrust stood out. I’ve always been a curious person, and the idea of learning about so many different industries appealed to me quite a bit. As a summer associate at Cleary Gottlieb, I got to try out antitrust law, among other areas, and confirmed that it was indeed what I wanted to pursue. Ten years later, it’s still fresh and interesting.
What is a typical day or week like in your practice area?
There really is no typical day or week. My favorite part of my job, which I spend a fair amount of time doing, is interviewing businesspeople and learning about what they do all day. I also spend a lot of time talking with businesspeople, in-house lawyers, economists, colleagues, and co-counsel to help develop our strategy in each of our cases. And of course, I spend time working on the briefs and presentations that will persuade courts and authorities of our position and then making the corresponding arguments and presentations.
What is the best thing about your practice area?
For me, the best thing about antitrust law is the tight nexus to business and industry. A lot of law students have the idea that they want to be “corporate” lawyers. While certainly some of these students are genuinely interested in drafting corporate documents and negotiating deals, my experience has been that many are really excited about being involved in business from the legal side. For those students, antitrust law is the perfect fit. Practicing antitrust law gives you tremendous exposure to all aspects of a company’s business, from working with corporate development groups and investment bankers about a company’s M&A strategy to working with the day-to-day businesspeople who are involved in designing, marketing, and selling products.
What is the most challenging aspect of your practice area?
Antitrust transactional work moves quickly. That isn’t necessarily negative—unlike in many practice areas, antitrust matters typically go from start to finish in a year or less, meaning that you get a lot of varied experience in a short period of time. However, the pace often means you need to get up to speed and become an educated advocate very quickly. That is often challenging, especially when transactions involve particularly complicated products that require time and energy to understand before you even start thinking about the legal arguments.
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
Besides taking antitrust, getting as much of a background in economics as you can is a great start to being an antitrust lawyer. We aren’t economists who are processing data ourselves, but we work closely with economic experts and need to be able to translate their work into a form that can be understood by regulators and judges. But don’t despair if you don’t have an economics background—there is plenty of opportunity to learn economics as a junior associate.
Otherwise, I would encourage anyone interested in practicing at a firm, whether in antitrust or another practice area, to take the classes that cover the topics most relevant to our clients, including Corporations and Securities Regulation. If you’re going to represent major public companies, it’s very helpful to understand at a basic level how they are structured and governed. And when dealing with companies that are under investigation, it’s helpful to have at least a passing familiarity with their disclosure obligations.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
Because of its economic focus, antitrust law can be intimidating to some law students. But there is really no need for a masters’ degree (or even an undergraduate degree) in economics. Curiosity and a willingness to learn are critical, but with those, an interested law student can become a successful antitrust lawyer.
What is unique about your practice area at your firm?
Our antitrust practice stands out because of its global depth. We have antitrust lawyers in 11 offices and work closely with our colleagues to secure global clearances and defend against investigations in many jurisdictions. I’m on the phone with colleagues in Europe and Asia almost daily as we work together to best represent our clients. Our global team is especially strong because so many of our antitrust lawyers have spent time practicing in other offices, whether as summer associates (I spent half of my summer associate tenure in Brussels), associates, or partners.
In the time I’ve been at Cleary Gottlieb, the practice has only become more international. Dozens of countries now have merger control regimes, and major transactions can involve five, ten, or more filings. In the past year, I’ve been involved with filings in more than two dozen jurisdictions on six continents. I won’t list them all, but they include China, India, Brazil, Japan, South Africa, and Australia. The same is true on the litigation side, where more and more countries are developing antitrust enforcement and private civil litigation regimes. My civil litigation practice includes, in addition to the U.S., ongoing cases in Canada, the UK, Brazil, and Israel.
What activities do you enjoy when you are not in the office, and how do you make time for them?
I have a four year old daughter, who keeps a lot of my free time occupied with Legos, bike rides, and trips to the park. Fortunately, she also inherited my husband’s and my love of travel, and is always up for a weekend trip or a longer vacation. I’ve found that even a quick trip is a great chance to recharge, and a couple of longer trips each year are a must.