The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Daniel P. Culley, Partner—Antitrust
Dan is a partner based in the Washington, D.C. office. His practice focuses on antitrust counseling and antitrust litigation. He joined the firm in 2008 and became a partner in 2017. Dan received a J.D. from Georgetown University Law Center in 2008 and an undergraduate degree from Georgetown University in 2005.
Please provide an overview of what, substantively, your practice area entails.
Antitrust law is about ensuring that businesses compete, to the benefit of consumers. Different statutes apply to various types of conduct, such as mergers, agreements between firms, and monopolization. But each is brief and abstract, leaving wide scope to argue over the appropriate rules that courts actually apply. At the end of the day, we are asking the question, “Does this conduct make consumers better or worse off?”
We also think about how different rules might shape businesses’ behavior in the future. For example, if a rule on particular conduct is very strict, it may prevent harm to consumers in many instances, but it could also deter businesses from competing aggressively to the benefit of consumers.
What types of clients do you represent?
Effectively practicing antitrust law requires getting to know how each industry works in detail. I represent clients from a wide variety of industries, including technology firms (Google, Western Digital, Broadcom, NVIDIA, Sabre), private equity funds (TPG, Warburg Pincus, GTCR, Vista), financial institutions (Goldman Sachs), logistics companies (Deutsche Post), and industrial firms (Arcelor Mittal, Sterigenics). While I’ve developed expertise in how competition works in complex, high tech industries, I also really enjoy the variety—it’s one of the great joys of my job.
What types of deals and/or cases do you work on?
Antitrust can come into play in front of government agencies or courts. Unlike many other firms, at Cleary Gottlieb we don’t have separate teams of “antitrust lawyers” and “litigators”—all of our antitrust lawyers are litigators. We are always thinking about building a record to defend our clients in court—even when we are in front of government agencies, we have to be ready to challenge their decisions if they are not in our client’s favor—and that makes us more effective advocates. We also get a huge diversity of experiences, both in the range of industries involved and the type of matter—whether it be in the context of a transaction, litigation, or government investigation.
A big part of my practice involves appearing before government agencies. Essentially, we’re persuading the government not to sue our clients and, if the government does, defending them in court. These investigations most frequently involve mergers—convincing the government that a proposed transaction won’t lead to higher prices, lower quality, or lower output. As I write this, I just finished securing antitrust approval for two software deals, one for GTCR involving competing vendor management systems for temporary workers, and one for Vista Equity Partners involving competing providers of event management software. Before that, I advocated before the FTC to win clearance of the sale of Electronic Funds Source (EFS) to WEX, two of the top three payment card systems for trucking companies. And that was on the heels of two cement deals in a row—a $4 billion deal between Italcementi and Heidelberg Cement and a €40 billion merger of equals between Lafarge and Holcim, which created the world’s largest construction materials company.
I also handle civil litigation with private parties. A few years ago, I was defending our client Sabre in an antitrust litigation brought by American Airlines. That case went to trial, which was a great experience. I spent a good part of last year handling discovery in a price-fixing case brought by class-action plaintiffs against our client DHL Global Forwarding. That case involved defending dozens of depositions of our client’s employees in Europe and Asia, as well as eventually filing a motion for judgment on the pleadings to help limit the scope of discovery, which ultimately led to a favorable settlement.
Finally, we also handle criminal investigations. Certain “hardcore” antitrust violations, such as price fixing, are also prosecuted criminally, punishable by up to ten years in prison. These cases are similar to other white-collar criminal investigations: we negotiate with the government to secure leniency, a plea agreement, or ultimately head to trial. Most recently, I helped Deutsche Post AG secure leniency in a criminal price-fixing investigation in the freight forwarding industry. As part of the conditions of leniency, I helped prepare employees in multiple countries for interviews with the FBI and DOJ.
How did you decide to practice in your area?
I first learned about antitrust law while studying economics as an undergraduate, and it sounded very interesting to me. As I entered law school, though, I still had very little idea what I wanted to do. I took antitrust law with Steve Salop, a legendary antitrust economist, at Georgetown, and I got the opportunity to speak to many practicing lawyers. After that, I was hooked.
What is a typical day or week like in your practice area?
Our practice varies so much that there really isn’t a typical day or week. There are days when I’m in the middle of a big deal, interviewing business people, collecting documents, and working with economists to help put together a presentation for a government agencies. Other times I’m preparing for depositions in civil litigation or briefing a motion to dismiss.
What is the best thing about your practice area?
My favorite part of the job is spending time with business people, learning how their industries operate and how they make competitive decisions. And, lucky for me, that’s what I spend most of my time doing! In my experience, business people are eager to help us understand, and they get very excited when we’re catching on. It’s a fun dynamic. Plus you learn innumerable random facts to use at cocktail parties.
What is the most challenging aspect of your practice area?
Like any type of law, being a successful antitrust lawyer is not just about having the “right” arguments, but having the right argument to persuade the audience that you are in front of. In antitrust, we end up in front of a lot of different audiences, even in the span of the same matter.
When we’re in front of government agencies, it’s a sophisticated audience of both lawyers and in-house economists.
They are regularly dealing with complex economic issues, and our analytical approach has to keep pace with that. On the other hand, when we’re in court, we’re in front of a very smart, but generalist, district court judge and a jury of citizens with differing backgrounds—many of them will have never encountered antitrust law before. At the end of the day, it’s about telling a story that is supported by the evidence and that is compelling to your audience. But that’s a lot easier to say than it is to do!
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
I recommend taking antitrust law and as learning as much economics as possible, and getting involved in a clinic or trial practice class. We aren’t economists working with the data ourselves, but we do work closely with economic experts and need to be able to intuit and explain their work, and to frame the story coming out of the business’s documents and witnesses to fit in that framework. That doesn’t mean you need a background in economics to be successful—just a willingness to be a voracious learner as a junior associate—but it does give you a head start.
Clinics and trial practice courses are useful because there is really no substitute for working through the nuts and bolts of a litigation matter: interviewing witnesses, taking and defending depositions, writing advocacy, and making oral arguments. Even though the part of our practice in front of government agencies isn’t quite as formal—we do presentations or white papers instead of briefs, for example—the basic skills are the same.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
I sometimes see law students pass up antitrust because they don’t want to be involved in a “regulatory” practice area, thinking they will primarily be working on things like rulemakings instead of being involved in litigation. Nothing could be further from the truth. The government agencies that we deal with don’t have any regulatory authority: If the agencies want to challenge conduct, they have to convince a court that it violates the law. Everything we do before the agencies is about preparing to put on a case in court. Before I started practicing antitrust law, I did not appreciate how important that would be. In several of the deals I’ve been involved in, we’ve come down to the bitter end, only to convince the agency to stand down days before filing a complaint.
What is unique about your practice area at your firm?
Our antitrust practice stands out because of its global reach and the quality of our associates. We have antitrust lawyers in 11 offices and work closely with our colleagues in matters that span many jurisdictions. I’m on the phone with colleagues in Europe and Asia almost daily.
We consistently get feedback from clients about the quality of advice not only from partners and senior lawyers, but from our associates. That is no accident. We have a consistent and firmwide philosophy to give our associates responsibility and autonomy as early as they are able to handle it, to actively be on the lookout for opportunities that help associates develop their skills, to invest the time in professional development to ensure that associates succeed, and to promote our associates’ accomplishments to our clients. It’s not an uncommon experience for a Cleary Gottlieb mid-level associate to be squaring off with a partner from one of our peer firms, and holding her own.
One major area of evolution since I joined Cleary Gottlieb has been our enormous investments in litigation technology and in a group of specialist lawyers and technicians who support it to both better serve our clients and improve the quality of life for our associates. We were pioneers in using technology-assisted document review, in advocating for the agencies to accept it, and in helping to educate clients and adversaries in how it works. Our specialist lawyers and technicians have extensive experience and have a near-magical ability to manipulate and sift of the documents identified by software to find the “hot documents.” The result has been greater accuracy, quicker turnaround, and lower cost for clients. It also means that our associates only spend time looking at documents that are key to the case, so they can build their skills as litigators.
What activities do you enjoy when you are not in the office, and how do you make time for them?
I’m obsessed with both running and wine, which hopefully cancel one another out. While we certainly work a lot, I have a lot of control over my schedule, and that makes a huge difference. This practice is more about what you produce than about when you are in the office—that’s how I work and how I manage my teams. And you should definitely take all of your vacation—I do!