The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.
Craig Waldman, Partner—Antitrust
Craig Waldman’s interest in the field of antitrust extends back to his undergraduate days at Cornell, where he majored in policy analysis, with a concentration in antitrust policy. Since earning his J.D. at the University of Michigan, Craig has focused his practice on antitrust government investigations and enforcement actions, merger reviews, counseling, and antitrust private litigation. He has worked across industries and has extensive experience in mergers, vertical distribution issues, price discrimination, antitrust criminal investigations, monopolization, and intellectual property licensing and trade regulation. In addition to private practice, Craig served for three years as a lawyer in the Federal Trade Commission’s Mergers I Division. He currently serves as an adjunct professor at Berkeley Law School. Listed among The Best Lawyers in America for antitrust law and antitrust litigation, Craig joined Jones Day in 2009 and splits his time between the firm’s San Francisco and Silicon Valley offices.
Please provide an overview of what, substantively, your practice area entails.
I practice in the field of antitrust, which provides a legal and economic framework to protect competition in the market- place. Although I have experience in all aspects of antitrust, I have particularly deep experience appearing before the Department of Justice, the Federal Trade Commission, and state agencies. Given the global nature of our clients and matters, I also work closely with my colleagues outside the U.S. to assist them before foreign antitrust authorities. The majority of my agency work involves representing merging parties before the DOJ or FTC, but at times I also represent adversely impacted customers and competitors in the relevant industries. Agency practice expands beyond mergers, however, and includes, for instance, investigations of competitor boycotts, price fixing, vertical distribution arrangements, and intellectual property licensing. Related to these matters, of course, is advising companies on how to avoid antitrust exposure in their day-to-day activities and litigating matters in federal court when resolution with the government, or a private plaintiff, cannot be reached.
What types of clients do you represent?
I represent companies in a wide variety of industries, including technology markets, health care and life sciences, industrial products, medical devices, transportation, and tobacco. Because I am located in Northern California, I naturally spend a lot of time in technology, which can mean anything involving software, hardware, cloud computing issues, networking, and telecommunications. These tech clients can be large, established companies, as well as start-ups hoping to become more established. And given the global reach of our law firm, many of the companies we represent are global in nature. Representative clients include Adobe, Lam Research, Linear, NVIDIA, Synopsys, Reynolds, and Wabtec Corporation.
What types of deals and/or cases do you work on?
I can work on anything from the acquisition of a company under scrutiny by the DOJ or an FTC investigation of a boycott by industry members, to the defense of a company sued in federal court or any number of counseling projects to help companies manage antitrust issues on a daily basis. For instance, we are currently helping a tech company manage antitrust issues associated with moving its distribution into the cloud.
An interesting example of a transaction I recently worked on was the $27.4 billion purchase of Lorillard by Reynolds in the tobacco industry. It involved very complex and fascinating economic and legal issues, and ultimately the divestiture of certain brands to address FTC concerns.
An illustration of a DOJ investigation outside the field of M&A was our work for Adobe in the DOJ’s investigation of alleged “no poach” agreements between certain technology companies. That investigation led to a consent decree and then a follow-on class action litigation. In it, I worked on the DOJ aspect of the case and then assisted with the substantive and economic approach in the private litigation.
How did you decide to practice in your area?
I actually fell into antitrust in college, believe it or not. (I always preface this history by telling law students that, while they may be exposed to antitrust in law school, 99 percent of lawyers in antitrust discover it while practicing at a firm. Therefore, no law student should assume that if they haven’t discovered antitrust at this point, it’s not a career for them.)
In 1989, as a junior at Cornell, I participated in its Washington study program. While there, we had to prepare a public-policy thesis. At the time, the first of a few large merger waves was in full swing, which led me to study the DOJ’s and FTC’s influence (largely through their merger guidelines) on merger trends. I became fascinated with the topic, and when I returned, I fashioned a concentration in antitrust policy, which included studying industrial organization economics. I kept an open mind when I went to law school regarding other topics, but I had a feeling a career in antitrust was in the cards. I enjoyed my antitrust classes, including an independent study in the area, and began my career at the Federal Trade Commission as a staff attorney.
What is a typical day or week like in your practice area?
Not surprisingly, a typical day often involves advising companies before they do deals on the deals that would present antitrust issues. The next step of the process is working with the M&A team to reach agreement with the other party, including how best to allocate the antitrust risk between buyer and seller. It then shifts to advocacy before the agencies—preparing a persuasive explanation for why a merger or acquisition is procompetitive rather than anticompetitive. That could involve sifting through supportive documents (as well as dealing with challenging ones), working with economists to prepare their arguments, preparing client execs for meetings with the government, and crafting white papers and presentations to carry the day. These activities often are done in parallel with processes in the EU, China, Korea, and other countries, which can be challenging and at the same time fascinating.
Typical counseling activities during my week can involve working with clients to understand their business goals and explaining any antitrust risk in undertaking activities to accomplish those goals. The aspect of this I enjoy the most is searching for a business solution that accomplishes what the company wants to accomplish, but with lesser antitrust risk than can sometimes be presented.
What is the best thing about your practice area?
I enjoy a number of aspects of my practice. Most important are the people with whom I work. They are among the best and the brightest in the field. I also enjoy becoming an authority in a product area, which is critical to being a persuasive advocate. It is impossible to be persuasive about market definition, market share, and power without truly understanding how the products work in the first place and the dynamics in the industry at hand. It is certainly never boring because of the sheer number of ever-changing industries we cover. I also enjoy working with economists, given the different angle from which they come to the same antitrust issues. The global aspects of these matters are fascinating as well.
What is the most challenging aspect of your practice area?
Some of the most enjoyable aspects are also the most challenging: juggling myriad product areas all in one day (depending upon which matter is pressing at that time), dealing with different worldwide principles about antitrust, and making the complex simple and persuasive. Challenging? No doubt. Fun as well.
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
Antitrust lawyers wear many hats. Depending on their portfolio of work, they can be: 1) classic litigators; 2) economists; and 3) quasi M&A negotiators. I would advise interested students to take classes that hit on all of these areas. Certainly a foundation in microeconomics is helpful, although not critical (as some students fear it is). Sound litigation skills are essential. I would also take negotiation classes, which will help in deal and consent decree negotiations. And if you expect to practice in a particular product area, a background there would be a “nice have,” although not critical. For instance, although by now I am fairly proficient in tech products and their building blocks, I have worked at it through multiple matters, but also through an outside software, hardware, and networking 101- type extension class.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
The first misconception is that a deep economics back- ground is a must-have to practice antitrust. It is helpful, but many successful antitrust lawyers had little to no economics experience before they started their careers. The second misconception is that all junior antitrust lawyers do is churn through massive document productions. While that was more true when I began my career, the explosion of electronic discovery and the use of contract attorneys should, for the most part, eliminate that concern. Documents are without a doubt critical to antitrust, and there can be many of them in a case, given the fact-intensive nature of an antitrust inquiry, but the depth and complexity of the work available to junior antitrust lawyers is far beyond what it used to be.
What is unique about your practice area at your firm?
There are very few, if any, firms that boast an antitrust group of our caliber, with as many former DOJ and FTC officials and with the geographic coverage of our group and the firm in general. This, plus our “One Firm Worldwide” team approach, is hard to match. Our commitment to teamwork is very real: every client is a client of the firm, and lawyers work together in a collaborative atmosphere where teamwork is essential, respect for and from colleagues is the norm, and credit is shared for getting the job done.
What activities do you enjoy when you are not in the office, and how do you make time for them?
First and foremost, I enjoy relaxing at home in Mill Valley with my wife, Michele, and my two boys, Sam (nine) and Benjamin (seven). I also coach my sons’ Little League baseball teams. I make as much time for it as I can, with the support of other coaches and parents. (We all recognize the reality of work constraints and support each other in managing it.) My other love is Michigan football, and I fit it into my schedule in the fall for sure. I make at least one visit to The Big House, two if I can. I also love to teach—I’ve been teaching a seminar on Antitrust Issues in M&A for several years with friends from the Department of Justice and the Federal Trade Com- mission, first at Hastings and now at Berkeley. And lastly, I play the saxophone, both in a Jones Day San Francisco Office band called “The Objections” and at home for fun (although maybe not fun for my neighbors).