Antitrust and Unfair Competition Law
Competition: Spring 2021, Vol 31, No. 1
Content
- A Conversation With California Supreme Court Justice Joshua P. Groban
- Antitrust Analysis of Frand Licensing Post-ftc v. Qualcomm
- Big Antitrust Trial: Newyork v. Deutsche Telekom Ag (S.D.N.Y.)
- Chair's Column
- Damage Methodology Trends Within False Advertising and Product Defect Class Actions
- Diversity and Inclusion In the Legal Profession: a Missed Opportunity For the Antitrust Practice
- Editor's Notes
- Masthead
- Perspectives On the Role of Antitrust Law In Social Justice
- Recent Developments In California Competition and Privacy Law
- Recent Developments In Federal Antitrust Law
- The Correlation Between Antitrust Enforcement and Gender Equality
- A Conversation About Diversity, Racism and Equality In the Legal Profession
A CONVERSATION ABOUT DIVERSITY, RACISM AND EQUALITY IN THE LEGAL PROFESSION
By D. Bruce Hoffman1
A goal of the Antitrust and Unfair Competition Law Section is to increase diversity and inclusion in the antitrust bar. This esteemed panel of antitrust experts from in-house, private, and government practice discusses the state of diversity in the field. It also discusses models for increasing diversity in organizations, like the Rooney Rule used by the NFL and the Mansfield Rule increasingly used by legal departments. The panelists share strategies that can be employed at an individual level, for example, engaging in intentional allyship and sponsorship of diverse lawyers. In the end, the panelists agree that speaking up as an individual to support inclusion and foster belonging is key. Remember the power of one.
PANELISTS
Harvey Anderson is General Counsel for HP Inc. Harvey has over 25 years of experience in public policy, regulatory compliance, corporate/commercial transactions and IP litigation. Most recently he served as the Chief Legal Officer of AVG Technologies, and prior to that he spent six years as the Chief Legal Officer of Mozilla. Throughout his career, Harvey has focused on public affairs issues, most notably launching the "Do Not Track" privacy initiative, organizing the SOPA internet protest movement, and serving on the FCC’s Open Internet Advisory Committee. Harvey has a J.D. from the University of San Francisco School of Law and a B.S. in Civil Engineering from Marquette University.
John Gibson is a Partner at DLA Piper where he specializes in antitrust, commercial, healthcare, and technology litigation. He was previously a partner and member of the management board of Crowell & Moring LLP. Gibson has won numerous accolades, including being named the 2019 Attorney of the Year by the Thurgood Marshall Bar Association. He also served on the executive committee and board of directors of the Constitutional Rights Foundation. Gibson has a J.D. from University of Michigan Law School and a B.A. from Harvard University.
MR. BRUCE HOFFMAN:
Welcome, everybody, and good afternoon. It’s the third day of the 30th Annual Golden State Institute on Antitrust, UCL and Privacy; a great conference. And this panel is a conversation about diversity, racism, and equality in the legal profession. My name’s Bruce Hoffman; I’m a partner at Cleary Gottlieb and the former director of the United States Federal Trade Commission. I’m going to, to a large extent, just serve as a moderator for today’s conversation.
I’m really pleased and excited to have with me virtually today Harvey Anderson, who’s the general counsel of HP, Inc., and John Gibson, who’s an antitrust and litigation partner with DLA and that firm’s Los Angeles office and a very prominent antitrust litigator, ranked in Best Lawyers in America and an all-around star and I think we’re going to have a really good conversation.
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I think we’re going to get started by doing a little bit of level-setting or background to try to get a picture, or paint the picture, of where the legal profession and to whatever extent it’s ascertainable, the antitrust practice within it, stand on diversity, racism, and equality; all the metrics of inclusion. And with that, let me turn it over to Harvey to talk a little bit about where things stand from the perspective of companies; of corporate clients, corporate entities, and legal departments.
MR. HARVEY ANDERSON:
Yes, Sir. Thank you and thanks for the chance to talk about this today. I think there are two dimensions that I think about. There’s the, first, the quantitative dimension and the qualitative dimension. On the quantitative side, at least from the tech sector and I’m from the tech sector and I worked in the valley for most of my career, I think on the D&I side, it’s not that great. Just generally speaking, to net it out, you know, the industry’s been criticized quite a bit, whether it’s, you know, law or engineering or any part of the tech sector as a whole. And specifically, in the legal sector, it’s not particularly better. And then from the number’s perspective, I mean, if we looked overall across the industry, you see minorities represent about 19 percent of lawyers, black—that’s across the U.S.—African Americans about four percent, I think five percent for Latinx and another 4.7 percent or so for Asian Pacific Islanders. And so that’s sort of the general context and then I think it just gets—goes down from there.
And then, more importantly, it’s not just a number so to speak, who’s doing what and where are they on the leadership side? So on the inhouse side, you see, I think about 11 percent of general counsels are minorities and 26 percent are women, so that’s still not that great when you think about it and I can almost count the folks that are GC’s in the valley that I know that are African American.
But I think the more important number is not a number; it’s the qualitative perspective of it. And there’s this notion—I don’t think we have a good metric for that. We measure engagement scores in our companies but it’s this notion of—we call it a sense of belonging and to the extent that that’s much higher, you retain more people, it’s a more inclusive environment, and I don’t think we’ve done as an industry really well at sort of measuring what that belonging looks like. But that’s where a lot of our focus is today, so I’ll stop there and let you guys share a bit.
MR. BRUCE HOFFMAN:
Well, John, is the picture any different, better, worse, in the law firm world?
MR. JOHN GIBSON:
Thanks, Bruce. The quick answer is I think it’s similar. So first of all, I’m just really grateful to be exchanging ideas here with you and Harvey today. And also, to be talking with and directly, virtually, members of our Golden State Antitrust Bar.
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In terms of big law, we’re still looking at—despite very sincere and longstanding programs and intentions—you know, we’re still looking at an entrenched system in most of big law where the in-group kind of sponsors and promotes other members of the in-group and that’s human nature, in many ways, and so the out-group kind of stays out and the in-group stays in. As an example, at the end of last year, at least, there were—from the Am Law 200 law firms—only 4.4 percent of the non-partner lawyers in those firms were African American. Only two percent of the partners in Am Law 200 firms were African American; two percent compared to over 13 percent in the U.S. population at large, so there’s a lot of work to be done. Dramatic underrepresentation, particularly as you escalate the ranks from associate to counsel to partner in big law, so we’ve got a pipeline problem and we’ve got a retention and promotion and opportunity problem.
But that’s the bad news. The good news is that allyship is alive and well in various pockets and I think what we’ve got to do is bring that to the mainstream. And here we are in a moment where, unlike really any other in recent memory, we have a lot of people coming together and saying we want to do this. And so I think if we take the current moment and take the allyship that exists in pockets and bring it mainstream, we can make a huge amount of progress here.
MR. BRUCE HOFFMAN:
Harvey and John, one of the things that I’ve noticed over time—and I’m thinking here about both government enforcement and the government antitrust space and the antitrust bar—is that, you know, Harvey, you said things are, if anything, worse in the valley in certain ways than they are in the population at large. And John, you made the point about how as you go up in the ranks of seniority, you start from an already underrepresented—significant underrepresentation to a really dramatic underrepresentation, as the situation gets worse. And it seemed to me that that’s true in antitrust.
You know, antitrust has a reputation, I think, as being one of the less diverse practice areas in the bar. There’s been statistics—I know the New York Bar gathered some statistics on that in New York a few years ago. A lot of this is difficult to track because it’s a little hard to pin down who’s in the antitrust bar, necessarily, since a lot of folks who are antitrust lawyers also litigate other things. But I do know that if you compare, for example, the number of women lawyers, which is about 38 percent overall, to the number of lawyers who are female in the antitrust section, the ABA antitrust section, that’s only 27 percent, so that’s significant underrepresentation. And anecdotally, the numbers look even worse when you’re looking at black or other racial or ethnic or national origin and minorities. Any sense, first of all, whether in your experience that’s true and, if so, any ideas why or is there anything about antitrust in particular that’s an issue?
MR. JOHN GIBSON:
Well, I’ll start. Pretty soon I was going to turn it back to you, Bruce, since given your experience with the Bureau of Competition, but you know, I think that because it is so specialized, I think that, for example, I didn’t take the antitrust class in law school and kind of stumbled upon antitrust practice as a litigator 10 years in practice and got very deeply into it, obviously. But I think that we’re—it’s not, you know, widely known and solicited as an expertise and practice area where there are a significant amount of attorneys of color. So I think that’s one issue when folks are being recruited out of law school and recruited into law schools and, in fact, recruited into law firms and other places, I think there’s often not a lot of discussion about antitrust as being a hot area for you as an attorney of color.
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MR. BRUCE HOFFMAN:
That makes a lot of sense. In fact, I think we’re going to talk in a little bit about some specific experiences with the FTC with HP and otherwise. But before turning to that, just to pick up on the point you just made, John, about people not being aware of or not feeling like whatever opportunity there is in antitrust is for them, thinking more broadly about the profession and about the issues we talked about at the beginning with increasing diversity in the profession, increasing equality, what are the high levels? Are we talking about increasing the pipeline at the intake level and getting more people in? Or are we talking about improving opportunities throughout or as, John, to get to your point or, Harvey, yours about who are the GC’s, who are the partners, are we talking about addressing those issues or is it all of the above?
MR. HARVEY ANDERSON:
I’ll take a shot; I think it’s all of the above. I don’t think you can just focus on the pipeline but not address retention and belonging because it won’t matter. And we have data that suggests that minorities tend to tap out earlier; it happens in the legal profession, in law firms, than other folks, other cohorts of employees. So there’s something that’s going on once you’re there anyway so you’ve got to do both.
And then I think the—so it’s the pipeline environment once you’re there and I think there’s something about leadership at the top, too. Organizations that really make inclusive environments and D&I priority, it just makes it a—it just changes everything. So it’s not a side on thing; it’s just a core principle of how we operate and I mean sort of little "d" diversity. Like, we want diverse thought from—you know, we want different experiences, different backgrounds, different geographies, different parts of the world. You know, truly embracing diversity.
MR. JOHN GIBSON:
Yeah, I think that’s right, Bruce. I’ll just add, from my perspective, I think opportunity drives in a lot of ways belonging and the pipeline and promotion because if you see the opportunity ahead of you in terms of maybe people who were a few years ahead of you who are similar to you and you see they’re getting opportunities, you’re encouraged and, you know, you want to work hard and because you see at the end of the—all your hard work, comes the opportunity that you really got into this business for, so I think that’s very important as well.
MR. BRUCE HOFFMAN:
Those are great points and we’re going to come back, I think, and spend some more time talking about each piece; like how do you address the pipeline, how do you address the opportunities at the end, how do you address retention and the outcomes.
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Maybe we should go to our little case studies. So I think, John, you were going to put some slides up. We have a PowerPoint that I think is in the materials; we’re not going to walk through. I’m sure everybody will be relieved to know we are not going to walk through slide—by-slide but we’re going to pick up on a couple of the slides to talk about them. And we thought we might start with the FTC and—yeah, that’s a great picture of the FTC headquarters building in DC, but I do want to actually give a shout out, since this is the Golden State Conference, to the FTC San Francisco Office, which is a fantastic office with great lawyers and who do really great work, including last year litigating one of the most important anticompetitive conduct cases that the FTC had. So for anybody out there in the Golden State, if you want to do antitrust and you want to work for the government, think about the FTC San Francisco Office; that’s my PSA recruiting announcement for the FTC San Francisco.
But on that note, now let’s skip to the next slide, I think. Yeah, so let me just give a very quick background on the Bureau of Competition and I suspect that many people who are at this conference are familiar with it, but the FTC has two main enforcement arms; one is the Bureau of Consumer Protection, which actually, I think, more people know about; that’s the folks who do telemarketing issues and consumer fraud and all those kinds of things.
But the Bureau of Competition does antitrust with the FTC; that’s the organization that I ran for the last few years. And we have the—I put the mission statement from the Bureau up here. What I wanted to focus on though was some internal points about the Bureau having to do with diversity and, particularly, with the points that Harvey and John were making about how does diversity play through the organization into the top.
So the Bureau of Competition in 2020 had about 528 FTE, roughly 300 of whom were lawyers, and those groups are—they’re organized into groups of, between usually 20 or 30 staff lawyers, with a small number of managers. It’s a very flat organization without a lot of positions that are considered ranked, I suppose is the way you put it, or the leadership positions in the agency.
John, let’s skip—let’s go to the next slide. Maybe skip that one; I want to actually kind of maybe go to the last slide. Right, so the FTC has long worked hard and made a real emphasis of diversity and inclusion and I think that’s been true, particularly from the top, if you look at the current chairman, Joe Simons, he’s made this a big focus. That is true for acting chair, Ohlhausen, and for Chairman Ramirez, and Chairman Leibowitz, under President Obama. It’s long been a focus of the agency. And in general, I think the FTC’s done pretty well with diversity and some of the prior slides have some statistics on that to support that point. But nevertheless, one of the things that you could notice about the FTC is if you looked at it in 2017, that diversity kind of fell off at the top and here I’m not talking about the political appointees but I’m talking about the career staff management, the career leadership in the staff.
So 2017, out of 27 managers in what I think of in sort of the litigating groups, the enforcement groups within the Bureau, there were only six female and zero diverse by ethnicity, by LGBTQ status, you know, any—or any measure, you had an incredibly non—diverse leadership group. And you know, I think that’s improved a lot. I don’t know exactly what the current numbers are but by roughly the time that I left the agency, out of that group, it was slightly larger because a new litigation group had been established but the percentage that were female had risen to 43 percent and there were 13 percent—which is only four people; we’re talking about a small organization—who were otherwise diverse.
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There were also some issues that we looked at that had to do with hiring and recruiting. How do you find, how do you get, people into the pipeline? How do you make people realize that working at the FTC is a good move so you can help your career and, particularly, how does the agency get out of its comfort zone, which is producing perhaps not as diverse a group as could be and within the staff and in a position to be promoted? And the agency did a number of things to try to address those issues. I put down here—and we can talk about them later more specifically if anybody wants to—but I think overall, the bottom line of this is it’s early to tell whether this is really going to help but there were a number of things where the sense and the leadership of the agency was there were actually small structural changes that could be made in the way that we were recruiting, the way we were hiring, the way we were promoting that could potentially have some beneficial outcomes and time will tell whether that worked.
So that’s my short vignette about diversity with the FTC and with that, John, I don’t know if you want to exit this? Or I know you had a case study that you wanted to talk about; I’m not sure if you wanted to go back to the slides for that?
MR. JOHN GIBSON:
Sure, I’ll—since we’re in the slides, why don’t I take that. I do want to swing it back to Harvey as quickly as we can. But I wanted to talk about the Rooney Rule in the NFL and how during the first 10 years of that, anyway, why it was so successful and, you know, you might be thinking what application does that have to a legal profession and the antitrust bar? And I think what the relevance is is that the NFL was able to take an entrenched system that was unconsciously biased and was keeping the out-group out and figure out how to change things by casting a wider net and by leveraging off of intentional allyship through first, really winning the hearts and minds of the NFL equity holders and general managers.
So quickly, what is the Rooney Rule, for folks who don’t know? Basically, it was a rule that required, still requires, NFL teams to interview minority candidates for head coaching and general manager positions when those vacancies need to be filled. It’s named after Dan Rooney who, at the time back in 2003, was the equity holder of the Pittsburgh Steelers. And what happened, essentially, is that in 2002, specifically on Martin Luther King weekend 2002, two of the three head coaches, black head coaches in the NFL, were fired. And those two coaches had—one of them had a winning record at the time; the other one had just finished his first losing season in 10 years. And Johnnie Cochran and another civil rights lawyer, Cyrus Mehri, along with an economist, got to work and put together a study. And what they found is that the so-called group, African Americans and other coaches of color, actually outperformed the in group in terms of win-loss record, which is key in the NFL and playoff appearances and wins, but they actually got inferior opportunities.
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So this group got together with Rooney and other folks in the NFL to put together this fair competition proposal. And the proposal was really just interview at least one person of color as you look at filling positions. So a couple of really interesting things happened. As you can see here, we marked with a vertical line where the Rooney Rule was instituted; there’s a dramatic increase for at least about 10 years in the number of head coaches and general managers of color as a result of this, but it really came from a number of events that won over the hearts and minds of folks making the decision. And one was, a few years later, two black coaches met in the Superbowl and for all the world to see, so those are the two teams vying for the championship.
Another thing that happened is that Rooney himself was faced with a situation where, you know, in the 1970’s, the Steelers were the team in football and won multiple Superbowls, were the team to beat, but by 2006, they’d fallen on hard times and they were not the same team. So the coach was retiring and that coach, importantly, was championing his protégé, who was another straight, white, male, who was a head coach of a college team. And Rooney said, you know what? It’s my rule; I’m going to interview at least one black candidate, which he did, and that was a very young coach in his early thirties named Mike Tomlin. And there was just something about this guy Tomlin, the way he talked about offensive and defensive schemes, the way—his approach to relationships with the players, and Rooney said, you know what? This is a first for our team and our franchise; I’m going to do it. I’m going to hire this young black guy who has never been a head coach and has only been a defensive coordinator for half a second, which—and it’s unprecedented but I’m going to give it a shot because we’re losing. And a year later, this guy, Mike Tomlin, becomes the youngest head coach in NFL history to win a Superbowl. And the story continues.
But I think some important points about this, the benefits of the Rooney Rule are not only to folks of color but also straight white males. So for example, John Harbaugh was a coach who had never been a head coach, never had been a defensive coordinator. He was a defensive back coach and those folks typically were never considered for head coaching jobs in the NFL and he was hired, really kind of as part of the Rooney Rule and quickly, thereafter, won a Superbowl, proving that he was at least qualified for the job.
And the final point I’d like to make is in connection with the Rooney Rule, a group put together this ready list of potential candidates who had never been head coaches but they seem to have the qualities that if you cast a wider net could be successful candidates. So I think that it’s really up to—and this model became the precursor for diversity efforts that we’re using in the legal profession, as well, in the Mansfield Rule.
So just getting to the end, I think one point about how you win over hearts and minds is it’s just generally not going to work if you impose a system on folks. We’re going to do this and this is the change we’re going to make. But if you can really talk about it, like they did in the NFL, and so everyone comes to the realization that, "Hey, how is this going to affect me? I’m a straight, white, older man. How is this going to affect me and my family if we institute this rule?" And what people over time realized is that what’s going to happen is we’re going to cast a wider net, it’s going to be to my advantage and we’re going to have a wider pool of qualified folks who have the ability to see the fruits of their labor and their excellence.
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So with those open conversations in the NFL, the rule worked for the first 10 years and really made dramatic change. I think we can use something similar in the legal profession but we first have to have this robust conversation about what does this mean for me? If I’m going to be a true ally, what does it mean for me and my family if my proteges are getting promoted and advanced and have greater opportunities?
MR. BRUCE HOFFMAN:
That’s great. Thank; thanks, John. So I know, Harvey, when we think about the point that John just made, how do we integrate this, the Rooney Rule and particularly what happened there in the legal profession, I know that HP’s been at the cutting edge of a lot of this and that’s saying that obviously you spend a lot of time thinking about and speaking about it. What can you tell us about the HP experience and your thoughts on this?
MR. HARVEY ANDERSON:
Yeah, sure. I think there are two key things to talk about. The first is using our influence and our dollars to affect the legal profession as a whole. And Kim Rivera, our CLO, launched a diversity holdback program a couple of years ago; about three years ago. And essentially said, in broad terms, that if you’re going to do work for HP, we want to see diversity in the team of people that work for us, and relatively low thresholds, by the way, and if you can’t meet those thresholds, there’ll be a 10 percent holdback in the billings and those are the terms to do our work. And there’s lots of exclusions, actually. If you’re a small firm, you’re under a certain level, you know, it doesn’t apply; so it really just applies to bigger, larger firms that have a chance to actually comply.
And the point of that was to bring more diverse, younger attorneys into the workflow so that they get exposed to this work, they get to get the experience to move themselves up the ranks. And also, I think there’s a pragmatic part of it, too; we do believe that diverse teams deliver better results. We want the broadest possible perspective, so that was one piece.
And when we first launched it, we had about 43 percent compliance; that was three years ago. Today, I think we’re over 99 percent compliance with that holdback program. And then, so the next question is how do you evolve that, how can others adopt that? I think there were a number of proposals out there that different companies use; this one was considered a little bit more of the stick than the carrot. I think they—we tried the carrot for a long time, it didn’t really do a lot, so we moved to that approach, but that’s one piece. I do think that over time, those thresholds will probably start to go up. I mean, if you can’t meet the thresholds now, it’s—I mean, they’re easy to meet. They’re welcome with open arms thresholds.
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The second piece we’ve done internally is an extension of the Rooney Rule and thanks for that history behind that, John, and the emotional and psychological parts of it, too. I think understanding that is important. There’s an organization called the Diversity Lab, which I bet a bunch of the folks on this call are a part of; their firms or organizations are a part of. But the Diversity Lab has a program called the Mansfield Rule, which essentially is an evolution of the Rooney Rule and it says that when you make significant hires or placements on your team or you allocate significant bodies of work, half of your pool that you consider be diverse. And I think you have—there are some places for exceptions but that has been—we just adopted that this year in our team, across DLA, and it’s really interesting and it doesn’t—so it doesn’t mandate the outcome; it just talks about the pool of people. And it’s not one person; I think there’s a bunch of signs out there that says having a pool of candidates with one minority in it actually isn’t the best way to approach it. You need to see—it does a disservice to that candidate. But if you really embrace it, it changes the way you recruit, it changes where you go. If you’re really trying to build a pool of people, it creates a different behavior. And we recently did a senior hire on our team, you know, and we reached out to, you know, a whole bunch of different bars that we wouldn’t normally reach out to. It required a lot of intentionality, it required using our networks, and the pipeline of folks we had was really robust; it was fantastic. I mean, just a fantastic pipeline of candidates from all different kinds of experiences from different parts of the world. So I was really pleased with that.
And I’ll say, you know, we’re not Mansfield certified yet; we have to do some data pieces behind it. But the second part of it is the thinking about senior assignments. So instead of giving that senior plum, that hard, strategic project that you know X can do— like, I know Bruce can do it so I ask Bruce to do it—well, suppose I say, "Hmm, who else could do that? Bruce did it the last three times; how do I disrupt or interrupt the pattern and take a chance, you know, it’s not even a chance necessarily, but who else can do it?" And just start to change our thinking and our behavior so that folks have those experiences that advance their professional careers. Because most of our advance now, at least I’d say in the legal field, is not a straight vertical up; it’s a lateral, experiential expansion that makes you good and creates other opportunities. So at least, that’s how most of my growth has been but that’s been our experience.
And I think the third part is working on actually creating an inclusive environment and that means a couple things for me. One, practicing what inclusive behaviors look like. How do we talk to each other? How do we engage in meetings? Do I cut you off every time you speak, Bruce? Is there someone that’s quiet in the back that never talks? How do I bring them into the conversation? Do I amplify comments, particularly around gender and color? Do I say that’s not a—you know, say I don’t agree? There’s way to say you don’t agree that some are more inviting and inclusive than others. You know, like I found myself saying the other day, "Well, I don’t disagree." Well, what the heck do I mean by that? I don’t disagree. Does that mean I agree? But why didn’t I say agree with that? That’s a great idea. So I had to actually change—catch myself and then restate it in the moment but it’s okay if you create a safe place to do that in your environment; it’s not a bad thing to acknowledge that you did it. And one of the exercises that we do when we have our team meetings, we’ll play what I call the inclusion game and we identify a list of inclusive tactics and responses and comments and you get a point and there’s a prize at the end of that meeting. Let’s say you’re having an offsite or a leadership team meeting. So throughout the course of that meeting, people that are saying more engaging and inclusive comments get a point and when you say that, you know, "Hey John, that’s a silly idea," and minus one. So then at the end, there’s a prize. But what that does is it creates a safe place for us to practice these behaviors that can spill out because there’s a lot that we can do on a day-to-day basis; it’s not just through the pipeline stuff. Those opportunities happen less often, when you think about it, and particularly if there’s pressures, economically, in terms of hiring and if you’re not growing as fast. But how do you create the environment that feels inclusive and drives that sense of belonging? So I think there’s more to do there.
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And I think the final piece is recognizing that there are—there are microaggressions that live in our culture, that live in our institutions. And people experience those so being honest and transparent about those, calling them out—and John started with allyship—allyship is really important. And there was an example, I heard someone make a comment about and said, "This woman wouldn’t want that job because she has a family." Well, wow; that’s a lot of assumption built into that baseline gender and family status. And I had to call it out in a team meeting and it turns out, there’s nothing behind it; it was benign, it was—there had been discussion about it and the candidate really did not want that opportunity when given that choice. But even when you hear those things, you have to be an ally and speak up, so we all have to be allies to model the behavior in the environment that we want, which is something each of us can do.
MR. BRUCE HOFFMAN:
So, John, to pick up on a couple of things that Harvey said. You know, he talked about inclusion in the environment, about the microaggression issue, about how to interrupt the patterns and then the opportunity both in terms of building the pipeline, but then also at the top, do you—I mean, you’re a very successful litigator and antitrust lawyer, big law partner, the pinnacle of the procession. What’s your view on those issues in terms of the law firm environment? Are law firms good at this? Bad at this? Doing better? Doing worse? You know, what—in light of your experience, what would you think?
MR. JOHN GIBSON:
Well, a really good question, Bruce. I think law firms are trying and I think that, you know, law firms are profit-making businesses and they follow what clients want, so that’s why I think it’s so important—and I love the way Harvey put it—interrupting the pattern and, you know, that’s just exactly what the diversity holdback program that HP instituted is doing. It’s interrupting the pattern at big law firms by forcing conversations. So you get this, you know, edict from—or suggestion from a client—
MR. BRUCE HOFFMAN:
Edict. We’ll go with edict [laughter].
MR. JOHN GIBSON:
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[Laughter] It’s not an edict; you don’t have to follow it. You don’t have to do it if you don’t want to; you just won’t get the business, right? Which is brilliant and so, law firms start with, okay, so we’ve got, you know, one or two longtime relationship partners at the firm for HP who kind of had funneled or done all the work for years. Now what, right? How do we get—so HP, one of the things it calls for is to have lawyers who are supervising the matters be diverse and also relationship partners with the client at the law firm to be diverse, more diverse, and so, you know, as a practical matter, you may have one person, one longtime partner, who is saying, "Listen, I get origination credit for this client and I make a lot of money or a large part of my competition every year is based on the origination dollars that come in from HP. How is this going to affect me and my family if we diversify, you know, who’s the relationship partner?" And so, I think it starts these great discussions and what I’m seeing come out of it, in part, is you know, law firms, whether it’s law firm management or the head of the group that primarily does the work for a client, saying, "Listen, powerful partner, we’re depending on you to do just exactly what Harvey said, which is mentor and sponsor some lawyers who have not been in the flow of HP work but can do it and, you know, to introduce them to the client, to help get them ready, to do just what a sponsor does for a protégé across differences."
That’s the big difference, I think here, is that most of these systems we see in place, where the in-group stays in and the out-group stays out, are based on human nature. We deal with who we’re comfortable with, we mentor and sponsor whom we’re comfortable with, and maybe someone who reminds us of ourselves or our son or daughter or family member. And so what we’re saying—so what I think, you know, some of the things that HP is doing and other clients are doing is forcing these great conversations where relationship partners and powerful partners at law firms start to say, "Wait a minute, I can make a difference, right? I can still do well for me and my family financially, but I can make a difference now and down the road for somebody else and change what we’re seeing in terms of the lack of diversity in the legal profession and some of the issues we’re having in our society. I can do that as an individual." So I think that’s very powerful and I am seeing those conversations happen and we’re going to see what happens from here.
MR. BRUCE HOFFMAN:
Now, you highlighted a point that I think really touches a lot on some of the programs that Harvey talked about. One of the things about law firms is not—at most law firms, there’s not a ton of internal structure, right? Unlike in a company where you might have a progression of steps that are well-defined from this position to that position to that position. In law firms, it’s a lot more amorphous and the channels through which people advance and all those things are not easy to identify.
From your perspective, the thing about the law firm—and looking at statistics, like Harvey mentioned, that retention is poor for minorities in law firms—and that’s absolutely true and, you know, we’ve seen it; we’ve been looking hard at this at Cleary this year and one of the things we see is that we lose our minority associates earlier than we lose other associates, right? There’s a noticeable, significant difference and that’s something that we’re thinking a lot about how do you address? But in the law firm context, where you don’t have these clearly defined paths to progression, where if you go in as a—when I started out as a junior associate, I had absolutely no family knowledge, no one in my family was a lawyer; I knew nothing, I had no idea how you advanced at a law firm and I’m a, you know, white guy, so it’s going to be inherently easier for me by all relevant statistics. I can only imagine what it is if you’re not a white guy and you come in with a similar background to mine and you obviously have no idea how you progress.
How at the law firm do you address this issue of the lack of clarity, I guess in the progression process, the advancement process? And then, Harvey, from the client standpoint, how can you help law firms navigate that; figuring out ways to address this problem where there’s not—it’s hard to define and to identify the problem because there isn’t this clear progression?
MR. HARVEY ANDERSON:
Well, just one assumption I just want to correct. I think in the corporate world, it’s not so clear, either.
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MR. BRUCE HOFFMAN:
Fair enough.
MR. HARVEY ANDERSON:
At all. And so, I don’t always think it’s clear—it’s funny, in the legal world, it’s seems clearer. You can go from one level to another to another, then there’s a partnership, either equity and nonequity partnership. It looks cleaner but it’s probably equally opaque in both worlds.
MR. BRUCE HOFFMAN:
Right.
MR. HARVEY ANDERSON:
So no magic bullets from us but really good question. John, what do you think?
MR. JOHN GIBSON:
Sure, that is a great question and back to your point, Harvey, of creating a safe place for communication, I think early on when a lawyer comes in a law firm, there ought to be some discussions where you have quote "successful partners" who can talk about the different paths that they took. And you know, some of those paths may not apply directly to a minority lawyer, but that’s part of the communication and conversation we’ve got to have to figure out how do we—okay, one, how do we create different paths that are going to be successful and not rely on the so-called, you know, good old boy network, but also, you know, how do we leverage off of the so-called good old boy network in a way that it’s going to reach out across differences and be helpful to folks other than good old boys, right?
And so, just as a very quick example, I, you know, there might be a senior partner whose habit is to, you know, who comes in early and goes to coffee, you know, at her or his favorite coffeeshop. And so, one path to success for an associate might be, be there outside that partner’s office when he or she goes to coffee every morning at 7:30, or at least some of the mornings, to talk about what’s happening in, you know, antitrust practice, what’s going on in that partner’s day, what are the big client matters that that person’s working on, and pretty soon, if you’re accompanying that partner to coffee multiple times during the week, you’re going to be brought in as part of the in crowd.
MR. BRUCE HOFFMAN:
Right.
MR. JOHN GIBSON:
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And so, I think learning from, you know, past prologues, so learning for history, and learning different partners paths to success and having a conversation so partners can be thinking, "Wait a minute, I’ve been picking people who look like me and think like me. Here’s this person who wants to be involved in my practice. I’m going to reach out to that person and bring them in and help them succeed."
MR. BRUCE HOFFMAN:
Right.
MR. HARVEY ANDERSON:
You know, John, I heard you say all that to say "mentorship,"—MR. JOHN GIBSON:
Yes.
MR. HARVEY ANDERSON:—whether it was intentional or unintentional.
MR. BRUCE HOFFMAN:
Right.
MR. HARVEY ANDERSON:
Right? That’s what that sounds like to me and to the extent that there is mentorship of folks of all new talent, by the way, you create a better outcome. Like, all of our new folks, we try to assign mentors to all the new people that join our teams, irrespective of, you know, where they stand or not in their diversity stance. So because you do need that to help people understand how to grow their careers, what are their kinds of experiences and opportunities? And looking back at it, you know, as a young associate, I didn’t even know what questions to ask, to be honest with you. And if someone happened to mentor you and you were lucky—they took you along, maybe they would ask you the right question or they would—if you happen to land in the right partner gravitational sphere, your work looked very different, right, then if you were in the, quote, "bad partner sphere" with the, you know, the bad work and there’s no place to go and it wasn’t like the hot clients. So mentorship and being intentional about that as we bring people in. And as I think about it, and even in our environment, we’ve done really well with mentoring with people—I think, pretty well—pulling mentors that are even outside of our legal team. So there are other senior leaders in our organization who said I’d like to mentor this person over here; I’d like to be their mentor. When I joined, I had a mentor. So it—and then your leaders, too, being really intentional about their experiences that you give to your younger talent so that they get these stretch assignments. You know, they have a chance to—they have the opportunity to excel and if they excel, that is fantastic; you get to see it. If they don’t, then they need to be in a different place, perhaps.
MR. BRUCE HOFFMAN:
So on that point about mentorship, you know, one thing that I wonder about is there’s mentorship where you’re talking about teaching people the technical skills of the trade—how to write, how to be, you know, how to research, how to think, how to identify problems—I think that’s fine but I wonder if—it sounds to me like what a lot of both of you are talking about is more than that; where it’s really taking an interest in somebody’s development, writ large. Like what ought they be doing to solve the puzzle? They should know the right questions to ask to figure out how to advance.
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And then that makes me think a little bit, you know, Harvey, you had talked about connection, you know, connectedness, those kinds of issues, and from your perspective, both of you, I don’t know if you had this kind of relationship with anybody as you were progressing, but would it matter, would it help if you felt—if you were a young lawyer, you’re a minority, you know, African American, Latinx, whatever, coming into a firm, if somebody more senior than you is actually taking an interest in you as a person in your career, is that—did you have that experience? Was that helpful? Is that something we should be including in mentorship more broadly?
Because we do see, when we lose minority associates, and this is not just Cleary, this is generally across the profession, one of the things you frequently see is they say, "I never felt like I belonged." You know, "I never felt like I was included in things." And I think this kind of aspect of saying, you know, how do you do things? You know, how do you grow as a lawyer, maybe is a way to help with that?
MR. HARVEY ANDERSON:
That’s exactly what we started with; this notion of belonging. And yes, the mentorship means exactly that. Not career training and here’s how you take depos and, I mean, that’s—you’re going to have to do that work, but it’s that other piece. And I think back, there were a couple of mentors that I had—actually, one of the ones said the most powerful things to me was an antitrust attorney, Dan Wall, and I love him for this. Dan, when I was a summer associate, said, "Hey, you should compare yourself by your own internal standards. Don’t measure yourself by our standards; measure by your own standards. That will be good enough." And what it did was it made me feel like I belonged. It’s like—it said, oh, okay, you’re on steady ground. You’re—this part is true. And that’s just one small comment, he probably doesn’t even remember that he said that to me, but it was pretty meaningful and it made you feel connected, it made you feel like you belong, just as much as anyone else. You know, not better, not worse; you know, one among many. And so, your point about creating that sense of belonging in someone—and I don’t know how much of an interest he took in me, personally; he might have been giving that advice to everyone. But I happened to hear it one day so, you know, for that I am grateful.
MR. JOHN GIBSON:
I think that’s right. And I would draw a distinction between what we call mentorship and what we call sponsorship. So, a mentorship is offering your advice and being helpful. I think sponsorship is another level up, which can include, you know, which is a really holistic investment in the protégé. And it includes the sponsor using her or his contacts and influence for the benefit of the protégé, so it’d be things like introducing the protégé to a client and basically saying this is our next great lawyer in this area of the law that I’d like you to get to know. That’s big, right? And that creates a sense of belonging when you know that you’re being endorsed like that. I think it includes things like if you’re working on a brief or that you’re going to send to a client, let’s say, in draft form, having the sponsor really rigorously go through that and, you know, the brief may be bleeding red or bleeding track changes but then the protégé gets to see that and gets to clean it up and address those comments and then the protégé gets to send it to the client and the client says, "Wow, nice brief," right? And the sponsor says to the protégé, "You know, you’re younger; I was at your stage 15, 20 years ago and you’re going to get better, you’re going to use this experience to become a better writer." But now, your relationship with the client has elevated because you handed out—you gave them this great work product; keep it up. Things like that, I think, are things that a sponsor does who is fully invested in, as you say Harvey, the life and the career of the protégé and I think that’s very impactful.
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MR. BRUCE HOFFMAN:
What would you say, for both of you, what’s the biggest obstacle today to not having more sponsorship relationships between established successful lawyers, whether they’re in house or in government perhaps or at law firms and diverse lawyers or other barriers? I mean, it seems to me there must be because of the statistics that we see but what do you think they are if they exist?
MR. HARVEY ANDERSON:
You know, I think the notion that John brought up about, first, the distinction between mentorship and sponsorship is huge. I think people sponsor others but not many of us do it intentionally and therein lies the problem. It’s an art, it’s done, but it’s not always done with intentionality so when you say what’s the obstacle, my sense is that the obstacle is that we don’t know that that’s a muscle to use and when to use it.
Now, there are people that we like that work on our teams that we want to promote and advance because we see them doing great work. We are being sponsors for them. They might not even know that. And there are people that we don’t know that are doing great work that don’t know to ask to be a—that don’t know that they need a sponsor, so to speak; that they don’t need—that they need that kind of—or set of sponsors. So I think even shedding light on this mechanism and behavior, because it’s a bit of a dark art in some ways, is an obstacle because it’s not talked about.
MR. JOHN GIBSON:
Yeah, if I can add to that, Bruce, I think that’s exactly right and further, the folks who are going to be the most powerful and impactful sponsors, you know, both in law practice and in house, are really busy, you know? So of course, you’d like to ask Harvey to take on 20 proteges, right? But he’s running a Fortune 50 legal department, right? There’s a lot to do. For the kind of the most powerful law firm partners, they’re out trying cases and attending to client’s needs 24/7; it’s very difficult. But usually, my experience has been, when you approach folks who maybe are not reaching out for proteges across differences, a lot of times when you bring it to their attention and say, "Hey, look, we’ve got two people who are really doing well and have a lot of potential who really need some help," and they say, "Great, I’d love to help them. I didn’t think about it. I mean, I don’t have—you know, I’m billing 14 hours a day, right, and so I didn’t really think about it and these other folks were waiting outside my office to go to coffee with me, right, or approach me."
And so, I think one of two things. One is bring it to the attention of the people who would be, you know, very impactful sponsors and asking them to intentionally reach out across differences. But it’s also educating diverse lawyers in the profession that you need to—hey, listen, if you want Harvey to sponsor you, one thing you could do is get in touch with him and say, "Hey, listen, I’ve been following your life and career; it’s amazing what you’ve done. And I want to be like you. How do I—what are some of the things I can do, you know, in today’s world to carve a path that’s similar to yours? Can I take you to lunch? Can I take you to coffee? Can we spend 10 minutes together where I can learn about your life in a way that improves mine and expands my knowledge base?"
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MR. BRUCE HOFFMAN:
That’s a great point; I’m going to come back to that in a second. But let me just say I think we have a little bit under 10 minutes left; like five to seven minutes. So if anybody has questions out there, please fire them in. I know you can put them in the chat; I think that’s the best way because I’m, frankly, not sure from this particular view how we can get people up on the screen. But I know that there are—the folks that are on the line who are running this for Golden State can get your questions in here if you have them, so please feel free.
John, to come back to the point that you just made, one of the things that that underscores for me is that people have to feel like they can ask for what they want. I mean, first they have to know what they can ask for, which is a hard thing sometimes, but also, people have to ask and they really don’t have to, but it certainly is helpful. One of the things that I’ve noticed is some lawyers who might have seemed progressed rapidly aren’t shy about asking for things. They ask for good work. An example I use often is I know a young lawyer who—we were starting a large antitrust litigation back when I was in private practice the last time, before I was in the government, and he came into one of the partner’s offices who was running litigation and said, "I want to do depositions in this case, so you know, I think there are going to be a lot and I don’t want to just always be carrying somebody’s briefcase; I want the chance to actually go and take depositions." And the answer was, "Okay, you know, it looks like we’re going to have a lot so I’m sure we can find you some that you can do where you could first chair a deposition." But had that person not asked, that might not have ever happened. And I think, you know, at least it seems to me that one thing is to encourage people or make them feel safe enough to ask, you know, that they have the ability to ask for what they want and that that actually matters; it’s a meaningful thing to progress. Whether it’s in terms of somebody helping you or whether it’s in terms of the kind of work you want to do.
MR. JOHN GIBSON:
I think that’s right, Bruce, and you know, I think it’s important to educate lawyers when they’re first coming in to the profession that that is important; that that’s kind of, you know, the way the legal profession works. And that they own, to a great extent, responsibility for succeeding; you know, for getting into these systems where powerful folks will be willing to sponsor them and help them as they were helped.
MR. HARVEY ANDERSON:
You know, I wonder if all of the folks that are coming in in this cohort that we’re talking about all have the same emotional and psychological security to even ask that? I think that there’s another—I agree with what both of you said but I also think there’s another element of—there’s an element of fear; they don’t know that that’s how it’s done. They don’t know that the worst—that "no" is not the worst answer, you know?
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MR. JOHN GIBSON:
Right.
MR. HARVEY ANDERSON:
And there’s no downside to it. So there’s something else going on here, too, I think, because you’ll see different folks just have different profiles and they may be more quiet about things, they don’t know—they just don’t know how it works and don’t even know to do that, even though they want it. But they think it’s—it will violate a rule or it’s out of turn or it’s culturally not the right thing to do.
MR. BRUCE HOFFMAN:
So we actually have two questions, one of which I think may pertain a little bit to that last point, Harvey. So the question that may bear on that is can you share how to be a better ally? I think that may be for any of the three of us; maybe for me a little bit, as well, in particular. But the other question was even with the Rooney Rule, black coaches and general managers seem grossly underrepresented relative to players. Any comments on that? You want to—maybe we should take that one first. John, do you have any thoughts on that or Harvey?
MR. JOHN GIBSON:
Yeah, so I mean, that’s right and I think the maximum of reach was maybe 15 percent, you know, black coaches and general managers in the league, compared to something like, you know, 70 percent players; players of color. But I think the point is that there was a change that was made and it was going in the right direction and, you know, really the point is that each person can make a difference, each equity holder can make a difference. And a very recent example, talking about a different sport, basketball, is when the Los Angeles Clippers were looking to fill their head coaching position recently, you may have read virtually all of the candidates that Steve Ballmer, the equity holder, interviewed were African Americans. He interviewed pretty much every high-level, qualified, African American candidate for that position and I think maybe one straight white male and something like eight or nine men. And he didn’t say anything to the press, he didn’t say this is what I’m doing, but his actions spoke volumes. And, you know, what he was basically saying was, here I’ve got an opportunity in this moment to find—and folks who know Steve Ballmer know that he’s very competitive and he’s all about winning a crown, winning a championship, so he’s going to find the best, most capable coach he can and that’s what he did. But he did it in a way where he loaded equality and diversity. And so I think that’s what—that’s a real benefit that came out of the Rooney Rule, where folks are changing their way of thinking and making loud statements through their actions to other owners and other CEO’s.
MR. BRUCE HOFFMAN:
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You know, look, one of the things I think that example really underscores, and also the genesis of the Rooney Rule, is look, talent is not distributed particularly to any group, right? I mean, talent is spread equally across the human population. And so, if you are not—if your diversity doesn’t represent society, then you are by definition harming yourself or, by definition, you’re less good than you could otherwise be. I mean, there’s no other conclusion you can reach. And I think when people realize that, then they think this is a—that’s what, I think, really starts to bring home what a problem this is; that basically, we’re wasting talent. We are underperforming, you know, as a society, as a profession, by definition. Just by the math, it’s simple but often it’s not thought about that way.
I’ll try to take a quick stab at the better ally question and then turn it over to all of you for your thoughts and I think that will probably end our panel here. But I mean, look, I don’t know—I’m not sure I know how to be a better ally. What I would say is there’s a—John Cusack in Gross Pointe Blank, one of my favorite movies, there’s a scene where he’s asked something like, "How’s your life?" Or, "How’s life going?" And he said, "In progress." And I think that’s the best I could say here. I think when I think about being an ally, what I try to think about is really intentionality, right? Just actually trying to think about it; trying to break patterns and think about who are people that helped me, what did they do for me, who can I help that way? You know, who can I—who might be quiet? For example, Harvey, use your point, you know, who’s not talking? Who can I reach out to? Who can I try to give space to speak? But I really think just keeping this top of mind is the first thing, right? Everything else—the way I think about it, everything else comes after that. The first thing is actually thinking about; actually paying attention to it. But with that, I’ll stop talking, turn it over to you all, and I think that’s probably the end of our time.
MR. HARVEY ANDERSON:
I think to be a better ally, just speak up when you see behaviors that would offend you; just speak up. You’d be surprised; you’d be surprised.
MR. JOHN GIBSON:
And I would just close by saying that remember the power of one. You may be the one person who’s going to make a difference that day or that week or that year in some person’s life or in many person’s lives. And so, make an intentional choice to support allyship, to be an ally, and to be that change that the world needs, that the profession needs, by making a change in yourself. I’m going to make that change and I hope you will, too.
MR. BRUCE HOFFMAN:
All right, well, thank you all very much and I’m not sure how we technically end but I think they’ll turn us off. I appreciate it and I hope everyone in the audience learned things from this. I certainly learned a lot so thank you, all.
MR. HARVEY ANDERSON:
Thanks, folks. Bye—bye.
MR. JOHN GIBSON:
Thank you.
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Notes:
1. D. Bruce Hoffman is a Partner at Cleary Gottlieb Steen & Hamilton LLP focusing on antitrust enforcement, including merger clearance and conduct investigations, and antitrust litigation. He is a former Director of the Federal Trade Commission’s Bureau of Competition, heading the FTC’s antitrust enforcement, as well as a former Deputy Director of the Bureau of Competition and Associate Director of Regional Litigation for the FTC.