- A Conversation With California Supreme Court Justice Martin J. Jenkins
- Aam V. Robert Bonta: An End To California Pharmaceutical Legislative Reform?
- Big Stakes Antitrust Trial: In re National Collegiate Athletic Association Athletic Grant-in-aid Cap Antitrust Litigation
- Big Stakes Merger: Federal Trade Commission, Et Al. V. Thomas Jefferson University, Et Al.
- Combatting Covid Through . . . Consumer Protection? a Multi-jurisdictional Approach To Protecting Public Health Through Enforcement of Consumer Fraud Laws
- Executive Committee
- Message From the Chair
- Message From the Editor
- No-poach Agreements: Increasingly Risky
- Recent Developments In Antitrust and Unfair Competition Law
- Table of Contents
- Views From the Top: Managing Antitrust Practice In Changing Times
VIEWS FROM THE TOP: MANAGING ANTITRUST PRACTICE IN CHANGING TIMES
Edited by Jiamie Chen1
- Shana Scarlett, Hagens Berman Sobol Shapiro LLP
- Dena Sharp, Girard Sharp LLP
- Kalpana Srinivasan, Susman Godfrey LLP
- Susannah Torpey, Winston & Strawn LLP
- Moderator: Jiamie Chen, Parabellum Capital LLC
I. INTRODUCTION & OVERVIEW
Antitrust practice is changing like never before. Unprecedented focus on competition concerns by regulators, law makers, and the private bar, particularly in big tech and related areas, combined with emergence from pandemic-era litigation practice, continue to drive transformation. This all-women panel provides unique perspective as top antitrust practitioners who hold senior management positions. In the discussion below, they provide practice tips, predictions, and candid reflections on how the practice has changed (or not) over the past two years, and where it is headed.
* * *
MS. CHEN: Welcome to views from the top.
To my right we have Shana Scarlett. She is the Managing Partner of Hagens Berman Sobol Shapiro LLP’s Berkeley office and on the firm management committee. You may know her from her role in Broiler Chickens, Poultry Wage Workers, Animation Workers, Lithium Ion Batteries, eBooks, Optical Disk Drives, and Railway No-Poach, which are among the many, many antitrust matters that she has worked on.
To her right we have Dena Sharp, who is our gracious host for today. She is a named partner at Girard Sharp LLP and co-lead counsel in Xyrem, Juul, California Gas Spot Market, Restasis, and Lidoderm, and to top it all off, earlier this year she obtained a $15 million jury verdict in the Pacific Fertility Center litigation.
To my left is Susannah Torpey, who traveled all the way from New York to be with us here today. Susannah is a partner at Winston & Strawn LLP. She’s the Co-chair of the firm’s Technology and
Antitrust Group, which is a bit of a hot topic these days. Susannah represents major U.S. and international corporations in high stakes antitrust matters, including in industries such as high-tech, artificial intelligence, mobile apps, e-commerce platforms, wireless connectivity, semiconductors, as well as biotech and pharmaceuticals.
And finally, Kalpana Srinivasan is unfortunately unable to join us in person today, but she did share some of her thoughts with me in advance and I will be passing on her insights to you. Kalpana is the managing partner of Susman Godfrey LLP and a member of the firm’s executive committee. She represents both plaintiffs and defendants in high stakes antitrust matters, including as co-lead class counsel. She also won a $706 million jury verdict in 2018 in a trade secret misappropriation and breach-of-contract matter.
As you’ll notice, as we went through our panelists, I did not go through their accolades. That’s because, between them, they have won every accolade you have ever heard of; Titans of the Plaintiffs Bar, Law Dragon, Top 100 Trial Lawyers in America, California Attorneys of the Year, Super Lawyers, Super Super Lawyers, and every top antitrust lawyer list that exists.
Thank you all for being here with us today. Let’s jump right in.
II. STEERING ANTITRUST MDLS AND MAJOR LITIGATIONS IN THE NEW NORMAL
In the past year and change, there have been significant delays in litigations across the country, in every type of case. Antitrust cases are not known for proceeding quickly, and in the past year, that was certainly exacerbated. However, in certain cases, there were meaningful resolutions reached during that delay, which is a remarkable feat.
Turning to Shana, you have a critical role in Broiler Chickens,2 one of the cases that moved along most meaningfully during the pandemic delays.
Can you discuss how you were able to accomplish that, and give us a little bit of insider perspective on what that was like?
MS. SCARLETT: Yeah, that’s a really good example because I think what happened in the Broiler Chickens case kind of was really demonstrative of what happened across all of my cases, which was the pandemic kind of came into effect and everything ground to a halt; depositions stopped, hearings stopped, right? Everybody started staying home. No one knew how to deal with what was happening, and it was just this immediate and grinding absolute halt to everything moving forward on a litigation track.
And you can see that there was really only $5 million in settlements in that first year of the pandemic, but then at some point there was just this reality that struck the judges, that struck counsel, and we all kind of thought, "Well, we have to get our stuff together and figure out how to make this work or none of us are going to be employed a year from now."
Deposition protocols got entered that allowed us to start up on remote depositions again, and I’m a huge proponent of remote depositions. I used them well before the pandemic when I had small children, to not travel to Asia to depose witnesses and leave my kids for six months.
I was already kind of comfortable doing that, and so, when we got up and running, I think that really started the wheels moving again, and it really helped when courts learned to use Zoom and would start holding hearings again, and would start making sure cases were back on schedule.
And then it all, I would say hit full speed, and it just felt like it was a train that we could not slow down. I’d be doing depositions and arguing in the Ninth Circuit—and I was thinking of not telling this story because I feel like the video is going to go to Child Protective Services, but I’m going to tell it anyway—where I was arguing in the Ninth Circuit, and I just lined up food on the counter for my two kids and
told them not to bother me and I just had to get through my argument. At the end of it, I have these four big eyes staring at me like, did we do okay, Mom? You’re great.
MS. CHEN: Did you ask how the feedback worked out for them?
MS. SCARLETT: Well, they give me a scorecard at the end. But when that happened, I think people really started leaning in; leaning into the technology, leaning into online mediations. I would say that’s my one happy thing to take away from the pandemic is that JAMS and the other mediators have learned to use Zoom.
It was actually the last trip I took right before the pandemic went into effect. I was traveling to New York, we had it on calendar for a really long time, dozens of people needed to be there, it took a really long time, everyone went. It was one of those awkward days where nothing happened; it seemed like a waste of time and, during the pandemic, all of a sudden we could do it on Zoom. Mediators are able to be available a lot quicker, and I think that that helped us move through the next round of settlements.
In 2021 there was $175.5 million in settlements in my end-user case and the Broiler Chickens case, and that has started rolling over to the other cases that I’m litigating as well. That single thing, being able to hold mediations on Zoom, really broke through a lot—the wall of early 2020.
I’m curious to hear if that was the same experience you guys had.
MS. TORPEY: Yes. For me, I have been managing an MDL that was midway through a hundred depositions when everything shut down, and if I could give one piece of advice to any of the young lawyers watching, I think the way that we really moved the schedule forward is to get very tight, court-ordered deadlines.
So we shut down, we were about halfway through. I was probably traveling back to New York from one of my depositions when you were traveling home from New York, and we had to very quickly get a court order to say we’ll have one month to try out all of the remote services, agree on a vendor, and then get right back in it.
And I think it is going to change depositions forevermore because for better or worse, it meant that I could actually do a lot more of them in the second half of the case schedule because now I could easily do two depositions a week; otherwise, they might have been across the country and somebody else would have had to do one of them. So hopefully that is going to stay.
MS. SCARLETT: I’ll go one further. I’ll say I know that’s going to happen because I now write the protocols and put in the provisions that say this is going to happen.
MS. SHARP: Let me ask a question: Heading into what we hope is the late stage of the pandemic, are you all inclined to keep taking depositions virtually?
MS. SCARLETT: Absolutely.
MS. SHARP: Are there any that still want to take in-person depositions?
MS. SCARLETT: Perhaps. I’m not saying no.
But for the most part—and here’s why: because when you have a video deposition, I feel like two things can happen. Number one, you’re forcing everyone to use electronic exhibits. This was a mission I was on, again for years. I would have to lug ten boxes of documents to depositions. At the end of it everybody throws the exhibits out. I hated the waste of paper and the degraded quality of your exhibits, because the court reporter scans them, and what was a beautiful, all-color PowerPoint presentation that you would use to impeach a witness, came back as this murky black-and-white document with dots all over it, and it just didn’t have the same punch.
MS. SHARP: It’s inadmissible.
MS. SCARLETT: So having the Zoom platform and having the electronic exhibit exhibits is one.
And then the other one is—and this is a little more controversial—I think that the questioning attorney should be recorded. I like the Zoom platform and the ability to record not only the witness, but also, let’s say that it’s me as examining counsel, to have me recorded as well so that when you’re getting ready and doing your depo snippets for trial—because most of these witnesses aren’t coming to trial, these are trial depositions—you’re going to have the ability to have, you know, Dena and her face questioning the witness. They can also see the exhibit and then you see the witness themselves.
I think that more accurately mirrors what people see on TV and it keeps them more engaged. It lets everybody see who’s questioning, rather than just having this booming voice that’s like reverberating out because there’s always terrible quality. I think there’s a lot of value to Zoom depositions.
MS. SHARP: Yeah, same. The one thing I’ll add to that is get the defending attorney’s face on screen too.
MS. TORPEY: Right?
MS. SHARP: I’m not kidding. Separately from the witness. Oh, no, no, we’ve insisted on it because—I’m currently in an MDL right now in which we were appointed in December of 2019. We had one hearing and it’s all been Zoom since then. We’ve completed fact discovery, we’ve taken more than a hundred depositions. They’ve almost all been by Zoom. And the one thing that we’ve learned, and that the special master taught us, is to put the defending attorney’s face on the camera too because it does change the demeanor, and I think it’s really going to affect the trial cuts.
I think it’s going to be fascinating to see the first generation of trials post-COVID, because I think what we’re going to see is a much, much more efficient way to run trials.
MS. TORPEY: More dynamic.
MS. SHARP: That’s right, juries are going to love it.
MS. TORPEY: It’s like TV.
MS. SHARP: That’s right. And there is even a sea change a little bit in terms of Rules 43 and 45. Some courts are kind of looking at, yeah, maybe we should allow some witnesses who are outside of the subpoena power of the court to still be called live but by video, and that way you’re still within a hundred miles of your own home district but could testify live.
It’s unclear to me how that one’s going to come out, but for me, Zoom depositions have been sort of truly transformational and, you know, you said the one good thing to come out of COVID.
The other thing I’ll say that’s related to that, in my mind, is that it feels like litigation and civil litigation and the competitive and adversarial nature of it, just on its own, made it almost impossible for there to be systemic changes, in terms of how we worked; for women, for men, for parents, for nonparents—everybody.
And COVID, for all of its horribleness, I think has precipitated changes whose time had come but which nobody was really ready to take the plunge into.
So I feel like it’s going to make litigation so much more efficient. I’m really curious how you all feel judges have taken it because, you know, some judges have—not in the Northern District of California—I’ll say every single judge in the Northern District, as far as I know, is absolutely adept at Zoom; not only adept, but insisting on having all case management conferences (CMCs), even for those of us who live right down the street, just saying, "Look, it’s more efficient, everybody is saving their clients a lot of money by doing these things by Zoom."
Monthly CMCs are so important to keep a case moving, for the reasons that you said, Susannah. But they are also really, really expensive for our clients and for the case, for the class, whoever it is. There’s just no downside, in my mind, to doing a lot of these depositions, a lot of these hearings by Zoom.
One last good thing I’ll say about that is that it’s given a lot of younger lawyers access to those kinds of proceedings who wouldn’t have had it. We’ve all been in the circumstance where somebody’s kind of looking askance at you because you’ve got your entourage coming with you, and that too costs our clients and ourselves money. This, to me, has just been a huge benefit of COVID. While the management challenges are real—and I think there’s a real concern about people falling through the cracks—on the other hand, if we can manage to encourage people to tune in, even if it’s not billable time, that’s a great mentorship opportunity.
MS. TORPEY: We actually set up a program so that our summer associates could view all of the arguments going on in different courts around the country throughout the summer, remotely, so got them a lot of experience they wouldn’t have gotten otherwise.
III. ANTITRUST ENFORCEMENT FOCUS ON BIG TECH-BALANCING PRIVATE ENFORCEMENT WITH GOVERNMENT ACTIONS AND GUIDING CLIENTS IN THE CROSSHAIRS
MS. CHEN: You mentioned some cases that you have leadership positions on, and one of them that I want to get into a little bit more—we all know tech is a huge antitrust priority right now for enforcers, for private attorneys, for those in the industry. Google alone has, what, four or five different regulator lawsuits going on against it right now?
MS. SCARLETT: And counting.
MS. SHARP: And counting.
MS. CHEN: And counting. We’ve heard rumors.
Those cases are obviously still in the early stages. The one that’s probably a little bit further along is the display ads matter, and that one started out—the class case started out in the Northern District of California, the Texas AG action started out in the Eastern District of Texas. Those were all consolidated over in the Southern District of New York recently.
Dena, can you talk a little bit about your experience with the case so far and how you think it’s been going?
MS. SHARP: Sure. I’ll start with your second question first. How it’s been going is really slowly, and that’s not a discredit to any member of the judiciary or anything like that, but when we have an antitrust case that has parallel regulatory cases or actions or impending actions that are out there, it creates a completely different dynamic, as I think we all know.
The case was subject to two different MDL motions. The first time it didn’t get consolidated and the second time it did. I think there’s a whole lot more to be revealed about what is going to be alleged about Google and, you know, the case—
MS. CHEN: That sounded very interesting.
MS. SHARP: I’m not saying anything I’m not supposed to. I think we all are optimists in terms of our ability to figure out where anticompetitive conduct is actually happening and frankly, it’s really difficult in the tech space because it is so, so specialized—not surprisingly, in technology—but there are ways to effect anticompetitive conduct or to act anticompetitively, that are hard to see on the surface and are especially hard when it’s something that’s as convenient as Google or Facebook or whatever it is.
Heading down the road in that litigation, my judgment on it has been that, when we have state enforcers and when we have federal enforcers that
are working on the case, it’s a benefit, because, ultimately, we’re in it to just get good results for our clients and for consumers and to make sure that people aren’t paying more for services than they should.
There are a lot of competing interests in the Google antitrust cases because there are a lot of different kinds of clients and classes and proposed classes and opt-outs. Some of those classes overlap, some people are part of multiple classes, and so I think our judgment has been in the first instance—and this is Judge Castel’s judgment as well in the Google MDL—is to let the states go first and get that complaint somewhat settled.
The State Attorneys General—there’s like 40 of them—they filed a consolidated complaint last week, and Judge Castel is going to issue an order on the motions to dismiss there.
That briefing schedule is going to play itself out pretty quickly, and I think we’ll have a much better sense then of what the shape of the timetable will be. We have to make decisions sometimes in the private bar about whether we want to be aggressive about pushing ahead or not, and this one, for all the reasons that I’ve said and also because you kind of can’t fight with an 800-pound gorilla, we think it makes a lot of sense to see how the enforcement actions go and then go from there.
MS. CHEN: Absolutely. That makes a lot of sense.
On the industry side, Susannah, you counsel a lot of these major technology companies. What has been the reaction to this type of antitrust focus that you’ve seen?
MS. TORPEY: Well, it’s very diverse. There are a lot of different types of tech companies, obviously.
The Google case is a great example of how we’re really just in the beginning stages of what I know a lot of people—and you probably feel like it’s been forever and has been going on for a long time—
MS. SHARP: But it’s COVID time.
MS. SCARLETT: It’s all the same thing.
MS. TORPEY: Yes, yes, but now, you know, with that complaint, for example, just being unsealed, there are a lot of smaller tech companies that are just learning how they have been affected themselves.
I think we’re still at the very beginning stages and we’re really at what I would call the "tip of the iceberg" phase of this tech boom in litigation, because right now so much of what is going on is really beneath the surface and there’s so much activity in the agencies, both at the FTC and DOJ, that people don’t even know about because it’s confidential. But as soon as those investigations do become public, I think there will be a new wave of private tech litigation among the actual tech companies. And you’ll see that—
MS. CHEN: Are you writing that down?
MS. SHARP: Oh, yes.
MS. TORPEY: But you’ll see a divergence, I think, in the way that these companies are reacting to things, right? So the Biden administration has actually been very forthcoming with information about its priorities, and you see different companies reacting in very different ways.
So even this morning we learned, for example, that Apple is now releasing self-repair services for consumers. That’s no coincidence, obviously, when the Biden administration, in President Biden’s executive order in July, raised that as one of their investigative priorities.3
So, you know, these companies are listening, they are reacting. But then I think there are other companies that are looking at how some of these investigations are going to go to the heart of their business models, and are more entrenched and unable to pivot and be nimble, and are going to wait and see if there are real guidelines that do come out from the agencies, which is not necessarily
clear. There has been a lot of disagreement, as we know, both across the agencies and within them, so we’ll have to see what happens.
And then of course there’s the question of what happens to the guidelines when they come out? Because there are the courts and lots of precedent on the books, and a lot of companies will not want to make moves until they are forced to.
MS. CHEN: Kalpana contributes that there is a lot of focus on data as a valuable form of IP and commodity generally, and that it is permeating many different practice areas and causing a shift in how we view many types of laws, from antitrust to breach of contract to trade secret. Thank you for that.
IV. THE DYNAMICS OF VIRTUAL HEARINGS AND CLIENT PITCHES-PROMOTING EQUITY OR NOT SO MUCH?
MS. CHEN: So shifting gears a little bit, it was mentioned earlier on that when we do these hearings through Zoom, one potential benefit is that now the entire team gets to be on-screen. It’s not just one person or two people in front of the judge and the rest of the team is behind them, and nobody really can see them or maybe they’re not even in the courtroom at all.
MS. SCARLETT: Just to be clear, you have the lead attorneys who are arguing on-screen and visible to the judge. There may be lots of people watching, but that’s not necessarily translating to having more face time, so there is still kind of a barrier.
MS. SHARP: I will say, though, that my colleagues and associates are usually texting me when I’m screwing up the hearing.
MS. SCARLETT: That’s true. You get a lot more real-time feedback.
MS. SHARP: Telling me things I should have said.
MS. TORPEY: Plenty of feedback.
MS. SHARP: It is actually awesome, though, during hearings, during depositions, to be able to have that free communication flow—all joking aside—and I do welcome it when they tell me I screwed something up because maybe I can fix it.
MS. SCARLETT: It’s so obvious when someone comes up and gives you a Post-it note when you’re up there speaking to the judge, obvious that you’ve missed a part of the record.
MS. TORPEY: And the handwriting is terrible.
MS. SCARLETT: So when you’re on the Zoom screen and people can just be live messaging you and you can incorporate that into what you’re saying in a more natural way, that is truly great. But I know where you’re going with this and I want to jump in because I see something really terrible that’s happening at Zoom hearings that I want to address. I’m also curious because, in my little isolation bubble of one, I have a lot of things that I’m not sure other people see them.
The issue is Zoom hearings and interrupting female judges, female lawyers. There is the tendency in court for men to dominate the microphone, and that has always existed and always happens, and so that certainly has translated, in terms of speaking time, to Zoom hearings.
But the difference is when I’m in court I have felt that if I stand up and approach the microphone, if I make a sign to the judge that I’d like to speak, that I have something to say, there have been times when I’ve physically, yet gently, pushed aside someone to make sure that I have my chance to speak. Those things, these mechanisms, existed in court to make sure that you can get up there and that you can speak in a way that does not exist on Zoom.
I have been frustrated myself but I have also seen many times that on Zoom, when someone’s speaking, they’ll speak over others. You have a judge that will be saying something, you have a very loud voice, usually male, who keeps speaking, and who doesn’t see that the judge’s box is lit up
and that the judge wants to speak. And that, to me, has been a real problem.
I love what the Supreme Court has done where, in moving to the telephone conferences, that they now have a particular order in which the Justices ask questions.
In part, I believe this was implemented because the female Justices were getting interrupted so much—at a higher frequency than the men—and I wondered, ladies, have you seen this as well? Is this something that’s out there in the world? Is this something we should keep bringing to people’s attention?
MS. SHARP: Do we need a negative emoji for hearings? A red "X" over somebody who interrupts, a frowny face.
MS. TORPEY: Well, I argue against a lot of women, actually, so I haven’t had that much in my biggest cases, so—
MS. CHEN: Interesting.
MS. SHARP: I have to say I haven’t noticed it as acutely as you have but that may be in part because overall, I kind of welcome it, in the sense. Especially if I’m appearing in front of a female judge who is having that experience, I will put myself on mute and just sit there and watch it happen.
MS. SCARLETT: That is true. I find it difficult because when you sit back and there are 20 associates who are watching this. One judge in the Northern District of California—I won’t name her—really talked about how a lot of stuff that happens outside of the court’s eyes is the rough and tumble of the world, and when we ask why so many women leave this profession, I think a large part of it is behavior that happens in depositions. The feeling that you get in court that your voice isn’t welcome, and for me, it’s just stepping back over the last 18 months and watching this come about.
I worry that the 20 associates who are watching, who are seeing women being spoken over, who are seeing more soft-voiced people being spoken over, that there’s a message that they’re hearing, that I don’t want them to hear.
MS. SHARP: That is totally fair, yeah, and I don’t mean to be glib about it. I’m just saying that I hadn’t appreciated it, but you’re making a really good point. And it doesn’t feel like it’s very different from a lot of the situations that I think we’ve all probably had to face in our practice, and you’re right, I mean, there’s a question about how to handle it in a way that models good behavior.
MS. SCARLETT: Right.
MS. SHARP: And in the Zoom setting, it’s really, really difficult.
MS. SCARLETT: It’s a challenge.
MS. SHARP: Yep, because you’ve got to do it on the fly.
MS. SCARLETT: I feel like we adjusted to it in court. I feel like I personally managed to adjust to it, right? And I’m somewhat tall so I just lurk behind Dena when she’s talking too much. I don’t know how to lurk on Zoom yet.
MS. CHEN: That’s a little bit less than encouraging, to see that that’s permeating in the Zoom practice, just like it may have happened in court.
Do you see that also happening in, for example, leadership hearings, where there might have been an issue in live court where there’s certain people that might get in front of the judge more than others and then others are not as visible?
Now that we’re on Zoom, assuming that the members of the team are all on Zoom and the boxes are all similar in shape and color and so forth, that the folks who might otherwise have a, shall we say, dominant presence in court physically, are now kind of on a more level playing field with others?
MS. SCARLETT: I’ll jump in.
So I just think there was such a swell happening before the pandemic that the judges became so aware of it, and it’s just so on the mind of so many of the judges, I don’t think that’s changed.
When I look at the leadership appointments, you know, Dena shockingly getting leadership appointments—
MS. SHARP: It can’t be on the merits, that’s for sure.
MS. SCARLETT: Time is up, right? It was time for this to start happening, and it was happening before the pandemic. I see it during the pandemic and I’m glad to have it happen. I don’t see the pandemic changing that or Zoom hearings changing that one way or the other.
When I was thinking about what I have seen, it was the behaviors we had developed in court to try and overcome being spoken on top of, have now reared their ugly heads on Zoom. And I’ve seen that at leadership hearings, I see that in motion-to-dismiss hearings. I see it at discovery hearings over and over again, in a way that we need to find a way to address it.
MS. SHARP: Yeah, it’s interesting because I was going to say I think leadership hearings are probably among the most tame and organized, in a sense, because usually the judge realizes when there are a lot of people applying, "Okay, I’ve got to set an agenda and do something that is actually going to help corral all these cats."
And so those Zoom hearings, in my experience over the past couple of years, have actually been quite effective. Especially when people are on a clock, it’s just like, get the buzzer and get the cane, pull ’em off.
And it’s great when the clerk mutes people. It’s hilarious. I don’t know if you guys have ever seen that happen.
MS. SCARLETT: I have not.
MS. SHARP: There are a couple of clerks who have really learned the power, I will say, and it’s wonderful to watch that happen.
But I think it’s what Shana’s identifying, which is the more rough-and-tumble hearings, which are the discovery hearings or the dispositive motion hearings or the informal conference that the judge convenes, and suddenly you’re on a Zoom with a whole bunch of people. Those are the times where I do think there’s basically the same kind of stomping around that we’ve all experienced for our whole careers, and I hadn’t really focused on it but that’s probably just a discredit to my own thinking about these things.
But I think Shana’s right that there’s some capacity for that. And I also think a judge who can manage their courtroom well can really help alleviate a lot of those concerns.
MS. CHEN: Do you think it would be a good idea to do a little bit more pre-planning for these more rough-and-tumble hearings like they do for leadership hearings, so that it’s more controlled?
MS. SHARP: In my mind, it depends so much on the issue. Generally not. I think we do best in court when we’re ready for anything.
MS. SCARLETT: But that benefits your personality and my personality, where we do throw elbows and we take shots, right? And it takes a certain fearlessness that doesn’t come naturally to me and I certainly have had to develop over the years. When I speak to associates that are—I’m not going to put years on myself—but many years behind me and I think, like, what do I want for them that’s different than what I grew up through? I don’t want them to have the same experience that I had at depositions and discovery hearings. I don’t want them to kind of have to learn to suck it up and show up anyway.
And so trying to change the culture of the law just a little bit so that when they show up, they do feel
like they have the mic, it’s their mic, they get to keep the mic for as long as they want the mic.
MS. TORPEY: Yeah. One thing we often do is agree with opposing counsel before these unstructured hearings as to how we expect to divide it up, and then if you have a more junior associate arguing, hopefully that time can be a little bit more carved out without somebody stepping on their toes.
MS. SHARP: That is such a good idea and it is really, really important.
The other thing that we found pretty effective on that, if you’re trying to make space for that more junior person—because you’re right, I mean when you’ve had experience in court over the years, there’s a comfort that comes with it.
MS. SCARLETT: Yeah, sure.
MS. SHARP: Not that I don’t have absolute butterflies every single hearing still—I mean, I do. Everything is always scary, as far as I’m concerned—in the good way, I hope, most of the time.
MS. SCARLETT: It means you care.
MS. SHARP: Definitely do care, but one thing that we’ve found pretty effective in terms of using Zoom is, one, getting those associates the opportunity to be on screen and being able to actually choreograph it a little bit.
So if you have a judge, especially a judge who is receptive to hearing from younger lawyers, you can say, "Yes, Your Honor, thank you very much, we’re prepared to address that and actually Ms. So-and-so is going to address that now." And it would take a pretty brazen act, I think, for somebody on the other side to then step in and elbow that junior out of the way.
So that’s kind of what I was saying in terms of not having experienced that as much, Shana. I think you’re completely right, but I think the point for me is that there are ways to clean up that mess on Zoom in some ways when you have somebody who’s overstepping.
MS. SCARLETT: Are you lecturing me now that you were already taking care of this problem, is that what’s happening?
MS. SHARP: I am. Let me just explain to you how that works. Hang on, let me use a very loud voice to do it. No, but I do think that sometimes stepping back and letting bad behavior unfold is the best way to handle it.
MS. TORPEY: It’s not scoring points.
MS. SHARP: That’s right.
MS. CHEN: Maybe we’ll call it Dena-splaining.
MS. SCARLETT: Oh, yes. That one I’m writing down.
MS. SHARP: Hope nobody from my firm is watching right now.
MS. SCARLETT: They are.
MS. CHEN: Susannah, on the counseling side, on the defense side, have you been using Zoom for pitch meetings, and how do you think that’s been going?
MS. TORPEY: Yes, and it’s been fantastic.
Before the pandemic I would often fly to Texas or California for an hour-long meeting or just a lunch or dinner or something like that. You know, it used to be unusual to say, "Hey, do you want to get on Zoom and have a cup of coffee or a happy hour?"—you know, something social, leading up to a real formal pitch over Zoom.
We do that a ton now, it’s commonplace, it’s normalized. You know, it used to be really awkward to reach out to somebody that you don’t know or LinkedIn and say, "Hey, do you want to do this?" Now people are used to it and I do it all the time. It’s fantastic.
MS. SHARP: Give the kids feedback.
MS. TORPEY: Exactly. Just put it on the counter, no problem. Great.
MS. CHEN: I think Kalpana agrees and she says that clients have really quickly adapted to Zoom and virtual pitches. It used to be a requirement to meet in person for pitching for the big cases and now, you know, they send PowerPoints and pitch memos in advance so that they can have a really productive Zoom pitch meeting.
MS. TORPEY: Oh, yeah, that’s great.
MS. SHARP: Can I ask one question about pitches?
MS. TORPEY: Of course.
MS. SHARP: Do you find that that formal setting—I feel like judges have been really, really understanding and accommodating, for the most part, of, you know, the little kid, you know, the naked kid who comes running in, the streaker—not that that’s happened to me at all.
One of the best hearings we had during the pandemic was—a very early pandemic hearing, one of the judges here in the Northern District, we were having a discovery hearing and she said, "Hang on a second. Stop talking. My son just started running the blender and I can’t hear you." And that sort of felt like, okay, we can—pretty much anything can happen in these hearings now.
But I’m curious if your clients or prospective clients are similarly understanding, or is it a little more buttoned up?
MS. TORPEY: They are, no, and actually it’s been fantastic because I feel like I’ve been able to forge more close, more personal relationships with my clients through this.
I do a ton of counseling on the defense side with lots of companies. In the beginning, we didn’t have our remote virtual backgrounds that look very professional, and I live in a small apartment in Manhattan. It was just me in my bedroom and it seemed very weird to me but, you know, they’d have their kids popping in, my kids would pop in and then you get to talk about your families and things beyond just your work. I feel like it’s actually forged deeper, more meaningful relationships with a lot of our clients. It’s great.
MS. SHARP: Yeah, it’s humanizing.
MS. TORPEY: Very humanizing.
MS. SCARLETT: It’s equalizing.
MS. SHARP: Exactly.
MS. SCARLETT: Always coming back to the gender dynamics with me, but I’m going to do it anyway.
For me, being a working mom, I really noticed—like I’ve worked at three of the largest plaintiffs’ firms in the country over my career, and the men have like the one very posed picture of their child on their desk and women have nothing, right? Like a lot of women were very afraid to identify as working moms.
MS. TORPEY: You should see mine. I’ve got a big bulletin board collage.
MS. SCARLETT: And I’m glad of it because I certainly try to have that in my office and try to make it more normalized that working moms are here, committed, we can be everything. And I feel like the Zoom world just equalized everybody.
MS. CHEN: Everything.
MS. SCARLETT: Because my male colleagues have streakers behind them. You’ve got a six-year-old coming in that wants food and the dad’s like, "Pardon me, one minute," right? It has just like normalized being a working parent in a way I hope never dials back, in a way that I hope is now here to say, it’s working parents, we’re completely committed, we’re at our law firms, and this is the way it’s going to be.
MS. TORPEY: Yeah, and we’ve been more productive than ever in the pandemic, right?
MS. SCARLETT: Yes.
MS. TORPEY: That hour that it used to take me to get to the office and back, while we’re starting to go back to the office, there are still days when you’re so busy in the morning taking stuff from Asia or whatever is going on, super early in the morning and you just never get that chance to get out of your yoga pants, but then you spend—
MS. SCARLETT: We’re professional from here up.
MS. TORPEY: Exactly.
MS. SCARLETT: Slippers all day.
MS. TORPEY: Then you have a very, very productive day that was never interrupted by having to change locations, you know, and I think it’s going to show at the end of the year for a lot of the big firms, we’ve had great years.
MS. SHARP: Yeah.
V. SAVINGS AND COSTS IN PANDEMIC-ERA ANTITRUST PRACTICE
MS. SCARLETT: So feeding into Jiamie’s next question—
MS. CHEN: It’s almost like she knows where I’m going. It’s really weird.
MS. SHARP: It’s unnerving.
MS. CHEN: I mean, dollars and cents, right? I have the privilege of sitting here with four women who actually do hold the purse strings and see the firm cash flow.
In terms of dollars and cents in COVID, I think it’s fair to say there are areas where there have been cost savings, there have been areas where there have been productivity gains. Would you say that COVID, overall, has been a net positive for firm cash flow?
MS. TORPEY: Yes. I’ll just put it out there. I think yes. I think this has forced firms to catapult into a new stage that they wouldn’t have gotten to on their own if they weren’t forced into it, and they know that people can work remotely.
Now we’re seeing firms, including our firm and various places, starting to try things out like hoteling, or getting rid of some extra office space that you didn’t necessarily need, and the savings can be huge from those types of opportunities.
And I think there was just a report about the big firms having bigger revenues this year than ever. I don’t want to make any promises to our folks, but I think we might have a record year this year, and I think a lot of other firms are reaping the benefits of these more inventive structures and opportunities that really I don’t think many firms would have been bold enough to just jump into without being pushed by the pandemic.
MS. SHARP: I keep thinking that the cat’s kind of out of the bag.
MS. TORPEY: Yeah.
MS. SHARP: People don’t need to be in the office and face time isn’t really a thing and, you know, people work really well in different scenarios.
I don’t know how to answer your question, Jiamie, whether COVID’s been net positive in terms of the balance sheet, because I’m trying think about the costs that don’t end up on the balance sheet. Productivity is great. I mean, no doubt about it, I think everybody’s found that we can all be really, really productive and what was initially a really scary dip in, you know, the stock market and everything else—everybody starts moving to cash in March of 2020 and then we bounce back and it’s like, "Hey, everything’s okay because we have Zoom, right, and we can keep going about our lives." I don’t mean to dodge the question because
you’re asking about money, but there’s a pretty big cost, I think. I think a lot of us have yielded the huge benefits of more time with our families.
MS. SCARLETT: That’s true.
MS. SHARP: It’s what you were saying, Susannah, it’s that hour or two hours a day where you’re sitting—you know, you get to spend that time with your family.
MS. TORPEY: Yeah.
MS. SHARP: On the flip side, that commute time was probably good for some of us, as parents, just to be totally honest, right? My kids probably know a little more about my work and the language I use at work than I would always want them to, and I’m someone who was a big proponent of working from home before the pandemic, especially for folks who need it for whatever reasons—health reasons, family reasons—whatever it is.
But I think there have been really significant costs and I think it’s too soon for us to really know long-term, from my perspective, whether this is a game changer or whether this is a time when it’s a boom for litigation.
I mean, the truth when we look at it year-over-year, both for plaintiffs’ firms and for defense firms, I think I kind of feel like every year I read these headlines that are like "Best Year Ever," "Record Results," you know, for all kinds of firms and our firm is included.
We’ve had a really great year, we’ve had a series of really great years, and we have high hopes for the future. But in terms of the actual financial implications of the pandemic, if any, if there’s any real concrete ones—I think we’ve talked about the cost savings—big picture, I’d like to wait a couple years and see how things pan out a little bit.
MS. SCARLETT: And picking up on that, here’s the warning sign to me, is that lateral recruiting is impossible.
MS. SHARP: Exactly.
MS. SCARLETT: So to me it feels like there is a missing segment of the working market right now and I suspect it’s working moms. I suspect that what we see more nationally at companies has happened in the law and we just haven’t been able to sort that out and tease out the effects yet.
MS. TORPEY: That’s fair. A lot of women left the workforce, for sure.
MS. SCARLETT: Right. And I feel like there are still those that are working now that are at a breaking point, that still haven’t had the cavalry come in and help them, that still have kids that are getting sent home for two weeks for quarantine, they’re still trying to juggle all these things and they don’t have the kind of help that we had before the pandemic, where other people could help pick up the slack for working parents.
So that part of it, I don’t think we see the end of yet. I think we’re still going to be seeing a lot of people leaving, dialing back their hours, moving to part-time, and people that just come to the point, I think if this goes on for another six months, saying, "I can’t do it anymore, I just can’t."
MS. SHARP: That’s right, and that was an issue before the pandemic.
MS. SCARLETT: Yeah.
MS. SHARP: There are all these women lawyers who came before us, upon whose shoulders I feel like I stand at least, who have pointed out year after year, what you said before, Shana, that women tend to leave the practice more than men and, you know, the characteristic that they say tends to define who stays versus who goes is grit, right? We’ve all heard this.
MS. SCARLETT: Sure. I have it but I don’t know what it is.
MS. SHARP: I know what it is when it’s in my teeth.
MS. CHEN: You might know it when you see it.
MS. SHARP: I might know it when you see it.
I have some concerns about that idea in the setting of a pandemic, because it’s just not like, "Man up, be tough"—whatever the terminology is.
MS. TORPEY: It’s impossible.
MS. SHARP: That’s right, exactly, and I think that dynamic, that child care dynamic or whatever it is, has been exacerbated for a lot of people.
MS. TORPEY: Yeah. I know for me it was, sure.
MS. SHARP: That’s right. And I think we’re going to see it all the way down the chain because it’s not just that lateral talent. I mean, we’re all seeing the absolute flight of talent in the young lawyers too, and I just think it’s going to be really fascinating to see what the trajectory is because I think—for some people I think the cat’s also out of the bag that, hey, being a lawyer is really hard, difficult sometimes.
MS. TORPEY: Although I do think there is a silver lining, in that it has forced this conversation and really shone a light on the struggles of working parents, more generally, in the practice.
For us, we now are starting all of these new initiatives that we didn’t have when I was coming up through the ranks, which is just fantastic; these work-life integration resources for parents, we’re starting an affinity group for parents—which I kind of can’t believe we never had before—but it has really spotlighted the challenges that people face, in a way that I feel like a different generation did not fully appreciate until the pandemic.
MS. SCARLETT: But I think that’s a weight that we all carry because—
MS. TORPEY: Yes.
MS. SCARLETT: This program is called "A View From The Top"—Dena and I joke that we don’t know what we’re at the top of, so we’re not sure it’s aptly named, but I think there’s no abdicating the responsibility that we all have at this point to be the ones that implement solutions to the problems that we’re seeing.
MS. TORPEY: Yes.
MS. SCARLETT: And the problems that we’re all personally struggling with, and so for me there’s certainly like this layer of responsibility on top of everything else; on top of being a working parent, I do have a heavy litigation load.
Like there’s a lot of things going on in my life, and yet on top of that I feel this responsibility to implement systemic changes that are going to address some of the problems the working parents have.
MS. SHARP: Absolutely. And I feel the guilt for not doing that sooner, for not seeing the writing on the wall.
MS. TORPEY: That’s right.
MS. SHARP: Yeah. Which is crazy, but true.
MS. CHEN: So what are some of the solutions, do you think?
MS. SCARLETT: Well, for me personally, it has to be a more accepted work-from-home policy, where you have very clear boundaries that people are allowed to work from home, and then the boundaries around working from home. That doesn’t mean on-call 24/7. You have to have hours in place.
I think it means law firms investing more in hardware, to have people working from home—not look like a hostage video with the whitewall behind them, to have more professional—
MS. SHARP: Cord violations.
MS. SCARLETT: Cord violations. No cord violations.
To also make sure that they have—we’re joking because there’s this Room Rater Twitter account that Dena and I love, but I do it to my colleagues, right? I don’t want to see them with some kind of camera that’s all blurred out and I can’t quite bring them into focus.
I think law firms need to be really proactive, reaching out to make sure that the at-home office is a tolerable place for their attorneys to get stuff in a very productive way, and accept that that’s a new normal.
MS. SHARP: Agreed. And provide office space that is tailored to the needs of the firm.
I mean, you know, during the pandemic periodically we sent out surveys to our attorneys and just said, hey, when—if this thing is ever over—because I think we’ve all now kind of accepted this is the new normal.
MS. SCARLETT: Right.
MS. SHARP: But if and when we have the option to go back to the office, what do you want? Like if you could just snap your fingers and the partner said, don’t tell us, tell, you know—tell our office manager and she won’t tell. It’s okay if you say, "I never want to see any of you people in person again." It might affect our views of your lawyering but, you know, I mean in all seriousness, though, I think that we’re very actively evolving in terms of how we see the office space and what it needs to be, and I think it can be a very different thing for each lawyer. We can’t completely tailor it but we can try.
MS. TORPEY: I think we really need to have the balance, though, because while I agree work from home and flexibility are so important, more important now than ever, what has really been eye-opening to me is how the junior lawyers need more in-person time, though, right? So I think we need to make sure we have the balance of providing the resources for the junior associates to have access to partners and mentoring.
We’ve started partner office hours and now, thank God, with vaccinations we can have more cocktail parties and bring people in and make them want to come, as opposed to just forcing them in.
MS. CHEN: That’s right.
MS. SHARP: One way we’re dealing with that is we’re having team days here at the office.
MS. TORPEY: We’re doing that too.
MS. SHARP: So for any given case, Tuesday is the Xyrem day, right? And anybody who’s on the team, you don’t have to come in but if you want to participate in the meetings in person or if you want to know that the partners who you’re working with are going to be there, so you can do the old—the one thing that we haven’t been able to do during the pandemic is pop the head in and say, do you have a minute for me? And that is, I think—especially with new relationships—with established relationships, we can just send a text and say, "When you have a minute, call me." But with those people you don’t know, that is so hard, especially when it’s your boss.
MS. TORPEY: Yeah, because you can’t sort of walk past, you know, when you’re virtual.
MS. SHARP: Do the head check.
MS. TORPEY: See if somebody is—
MS. SHARP: In a bad mood. Shana?
MS. CHEN: Bad mood, occupied.
MS. SCARLETT: But in the office you can do that.
MS. SHARP: Just resting face, sorry. Anyway. That’s why there’s windows into offices. You can see if somebody’s yelling into the phone.
VI. ANTITRUST LIGHTNING ROUND
MS. CHEN: Okay, so actual lightning round, two quick questions. One, during the remaining years
of the current administration with Jonathan Kanter just now having been confirmed to lead the Antitrust Division, which of the following do you think is most likely to occur—and this is not the bar exam—"none of these" is not an answer, so pick one, all right?
A breakup of a leading tech company, a second criminal no-poach prosecution—
MS. SCARLETT: Yes.
MS. CHEN: Antitrust division withdraws from another existing settlement, or an antitrust MDL related to testing, prevention, or treatment of COVID.
MS. SCARLETT: I’m staying with my answer.
MS. TORPEY: Yeah, I think no-poach is likely.
MS. SCARLETT: It’s so hot right now, yeah.
MS. SHARP: I have to pick something different now. A, I think there will be some tech breakup, and it’s going to be highly controversial.
MS. TORPEY: Breakup or spin-off.
MS. CHEN: So lightning round question number two, again during the remaining years of the current administration, will U.S. enforcement agencies, state and federal together, impose more or less in antitrust fines on big tech companies than the European Commission?
MS. SCARLETT: Less.
MS. TORPEY: Less.
MS. SHARP: Less.
MS. SCARLETT: That’s a unanimous vote by the panel.
MS. SHARP: I tried to beat you guys so I’d have some original thought.
MS. TORPEY: If it’s cumulative.
MS. SHARP: Yeah, there’s no way they’re catching up.
MS. TORPEY: Yeah, the Euros are ahead by a lot.
MS. CHEN: Maybe during the remaining part of the administration if it’s not cumulative, it’s just the next three years forward looking, what do we think? It seems like the answer is going to be the same.
MS. TORPEY: But I do think there will be structural relief.
MS. SHARP: And you would think the U.S., just with how competitive Americans are, at some point would realize that they’re falling behind.
We’ll fight all day about French fries.
MS. SCARLETT: And COVID numbers. We definitely have to be best in the world.
MS. SHARP: Right. Talk about views from the top, yeah.
MS. CHEN: Not the kind of top you want to be.
MS. SHARP: No, exactly.
VII. CLOSING THOUGHTS
MS. CHEN: We’ve got five minutes left. I will open it up for closing thoughts. You may provide any closing thoughts you would like; suggestions might include, What do you expect your firm or practice group to look like in three years versus today? What are the biggest changes you think will be? What main changes, if any, do you expect to see in antitrust practice generally in the next two to three years? Or, looking backwards, if you could have done one thing differently in the past 18 months, what would it be?
MS. TORPEY: I’ll start with the last because I was really surprised with the pandemic. Being a parent
of three children, I knew what other parents were going through and I knew how hard it was for them. But if I could change anything, I think it would be greater sensitivity to how hard the pandemic was for the single, more junior associates who were just isolated. We were overwhelmed with all of our competing responsibilities, but I think the isolation of being separated from everyone was way harder on junior associates than I recognized or realized at first, and I wish I had greater sensitivity to that in the beginning.
MS. SCARLETT: Mine’s similar to that. I feel like I didn’t listen to the very wise people that are above me at my firm who knew this was going to be an 18-month thing, who told me this was going to be 12 months, 18 months, 24 months, and I—as sometimes I do, wrongly—Steve Berman, if you’re watching, I’m very sorry—I ignored that kind of longevity of view and I wish I had listened, and I wish I had implemented policies for my office and the people that are in my group that were more long-term, that looked more at like people who are alone and isolated. I’m sure we could have done a better job having some in-person stuff during the pandemic, and I think I’m taking that to where we are right now, which is: I don’t think this is over. I don’t think this is ending in two months. I think that what policies we have in place now need to be something that are sustainable over the next 12 months.
And so, trying hard to put policies in place that don’t change every two months, that don’t change every three months, instead having very much what Steve encouraged me to have, which is the longevity.
And so, putting those policies in place, and I think that’s what I did wrong as a manager during the pandemic, that I didn’t see coming, that I’d never lived through before, that I hope I don’t have to again but that’s what I’d change.
MS. CHEN: If you saw this coming, I think you know something that many of us did not.
MS. SCARLETT: But I mean people senior to me have never lived through a pandemic and yet I felt like they brought this, you know, this like calmness and sereneness and longevity, in terms of their conversations with me and trying to get us all through it, that I look back on now and it’s kind of amazing, right?
It’s amazing that they’d never lived through a pandemic and yet they could see what was coming, and I guess that just tells me I still have more gray hair to get, more to learn. I’m not at the top yet.
MS. SHARP: I agree with all that but since this is an antitrust conference and we’re all nerds, I’ll talk about what I see happening in antitrust law. I think we’re going to see a renaissance of Section 2 claims.
I feel like—
MS. TORPEY: Especially in New York.
MS. SHARP: That’s right. That’s right.
MS. SCARLETT: It’s already happening. It’s well underway.
MS. SHARP: That’s right, yeah, I think it is well underway, I’m just saying I think it’s going to pick up steam and I suspect that we’ll see some adjustments in terms of the prevailing legal principles because I think that courts are going to start seeing that Section 2 is probably being construed a little more tightly than it should be, to actually work to deal with—yeah, yeah, I think I’ll say that. I’ll stop there. I think that the standards will become more flexible and will become better suited to address the very nuanced, cutting-edge issues that we’re seeing.
It’s kind of like the difference between legislative change and the change in case law, where Section
2 is actually quite brilliantly drafted, it’s just the way it’s been construed that I think has narrowed the path for successful claims—at least for plaintiffs—and I think that those Section 2 claims are so well-
suited to some of these tech issues. I do think it’s going to have kind of a new day in the U.S.
MS. TORPEY: Yeah, we’re seeing a lot of tension right now in our cases between district court cases that have been very specific, carved-out new rules, versus actually the Supreme Court precedent like in Aspen Skiing,4 exclusionary conduct. It’s a very broad standard and I do expect courts to start looking to that broader standard more specifically, going forward, like you’re suggesting.
MS. SHARP: And this goes back to the European point, I think, because the Euros have for so long been focused on abuse of a dominant position in the market and have applied it so flexibly, I think that’s why they’re ahead of us.
MS. TORPEY: Yeah. And now we’re seeing in New York—if they actually pass the new law that has already passed one chamber in New York5—it’s going to be much closer to an abuse of dominance-type of standard, and there will be a lot more antitrust litigation in New York.
MS. SHARP: Yeah.
MS. TORPEY: Not just MDL.
MS. CHEN: Well, you’ve heard it here first, everyone. Section 2 cases in New York are going to be the next hot thing.
Thank you so much, panelists. Thank you for tuning in.
1. Jiamie Chen is the Director of Investment Initiatives at Parabellum Capital LLC, a litigation finance firm. Jiamie has practiced antitrust class action litigation, antitrust defense, as well as merger counseling. She also served as an Assistant United States Attorney in the Criminal Division for the District of Nevada. Jiamie serves on the Executive Committee and as Chair of the Education Committee for the Antitrust & UCL Section of the California Lawyers Association.
2. In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637 (N.D. Ill. Sept. 2, 2016).
3. Exec. Order No. 14,036, Promoting Competition in the American Economy, 86 Fed. Reg. 36,987 (July 14, 2021).
4. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).
5. Twenty-First Century Anti-Trust Act, N.Y. Senate Bill S933A (2021).