The Big Law Cartel: How Antitrust Lawyers Help Their Clients Break the Law
Big law is a corrupting influence on our policymakers. The new FTC is dusting off an old legal tool to fight back.
Welcome to BIG, a newsletter about the politics of monopoly. If you’d like to sign up, you can do so here. Or just read on…
Today I’m going to write about how antitrust defense attorneys get paid $1000-2000 per hour to help firms engage in illegal mergers. I’ll also discuss the fun new tool FTC Chair Lina Khan is about to unleash to upset all these lawyers.
Anti-Monopoly Election Candidates Begin to Emerge in Both Parties
"A Real S*** Show": Soldiers Angrily Speak Out about Being Blocked from Repairing Equipment by Contractors
Biden's National Security Advisor Jake Sullivan: Monopolies Are a National Security Problem
Help! I want to know more about sleep treatment devices and dental implants.
Finally, if you would like to address the commissioners at the Federal Trade Commission, they have an open meeting this Wednesday at noon where members of the public get to speak for a minute apiece. You can sign up to speak here. If you are dealing with a monopoly or some sort of consumer deception, let ‘em know. It’s your government.
Mergers That Shouldn’t Get Out of the Board Room
Last August, I noted that Warren Buffett, the seventh richest man in the world, is America’s folksiest predator, a charming, beloved, and ruthless investor who made much of his fortune from monopoly power. Last week, his conglomerate, Berkshire Hathaway, tried to acquire yet more market dominance.
Berkshire’s energy subsidiary owns one of two pipelines that bring natural gas from the Rocky Mountains production areas to central Utah. The other is owned by Questar Corporation, and they compete vigorously over who can ship gas.
So what did Buffett do? You guessed it - he tried to buy Questar, which would have formed a regional pipeline monopoly and let the new firm raise prices on consumers. It’s hard to convey how over the line this merger attempt was. Going from two pipeline firms controlling an area to one, is not complex. It is a merger to monopolize a line of business - pipelines - that is well-understood and over 100 years old. To make this naked power grab even more ridiculous, the two pipeline firms had already attempted the same merger in 1995, and been stopped.
Once again, the FTC blocked it. Holly Vedova, the Bureau of Competition Acting Director, issued an angry statement, saying she found it “disappointing” that the FTC even had to spend money and time to stop this merger.
Antitrust enforcers are dealing with a lot of deals like this, ones that would radically consolidate industries. These deals are blatantly illegal, but the hope from dominant firms is that enforcers might let a few of them slip by, or not have the resources to litigate them all. In 2016, Bill Baer, the head of the antitrust division, noted that mergers which shouldn’t even “make it out of the board room” were constantly sucking up division resources. Office Depot and Staples, for instance, have tried to merge multiple times.
Echoing Baer, Vodova added that the pipeline deal was “representative of the type of transaction that should not make it out of the boardroom.” Then she cryptically offered a threat to aggressive antitrust lawyers who knew this merger shouldn’t have been proposed, noting that the FTC “will be actively exploring its options on how to curtail this type of re-review to better deploy the Commission’s scarce resources.”
Why would firms propose obviously illegal mergers? And why would antitrust lawyers let them do so? Sure, lawyers work for clients, but aren’t they also supposed to uphold the law? To put it differently, lawyers should defend their clients if there are charges of criminal or illegal activity, and they should give them advice on the best way to legally accomplish some business objective. But they aren’t supposed to help their clients plan a bank robbery.
So why are lawyers pushing crazy and obviously illegal mergers?
The Most Boring Conspiracy is Big Law
As I’ve worked through politics, I’ve come to realize that giant conspiracies are far less interesting than they seemed to have been when I was younger. Don’t get me wrong. There are conspiracies, and they are far-reaching. It’s just that most of them, at least when it comes to corporate power and antitrust, are not run by titanic cackling geniuses, but by middle aged slightly overweight lawyers with bad posture who live in and around Washington, D.C., New York, and San Francisco and love talking about wine clubs.
A few weeks ago, New York Times reporters Cecilia Kang and David McCabe published a useful article on the hot market for antitrust lawyers. “Antitrust work — once a relatively sleepy area of the legal world — is now providing a windfall for the big firms,” they wrote. “Top partners at a large firm often bill $1,000 to $2,000 an hour, and the scores of young associates who help them charge hundreds of dollars an hour.”
While there are antitrust lawyers who sue monopolists in private actions, most of these lawyers help large firms engage in mergers, or defend those firms from government or private suits. And what do they get paid so much for? It’s not so much legal advice as it is being willing to facilitate illegal activities, like trying to help Berkshire buy a monopoly in central Utah.
Now, legal ethics are blurry, since laws and regulations aren’t always clear. But sometimes, lines are clear, and too often, the antitrust defense bar forgets that there is a distinction between advocating for a white collar client and acting as an accomplice to lawbreaking. In fact, helping clients violate the law is now routine in the industry.
Gibson Dunn, for instance, is one of the more powerful global law firms, and represents a large swath of corporate clientele (including big tech). I downloaded a marketing presentation from their website, and it offers standard advice for clients and prospective clients on how to get a merger through the regulatory gauntlet.
Most of it is basic, a political and legal analysis of the existing environment, along with suggestions for corporate executives on how to navigate it. It goes over the impact of Trump judges, Biden appointments, and the existing antitrust cases in the hopper, like those against Google. What I found towards the end, however, is what’s interesting. It’s basically a guide to how to get away with an illegal merger, or at the very least, to push the boundaries of the law.
One slide, for instance, is titled, “When should we start thinking about antitrust?” And the answer is, “before anyone starts creating documents.” (I added the red box for emphasis.) In other words, Gibson Dunn is telling clients to beware of their paper trail, because enforcers are going to get to look at their various emails to make sure there’s no intent to monopolize. Here’s the slide.
Still, legal advice to be careful about the words one uses internally on paper, while sort of sketchy, isn’t unethical. But then the presentation gets more explicit. Gibson Dunn goes into “Best Practices: Document Creation.” The presentation veers into facilitating illegal mergers when it says executives shouldn’t mention a merger might make their firm dominant, or that they are engaging in a merger to reduce competition or change pricing in the industry. Gibson Dunn also recommends that executives not discuss in email how they would be eliminating a future competitor, and above all, says they should not model “higher prices or lower output.”
In another slide titled “Document Hygiene,” Gibson Dunn wrote the phrase “Do not model higher prices or lower output”, put that phrase in red, and underlined “Do not.” (You can view the full presentation here.)
The Clayton Act bars mergers of firms where such a merger reduces competition. And while judges have read that law very narrowly to allow most mergers, they will still frown upon modeling showing explicit price hikes or output reductions. Indeed, most mergers in concentrated industries, as economist John Kwoka has shown, do increase prices. What’s interesting about this presentation is that Gibson Dunn’s recommendation could be “Don’t merge if your plan is to raise prices or cut output.” Instead, the firm is effectively though not explicitly saying “Don’t write down that your plan is to raise prices or cut output.”
Broadly speaking, antitrust defense lawyers have two choices when advising clients. First, they can recommend that their clients simply not break the law and avoid illegal mergers. In that case, Gibson Dunn would frame the issue differently, not ‘document hygiene’ but ‘how to tell if a merger is illegal so you aren’t breaking the law.’ Instead, this presentation is straightforward advice on how to break the law and get away with it, a kind of legal recommendation on the best places to hide murder weapons, if you choose to commit murder going forward (though illegal mergers are not criminal offenses, which is an important distinction.)
This kind of advice is pervasive in the legal services industry. Last year, for instance, the Markup did a story on how Google bans certain words in its internal communications, such as “market” and “barriers to entry,” and “network effects,” all of which indicate monopoly power. Google has lawyers who create these rules, who operate not as officers of the court, per se, but as accomplices to illegal activity. When Berkshire tried to break the law with its pipeline acquisition, it wasn’t the exception, but the rule.
I don’t necessarily blame the specific lawyers who wrote this presentation, or the firms themselves. The legal services industry market is competitive in a toxic way, with big law antitrust defense lawyers competing with one another not on whether they can give the best advice on how to follow the law, but on whether they can help their clients break the law. It’s a dysfunctional market structure, an auction of injustice.
Yet, it is that dysfunctional market structure among corporate defense lawyers that explains why Vedova was so angry.
Was It Ever Thus?
It’s easy to roll your eyes at this level of cynicism, and to just assume that lawyers have always operated to undermine the public interest. And there’s merit to that notion. But the corporatized system of legal dominance, in which any sense of public obligation to the fidelity of the law is a competitive disadvantage for lawyers, is relatively new.
Big corporate urban law firms were created in the 1880s and 1890s, and grew concurrently with trusts like Standard Oil and General Electric. (Gibson Dunn, for instance, was founded in 1890.) Progressive elites created corporatist institutions, like law schools, to staff these new administrative bureaus, and gradually fought a war to eliminate the country lawyer who learned his craft through apprenticeship. Doing so took a long time. Even into the 1960s, there were more committee chairmen in Congress with a one year degree from Cumberland law school (which didn’t require a college education to enter) than Harvard Law.
Populist lawyers in the New Deal, like Louis Brandeis and Robert Jackson, recognized the problem of elitism among corporate lawyers, and often criticized the bar. In 1931, Jackson, the last Supreme Court not to graduate from law school, attacked the professionalization of the legal arena into corporate shock troops as a threat to a free society. “We believe in an independent bar, free not only from government control, but intellectually independent of client control,” he said. “In the client-and-attorney relation the client is not a master, the lawyer is not a mere hired hand. He is an officer of the Court, with a duty of independent judgment in the performance of his professional service and under a duty to serve all sorts and conditions of men.”
Jackson, a country lawyer from upstate New York, became one of the central lawyers in the New Deal, resurrecting the Antitrust Division in 1937 and a few years later sitting on the Supreme Court. Coming out of the New Deal, however, big law gradually won the fight, until it became impossible to be a lawyer without a college and law school education. And then in the 1980s, the ethical boundaries completely collapsed. “For half a million dollars you could buy any legal opinion you wanted from any law firm in New York,” said one anonymous lawyer in that first decade of neoliberalism.
Indeed, in 1983, the the American Bar Association - essentially a cartel body that sets the terms and services of the legal services market - changed its ethical guidelines. Prior to that period, their recommended model rule for lawyers was that it was unethical to counsel a client to engage or assist in conduct that the lawyer “knows is illegal or fraudulent,” except to explain the consequences of doing so. But that year, the ABA changed its rule to say that a lawyer couldn’t assist on anything “criminal or fraudulent.” Swapping out ‘criminal’ for ‘illegal’ doesn’t seem like a big deal. But there are a lot of actions that are illegal but not criminal, like assisting on a merger that the lawyer knows violates the Clayton Act.
Not every state has adopted the ABA model rule. The New York rules of professional conduct, for instance, still maintains that assisting with illegal activity is unethical. But in D.C., where a lot of antitrust law is conducted and where the four Gibson Dunn lawyers who made this presentation are based, uses the weaker standard.
Broadly speaking, these kinds of seemingly minor rule-changes, and recommendations from professional seeming lawyers, have over the course of decades warped our society into something most fair-minded people cannot recognize as a liberal democracy. The rule of law has become a weapon for the powerful to manipulate and control us, organized by the legal establishment at Harvard and Yale Law, and then intertwined with elitist judges and lawyers. It’s so bad that the ABA - which is supposed to be a neutral national association for lawyers - routinely engages in quasi-corrupt acts like fighting against the New York bill that would strengthen antitrust law, and lobbying on behalf of debt collectors.
What’s beginning to happen, though, is significant pushback on this whole culture.
When Vedova said the commission would be considering what to do about Berkshire Hathaway’s comically illegal merger to dissuade such attempts going forward, she meant it.
Next week, the FTC is going to vote on what looks like a bureaucratic and anodyne policy statement, to rescind the 1995 “Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases.” This item sounds super boring, but as the Capitol Forum wrote last week, antitrust defense lawyers are freaking out, with one saying it would represent an “incredible deterrent” to mergers.
Here’s what this boring statement means. Today, if you try to violate merger law, the worst that happens is the merger doesn’t get through. And you can try again, as many firms do. Before 1995, however, corporations had to think twice before bringing a ridiculous merger attempt. If they did, the FTC could try and block them not just from the merger under dispute but from future mergers, saying that firms could no longer even try to engage in mergers without prior approval from the commission. Essentially, the FTC could tell a corporation, “You have gone too far, no more more mergers for you.” This dynamic created a disincentive to attempting obviously illegal mergers, because it meant trying to break the law actually brought a cost.
Big business groups obviously hated the prior approval tool. So in 1995, Clinton FTC Chair Robert Pitofsky, under pressure from the new big business-friendly Republican majority Congress, decided to end the use of prior approval in merger cases. Soon, aggressive hospital chains, pharma giants, and industrial firms got out from under what had been restrictions on their ability to buy rivals and suppliers.
Today however, the political situation is different. The 1000+ firms acquired by big tech over the last twenty years has embarrassed enforcers and policymakers. In 2019, 43 state attorneys general asked the FTC for prior approval to be applied to tech platforms, basically a merger ban for big tech. So the FTC is dusting off this old tool, and will now be able to use it more broadly in merger cases and in negotiations over consent decrees.
I don’t know how extensively the FTC can or will use prior approval, but it is one more mechanism - like unfair methods of competition - to be wielded to address our monopoly crisis. It’s going to be interesting to watch what happens as anti-monopolists get more into the weeds of governance. There will be a lot of squealing and anger from powerful people used to getting their way, demands for recusals, arguments about unethical practices and power grabs, etc. But this is all a result of a deeply entrenched ideology among judges, as well as an antitrust defense bar that has little respect for justice.
Restoring anti-monopoly policy will be a slog, because corporate lawyers are intimidating, and policymakers and judges tend to believe what they say. They have been trained for decades to look credible, and they do. But ultimately, what they are doing is helping their clients violate the law, and in doing so, make a mockery of democracy itself. And that should not stand.
Anti-Monopoly Midterm Election Candidates Begin to Emerge: I’m noticing a trend of candidates who are starting to talk about big business on the campaign trail. What’s interesting is that, like the anti-monopoly movement, it doesn’t break down by party. Here are the candidates I noticed.
Wisconsin Democratic Senate candidate Tom Nelson has talked about why it’s so “crucial to fight corporate power.”
In his first ad, Ohio Republican J.D. Vance in Ohio called Jeff Bezos and Google members of “the ruling class.”
South Dakota Governor Kristi Noem, who is running for reelection in 2022 to the Governor spot, wrote a long blog post attacking meatpacker consolidation.
Here’s Republican Blake Masters in Arizona, attacking “corporations that have gotten so big they think they are bigger than America."
Missouri Democratic Senate candidate Lucas Kunce, is pledging to “end monopoly domination of our economy.”
And here’s Iowa Democratic Senate candidate Dave Muhlbauer, going after meatpackers and “corporate farms.”
Did I miss anyone?
"A Real S*** Show": Soldiers Angrily Speak Out about Being Blocked from Repairing Equipment: Louis Rossmann is an important YouTube personality who talks about, among other things, the fact that big firms block their customers from repairing equipment so they can extract after-market profits with replacement parts. And he has very much noticed the Biden executive order, which calls for agencies to curtail this practice (as well as the FTC report on it). Rossmann did a series of videos on this order, one of which focused on the order calling for the Pentagon to stop contracting with firms that block soldiers from being able to repair equipment. He cited Elle Ekman’s New York Times piece from 2019 on the problem.
What’s even more interesting than the video are the comments on it, from soldiers angry that they keep encountering this problem in the field. I hadn’t realized how pervasive this problem is, so I pulled some of them and published them. Here are a few.
This has been a problem in the army for years. We had to pay contractors to help us fix things because we didn’t have access to “proprietary “ company information. A big problem with the Apache.
I'm a mechanic in the Army, ran into this problem with AC systems on the Bradley. 120+ degrees sucks for people, but sucks even more for electronic systems, I couldn't tell you how much money was lost buying new parts for these vehicles where it could have been prevented by having the ability to maintain the AC systems already installed on these vehicles.
When I was in Iraq (08-09), we had a juniper firewall go down, didn't have another on back up, and they had to fly a contractor out from the states to Iraq, to change it out. Took 10 minutes to diagnose the problem, and 3 days of waiting, and 15 minutes to install it. We lost feed to the predator drones in the area, phone, internet, coms, and several other mission critical things for 3 days.... a real s*** show.
Biden's National Security Advisor Jake Sullivan: Monopolies Are a National Security Problem: Last week, the White House issued an executive order to increase fair competition in the economy, citing a range of industries from broadband to shipping as excessively consolidated and prone to unfair practices. I’ve written about the impact of the executive order, and what it means in a domestic context, as have many others.
But one part that wasn’t noticed was that the order explicitly touched on foreign policy, and the debate in national security circles over whether the size and power of dominant firms is an asset or liability. A few days after Biden signed the executive order, White House National Security advisor Jake Sullivan gave a savvy speech at the National Security Commission on Artificial Intelligence, essentially on the challenge of authoritarian economics coming from China. Sullivan was outlining how America should respond to the Chinese challenge, and in doing so, he emphasized the importance of competition, and the executive order, as part of their geopolitical approach.
Here’s what he said.
From a national security perspective, America needs vibrant competition and innovation and this Executive Order and the thrust behind it will help bring that about. This means greater scrutiny of mergers, rules on surveillance and accumulation of data, and a fair shake for America’s small businesses. Because America’s technology leadership was—and again has to be—built on competition, not on concentration.
For a national security advisor to say this is a big deal, because arguments in the defense world is where a powerful subterranean discourse over politics takes place. For years, there’s been an open question about whether national security concerns will trump competition concerns, under the assumption that bigness might be problematic in all sorts of ways, but it is essential in shielding us from foreign perfidy. Of course anti-monopolists, like the New Dealers who built the arsenal of democracy prior to World War II, I never bought into that framework. And neither, apparently, does Jake Sullivan.
Thanks for reading. Send me tips on weird monopolies, stories I’ve missed, or comments by clicking on the title of this newsletter. And if you liked this issue of BIG, you can sign up here for more issues of BIG, a newsletter on how to restore fair commerce, innovation and democracy. If you really liked it, read my book, Goliath: The 100-Year War Between Monopoly Power and Democracy.
P.S. Looking into every market is impossible, but readers are constantly telling me about areas where there is potentially abusive market power at work. Here are two. If you know anything about these industry sectors, let me know.
The first is sleep treatment devices.
Have you ever looked into the sleep treatment industry, or CPAP devices? Like hearing aids, they require prescriptions, physician "monitoring" and other unnecessary, expensive nonsense. These simple electronic devices which should cost 100-200 dollars instead cost 1000-3000 once properly accessorized, Furthermore, they require "trained treatment specialists" who do little or nothing but can increase billings by thousands per patient per year.
My "sleep clinic" was Northwestern Hospital, a reputable institution otherwise. I met with a physician's assistant (not a doctor or sleep specialist) for ten minutes who sent a sleep test home with me. I returned it via UPS and days-later got a 5-minute phone call giving me a thumbs up for a sleep therapy device. There was no discussion about me, why I didn't sleep, if I wanted a CPAP device, or if multiple factors where at play. Instead, they checked off the boxes for insurance approval, ordered me a device, and clapped their hands in completion.
Fulfillment is handled by the treatment specialists, a third-party company with a "relationship" to the clinic. Accessories use proprietary connectors and cost 3x their standard connector competitors. They also require a prescription to purchase, which means that buying a CPAP compatible power brick requires $400 to the third-party fulfillment provider, and $100 to the clinic for an on-site or telemed visit - even though the same battery pack costs $100 with a different connector.
I entered the system looking for a solution to my poor sleep, and came out of it no smarter but with a plastic spider to sit on my face. It's the typical formula of a service-provider/vendor partnership existing only because it is shielded from competition by a government enforced monopoly.
The second is dental implants. (I’m a little skeptical there’s a manufacturing market power issue here, but I don’t know.)
Hello Mr. Stoller.
I am not sure if you have covered this already, but I wanted to mention dental implants and if you know of any anti-competitive tactics in this field.
I need 2 implants, and the cost for both in the New York metro area is about $7000.
I am not expecting it to be dirt cheap, but this seems a bit excessive and is out of reach for many. Most dental insurance usually covers about $1000 per year, so that helps a little but not much, and it seems like the cost is about the same just about anywhere you look in the area.
I know dentists make serious money, and I am not against that, but I can't help but feel like something fishy is going on with this and many types of dental work, similar to dealing with medical providers and insurance.
Thanks for reading.
Once again, if you know anything about these industry sectors, let me know.