Friday, Oct 05, 2007 --- The Noerr Pennington doctrine provides importantprotection of a competitor’s use of litigation, even when the litigation hasanti-competitive consequences, says
Lisa Wood of Foley Hoag in our seriesof chats with high-profile antitrust lawyers.
Q. What attracted you to antitrust as a practice area? And what keeps you interested?
A. The opportunity to help clients solve complex business problems initiallyattracted me to the antitrust field. Counseling clients on antitrust matters hasbeen an excellent way to learn about and stay abreast of a client’s keybusiness drivers, because in my view, every antitrust problem must beevaluated by first understanding the business objectives that justify theproposed conduct.
My litigation experience also helps me be a better antitrust counselor,because I have considerable experience seeing how legitimate businessdecisions can be challenged effectively after the fact, and what a differencegood advice at the outset can make in managing litigation risk.
I also enjoy the opportunity to help shape antitrust policy by working onlitigation matters addressing cutting edge antitrust issues. The opportunity toinstill that policy with practical litigation insights and basic business commonsense keeps me active in the field.
Q. What's the most ridiculous antitrust lawsuit you've defended a client against?
A. Recently, a professional service client of mine was named as an antitrustand RICO conspirator in what was essentially a hotly contested patentlitigation between two competitors with allegations of sham patent litigationand the like.
My client had served as a patent agent of the defendant competitor, and theplaintiff competitor argued that that consulting work alone made the client aconspirator.
Less than 24 hours after we filed a motion to dismiss and sent a Rule 11letter, the plaintiff voluntarily dismissed the suit against our client. It shouldnever have been filed in the first place, but I was glad to see that the litigationprocess worked, and we were able to resolve the case quickly and before theexpensive prospect of discovery.
Q. Which aspects of antitrust law do you think are in need of reform?
A. I think the Robinson Patman Act, which prohibits price discrimination,should be repealed. Clients struggle to comply with the Act, often inindustries in which the Act is honored in the breach. It is rarely enforced, andseems to protect competitors rather than competition, making it inconsistentwith the rest of our antitrust regime. The current rules on tying also need tobe modernized and clarified.
Q. If you were in charge of the DoJ's and the FTC's antitrust divisions, what changes would you make?
A. I would not attempt to narrow the Noerr Pennington doctrine, whichprotects a competitor’s use of litigation, even when the litigation hasanticompetitive consequences. Access to the courts is an important businessadvantage to U.S. businesses, and private litigation is an important way tomaintain and enhance the rule of law in our country.
Q. Outside your own firm, can you name one antitrust lawyer who's impressed you?
A. Alan Silberman, of Sonnenschein Nath & Rosenthal in Chicago. Alan and Iworked together on an interesting litigation matter involving a public biddispute between competitors. He did a masterful job taking the plaintiff’s Rule30(b)(6) deposition, and to this day I employ strategies I saw in thatdeposition. Essentially, he was able to develop in the deposition thatplaintiff’s conduct was motivated by the same drivers as the defendant, andthat both behaved rationally in competing forcefully with one another. Thisgreatly enhanced the business story we developed about why our client didwhat it did, and we were able to obtain summary judgment.
Q. What advise would you give to a young lawyer who's interested in getting into antitrust law?
A. Try to work on a broad range of antitrust matters so that you can learnantitrust law in the context of solving actual client problems. Even if you wantto focus on litigation, assist more senior lawyers in counseling assignmentsas much as possible.
Talk to clients about their business, and keep up with the business press.Practice explaining complex antitrust and economic concepts to businesspeople to sharpen your litigation skills.
If you do want to do litigation work, make sure you handle a broad range ofmatters, not just antitrust matters. This will make you more effective atdeveloping trial themes in antitrust cases that resonate with the jury and thecourt, neither of whom is likely to have been steeped in antitrust doctrine.
Q. I'm a General Counsel with a Fortune 500 company facing a major antitrust lawsuit. Why should I hire your firm?
A. Foley Hoag’s roots in dispute resolution are deep; we have a stronglitigation team comprising nearly half of our lawyers. We argue in courtsacross the country and before various arbitral bodies and panels and manyof us have worked on significant, bet-the-company matters.
We have an excellent reputation with corporate clients and judges alike.Because we handle many different kinds of business disputes, we know howto boil down any complex dispute into themes that resonate with the jury andmotivate the court to rule in our client’s favor.
While we regularly take cases to trial, we are also proud of our ability to findcreative ways to resolve cases early. We are committed to understanding ourclient’s business and are immersed in their industries. We understand whatclients face on a daily basis and are living their challenges.
Because of this we can respond quickly and efficiently to their needs, andoften proactively shape our clients’ strategies ahead of the curve and helpthem meet issues head-on.
Lisa C. Wood is a partner at Foley Hoag LLP.