Views from the Top: Managing Antitrust Practice in Changing Times

• Citation: Vol. 32 No. 1
• Publication year: 2022
• Author: Edited by Jiamie Chen

VIEWS FROM THE TOP: MANAGING ANTITRUST PRACTICE IN CHANGING TIMES

Edited by Jiamie Chen¹

PANELISTS

• 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.

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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

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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

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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.

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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...