At a time of increasing consolidation, and stepped-up regulatory scrutiny, in the tech sector, Sidley Austin has ramped up its West Coast antitrust practice with the hiring of a high-level Department of Justice lawyer. Peter Huston, whose previous role was assistant chief of the DOJ’s antitrust division in San Francisco, is now a Sidley Austin partner.
Huston’s brief at the DOJ was broad, encompassing merger clearance, antitrust enforcement, and cartel litigation. He worked on highly contentious matters, from cartel investigations to the government’s successful efforts to block Bazaarvoice’s $168 million acquisition of PowerReviews in January 2014.
In a discussion with IFLR1000, Huston said he had come to a point in his work at the DOJ where some of his major matters had wound down, and his newer cases were at a fairly early stage where turning them over to others would not cause too much trauma. So he took an opportunity to think about his next move. Huston said that he finds it an exciting time to be an antitrust lawyer in private practice, because the stakes in many areas of antitrust law have never been higher.
“The enforcement that’s coming out of government in the U.S. and throughout the globe is really ramping up, and this is a long-term trend. At the DOJ, at the FTC, in the E.U., and elsewhere, you’ve got some very aggressive enforcers, and that’s making things interesting for clients out there. In addition, here in the U.S., we have private rights of action for antitrust law, and the private class action plaintiffs are going gangbusters as well,” Huston commented.
The Bay Area, known for so long as a hub for tech firms - startups and global giants alike – is a natural venue for an antitrust lawyer in private practice. Huston said that one of the interesting things about being an antitrust lawyer in the Bay Area is the fact that many high-tech companies – especially those at an early stage – are not particularly focused on antitrust. In their determination to develop the next “new thing,” they often do not have their eye on antitrust compliance. Hence Huston sees an opportunity for him to help some of Sidley’s high-tech clients develop and maintain an appropriate focus on antitrust matters.
“In the high-tech sphere, you hear arguments that things are moving so quickly, and that the area is so dynamic, that antitrust law does not apply the same way it would be in a more mature industry. Many economists would agree, but you have to very careful about how you explain those arguments if you’re trying to get your transactions through the antirust agencies. They may have a different view as to the applicability of antitrust law and how dynamic the industry really is, and what the entry barriers are,” Huston said.
One example lies in the Bazaarvoice matter, where the executives’ view of the competitive sphere differed markedly from the DOJ’s view.
“They weren’t connecting, they weren’t seeing eye to eye, and the case ended up in court, and the Division was able to get complete divestiture and more. It’s a good example of how important it is for these companies to have antitrust counsel throughout the process,” Huston observed.
“Arguments sometimes are made in the high-tech sphere that there are other big players out there, and a transaction is not problematic because it will make the combined entity a better competitor against the giants that are out there. That sort of argument has a specific twist in the high-tech sphere, so it’s important that companies are able to speak a language that antitrust agencies are able to understand,” he added.