TWO INTERVIEWS FOR THE AMERICAN LAWYER

1. Will More Antitrust Investigations Mean More Work for Lawyers? 

Priti Patnaik,  July 17, 2009, The American Lawyer (AmLawDaily.com), New York

Last week, the Department of Justice announced plans to formally review the business practices of the major telecommunications companies, probing into such issues as handset exclusivity contracts by major players like Verizon and AT&T. After reading the news, we decided to call Jay Himes, partner at Labaton Sucharow and cochair of the firm’s antitrust practice group. Before joining the firm, Himes spent seven years as chief of the antitrust bureau in the New York Attorney General’s office. In that time, Himes oversaw several high profile antitrust cases, including actions against big name drug manufacturers like Hoechst (Aventis) and Bristol-Myers Squibb for colluding with generic drug companies over the marketing of low-priced generic drugs. The bureau, under Hines’s leadership, secured its two largest antitrust civil penalty recoveries ever achieved under New York State’s antitrust statute. Himes also was the chief representative for New York State in the negotiations that led to the settlement of the U.S. government’s landmark antitrust case against Microsoft in 2001.

Himes spoke with The Am Law Daily about a seeming resurgence of antitrust investigations, and what this means for the companies being investigated and the antitrust bar.

Is there good reason for the US Department of Justice to be conducting a review for all areas of the telecom industry from land-line voice and broadband service to wireless, when no single company has a monopoly?

I would not quarrel with the notion that investigation of practices in the telecom industry is appropriate. Last mile problems still exist despite the Telecom Act and the efforts of Congress. The test for the Department of Justice is not simply whether any single firm holds a monopoly, but whether the marketplace is performing in a competitive fashion.

Antitrust chief Christine Varney, shortly after her Senate confirmation in April, announced plans to step up government efforts to police monopolistic and anticompetitive practices. Is there any danger in this?

I am not concerned that the government wants to step up its investigations or enforcement. The Bush administration was certainly less than enthusiastic about investigating the practices of dominant or monopolistic companies.

Did that hurt innovation?

People debate how much monopolists like to innovate. But innovation is not the foremost objective of a monopolist. To the contrary, innovation comes from young and hungry firms that don’t have a commanding position. Some say that acquiring a monopoly position gives a company an opportunity to charge super competitive prices that allow them to develop a war chest to support research and development. I don’t agree. I think monopolists become lethargic. Experience teaches us that.

Previous antitrust cases have shaped the telecom industry as it exists today. How might this new initiative change things?

The industry still has some acute competition problems, despite the AT&T antitrust case in 1984 [that ultimately broke up Ma Bell] and the subsequent legislation passed by Congress. [The Telecommunications Act of 1996 was passed following the breakup and was designed, in part, to encourage competitive entry into local phone markets.] But many would say that the course of events since the legislation has not been as good as people would have hoped. In recent years, there’s been a reconsolidation of the major telecommunications companies, including the  Verizon-MCI merger a couple years ago, the AT&T-SBC merger, and the AT&T BellSouth merger. That is not a good development.

Do the recent actions by the government and an increasing number of investigations mean more work  for antitrust lawyers?

There will be continued work for antitrust lawyers. Will there be more of it?  Perhaps. There may be more of it coming out of Washington. But antitrust is not simply what the DOJ and Federal Trade Commission decide to do. There are state antitrust enforcers that are ever present, as well as a private antitrust enforcement sector. In any given year the amount of private cases dwarfs the amount of cases brought by DOJ and the FTC.

What should the government’s role be in regulating anti-competitive practices?

Antitrust laws are fairly short, compared to others. Antitrust law is developed heavily by the courts, determined largely by what transactions they challenge or decline to challenge. These laws are important to fostering innovation, ensuring low prices, and giving customers choices. I regard antitrust as critical to the preservation of market economy. The antitrust laws are intended to protect a system of competition that provides consumers with lower prices for goods and services, better quality items, and greater choice in what to buy, while also encouraging innovation to drive the economy overall. Business restraints that impair attainment of these objectives, or that operate in unduly restrictive ways need to be eradicated. Government antitrust enforcers at both the federal and state levels help assure that the antitrust laws are invoked to address these sorts of situations. In addition, we in the United States rely heavily on private enforcement of the antitrust laws by both affected businesses and victimized end-user consumers.

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DLA Piper Partner Fights On for Myanmar Detainee’s Freedom, August 11, 2009

by Priti Patnaik

DLA Piper’s Jared Genser represents a very high-profile client: Aung San Suu Kyi, a Nobel Peace Prize laureate and the face of democracy in Myanmar, also known as Burma. Today the Myanmar government convicted Suu Kyi of violating the terms of her house arrest, sparking international outrage and statements from world leaders like British prime minister Gordon Brown and U.S. secretary of state Hillary Clinton calling for her release.  Jared Genser

Suu Kyi, who won the right to be Burma’s prime minister in 1990 but was blocked from assuming office by a military junta, has been confined to her house in Yangon for the past six years. In May, the Myanmar government charged her with violating her house arrest in a bizarre case involving an American man who swam across a lake and spent two nights at her house. Based on today’s verdict, she was sentenced to an additional 18 months of house arrest.

As local lawyers work for her release through the Myanmar courts, Genser, a partner in DLA Piper’s government affairs group in Washington, D.C., has been working the international angles. As president of Freedom Now, a nonprofit dedicated to freeing political prisoners, Genser has filed petitions with the UN to generate political pressure and publicity for Suu Kyi’s case.

How did you come to represent Aung San Suu Kyi?

In 2005 my law firm was commissioned by former Czech Republic president Vaclav Havel and Nobel Peace Prize laureate Desmond Tutu to produce a report on Burma for the UN Security Council as part of a global effort to get Burma on the council. Shortly after, I was approached by a member of Aung San Suu Kyi’s family to represent her. Up to that point they had never had international counsel.

What did you think of today’s ruling?

The verdict was a foregone conclusion. From the outset she was detained because she’s a threat to the military rule in her country. The Burmese junta knew her house arrest was going to expire and they wanted an excuse to detain her because they are scheduled to hold elections next year. They needed to exclude her from having any involvement in the 2010 elections.

Why was she under house arrest?

She was taken into custody in May 2003 after government-sponsored thugs tried to assassinate her and about 70 of her supporters were killed. Since then, the junta has held her under the state protection law, which allows a person who is a threat to national security to be held without charges for up to five years.

What were the circumstances surrounding her alleged breach of house arrest?

This American man, John Yettaw, swam to her house. He had done this before, but was turned away. He begged her to stay overnight for medical reasons and she agreed. She never invited him to her home. She had no idea who he was. He just literally showed up at her door. Ultimately she was charged with breaching the terms of her house arrest, which said she couldn’t invite anyone to her home.

What is your involvement in this case?

I am not a Burmese-qualified lawyer so I’m not trying the case domestically. She has three lawyers representing her in Burma and I’m trying to supplement their efforts with international legal work.

How so?

For example, in response to the petition I filed with the UN, the Burmese junta argued that she was not detained because she was a threat to national security, but for her own safety. There’s no provision of Burmese law that allows a person to be detained for her own safety. I gave that response to her lawyers inside the country, who tried to use it in the domestic legal proceedings to argue that even the Burmese junta itself had admitted she wasn’t a threat to national security and that they are violating their own law.

What was her defense at the breach of house arrest trial?

The first argument was that she did not breach the terms of her house arrest because she was being held under a law that itself was not valid. The state protection law was authorized under the 1974 Constitution that was annulled in 1988. Even if that law was valid, she was being held for six years–beyond the five years authorized by the law. Also, the military junta had exclusive control over security for her home. So it’s unreasonable to hold her accountable for the breach of security.

Apparently the court didn’t agree.

No. At the end of the day, this is a political trial.

So what now?

We’re going to follow up on the petition we filed with the UN to secure a judgment that she is being held illegally and in violation of international law. We will be pushing for the UN Security Council to re-engage in the situation in Burma, not merely because of her extended detention but because of the broader threat to international peace and security posed by the regime in Burma.

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