#395 Which Side of the V? Larry Buterman on Trying Antitrust Cases for the Government and Against It

Speaker A: Welcome to our Cureus Amalgam, the weekly podcast brought to you by the Antitrust Law Section of the American Bar Association. Our curious amalgam explores the fascinating and increasingly overlapping world of competition, consumer protection, data protection and privacy law. Each week we bring you leading global experts on the most compelling issues of the day. Enjoy the show.

Speaker B: Hello and welcome to our curious Amalgam, the podcast from the American Bar Association Association Antitrust Law Section. My name is Derek Jackson and today's episode is which side of the V. Larry Buterman on a career Trying Antitrust cases for the government and against it. And joining me today is my co host, Lexi Michaux. Hi, Lexi.

Speaker C: Hi, Derek.

Speaker B: So, Lexi, as the title indicates, our episode today is going to be a career profile. So why don't you tell us a bit about who our guest is?

Speaker C: I would love to. Larry is global Chair at Latham and Watkins Antitrust and Competition Practice and a partner in the New York office. He started his career clerking for a federal judge and then moved on to private practice, then eventually trial attorney at the DOJ Antitrust Division, and then found his way back to private practice where he is today. Larry is one of the few attorneys in the country to have successfully first chaired antitrust trials both on behalf of the government and against the government. Hence today's topic and the title. So, while at doj, he was part of the team that won a landmark price fixing case against ebook publishers. And he also led a high profile challenge to a major merger in the tax preparation software industry. Now, on the private side, Larry continues to try some of the most significant antitrust cases. He most recently led the trial team that defeated the FTC's bid to block private equity firm GTCR's acquisition of SermoDix, which I think we all followed very closely. And before that, Larry, you led the trial team that won a unanimous jury defense verdict for the US Soccer Federation. Very fun. Against conspiracy claims brought by a defunct professional soccer league. Larry, it's an absolute pleasure. Welcome to the show.

Speaker A: Thank you, Lexi. It's great to be here and great to be able to talk to you and M. Derek today.

Speaker B: Great. Well, uh, we're really excited to have this conversation today, Larry. So maybe let's start off at the beginning and you know, what led to you becoming an antitrust litigator? How did you get into it in the first place?

Speaker A: So it's one of the questions that people always ask our associates ask when they come in, sometimes when you talk to law school students as well. So my first disclosure and I can't believe I'm saying this publicly. Antitrust was the lowest grade that I got when I was in law school. It was not an area that I was particularly focused on, or, for that matter, interested in when I was in law school. When I started practicing, I was put on a major case. It was the Flat Glass antitrust litigation. And I was put on it as a fairly young attorney, primarily to give me opportunity to take and defend a lot of depositions. And it was really great. I traveled for months on end all across the country to do these depositions, and really, it was, you know, trial by fire. But that was my first real entry into antitrust. And from that, I certainly got a little bit of the bug. But then it was going to the antitrust division in late 2009, early 2010, that really obviously solidified my love and interest in all things antitrust.

Speaker B: Well, let's maybe talk about that career move a little bit. So what motivated you to go to the division after starting off in private practice?

Speaker A: Yeah, so as Lexi mentioned, I had clerked for a federal judge, Judge Flom, uh, who was at the time the. The Chief judge of the 7th Circuit. And I. He's somebody who has always been very, very dear to me. He passed away fairly recently. I made a promise to him that I would go and work in the public sector at some point in my career. And he believed that it was critical for people to do that, regardless of whether that was where they were going to stay for their entire careers. And so as I was starting off as an associate, I was always thinking about that and thinking about opportunities that coincided with the changeover in administrations in 2009. And, um, that point in time, President, um, Obama had actually spoken about antitrust enforcement. And it seems a little bit unexceptional now because antitrust is so much in the. For the forefront of everything, and it's in the ethos and conversations that we all have. But back then, when the, uh, president spoke about wanting to ramp up antitrust enforcement, that was. It was taken as a wow moment. And then Christine Varney was put in as the Assistant Attorney General, and she decided that if she was going to meet the president's mandate to ramp up antitrust enforcement, she needed to have people with litigation experience come join the talented people at the division, as the division had not tried a lot of cases in the previous years. And so everything sort of came together. It was, uh, a great opportunity for me at a perfect time in my career. I'd been practicing about, you know, seven or eight years at that point. And, and it also gave me an opportunity, I'm a born and bred New Yorker, uh, to move down to Washington, D.C. and that was, that was fun and I'm sure we'll talk about it. But honestly, everything that that's happened in my career, and frankly, even in my personal life is due to that decision. I met my wife down in D.C. and it led to me being here at Latham after I was done.

Speaker B: Well, as a native Marylander and someone who spent most of my life around D.C. i'm glad you found your way down here. So, you know, in doj, as Lexi mentioned in the intro, you obviously got to be a trial lawyer on some very big cases, and then you've handled some big cases at trial, subsequently in private practice. Can you tell us a little bit about the differences? You know, when you're handling a case on behalf of the government versus on behalf of a private client, how does that change your approach to litigation and to trial?

Speaker A: So it's an interesting question, and I think part of it does depend on what type of case you, you are doing. When I was at the division, as Lexi mentioned, I got to do both Section seven merger challenges, as well as, uh, a large section one conspiracy involving ebooks. I would say that there are a lot of similarities in terms of how you practice, and I'm not sure people really appreciate that. But I will tell you, you know, that I was so impressed with how our teams when I was at the antitrust division, how hard they worked. You know, yes, they were getting paid a fraction of what they should be paid for the hard work that they're doing. But that doesn't mean that when they're trying a case and the clock hits 5, 30 or 6, that they're out the door. No, they're working just as hard. So I do think there are a lot of similarities in how the cases are approached. And I will tell you that when I went to the division, one thing that I really tried to do was to take lessons that I had learned in private practice in terms of how we build our cases and bring that into the way that we did cases when I was at the division. And I can tell you now, I try to use the insights I learned when I was at the division in terms of how we're putting our cases together and our defenses together in private practice. So, you know, there. Listen, there are always going to be some differences in terms of dealing with clients versus dealing with all the constituents that you have to deal with when you are when you're representing the government, I think that there is a difference. When you stand up there and you say, my name is Larry Biederman and I represent the United States of America, I think that there is a, uh, difference between that and when you are on the defense side. But what I will say is I try to always act the same way. I try to act as if, whether I'm representing a company or I was representing the United States, that I approach trial, that I approach my interactions with courts and judges with the same level of integrity and with the same discipline.

Speaker C: Larry, you couldn't have given me a better segue into the next question, which is, have you ever, when you were at DOJ and then once you came back out, did you ever have to take a position in court during a case that you would have previously taken the opposite for, and did you feel any kind of advantage having argued the opposite prior to making that different argument in court?

Speaker A: So the interesting thing is, as I sit here, I'm actually not sure that I've really ever been in that position. I will say that I have had to cite a number of cases that were cases that I worked on and have had people cite those cases and had to explain why they were mis citing them. So that has been interesting when it's occurred, but in terms of taking positions, no. But, you know, you hit on something really interesting, which is, I do think it's very powerful, and I to point out sometimes when a lawyer or frankly, more an entity is taking, ah, an inconsistent position. And I will tell you, just as an example in the US Sugar trial that we did a few years back in the District of Delaware, my closing argument began by taking a bunch of statements that the DOJ had made in prior merger litigations and putting them on the screen without actually identifying that they were DOJ statements and letting the judge think that they were statements from the defendants and saying how these all support our way of looking at it, and then pointing out to the judge that these were actually DOJ statements. So it is something that I'm sure at some point I'm going to have to deal with, but at least as of now, have never been in the situation where I've really had somebody quote my positions back to me.

Speaker C: Interesting. And I guess, you know, you touched on having to explain to someone why they're misquoting a case. Is that coming from just your fundamental understanding of a case in a way that others don't, or is it coming from what's on the record? Or why do you think it is that you're able to do that in those cases?

Speaker A: Well, look, you know, you live one of these matters, you know, the ins and outs. And then what you're dealing with is somebody who's just read one decision potentially once or twice and thinking that they understand all the nuances. So I've always found it to be an advantage when somebody comes out and says, well, your Honor, this is just like USV Apple. And I get to say, well, you, Honor, I was lead counsel in usb Apple, and here's why. What they're saying makes no sense, and it's inaccurate. So it's a benefit, having gotten to work on a number of, uh, very prominent cases that get cited often that I'm able to bring that in. And I think when I relay that I was the lawyer in those cases in USVH and our block or Apple or others, that it adds a level of credibility to our positions when we are saying, no, this is why it's not on all fours.

Speaker C: I think you touched on something there that ties into another one of my questions, which is what we do as, uh, antitrust lawyers requires us to really dig deep and in the facts in an industry, understand economic analyses, economic theory. How do you approach presenting antitrust cases to a court, to a jury, to people who don't necessarily live and breathe what we do in a way that a, uh, finder of fact without expertise in that industry is going to understand and really be able to then make a decision based off of.

Speaker A: Yeah, you know, it's really interesting. I think it's one of the great challenges of antitrust, and one of the things that make antitrust trials so much fun is that you do have to deal with that. You're taking complex concepts, sometimes econometrics, and you have to explain them to judges who don't have experience with it or to juries who, you know, sometimes you're dealing with people from. In the jury pool from all walks of life, some who have graduate degrees, some who have GEDs. So it's always a challenge. And when I did the ebooks case, we were in front of Judge Cote, who could talk about regressions and knew more about regressions than any lawyer in the room. But that's not always the reality. My approach when I came to the antitrust division and when I've been in private practice has always been to try to make trials about credibility. Juries or judges may not always be so steeped in every single issue to understand when a key point has been scored, but if they Trust you, they will get that you're getting to the right place. And so when I was at the division we actually moved away a little bit in terms of how we would even draft our complaints prior to 2009. I think that you would see that they were very dry, very focused on economics, make sure that you get your HHIS in there, but just almost formulaic. And what we started to do, and it wasn't just me, you know, it was a concerted decision amongst the people at the division was to try antitrust cases just like any other case. And so you saw us putting in a lot more statements from the documents, graphs and things that would get the eye of the fact finder. And I will say that when I do antitrust trials today, I still try to approach it in a way that I make it digestible to whomever the audience is going to be. And by the way, that means that sometimes you have to leave some arguments on the cutting room floor because you know that whether they're technically right or not, they're not going to be ones that the trier fact are going to get. But yeah, it involves really in the first instance understanding the legal theories, the economic theories and the industries that you're operating in. It's such a deep level that, that you can distill it and make it digestible.

Speaker B: I think that's a really good point. And something we all experience I think as antitrust lawyers is you take on a new case and you have to immerse yourself in a new industry. And as Lexie went through your list of cases, you've obviously tried cases in a number of very different industries. So when a new case comes in, how do you approach getting immersed in the facts and in the industry in that way to build your credibility?

Speaker A: So my, my wife would be able to answer that very easily by just pointing to for instance the stack of books that I have laying around our house on the history of nascar, which was a client of ours that we represented recently at ah, trial. But that is one of the ways that I do it. I, I, whenever I have a client in an industry that there are publications on, um, and fortunately I've been able to do recently a lot of sports related cases. So it's lent itself to that a lot. Right now I'm reading a ton of books about baseball cards because I'm involved in a, uh, a case involving trading cards. But that's one of the things that I do. But it also involves working with your client and really integrating yourself with your client. And I will Tell you that in my experience, clients really appreciate that. They really appreciate when lawyers take the time and the interest to, uh, learn the nuances of their business and they are open to it. So we do field trips and really try to understand the relevant operation and anything we can, interviews, talking to people, just gaining as deep of an understanding of the business as possible. Because the other part of it is at the end of the day, what you really want to be is a trusted advisor for your client. Yes, uh, myself, others, we're often hired for a specific litigation to defend the company. But where we provide real value sometimes is by being somebody that they can turn to when they have questions about legal issues or issues that go beyond antitrust. And having a good understanding of the client's operations, their priorities and the like all contributes to being able to doing that effectively.

Speaker C: Larry, not a bad gig when you tell us you're taking field trips to learn about the client. And I'm picturing you going to U.S. soccer and NASCAR and all those fun places.

Speaker A: I actually. Yes, I know. It really is one of the cool benefits of the job. I will tell you. I've been to a number of NASCAR races in the past couple of years and also did get to go to a World cup match in this past cycle. And I'm not complaining about some of those. Those they're fantastic clients to have for a whole host of reasons. And as a rapid sports fan, I certainly do not complain when I get to go to an event or two.

Speaker B: So jumping back to once you've kind of mastered your industry, you're at trial and ready to, you know, stand up and do openings. Do you still get trial nerves at this point in your career and, you know, know, if so, how do you deal with that?

Speaker A: So I don't. And I really never did get nerves before. I would get up there to speak. I really do love it. I'll tell you a story. So we were doing the Tapestry trial a couple of years ago opposite the ftc, and we had closings which were taking place a few weeks after we had finished the trial. And I'm going up in the elevator with one of my partners. We're in the Southern District, and as the elevator is going up and up and closer to the floor, you can hear so many voices. It's clear that when the elevator opens, there are going to be a lot of people and. And, uh, it does open and there are literally, you know, probably a couple hundred people like in the hallways waiting to get in. And I'm like, smiling and My partner said to me, why are you smiling? And I said, well, because they're here to hear me speak, like, and that's pretty cool. I like it. I really like it. I will say that there are times in the lead up days before where I will be working and not happy about where things are in terms of the presentation that I'm going to make, where I'll feel that I need to do more work to prepare. But in terms of the butterflies, fortunately, for whatever reason, nope, I don't get those.

Speaker B: Maybe you're just a natural, uh, performer. Some people have that in them, I think. So you've worked on some really important cases and given us some of your career background, but was there a single kind of person or mentor who was most important to you in your career? And if so, what did you learn from them?

Speaker A: Yeah, so I touched upon it earlier. The biggest mentor that I had was the judge that I clerked for after law school. And the relationship that I had with him was an exceptionally close one. And I learned so much from him. Not only about m. The practice of law, but really life and how you should be treating people, which I do think frankly translates into what we do, especially when you're standing up on behalf of companies. Over the years in private practice and in the government, I have gotten to work both with and opposite some of the best lawyers in the world. And what I have always tried to do is to watch what they're doing and see what I could take and adapt into how I operate. I tell young lawyers that you shouldn't emulate any, anybody. That's not the right way to success. Again, going back to the point I made about credibility, if you're not being authentic, judges and juries will pick it up. So you have to be your authentic self. But at the same time, nobody has a monopoly on the right way to do these things. And so you can learn from everybody little bits and pieces that will help you make you a better lawyer, in my view.

Speaker C: Well, to start to wrap things up on our substantive questions, at least that's a perfect opportunity to ask you what the advice you typically give young lawyers is when they say to you, let's, Larry, I want to be a, ah, first chair like you. And I guess my question is you touched a little bit on this in terms of you saying you actually think working at DOJ and in private practice, you approach it in many of the same ways. So do you think that the advice you give young lawyers when they want to first chair a case in their future is different if they tell you they plan to go government route or private practice route. So

Speaker A: the different jobs do give you different opportunities. It is a benefit of working at the Antitrust division or the Federal Trade Commission that they take a real interest and make it a priority to get young attorneys opportunities to examine witnesses at trial. And I think it's fantastic that they do that. So sometimes the opportunities are a little bit easier on that side. You know, when you're in private practice, there's a reality that oftentimes in antitrust cases, these are bet, uh, the company litigations. And so clients are rightly hesitant to give somebody an opportunity just because. So you really have to earn it. I always tell our attorneys here that I will go to bat for you and I will give you the opportunity to present that argument, to examine that witness, to take that deposition. But what I need from you is to do the work so that I can tell the client this person is the best person to do it. And that's what I'm always looking for with our attorneys. And once I can make that argument to the client, credibly, nine times out of 10, they say, great, that's the person that I want to do it. So that's one part of it. The other thing that I tell attorneys is it is hard. It's hard to get that opportunity to stand up there and deliver the opening statement at a major trial. But there are opportunities every week that come across your plate that can help you develop the skill sets necessary to be effective when you get the opportunity. By the way, this podcast is one right. Any opportunity, I tell our attorneys, any opportunity you have to get up and speak, take it. If it's a cle, if it's a pro bono case, whatever it is, take the opportunity to work on your skill set, uh, because they. Those skills are transferable.

Speaker C: Larry, one last substantive question for you, because no episode is an episode today if we don't weave in AI in some way. There's a lot of speculation, obviously, about how AI is going to change the practice of law, how it's going to change trials. And I would like to ask you for a minute just to speculate and tell us how you think it will most change litigating at trial and including engaging with doj, ftc, other agencies.

Speaker A: Yeah, can I ask the question back to you? Because, I mean, it's really something that everybody is talking about, and there are so many different views on it, and the real reality is nobody does know. So it is speculation, I think. Listen, there's no doubt that AI is going to have a significant impact on a number of industries, including the legal industry. As a practical matter, my suspicion is trials are going to be one of the last areas where we're going to see a real impact, because at the end of the day, that is still the presentation of evidence, argument, standing up and speaking to judges and juries. And that's, I think, one of the later things that is going to be impacted. But in the lead up to litigation, absolutely. I think we are already seeing a lot of impacts that AI can and will have, including in areas such as discovery into prompts and things of that sort, certainly in the overall discovery process, responding to second requests and the like. I think you're just going to see, you're going to see AI creep in to so many different ways that we are practicing, and it's an exciting time. And that's the way that I think we should all really approach it. Not with fear, uh, but with anticipation. I don't know how the story is going to end, but I'm really interested to read the rest of it. And I suspect that the practice of law in 10 or 15 years may be very, very different from what we're doing today, but it's evolved over the years as well. And, you know, when was the last time any of us were in a legal library? There was one when I started practicing at Cravath. They had this gorgeous library on the top floor with carrels and old wood, and that's where you went to look at the. The volumes of the Federal Register. And you had to do all your research that way. And now it's all done via, uh, Westlaw, Lexis, and now it's evolving to AI.

Speaker C: So

Speaker A: there's a constant progression, and I don't know exactly where this one is going to take us, but. But it'll be interesting to see.

Speaker C: Yeah, I really like that approach because I tend to agree that we're not stopping this, and I think we should embrace it for what it is and try to, you know, maintain our integrity and be good lawyers, but work with AI toward that.

Speaker A: Absolutely.

Speaker B: So, switching gears a bit at the end of our show, we like to get into a few questions that just give us a little bit of a sense, uh, of the personality of our guests. And one thing we ask all our guests is, can you tell us something about yourself that people wouldn't know if they only knew you professionally?

Speaker A: Sure. What can I tell you? Okay. The disclosure is I am a rampant professional wrestling fan, and I have both a collection Actually over there of uh, some old wrestling figurines from when I was a kid, but I still watch WWE probably every week.

Speaker B: I have to ask then, do you have a favorite wrestler?

Speaker A: My son and I are big fans of Roman Reigns. And for those of you who actually know who Roman Reigns is, I will say that he and I both acknowledge the tribal chief.

Speaker B: Uh, I'll admit I was a fan as a kid sort of during the, you know, the Attitude era as I think they call it, the Stone Cold Steve Austin and the Rock and those guys.

Speaker A: To show you that I am not lying, this is my Stone Cold Steve Austin action figure.

Speaker B: That's amazing.

Speaker C: Anyone listening and will have to check out our YouTube link as well to see that figure.

Speaker A: Absolutely.

Speaker B: And Larry, another segment we do during this portion of the podcast is something we call the Curious Hat.

Speaker A: Uh, and now it's time for the Curious Hat.

Speaker C: So Larry, at the end of our segment we always do what we call a curious hat question just to get to better know you a bit. And I've been thinking a lot as you're telling us all these amazing sports stories. Is it something that were sports something that you fell in love with as a result of the work that you do, or did you always love sports and I guess tell us a little bit more about, you know, one maybe interaction with someone famous or something that's particularly memorable from your time working in the sports?

Speaker A: Sure. So no, I've always been a sports junkie. As a born and bred New Yorker, I am a huge Knicks and Yankees fan and shout out to the Knicks for winning the NBA championship in Fine. So I've always loved sports and frankly the part of my practice that is sports related has really come about very randomly. But I do think that my passion for sports has certainly helped me as we've gone along. I mentioned that I am a lifelong Knicks fan, a huge basketball fan. So I think the coolest things or a couple of the coolest things that I've gotten to do in recent years is depose and actually cross examine at trial some of uh, the biggest players in NBA history. Mind you not in NBA cases. In our soccer case I got to depose Carmelo Anthony, which was a blast. He's, he was a, an owner of uh, of one of the teams at issue in our case and then in our NASCAR case recently I cross examined and deposed and then cross examined Michael Jordan. So as somebody and I said this to him, he had inflicted so much pain on me growing up by constantly beating the Knicks. So for me it was it was great to be able to put him in the hot seat. And we had a going joke over the fact that whenever we would be together in a deposition or something of that sort, I'm a big sneaker head, but I would always be wearing a pair of Kobe Bryant sneakers. And he would always ask me why I wasn't wearing my Jordans. And I told him that I wasn't going to wear them until the case ended. And he actually, when I cross examined him at trial, at the end, after I thanked him, he said, on the record, he goes, Mr. Bman, you're still not wearing your Jordans. Which is a lighthearted moment in a, you know, a very contentious trial.

Speaker C: Well, if, uh, Michael Jordan doesn't give you trial nerves, I really think you're set for life.

Speaker A: Well, fortunately, I wasn't asked to play basketball opposite.

Speaker C: He.

Speaker A: No, he's. Listen, Michael Jordan is, he's, you know, the greatest basketball player of all time, but he's also a, uh, very nice person. And our interactions were nothing but respectful and he was generous. I showed him videos of my son playing basketball and he gave him some advice. He was, it was great.

Speaker B: Well, that's a really cool story to end it on and I think this was a great episode and really enjoyed our conversation. Larry. So thank you so much for being on the show today.

Speaker A: Thank you.

Speaker C: Thanks, Larry.

Speaker A: Thank you for listening to this week's episode of our curious Amalgam, a competition, Consumer protection, Data Protection and privacy law podcast. It is produced and shared around the globe by ABA's antitrust law section. The opinions expressed by the participants in this podcast are ah, their own and do not necessarily represent their employer or other organizations. If you like what you heard or would like to become a member of the American Bar association, please check out what the Antitrust section has to offer@ambar.org antitrust. You can learn more about our podcast atour curious amalgam.com. if you have comments, suggestions or podcast ideas, please reach out to us@podcastourcuriousamalgam.com until next time, thank you for listening.