ABA Section of Antitrust Law Spring Meeting 2017: Women in Antitrust

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ABA Section of Antitrust Law Spring Meeting Women in Antitrust

05/01/2017

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Jodie Williams: Hello and welcome to another edition of Special Reports on Legal Talk Network. This is Jodie Williams. I am counsel at the Mogin Law Firm, and I am host for today’s show, “Women in Antitrust,” which is being recorded on location at the ABA Antitrust Law 2017 Spring Meeting, here in Washington, DC.

Joining me are three distinguished women in antitrust. I have Lisa Phelan, who is the Chief of the Washington Criminal I Section of the Antitrust Division of the Department of Justice here in Washington, DC.

I have Tiana Russell, who is a trial attorney in the Criminal I Section, and I have Kristen Anderson, partner at Scott & Scott.

Thank you ladies for joining me.

Lisa M. Phelan: Thank you, Jodie.

Tiana Russell: Thank you, thank you.

Jodie Williams: Before we get started, I would love it if each one of you can tell me a little bit about yourself. We’ll start with you, Lisa.

Lisa M. Phelan: Sure. Thanks Jodie, and before I get started let me just say that I am speaking my own views here not necessarily those of the Department of Justice. I’ve been with the Division for 30 years. I came straight out of Law School and was fortunate at the beginning of my career — the Division was organized such that new lawyers did both criminal and civil cases. So I got exposed to merger work, to policy work and then also to cartel work.

But pretty quickly realized that cartels was where I wanted to be. So I spent the bulk of my time prosecuting large international cartel cases involving air cargo, freight forwarders, marine hose, auto parts, pharmaceuticals. It’s been really a fascinating career and something I have loved.

Jodie Williams: Wonderful. Thank you. Tiana, can you tell us about yourself?

Tiana Russell: Good morning everyone. I should start by saying that the views I’m expressing here today are mine alone and should not be imputed to the Department of Justice. With that said I’ve been at the DOJ for over a year now. Prior to that I worked for seven years doing antitrust law at a private firm here in DC, and I’m excited to be here today.

Jodie Williams: Right. Thank you. And Kristen, if you could tell our listeners a little bit about yourself.

Kristen Anderson: Hi, good morning everyone. My name is Kristen Anderson. I’m a partner at Scott & Scott in New York. I’ve been working in antitrust class-action litigation on the plaintiff side for about 10 years.

Jodie Williams: Wonderful. So we’ve got a wonderful group of women with a diverse background, and as Lisa noted, today’s topic is “Women in Antitrust” and all these distinguished women have come to this field at different times, and I think we are all very aware that our field is more male-dominated than female-dominated, and I would love to get your thoughts and impressions starting with Lisa about how the diversity has changed in the Section since starting back when you did and then go to Kristen and Tiana and get their thoughts and see how the diversity has changed among women.

Lisa M. Phelan: Sure Jodie and it really has. I’ve been coming to the ABA Spring Meeting where we are today for almost that whole 30 years of my career. It’s always sort of kind of a centerpiece of the life of an antitrust lawyer, and I remember walking into the big ballrooms the very first time I joined and just seeing a sea of guys in gray or black suits and feeling a little lost and a little out of place and wondering, hey, is this really the right place for me?

But over the years I’ve just seen it evolve immensely. I was — not only am I excited to see the number of women but seeing the diversity of the women that are participating and seeing sort of more the confidence of women wearing not just black and gray suits trying to blend in with the guys but — but boldly making their fashion choices and not worrying so much about whether or not they fit in. I think women have really found their place.

One thing that really stands out to me is sort of a very concrete example of how women have enhanced and grown in the profession is at the Department of Justice if you ever come and you have a meeting with the Assistant Attorney General, as you wait in the anteroom you’ll see a whole series of portraits on the wall which are all the Assistant Attorney Generals overtime.

When I first started in the Division, that was a wall full of men. There were about 30 or 35 pictures of guys, the only diversity was some were wearing glasses and some were not. Then in the mid 90s when Anne Bingaman came, finally there was a woman — a picture of a woman on the wall. And for me that made a real difference, just thinking, hey, a woman could go all the way.

Now at this point in time in recent years we’ve had as many as all of the commissioners at the FTC being women, we’ve had most of the deputies in the Division being women and we’ve had several Assistant Attorney Generals that have been women. And so, at this point, both in the private bar and inside the government there is just so much more representation of women that it’s exciting to me.

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Jodie Williams: Kristen, what about you? How is the Antitrust Bar changed since you became a young lawyer back in the early 2000s?

Kristen Anderson: I would say that my firm has an almost 50-50% men and women partners, which I think is probably a little bit unusual. So my firm I think does a good job at promoting women in the class-action business, and I think I’m seeing that translating more-and-more into seeing more women in the courtroom in these large antitrust matters that I work on.

Particularly, within the last few years I’ve noticed a lot more female associates being involved in the cases and taking a lead role on discovery issues, while I think there is still when it comes to oral argument and trial I still think that the courtroom is mostly male-dominated. I see that changing in the next few years as more young female attorneys become more experienced and are able to take leadership roles in the courtroom.

And I also think that judges appreciate seeing a diversity at the Bar and I think law firms more-and-more are trying to live up to that expectation and give women in antitrust more opportunities to present in the courtroom.

Jodie Williams: Very nice. And Tiana, you came into the law around the same time in the early 2000s.

Tiana Russell: Yes. So I would definitely second Lisa’s take that there has been a lot of improvement. I do think there is still room for improvement. So while I definitely think it’s no longer unique to have a woman like Lisa walking into the room, even over the last couple of days and kind of scanning the various panels that I’ve sat in on. There is definitely still a majority of men I think by at least 2:1.

And so, I think while we have come a long way it’s also important to remember that there’s a lot more things that could be done to bring women into the Antitrust Bar and to encourage them in moving forward.

Jodie Williams: Okay. So that’s a good point. There are a lot of things women can do to better position themselves and I think one topic on the top of everybody’s mind is how women negotiate differently from men and then Kristen touched a little bit on the presence of women in the courtroom and lead counsel becoming — it’s rare, but it’s becoming more prevalent that lead counsel are women as opposed to men. How can women — what can we do to better position ourselves to get that lead counsel role, to get the lead trial attorney role, to get the deputy assistant or assistant attorney general position and really advance our careers?

Lisa M. Phelan: I think it’s really important for women. I made this point in a conversation we were having the other day, Jodie, that women not over-think — I think women maybe sometimes hold themselves back a bit thinking, well, if I can’t be perfect or if I can’t — if there is a risk that maybe I’ll have a conflict or they will have a problem. They hold themselves back a little bit and I found that it just — it’s important to just plunge in because, you know, guys, they could have a conflict or they could have a reason why they can’t come through on a promised — promised project or deadline. And yet, they don’t let that stop them oftentimes from plunging in, taking on responsibilities, asking for a higher position or a role in a case.

And so, I found if I always just don’t over-think things and just go forward and plunge in and not be afraid to ask, I think women too are a little more reluctant to ask for opportunities. They think they are going to — they should wait until they are offered and I think if women just really push themselves forward, take a chance and they don’t have to be perfect. Nobody is perfect. So take a chance. Push yourself forward and look for opportunities, and don’t be afraid when they come along.

Jodie Williams: Do you have a personal story that perhaps you would like to share maybe inspire some women about taking that risk when it might not have been an opportune moment?

Lisa M. Phelan: Actually I think I do, and also the other piece is just having confidence in yourself that you do have good judgment. Sometimes when you are sort of not in the majority you tend to think, oh, the majority must know what they’re doing.

So in the early days of my work as a cartel lawyer I had started an international case involving international paper companies, and at the same time another female attorney in our Chicago field office had started an investigation that also involved international companies and an international industry and it turned out to be the ADM case. Mine turned out to be fax paper cases which can be known as the Nippon Paper case was one of the major ones.

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At the time no one in the department was doing international cases, and both Robin and I had raised with our bosses, well, we could use more staffing, we want to be pursuing these cases and we were kind of discouraged; look, we don’t really do those cases, they are going to involve a lot of coordination with other jurisdictions, and we’d like to be in a position to make the decisions ourselves. We don’t necessarily want to get into a complicated situation where we have to coordinate with a lot of other jurisdictions, but I really thought that this was the way the economy was going, this is really where we should be and Robin did as well. And so we sort of encouraged each other, we called each other up, we were sort of out on a limb doing some things that hadn’t been done before where there wasn’t a lot of case law or lot of guidance. And yeah, we prevailed and persevered and persisted as is the popular phrase these days, and eventually, obviously, a huge piece of this conference is focused on international cartel work now, and that obviously was the wave of the future.

But we could have let ourselves be discouraged and figured others know better, but we sort of hung in there and stuck to our guns, and obviously, it all turned out pretty well, didn’t it?

Jodie Williams: It did, it did. Those were some very, very exciting cases and we have come a long way. So thank you for that.

Tiana, what about you, do you have any personal experiences you could share or words of wisdom for our listeners?

Tiana Russell: Yeah, so I think one of the interesting parts of that story is just the importance of seeking out colleagues who can be sounding boards for you so as a women in the field I find one of the most valuable tools just to seek out other women to bounce ideas off of — to get encouragement for — to work off of. So I think that that can be an invaluable tool in our profession, and then in terms of negotiating I think one story is as lawyers are, one of our top jobs is to be an advocate and I think in the early parts of my career I was less of an advocate for myself. And I think it kind of had a change in thought as I became a little bit more senior in my roles and started to realize that advocating for myself as an attorney was important and asking for raises or positions or lead counsel roles was an important tool in moving forward, and so, I think that has been an invaluable lesson to me.

Jodie Williams: Great, thank you. And Kristen, what words of advice would you give to a young female attorney just starting to better position herself to make the partner track as you have done?

Kristen Anderson: I would like to echo something that Lisa said, and that is, when you have a complex project that’s assigned to you, I think there is at least for me at the beginning of my career, there was sort of a resistance or an overwhelming feeling that I would get because I didn’t know exactly how I was going to accomplish this big task. And I think you just have to jump in and start doing things one step at a time.

In terms of learning how to negotiate, for me, what I did was I looked at the styles of different people at my firm and sort of thought to myself, well, can I negotiate with that style, and in a lot of cases I just couldn’t replicate the style of some of my partners.

So I started thinking about the style of litigation and the style of negotiations on being converse with other attorneys both on opposing counsel side and my co-counsel side. And I would think about how they negotiated an issue, and take tips from here and there to come up with my own negotiating style.

Jodie Williams: It’s a really good point about not wanting to just accept the negotiating style because somebody else is opposing it on you but learning it on your own and owning it and finding your own way, which is sometimes challenging in this world, but that’s a great piece of advice.

We are very fortunate on this panel to have both government attorneys and private attorneys, and I am curious if you would all elaborate on the different opportunities that being in the government can offer women and private practice can offer women, and then, I think Tiana might be the best to talk about this about transitioning between both worlds and what different opportunities and how that can perhaps help you career.

Tiana Russell: Yeah, so as I had mentioned I was at a firm for seven years before coming over to government and I have found that the opportunities at government are incredible I think for a women, and I think part of that is that there is just more opportunities for lead counsel position that sometimes we might not have the resources, and if you are willing to do it they will encourage you and so that’s wonderful versus at a firm obviously a lot of those decisions are client-based and so while the expertise and the trainees is fantastic, it can be very difficult to get into those lead counsel of speaker roles as a younger attorney.

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So I think, coming over to government has been an incredible help to my career just in terms of giving me those opportunities to get speaking roles to get my face out there and to be doing a little bit more than I was at the firm.

Jodie Williams: And do you feel not that she is looking to do this, Lisa, but do you feel that should you decide to enter into the private Bar after spending good chunk of time at justice that will advance your career in the private sector or —

Tiana Russell: Yeah, absolutely, I think the expertise and those opportunities that can be harder to gain at a firm but which are kind of necessary to move up the ranks, I think the ability you get those at government what if I decided to go back and make it easier to transition back to the private side without a doubt.

Jodie Williams: Great, Lisa, do you have any thoughts?

Lisa M. Phelan: Yeah, I just want to say, I think the opportunities to get litigation experience and to actually be a counsel table and maybe even lead attorney are just incredibly greater with the government.

Looking back, I still can’t believe I was allowed to do it with less than 2 years as a lawyer working for the Division, I was able to do opening statement and closing argument at a major federal criminal antitrust trial going up against Covington & Burling, Gibson, Dunn, O’Melveny & Myers just huge firms. My opposing counsel was 35 to 40 years my senior and yet I didn’t think twice about it, sort of the ignorance of youth, you think you can do anything, and somebody was brave enough to let me do it and we won the case.

So you just get opportunities that I am confident that you would never get on the other side. So I think — and litigation as we all know in our profession is a very valuable quiver to have in when you are moving forward, whether you want to stay with the government or whether you want to go out into private practice.

So I think it’s a great place for young women to get opportunities and to really grow and challenge themselves. So it’s a little bit of a pitch for anyone that wants to come and work for me. You are welcome.

Jodie Williams: And Kristen, since you are in the private sector, does having that agency experience behind them differentiate candidates who are coming and looking to join your firm?

Kristen Anderson: Yeah, I really think so, because in private practice, you really have to be more patient and waiting for your opportunities to speak in court. So anyone that comes to private practice with a lot of government experiences, just going to be more comfortable in the courtroom and more comfortable with speaking roles in court.

That said, I think people in private practice can prepare while they are young attorneys to be ready when the time comes for them to have their opportunities in court, and I think if you treat meetings, if you try to run a meeting or present at a meeting, think of that as your oral argument, or you can make opportunities for oral argument for yourself by perhaps arguing at the MDL panel or really tackling an issue in discovery and maybe get in to present a discovery dispute.

Jodie Williams: So sort of taking the opportunities you have making the most of them and showing the lead counsel at the moment that you can do it and hopefully in the future you will be given more opportunities to present in front of the judge, to present in front of co-counsel.

Switching gears just a little bit, one topic that has been a hot topic here at the Spring Meeting has been the administration change especially with the announcement of the new Head of the Department of Justice, Antitrust section. Lisa, do you think that the administration change is going to affect women differently than men, and if so, do you think that what tips can women take away to get through the transition a little bit easier, maybe come out ahead? I know you have gone through a few administration changes in your time.

Lisa M. Phelan: Yes, I have gone through quite a few, and actually interestingly, my experience has been that it’s more just adjusting to the individual rather than whatever party or political leanings they might have. Really, I always tell people I was hired doing the Reagan administration, I was promoted to Chief of the National Law Enforcement section in the Bush administration and I have not really experienced any real variety based on which party is in power at the moment in terms of Criminal Antitrust enforcement.

But, that said, there are individuals who have particular working styles and particular ways of interacting, and in some ways, I think, being a woman can be an advantage, because women are kind of naturally more attuned to reading people and picking up cues.

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So sometimes the adjustment I have observed over the years is, it’s easier for the women who can kind of figure out the new person and their style and their most effective working relationship, and they are able to adapt more quickly sometimes even than the guys who not obviously, not consistently, but might be a little more rigid or less open to change.

Jodie Williams: Wonderful. Thank you for that. Since we are at the Spring Meeting what opportunities — and this is an ABA Program, how can women, for lack of a better word, exploit the ABA to better their careers, to really put themselves in a position for that promotion for the lead counsel, for the lead trial counsel position?

Lisa M. Phelan: Well, I have been really actively involved with the ABA almost throughout my career. Very early on I got involved with the Young Lawyers Division and I wanted to have an opportunity to sort of get my name out there a little bit and someone said to me, well, there are always opportunities for writing, and I love to write, and wasn’t at the time getting to do a lot of brief writing at work. And so they said, well, you could write the chapter regarding criminal developments for the Antitrust Developments book.

So for three or four years I did that and I was so excited to have my name in the flow word at that stage of my career. But then that led to me getting to know people in the section and then I realized that the Criminal Practice and Procedures Committee would be a great place for me.

I worked my way up to Vice Chair, that was at the time when I was still a staff attorney, so it made me have opportunities to network and to listen to the Defense Bar and hear their perspectives on our criminal cases. And then after I became Chief, I had a lot more opportunities to speak on panels and be a representative of the Division, and in recent years, I’ve been involved with the International Cartel Task Force, which meets a lot with foreign enforcers from around the globe.

So I found it always to be a great way to develop my skills, because speaking on a panel is not all that different sometimes than speaking in a courtroom, and it’s given me a lot of ways to sort of polish my skills and develop in ways that might not have otherwise been available.

Jodie Williams: That’s great advice. So if you’re a young attorney just starting out, let’s say, you are private — you are a staff attorney at the FTC or you are staff attorney at justice or you are the new – brand-new associate at a law firm, who may not have the opportunity to write for the ALD right away, what would you say, what’s the first step that they can do? Because sometimes coming to these meetings can be a little overwhelming or going to a networking event where you don’t know anybody, that can be a little overwhelming. So what’s that first step that a new attorney can take?

Lisa M. Phelan: Probably for a very new attorney it would be helpful to find a partner or a senior person, if you’re in government, that is active or involved with the ABA, and ask them to sort of mentor you into becoming an active ABA member and to introduce to you and help you get to know how things work and look for opportunities.

And all of the committees are putting out publications, they’re putting out newsletters, they’re setting up brown bags, and they’re always looking for eager enthusiastic young folks who would like to help in that regard.

So I would suggest getting a sort of an ABA mentor type and have them kind of walk you through, which is a little bit of what we are doing here with Tiana who I’ve encouraged — she will be able to tell you that I’ve encouraged a lot of the younger attorneys in our section, and particularly, the women, to get more involved with the ABA, because it can give you a platform that you might not otherwise have.

Jodie Williams: Well, since Lisa just brought Tiana into the conversation in a lovely way, Tiana, how has this section helped you and what would you recommend to young lawyers?

Tiana Russell: So I think as a first step I would second what Lisa said, which I think is just telegraphing your interest to either the partner you work for or whoever you work for. I think sometimes there is a reluctance to show interest until you think that you are capable or deserving of a role, but I think the earlier that you relate to the people you work for that you’re interested in something, then when those opportunities arise you’re perhaps positioned in a better way to take advantage of them. So I absolutely agree with Lisa that the first step is just trying to get involved and the best way to do that is just to announce your interest.

Jodie Williams: Great, and Kristen, what do you think? What would you tell a young attorney just starting out how to leverage the ABA to help further their career?

Kristen Anderson: Well, I would encourage them to join the committees. The committees send out emails on a regular basis updating their committee members on what’s going on with the committee and what volunteer opportunities they have.

So I am a Vice Chair of the Trial Practice Committee and I added our newsletter and we send out shoutouts for articles on a pretty regular basis when we’re trying to fill up our slots for our newsletter, Trying Antitrust.

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So there are a lot of opportunities I think for young lawyers, short of writing chapters of books within the committees, we are looking for people to moderate brown bags. We are looking for people to work on our jury instruction database and we are developing an expert witness testimony database, and you can find out about these opportunities by subscribing to the Connect Alerts from the committee, the various committees on the ABA.

And then the other thing I think is important for leadership in the ABA Antitrust Section to keep in mind is when a lawyer reaches out and does a really good job on the project to try to encourage that lawyer to take on more responsibilities and recommend them for other roles, so when it comes time for applications into leadership roles, YLR roles or vice committee roles within the committees, that young lawyer can have a reference back to some of the current vice chairs and section chairs that they have worked with on their previous work on newsletters, brown bags, et cetera.

Jodie Williams: Great. And while we don’t have a crystal ball, if you could look into the crystal ball and see the future, what would you like to see the section doing to increase female membership and female active roles in membership and as well as in practice?

Lisa M. Phelan: Jodie, last year at the Spring Meeting we put on a session that was called Women in Antitrust, Does Gender Matter, and I think both the Section and myself were a little concerned might we only get three people attending or might we get a roomful, and we were just overwhelmed. The ballroom was filled to capacity and then there was standing room only, and more important was the energy that I heard in the room and the hunger in the room from some of the younger women to understand how can they get more involved and advanced and what is the secret to that.

And so I think the Section can continue to sponsor more women-focused events. I wouldn’t think it was a bad idea to have a subcommittee on Women in Antitrust, because we talked about on my session last year the fact that that the Antitrust Section actually has one of the lower, of all the ABA sections, one of the lower female memberships, and I think we all need to work harder to get that up.

And so I would hope that women partners and women government leaders like myself will keep encouraging more of the younger women to join, but I think a mentor program, where people could be paired and have somebody to meet with could really help and I think we all need to really spend some time and energy thinking about how we can encourage more women to get involved and stay involved in the practice of antitrust law, because it has just been incredibly rewarding to me.

Jodie Williams: That’s great. Thank you. And Kristen, you are a Vice Chair, what would you like to see the section do to increase female membership?

Kristen Anderson: I really like Lisa’s suggestion about creating a committee to address women membership in the ABA and I think the mentoring idea is great, and I have been mentored in the ABA and it has been truly rewarding as a mentee and I would love to be a mentor for a young lawyer just starting out as well.

Jodie Williams: Great. And Tiana, do you have any other suggestions?

Tiana Russell: I second all of those. We have unanimous.

Jodie Williams: Well, I think we have some great ideas and I think we would all like to see a mentorship program and a subcommittee devoted to women’s issues and increasing women’s exposure in antitrust law would be really beneficial to us as a group, and the Antitrust Section, but I think with that we have come to the end of our program.

I want to thank Lisa and Kristen and Tiana for joining me. This has been a wonderful discussion. If our listeners have questions or would like to follow up with you, how can they reach you all?

Lisa M. Phelan: Well, I am at the Department of Justice, so every DOJ attorney has the same mailing address, first name.last [email protected]. So I would be happy to receive emails or get in touch with people. I am always at ABA events, so look for me and I am always happy to chat.

Jodie Williams: Great. Thank you. And Tiana?

Tiana Russell: The same, I am available at the USDOJ email and I would welcome receiving any emails of anyone who would like to chat about any of these issues.

Jodie Williams: Great. And Kristen, how can our listeners get a hold of you?

Kristen Anderson: You can look me up on LinkedIn, Kristen Anderson, or on my firm’s website has my full contact information, with my email address, scott-scott.com.

Jodie Williams: Wonderful. This has been another edition of Special Reports, I am Jodie Williams. Until next time, thank you for listening.

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