Damian has been a partner in Wachtell Lipton’s antitrust practice since 2009, having come to the firm in 2001. He principally focuses on transactional work, serving as an integral part of the firm’s widely recognised leadership in mergers and acquisitions advice. Damian advises clients across a wide range of industries including banking and financial services, technology and communications, healthcare, entertainment, consumer products and retail, aerospace, energy and other industrial categories.
WHAT ATTRACTED YOU TO A CAREER IN COMPETITION LAW?
Initially, it was pure chance. I graduated from law school with the intention of becoming a trial lawyer; after clerking for a federal district judge for two years, I applied to the Department of Justice (DoJ) honours programme correctly believing it was a great place for a young lawyer to gain experience quickly. The Antitrust Division was hiring the most honours attorneys that year, so I applied to antitrust thinking I would transfer to a more interesting practice within the DoJ, once I got my foot in the door. Working for the Division under the legendary Bob Kramer, and with so many fantastic colleagues, I quickly fell in love with the practice of antitrust law and have never looked back.
YOU HAVE MAINTAINED A BROAD PRACTICE ENCOMPASSING A WIDE RANGE OF SECTORS. WAS THIS A CONSCIOUS DECISION?
The diversity of my practice is mostly a function of Wachtell Lipton’s expansive merger and acquisitions presence. The firm has deep roots across a number of sectors from financial services to pharma, and from communications and tech to energy to other industrials. While each of the practitioners in our group have developed areas of expertise, simply through experience, we all strive to be highly capable generalists as well. For me, one of the most interesting and fun parts of the practice is the opportunity to learn how a new industry works. In fact, the antitrust lawyers I admire most have an amazing ability to become overnight experts in whatever industry comes before them.
WHAT IS THE MOST MEMORABLE CASE YOU HAVE WORKED ON OVER THE COURSE OF YOUR CAREER SO FAR?
I have been fortunate to have worked on a lot of memorable matters with some of the very best practitioners in the private bar and in government. One of the very first matters I worked on while at the DoJ was GE/Honeywell, a matter widely known for its divergent outcome in the US and the EU. A few others that come to mind, mostly because of the various ins and outs experienced in each, were the financial industry transactions during the 2008 crisis – Alcatel/Lucent, Wal-Mart Stores/Amigo, Google/Motorola, AMC/Loews and Reed Elsevier/Choicepoint. More recently, Amazon/Whole Foods was a very interesting experience.
WHAT ARE THE GREATEST CHALLENGES CURRENTLY FACING ANTITRUST LAWYERS IN THE US?
Like many other practitioners today, I am paying close attention to the debate around whether to abandon the consumer welfare standard as a way of defining competitive harm in favour of other, less well-defined criteria. I find this to be a concerning trend. Antitrust has a single but critical function in protecting markets and preventing distortions that result in harmful inefficiencies. This task is difficult, and reasonable minds may already disagree over outcomes even under a narrowly focused analysis. Introduction of other agendas, any of which may be worthy policies in their own right, detracts from the mission of antitrust and risks the loss of valuable objectivity. Debates over income inequality, privacy, and other aspects of our modern economy are important, but those debates should be had, and ensuing industrial policies created, in full view by accountable legislators or rulemakers. I am wary of anyone seeking to use antitrust to cure all ills.
HAVE THE REGULATORS’ ATTITUDES TO MERGER REVIEWS CHANGED OVER RECENT YEARS?
We are fortunate in the US to have robust professional staff at both the FTC and the Antitrust Division, who are dedicated to serving the country and achieving correct outcomes. I think whatever changes occur with new administrations tend to happen at the margins in close cases. There was a notable uptick in litigated cases under the Obama administration, but the current administration is decidedly not taking a laissez-faire approach to antitrust. As much as any case, the DoJ’s vigorous pursuit of the vertical theory in AT&T/Time Warner all the way through appeal demonstrates that we are not in an era of lax enforcement, nor are we likely to be any time soon.
WHAT QUALITIES MAKE A SUCCESSFUL TRANSACTIONAL COMPETITION LAWYER?
I think intellectual curiosity comes first. The best lawyers revel in getting their hands dirty, learning all facets of how their clients’ businesses work and how competition really occurs in their markets. Another quality is the ability to tell a powerful and coherent story. I don’t mean that a lawyer needs to be a raconteur. Like all good advocacy, this ability is more about empathy and connection with the client and the audience, and understanding what each needs to achieve. Finally, integrity is always paramount in the practice of law. There is no price on reputation, and nothing so valuable to clients.
HOW HAS YOUR EXPERIENCE AS A TRIAL ATTORNEY AT THE DOJ AND AS A LAW CLERK IN THE DISTRICT COURT OF PUERTO RICO ENHANCED YOUR WORK IN PRIVATE PRACTICE?
In both cases, looking “behind the curtain” and seeing how decisions are made by enforcers and the courts has proven invaluable. At the Division in particular, the relationships I have built over the years with friends and former colleagues have been personally rewarding but have also given me a tremendous respect for the way the staff approach the job.
HOW DO YOU EXPECT COMPETITION LAW AND PRACTICE TO CHANGE OVER THE NEXT FIVE YEARS?
I do not foresee major changes. Antitrust regimes around the world are maturing, and I am hopeful that professionalism and commonality in approach will be the hallmarks of the coming years. If there is danger, it is perhaps in regimes trying to achieve political outcomes via antitrust enforcement.
Damian Didden continues to impress respondents with his sweeping knowledge of merger review proceedings before antitrust authorities.
Damian G Didden practises in Wachtell, Lipton, Rosen & Katz’s antitrust department where he advises clients on various aspects of competition law matters. Mr Didden's particular focus is analysing the antitrust risk of mergers and acquisitions, and guiding clients through the merger review process before federal, state and foreign regulators. He has advised clients engaged in a diverse spectrum of sectors, including telecommunications, banking and financial services, entertainment and media, internet-based services, technology and software, defence, retail operations and manufacturing, among other industrial classifications. Mr Didden became partner at Wachtell Lipton in January 2009.
Mr Didden joined the firm as an associate in 2001, after spending two years as a trial attorney with the antitrust division of the United States Department of Justice. While at the antitrust division, Mr Didden investigated several high-profile merger transactions, including GE/Honeywell and Viacom/CBS, among others. Prior to joining the antitrust division, he was a law clerk for the Honorable Hector M Laffitte, chief judge of the US District Court for the District of Puerto Rico.
Mr Didden received an AB cum laude in philosophy from Boston College, where he completed the arts and sciences honours programme in 1992. He received a JD cum laude from the Georgetown University Law Center in 1997. Mr Didden is admitted to practise in Maryland and New York. He is a member of the American Bar Association's antitrust section.