Don Klawiter has practised antitrust law for 45 years – at the Antitrust Division, as a partner at three major international firms, and, currently, as an independent antitrust advocate. Don’s practice focuses on antitrust litigation, investigations, compliance and counselling, with emphasis on international cartel investigations. He regularly defends corporations and executives, advises corporate boards and conducts internal investigations. Active in the leadership of the ABA Antitrust Section for many years, he served as section chair in 2005–2006.
What do you enjoy most about practising competition law?
Antitrust is national and international law and policy, defined by a common set of economic principles, and decided and interpreted within a complex litigation system. I most enjoy the inter-related concepts of complex factual development and shaping policy and law.
The first aspect is the challenge of building the factual case and integrating it with the law. It starts with document review and witness interviews, and slowly and deliberately builds the narrative, whether it is a meeting where illegal conduct occurred, or the facts explaining how a merger will make a market more competitive. I especially enjoy the process of constructing a corporate or witness proffer, which is a tightly woven narrative complete with every document that supports the testimony. Presenting this type of proffer to a grateful Antitrust Division or FTC staff is the high point of anyone’s career – and to do it repeatedly to obtain leniency for the company, to clear a witness or reverse a staff recommendation is a great joy and blessing over a career.
The second aspect is the opportunity to have a role in shaping antitrust law and policy, particularly as international enforcement has developed over the past 25 years. Because new enforcement regimes were forming rapidly in many jurisdictions, the leadership of the ABA Antitrust Section was regularly called upon to assist those jurisdictions with our expertise and practical advice through vehicles such as the international cartel workshop and, later, the international cartel task force. These international working relationships have helped many enforcers to develop sound practices, such as leniency programmes, and have taught defence counsel to understand the goals of the enforcers. These steps towards shaping law and policy have been some of the most significant and gratifying aspects of my career.
Who among your teachers has been a major influence on your career so far, and why?
I was greatly influenced by three of my professors at the University of Pennsylvania Law School. I studied under all of them during my second year of law school and, by the end of that academic year, I sought out and received a summer internship at the Antitrust Division and never looked back. Professor Louis Schwartz first opened the world of antitrust law and practice to me – he made the complexity of antitrust law exciting and he emphasised creativity in the quest of shaping the law. Judge Edmund Spaeth, of the Pennsylvania Superior Court, taught me evidence at the height of Watergate. I still remember his remarks in class on the Monday after the Saturday Night Massacre about the rule of law and our responsibility to protect it. Alan Davis, a white-collar practitioner who was teaching for the first time, discarded the casebook during the first class and brought to life the grand jury and federal criminal practice. These three giants gave me the building blocks and the inspiration I needed that summer – and for the next 10 years at the Antitrust Division, and 35 years in private antitrust practice. I never looked back.
Who at the antitrust bar has been a major influence on your early career?
My early career included my first years of practice at the Antitrust Division in Philadelphia and in Washington, DC.
As I joined the Philadelphia office of the Antitrust Division, there were two great influences on my development as a baby antitrust lawyer. John Hughes was the legendary chief of the office who was part of the division’s team in the electrical equipment conspiracies of the early 1960s. A brilliant trial strategist and a patient leader, he taught me how to put a complex case together, and he demonstrated great trust and patience in allowing a 27-year-old in a hurry to present a major case to the grand jury and take it to a successful trial verdict. Under his watchful eye, I learned how to be an antitrust trial lawyer.
The other great influence in my time in Philadelphia was Bruce Wilson, the former principal deputy assistant attorney general who had returned home to Philadelphia and joined the office. Bruce’s office was next to mine, and, over time, he taught me about the bigger antitrust world, and, I suspect, had great influence on my appointment to the operations office in Washington. Bruce is brilliant and has a creative mind that broadened my horizons as an antitrust lawyer.
When I was appointed special assistant in the office of operations, I became responsible for monitoring the enforcement actions of approximately one-third of the Division, as well as handling an enormous number of special projects. Many individuals in the front office and in the sections had great influence on my career, but two stand out. William E Swope, who was director of operations when I was selected to be a special assistant, taught me how to analyse an antitrust case with precision and rigour. Bill’s rule was that the recommendation memorandum that his office submitted to the assistant attorney general should be one page long – single spaced. The memo would contain no adjectives and would make definitive recommendations on whether to challenge a merger, bring a criminal action or open an investigation. Drafting these one-page memos was the hardest thing I learned to do in operations – and the most important thing I learned to do.
The greatest influence on my antitrust career, however, was John Shenefield, who was assistant attorney general when I arrived in operations, and I had the great honour of being his law partner for 21 years at Morgan Lewis & Bockius where we built a phenomenal antitrust practice. John taught me how to become an effective government official and a great lawyer, simply by the eloquence of his example. He practised law in the grand style – what Chief Justice Rehnquist called the “lawyer-statesman”. All of that started on my first day in operations in Main Justice, when, while unpacking my boxes, I turned to find the assistant attorney general standing in my doorway welcoming me to the front office.
Were there lawyers who influenced your ABA Antitrust Section career?
As I became active in the ABA Antitrust Section, there were two individuals who had a dramatic influence on my journey to be the section chair. Mike Denger of Gibson Dunn, with whom I shared a strong debate history, first recruited me to work on several ABA projects when I was a young Antitrust Division lawyer and later appointed me to section leadership positions when he was chair. Most importantly, Cas Hobbs, my partner at Morgan Lewis, recruited me for ABA projects literally during my first week at the firm. Watching Cas ascend to the chairmanship of the section provided the model for me to become chair myself. No one enjoyed being chair as much as Cas – and his joy and exuberance were contagious.
Many others promoted my career over the years – and they all have my gratitude and affection.
In what ways is covid-19 impacting the practice of law generally, and competition law specifically?
Taking an optimistic view, the covid-19 virus allowed all of us to rethink how we can best serve our clients, including accelerating technological changes in law practice that had been slowly developing over many years. Ten years ago, most firms would only allow you to work at home if you were ill. While the profession was moving slowly towards some work from home, covid-19 made it a necessity – and, miraculously, it worked!
In fact, technology has made my current independent practice in an area as complex as antitrust a clear option for many lawyers – a great benefit for the profession. In my case, I embraced the technology and solitude of practising alone and at home even before covid-19.
The major factor in the technology sector that has changed the practice substantially is the world of video conferencing. Zoom, Microsoft Teams, Google, Citrix and other services have become universally available and cost effective. By working with these services for over nine months, I have determined that video conferencing is an effective substitute for face-to-face meetings and costly and time-consuming international travel. I suspect that we, as antitrust lawyers, will never look back – if for no other reason because the clients will be happy to not pay the travel bills for long trips.
Finally, continuing legal education programs that are being held virtually, either at low cost or no cost. The ABA Antitrust Section was the pioneer and did a magnificent job of converting its spring meeting, which normally draws about 3,000 delegates, into a virtual event by video, along with breakout sessions, receptions and committee meetings. Many groups have done the same thing. I am personally taking great advantage of the educational opportunities – reinforcing what I know and teaching me many, many new things in the solitude of my home office.
How do you think global cartel enforcement will evolve in the next five years?
I have great confidence and hope that the Biden Administration will revitalise and renew cartel enforcement. Cartel enforcement in the United States has been a tremendous disappointment during the Trump Administration. There has been little new enforcement activity and the Antitrust Division sentencing record has been anaemic at best. The major problem is that the Administration has not devoted the resources to criminal enforcement and has not spent the time and effort to promote the leniency programme. There has been a serious brain drain – the experienced and creative cartel experts have, for the most part, fled to private practice. This is not the environment in which domestic or international enforcement flourishes. The United States has always been the leader of international cartel enforcement, and had been a supportive partner of other jurisdictions.
New leadership will rebuild criminal enforcement in the United States – and around the world. The trust between prosecutors and defence counsel required to make the leniency programme effective must be restored to bring cartel enforcement back to its historic levels.
What resources do you use to remain on top of international developments in competition and antitrust law?
I keep current on developments internationally through sources such as GCR, ABA Antitrust Section resources and statements from the enforcement authorities. In addition, I have developed over many years a reading list of books and articles on antitrust law and policy, the legal profession and practice skills. “The List” is intended to keep my practice skills sharp, to inspire me with the experiences of the greats of the profession and to have antitrust case law and policy at my fingertips. Much of The List developed from the Chair’s Messages I sent the 9,000 members of the ABA Antitrust Section. I used The List as a teaching tool at the section’s masters course for younger lawyers and gave it to young lawyers I worked with over the years. I add to the list every six months or so, and I am happy to share it with anyone with an interest – please send me an email and I will send it along.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
If someone had told me in 1975 – or even 1985 – that my practice would take me to five continents and over 20 jurisdictions, including over 25 trips to Japan, I would have laughed out loud. Clients and witnesses in the late 1970s were found in Kansas City or Salt Lake City, not Tokyo and Cape Town. The lesson is a simple one: we need to be flexible and humble – and seize new opportunities. The only thing we know for certain is that competition law enforcement will change, become more aggressive and cover the globe. I intend to participate in that change and remain a strong voice in the antitrust conversation as long as I can.
"He is an outstanding cartel defence lawyer"
"He's excellent - I cannot endorse him highly enough!"
Since 1975, Don Klawiter has had a renowned career as an antitrust partner at three major international firms and as a prosecutor and senior official at the Antitrust Division of the U.S. Department of Justice. In June 2021, Don joined Sterlington, PLLC, one of the world's leading premium virtual law firms, where he serves corporate and individual clients and continues to contribute to today's lively antitrust debate. Because of Sterlington's structure, the firm can serve clients with great value and efficiency.
Don's practice focuses on antitrust investigations and litigation with primary emphasis on international cartel matters. He has represented accused corporations and executives from six continents. Don has also led corporate internal investigations in cartel and merger matters and advised corporate boards and executives on how to respond to investigations and enforcement actions. He has also developed innovative compliance training for clients. He counsels clients to seek - and obtain -- corporate leniency in the United States and other jurisdictions.
Don's most significant professional achievement was his tenure as chair of the ABA Section of Antitrust Law in 2005-06. He held that office as the international enforcement community came to life and worked aggressively, and the international competition bar responded creatively to this paradigm shift. Don was a founder and a twelve-time participant in the ABA's International Cartel Workshop, the premier cartel enforcement event worldwide.
Don has been a speaker or organizer at antitrust conferences in 18 jurisdictions, and he has testified before the U.S. Senate Judiciary Committee and the U.S. Sentencing Commission. He has written over 150 articles on antitrust issues.