Don Klawiter has practised antitrust law for 44 years – at the Department of Justice, as a partner at three major firms and, currently, as an independent antitrust practitioner. Don’s practice focuses on antitrust counselling, investigations and litigation, with a primary emphasis on international cartels. He defends corporations and executives, advises corporate boards, and represents corporate and individual plaintiffs. Don has held many senior leadership positions in the ABA antitrust section, serving as section chair in 2005–2006.
What do you enjoy most about working in competition law?
In high school and college, I spent a great deal of my time involved in competitive debate and speech. I enjoyed that experience tremendously; it trained me to develop and present evidence as an effective and well-prepared advocate. Inevitably, this led me to law school and a great interest in trial and litigation practice. From the first day of my first antitrust course at Penn Law School, I was fascinated by antitrust as a national policy debate, defined by a set of economic principles, and decided and interpreted within a complex litigation system. That course with the great Professor Louis Schwartz, along with truly outstanding evidence and criminal procedure courses – all in my second year of law school – set my course as an antitrust advocate. That second year ended with my taking a summer job at the Antitrust Division’s Philadelphia Office. That position led to an appointment to the US Department of Justice (DoJ) honours programme upon graduation from law school. I never looked back.
Given this extraordinary experience, there are two interrelated activities that I most enjoy in antitrust and competition law.
The first is the challenge of building the factual case and integrating it to the law. We start with interviews and document review and then slowly and deliberately build the narrative, whether it is a meeting where something illegal occurred or the facts explaining how a merger will make a market more competitive. I especially enjoy the process of constructing a defendant 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 always one of the high points of anyone’s career – and to do it repeatedly to obtain leniency, to clear a witness or to reverse a staff recommendation is a great joy and blessing over a career.
The second is to have a role in shaping antitrust law and policy, particularly as international enforcement has developed over the past 20 years. Because new enforcement regimes were developing quickly in many jurisdictions, the leadership of the American Bar Association (ABA) antitrust section was regularly called on to assist other jurisdictions with our expertise and practical advice, through vehicles such as the ABA/DOJ working group (which later became the international cartel task force), and, most significantly, the ABA’s international cartel workshop. Since 1997, we have now presented this workshop 12 times, with the 13th scheduled for February 2020. This workshop brings together cartel practitioners and enforcers from around the world who present three days of demonstrations of current cartel issues and policy commentary by the top enforcement officials in the world. This project and other working relationships with the enforcement community to develop cartel policy have been very significant and gratifying parts of my career.
What inspired you to establish your own firm?
After almost 11 years at the Antitrust Division, and 31 years as a partner at major law firms, I was not ready to retire. I was looking for one more great adventure. I was inspired by the example of my dear friend, Jim Backstrom in Philadelphia, who has had a highly successful solo antitrust practice for decades. The practice I aspired to was one with interesting and varied projects without the burden of big law firm management, politics or client conflicts. I have been gratified by the confidence of clients who followed me to my new firm, as well as new clients.
After two years, I can say, without qualification, that the practice has allowed me much greater independence. It has also given me the opportunity to write and speak on the issues of the day without worrying about the firm or its clients questioning my views, or even my topics of discussion. With independence comes flexibility – of schedule, workplaces and life. With independence and flexibility also comes humility. Humility surfaces when you try to unjam a printer or search for a “lost” document on a laptop. That is a small price to pay for independence.
How does your previous experience at the DOJ enhance your work in private practice?
I joined the Antitrust Division right out of law school. The Division is where I learned how to practise antitrust law – and I learned from the masters. At that time – and probably now as well – the senior career leaders in the Division were among the finest antitrust lawyers I have ever encountered. In my first few years in the Philadelphia office, I was privileged to try a major cartel case to a successful verdict under the caring and watchful eye of John Hughes, then chief of the office. When I was appointed special assistant to the director of operations, I worked with six sections and field offices, reviewing case recommendations, new investigations, discovery requests; literally reviewing every manner of a case – merger, cartel, monopolisation, civil and criminal – for the top officials of the Division. This was truly trial by fire, seven days a week. This is where I learned to analyse cases and evidence. Bill Swope, then the director, taught me to write the one-page action memo, perhaps the most rigorous training of all.
After that experience, I was appointed chief of the Division’s Dallas office at age 30. Heading one of the Division’s eight offices was the ultimate leadership training. I also had the opportunity, with my staff, to build antitrust cases from the ground up.
As important as all of that first-hand experience was, probably the major element in enhancing my development in private practice was the group of dedicated public servants I grew up with at the Antitrust Division. When I entered private practice, I had to handle cases on the other side of the friends and colleagues I had worked closely with. There was an inherent trust between us – never a preference or advantage, except that we spoke the same language and abided by the same ethics and practices. It is always a boost to be able to tell the client, “Here is what DOJ staff is going to ask and we should plan it this way.” Clients understand and appreciate the power of those relationships.
You handle litigation on both the plaintiff and defence side – how does your approach differ in either instance?
The legal profession is founded on the proposition that everyone is entitled to representation and an effective advocate can argue all sides of a case. In competitive debate, we would argue an equal number of rounds on the affirmative and the negative, thus demonstrating both advocacy skills and flexibility. As I first learned when I left the Antitrust Division for private practice, defence practice is based on the same statutes and the same precedent as the Division’s practice. The advocate simply argues the other side.
More importantly, advocating both sides will make you a better advocate for each side, since you can understand more clearly and more completely the other side’s evidence. While most practitioners essentially practise on one side or the other because of firm issue conflicts and other things, I would encourage all antitrust advocates to act for clients as both plaintiffs and defendants. It will make you a better antitrust lawyer!
What would you say has been driving the decrease in cartel enforcement cases in the past few years?
The Antitrust Division’s corporate leniency policy is, without question, the single most effective tool in the detection and prosecution of cartels ever devised by enforcers. Since the mid-1990s, leniency has changed the enforcement dynamic in cartel investigations in the US and around the world. After two decades of enormous success in the US and around the world, there appeared to be a significant drop-off in leniency applications and, thus, in major criminal penalties.
In some respects, leniency is a victim of its own success. Multi-jurisdictional leniency, multijurisdictional enforcement and multijurisdictional damage actions have made leniency more complex and costly – if you seek leniency in one jurisdiction, you likely will seek it in many jurisdictions. This has had an impact on leniency applications, but I believe that what has severely limited leniency is the erosion of trust between enforcers and defence counsel. This was a major change in approach. Antitrust Division enforcers used to encourage applicants and be full partners in helping the applicant obtain leniency. In recent years, the Division has sought to expel one company from the programme; granted leniency to another party and then prosecuted the company for a related crime; and issued new guidelines (FAQs) suggesting that, in some circumstances, senior executives would not be covered by the leniency application and could be prosecuted criminally. Although the Division has not prosecuted any such executive yet, the FAQs set off a firestorm that definitely wounded the leniency policy.
The way forward for the Antitrust Division is to return the policy to a positive and enthusiastic partnership with leniency applicants. This will require the Division to promote the benefits of the leniency programme and make it very clear that the Division will work in partnership with the applicant. Clarifying its FAQs in light of the current state of confusion, so counsel and executives will again trust the Division, would be a small price to pay for robust criminal enforcement.
What are the main legal challenges that large tech companies such as Google and Amazon pose with regard to competition?
The movement to prosecute and break up big companies (such as Amazon, Google, Facebook and Apple) has deep roots in our history, including our recent history with IBM, AT&T and Microsoft. Both the enforcers and the companies should heed the lessons of history and choose their battles carefully. First, history teaches that a long and protracted case with years of discovery is generally ineffective in a market where technology is changing rapidly and dramatically. That is the lesson of the IBM case. Second, history teaches that politics can snatch defeat from the jaws of victory. That was the experience of the Microsoft case, where the negotiated settlement set aside the trial record. Third, history teaches that a strong trial record can result in an effective settlement that can transform an industry. That is the experience of AT&T. All parties should approach their task with a view of the future – and with humility and efficiency.
What would you say has been the biggest accomplishment of your career?
There are several enforcement and damage actions that are candidates – US v Continental Group, which I prosecuted as a 27-year-old; the coal slurry pipeline case we won decisively in the Eighth Circuit after losing in the district court; the Rank/Deluxe film processing merger that we tried – and won – in “night court”; and a number of international cartel cases where we obtained excellent outcomes or leniency for clients – citric acid, sodium gluconate, maltol, vitamins, graphite electrodes, computer parts, auto parts, chemicals, financial and telecommunications markets and others.
Without diminishing the importance of any of those experiences, my greatest professional accomplishment and greatest honour was serving as chair of the ABA antitrust section in 2005–2006. After holding many leadership positions in the section, I became chair at the moment when international enforcement was in its early stages and when, as a consequence, we had the opportunity to help shape competition policy and procedure around the world. We invested heavily in developing relationships with enforcement agencies and bar groups around the world – and those investments are still paying dividends. The competition enforcement world has continued to develop and grow since 2006, and I am enormously proud of the ABA antitrust section leaders – then and now – who continue to shape competition law around the globe.
What is best piece of career advice you have received?
During my first week of private practice, I asked Cas Hobbs, one of our senior partners, how I could be successful in the antitrust world. Smiling, and without hesitation, Cas told me what Miles Kirkpatrick told him at the same moment in his career. Miles said: “Get involved with the ABA antitrust section. First, by doing so, you will work on the cutting-edge issues of antitrust as a young lawyer and will better serve your profession and your clients. And, second, you will meet and work closely with the finest – and nicest – lawyers in the profession and they will become your great friends for the rest of your life.” Miles and Cas – great antitrust lawyers both – were absolutely correct. Over the years, I have given the same advice to many young antitrust lawyers around the world – and enjoyed watching them flourish. I never tire of imparting this advice – quoting Cas quoting Miles.
Donald Klawiter is "the dean of antitrust and cartel defence in DC".
Peers and clients say:
"Donald continues to be leader in cartel matters, and has expanded practice into merger analysis and plaintiff's side litigation too."
"Mr Klawiter is highly experienced and brilliant to work with."
"I consider Donald the master of antitrust law in Washington, DC."
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 2017, Don established Klawiter PLLC, an independent antitrust practice serving corporate and individual clients and contributing to today’s antitrust debate. Because of its structure, the firm can serve clients with great value and efficiency.
Don’s practice focuses on antitrust investigations and litigation, with a primary emphasis on international cartel matters. He has represented accused corporations and executives from six continents. Don has also led corporate internal investigations and advised corporate boards on how to respond to investigations and enforcement actions. He has also developed innovative compliance training for clients, and counselled clients to seek – and obtain -- corporate leniency in the USA and other jurisdictions.
Don’s most significant professional achievement was his tenure as chair of the ABA section of antitrust law in 2005-2006. He held that office as the international enforcement community began expanding its jurisdiction and working cooperatively, and the international competition defence bar had to respond creatively to this major paradigm shift. Don was a founder of, and a 12-time participant in, the ABA’s International Cartel Workshop, which is the premier event to bring together enforcers and defence counsel from around the world every two years.
Don has been a speaker/organiser at more than 200 antitrust events in 18 countries, and he has testified before the US Senate Judiciary Committee and the US Sentencing Commission. He has written over 150 professional articles on antitrust issues.