As the leader of Cahill’s antitrust groups, Elai’s practice focuses on a wide range of antitrust matters, including M&A, litigation, counselling and government investigations. Elai has successfully guided a broad range of transactions through antitrust and foreign investment regulatory reviews in the US and abroad, gaining a reputation for speed and efficiency. He has also played an influential role in cutting-edge investigations and litigation, including benchmark rates (eg, LIBOR, Forex) and two-sided markets (Ohio v Amex).
How did you get into practising antitrust law?
I had the good fortune to assist on a merger trial as a summer associate at Cahill in 1995. One of the key issues was the government’s failure to properly define the relevant market and I conducted research to support the trial team on that issue. I was intrigued. And we won. Later, as a young lawyer I gravitated toward antitrust work because I embraced the challenge of understanding how companies compete with their rivals, how they differentiate their products and what they consider when setting their prices.
How has US competition law evolved since you first began practising?
While some aspects have been remarkably stable – after all, the Sherman Act dates back to 1890 – antitrust law has evolved in several ways. We have seen newfound attention paid to employment and hiring issues and, more prominently, the law has been catching up to fast-paced developments in technology markets. But even this is not really new. When I started, the big monopoly case was Microsoft. The competition issues in digital platform markets require, as always, a thorough understanding of those industries, which are novel and multifaceted. Other important recent discussions in antitrust law include the debate about whether it is necessary to define relevant markets – I think it should be – and the somewhat related discussion about how to assess competitive effects in two-sided markets.
What impact has covid-19 had on antitrust?
Aside from the grave impact on people’s lives, antitrust authorities and counsellors around the world have fielded novel questions prompted by responses to the pandemic. Companies facing unprecedented challenges have contemplated collaborating with competitors to help their customers, requiring nimble antitrust analysis of markets experiencing dramatic fluctuations in supply and demand. These questions have underscored one of the central tenets of robust antitrust evaluation: careful examination of effects on markets, which requires consideration of exceptional momentary conditions these days. Conduct that may harm competition under normal circumstances may not have the same effect during extraordinary times. We have learned that, when properly applied, antitrust law is flexible enough to address even these most incomparable times.
Why do you think it is so important that antitrust law responds to the growing trend of collaboration between competing financial services?
The financial services sector cannot function without collaboration and communication among competitors. Financing for public projects or private research and development, or any other purpose usually requires pooling of resources. And the financial instruments used to raise capital would not be attractive to investors unless those instruments can be traded among financial institutions to provide liquidity. Overzealous enforcement in this space could dampen the communications, pooling and trading that fuel economic activity.
What role do you see FinTech (digital technologies used in finance and banking) having in the development of antitrust in years to come?
Because FinTech combines rapid technological innovation with the transactional collaboration essential to financial markets, making wise antitrust decisions in these markets will demand a deep understanding of several interrelated, complex businesses. I hope and expect that proper assessment of FinTech matters will lead antitrust law to continue to develop towards market-driven analysis, with a focus on empirical evaluation of competitive effects.
What makes your antitrust team at Cahill Gordon & Reindel stand out from its competitors in the market?
Our team stands out for its deep knowledge of our clients’ businesses and legal concerns. We build our teams around familiarity with an industry, which sets the context for our work and provides our clients with efficient, pertinent and sensible legal advice. In addition, our antitrust team includes lawyers with broad experience in transactions, investigations and litigation.
Looking back over your career, what is the most interesting antitrust case you have been a part of?
I hate to pick favourites, and there are several matters I cannot mention because they are confidential, but I would say it’s a tie between the US Dollar Libor litigation – one of the more complex class actions, still ongoing, with thousands of pages of written decisions and several appellate rulings including a trip to the Supreme Court – and Ohio v Amex, the landmark Supreme Court ruling on two-sided markets, holding that courts must consider customers on both sides of credit card transactions – merchants and cardholders – when evaluating antitrust claims.
What advice would you give to younger practitioners hoping to one day be in your position?
I advise young practitioners to learn as much as they can about their clients’ businesses and legal concerns. This knowledge is essential to providing good antitrust advice, but it is also vital to understanding the broader context in which lawyers provide legal counsel. I would also recommend getting involved in bar associations and other professional activities to expand their networks and get opportunities to write and speak.
Elai Katz is considered to be "among the absolute top antitrust generalists in New York". He is "highly regarded by all and a wonderful leader of the NY antitrust bar."
Elai leads Cahill’s antitrust practice and focuses his work on a wide range of antitrust law matters, including litigation, mergers and acquisitions, counselling, and government investigations.
Elai advises clients on mergers and acquisitions; joint ventures, distribution and marketing arrangements and pricing policies; participation in trade association activities; and interaction with competitors. He has successfully guided a broad range of transactions through the antitrust regulatory review process in the US and abroad, including Rayonier’s acquisition of Tembec and Arch Capital’s acquisition of United Guaranty from AIG. Elai has a particularly strong record in obtaining quick and positive resolutions during the early phases of merger reviews, and is especially attuned to the role global antitrust review plays in negotiating and completing mergers and acquisitions.
Elai has represented clients in a variety of antitrust disputes, including complex class actions alleging price fixing and monopolisation, as well as matters involving distribution arrangements and price discrimination. Significant matters include representation of global banks in LIBOR, FX and interest rate swaps-related litigation and investigations; and of economics scholars as amici curiae in Ohio v American Express.
Elai is recognised as a leading antitrust lawyer by Chambers USA, Benchmark Litigation and WWL: Competition.
Elai writes and speaks frequently on antitrust topics. He writes a bi-monthly column in The New York Law Journal, reporting and commenting on antitrust law developments in the US and overseas. Elai is a regular participant, as a panellist and moderator, at the annual meeting of the New York State Bar Association and the ABA's spring meeting.