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Thought Leaders

Thought Leaders

Elizabeth Avery

Elizabeth Avery

Gilbert + TobinL35, Tower Two, International Towers Sydney200 Barangaroo AvenueSydneyAustraliaNSW 2000

Thought Leader

WWL Ranking: Global Elite Thought Leader

WWL says

Elizabeth Avery offers “smart advice about how to best engage with the ACCC on complex and significant competition law issues”, as well as “top-level knowledge of the law and best practice in competition matters”.

Questions & Answers

Elizabeth is a senior partner and the group leader of Gilbert + Tobin’s Competition + Regulation group. She advises on a broad range of cutting edge competition law issues, including mergers, enforcement litigation and investigations, and ongoing strategic/operational advisory work. She has a particular focus on multi-jurisdictional matters. Prior to joining Gilbert + Tobin, Elizabeth was an antitrust lawyer in New York. She was recently awarded “Partner of the Year – Competition, Regulation and Trade” 2020.

Describe your career to date.

I would describe my career as an adventure. Along the road I have tried to make the most of opportunities that have come my way, supported by some wonderful mentors and amazing, dedicated and clever team members. When I finished law school I worked at the Federal Court as a judge’s associate (judicial clerk) for a year. That’s where I first fell in love with competition law. A couple of years later, I headed off to NYU to study antitrust with Prof Eleanor Fox. Professor Fox is a real inspiration, and really taught me how critical a close analysis of the facts is in antitrust, and also the value of comparative approaches. After NYU, I was offered a position at Weil, Gotshal & Manges, where I worked with some great lawyers on some fantastic cases. Winning summary judgment and again on appeal in the American Airlines predatory pricing case commenced by the DOJ is a highlight. Eight years later, on my return to Sydney with two small children in tow, I started working at Gilbert + Tobin. I have been blessed to work with outstanding competition lawyers, and wonderful mentors, in Gina Cass-Gottlieb and Luke Woodward. We also have an incredible team of great lawyers and I am privileged to have worked on some fantastic cases together with them, including the first set of criminal cartel cases in Australia, complex transactions in health care, financial services, digital platforms, agriculture and beyond.

How have the skills needed by a competition lawyer developed since you first began practising?

Competition law has become increasingly international in outlook, and also in scope, so it is important to have a multijurisdictional perspective on how the same issue might be analysed across jurisdictions.

How should companies measure the risk of follow-on damages when applying for leniency? 

It is always a risk as immunity in Australia provides no exemption from private damages claims here, so it definitely needs to be weighed. On the other hand, if a criminal conviction is the potential alternative, that is a pretty strong incentive to seek immunity. The ACCC’s recent tightening of criteria for applying for immunity does, however, make it more difficult to apply, as the applicant essentially has to admit to engaging in cartel conduct, whereas previously, a company (or person) can seek immunity if the conduct may have been cartel conduct. Given the significant challenges to proving a breach under Australian law, it is a very difficult assessment for a board to make an application for immunity. 

In what ways is AI transforming investigations in the competition space?

In the age of ever-increasing storage of digital data, AI is enabling enormous reviews to become manageable by enabling the model (once trained by our lawyers) to identify (iteratively) documents that are likely to be responsive, reducing the documents that need to be manually reviewed.

To what extent has covid-19 affected competition litigation, and how are you navigating these challenges? 

I have a six-week trial coming up that will take place via Microsoft Teams. We are currently setting up a remote court room at Gilbert + Tobin to enable our team to coordinate with others. 

What impact has the ACCC’s covid-19 taskforce had on the competition matters you handle?

The ACCC has done a great job during this period on recognising the need for urgent consideration of several proposed industry collaborations that have required authorisation.

How are changing thresholds for merger review affecting the competition market?

As Australia is a voluntary filing regime, there are no precise filing thresholds. However, the ACCC’s review of transactions has become increasingly in-depth, taking longer and frequently requiring the production of a very significant volume of documents. What this means is that clients have to factor in more time for the review process prior to completion. 

What can be done to improve diversity in antitrust?

Diversity is incredibly important in our workplace, to make sure we are harnessing the most talented people, but also to ensure that our workplace reflects our clients and society more broadly, and ensuring we consider a range of perspectives on an issue. Role models are incredibly important. In terms of gender diversity, I have been fortunate enough to benefit from some strong female role models, who inspired me and showed me what was possible. Flexibility and tolerance for different ways of working is also important. This period of working from home during covid-19 has definitely demonstrated that, if set up properly, working from home can frequently be more efficient. 

Thought Leaders - Competition 2021

Q&A

WWL Ranking: Thought Leader

WWL says

Elizabeth Avery is lauded as an “excellent antitrust lawyer” and “is singled out for her expertise in complex antitrust cases”.

Questions & Answers

Elizabeth is a senior partner and the group leader of Gilbert + Tobin’s Competition + Regulation group. She advises on a broad range of cutting-edge competition law issues, including mergers, enforcement litigation and investigations, and ongoing strategic/operational advisory work. She has a particular focus on multijurisdictional matters. Prior to joining Gilbert + Tobin, Elizabeth was an antitrust lawyer in New York. She was recently awarded “Partner of the Year – Competition, Regulation and Trade” 2020.

Describe your career to date.

I would describe my career as an adventure. Along the road I have tried to make the most of opportunities that have come my way, supported by some wonderful mentors and amazing, dedicated and clever team members. When I finished law school I worked at the Federal Court as a judge’s associate (judicial clerk) for a year. That’s where I first fell in love with competition law. A couple of years later, I headed off to NYU, to study antitrust with Professor Eleanor Fox. Professor Fox is a real inspiration, and really taught me how a critical, close analysis of the facts is in antitrust, and also the value of comparative approaches. After NYU, I was offered a position at Weil, Gotshal & Manges, where I worked with some great lawyers on some fantastic cases. Winning summary judgment and again on appeal in the American Airlines predatory pricing case commenced by the DOJ is a highlight. Eight years later, on my return to Sydney with two small children in tow, I started working at Gilbert + Tobin. I have been blessed to work with outstanding competition lawyers, and wonderful mentors, in Gina Cass-Gottlieb and Luke Woodward. We also have an incredible team of great lawyers and I am privileged to have worked on some fantastic cases with them, including the first set of criminal cartel cases in Australia, complex transactions in healthcare, financial services, digital platforms, agriculture and beyond.

How have the skills needed by a competition lawyer developed since you first began practising?

Competition law has become increasingly international in outlook, and also in scope, so it is important to have a multi-jurisdictional perspective on how the same issue might be analysed across jurisdictions.

How should companies measure the risk of follow-on damages when applying for leniency? 

It is always a risk as immunity in Australia provides no exemption from private damages claims here, so definitely needs to be weighed. On the other hand, if a criminal conviction is the potential alternative, that is a pretty strong incentive to seek immunity. The ACCC’s recent tightening of criteria for applying for immunity does, however, make it more difficult to apply, as the applicant essentially has to admit to engaging in cartel conduct, whereas previously, a company (or person) can seek immunity if the conduct may have been cartel conduct. Given the significant challenges to proving a breach under Australian law, it is a very difficult assessment for a board to make an application for immunity.

In what ways is AI transforming investigations in the competition space?

In the age of ever-increasing storage of digital data, AI is allowing enormous reviews to become manageable by enabling the model (once trained by our lawyers) to identify (iteratively) documents that are likely to be responsive, thus reducing the documents that need to be manually reviewed.

To what extent has covid-19 affected competition litigation, and how are you navigating these challenges? 

I have a six-week trial coming up that will take place via MS Teams. We are currently setting up a remote courtroom at Gilbert + Tobin to enable our team to coordinate with others.

What impact has the ACCC’s covid-19 taskforce had on the competition matters you handle?

The ACCC has done a great job during this period by recognising the need for urgent consideration of several proposed industry collaborations that have required authorisation.

How are changing thresholds for merger review affecting the competition market?

As Australia is a voluntary filing regime, there are no precise filing thresholds. However, the ACCC’s review of transactions has become increasingly in depth, taking longer and frequently requiring the production of a very significant volume of documents. What this means is that clients have to factor in more time for the review process prior to completion.  

What can be done to improve diversity in antitrust?

Diversity is incredibly important in our workplace, to make sure we are harnessing the most talented people, but also to ensure that our workplace reflects our clients and society more broadly, and ensuring we consider a range of perspectives on an issue. Role models are incredibly important. In terms of gender diversity, I have been fortunate enough to benefit from some strong female role models, who inspired me and showed me what was possible. Flexibility and tolerance for different ways of working is also important. This period of working from home during covid-19 has definitely demonstrated that, if set up properly, working from home can frequently be more efficient. 

Global Leader

Competition 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Elizabeth Avery offers “smart advice about how to best engage with the ACCC on complex and significant competition law issues”, as well as “top-level knowledge of the law and best practice in competition matters”.

Peers and clients say:
"Very smart and well-experienced."
"Elizabeth is an excellent antitrust lawyer."
"I had the chance to work with her in the Elanco/Bayer deal and she is singled out for her experience in complex antitrust cases."
"Smart advice about how to best engage with the ACCC on complex and significant competition law issues."

Biography

Elizabeth is a partner in Gilbert + Tobin’s competition and regulation practice.

Elizabeth brings a depth of experience that includes seven years practising antitrust at the leading US firm Weil, Gotshal and Manges LLP, to the conduct of major multi-jurisdictional mergers, litigation and investigations.

She was the lead lawyer advising Anheuser-Busch InBev NV/SA in successfully obtaining unconditional Australian merger clearance for the proposed global merger with SABMiller, the largest beer merger in history and one of the largest corporate takeovers ever. The matter was awarded Matter of the Year at the 2017 GCR awards. 

Elizabeth is a relationship partner for Westpac and advises them on a wide range of competition-related matters, including the ACCC inquiry into residential mortgage products, and the Productivity Commission inquiry in competition in banking, among other matters.

She is representing NSW Ports in high-profile proceedings commenced by the ACCC in connection with the terms of the privatisation of Port Botany and Port Kembla.

She is also currently advising Microsoft in relation to the ACCC digital platforms inquiry. 

She also has significant experience in relation to criminal cartel cases, and currently represents K-Line in the first group of criminal cartel prosecutions in Australia.

She provides ongoing advice to a range of clients including Westpac Bank, ASX Ltd Anheuser Busch InBev/CUB, BlueScope Steel, Carnival Australia, Graincorp, Microsoft, Maersk and Svitzer on a range of competition and regulatory issues. 

Elizabeth’s global reputation is recognised through her appointment as vice president of the American Bar Association’s international antitrust committee and she is regularly invited to speak internationally on Australian competition law.

Elizabeth has great depth and breadth of experience providing financial services regulatory advice and is frequently sought out for strategic advice in complex matters as well as providing thought leadership insights. Elizabeth is recognised as a leading lawyer in major legal directories and currently ranked as the leading competition practitioner in Australia (Who’s Who Legal 2018).

National Leader

WWL Ranking: Recommended
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