Lisl Dunlop has more than 25 years of experience guiding clients through antitrust and competition issues, including the antitrust-related aspects of mergers and acquisitions, joint ventures and other collaborations, and sales and distribution matters. She also represents clients in antitrust agency investigations, and has represented major corporations in complex antitrust litigations. Lisl has significant experience advising leading US and multinational companies in a broad range of industries, including the media, technology and healthcare sectors.
What inspired you to pursue a legal career?
I didn’t like the sight of blood, so a career in medicine was off the table. But more seriously, I thought of law as a window into how the world works that would provide an opportunity to participate in and influence the world. Competition law in particular attracted me because of the close relationship between practical, real-world problems and the regulatory process.
What qualities make for an effective competition lawyer?
Curiosity about what makes businesses and markets work is a key attribute. The thing I enjoy most about competition law is developing a deep understanding of a wide variety of industries and bringing my expertise to bear on real-life business problems.
How have the US antitrust agencies changed their approach to behavioural remedies since you started practising?
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) antitrust division have always expressed a preference for structural remedies over behavioural remedies, but have traditionally accepted behavioural remedies in vertical cases. Over the past few years, however, the DOJ has expressed scepticism towards behavioural remedies. The principal basis for this opposition is that behavioural remedies place the agency in the role of a regulator – engaging in ongoing oversight and involvement – rather than an enforcer of the antitrust laws.
One high-profile outcome of this approach was the DOJ’s challenge to the AT&T/Time Warner merger, which was ultimately unsuccessful. The transaction was very similar to a deal 10 years earlier between Comcast and NBC Universal, which was allowed to proceed with behavioural remedies. Instead of resulting in a similar remedy, the DOJ challenged AT&T’s acquisition of Time Warner.
Although the FTC has expressed similar concerns about behavioural remedies in public statements, that agency has taken a more nuanced approach, accepting some types of behavioural remedies – such as firewalls to prevent anticompetitive information exchanges – in some recent cases.
The end result is that there is a great deal more uncertainty about behavioural remedies, particularly in vertical deals, making it difficult to predict the success of transactions that raise concerns that could be solved by conduct rather than divestitures.
What differences are you noticing between the actions of state versus federal antitrust agencies?
State antitrust agencies have always been an important part of the enforcement landscape, but typically have undertaken antitrust investigations and enforcement actions in close collaboration with the federal agencies. Since the 2016 election, however, state enforcers have become increasingly vocal and active, and have started to take enforcement actions independently of – and occasionally at odds with – the federal agencies. The healthcare area has recently seen transactions in which a state agency agreed to a remedy to resolve competitive concerns and the reviewing federal agency did not take any enforcement action. More dramatically, several states have brought federal court proceedings to halt the merger of Sprint and T-Mobile, which the Federal Communications Commission and the DOJ have cleared subject to remedies. In addition, a large number of states have joined together to investigate Google and Facebook, independent from separate investigations under way by the DOJ and the FTC respectively.
How is the scrutiny of digital platforms impacting on the work you do?
The digital economy is a huge focus for antitrust enforcers worldwide. The current investigations into digital platforms in the US and elsewhere raise novel issues at the intersection of competition, consumer protection and data law,, as well as the role and scope of antitrust to address market power and other concerns. As well as keeping antitrust lawyers very busy, how these issues evolve will have a broad impact on other industries characterised by swift innovation and network effects.
How do you see competition matters in the healthcare sector developing over the next five years?
There has been a great deal of consolidation in healthcare over the past 20 years, and antitrust enforcement has raised the bar on horizontal transactions, particularly in the provider space. Going forward, I expect to see increasing emphasis on vertical integration as well as more collaborative arrangements focused on improving the healthcare delivery system in the US.
You recently moved to Axinn. What inspired you to make that move and how has it influenced your practice?
Axinn is a fabulous platform for anyone looking to focus exclusively on antitrust law. The breadth and depth of the antitrust practice are unparalleled in the US. The firm is engaged on an array of high-profile, cutting-edge matters in all dimensions of antitrust – mergers, cartels, agency investigations and private litigation. For my own clients, the move provided a deeper bench and access to high-quality attorneys to support their matters. There also are significant synergies in working with other partners who also have extensive healthcare and technology backgrounds and client bases.
What advice would you give to younger lawyers hoping to one day be in your position?
Embrace new ideas and opportunities: travel, people, types of work and industries.
Lisl Dunlop wins commendations from peers across North America who consider her a go-to figure in the market for antitrust-related litigation and transactional matters.
Lisl Dunlop has more than 25 years of experience in antitrust and competition issues, including counselling, litigation and transactions. Lisl guides clients through the antitrust-related aspects of mergers and acquisitions, joint ventures and other combinations, and sales and distribution matters. She also represents clients in antitrust agency investigations and has represented major corporations in complex antitrust litigations. Lisl has significant experience advising leading US and multinational companies in a broad range of industries, including the media, technology and healthcare sectors. For her healthcare clients, Lisl provides antitrust and strategic advice in evaluating value-based payment initiatives, the establishment and operation of ACOs and independent physician networks, financial and clinical integration issues, and other transactions and collaborations. Lisl began her career in Australia, and in addition to the US has also practised in the UK. Her wide-ranging international experience includes appearing before US federal and state antitrust enforcement agencies, the European Commission, and UK and Australian antitrust authorities. Additionally, she has coordinated the multijurisdictional defence of transactions throughout the world. Lisl’s experience in competition matters in a broad range of jurisdictions brings added value to clients that conduct business internationally and interact with different legal systems and regulators.
Lisl’s recent publications on antitrust include the following: Co-author, “New York Attorney General's Cartel Bust Is Just the Beginning” (Crain’s New York Business, June 2018); Co-author, “Net Neutrality: From Rules to Enforcement” (Electronic Retailing Association, December 2017); “Certificates of Public Advantage: Bypassing the FTC in Healthcare Mergers” (Competition, Winter 2017–2018); “Why Amazon's Whole Foods Buy Is Likely to Be Cleared” (Law360, June 2017).
Lisl is a member of the New York State Bar Association antitrust section executive committee and was chair in 2016. She is vice chair of the American Bar Association section of antitrust – mergers & acquisitions committee; a member of the American Health Lawyers Association antitrust practice group and on the 2019 Law360 competition editorial advisory board.
Lisl received her LLM from Cornell University Law School in 1997 and her LLB and BSc from the University of Sydney in 1991.