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 do you enjoy most about working in competition law?
The opportunity to encounter new businesses, industries, technologies, and dig into what makes them work. Competition law is rarely boring! I also enjoy the international dimension of modern competition law and the opportunities to work with practitioners and regulators in a variety of jurisdictions.
How has your work in the digital platform space changed over the past five years?
The digital economy has introduced a whole range of different business models and complex interactions between digital companies and more traditional businesses, such as news publishers and advertisers. Much of the digital economy relies upon different concepts of value exchange that often do not fit well into the traditional price/quantity-based models underlying most antitrust enforcement. All of this has led to an explosion of antitrust work – such as representing both digital and traditional companies in government investigations and market inquiries, participating in responses to government and academic reports, and defending class-action and other private litigation here in the United States – some of which I have been privileged to be a part of. The work is fascinating and challenging. It also tends to place practitioners on one side of the line or the other in their positions on broader policy questions about the purpose and direction of antitrust law.
How does your work on the ABA Antitrust Section’s Competition Law Standards Task Force enhance the skills and knowledge you bring to your private practice?
Over the last several years, questions about the adequacy of existing competition laws and calls for an overhaul of the current system have achieved increasing prominence. The debate has expanded beyond antitrust academicians to the political sphere and is being played out in industry investigations in many jurisdictions, as well as enforcement actions against large internet companies. The ABA’s Competition Law Standards Task Force was set up to analyse the wide variety of viewpoints around these issues.
Being involved in this work has been a great experience. It has given me the opportunity to delve deeply into the various theories and ideas around the benefits and drawbacks of the consumer welfare standard and engage in conversations with thought leaders with diverse views. Bill Baer, Maurice Stucke and Marshall Steinbaum were just three of the thought leaders whom I got to interview. I think that having a greater appreciation of the nuances of our system and thinking about what antitrust law can, and should, try to achieve makes me a more effective advocate for my clients.
How has the covid-19 pandemic affected the type of work you receive and the competition space more broadly?
While the pandemic has had a huge impact on the way we live and work, it has not significantly impacted my practice. I continue to work on a variety of transactional and other antitrust matters and address the same range of competition issues as before. What has really changed is the way we interact with clients and regulators. For instance, conducting remote depositions was a new challenge for me.
More generally, as the economic impacts of the pandemic continue to play out it is likely that struggling businesses will look for alliances or acquisitions with other, stronger market participants. This could occur in any industry; however, healthcare is likely to be especially affected. In the past, “failing-firm” acquisitions were rarely approved, and the US antitrust agencies have stated that their approach will not change with covid-19. But we may see that argument raised more frequently, and refined.
What impact will the FTC and DOJ’s newly released vertical merger guidelines have on your clients?
We are seeing more and more vertical deals in the tech and healthcare spaces. I have advised on many vertical deals over the years, but they have typically not raised significant antitrust issues with US regulators. The introduction of formal vertical merger guidelines suggests that going forward, vertical deals will face greater attention and deeper analysis, and potentially more scepticism. Overall, the introduction of guidelines is helpful for us and our clients in setting out a structure to assist in assessing and planning transactions, as well as establishing some expectations about how the agencies will approach vertical deals.
What has been your greatest achievement to date?
While I love practising antitrust law, my greatest challenges and successes have been in bringing up two wonderful kids.
Lisl Dunlop has more than 25 years of experience in antitrust and competition issues, including counseling, 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 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’s wide-ranging international experience includes appearing before US federal and state antitrust enforcement agencies, the European Commission, and UK and Australian antitrust authorities. She has led clients through investigations by multiple competition agencies, and coordinated the multijurisdictional defense 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.