The Nuances of Antitrust Law

Antitrust law is complex, demanding a clear grasp of its nuances, especially in identifying permitted versus prohibited conduct. In this episode, SharkCast host Kent Schmidt interviews fellow Dorsey Partner Tony Badaracco about the evolving landscape of antitrust law. With new decisions and emerging trends, staying informed is crucial.

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Transcript

Voiceover

Welcome to another episode of the SharkCast on litigation risks management where we explore why businesses are so frequently sued, and how to mitigate and navigate the dangers lurking in these risky waters. Join us now as we welcome our host Kent Schmidt, Litigation Partner at the law firm of Dorsey & Whitney.

Schmidt

Welcome to another episode of SharkCast. Today we’re going to tackle the challenging and somewhat daunting topic of antitrust law. US antitrust law is one of the more complicated areas of the law. It can be a challenge for in-house counsel, and others tasked with keeping a client out of trouble, to understand the nuances of antitrust law, specifically, what is permitted and what is prohibited conduct. Even for a seasoned practitioner, the details and specific types of agreements and business practices can present a challenge. It’s a recurring, evolving area of the law, with new decisions coming out, new trends developing, and so staying abreast on the recent changes is also a significant task. To help us understand some of these big pictures and start to tackle some of the subject matter, I’m pleased to welcome to SharkCast, Tony Badaracco. Tony is a partner in our New York office and a significant part of his practice deals in this area of law. So welcome to SharkCast, Tony. It’s a pleasure to have you here to help us understand US antitrust law.

Badaracco

Well, thank you, Kent. I find antitrust to be fascinating and I’m happy to speak with you about it today and hopefully we can unpack some of those issues you’ve identified.

Schmidt

Excellent. You know, why don’t we begin with some broad observations. You and I have discussed antitrust law in broad strokes before and I think we agree that part of what makes this such a challenging area is that it’s controlled by very broadly worded statutes that were enacted well over a hundred years ago in most instances, and the legislature, congress or state legislatures, make these broad statements and then they leave it to the courts to try to figure out the details later on of what’s prohibited, what’s permitted, essentially what they meant, and that makes it very much a decisional driven area of the law as opposed to other areas of law where you can go and find the very precise answer by digging deep into the regulation. You can find the very specific answer in a very definitive manner to the question you’re asking. It becomes more challenging to try to figure out what’s analogous to the situation you’re dealing with by applying US decisions. Can you begin our discussion here by talking about that topic as well as the unifying theme or objective of antitrust law when you’re first approaching an antitrust problem?

Badaracco

Yeah, happy to. I think that’s a fair characterization. So antitrust is sometimes referred to as an example of statutory common law. Now statutes and common law are two different things. So what does that mean? You know, some areas of law are kind of Rules based or Code based. I mean, my understanding of the way that our tax lawyer colleagues work is that as you suggest, they look to the Code and a lot of the time there’s an answer, a kind of specific answer to address what’s supposed to happen in a specific area.

Schmidt

As well as some of our European Civil Code jurisdictions as well that aren’t based on the common law.

Badaracco

That’s also absolutely right. Other areas are driven really entirely by the common law. You and I, Kent, both spend some time litigating breach of contract matters, and that’s something where you really just have to look at what the courts have said over the years to figure out what the law is. Antitrust is a little bit of both. So, the Sherman Act, which is kind of the foundational law in the United States in the antitrust world, really says two things. One, contracts combinations and conspiracies and restraint of trade are unlawful, and two, monopolization or attempted monopolization is unlawful. There are a couple of other odds and ends in other parts of the law, but those are really the two kinds of foundational statutes. And if you’re a business trying to figure out how to comply with the law and avoid investigations and costly lawsuits in 2024, there’s a lot of work to do to go from that basic language to figuring out whatever complicated distribution structure or pricing plan or competitor collaboration or whatever else you’re considering doing is lawful or not. And I guess, I think what I would say is what it really comes down to, that kind of the lodestar, the guiding light in antitrust is always the notion of competition. So, kind of the philosophy behind antitrust law is that competition is good for consumers and it’s good for the economy overall because when businesses have to react to what other companies who are trying to eat their lunch do, the result is you get more competitive pricing offers, you get better service, you get more innovation. And so, the basic idea underlying antitrust laws is that competition is good and anything that deprives consumers and the economy of competition is bad. Now again, what that means in practice? Well, there are a whole lot of details to be worked out, but that’s a lodestar.

Schmidt

And before we get into some of those details, I want to talk about sources of litigation. You know, in my book on litigation risk, we talk about the five C’s of litigation and we do touch on antitrust law, although not in great detail, and we put it under the C, which is competitor claims, which I think is a fair place to stick antitrust law because as you say, competition is the guiding principle and so your competitor can bring a claim against you for violating antitrust law. In fact, that’s probably where most of these civil litigation claims come from, but you can also have lawsuits brought by consumers who claim that they do not have the choices that they’re entitled to under antitrust law, so that’s another of the C’s, and then another of the five C’s is contract claims. Contract provisions can be invalidated as illegal, unlawful, because they’re in violation of antitrust laws. So, you start covering a number of different C’s of the sources of litigation. On top of that, you have state antitrust statutes as well as federal. They don’t always align perfectly, and then of course you have the additional challenge of government enforcement. It doesn’t have to be civil litigation. The public prosecutor, whether it’s the US attorney or the justice department or state enforcers, can bring these claims. It is a widely varied area of the law where you have to have your eye on a number of different sources of litigation, sources of the law, both decisional and statutory, and then on top of all that you have treble damages and significant penalties that can attach. So, that’s probably a pretty good beginning compelling case for why understanding antitrust law is important. Can you talk to us now about a general framework for approaching a discussion of antitrust law and putting these various theories into the various buckets of antitrust violation?

Badaracco

Sure. Let me just pick up on what you just said a little bit and say that I agree with everything you’ve just said. There are a lot of different sources of antitrust complaints and issues, and I’ll just add one more, which is international enforcement authorities. If you’re a company that manufacturers domestically and distributes domestically and that’s it, then you probably don’t have to worry too much about what happens outside of the United States. But if you’re a tech company that offers an app or a software product or something else to people all over the world, you’ve got to pay a lot of attention to what the European Commission’s doing and the CMA and the UK and several jurisdictions in Asia and Latin America that are very active these days. And by the way, they communicate with each other, the Department of Justice and Federal Trade Commission are in the habit of speaking regularly with their counterparts around the world. So, in terms of how to think about this, there is a framework that the courts in the United States have used for a long time in providing guidance on what’s lawful and what isn’t. So, I started off by saying that the two basic statutory provisions, Section 1 and Section 2 of the Sherman Act, say nothing other than that contracts combination and conspiracies and restraint of trade are unlawful and that monopolization and attempted monopolization is unlawful. Any contract between one company and another company is a contract combination or conspiracy in restraint of trade because if you decide to do business with someone else in the marketplace under specific pricing terms and under a specific time term and under other terms you’ve restrained trade in some sense. I don’t think there’s any doubt about that. Really for more than 100 years since the beginnings of US antitrust law, the courts in the United States have put kind of a judicial gloss on the language that doesn’t actually appear in the statute, and that’s the word reasonable. Since the very beginning, courts have found that the antitrust laws in the United States only prohibit unreasonable restraints of trade, and over time we’ve kind of evolved to have two pathways that you can go down in trying to figure out whether something is lawful or not. One is that there are certain types of conduct that regardless of the structure of the market, regardless of the party’s intent, regardless of almost anything else, where you see these types of conduct, there’s an antitrust violation. So, we use the term per se in the antitrust world. There are certain things that are per se unlawful. The most obvious, most famous one that I think a lot of business people are familiar with is the notion of price fixing. So, if you call up your direct competitor and agree that you’re going to sell prices, sell your products rather at exactly the same price that your competitor is selling at, that is an antitrust violation no matter what, and the court doesn’t need to know anything else about how you got there or what the conversations look like or what the impact of those conversations are. If you agree to fix prices with a competitor, it’s an easy case, put it that way. And then there are certain other things that kind of look a lot like price fixing and maybe have the same ultimate impact. If you agree not to compete for certain categories of customers, if you agree to fix or rig bids that you make for a certain type of business in the marketplace, and then certain other things that just kind of look a lot like an agreement on price or the terms of sale. Those things are per se unlawful.

Schmidt

And is the per se rule the same whether it’s a civil claim or it’s a claim brought by the government?

Badaracco

Well, the government brings both civil cases and criminal cases. The Department of Justice Antitrust Division has criminal antitrust authority, and it also has civil antitrust authority alongside the Federal Trade Commission. And historically, the Department of Justice only brings criminal cases that are aimed at matters that are within the boundaries of what courts have found to be per se unlawful. So in that sense, yes, there’s a lot of overlap between the two concepts. The things that are prosecuted criminally are the same categories of conduct that we just talked about, it’s price fixing, bid rigging, customer allocation, things like that. When you get outside of the per se world, there’s just a whole universe of types of conduct that courts think about under what’s called the rule of reason. And when you’re in that world, that’s where you start to see questions about what the parties intended to do, what the likely impact of a certain type of conduct is, how many competitors or customers are going to be impacted by this conduct, how much competition is foreclosed, and those are complicated questions. Those are the kinds of questions when they come up in litigation, where both sides have to hire an economic expert, probably have to hire an industry expert, litigation tends to be long, drawn out, complicated and expensive, and so these are more difficult cases to win and much more complicated cases.

Schmidt

So the rule of reason is applicable to price fixing as well as other areas of antitrust law?

Badaracco

Generally no, but with one caveat. So, price fixing between competitors or between companies that are in what’s known as a horizontal relationship with each other because they’re kind of in the same segment of the market. They’re either selling directly to customers or they’re manufacturers that compete with each other. That’s per se unlawful no matter what. What’s sometimes called vertical price fixing or agreements on price between manufacturers and distributors or distributors and resellers is a little bit different. There, at least as a matter of federal law, it’s a rule of reason question, because as the courts have found over the course of the last couple of decades, sometimes there are good reasons for companies that are in a vertical arrangement with each other to talk about price with each other. Sometimes when they do that it makes it easier for a reseller to be comfortable making investments and selling more effectively. Sometimes it allows for more effective inter-brand competition, so competition between one manufacturer and then the various companies that are helping sell its products and manufacturers and resellers of competing products. Sometimes there are intellectual property reasons why it makes sense to allow for these kinds of conversations. In a vertical relationship, you have a lot more leeway, or at least sometimes there are good reasons to have conversations, than there are horizontally. When you talk with the direct competitor about price it’s really, really, really dangerous.

Schmidt

Can you give me some examples of a conversation or communication with a direct competitor about price that a company may feel instinctively is permitted because we’re not price fixing but getting awful close to the line and would potentially expose you to very significant antitrust violations.

Badaracco

Yeah, that’s a great question. So, and I’m going to answer that directly. But first let me make kind of a slightly different point. I think everybody knows, I think any savvy lawyer, and I think just about any business person, knows that if you have a conversation explicitly with your direct competitor about fixing prices or not competing for each other’s customers, that that’s wrong. And you might think they’re classic examples when this happens. I don’t know if you’ve seen the movie The Informant, it’s probably about 20 years old now at this point, with Matt Damon about the lysine cartel from a few decades ago now, and there was video of people in literally a dark smoke-filled room agreeing with each other on what prices they were going to charge. And at one point, one of them says oh, what if the FBI hears us, and then everybody in the room laughs. You know, because they know that they’re breaking the law when they have a conversation like that. I don’t think that’s what usually happens, though. That’s not the most common fact then. I think what’s much more common is kind of an informal conversation that’s kind of on the margins that where maybe people don’t necessarily realize that they’re talking about something that would be per se unlawful. Let me tell you how this might play out. A lot of companies are members of trade associations. Trade associations, by the way, are perfectly lawful, and they do all sorts of good work that’s critical for our economy. I have some trade associations that are my clients, and I’m happy to work with them. But there’s always danger when you get together with people from competing companies, and what can happen is that maybe you have a formal agenda of topics that are perfectly lawful and reasonable and pro-competitive, but then there’s a there’s a coffee break in between sessions, and during that coffee break, maybe outside of the room, maybe you have sales people or CEOs or senior executives from two companies that compete with each other, and you know, they have a social conversation about something that doesn’t have anything to do directly with work, and then maybe they get into a conversation or one of them says, oh boy, I’m really, I’m seeing a lot of pressure in, you know, this region of the country, I’m really having a lot of trouble there, I’m getting some more, you know, new competitors are entering, business is hard. And maybe the other one says, yeah, you know, I’m actually kind of seeing something similar in this other part of the country where I’ve, you know, my company’s kind of focused historically. And then, maybe they say, well, what if we just sort of back off of each other a little bit and I’ll kind of focus on this segment and you kind of focus on that segment and it’ll be better for both of us.

Schmidt

So they’re not discuss, to be clear, they’re not discussing price, they’re discussing markets and competition with one another.

Badaracco

That’s exactly right. And what I can tell you with great confidence is that if there were a lawyer from the Department of Justice Antitrust Division or, you know, an enterprising creative plaintiff’s lawyer who happened to be, you know, right around the corner and overhear that conversation, that person would take the position that what just happened was a conversation that restricts competition and that gets into the nature of the terms of marketing and sales that the two companies are entering into. So, if Company A agrees not to go after customers and Company B’s kind of best territory, and vice versa, well, then you know, competition is a little bit less intense for both of them and they’re just not going to have quite as much incentive to innovate and to offer promotions and to, you know, respond to customers concerns and things like that. And that’s the kind of thing that absolutely does happen. And by the way, it doesn’t just impact the two companies that were involved in that conversation. The trade association that put on the event and, you know, that may very well have hired counsel, but maybe somebody wasn’t listening to that conversation out in the hallway, could be named as a defendant in the case, or if not that could at least get a subpoena and have to produce documents and make somebody available for a deposition and get involved in something that it doesn’t want to have anything to do with.

Schmidt

For facilitating this anti-competitive agreement?

Badaracco

Exactly. And so, it seems to me that everybody has an interest in making sure that conversations like that don’t happen.

Schmidt

Well, it’s very interesting because I’ve had so many cases over the years where a significant part of the facts relating to the case occurred at a trade show. I mean, we’ve had, you know, cases involving, you know, NDA violations and people starting to get together to engage in some sort of joint venture and then it falls apart and they, but they had a sneak peek at the others and now they’re competing against them, you know, obviously a lot of other types of discussions and agreement occur at these trade, a lot of business is done at these trade associations and so I suppose the word to the wise for in-house counsel is be aware of who’s going off to trade associations, particularly those that are in senior management, have knowledge of strategic plans, but even those that are just far less aware of some of these issues. Trade association conventions are fraught with all sorts of risk.

Badaracco

Yeah, I really don’t want to bad mouth trade associations or trade shows because there’s a whole lot of good and reasonable and entirely proper business that gets done there too, from standards development to joint lobbying to just all sorts of things that the law is very clear are completely legitimate and healthy and not unlawful in any way, but I agree with you. Every company ought to be keeping track of which trade associations the company and its employees interact with. Particularly those where they’re C-Suite or senior salespeople attending and anybody who goes to trade show meetings should probably be meeting beforehand with in-house counsel to talk about how to take a relatively small number of, I think fairly easy steps to significantly reduce the risks associated with this sort of thing.

Schmidt

Before we move away from price fixing and allocation of markets, can you talk a little bit more about what you referred to earlier as this vertical situation of a manufacturer, for example, setting the price or minimum price for the resale and what the current state and federal law is on that, which is something that’s pretty common.

Badaracco

Sure. So, manufacturers might have any number of different reasons to want to set minimum prices for the sale of their products. Some companies are in a kind of a luxury brand space, and just for customer perception reasons, it can actually be helpful for prices to remain relatively high. Some companies want their distributors and retailers to really feel like kind of partners in the relationship, and to be sufficiently incentivized to invest time and resources in promoting the sale of the manufacturer’s products. There may be other reasons too. Historically until 2007, as a matter of federal law, it was per se unlawful for a manufacturer and its reseller or distributor to agree on the price for resale of the manufacturer’s products, but the law has changed. Since 2007, as a matter of federal law, those sorts of conversations about price are now subject to the rule of reason. They’re not automatically lawful, but they’re no longer automatically unlawful. And so, if a manufacturer has got good reasons for talking about these sorts of things, it’s often fine as a matter of federal law. But to go back to the very first thing that we talked about today, Kent, in addition to federal law, not all 50, but 40-some of our states have their own antitrust laws, and under the laws of a few states, including the one in which you said, in California, the states continue to take the position that conversations about price, even when they’re vertical in nature, between a manufacturer and its reseller are per se unlawful. But that’s not the end of the story, because in the price fixing regime under Section 1 of the Sherman Act, you have to have an agreement. If there’s no agreement, there’s no violation of Section 1 of the Sherman Act or it’s state law corpus. So, for at least 100 years now, the Supreme Court of the United States has been clear that there’s a way to have conversations about price. You just can’t do it through an agreement. If you’re a manufacturer and you have a valid reason to want to keep minimum prices at a certain level, you can unilaterally announce to your resellers and distributors that here’s our list of minimum prices. It’s up to you because this is our unilateral policy, it’s up to you to decide whether you’re going to comply or not, but if you don’t, we’re going to terminate you and you’re not going to be able to sell our products anymore.

Schmidt

That’s not an agreement.

Badaracco

It’s not an agreement. So, even though it might feel like you’re getting to the same place, the point is, the other party still has a choice whether or not to comply, and as long as that’s true, as long as there’s no agreement, that sort of unilateral policy is perfectly legal under federal law and under the law of every state.

Schmidt

This is a great example of what I was talking about at the beginning, that antitrust can seem counterintuitive because if you can’t have an express agreement, but you can have the arrangement you just discussed, it seems six in one hand, half a dozen in another.

Badaracco

Well, Kent, let me push back on you very slightly on that, and you use the word arrangement. So, an agreement is an agreement, but there’s some case law including from California making pretty clear that even where you have a unilateral policy, as I described that would be lawful, if the reseller and the manufacturer then engage in back and forth communications, maybe the reseller tries to negotiate the prices a little bit, and then there are emails back and forth about where parties are gonna land, or maybe the reseller takes that unilateral policy, signs it, and says okay, I hereby agree and sends it back to the manufacturer. Then you have something that looks a whole lot more like an agreement. So, part of why this is an interesting area for an antitrust lawyer to work on is the implementation is just as important as the starting point. So, I can help a client write up a perfectly lawful unilateral pricing policy, but if the client then gets into conversations with its resellers and distributors about it that look a little too much like an agreement, well, we haven’t accomplished anything and there might be a problem.

Schmidt

I appreciate what you just said because I keep running into this concept in not just antitrust, but in many, many areas where I just want to use this to emphasize this. Policies are great. Policies are important. You got to have the policy, but policies are not self-executing and having the best policy in the world, whether it’s sexual harassment, you know, Foreign Corrupt Practices Act, antibribery, you know, your ethics, your antitrust policy, they’re never enough. Vigilance, understanding, engagement, cultural implementation, all of that’s so important, and certainly antitrust law is no exception.

Badaracco

Yeah, and just briefly to kind of put sort of two points on top of what you’ve just said, which I agree completely with. You know, if there’s an announcement of a policy that comes out of an antitrust compliance policy, but it’s not clear that the CEO of the company cares about making sure that everybody complies with this, it’s not gonna work. Compliance has to start at the top, that’s point one. And then point two, you have to think about incentives and kind of the logistics of how people do their jobs. So when I’ve worked with clients to put in place pricing policies like what I’ve described, one thing that I always do is encourage them to set up an e-mail address that’s something like pricingpolicy@companyname.com, and make clear that any communication from a reseller or distributor that has anything to do with this policy, has to go to that e-mail address alone and it goes automatically to whichever lawyer at the company that’s responsible for ensuring compliance. So that the sales director, somebody who’s incentivized to just increase sales as much as possible, can’t unilaterally have conversations about something that might get the company in trouble, so that it has to go through a lawyer who has responsibility to make sure that the company is compliant. And I think that’s critically important.

Schmidt

Absolutely, couldn’t agree more. So can we just touch on maybe a few other areas that you’re seeing where a company can go down a path, whether it’s a policy, a practice or just an isolated transaction that at first blush wouldn’t seem like perhaps it deserves antitrust scrutiny, but they would be well advised to think about this practice policy or business endeavor from an antitrust standpoint.

Badaracco

Sure. So, so let me highlight one that’s been in the news lately, and that is noncompetes and nonsolicits. For a long time, I think companies particularly with senior executives and with people who work a lot with trade secrets and other kind of highly sensitive company information, companies have relied on noncompete agreements in the employment contracts that those people sign. As I think a lot of our listeners will have heard just by sort of reading the newspaper lately, the federal antitrust enforcement agencies have really started to crack down on noncompetes and nonsolicits in a significant way. So, for several years now, the Department of Justice has announced that it views noncompetes, nonpoach, nonsolicit agreements between competitors, as per se unlawful. That’s a relatively new development, and the Department of Justice has actually been bringing criminal cases directed to companies who’ve been reaching those agreements. More recently, the Federal Trade Commission announced the rule that would ban essentially all noncompetes nationwide going forward, and that would invalidate existing noncompetes. So that’s interesting for a couple of reasons. One, I think if you’re a company, you need to go back and look at your existing noncompetes that you’ve been relying on. Maybe years ago now at this point, you signed an employment agreement with someone who’s now your CEO, your COO, your CTO, and you’re relying on that to make sure that if that person leaves the company, that you’re most sensitive company information and secrets aren’t gonna leave along with that person and go to your competitor. Well, the FTC is saying that it doesn’t think you can do that. So, first of all, I think there’s a risk that companies entering into noncompetes are gonna see lawsuits where employees are taking the position that their advancement opportunities have been limited by these things and that they’ve been damaged, but I also think companies need to think about enforceability risk. The idea that you just can’t count on being able to enforce a noncompete or nonsolicit going forward the way that you used to, and you really ought to be thinking about other tools that you can use to get to the same place. Maybe you need to strengthen your nondisclosure agreements, maybe you should be thinking about retention bonuses and policies and other things that you can do to prevent your highly sensitive company information from going out the door to your competitor.

Schmidt

That’s a very important area. Anything else relating to lawsuits that we’re seeing brought under antitrust laws that are brought by consumers relating to impact on their consumer choice, their options, the pricing, that you think represents a wave of litigation or trends in litigation?

Badaracco

So customers for longer than I can remember have been bringing antitrust lawsuits alleging that they’ve been overcharged, and this happened specifically when the government brings a big antitrust case, you’re guaranteed to see treble damages, consumer class action cases get filed shortly thereafter. So just last week the Department of Justice filed a lawsuit against Live Nation related to its acquisition of Ticketmaster years ago. Well, very shortly afterward, we saw a class action filed on behalf of consume, actually a number of class actions filed on behalf of consumers alleging that they’ve had to pay too much, essentially, because of the collaboration between Live Nation and Ticketmaster, and I think we’re gonna continue seeing cases like that. If you’re a plaintiff’s lawyer, this sort of case is pretty appealing, because if you win, your client gets threefold its actual damages, and you get back your costs and attorney’s fees as well. So even a rule of reason case that might take 10 years to litigate can lead to significant damages awards that get trebled and that also involve the plaintiff getting its fees reimbursed, and because those incentives are so strong, defendants who get hit with rule of reason antitrust cases have to think pretty seriously about whether to settle early, even for significant amounts, rather than deal with the case that could take many, many years, potentially tens of millions of dollars of fees and an unknown outcome.

Schmidt

So as we start to wrap up this conversation about antitrust law, if you were to encapsulate your entire message on antitrust vigilance in a couple of sentences, what’s the main take away for in-house counsel grappling with potential antitrust liability?

Badaracco

Anytime that you’re thinking about some sort of a collaboration or an agreement with your direct competitor, it’s just fraught with peril and you have to think really seriously about that, but even outside of those sorts of agreements, anytime that somebody wants to talk about price or terms of sale or anything that tends to implicate the antitrust laws, speak with your in-house counsel about it, because an ounce of prevention is worth a pound of cure.

Schmidt

Well, Tony, we’ve reached the end of our allocated time to talk about these interesting antitrust concepts and advice relating to antitrust compliance. At this point in our show, we like to do what we call the deeper dive and learn a little bit more about you as a person outside of your practice. So why don’t I ask you a couple of questions, beginning with what you do to manage stress as a busy lawyer with an expanding practice? How do you manage stress with various activities and things in the evenings, and weekends or the mornings, early mornings to keep your head above water?

Badaracco

Well, for a long time now I’ve been a runner, so I love just going outside. I never bring music with me. I never put any headphones in or anything else. I love to just go out and run because it burns calories, but I also just find that it clears my head out and I tend to do some pretty good thinking after I do that.

Schmidt

You like to hear the sound of your feet on the pavement.

Badaracco

Well, I live in New York City, so it’s that along with you know, taxi horns and people yelling at each other and who knows what else, but that’s right. You know, another thing I’ve actually started doing in the last year or two is a very brief daily meditation. So, I actually, there’s an app that I use and it’s just five minutes a day. It’s nothing too intense and I tend to do it at night after dinner, and I just find that it helps to kind of calm my mind down and help me refocus a little bit and get in a good space before trying to go to sleep. I’ve really gotten a lot of value on that, and I think it’s probably going to be a lifelong habit.

Schmidt

And I recall year and a half or so ago, I might be off, you being on paternity leave, so you have a family and that adds to the joys, but also adds to the stress as well. How many children do you have?

Badaracco

Yeah, just one and as far as I’m concerned that’s plenty to keep me busy. My son is 18 months old. Sometimes just being able to take advantage of a little nap here and there is worth about as much as anything else too.

Schmidt

Yeah, for sure. Let me ask you another question I’ve asked other guests on SharkCast before. If you weren’t a lawyer today, where could you conceivably see yourself career-wise?

Badaracco

Well, when I was a kid, I always wanted to play first base for the New York Yankees, and it didn’t take me too long to figure out that I just wasn’t good enough for that to be an option. The other thing that I love doing, really for much of my life, is playing music. I played saxophone and clarinet and bass clarinet, and you know, I really pursued that for quite a while and then similarly sort of realized it just wasn’t quite good enough to really hack it professionally, and so I was gonna be either a lawyer or an engineer. I started off in college studying mechanical engineering. I always kind of liked putting things together and taking them apart again and I think if I weren’t practicing law, I would probably be doing something in that field.

Schmidt

Interesting. What’s interesting with that background and interest that you end up being an antitrust lawyer and not a, you know, patent lawyer so, but a lot of those people that have those interesting gifts end up in that area of the law. All right, last deep dive question, is there any hobby or skill that if you had time, perhaps over the next decade or so or beyond, you would like to tackle and learn and make part of your life that as of right now, you just haven’t had time to tackle?

Badaracco

Well, there are two things that I’d like to be doing more of. One, I do some and I love playing tennis and I play whenever I can. The other thing that I’ve always wanted to do and thought that I would do if I had a little space and maybe someday if we get a place outside the city, I’ll take up, is woodworking. I just love tables, chairs, other stuff made out of pieces of wood, and I’ve always thought, boy, it would be fun to be able to, you know, set up shop in a garage and just try building things and see how good I can get at it. You know, I live in an apartment in the city right now and so it’s just not something that I’ve that I’ve really taken on, but it’s always kind of been there in the back of my head and I think someday I will.

Schmidt

That sounds like a nice change of pace from antitrust analysis and antitrust litigation. So couldn’t, I suppose it couldn’t be more in contrast to the work you do day in and day out each day. So that’s probably key.

Badaracco

I think that might be part of what’s appealing.

Schmidt

All right. Well, thank you so much, Tony, for being our guest here today. I know I’ve enjoyed this conversation from beginning to end. It’s always fascinating to think about these areas of law that are continuing to change and evolve with each passing week and month, as new decisions are released by the courts, nuances of antitrust law continue to emerge. So, thank you for being here, and I really enjoyed our conversation.

Badaracco

Very good. Well, thank you, Kent. My pleasure.

Schmidt

With that, I’d like to thank you, our listener, for being a part of SharkCast today. As always, I’m indebted at the extraordinary team at Dorsey for making this podcast and episode possible. For more resources on this and other litigation risk, go to litigationrisks.com, where more information can be found, including a book on managing litigation risk written by yours truly. Until next time my friends, this is yet another reminder that there are a lot of sharks swimming out there in the murky waters, so please swim safely.

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