Top Antitrust Attorney Steven Levitsky Leaves DLA Piper to Open Bona Law’s New York Office

October 22, 2017 | Bona Law PC

We are ecstatic that Steve Levitsky agreed to join us in New York. It isn’t every day that an antitrust attorney of Steve’s caliber becomes available, let alone fits so perfectly into a law firm’s approach, culture, and plans. But that is the happy situation in which we find ourselves.

You can read our press release about the move here.

As you can tell, I am very excited about this next chapter in Bona Law’s history. As you can see, we now have two offices: La Jolla, California and New York, New York.

Bona Law is an antitrust boutique firm. Our client base has been worldwide for quite some time and we have had cases and other matters all over the country. So the move to add a New York office doesn’t change our focus: We have always been a national antitrust boutique firm.

But I think opening our New York office signals to the marketplace more directly that we are a national law firm that competes with biglaw for antitrust. And adding Steve to our team—with his decades of big firm antitrust experience and worldwide client base—confirms our place.

Steve Levitsky’s antitrust experience includes the big three of litigation, antitrust counseling, and antitrust merger work. But what is even more exciting for us is that Steve is particularly known for his antitrust merger expertise, which is an area in which I have much less experience.

Over the last few years, I have heard repeatedly that many companies that have an HSR filing or other antitrust merger issues are frustrated that they don’t options other than big law firms. Well, now they do: Steve has managed the antitrust side of countless complex merger transactions, domestic and global—many of them worth over $10 billion.

So if you are a corporate attorney or business with antitrust merger or acquisition issues, you should contact Steve.

Steve has such an impressive background that he would, frankly, fit in at any law firm. He would substantially raise the average quality of the attorneys no matter where he would have gone. Our traditional press release and website article goes into his background, so I am not going to repeat it here.

I enjoy writing articles for The Antitrust Attorney Blog because it allows greater flexibility in what I tell you. I try to offer some of the informal truths relating to antitrust and law practice that, although vitally important, are not usually discussed so straightforwardly.

So, obviously, adding Steve to our team is a huge deal because he is a great lawyer. But my excitement about this move goes well beyond that obvious point.

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Marketplace Bullying and Bona Law’s Antitrust Lawsuit in the Cement and Ready Mix Concrete Markets

August 16, 2017 | Bona Law PC

Bona Law filed an antitrust lawsuit on behalf of our client in the Northern District of Georgia alleging antitrust violations in the cement and ready mix concrete markets. More on that later.

But first I am going to tell you a fictional story about your nine-year-old son and his first entrepreneurial endeavor. If you don’t want to hear about your son, you can skip to the next section, about Bona Law’s new case.

The Lemonade Stand

You don’t have a nine-year-old son? Well … you do for this story. Congratulations, it’s a boy!

As you know, your son’s name is Johnny. You call him Little Johnny, but he is growing so fast, you are not sure how much longer the “Little” will last. But you treasure these times because they grow up so quickly.

And speaking of growing up quickly, Johnny sure is maturing. You tried to get him to clean-up around the house for an allowance, but he turned you down. He said he doesn’t want to be an employee and taking a job with you will just lead him into the rat race. Why would he want to do that?

Instead, Johnny says, he wants to start his own business. Ownership is where the money is, he says. Johnny wants to build cash flow, so he can just skip the rat race. Smart kid.

Okay, you say, “why don’t you start a lemonade stand?”

Johnny is excited. This is his first business—his first taste of Capitalism!

“Yes, I’ll build the best lemonade stand in the neighborhood, will serve the best tasting lemonade, and will be very careful with my costs, so I can charge a lower price and sell the most lemonade.”

Apparently Johnny has been paying attention to the business podcasts you have been listening to in the car.

As you know, you just moved to a wonderful neighborhood in the San Diego area. After years on the east coast, dealing with the harsh weather and sometimes harsh people, you are excited that you are now in paradise. The weather is incredible all year here and the constant sunshine puts you in a great mood.

Of course, it is tough to move to a new area, especially for kids. Johnny is excited, but a little nervous. He doesn’t know many kids in the neighborhood yet, and doesn’t start school until the fall—it is still July.

You and he have both noticed, however, that the neighborhood has a few lemonade stands—and many thirsty neighbors—so this might be a good way for him to make some friends and get to know the neighborhood.

You help Johnny build a stand, but to his credit he does most of the work—his enthusiasm for the venture has produced a work ethic in him you’ve never seen. You also admire his efforts to plan out his purchase of supplies, opting for Costco so he can buy what he needs in bulk at a low cost per glass (as he explained to you).

Johnny now has everything ready for his business: a stand with an attractive sign, cups, a money box, raw materials to make lemonade, a cooler, a couple chairs for him and his friend (or you, when you want to stop by), and, most importantly, the joy of ownership from starting his own business. You’ve never seen him so happy.

You drive around the neighborhood with him and discover that other kids seem to be selling lemonade at $7 per glass, which seems a little high, but it is a wealthy neighborhood, so perhaps that is the market price? It has been a warm, surprisingly humid summer in San Diego. You discuss with Johnny how that weather pattern increases demand. Of course, it did seem odd to you that everyone was selling lemonade at exactly $7 per glass, but you dismiss it.

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How to Write a Significant Antitrust or Appellate Brief

March 28, 2017 | Bona Law PC

I have written many briefs over the years, since graduating from Harvard Law School in 2001. I have also read many briefs, both practicing law and clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis).

The quality and style of the legal briefs I have seen vary dramatically. And—not surprisingly—the approaches to writing them probably varied even more.

Judge Loken stressed to us law clerks that his job as an appellate judge is that of a professional writer. He communicates his opinions in writing and a clear articulation of that writing is necessary so attorneys, parties, and judges understand the decision that was made and its reasoning. A law clerk might submit a draft opinion that is 10-pages long and receive a revision that is only 3-pages long, but miraculously says everything that needs to be said in a clear, straightforward manner.

From that experience, I learned that every additional word has a cost and that writing sparely is more valuable than writing densely. I’ve also learned that writing less is harder than writing more. (Yes, I know this is an excessively long blog post)

Following my clerkship, I began my legal career as an appellate attorney with Gibson, Dunn & Crutcher in Washington, DC. I was fortunate to have my writing edited—heavily at times—by some incredible appellate attorneys and great writers. This period also informed my approach to brief-writing, as that was what that team did best.

Over the years, I became an antitrust attorney as much, if not more, than an appellate attorney. But both antitrust law and appellate litigation have been my primary practice areas from the beginning and remain so today.

Both antitrust and appellate require attorneys to prepare significant briefing on often complicated and unresolved issues. That is, in fact, probably why I gravitated to both of them.

This is an antitrust blog, but sometimes I write about writing and appeals.

Today I am going to explain how I create a significant antitrust or appellate brief, from scratch. Of course, I rarely do that anymore because it isn’t efficient at my billing rate for clients to pay for me to prepare the papers from the beginning. Fortunately, our team is great at writing and puts together outstanding initial drafts.

At Bona Law, we strongly emphasize writing. As you may have seen, we are interested in adding team members, from junior to senior attorney levels. Strong writing skills are essential.

Everyone has a different approach. My way certainly isn’t the only way and it probably isn’t the best way. But it is one way and is my result of many years of brief-writing evolution.

For purposes of this example, let’s assume that we are preparing an Appellee brief in a federal appeal of an antitrust motion to dismiss in our favor (as defendants). On appeal in federal court, the losing party that appeals is the Appellant, and the responding party that won at the trial level is the Appellee.

Here is the procedural posture (and this is fictional): Plaintiffs filed an antitrust complaint against our client alleging an illegal exclusive dealing arrangement with some of our client’s retailers. We filed a motion to dismiss—perhaps pointing out that the agreements were of a short duration and amounted to no more than competing for the contract (a common argument). The federal district court judge, after allowing plaintiffs a couple opportunities to re-plead following dismissals without prejudice, finally dismissed the case with prejudice. Plaintiffs filed their Notice of Appeal and eventually their Appellant Brief.

Remember, I made that up, so don’t go looking for a case like that.

If I were the attorney assigned to write the initial draft Appellee brief for the appeal, here is what I would do:

The Reading Phase

The first step is that I would read the motion-to-dismiss briefing at the trial court level. If I was already involved in the case, I would, of course, be quite familiar with the briefing, but I’d still read it again.

I would print out a clean version on actual paper, take out a pen (black or blue) and a highlighter (yellow) and read each brief carefully. I would do my very best to look at the arguments from a fresh perspective and would think about each of them from the viewpoint of an appellate review, which in this case would be de novo (so it wouldn’t be different than the trial court’s standard of review, at least technically).

It is easy for your mind to lock into a certain perspective, which is one reason why it is sometimes good to bring in fresh attorneys on appeal.

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I Started The Antitrust Attorney Blog One Year Ago Today

December 13, 2014 | Bona Law PC

One year ago, I wrote my first blog post for The Antitrust Attorney Blog. Time flies. A lot has changed since then. When I started this blog, I was with DLA Piper. Now I am with a firm called Bona Law PC. DLA Piper is much bigger, of course. But Bona Law is a much more pleasant place to work. And it has a better name.

So, you might ask whether I have any observations about a year of blogging? Or whether I have learned anything during this time? As a Minnesotan might say, you betcha.

I like blogging. I’ve always enjoyed writing, as you can probably tell from my publications. But what is great about having your own blog is that you can write about whatever you’d like. I can say what I want when I want. I can write long articles or short articles. It is entirely up to me, not some list of editorial standards. My preferred writing style is not formal (or stuffy, as I like to describe formal writing). Luckily, the editorial board at The Antitrust Attorney Blog doesn’t care. One other observation is that I have written less for other publications. That wasn’t purposeful, but when I get an idea, I typically write it here rather than for someone else. I will probably continue to write law-review type articles for other publications, but most of my shorter stuff will end up here.

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We Filed a US Supreme Court Amicus Brief Supporting Antitrust Lawsuits Against Licensing Boards

August 7, 2014 | Bona Law PC

By Jarod Bona and Aaron Gott

We filed an amicus curiae brief with the U.S. Supreme Court on behalf of We All Help Patients, Inc. in North Carolina State Board of Dental Examiners v. FTC, a federal antitrust case challenging anticompetitive conduct by professional-licensing boards.

Let us tell you a little bit about this interesting case.

The Antitrust Case

The North Carolina Board of Dental Examiners is composed of six licensed dentists, one licensed dental hygienist, and one “public member.” Dentists make a lot of money by offering teeth-whitening services. So when non-dentists started providing teeth-whitening services at a far lower cost, dentists started complaining to the Board about the lower-priced competitors.

Naturally, a Board made up of self-interested private parties had an incentive to do something about it. They began sending cease-and-desist letters to non-dentist teeth whiteners and even went so far as to ask shopping malls to not lease kiosks to teeth whiteners. It wasn’t clear, of course, that North Carolina law limited teeth-whitening services to dentists.

The Board’s actions were, in fact, a conspiracy to restrain trade. The members were competitors that acted in agreement to exclude other competitors. The conspiracy question was not at issue with the US Supreme Court.

The Federal Trade Commission, which has long advocated for “free and unfettered competition as the rule of trade” to protect consumers and economic liberty, issued an administrative complaint against the State Board and ultimately held that the Board engaged in anticompetitive conduct and the state-action immunity doctrine did not apply. The case made its way up through the Fourth Circuit—which agreed with the FTC—and finally to the U.S. Supreme Court.

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The San Diego Daily Transcript Named me a 2014 Top Attorney Finalist for Corporate Litigation in San Diego

August 4, 2014 | Bona Law PC

Most of The Antitrust Attorney Blog entries focus on antitrust and competition law, which I suppose isn’t a surprise. But that hides the fact that I am a business litigator as well. While many of my matters relate to antitrust, some of them don’t.

So I thought this award would present a good opportunity for me to remind you that although I really enjoy antitrust, I can also help you with straight-up business disputes. This includes everything from basic breaches of contract to complex global disputes spanning several jurisdictions. It also includes, of course, appellate attorney work, which I write about from time-to-time.

In fact, my antitrust background gives me a leg-up in business and corporate litigation because I have spent years studying markets: I understand how companies compete in a market, which helps me to quickly grasp how an industry or company functions. This experience improves my ability to incorporate business considerations into my descriptions of various options for the client throughout the litigation process.

Many lawyers look at litigation as a game, to win at all costs, instead of understanding that litigation is just one of several tools to use—offensively or defensively—to develop a competitor’s position in the marketplace. It is important at every decision point to recognize that—unlike the litigator that probably works with a bunch of other competitive litigators that stress winning above all else—the client cares about the result relative to the cost.

Indeed, having my own business has further focused my sensitivity to the client’s perspective. I think I understand the client’s need to find someone that (1) they trust; (2) will pursue their goals, with the overall context of the business in mind; (3) will do great work. That may sound like the typical gobbledygook from a lawyer, but I think most businesses that have had to hire litigators will tell you that those three points are everything.

I started Bona Law PC in March 2014 and it is now August. Time flies. So far so good. I’ve been quite busy and I love the work. Even though people told me that I couldn’t do antitrust outside of a big firm, I have done a lot of antitrust. In fact, we are filing an Amicus Brief to the US Supreme Court this week in an antitrust case.

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We Filed an Amicus Brief to the Minnesota Supreme Court in a Property Rights Case

June 29, 2014 | Bona Law PC

We are proud to announce that we filed an amicus curiae brief with the Minnesota Supreme Court on behalf of the Minnesota Vacation Rental Association last week in Dean et al. v. City of Winona, a case concerning municipal power and the right to rent out one’s residential property.

Four property owners represented by the Institute for Justice Minnesota Chapter challenged a City of Winona, Minnesota ordinance that caps the number of rental licenses per residential block to thirty percent (“the thirty-percent rule”). In other words, if you live in one of Winona’s low-density residential districts, your right to rent your home is subject to your neighbors’ exercise of theirs.

Here’s the background:

The City of Winona, Minnesota was unhappy with parking, density, and aesthetic issues in the residential areas near the Winona State University campus. Rather than enforce existing laws against problem residents (students), the City of Winona decided to expropriate its residents’ property rights by restricting the number of homes that could be rented out to 30% of the houses on a given block.

Thus, if six houses comprise your block, owners of only two houses on the block could obtain a license to rent to tenants.

Four homeowners challenged the thirty-percent rule after facing ruinous financial consequences as a result of the rule. One homeowner, who was deployed to Iraq, almost lost his home because the city wouldn’t let him rent it, thus depriving him of rental income to cover the mortgage payment.

Another couple bought a home in Winona for their daughter to live in while she was in college and as an investment that would provide rental income. After their daughter left, the home sat empty on the market because they couldn’t rent it and interested buyers backed out when told of the rental restriction.

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How Much Does it Cost to Litigate an Antitrust Case?

June 5, 2014 | Bona Law PC

If you ask this question to an antitrust lawyer, you will receive some form of “it depends” in response. That’s true. It does depend. And you will inevitably follow up with, “What does it depend upon?” Let’s see if we can begin to answer that question.

What we are discussing here is not a class-action antitrust lawsuit, but an antitrust claim by one business or individual against another. Class-action antitrust cases usually incorporate some contingency-fee approach and are lawyer-centered rather than client-centered cases. That is, the plaintiff law firms act as “private-attorney generals” to enforce the antitrust laws through the class-action vehicle. Those cases are very different than the typical case brought by a company against its competitor, supplier, or customer. You can read our article on defending against class certification in antitrust cases here.

Antitrust cases are expensive. Usually. But if managed effectively, they don’t need to cost nearly as much as they did when big law firms held a virtually monopoly on the cases by convincing clients that only they had the requisite resources to file such a massive claim.

With the combination of technological advancements and third-party providers, I believe that, in many instances, hiring a big law firm to run your antitrust case is a costly mistake. We’ll get into that more below.

I am not going to get into actual numbers here because fees and other costs vary and will change over time. But if you are considering antitrust litigation, studying the components of an antitrust lawsuit will help you (1) understand what you are paying for and (2) figure out how to reduce your costs.

Below are the primary-cost drivers of an antitrust case. Of course, every case is different and a lot can come up in litigation that is unexpected and unusual. That keeps it interesting, but also increases cost variances. The list below doesn’t hit everything, but I hope it helps you.

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Update: The Court Denied the Virginia Board of Medicine’s Motion to Dismiss Our Antitrust Case

April 4, 2014 | Bona Law PC

I recently reported on my client’s antitrust case against the Virginia Board of Medicine. I also mentioned that I argued at the motion-to-dismiss hearing on March 28. I am excited to announce that we received the Court’s decision today rejecting the Board’s Motion to Dismiss.

If you are interested in the case, you can download the complaint and motion to dismiss documents below.

1. Amended Complaint

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The Virginia Board of Medicine Violated the Antitrust Laws

March 30, 2014 | Bona Law PC

Last week was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over antitrust and competition for several days. Second, I was writing an antitrust brief in a significant antitrust case.

Finally, I argued at a motion-to-dismiss hearing in the case Dr. Yvoune Kara Petrie, DC v. Virginia Board of Medicine, et al. I represent Yvoune Petrie, a doctor of chiropractic, in an antitrust lawsuit (Sherman Act, Section 1) against the Virginia Board of Medicine and several of its board members. Update: We survived the motion to dismiss.

With my client’s permission, I thought I’d tell you a little more about it.

As you might recall, I have experience and expertise in antitrust lawsuits against state and local entities, and believe that some of the most pernicious harm to competition comes from government conduct.

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