Bigger than Texas: How Vinson & Elkins' Antitrust Group Skyrocketed into a National Powerhouse

That’s exactly what Vinson & Elkins antitrust ace Craig Seebald set out to build a few years back as the 107-year-old firm charted its course for the future. Since that time, they’ve attracted a wealth of coveted talent.

“The firm decided two years ago to look at areas that we thought would be complementary to what we already did and areas where we could grow,” says Seebald, co-head of the firm’s Litigation & Regulatory department. “We first focused on antitrust litigation. And I was tasked with really trying to build out our team, which led us to hire four new laterals within basically a year.”

The Vinson & Elkins name has long been on the competition law map, buoyed by its status as an energy colossus managing some of the industry’s biggest deals as well as for notching a record-setting $1B award for the ETSI Pipeline Project against Santa Fe Southern Pacific Corp. and Santa Fe Railroad in 1989. But over the past decade, the stakes have been raised significantly as global firms amassed corps of top competition lawyers to battle in court and before regulatory agencies worldwide.

Vinson’s antitrust litigation surge commenced in October 2022 with the addition of Stephen Medlock, an antitrust specialist at Mayer Brown, who joined the firm’s Washington, D.C., office. The following January, Michael Scarborough and Dylan Ballard joined from Sheppard Mullin, significantly expanding the firm’s presence in San Francisco – the most active antitrust litigation venue in the country. The group was rounded out with Adam Hudes of Mayer Brown recently joining the team in D.C.

“The antitrust practice is a core focus of growth for this firm,” says Hudes. “And we really have the right players on board to facilitate that growth moving forward, not just in D.C., but also in Texas and importantly also in California.”

“Vinson & Elkins has quietly built a national antitrust litigation and investigations powerhouse,” says Scarborough. And now, they are ready to roar.

A GREAT TIME TO BE AN ANTITRUST LAWYER

Energy law has long been a natural fit for Vinson & Elkins. The firm’s first office was in the original 1914 Gulf building in the financial and petroleum business district of downtown Houston; wildcatter A.E. Humphreys became its first major oil industry client after striking oil near Mexia, Texas, in 1920. From its roots advising oil and gas exploration and production companies, Vinson & Elkins lawyers now handle matters for clients in the renewable energy space, putting them, as well, in the forefront of climate change law.

Jason Powers, now co-head of Vinson & Elkins’ Antitrust practice group with Hill Wellford, joined the firm in 1998. At the time, he recalls, “We had a business litigation section, which was what everyone knew was secretly the antitrust section. They just changed its name to generalize it a little bit. And I began my career in the business litigation section working for folks like [the recently retired] Harry Reasoner and Allan Van Fleet who had handled groundbreaking antitrust cases for their entire careers.”

“I thought it was a fascinating area of law and it was one I wanted to be in from the very beginning,” he adds.

Seebald joined Vinson & Elkins in 2011 from McDermott Will & Emery. “It’s been great to have him on board,” says Powers. “He might not be the [antitrust] practice group leader in a titular role at this point, but he still is very much the spiritual leader of the group. When we brought all these new folks together, he was the guy who articulated to them what it was that we wanted to do as an antitrust practice and convinced them that this was the place where they’re going to grow in the next stage of their careers.”

Vinson & Elkins’ recent antitrust expansion partly reflects the reenergizing of regulatory enforcement under the Biden administration. At the Federal Trade Commission and Department of Justice, says Seebald, regulators are “very bullish” on merger enforcement and “much more willing to go to court and just wholesale challenge mergers.” With private plaintiffs also focused on aggressive enforcement, 250 new antitrust complaints were filed in 2023, 42 of them in U.S. District Court for the Northern District of California.

“It’s just a great time to be an antitrust lawyer,” says Scarborough. “There’s so much happening, from private civil litigation to government investigations. People are talking about antitrust issues at their dinner table. You get non-lawyer friends who ask, ‘Oh, what do you think about this issue, or this case by the government?’ Antitrust is very real, it’s alive. It’s not like the late ‘70s and ‘80s where it was nearly dead, and people just survived doing what other things they could. It is really having a moment, hopefully an extended moment.”

According to Seebald, Vinson & Elkins decided it needed to add “some heft and some experience” so it could better compete with the likes of Latham and Gibson Dunn. And to do that, it turned to some lawyers in the relatively tight and cozy antitrust bench, most of whom already knew each other quite well.

“It’s a small world in antitrust,” Ballard observes. “There’s probably only maybe 50 to 60 people who are doing these cartel cases all the time … If you add up all the cartel cases that have happened in the last 20 years, Mike [Scarborough] and I were probably in half of them, and Adam [Hudes] and Steve [Medlock] were probably in the other half.”

THE ALL-STAR TEAM PITCH

Seebald knew many of those who have become the all-star team from prior engagements. He’d worked with Medlock representing an individual in a large criminal investigation. He’d also been on three or four antitrust cases representing Hitachi, while Scarborough and Dylan Ballard were representing Samsung. “These are people that I knew I liked, that I had experiences with and that I really wanted to practice law with,” he says. And the same went with Adam Hudes. “We go back probably 20 years we’ve known each other.”

Medlock started his career at Howrey, joined Mayer Brown in 2011 and made partner there in 2017. As a junior associate at Howrey, he was mentored by Hudes. “They said, ‘This is your mid-level mentor and he’s going to staff you on a major antitrust case.’” The case, In re Chocolate Confectionary Antitrust Litigation, was a price-fixing blockbuster involving defendants who controlled about 75 percent of the U.S. market for chocolate candy. “I stepped into the biggest civil MDL [multi-district litigation] that was going on at the time,” Medlock says.

He sees the potential for similarly significant litigation at Vinson & Elkins. “They have a lot of really good corporate clients in the energy and infrastructure space. Those are, quite frankly, the industries where we see repeated need for antitrust counseling, investigations and litigation. So that was a nice fit there.” Additionally, he knew the plan was to make two or three strategic hires in antitrust and then grow the practice around them. “That sounded incredibly attractive to me to be at the center of that growth and help to drive that growth.”

Ballard says that Vinson & Elkins appealed to him and Scarborough in part because of the firm’s long record in antitrust, going back to Harry Reasoner and the railroad cases. And then, Craig Seebald “was kind of the Hitachi guy,” says Ballard, and as counsel for Samsung, “we got to know him really well and thought he had really good judgment, really good litigation chops.”

Vinson & Elkins’ pitch to the potential lateral partners was different than what you typically hear in the antitrust space. While some firms expect a star partner to shift a self-contained empire of work over to the new firm, the leadership at Vinson & Elkins was interested in melding together several strong practices with the firm’s longstanding players to grow a new collaborative unit. The idea – currently playing out – is that the newly formed cluster of stars would go out and pitch collaboratively as a team.

“I think it’s surpassed anybody’s expectations for what could be done,” Ballard adds. “I hate the word ‘synergy,’ but it really is like the whole is greater than the sum of its parts.”

Hudes appreciates the dynamic practice, working with like-minded partners and associates, and sees a long runway for growth with the way the group is structured. “Having a collegial environment where I really feel like people collaborate in an almost selfless manner because there’s a belief it drives the firm in a better direction is really critical to me. I think we have that in a way that is really hard to beat.”

By pooling the experience of these top antitrust players and adding the cachet of the Vinson & Elkins name, the group can tout a collective resume covering a wide swath of the most significant antitrust cases from the past 20 years. And these weren’t just cases they were in, but ones where they represented lead defendants, got great results and won cases. Says Ballard, “I think that goes a long way to getting the next opportunity.”

A DOCKET OF THE HOTTEST CASES

Vinson & Elkins is particularly well-positioned due to its strength in energy-related antitrust litigation. “It’s an area of growth because of the consolidation in the industry and the ever-increasing scrutiny from the FTC and Department of Justice” Hudes says.

For example, the firm is representing Permian Resources Corporation as a defendant in nearly 20 class actions alleging that domestic oil and gas producers conspired with OPEC to raise consumer fuel prices by curbing their output of shale oil. These high-stakes lawsuits seek nationwide class-action status, treble damages for alleged fuel overcharges and a court order against alleged anti-competitive business practices on behalf of all purchasers of retail gasoline from U.S. stations since January 2021. “We’re the home team for the energy industry,” Powers says. “And if you’re the home team for the energy industry, you are dealing with some of the biggest cases in the world.”

But its energy roots are just a fraction of what’s keeping the Vinson & Elkins antitrust team busy. Among its more mesmerizing engagements is cutting-edge litigation involving the practice of setting prices with algorithms that, using artificial intelligence and machine-learning, can analyze variables such as supply and demand in near real-time. “There are a number of cases now in a variety of industries where the allegation is that the defendants are price-fixing through algorithms,” Seebald notes.

Among other cases, Vinson & Elkins has been defending three different property management companies accused of colluding with revenue management software firm RealPage and other property lessors to artificially inflate the prices of multifamily and student housing across the country. The litigation encompasses private plaintiffs, the Department of Justice and state attorneys general. The Vinson & Elkins team representing Campus Advantage was able to obtain a ruling dismissing it in full from allegations of collusion in the student housing market.

Legal experts say the RealPage suits could set precedents for how other antitrust cases involving algorithmic pricing are decided. “It’s probably the most prominent antitrust case that’s going on right at the moment,” says Seebald. Vinson & Elkins also is involved in similar class action litigation regarding multifamily housing and revenue management software firm Yardi.

In another real estate case – one that is being closely watched by both the industry and consumers – the firm is defending real estate brokerage Weichert Realtors in a series of antitrust class actions pending in federal district courts across the country, which allege a nationwide conspiracy to inflate buyer broker commissions for residential real estate transactions. The cases sprung up following a $1.8B jury verdict – which would balloon with trebling to $5.4B, making it one of the largest antitrust damages awards ever – late last year in a class action trial involving similar allegations against the National Association of Realtors (“NAR”) and several brokerages. The cases challenge certain longstanding commission rules set by NAR – the largest trade association in the country, with more than 1.5 million members – as a form of price-fixing. “Everyone expects this litigation to have really a transformative impact on the real estate industry in the U.S.,” says Ballard.

Vinson & Elkins is also enjoying a moment on the plaintiffs’ side in litigation focused on whether pricing algorithms offered by data analytics firm MultiPlan have been used by major health insurers in a conspiracy to drastically cut payments to doctors and other medical providers. “The question is, in what cases are these algorithms really just helping companies make their own [pricing] decisions more efficiently and in what cases are they really causing companies to coordinate on pricing in ways that competitors should not be coordinating?” asks Medlock. “We think that the factors favor an affirmative recovery [for plaintiffs] in the MultiPlan case.”

Complexity and cutting-edge issues – as well as Vinson & Elkins’ increasing lead role – are through lines in the discussion of what’s hot in antitrust litigation right now. Making the arguments, drafting the briefs, leading the joint defense or plaintiff group. That’s today’s game and one Vinson & Elkins has an increasingly tenacious role in.

“If there are 70 defendants out there, we want to be one of the lead authors on the brief,” says Powers. “We want to be influencing the way decisions are made on discovery. We are not someone who’s just going to mark time and check boxes.”

In San Francisco, Mike Scarborough says a large part of his practice is “offensive regulatory advocacy,” that is, “working with clients to speak to regulators, identify really big thorny competitive issues, and then working with the regulators to help them formulate a theory and start an investigation or bring a case.”

“A lot of times you are coming to the government with intelligence on business relationships and market dynamics that they may know very little about and you’re educating them,” he notes. “There are some very bright people over there. If you hand them enough ammunition, it becomes obvious what they should be doing.”

“We have a very receptive DOJ and a very receptive FTC,” says Ballard, his San Francisco colleague. “If you want to bring an issue to their attention, they’re much more likely to investigate these cases than they have been over the last decade or so. So we’ve been trying to take advantage of that with a lot of our clients.”

AN EYE TO THE NEXT GENERATION

The bank of talent in Vinson & Elkins’ newly muscled antitrust group is undeniable. They are now focused on growing from their current position of strength, bringing up the next generation of counsel and associates with organic growth within the group.

It’s imperative to keep the talent pipeline going, Seebald says. “More and more clients are saying, ‘It’s great that you guys have all this experience but what does the next generation look like?’” he says. “So we’re focused on bringing up the younger talent, and increasing diversity in the legal field in general.”

The firm is developing “a variety of associates here with us in San Francisco into hardcore antitrust people,” says Scarborough. In true Vinson & Elkins fashion, they are giving meaty work to associates to help them hone their skills, whether it be with the offensive regulatory advocacy, algorithmic price-fixing cases, or criminal grand jury defense work.

At a recent trial advocacy program in Vinson & Elkins’ Houston office, associates sat down with the partners and with law school professors to learn how to handle every segment of a trial. Opening statements, direct exams, crosses and closing arguments. Then the partners and professors would play the video and talk about what went well and what needs work. The associates would then do it again.

“I wish I had that when I was a younger associate, just to get that real-time feedback and to see yourself do something,” says Ballard. “It’s invaluable.”

Vinson & Elkins’ Antitrust practice group is now at a great size, says Jason Powers. “With what we’ve added the last couple years, I think that we’ve got the ability to handle significant antitrust matters in any jurisdiction in the country.”

And the firm, he says, still embraces the entrepreneurial culture of the wildcatter era of early-1900s Texas, a time when Vinson & Elkins’ primary clients were the independent oil and gas explorers who revolutionized the field. “We want the wildcatters of today in the legal market,” says Powers. “We want people who are saying, ‘I want to find a market that no one else is attacking yet, and I want to get there and do great work.’”

Antitrust Deal Clearance

In addition to the robust antitrust litigation and investigations practice, Vinson & Elkins has a busy antitrust transactional shop, working on both the buy and sell side. Notable deals include counseling Google in its $2.1B acquisition of FitBit, as well as many of the largest energy transactions over the last few years including representing CrownRock in its $12 billion acquisition by Occidental, Noble Energy in its $5B acquisition by Chevron, and Parsley Energy in its $4.5B acquisition by Pioneer Natural Resources. The Washington, D.C.-based antitrust team is led by Darren Tucker and Hill Wellford, with partner Kara Kuritz. Wellford previously served at the U.S. Department of Justice Antitrust Division in several roles including Chief of Staff, trial attorney, investigator and Legal Policy counsel. Tucker previously served as a Federal Trade Commission attorney, and Kuritz held a prior role at the DOJ Antitrust Division as the agency’s Hart-Scott-Rodino Act Specialist. The dynamic team focusses on assessing antitrust risk for mergers and acquisitions across a variety of industries and states.

Read the Lawdragon article here.