Lisa Phelan, 'trailblazer' for women in antitrust, leaves DOJ after 32 years

19 June 2018 5:14pm
Royal Courts of Justice

15 June 2018. By Leah Nylen.

After 32 years with the US Department of Justice, Lisa Phelan — the first woman to head up a criminal team and the longest serving female chief at the antitrust division — is moving to private practice.

Phelan has served as chief of Washington Criminal I, previously known as the National Criminal Enforcement Section, for 16 years. Her last day at the agency is Friday. She expects to join a law firm later this summer.

"For three decades, Lisa was a force to be reckoned with, zealously fighting on behalf of American consumers and in the name of Justice, getting huge results in ground-breaking cases," said Mark Rosman, who served as Phelan’s assistant chief for seven years. “If there were a Hall of Fame for antitrust prosecutors, she would be a first-round inductee.”

The antitrust division, in a statement, called Phelan's work a "tremendous contribution" to criminal enforcement.

"We thank her for her unwavering dedication to our mission of protecting the free markets — and we wish her great success and happiness for the future."

— Fax paper —

Phelan joined the DOJ in 1986 straight after graduation from American University law school. After working on criminal, civil and policy efforts at the antitrust division, Phelan was assigned to one of the DOJ’s first major international cartel cases: a price-fixing conspiracy involving thermal fax paper. The case would go on to change the landscape of criminal antitrust enforcement, leading to the prosecution of 12 paper companies, including several Japanese firms, and the first conviction of a Japanese national for criminal antitrust violations.

The case also marked a key turning point in international cooperation. In a first, the Justice Department asked Japan’s Ministry of Justice if it would serve search warrants in Japan for documents outside the reach of US prosecutors. The Japanese agreed, and Phelan flew to Tokyo to help with getting court approval for the search warrants.

She prepared an affidavit as US prosecutors would in the US, with information on her credentials and career, details on the alleged cartel and what information the US hoped to find from the companies.

After the court hearing, an MoJ prosecutor chastised Phelan for leaving out “key information” in the affidavit: her husband’s name, occupation and schooling.

“How else is the judge supposed to evaluate your credibility?” he said.

As the investigation progressed, Phelan became well-known among Japanese companies in the industry. Phelan recalled going to an interview with a top executive at a Japanese company. When she arrived and introduced herself, the man responded that he knew exactly who she was, Phelan told a group of lawyers at an event* in Chicago Wednesday evening.

“ ‘Yes,’ he said. ‘I know who you are. You are known as the Dragon Lady,’ ” Phelan recalled.

The fax paper case led to two trials — one against Appleton Paper in federal court in Milwaukee, Wisconsin, and another against Nippon Paper in Boston. In the case against Nippon Paper, the judge originally threw out the case, finding US prosecutors didn’t have jurisdiction to charge a Japanese company. The DOJ appealed, and in a now iconic decision, the US Court of Appeals for the First Circuit held that conduct that takes place abroad that has a “substantial and intended effect” on the US can be prosecuted under US antitrust law.

That precedent is still in place today and a backbone of the DOJ’s efforts to challenge international cartels.

Phelan gave birth to her third child shortly before the Appleton Paper trial and recalled she had to stop breastfeeding early to go to Wisconsin for the case. She was pregnant with her fourth child during the Nippon Paper trial, in her third and fourth months when the morning sickness was intense. She recalled working out a route to the courthouse every morning that would allow her to avoid going by the horses stationed nearby for tourist carriage rides because the manure smell always made her sick. Phelan also remembered a few times needing to ask the judge for emergency breaks during the trial to be sick or run to the bathroom.

— Criminal enforcement —

In the '80s and '90s, when Phelan first began work at DOJ, the antitrust division was separated into units that focused on civil, cartel and merger work in particular industries. In 2002, then-Assistant Attorney General Charles James decided to change that structure and create a team of specialized cartel prosecutors in Washington — the National Criminal Enforcement Section, or NCES. He asked Phelan to head the section, making her the first woman to head a unit in Washington. (The antitrust division’s Chicago office had a female chief in the 1980s).

For years after that, the regular chiefs’ meetings would involve 17 men plus Phelan. She would later be joined by women heading up the division’s Transportation, Energy, and Agriculture Section, the Networks and Technology Section, Litigation II — which handles mergers and civil matters in the defense, industrial and aerospace industries — and the field offices in Atlanta, New York and San Francisco.

At the Chicago event, Phelan acknowledged it hasn’t always been easy to be the only woman in the room.

“There is a double-standard. The same behaviors that are admired in a guy, they’re ambitious, they’re a go-getter, a woman is sort of [viewed as] pushy and bitchy,” Phelan said. “The reality is you have to work harder and be better. I wish that wasn’t the case, but at the end of the day it just is.”

Mentoring younger lawyers, particularly women, has been an important part of Phelan’s career.

Amy Manning, chair of the antitrust practice at McGuireWoods in Chicago, first met Lisa Phelan at a 2004 conference focused on cartels. They struck up a conversation, Manning recalled, about how few women who practiced in the cartel space had speaking roles at the conference. Phelan asked for a list of women Manning knew who worked on criminal antitrust cases. By the next cartel conference two years later, Phelan had worked to ensure that all the women Manning recommended were included on panels at the conference, she said.

“Lisa is the quintessential trailblazer who, after creating the path, lends her guidance and experience to ensure others come along with her,” Manning said. “She is an inspiring, strong and passionate mentor.”

Phelan inspired Manning to start a group for women antitrust lawyers in Chicago. Phelan herself runs a networking group — Women in Cartels — that hosts events in DC and sometimes at the American Bar Association’s biannual cartel conference.

“It is hard to think about international cartel enforcement without mentioning Lisa Phelan,” said Craig Lee, one of her first hires at NCES who worked in the unit for 13 years. “Nearly every major criminal antitrust case can be linked to her directly or indirectly through attorneys she mentored, trained or supported.”

* “Women in Antitrust: Advocating for Your Clients, Yourself and Other Women.” American Bar Association Section of Antitrust Law. Chicago. June 15, 2018.

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