For Black antitrust lawyers, top DOJ, FTC posts remain elusive

18 January 2021 00:00

board meeting

Doha Mekki’s family moved from Sudan to Charlotte, North Carolina, when she was four years old, so her mother could pursue a PhD in architecture. A military coup propelling Omar al-Bashir to power in the summer of 1989 then led to the withdrawal of her mother’s scholarship. The following year the family was granted political asylum in the United States.

Today, Mekki is one of a small number of African American lawyers working in the Department of Justice’s antitrust division, where Blacks comprised 2.85 percent of attorneys as of October 2020, according to agency statistics.

The number was similar at the Federal Trade Commission, where African Americans accounted for 4.1 percent of the lawyers in the Bureau of Competition as of October 2019, the most recent year data was available.

Black lawyers say they knew what they were getting into before taking these jobs. But an attraction to economics and antitrust, a desire to protect the little guy, and even a sense of patriotism have proved enough to override concerns about the poor hiring history and promotion of Blacks at the antitrust agencies.

Mekki, 35, who earned a law degree and a master’s degree in bioethics from the University of Pennsylvania, serves as assistant chief of the Defense, Industrials, and Aerospace Section at the DOJ.

“The dearth of Black antitrust lawyers was clear to me, but that didn’t dissuade me from pursuing [antitrust] as a specialty,” Mekki told FTCWatch. “I have had a lot of experiences — professional, academic and otherwise — where there just weren’t that many people who looked like me.

“That just means I’ve had a lot of practice working effectively with people whose perspectives and experiences may be different from my own. I can get along with anyone,” she said.

Mekki appears to be on an upward trajectory. That’s rare for an African American within the division.

In US history, there has been just one Black assistant attorney general (AAG) — Charles James, who served as Acting Assistant Attorney General under Republican President George H.W. Bush in 1992 and as AAG under President George W. Bush from 2001-2002.

And there have been two African American deputy assistant attorneys general (DAAGs). They were James from 1991-1992 under H.W. Bush and Leslie Overton, who served under Barack Obama, from 2011-2015.

At the FTC, no African American has ever been appointed to the chairmanship. And there have been only three Black commissioners: A. Leon Higginbotham (1962-1964, John F. Kennedy); Mozelle W. Thompson (1997-2004, Bill Clinton); and Pamela Jones Harbour (2003-2010, George W. Bush).

If the number of African Americans in senior leadership at the antitrust agencies seems low, the blame lies within the White House. These positions are political hires. The assistant attorney general is nominated by the president and confirmed by the Senate. DAAGs are nominated by the president, but don’t require confirmation by the Senate. And each of the five FTC commissioners, including the chair, are nominated by the president and confirmed by the Senate.

There is no reliable research available that quantifies the number of African American antitrust attorneys in private practice. Anecdotally, the numbers appear low based on observations at the annual spring meeting and at antitrust conferences held throughout the year.

The small number of African American attorneys practicing antitrust, both in government and the private sector, hasn’t gone unnoticed.

— Barriers remain, but a path forward —

Law firms say corporate clients are taking note of the racial disparities within their management, but also at contractors and outside firms that do work for them.

One partner at a large law firm told FTCWatch a corporate client required pre-approval of any member added to their outside legal team to ensure diversity.

Others told FTCWatch it’s been difficult to retain talented Black associates, especially women, because there is such demand from corporate law offices, which offer similar salaries and better hours.

It’s difficult to determine if these are one-off experiences or representative of the broader bar.

Recent social unrest and the rise of the Black Lives Matter movement could affect change, but it’s difficult to say what long-lasting impact the movement will have on something so esoteric as the hiring and promotion of Black antitrust attorneys.

Judges have been making efforts to give young attorneys of color a helping hand at trial.

At a scheduling conference in the DOJ’s challenge to Visa’s proposed acquisition of Plaid on Dec. 18, US District Judge Jeffrey S. White said he hoped less senior counsel, or associates, “get an opportunity to argue before the court.”

The court very much “exhorts the parties, doesn’t require them, to consider including non-partners and non-experienced attorneys, so that we will all have a next generation of lawyers to be arguing in federal court,” White said. “That includes, by the way, women and people of color or from underrepresented communities should they be on your teams.”

Young lawyers have taken notice that the conversation is slowly changing from the general (Why aren’t there more Black antitrust lawyers?) to the actionable (What pipelines are being established to pull them in?).

“Without serious investment and action, even a well-intentioned diversity initiative can become an empty branding opportunity or, worse, obscure unaddressed bias problems or disparate treatment,” said Mekki.

“I applaud leaders and managers who have done the hard introspection … addressing conscious and unconscious bias in recruitment, evaluation and promotion processes, and focusing on who is getting important developmental opportunities — who is getting in front of the corporate general counsel, taking on leadership roles, engaging with the front office or examining witnesses at trial,” she said.

Mekki was an associate at Crowell & Moring in New York City for three years before joining the DOJ’s antitrust division in February 2015 as a trial attorney where she worked on merger cases, including Wabtec-Faiveley, Aetna-Humana and Parker-Hannifin-Clarcor and a conduct case involving no-poach agreements.

She was promoted to the front office in 2018 where she worked as counsel to Assistant Attorney General Makan Delrahim for two years. Mekki was named assistant chief of the Defense, Industrials, and Aerospace Section in July 2020.

Mekki, who is married to a professor of Middle East history and is expecting the couple’s first child this spring, said working for the government was a no-brainer. And she argues excitedly that the best job in the division is staff attorney.

“I am a mission-oriented person and feel strongly that ordinary people should have the same zealous representation as well-resourced, powerful corporations,” she said, explaining her reason for enjoying government work.

“There is nothing better than investigating mergers and conduct, going through documents and taking depositions, building a case, and interacting with counsel and the front office on enforcement decisions,” she says, continually referring to the government as “the people.”

“It’s a great time to be an antitrust lawyer,” she added. “We are in the midst of a robust public discussion about the goals and methods of antitrust, particularly as we confront corporate power in digital markets and other important economic sectors.”

And still, the odds say this upbeat, energetic young woman, and others like her, are likely to hit a ceiling.

Asked what the antitrust division could do to promote talented African Americans with demonstrated potential, Mekki mentioned higher pay for government interns, among other things.

The DOJ offers “fantastic” hands-on summer internships, but the pay doesn’t compare to law firms, and that can be prohibitive to economically disadvantaged Black law students. Stipends could be made more competitive, she said.

It’s important for African Americans to see other Blacks in management positions within the antitrust industry, Mekki noted, because it serves as “proof of concept … there is a path to success for you.”

But she cautions young lawyers that it’s also crucial to develop a broad coalition of sponsors and mentors.

“They don’t need to necessarily look and think like you,” she said. “I’ve been inspired by diverse antitrust lawyers … who are quite different from me.”

Yet, the most talented African Americans continue to walk on eggshells.

FTCWatch has attempted to interview African American antitrust attorneys on the record since 2018. Interview requests were ignored or declined out of fear of the political ramifications of complaining or speaking out. Executives aren’t hired or promoted, they are nominated and confirmed, they said.

The good news? Some say the government is promoting talented attorneys like Mekki, while private law firms are recruiting African American lawyers like Jessica Watters and Michael Clegg, two promising young associates working at Skadden, Arps, Slate, Meagher & Flom in Washington, DC.

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