Australia's master antitrust lawyer goes from poacher to gamekeeper

Two years into her leadership of Australia’s antitrust regulator, former corporate attorney Gina Cass-Gottlieb has already defied expectations. At the time of her appointment, many had predicted she would focus her energies on enforcing the law, rather than changing it. Since then, however, Cass-Gottlieb has waged a high-profile campaign to overhaul the country’s merger laws, insisting that change is necessary for the Australian Competition & Consumer Commission to do its job. But the key antitrust battles that will define her tenure have yet to be fought.

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6 March 2024
By Ryan Cropp and James Panichi

Australia’s preeminent antitrust lawyer has a new client. This time, though, Gina Cass-Gottlieb isn’t advocating for captains of industry or corporate giants, but for the country’s consumers.

And now, just days away from her second anniversary at the helm of the Australian Competition & Consumer Commission, or ACCC, members of what one former enforcer calls Australia’s “competition mafia” are pondering just how much pain Cass-Gottlieb may inflict on them.

Any hopes that the appointment of a seasoned lawyer to the role would usher in an era of peace, love and understanding between regulated and regulator have been politely extinguished; all predictions that Cass-Gottlieb would stay in her lane and steer clear of big policy debates have proven incorrect.

The antitrust community knows it’s not personal, and you’d be hard-pressed to find someone who has had dealings with the ACCC chair who isn’t convinced of her intelligence, strategic brilliance and readiness to consider all sides of the debate.

That said, the sense of betrayal is real.

Those who assumed the era of policy advocacy under previous ACCC Chair Rod Sims would come to an end were instead met with an awareness campaign about the need to overhaul merger laws — a campaign that has clearly resonated with Australian lawmakers.

Since the arrival at the ACCC of Cass-Gottlieb and a slew of other experienced private practitioners, dealmakers have also started to face more regulatory pushback — transactions that are either blocked or burdened with remedies, while behind the scenes the ACCC has been refining its legal tactics and sharpening its requests for information.

It’s not that the antitrust mafia hasn’t found itself in a headlock before. What stings is that it’s coming from one of the group’s own — that she has taken the business ledger and turned herself over to the feds. Cass-Gottlieb knows where all the bodies are buried.

This is what rankles Australia’s antitrust community — particularly when it comes to the top official’s advocacy on the need to revamp Australia’s merger laws. As her former colleagues know, until very recently she had been on the same page as everyone else.

Appearing on a panel with Sims in November 2020, Cass-Gottlieb said there was little evidence that Australia’s informal merger-review system was in need of an overhaul. “I’ll make an early submission for no need for change,” Cass-Gottlieb said.

“The [current substantial lessening of competition] test is working … The [ACCC] has the powers through the informal process to — in most cases — affect change to the shape of transactions and stop transactions when it’s concerned,” she said.

It’s not particularly newsworthy that a lawyer would be able to set aside publicly expressed opinions to embrace the interests of a new client. What’s less common, however, is the sight of a prominent, late-career attorney jumping ship and joining the regulator; even rarer still are those willing to redirect their corporate experience towards more progressive ends.

This, according to global antitrust expert Cristina Caffarra, is something to be celebrated.

The initial concerns that Cass-Gottlieb would go soft on her old corporate clients have not been borne out, Caffarra tells MLex. “Internationally, her reputation is that she is one of the good guys,” she says, adding that this was all the more remarkable because Australia’s antitrust legal establishment is seen by many global observers to be conservatively inclined.

This willingness to turn the page on her previous work, according to the dozens of people to whom MLex spoke for this story, is how best to summarize Cass-Gottlieb’s first two years in the top job. While applying her knowledge of antitrust law to great effect, she has quickly grown into the other aspects of the role — from policy advocacy to the HR challenges of managing a large government agency.

Even those legal practitioners aggrieved by Cass-Gottlieb’s stance on merger laws acknowledge that her impact on the ACCC has been a positive one — one senior official at the Australian Treasury suggests she may be the best public servant in the country.

As for the ACCC itself, it has gone from “a lot of bark and less bite to the opposite,” one lawyer said. “It has been more selective. There’s less bark, but you need to pay attention. And real bite.”

Consensus-building

The basic outline of Cass-Gottlieb’s biography is widely known — particularly to MLex readers. There’s the intellectually vibrant family life; the decision to study at the University of California, Berkeley, given the absence of specialized antitrust-law courses in Australia; the partnership at law firm Blake Dawson Waldron (now Ashurst); the 27 years establishing a competition practice at Gilbert + Tobin.

“We were focusing on building a telco and media practice and she was somebody who had been exposed to that as a young partner,” Gilbert + Tobin co-founder and chairman Danny Gilbert told MLex, explaining why he hired Cass-Gottlieb. It wasn’t just her regulatory expertise that was of value to the firm.

“She brought a lot of the Nine [Network] work with her and the Packer relationship through that,” Gilbert says. Channel Nine was the largest commercial television network in Australia and its parent company, Publishing and Broadcasting, was led by the infamously irascible media tycoon Kerry Packer.

“After some years, Gina and I had a conversation and it was clear that it was heading in the direction of establishing a standalone competition practice — broader than media,” Gilbert says. “It wasn’t too hard to attract work. Gina is a modest kind of woman, but doesn’t sell herself short either. It all kind of started to fall into place.”

The recollections of those who knew Cass-Gottlieb at the time match up. She was understated, felt no need to “wave a flag to herald her arrival,” but was nonetheless a large presence in any room — “she wasn’t a smart-ass,” says one observer. Analytical and sure-footed, she would make up her mind with clarity and conviction then would let the quality of her work do the talking.

She was also popular with staff and was known to have a special talent for reassuring clients that they were in safe hands — with one of them remarking that “it was like having your mom as your lawyer.”

According to those who were around at the time, Cass-Gottlieb’s modus operandi was consensus-building, bringing people along without antagonizing them, encouraging junior lawyers and listening. It saw her build up a network of support for the practice.

On the other side of the ledger is Cass-Gottlieb’s unusual communication style, which has most recently been on display in parliamentary hearings and media interviews.

“She talks in circular form,” says one acquaintance. “The way she speaks reminds me of water swirling down a bathtub — it goes round and round.” Another lawyer says her utterances were “cryptic,” even “delphic.” “You think ‘that means something’ but you have no idea what it means.”

This plays out at a macro level, too, lawyers say — particularly when compared to Sims’ directness. As a leader, the former ACCC chair had a vision, a philosophical view of the way things are and the way they should be. He was forceful in promoting that vision, especially in the media. You would be left in no doubt about what he believed.

Cass-Gottlieb appears unlikely to follow that lead. This raises the as-yet unanswered question of how the ACCC boss will go about articulating her vision for the ACCC — something that will have to take in consumer issues, regulation and advocacy, as well as legal strategies to deal with antitrust enforcement and merger decisions.

It’s also the case that, despite making a number of new policy recommendations in September 2022, digital platforms haven’t been the ACCC’s main policy focus under Cass-Gottlieb, with the fight to get the regulator’s merger-law revamp model past the furious lobbying of corporate Australia and its army of antitrust lawyers now the biggest game in town.

‘Poacher turned gamekeeper’

For Danny Gilbert, the suggestion that Cass-Gottlieb’s public utterances before taking on the ACCC role amount to “changing sides” is a “childish and un-nuanced” reading of her transition from top antitrust lawyer to regulator. “She’s just in a new world and will embrace it,” he says.

“I always thought she would be a regulator — she was always ambitious for it,” Gilbert says, adding that being the first woman to take on the top job was part of Cass-Gottlieb’s decision to accept the role. “One of the motivators for her was to demonstrate that with these opportunities, women should step into them.”

The ACCC largely agrees with that assessment*, with a spokesperson saying that Cass-Gottlieb made the remarks before details of possible changes to the law had been developed. Since then, the ACCC chair had seen firsthand how Australia’s voluntary merger-notification system placed the regulator at a disadvantage in merger reviews, the spokesperson said.

“Issues with non-notification and strategic behavior by merger parties, where they don’t observe the norms of the informal system, have become more apparent in recent years,” the spokesperson said.

“An emerging trend in global mergers is parties appearing to take a strategic approach to seeking clearances across different jurisdictions. Without a mandatory-suspensory notification requirement in Australia, the ACCC is often approached comparatively late and merger parties are focusing their clearance efforts on other jurisdictions.”

And while some former ACCC officials believe there’s a limit to how much influence the ACCC chair can have on the culture of the organization, others say that having a lawyer in place after 11 years of Sims, an economist, is likely to filter throughout the agency.

“The personality of the chair has an impact on the way the organization works,” one high-ranking ACCC official told MLex. “The questions [lawyers] ask are different.”

“Of course, there’s the ‘poacher-turned-gamekeeper’ side — but what did [the lawyers] expect? If you know the strategic tricks, of course you’d be going to bring those insights into the new role. You’d be letting yourself down if you didn’t,” the official says.

In the US, the move from private practice to top regulatory jobs is less unusual.

Joe Simons, the Federal Trade Commission chair between 2018 and 2021, had been a partner at law firm Paul, Weiss, Rifkind, Wharton and Garrison; Jonathan Kanter, who has been the head of the Department of Justice’s Antitrust Division since 2021, is a former antitrust lawyer with considerable private-practice experience.

But in Australia, the role of ACCC chair has traditionally been seen as the domain of economists. The only other exception is Graeme Samuel, who was Australia’s top antitrust official between 2003 and 2011. But although he was a lawyer by background, it was Samuel’s later roles as a business executive that saw him tapped to lead the ACCC.

Given this backdrop, many both within and outside the regulator had questioned whether Cass-Gottlieb would be more reluctant to embrace the broader economic arguments that underpin her work at this moment in time — for example, mounting concerns over market concentration.

One senior official who has had close contact with Cass-Gottlieb at the ACCC says that while there may now be greater rigor in terms of legal analysis, she’s also proving herself to be a good economist, with “a great instinct.” “She is keeping the place ticking over well in terms of thinking about the economic perspective on issues,” the official said.

At the time, the appointment of a corporate attorney was widely interpreted as a signal from the country’s then center-right government that the ACCC’s job was to enforce the law, not change it. “Leave the policy to us” appeared to be the message from members of the executive, who were ideologically more inclined to loosen, rather than tighten, the shackles on business.

If that’s the case, then the government appointed the wrong person.

As MLex reported, new antitrust enforcement action announced in 2022 and 2023 has slowed to a trickle, suggesting Cass-Gottlieb is indeed drawing on her legal experience to weigh up the prospects of success — and may even be settling cases behind the scenes, after presenting the probed companies with unbeatable evidence. Her campaign on merger-law changes, too, isn’t necessarily something that would have been expected of a black-letter lawyer.

Others within the ACCC say the chair is affecting the organization’s culture in other, less headline-grabbing ways. For example, Cass-Gottlieb has pursued her interest in indigenous affairs with understatement, building strong personal links with Aboriginal and Torres Strait Islands members of staff, many of whom work as outreach officers on consumer issues that affect disadvantaged and vulnerable communities.

By quietly mentoring indigenous staff members in the northern city of Darwin, Cass-Gottlieb has placed herself on “another level” when compared to previous chairs, according to one senior ACCC official. “It is that sort of touch that she brings to her role that I love. She brings that empathy, although she’s a very tough operator.”

‘Ducks in a row’

From a procedural standpoint, antitrust lawyers in Australia have already detected changes under Cass-Gottlieb’s leadership of the ACCC, such as the regulator’s readiness to engage in a constructive conversation with law firms to provide clarity on, say, a probe into a client or a merger review.

While the ACCC is stepping up the forcefulness of its legal posture, some of the previous procedural antagonism appears to be gone, according to antitrust lawyers who spoke to MLex. The ACCC is now better to deal with, more cooperative, more straightforward and more accessible.

“You used to get a cryptic letter about market feedback, where you don’t know what they’re actually getting at,” a lawyer says. “You don’t really get that anymore — they are more open to having a conversation.”

While some of these procedural developments may be attributed to the February 2022 arrival of ACCC Commissioner Liza Carver, another highly experienced antitrust lawyer, others believe that it’s informed by Cass-Gottlieb’s approach as an attorney, in which you advise your clients to get close to the line, but never to cross it — something that requires a clear understanding of where the line actually is.

“Everything that’s done is done deliberately and with thought,” one close observer says about the new ACCC. “[Cass-Gottlieb] looks at evidence, plays out all the scenarios. She has always been like that.”

Others have pointed to a degree of caution around things like enforcement proceedings, saying that the ACCC now wants to “see the evidence up front” where previously there had been a tendency to put forward a theory of harm and find the evidence later. “They will have their ducks in a row before they proceed,” according to one lawyer.

More broadly, though, the ACCC’s evolving approach may be part of a cultural shift linked to the injection of new blood — both junior and senior people with private-practice legal experience, many of whom had already worked alongside Cass-Gottlieb and Carver when they were on the other side of the fence.

Carver joined the ACCC in February 2022, before Cass-Gottlieb had taken over the role, from law firm Herbert Smith Freehills. Since then, at least four lawyers have joined from the same firm.

Also preceding the arrival of the new chair was the appointment of Jennifer Barron to the role of deputy general counsel in the ACCC’s mergers division, after a 19-year career working alongside Cass-Gottlieb at Gilbert + Tobin. Joining them shortly, too, will be their former colleague Andrew Floro, a litigation specialist who spent over 20 years at the same firm. His new role at the ACCC, which has yet to be publicly announced, will be that of deputy general counsel, competition and consumer.

The other key ACCC figure with substantial experience in private practice is Commissioner Stephen Ridgeway. He had been away for six months as a result of illness but has been back at the regulator for the past year.

Alongside this influx of legal expertise, the watchdog had made several small but effective tweaks to its information-gathering processes, such as the July 2022 update to its "Section 155" guidance that requires companies claiming privilege over key files to compile a detailed schedule that includes summaries of what’s in each document and why privilege is claimed.

Lawyers also report more targeted, focused and “less stupidly broad” information requests.

Laying the groundwork

Those who know Cass-Gottlieb well say that her new role is in keeping not just with her professional goals, but also her moral values. “She wanted part of her life to be devoted to the welfare of the community, a role in public life,” Danny Gilbert says.

But good intentions do not a legacy make and, for now at least, it’s unclear how the Cass-Gottlieb ACCC will be remembered. The seemingly inevitable battle between regulators and digital platforms has yet to play out, although it may be just over the horizon; the ACCC’s criminal-cartel campaign appears to have stalled. As for the regulator’s ambitious plan to overhaul merger laws, it has yet to truly get off the drawing board.

Nonetheless, observers believe the ACCC’s chances of success on any of these fronts are high — and it’s in no small part the result of Cass-Gottlieb’s underrated political instincts. Where Sims was happy to publicly stick the boot into governments, particularly state governments’ arguably anticompetitive approach to privatization, Cass-Gottlieb tends to work quietly behind the scenes.

As for the ACCC’s clash with Big Tech, when it happens it won’t be for the faint-hearted. To succeed, the regulator will need to have more in its enforcement toolbox than a tweaked merger law. In fact, it may need to invent some new tools altogether.

Indeed, with the basic elements of Australia’s merger-law overhaul likely already worked out behind the closed doors of the country’s Treasury Department, digital platforms are likely to become the next big policy focus for Cass-Gottlieb.

The government has so far carefully avoided the ACCC’s 18-month-old proposals to introduce forward looking “ex ante” digital platform competition laws, though it has promised to consult on them in 2024. If successful, that could equip the regulator for what lies ahead — suggesting a policy conflict as strategically important as the merger-law revamp.

In that sense, the past two years have been laying the groundwork for upcoming battles. Cass-Gottlieb’s inclusiveness, her sense of mission, her tweaks to the ACCC’s legal tactics and staffing arrangements — all these details will be merely footnotes in what may yet prove to be the most significant chapter in the history of Australian antitrust.

* Updated March 7, 2024, 1:10 GMT: Adds ACCC spokesperson's comments.

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