DiCello Levitt’s Greg Asciolla on the Vital Need for Private Antitrust Enforcement – and Diversity in the Practice

The antitrust litigator is also an active advocate for LGBTQIA+ rights and representation. Photo by Nick Coleman.

Greg Asciolla makes no apologies for his love of his work in the private sector of antitrust law. Propelled by a sense of responsibility, he gladly shoulders the yolk for those who wouldn’t otherwise see any money for their losses. Asciolla credits his perspective from a long running list of successes, the most recent of which lead to the recovery of $60.5M in damages for his clients in an antitrust “no-poach” matter involving accusations of conspiracy to keep wages down for aerospace workers in Connecticut.

Asciolla began his career as an attorney in the Antitrust Division at the Department of Justice before moving into private practice. And while state and federal enforcers remain active prosecuting antitrust actions, Asciolla is equally busy with privately brought matters. Sometimes he works in tandem with regulators, and other times he is part of the vital private corps of litigators that takes on cases the government might not have the bandwidth for – and gets real results for businesses and consumers.

“Typically, the only way victims are compensated is through private antitrust enforcement,” Asciolla says. “Anything the federal government might recover goes into the U.S. Treasury, and while they use it for good purposes, it doesn't go to the victims of anticompetitive conduct. It’s critical for private antitrust enforcement to be the third leg of this enforcement regime to regularly get compensation for the actual victims.”

The accomplished antitrust litigator has been in the field for over 30 years, handling complex cases that increase competition in markets vulnerable to monopolies and price-fixing conspiracies that harm consumers. Anticompetitive conduct comes in all shapes and sizes, in every industry, ensuring there’s seldom a dull workday for Asciolla. In over three decades, he has yet to litigate the same case twice.

Asciolla understands his role as a leader in the legal profession and his firm and believes that as a leader, it’s his responsibility to advocate for diversity in leadership appointments for antitrust cases. He seeks to level the playing field for marginalized groups and believes that an amalgam of diverse perspectives makes for a more comprehensive thought collective and undoubtedly garners better results.

“As a member of the LGBTQIA+ community, it's vital that leadership represents a diverse slate of individuals who can give various perspectives based on different experiences,” Asciolla explains. “I always try to have a diverse slate when I present to a court – gender diversity, sexual orientation diversity, racial diversity. It makes for the best team.”

One of Asciolla’s latest cases involves anticompetitive collusion in the world of hockey. Asciolla represents junior league players suing the National Hockey League, Canadian Hockey League and other North American hockey leagues for alleged systemic exploitation that includes claims of abuse and conspiracy to keep wages down. Asciolla, his team and co-counsel recently filed a motion for a preliminary injunction to, among other relief, stop the 2025 player draft, and he and his team are eager to litigate and achieve justice for the teenage victims.

“It feels good to thwart anticompetitive conduct, freeing up markets to vigorous competition,” Asciolla says. “You're on offense, not defense. You're doing the affirmative job of driving the litigation. I relish that position.”

Lawdragon: What’s keeping you busy these days?

Greg Asciolla: It’s an exciting time to be an antitrust attorney. Government antitrust enforcers have been extremely active over the last four years, driven by leadership at the Department of Justice and the Federal Trade Commission, especially in the high-tech industry, and they're taking on bigger, riskier and more important cases than they ever have. Based on early indications, we expect that to continue in large part with the new administration. And the State AGs are also incredibly active either bringing their own cases or working with the DOJ and FTC and joining their cases and investigations. It's certainly been a great time to be part of the antitrust bar.

We bring cases that the government doesn't bring, either because they do not have the resources or because they know the private bar is well-equipped to take the case head on and get the job done.

Of course, while the government's invaluable to effective antitrust enforcement, and we do bring follow-on cases after they file, a lot of our efforts in the private bar go toward filing proprietary cases – cases where the government isn’t focused. So, truly, what is keeping me busy is a mix of some cases that are government follow-on cases but also a lot of cases that we've investigated, developed and filed on our own as a firm.

Algorithmic price fixing, information sharing and other similar matters have really come to the forefront in antitrust. AI will be the next frontier. The government is already focused on potential antitrust violations on the AI front, particularly acquisitions that may reduce competition in this nascent yet quickly burgeoning field. I expect the fallout will reveal attempts to monopolize or other exclusionary conduct as well as possible price-fixing among competitors. Time will tell, and we are watching closely.

LD: How did you get into antitrust law?

GA: I had an early interest in economics – which became a major – during my undergraduate studies, including an introduction to antitrust. When I went to law school, that interest peaked, so, when I finished law school, I went right into the Justice Department in the Antitrust Division. From day one, I started practicing antitrust on behalf of the United States and I never looked back.

I truly enjoy learning about different industries and how markets work. Every case is different – a different product, a different market, a different area to dive deeply into. In antitrust, you get to investigate for as long as needed to potentially uncover anticompetitive conduct. It's like building a puzzle. You’re talking to potential witnesses, studying the market and publicly available information, working with experts – all to get a potential case off the ground. These are really high-profile cases, and I like that; it certainly makes it a lot more interesting.

Highly complex, multifaceted cases are challenging, which is also appealing to me. Cases are national and potentially international and can contain multiple defendants and products. You have two major government agencies, the Justice Department and the FTC. You have all the State AGs. You have a sophisticated defense bar and plaintiffs’ bar. There's policy think tanks and in-house counsel. And you have specialized economic and industry experts, as well as a deep bench of academics. You have all these different factors at play.

LD: Are there any formative cases from early on in your career that really stand out?

GA: At the Justice Department, I worked in the Division’s health care task force in the mid ’90s. Not only were we responsible for challenging potential anticompetitive hospital mergers, but this was a time when lower-cost health care was coming to the market, typically in the form of an HMO. We would be looking at conduct in smaller communities where there were efforts by health care providers, doctors and hospitals to band together to block the entry of lower-cost health care. We went into these small towns and enforced the antitrust laws and worked to thwart that conduct that was blocking entry of less expensive health care, which of course is essential for all Americans. Those cases were formative and helped me develop my skill set. I always looked to that effort as something that really shaped how I thought about the importance of antitrust enforcement.

LD: You spent a bit of time on the defense side, at Morgan Lewis. How did that inform your practice?

GA: While I learned a great deal, had tremendous colleagues and mentors, and worked on important cases for my clients, ultimately the defense side didn't leave me with the greatest satisfaction at the end of the day. Your job is acutely personal. I feel most satisfied with the work I do on the plaintiff side. I think I have that enforcer vibe in my blood. It feels good to challenge anticompetitive conduct, free up markets to vigorous competition, get lower prices and higher-quality goods for consumers. And on the plaintiff side, you get to deep dive into extensive investigations, which I find as thrilling as the litigation itself. You're on offense, not defense. You're doing the affirmative job of pushing litigation. I like being in the driver's seat. I'll always look back fondly on the time I spent on the defense side and the government, and certainly that breadth of experience has made me a better antitrust lawyer overall. Having the government experience, having the defense experience and knowing that perspective, and then bringing all that to the table on the plaintiff side.

Private antitrust enforcement is an essential component of an efficient and effective antitrust enforcement regime. It is the primary means to get economic justice to the injured parties.

LD: From your perspective, why is private antitrust enforcement so important?

GA: Private antitrust enforcement is an essential component of an efficient and effective antitrust enforcement regime. It is the primary means to get economic justice to the injured parties. We recover monies for the actual victims, whereas any monies recovered by the federal government goes into the U.S. Treasury. It's critical for private antitrust enforcement to be the third leg of this regime after federal and state enforcers to get compensation for the real victims.

It's also so important because we bring cases that the government doesn't bring, either because they do not have the resources or because they know the private bar is well-equipped to take the case head on and get the job done. Much government enforcement focuses on reviewing and challenging mergers and acquisitions; we, on the other hand, focus almost exclusively on conspiracies and monopolization which result in unlawful overcharges to businesses and consumers. Again, we’re an essential tool for effective antitrust enforcement. In many of my cases, we have led the charge by filing a case prior to government involvement, or without any government case at all.

LD: What can you tell us about your current caseload?

GA: We are co-lead counsel in a case involving an alleged price-fixing conspiracy for European government bonds. There was an investigation and a case in the European Union, and we brought the case in the U.S. with no U.S. government involvement. We settled the entire case for $120M. It’s a great example of the importance of private enforcement.

Another important case I'm working on now is Generic Pharmaceuticals Pricing Antitrust Litigation. I'm on the plaintiffs’ steering committee. This case alleges over 20 generic drug manufacturers conspired to fix the price of over 200 generic drugs. It is a massive series of cases, and it's quite complicated. The cases were first filed in 2016, with a variety of plaintiffs’ groups. We represent the end payers, and we have some bellwether cases for several drugs. Those are scheduled to go to trial in 2025. It’s a fascinating, complex case, and we’re looking forward to seeing the result.

LD: You’re also representing junior league hockey players suing the Canadian Hockey League and the National Hockey League. What can you tell us about that case?

GA: The allegations are that the major hockey leagues have engaged in anticompetitive conduct that eliminates competition among the leagues for drafting and retaining minor league players age 15-19, which, among other things, allows the league to keep wages down for these young, talented players in Canada and the U.S. These kids are at the mercy of the leagues and have no ability to move, be traded or increase their wages. Our complaint also alleges that players have suffered physical, psychological and sexual abuse. It's a really tough experience. We recently filed a motion for a preliminary injunction, and we're seeking, among other things, to stop the 2025 CHL leagues’ drafts. 

LD: Very interesting. You are an advocate for diversity in litigation leadership positions. Why is that important to you?

GA: Getting a leadership appointment is incredibly important because lead counsel runs, manages, and are the lead litigators of the case. They are the face of the litigation to the court and defense counsel, making all essential decisions in the litigation. It's important that those appointments go to, of course, the most qualified counsel who are best able to represent the interests of the class, as required under the federal rules of civil procedure. But what if there are multiple qualified counsel competing for a leadership position, as is typically the case? Then, the court has authority to consider any other matter relevant to counsel’s ability to fairly and adequately represent the interests of the class. I believe in such situations, diversity is a factor that should be taken into consideration. This provides an opportunity to get highly qualified counsel from historically underrepresented groups into important leadership positions in major antitrust cases. This becomes all the more important given recent developments in the new administration to tear down longstanding efforts to ensure diversity in the workplace. What matters here is what is best for the class, and I believe a leadership slate that reflects the diversity of the victims will bring the greatest benefits and potential success to the class.

I'm a member of the LGBTQIA+ community, and I believe that the most effective leadership comprises a diverse slate of talented, experienced individuals who are able to offer invaluable perspectives based on different experiences. Antitrust litigation is complex, and having available different viewpoints based on a wide variety of experience is essential when confronting and solving difficult issues. You're going to get the best thinking and ultimately the best results when you have a wide spectrum of folks who can offer something that may not be obvious to others based on diversity, be it gender, be it sexual orientation, be it race. There's room for improvement in the antitrust bar for more diversity in leadership positions. So, I thought I would make that a priority to educate and to advocate to get more LGBTQIA+ attorneys in leadership positions.

I believe that the most effective leadership comprises a diverse slate of talented, experienced individuals who are able to offer invaluable perspectives based on different experiences.

I always try to offer a diverse slate of attorneys and other professionals when I make an application for leadership to a court – gender diversity, sexual orientation diversity, racial diversity. It improves our ability to achieve the greatest results for the class. We've been very successful on that front, achieving several appointments by courts that recognized diversity as a factor in selecting leadership.

A small group of friends, all antitrust lawyers and economists, started an event in Washington, D.C., two years ago. It takes place during the ABA Antitrust Spring Meeting, an annual event attended by over 4,000 antitrust lawyers, economists and academics from around the world. Surrounding that event, we decided to organize a reception for LGBTQIA+ attorneys, economists, academics, students and allies. The first one was held in 2023 at a small art gallery. It was all word-of-mouth, and we were hoping for 30 or 40 people. We had over 125 attendees! It was wildly successful, so we held our second annual event last year in a larger art gallery, and we had over 250 people. It has now become the go-to event of the week. We are looking forward to our third annual event this April.

LD: That’s so great. And what kind of pro bono work do you focus on?

GA: It is some of the most important work I've done. I’ve represented LGBTQIA+ young men and women from Rwanda who escaped certain death for their sexual orientation and made it to the U.S. to seek asylum. During the process, they are held at the detention center at Newark airport in New Jersey. I worked with a team of junior associates, and I was responsible for overseeing those cases and mentoring the team during the course of the litigation, including conducting interviews and collecting whatever facts and evidence we could from the U.S. and Rwanda to support their cases. We ultimately presented our evidence to an immigration judge, which included direct and cross examinations. It was a tremendous experience, but also heart-wrenching. It brought a humanity to litigation which is not typically present in an antitrust case.

LD: What kind of conditions were these people facing?

GA: Horrible, unimaginable conditions. Just one example of the many that stay with me involves one young man who, based on his sexual orientation, as a student was regularly beaten and harassed. One time he was forced into a large latrine filled with excrement and maggots and forced to stay there. If that weren’t bad enough, he also had three fingers chopped off with a machete. Ultimately, he was chased out of his village one night by an angry mob coming to cause him harm; he escaped but his boyfriend was killed. He endured all of this just because he’s gay.

Another case involved a woman whose girlfriend was killed and mother targeted for a similar fate, all because she was gay. Even facing certain death in a country that called for the death penalty for those convicted of homosexuality, this young woman organized secret meetings in the back of her restaurant for LGBT+ folks in her community to meet and share stories and experiences. While danger was always lurking, she was prepared. She always kept a pocketful of loose change. When the police would conduct raids of her establishment, she would toss the change in the air, and the coins would bounce around the floor of the front room. While the police would be scurrying about to grab the money, her gay clientele would escape out the back door of the restaurant, their lives saved.

These were truly life-changing and career defining cases that showed me, early in my career, just how important and impactful the profession is not just in our society but around the world. This experience has also kept me grounded during my career and focused on what truly matters in the profession – serving your clients well. I am committed to bringing that level of advocacy to my current antitrust docket and clients, and at the same time I hope to remain a stalwart of the LGBTQIA+ community.