Larry Popofsky (Gittings Photography)
Orrick, Herrington & Sutcliffe senior counsel M. Laurence “Larry” Popofsky, who argued a 1977 U.S. Supreme Court case that shifted the course of antitrust law, died on May 9. The litigator and former chairman of now-defunct Heller Ehrman was 81.
Popofsky’s victory in Continental Television Inc. v. GTE Sylvania Inc., in which the Supreme Court ruled that business practices must be analyzed under the “rule of reason” legal doctrine, made efficiency and consumer welfare the focus of antitrust analysis, steering that field of law away from the more populist focus that it had previously.
“It turned it into much more of an economic enterprise,” said Orrick antitrust and complex litigation partner Robert Rosenfeld, who worked with Popofsky for four decades. “That was a huge sea change.”
Popofsky argued more than 30 appeals over the course of his career, most of them involving antitrust issues. In addition to Sylvania, his longtime clients included Ernst & Young LLP, Levi Strauss & Co. and Visa Inc.
Rosenfeld recalled that one of his first assignments as an associate at Heller Ehrman, which he joined just after Popofsky’s big Supreme Court win, was to work with Popofsky on some matters for Delta Dental. The operator of the largest dental plan system in the U.S. was pleased enough with their efforts that Rosenfeld still represents the insurance agency some 40 years later.
Popofsky joined Heller Ehrman in 1962, when it housed just 25 lawyers. Popofsky’s leadership helped shift litigation from a sideline at the firm to its mainstay. Rosenfeld’s very first encounter with his future mentor was when he was a summer associate at Heller Ehrman in 1976 and was assigned to Popofsky’s office for the summer, since the usual occupant was on sabbatical.
“Lest that sound like too much early anointment, I was told that I could not sit at his desk, but I could sit on the other side,” Rosenfeld said. “I teased him about that for years.”
Later, when Rosenfeld had his own desk, Popofsky would leave articles on his chair for him to find when he arrived at work. Their topics—anything from the rule of reason in antitrust analysis to the decline of the Ottoman Empire—reflected Popofsky’s wide-ranging interests, Rosenfeld said.
“I frequently asked Larry to read briefs, not because I wanted him to edit them, but because I wanted to get his big-picture sense,” Rosenfeld said. “If you had an issue, you’d just sit down with Larry and bat these ideas back and forth.”
Orrick senior antitrust counsel Stephen Bomse, who also received one of his first assignments from Popofsky as a Heller Ehrman associate in 1967, said he was “one of the smartest people I’ve ever met, without question.” But Popofsky was also modest about his own talent, and though that trait usually benefitted him, occasionally it worked against him, Bomse said.
“He believed that everybody in the courtroom was as intelligent as he was and would understand the arguments he was making with the same facility that he was making them,” Bomse said. “Unfortunately, that wasn’t always the case.”
For example, Popofsky’s intellectual acumen seemed to rub a judge the wrong way in Siegel v. Chicken Delight Inc., a case that he and Bomse worked on together. Afterwards, Bomse said, “one of our other partners, Bob Harris, gave Larry a cartoon that he’d torn out of The New Yorker. It was a lawyer standing in front of a judge, and the caption was ‘Use smaller words, counsel. The court is not an A student.’”
But Popofsky’s sophisticated approach helped him win many cases at the appellate level, Bomse said. A few years ago, when Popofsky was arguing a case before the U.S. Court of Appeals for the Tenth Circuit, the hearing aid he had recently begun wearing interrupted his speech with a burst of squealing.
“He had to apologize to the court and take it out and replace it,” Bomse said. “And of course we still won that appeal.”
Popofsky, Bomse and Rosenfeld all moved to Orrick in October 2008 from Heller Ehrman as the latter moved toward dissolution. Popofsky had served as Heller Ehrman’s chairman from 1985 to 1992, and Rosenfeld, who succeeded him as chair, said his attitude afterwards helped Rosenfeld and other lawyers cope with the trauma of seeing their firm implode.
“Yes, this was something he had created, and it was sad for all of us what happened, but for Larry it was, ‘OK, that was then and this is now, let’s move on,’” Rosenfeld said. “There were never incriminations. I think that was extremely helpful to a lot of us. For some of us at that point, this was the worst thing that had ever happened to us.”
Over the decades that Bomse and Poposky practiced together, they ate lunch together often—“Just two friends sitting and chatting over a sandwich,” Bomse said. They talked about anything but the law: politics, their children, travel and movies. Popofsky kept up with new cinematic releases until the end of his life, and the last movie he raved about to Bomse was “Elle,” the psychological thriller starring Isabelle Huppert that came out last year. A former Rhodes Scholar, Popofsky was also “a consummate Anglophile,” his lunchmate said.
“There was a joke that some of us shared that if they’d made a movie ‘Gidget Goes to Liverpool,’ he would have gone to see it immediately,” Bomse said of Popofsky.
Though practicing law brought Popofsky joy, he put his family first, Bomse said. He was dedicated to his wife, Linda, who died several years ago, and to his children—one of whom, Mark Popofsky, is now a partner at Ropes & Gray in Washington, D.C., where he chairs the firm’s antitrust practice.
Mark Popofsky, who helped represent the government in U.S. v. Microsoft Corp. before going into private practice, described it as “something of an accident that I ended up in antitrust,” though he “obviously was curious about what my father did, as any child would be.” Like Bomse, he remembers his father taking pains to come home to his family every night by 5 p.m.
But after Mark Popofsky went to law school—at Harvard, where his antitrust professor, Phillip Areeda, also once taught his father decades earlier—and accepted a position in the antitrust division at the U.S. Department of Justice, the elder Popofsky was thrilled to be able to discuss his work with his son.
“Once I was an antitrust lawyer myself, all he’d ever want to do with me at family gatherings was talk about antitrust analysis,” Mark Popofsky said.
Larry Popofsky is also survived by a daughter, Kaye Kramer, a former Hollywood talent agent who founded the Step Up Women’s Network, a national nonprofit. A memorial service for Popofsky has been set for Thursday, June 1 at 11:00 a.m. at the Temple Emanuel in San Francisco.
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