new york’s competition bar - hughes hubbard & reed

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First published in GCR Volume 19, Issue 4, April 2016

New York’s competition bar

New York isn’t just about the art of the deal. But there is no denying that corporate tie-ups drive much of the work at the city’s top law firms, including their antitrust practices.

Merger work particularly rewards the wisdom of experience: where a new lawyer might be gung-ho to force through whatever her clients desire, or be scared off by a second request, the gurus of the competition bar tend to acknowledge that some mergers have little chance of happening, yet also feel confident that they can persuade enforcers to let procompetitive deals through.

At the same time, firms cannot rely on any one attorney to be there forever. Even New Yorkers want to slow down someday.

Wachtell Lipton Rosen & Katz partner Ilene Gotts says, “As in prior years, some people retire, and the next generation of leaders emerge in the bar—this shift is happening in both New York and DC with notable leaders such as Joe Sims in DC retiring.”

The antitrust head of one New York office, speaking off the record, acknowledges a generation gap and says the firm is trying to identify a potential lateral in his or her 50s. He says there are many lawyers in their 60s and 70s, now starting to retire, and in their 40s, but not many at that target age. It is not a matter of urgency, though: “Talented young partners are coming along” and in the absence of a more senior lateral “then those people will develop even faster. I think we’ll be fine.”

The solution for some is to look toward Washington, DC. Firms with antitrust lawyers in both cities often insist on the seamless inter-office

integration of their practices and question the rationale for having separate surveys for each.

For example, at Simpson Thacher & Bartlett, Matt Reilly in DC appears to be the clear successor as chair of the antitrust practice to Kevin Arquit in New York. Reilly says the New York office “will always have an important presence” for the antitrust group, but acknowledges that there will be a transition.

Saul Morgenstern, who may be the most personally popular competition attorney in New York, says that sooner or later he will have to replace himself as head of Kaye Scholer’s practice. He sees an embarrassment of riches to do so, however, with a cohort of younger partners such as Laura Shores in Washington, DC.

Observers say some practices such as Wachtell’s will easily maintain leadership in New York through a bench big enough to provide new antitrust heads who are the equals of their predecessors.

And some chairs started young, such as John Harkrider at Axinn Veltrop & Harkrider, who took over leading the practice from Steve Axinn several years ago. Harkrider helped to found the firm when he was 30 and has yet to hit 50. His view of the New York competition scene is that “people are clustered around my age, or are 20 years older and retiring.”

While he once worried about the generational shift, Harkrider says representing Google in 2010 made him realise the edge lawyers who had grown up with technology had: “It’s never been a disadvantage to us to be young.”

It is the second-

largest antitrust

bar in the US, but

New York City never

takes the back seat.

Pallavi Guniganti

talks mergers,

investigations and

litigation with the

city’s best

http://globalcompetitionreview.com/features/article/40915/new-yorks-competition-bar/

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EliteLed by John D Harkrider, the Axinn Veltrop & Harkrider team punches above its weight. As a boutique with no corporate department, the firm must win deal work based on its reputation with co-counsel as well as companies. In addition to five partners and 13 associates in New York, it has three partners and four associates in nearby Connecticut spending most of their time on antitrust. Other lawyers see Axinn Veltrop more as merger advisors than as litigators, and Harkrider doesn’t necessarily disagree. “We’re good litigators, but we’re great deal people,” who analyse the chances of litigation and are willing to take it on, he says.

The Ball Corporation tapped partners Harkrider, Nick Gaglio and Mark Alexander to coordinate globally for its proposed US$6.7 billion purchase of rival can maker Rexam, a tie-up Harkrider says was “the hardest deal I’ve ever done”. This title doesn’t go by price tag, as Dell’s acquisition of EMC cost 10 times as much but cleared the US Federal Trade Commission without a second request. Here too Axinn Veltrop served as lead antitrust and global coordinating counsel to the buyer. Other merger matters included Stephen M Axinn’s advising private equity group HIG Capital’s subsidiary Caraustar in acquiring The Newark Group, which received a second request but was ultimately cleared without a remedy; and SunGard’s US$9 billion sale to Fidelity National Information Services.

Outside the merger world, Harkrider acted as lead defence counsel in a monopolisation case brought against Stanley Black & Decker and other power-tool makers, which is back in front of a Virginia federal district court after being partially revived on appeal. The firm continues to advise Google in a variety of matters – experience that Harkrider says has impressed upon him the lobbying and public relations aspects of antitrust work.

Cravath Swaine & Moore has kept hundreds of billions in deals going through the antitrust agencies while also maintaining plenty of significant litigation. Practice chair Christine Varney led the pursuit of clearances for Delhaize’s merger of equals with rival food retailer Royal Ahold; HJ Heinz’s purchase of Kraft Foods to create the third largest food and beverage company in North America; MarkWest Energy Partners’ acquisition by MPLX; and Precision Castparts’s acquisition by Berkshire Hathaway. The biggest of all is Anheuser-Busch InBev’s US$107.7 billion acquisition of SABMiller, which necessitates the US$12 billion sale of the Miller-branded businesses to Molson Coors. However, one client’s merger – Honeywell’s $90 billion bid for United Technologies – died quickly this year when the target insisted that even a former head of the US Department of Justice’s (DoJ) antitrust division and former FTC commissioner couldn’t get the tie-up past competition review. Mylan’s attempt at a hostile takeover of Perrigo also failed, but Varney and partner Yonatan Even represent Mylan now on a US$9.9 billion offer for rival generic drugmaker Meda.

Mylan also hired partners Evan Chesler, Rowan Wilson and David Marriott to represent the company after it lost its summary judgment motion in the Provigil pay-for-delay case. Chesler and Marriott are defending Alcon Laboratories against more than 50 putative class actions that allege the company colluded with other contact lens makers to establish minimum resale prices. But the client likely to require the most time from Chesler is American Express. After losing a bench trial to the DoJ’s antitrust division, the credit card company has a promising appeal pending at the Second Circuit, which stayed the lower court’s injunction after hearing Chesler’s arguments in December 2015. Partners Peter Barbur and Kevin Orsini are working on this and dozens of related private lawsuits.

l-r John D Harkrider,

Christine A

Varney, Clifford

H Aronson,

Yvonne S Quinn and Ronan P

Harty


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On the investigations and follow-on side, various teams of Varney, Even and partners Roger Brooks and Gary Bornstein are representing chipset company Qualcomm at the FTC and competition agencies in Korea, Europe and Taiwan in inquiries and court proceedings.

Davis Polk & Wardwell does not have an antitrust chair specifically for its New York office, but its four Who’s Who Legal: Competition nominees – Arthur F Golden, Ronan P Harty, Arthur J Burke and Joel M Cohen – lead a group working on many high-profile matters. The firm represents Bank of America in the Libor follow-on class action, and argued on behalf of the joint defence group against the plaintiffs’ Second Circuit appeal. Burke and Cohen have been kept busy by worldwide investigations of the Royal Bank of Scotland’s foreign exchange spot market and related class action litigation; JPMorgan Chase in the ISDAfix civil litigation; and Bank of America in the credit default swaps class actions, where the firm also serves as defence coordinating counsel. New matters involve the alleged rigging of US Treasuries and interest rate swaps. Golden, Harty and Cohen represented Nippon Express in criminal proceedings and civil litigation over price-fixing freight forwarding services between Japan and the US.

With the help of counsel James Haldin and David Toscano, Burke defended Comcast in class actions challenging restrictions on the broadcast of out-of-market professional hockey and baseball games, and ultimately settled on favourable terms. He had less luck for the telecommunications company in its attempted merger with rival Time Warner Cable, which was rejected by the DoJ and the Federal Communications Commission in April 2015.

But plenty of the other tie-ups advised by Davis Polk have had better fortune – the firm acted on too many successful billion-dollar deals to list in this space. It guided Citigroup in the sale of its subprime lending business, called OneMain, to its principal competitor Springleaf. Harty helped to design a strategy to ensure that Syngenta shareholders and the investing public properly understood the competition risks in an unwanted merger bid by Monsanto, and is now representing Syngenta in its $46 billion deal with ChemChina, which involves antitrust and foreign investment concerns.

Sheer size and some standout lawyers keep Skadden Arps Slate Meagher & Flom contending for the best – and most – work. Maria Raptis hit the ground running as a partner last year, with several matters alongside DC colleague Steve Sunshine. These include Valeant’s purchase of Salix Pharmaceuticals for US$15.8 billion, of Sprout for US$1 billion, and of Synergetics. Raptis also handles Sandisk’s €16.8 billion acquisition by rival flash and digital storage provider Western Digital.

New York practice leader Clifford H Aronson and partner Matthew Hendrickson will have to lift DuPont’s US$130 billion tie-up with Dow Chemical over high antitrust and political hurdles. Aronson and Kenneth Schwartz guided EMC in its US$67 billion acquisition by Dell, and Freescale Semiconductor in being bought by NXP. Aronson took drugmaker Endo International through its US$8.1 billion acquisition of Par; the US$1.65 billion sale of a men’s health business to Boston Scientific; and its own proposed, but now-terminated, US$11.1 billion offer for Salix.

Litigation occupied plenty of hours, as Paul Eckles, Karen Hoffman Lent and Raptis defended Allergan in reverse-payment settlement cases regarding its drugs Actos, Androgel and Lidoderm, and in September 2015, won dismissal of Actos indirect purchasers’ claims. Peter Greene and Boris Bershteyn represent JPMorgan Chase in the In Re Payment Card Interchange Fee and Merchant Discount antitrust litigation, and in the Forex and credit default swap putative class actions. Keyte and Eckles, along with partner Shepard Goldfein and counsel Matthew Martino, have resolved an antitrust class action against the National Hockey League. The firm also won dismissal of lawsuits against the PGA Tour and the Professional Rodeo Cowboys Association.

As a leader in financial services, Sullivan & Cromwell’s New York group has been kept hopping by the recent enforcement push against banks. Practice co-chair Yvonne S Quinn, with the help of partners David Braff, Karen Seymour, Alex Willscher and Ben Walker, negotiated a settlement on behalf of Barclays with all of the major Forex investigators in May 2015, and won a fine reduction from the DoJ based on the bank’s extraordinary cooperation and compliance improvements. In January 2016, partner Richard Pepperman got Goldman Sachs out of the aluminium warehousing litigation, and also represents Goldman in the Treasuries bid-rigging class action – while his colleagues represent Nomura, Barclays and JP Morgan.

Yet the firm’s client base remains diverse. Quinn advised Ace Limited on its acquisition of Chubb, a combination of insurers valued at US$28.3 billion, and Bright House Networks in its pending three-way merger agreement with Charter Communications and Time Warner Cable to create an US$80 billion cable company. In the deal-happy realm of pharmaceutical companies, the firm counsels Dyax in selling itself to Shire for $6 billion, and Idenix in being acquired by Merck for $4 billion.

Partner Steven L Holley guided Kraft Foods in its acquisition by HJ Heinz for US$46 billion, a deal that surprised some analysts by avoiding even a second request by the FTC – perhaps because it employed the pull-and-refile tactic. His client ZF Friedrichshafen also won FTC approval for its US$12.4 billion


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FIRMHEAD(S) OF COMPETITION

SIZEWHO’S WHO LEGAL NOMINEES

CLIENTS

ELITE

Axinn Veltrop & Harkrider

John D Harkrider5 partners13 associates

Steven M AxinnJohn D Harkrider

Ball, Charles River Laboratories, Dell, Google, HIG Capital, McKesson, Motorola Mobility, Silver Lake Partners, Black & Decker, SunGard Data Systems, Thermo Fisher Scientific

Cravath Swaine & Moore Christine A Varney11 partners25 associates

Evan R CheslerChristine A Varney

AB Inbev, Alcon, American Express, Avon, British American Tobacco, Cameron, DelHaize, ESPN, HJ Heinz, Morgan Stanley, Mylan, Qualcomm, Time Inc

Davis Polk & Wardwell N/A8 partners4 counsel13 associates

Arthur J BurkeJoel M CohenArthur F GoldenRonan P Harty

AstraZeneca, Bank of America, Citigroup, Comcast, Emerson Electric, General Electric, Hoffman LaRoche, JP Morgan, RBS, Syngenta, Tyson Foods

Skadden Arps Slate Meagher & Flom

Clifford H Aronson12 partners, 5 counsel22 associates

Clifford H Aronson Shepard Goldfein James A Keyte

Allergan, Barclays, Bausch + Lomb Inc., CEMEX, Citigroup, DuPont, EMC, Endo, Express Scripts, JPMorgan Chase, NCAA, NHL, Nokia, RBS, Stryker, Tenet Healthcare, Valeant

Sullivan & Cromwell Yvonne S Quinn18 partners2 of counsel25 associates

Steven L HolleyYvonne S Quinn

Ace, Kraft, BBA Aviation, ZF Friedrichshafen, Dyax, Idenix, Brighthouse, AlcatelLucent Banco Popular, Barclays, Goldman Sachs, Nomura, JP Morgan

Wachtell Lipton Rosen & Katz

Ilene Knable Gotts

5 partners2 of counsel1 counsel 3 associates

Michael H Byowitz Damian DiddenNelson O FittsIlene Knable GottsJoseph D Larson David A Schwartz

Charter, McGraw Hill, Dufry, Energy Transfer, Covidien, Dollar Tree, Cox Automotive, Sysco, Steris, Morgan Stanley, Allergan, Geeknet

purchase of TRW Automotive, another of the world’s largest automotive parts makers, but only after divestitures. For BBA Aviation to buy Landmark – a US$2 billion deal of direct competitors – the DoJ required asset sales as well. Along with a London colleague and co-counsel at Skadden, Holley guided French telecom company Alcatel-Lucent through its €15.6 billion takeover by Nokia, which concluded in January 2016 after gathering clearances from jurisdictions around the world.

The full-time competition lawyers at Wachtell Lipton Rosen & Katz focus on doing one thing extremely well: obtaining antitrust clearances for some of the largest deals in the US and internationally, working hand-in-glove with the firm’s storied M&A practice. Highly-regarded antitrust head Ilene Knable Gotts is one of five Who’s Who Legal: Competition nominees – the most of any firm in this survey – together with partners Joseph D Larson, David A Schwartz and Nelson O Fitts, and Michael H Byowitz, who recently became of counsel. From one office, they have worked

on many of the largest and most challenging deals of the past year.

Among them are Gotts’s handling of Charter Communications’ proposed US$78 billion merger with Time Warner Cable and US$10.4 billion acquisition of Bright House Networks; Schwartz and counsel Franco Castelli helping Nasdaq to buy International Securities Exchange; Larson’s advising of McGraw Hill Financial on its cash acquisition of SNL Financial for US$2.2 billion, and of Dufry in its US$3.8 billion acquisition of World Duty Free; Fitts’s counselling of the US$37.7 Energy Transfer tie-up with Williams; and Covidien’s US$50 billion sale to Medtronic, allowed by the FTC and other competition authorities after divestitures. The DoJ also was flexible with partner Damian Didden’s client Cox Automotive, which was allowed to buy Dealertrack after agreeing to a divestiture, but the FTC took two of his deals to court in 2015. The agency successfully blocked Sysco’s US$3.8 billion acquisition of rival food distributor US Foods, but not Steris’s purchase of UK-based sterilisation service provider Synergy Health.


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Litigation partner Stephen DiPrima pitched in at the Steris trial on the cross-examination of the commission’s witnesses, which shows how the firm’s capacity for competition matters extends to disputes. For example, Morgan Stanley receives counsel from litigation department co-chair Jonathan Moses in the Forex follow-ons, and litigation partner George Conway co-authored an amicus brief in the Namenda product-hopping appeal.

Highly recommendedAs typified by antitrust practice leaders Olivier Antoine and Dan Zelenko, Crowell & Moring provides merger, investigations and civil litigation services. Antoine focuses on deals, counselling and international issues; Zelenko on counselling and cartels, where he represents both companies and individuals, and acts in related follow-on litigation. The practice assists those involved in ongoing criminal investigations – auto parts, resistors, Libor and Forex – and plays a key role in major litigation matters, including ongoing representation of DaVita, Target and Viewsonic. The firm won a summary judgment for DuPont in the titanium dioxide litigation, a month before trial was to begin, and has a big government case ahead of it for United Airlines, which the DoJ sued for seeking to buy Newark airport takeoff and landing slots from Delta.

The small New York antitrust group has assisted on some of the biggest and most controversial deals of the past year. It was part of the core team that obtained DoJ clearance for AT&T’s US$67 billion acquisition of DirecTV, and supported the DC office in representing foodservice company Shamrock Foods in its opposition to the proposed Sysco/US Foods merger – a deal ultimately enjoined and abandoned. Antoine advised on antitrust aspects of Siemens AG’s sale of its hearing-aid business to investment company EQT and the Strüngmann family for US$2.7 billion, and of its healthcare IT business to Cerner.

Led by Peter Sullivan, Gibson Dunn & Crutcher’s New York practice group, in conjunction with antitrust lawyers from other offices, has been representing UBS since 2010 in connection with the dozens of lawsuits and governmental investigations concerning the bank’s alleged manipulation of benchmark exchange rates. In 2015, the firm negotiated a settlement of the DoJ’s Forex probe that avoided a monetary penalty for that matter, although UBS’s non-prosecution agreement in Libor was voided and a fine imposed. Headed by Sullivan and partner Lawrence J Zweifach, the team obtained outright dismissal of the Libor cartel and RICO claims filed against UBS in consolidated class and individual actions. In March 2015, UBS announced that it would settle with Forex plaintiffs for US$135 million, the

second lowest amount paid by a bank. Sullivan also defends the bank in the various commodity antitrust litigations – gold, silver, platinum and palladium – for which motions to dismiss the lawsuits in New York federal courts are briefed and pending.

Randy Mastro is the New York piece of a cross-country Gibson Dunn group that represents BNSF Railway in a multibillion-dollar class action that accuses the four major US railroads of fixing the prices of fuel surcharges. After class certification was reversed on appeal, the case was remanded to Washington, DC, district court, where the defence lawyers also called into question the credibility of the plaintiffs’ economic expert. John A Herfort has been counselling the world’s largest oilfield services company, Schlumberger, for nearly 30 years. He recently helped the company through DoJ and foreign antitrust agencies’ review of its US$14.8 billion proposed merger with Cameron International. The firm also provides counsel on deals and other matters for cosmetics company Coty and computer equipment maker Brother, and won FTC clearance for Sleepy’s acquisition by Mattress Firm for $800 million.

Kaye Scholer quietly continues to serve a number of clients targeted by antitrust lawsuits. Practice leader Saul Morgenstern, assisted by Margaret Rogers and Alice Huling, defends Penguin Random House against allegations that collusion between Apple and the five largest publishers to switch ebook pricing to an agency model left the independent bookseller plaintiffs unable to compete in the market. The firm won three summary judgments in these lawsuits at the beginning of 2016. Morgenstern and partner Jennifer Patterson represent Norfolk Southern in the Rail Freight Fuel Surcharge antitrust litigation, with potential damages of at least US$10 billion, and class certification back in federal district court.

Pharmaceutical companies, which he calls “a huge fat target” for litigation, also look to Morgenstern. With partner David Barr, he is defending Novartis against claims that it monopolised leukemia drugs by enforcing its patents on Gleevec – specifically, that it conducted “sham litigation” in an attempt to delay generic manufacturers from entering the market. He also defends Pfizer and its subsidiary Warner-Lambert in an antitrust action alleging the companies improperly enforced certain patents covering painkiller Neurontin against potential manufacturers of generic versions. Morgenstern and Patterson counsel on distribution concerns such as resale price maintenance and territorial restrictions. The New York lawyers also have worked on a few deals recently, for NGK and a poultry company.

O’Melveny & Myers is another litigation hotspot, led by Andrew Frackman. The firm currently has two large matters for the new American Airlines. US


Americas




CLIENTS

HIGHLY RECOMMENDED

Crowell & MoringOlivier Antoine Daniel Zelenko

3 partners2 counsel4 associates

N/AKoa Speer Electronics, DuPont, ViewSonic, AT&T, Shamrock, Siemens, United Airlines, United Technologies

Gibson Dunn & Crutcher Peter Sullivan4 partners7 associates

Peter SullivanUBS, Nissan North America, Nissan Motor, Brother, Teijin, Schlumberger, Care Core. Empire Merchants, Sleepy’s

Kaye Scholer Saul Morgenstern4 partners3 counsel11 associates

Saul MorgensternRobert Bosch, Brazil Foods, DeVry, NGK, Norfolk Southern, Pfizer, Novartis, Penguin Random House

O'Melveny & Myers Andrew Frackman3 partners2 counsel10 associates

N/A American Airlines, Capital One, Bumble Bee

Shearman & Sterling Beau W Buffier7 partners22 associates

Beau W BuffierWayne Dale Collins

Bank of America Merrill Lynch, Barclays, Intercontinental Exchange, Kraft, Liberty Global, Nokia, Pall, Sony, Sumitomo Rubber, Viacom, Zillow

Simpson Thacher & Bartlett

Kevin J Arquit8 partners4 counsel4 associates

Kevin J ArquitJoseph F Tringali

Office Depot, Trade Webs, StubHub, Blackstone, ChemChina, ADT, Deutsche Bank, NXP, Owens Illinois, JP Morgan

Weil Gotshal & Manges Steve Newborn

3 partners14 counsel and associates

N/ABridgestone, Calsonic Kansei Farmers Insurance, Panasonic, Sirius XM, Elite Rodeo Association, UnitedHealth, Taiyo Yuden, Chemtrade

White & Case Robert A Milne11 partners2 counsel36 associates

Joseph AnglandRobert A Milne

CertainTeed, Allergan, Boehringer Ingelheim, Pfizer, Saudi Aramco, Toshiba, Novartis, Experian, Anthem, Zimmer, Haier

Wilson Sonsini Goodrich & Rosati

Jonathan Jacobson4 partners2 counsel 6 associates

Charles E BiggioJonathan JacobsonChul Pak

Google, Live Nation, Netflix, Transitions Optical, Plantronics, Coca-Cola, Twitter, Spotify, Pandora, Mylan, InterDigital, Arista Networks, Hitachi Chemical

Winston & Strawn Jeffrey L Kessler12 partners2 counsel28 associates

Jeffrey L KesslerA Paul Victor

Panasonic, Hitachi Metals, NTN, Goldman Sachs, Treehouse, Nucor, Sanyo Electronic, Nippol Sekei, NFL Players, NBA Players, North American Soccer League

Airways v Sabre, which Frackman calls “a fascinating and very challenging case”, is now ready to go to jury trial. They recently settled American Airlines v Despegar, in which the largest Latin American travel agency brought antitrust counterclaims

when AA sued it for trademark violation, and continue to represent Capital One in various credit card litigations.

Partner Mark Racanelli represents clients in criminal investigations, with the most significant


Americas


current one for Bumble Bee in the DoJ’s probe of the tuna industry. He also provides counselling to several companies under the law firm’s flat monthly fee system, which gives clients unlimited access to the firm across a range of white collar issues.

Beau Buffier leads a very European-like competition practice at Shearman & Sterling. Along with fellow Who’s Who Legal: Competition nominees Wayne Dale Collins and Jessica K Delbaum, he focuses on merger and cartel work, though as in Europe, the latter includes defence against follow-on damages litigation. Buffier beat the doubters last year by guiding Zillow’s US$2.5 billion acquisition of Trulia through an intensive six-month review by the FTC, which ultimately concluded that allowing the two biggest online real estate portals to merge would not harm competition. He co-led a team that obtained unconditional Phase I clearance from the European Commission and the FTC, and unconditional Phase II clearance in China, for chemical company Albemarle’s US$6.2 billion acquisition of Rockwood.

Delbaum and Brussels partner Geert Goeteyn represented Indian pharmaceutical company Sun Pharma in its US$4 billion merger with Ranbaxy, which the FTC cleared with limited remedies, and Nokia on the sale of its HERE digital mapping and location services business for €2.8 billion. Pall’s acquisition by Danaher for US$13.8 billion required filing in eight jurisdictions, and was advised by Delbaum and Brussels partner Stephen Mavroghenis. Partner Richard Schwed continues to defend Bank of America and Nomura Securities International in class actions alleging collusion to manipulate ISDAfix, and helped Bank of America settle its Forex exposure in April 2015.

Simpson Thacher & Bartlett continues to win a fair share of prestigious matters on the antitrust circuit, though much of the work is now done by lawyers in Washington. The well-regarded Joseph F Tringali, now of counsel, still handles some of the biggest deals, such as US Foods’ attempted acquisition by Sysco. Peter Guryan and counsel Ellen Frye advised Owens-Illinois, the world’s largest glass container maker, on its US$2.15 billion purchase of Vitro’s glass container division. Guryan represented NXP Semiconductors in buying rival Freescale for nearly US$12 billion, and took the seller’s side in private equity behemoth Blackstone’s sale of Vivint Solar to green energy company SunEdison for US$2.2 billion.

Practice leader Kevin J Arquit has been particularly prominent in mergers reviewed by his old agency, the FTC. He represented Lorillard in its merger with Reynolds American, which brought together the second- and third-largest cigarette makers in the US and was cleared with the asset sale the companies had decided before they even

notified the deal. After advising Office Depot in its unconditionally-cleared merger with OfficeMax, Arquit has a tougher road on the company’s acquisition by Staples, which the FTC is challenging. On those deals – as well as Dutch company Ahold’s merger with Belgian rival Delhaize, and DirecTV’s acquisition by AT&T for US$48.5 billion – Arquit works closely with DC partners and fellow FTC alumni Matt Reilly and Sara Razi. That teamwork extends to litigation, such as StubHub’s lawsuit against Ticketmaster and the Golden State Warriors for monopolising the ticket resale market, which is now on appeal.

Weil Gotshal & Manges leaves merger work to its DC office, but New York partners Adam Hemlock, Eric Hochstadt and Steven Reiss stay busy with investigations and high-stakes litigation. Having negotiated a plea agreement and settlement for Bridgestone in the DoJ’s criminal auto parts investigation in 2014, Reiss and Hemlock continue to represent the company in the massive civil class action litigation. Another follow-on damages action alleged a conspiracy to fix prices and rig bids for various kinds of capacitors, and Taiyo Yuden was made a defendant in eight complaints. However, after more than seven months of internal investigations, Weil convinced both the direct and indirect purchaser classes not to name the company in their consolidated complaints.

One of the group’s biggest successes was a settlement, on behalf of all the commercial television stations that sued the musical performing rights organisation SESAC, and for the first time got claims against such an organisation past summary judgment. At this point the plaintiffs settled for 20 years of relief from demands for blanket licensing and tens of millions in damages for past harm. Weil represents Farmers Insurance against small car repair businesses that claim insurers engaged in a group boycott, but whose third try at a complaint was dismissed with prejudice. Hemlock argued the successful joint motion to dismiss another group boycott claim, brought against Aetna and Weil’s client UnitedHealth, albeit with leave to amend. Weil acted for a plaintiff, the Elite Rodeo Association, whose collusion and monopolisation claims survived the Professional Rodeo Cowboys Association’s motion to dismiss.

White & Case’s New York antitrust practice, headed by Robert A Milne, is as pharma-friendly as its DC counterpart. Lawyers there are litigating pay-for-delay cases for Allergan and its subsidiaries, including with regard to the drug Loestrin. There also are other variations on the theme of delayed generic entry, from the joint venture deal with a Korean Botox competitor, to the Namenda “product hopping” lawsuit brought by the New York attorney general. For Pfizer, the firm defends against allegations of fraudulently-obtained


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patents on Lipitor, Effexor and Celebrex. Milne says the intellectual property practice does “a huge amount of Hatch-Waxman patent litigation,” which is “a real sweet spot for our firm” that further boosts its skills at the patent aspect of reverse-payment settlement litigation. Outside the pharma realm, in a “Litigator of the Week”-worthy move, Milne won summary judgment for his client CertainTeed in the In re Drywall litigation, which no other defendant did.

The mergers at White & Case also are healthcare heavy, including representation of Anthem in its controversial tie-up with rival insurer Cigna; Omnicare in its unconditionally-cleared US$12.7 billion acquisition by CVS; and Zimmer’s closely-scrutinised US$13.4 billion purchase of Biomet. The firm won a quick antitrust approval early in 2016 for Haier to buy General Electric’s appliance business after GE’s deal with Electrolux collapsed under DoJ disapproval.

The antitrust practice in Wilson Sonsini Goodrich & Rosati’s New York office is small but highly-esteemed: of the four partners, three are Who’s Who Legal: Competition nominees. Among them is Jonathan

Jacobson, who argued on behalf of Hebei and North China Pharmaceutical in the Vitamin C appeal that the US must respect China’s statement that it had forced the companies to agree prices. He is still awaiting the Second Circuit’s decision more than a year after that hearing, but in the meantime he has been well-occupied with other matters.

Jacobson beat tying claims against entertainment promoter LiveNation, at both the trial and appellate levels, and helped the DC-based Wilson Sonsini team that lobbied against Comcast/Time Warner Cable for Netflix, the video streaming service that feared the cable companies’ combined leverage in the internet service market. “That had not been a recognised approach until we took on the matter,” Jacobson says. He led another such team in keeping the Ninth Circuit from reviving collusion claims against Netflix. Next up is trying to get a complaint back into court: Jacobson expects to argue in June for Mylan’s “product hopping” lawsuit against Warner Chilcott regarding the drug Doryx, which was tossed on summary judgment but has drawn amicus support from the FTC and antitrust sage Herbert Hovenkamp.



CLIENTS

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Cahill Gordon & Reindel Elai Katz5 partners1 counsel18 associates

N/ACredit Suisse, Barclays, AIG, GE Capital, Standard & Poor, Coca-Cola Enterprises

Hughes Hubbard & ReedEthan E LitwinElizabeth Prewitt

4 partners1 counsel8 associates

Ethan E LitwinDigital First Media, Cantor Fitzgerald, Soshin Electric, BMI, Cipla, Merck, AMC Networks, ITT

Jones Day David P Wales (DC)3 partners2 associates

N/ADeutsche Bank, Electrolux, NASDAQ, Procter & Gamble

Linklaters Tom McGrath4 partners 2 counsel20 associates

N/ANovartis, Deutsche Börse, Siemens, BP, Mitsui, Nomura Panalpina, Mercer SME

Paul Weiss Rifkind Wharton & Garrison

Aidan Synnott10 partners4 counsel25 associates

Moses SilvermanAidan Synnott

Time Warner Cable, Pace, News Corp, Major League Baseball, Deutsche Bank, Becton Dickinson, MasterCard

Willkie Farr & Gallagher William H Rooney 4 partners William H RooneyHudson’s Bay, Lagardère, MedAssets, FIS, Teva, Silver Lake Partners, Bloomberg, USAA, Mueller, Third Point


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Jeffrey L Kessler heads the national antitrust practice as well as the New York competition group at Winston & Strawn. With the exception of merger review maven Richard Falek, most of the 12 partners are dispute-oriented. The firm defends clients in almost every major follow-on multi-district litigation, with separate teams of attorneys counselling Panasonic and NEC in In re Optical Disk Drives, and representation of bearings maker NTN in several auto parts follow-on putative class actions. Goldman Sachs used the firm in credit default swaps antitrust litigation and in similar claims about the price and sale of US Treasury bills.

Yet Winston & Strawn also frequently appears on the plaintiffs’ side in the entertainment matters that are Kessler’s specialty – multiple competition experts said he is “probably the best sports antitrust lawyer around”. His clients are not just professional sports players; he currently represents student-athletes suing the National Collegiate Athletic Association and universities for fixing their compensation at the value of an athletic scholarship, and obtained a settlement for Liberty Christian Academy in May 2015 that allows it to join the Virginia High School League. In a more corporate vein, the firm acts for Treehouse Foods in its antitrust suit against Keurig for allegedly monopolising the market for K-cups used in beverage brewing machines.

RecommendedCahill Gordon & Reindel enters the New York survey this year on the strength of its financial services litigation and peers’ praise, which highlights the firm’s “excellent culture.” Competition practice chair Elai Katz draws plaudits as a “terrific, smart”, and “well rounded lawyer.” He says the firm prides itself on being generalist, which has allowed lawyers with experience in dealing with non-antitrust government agencies help to come up with “interesting and effective strategies” in the large banking benchmark cases such as Libor, Forex and Treasuries. Cahill has defended global banks against government investigations and follow-on class actions in the US and abroad, bringing to bear a deep knowledge of the combination of cooperation and rivalry that drives the industry’s business relationships. Much of the firm’s role in mergers is for banks that serve as underwriters, to help them understand the regulatory hurdles of the deal, including the cost of divestitures.

Antitrust work at Hughes Hubbard & Reed has roared back to life in the past several years after what national practice co-chair Ethan E Litwin calls a “moribund” period. He joined the New York office in 2010, while Elizabeth Prewitt came on board in January 2015 after 16 years at the DoJ. She counsels European clients under investigation and several

companies that wanted a recent prosecutor’s view on their compliance programmes. Prewitt has been immediately busy despite expecting a slow start in private practice, as she cannot work on certain financial services matters that she investigated while at the antitrust division. However, that doesn’t keep Litwin and partners Christopher Paparella and Marc Weinstein from doing so on behalf of Portigon and WestdeutschImmobilien Bank in Libor, and Cantor Fitzgerald in Treasuries. The firm also acts for The London Platinum and Palladium Fixing Company in a class action alleging it was created by banks to fix spot prices on precious metals. On the mergers side, Hughes Hubbard represented Indian generic drugmaker Cipla in the FTC’s investigation of its acquisitions of rivals; Merck in its US$9.5 billion purchase of Cubist; and ITT in buying Wolverine Automotive.

Since Fiona A Schaeffer left for Milbank Tweed Hadley & McCloy in 2014, Jones Day’s global antitrust practice chair David P Wales in Washington, DC, has been the antitrust contact for the New York office. The lawyers there provide support to cross-jurisdictional teams, particularly for the Ohio-founded firm’s home state client Procter & Gamble as it buys and sells billions of dollars of assets. Current deals include spinning off its beauty business to Coty for US$12.5 billion, which is subject to approval in the EU, US and more than a dozen other countries; its Camay and Zest brands to Unilever; its European pet care business to Spectrum and the rest to Mars for US$2.9 billion; and Duracell batteries to Berkshire Hathaway for US$4.7 billion. Partners Tracy Schaffer and Henry Klehm, and associate Eric Stephens are part of the Jones Day group defending Deutsche Bank in a putative antitrust class action brought by an Ohio union pension plan against banks that allegedly conspired to stifle competition in the credit default swaps market, raising fund managers’ costs.

The “big news” for Linklaters in the past year, according to New York antitrust chair Thomas McGrath, is its recruitment of Douglas Tween from Baker & McKenzie. A former DoJ prosecutor, he heads the US cartel and government investigations practice of the British firm, and currently represents clients in connection with auto parts, water treatment chemicals, financial services, and other cases in both the investigation and class action aspects. After representing Novartis in its complex exchanges of businesses with GlaxoSmithKline, McGrath continues to work as the pharmaceutical company’s go-to advisor for US antitrust law. Recurring client Deutsche Börse brings its recurring attempt to merge with the London Stock Exchange, while BP returned to Linklaters for multiple deals. Along with Jeff Schmidt, who splits his time between DC and New


Americas


York, McGrath says counsel Antonia Sherman is like a fourth partner who brings expertise in Hart-Scott-Rodino law.

Paul Weiss Rifkind Wharton & Garrison maintains a steady stream of work from clients and appreciation from peers, who say it has a “good bench” of “premiere litigators”. A few of the biggest matters narrowly dodged trial this year through 11th hour settlements, as in Major League Baseball’s deal with fans unhappy with the limits on television viewing of games, and News Corp’s with a host of consumer brands who had sued the company’s in-store marketing arm. Practice chair Aidan Synnott is known for merger work, where he says “my style is to be as cooperative as possible, not try to hide the ball.” It worked well for Pace in its acquisition by Arris; despite complainants from both both the set top box and network components industries, he persuaded the DoJ to close its investigation before a second request. There was no such luck for Time Warner Cable’s purchase by Charter at an antitrust division sceptical of telecoms deals. On the white-collar side, the firm represents clients in auto parts, financial services, and oil and gas.

Peers acknowledge the quality of Willkie Farr & Gallagher antitrust partners, with a DC lawyer

singling out Jeff Korn as particularly smart and capable. Despite being organised within the litigation department, from which it draws on associates as necessary, the antitrust practice spends much of its time on deals. In the past year, these have included multiple high-priced deals for retailer Hudson’s Bay and MedAssets’ US$2.7 billion acquisition by Pamplona Capital Management. Perhaps the matter that attracted the most attention was the FTC’s investigation of Third Point for possibly breaching the borders of the “investment only” exemption to HSR filing. Willkie Farr brought the hedge fund through the probe with a no-fine settlement, which itself was reached over the protests of two commissioners who said the agency read the exemption too narrowly. The firm represents MasterCard in the interchange fee class action, and Mueller in copper tubes and copper fittings follow-on litigation.

Several individuals in the New York antitrust bar stand out as well. These include the “talented litigator” William F Cavanaugh at Patterson Belknap Webb & Tyler; “very knowledgeable” Mayer Brown senior counsel Richard Steuer, ranked by another competition expert as “one of the best antitrust lawyers that’s ever been”; “antitrust nerd” Lisl J Dunlop at Manatt Phelps & Phillips; the “very good” Elaine Johnston at Allen & Overy; and Boies Schiller & Flexner co-founder David Boies, “a great lawyer”.


new york’s competition bar - hughes hubbard & reed

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