Background - Practices (Details)

Antitrust Mergers & Acquisitions

Contacts

Representative Engagements

Mergers & Acquisitions

  • AT&T in its $48 billion acquisition of DIRECTV
  • United Technologies in its $18.4 billion acquisition of Goodrich
  • Coventry Health in its $5.7 billion sale to Aetna
  • DuPont in its $4.9 billion sale of its coatings business
  • AT&T in its proposed $39 billion acquisition of T-Mobile
  • AT&T in its $86 billion acquisition of BellSouth
  • SBC Communications and Cingular Wireless in their $41 billion acquisition of AT&T Wireless (the largest all-cash transaction in U.S. history)
  • DuPont in its $6.3 billion acquisition of Danisco
  • Rio Tinto in the divestiture of U.S. coal assets
  • Reed Elsevier in its $4.1 billion acquisition of ChoicePoint
  • United Technologies in its $1.8 billion acquisition of the GE Security business
  • Sierra Health Services in its $2.6 billion acquisition by UnitedHealth Group  

Civil Antitrust Litigation

  • DuPont/Kolon litigation and related investigations. Obtained summary judgment for DuPont on antitrust counterclaims filed by Kolon, a leading Korean manufacturer, pertaining to alleged monopolization of para-aramid fiber (marketed by DuPont under the Kevlar® brand), and subsequently obtained $275 million in restitution and damages for DuPont in the related trade secrets matter. (Pending appeal)
  • Motorola Corr wireless antitrust litigation. Obtained a dismissal of all claims for our client, Motorola, in a significant lawsuit alleging multiple antitrust violations. The plaintiffs sought an injunction to stop defendants from selling their 4G-LTE chips, mobile devices and wireless services, along with treble damages and attorneys’ fees. Corr Wireless Communications, L.L.C., et al. v. AT&T Inc., et al.
  • TFT-LCD (flat panel) antitrust litigation. Represent AT&T, Motorola, Target, Sears, Kmart, RadioShack, Newegg, JACO, Viewsonic, Rockwell, and CompUSA in lawsuits alleging that LCD manufacturers participated in an international price-fixing conspiracy that resulted in damages in the billions of dollars.
  • DRAM antitrust litigation (and related matters). Recovered hundreds of millions of dollars for a leading multinational technology corporation against several DRAM suppliers for their role in an international price-fixing cartel.
  • Musical instruments and equipment litigation. Represent Yamaha Corporation of America in litigation alleging that musical instrument manufacturers, retailers and an industry trade organization conspired to raise the price of musical products and instruments. We recently obtained a dismissal with prejudice of all antitrust allegations. (Pending appeal.)
  • DuPont – titanium dioxide litigation. Represent DuPont in its defense of this class action litigation alleging price fixing in the titanium dioxide industry. Titanium dioxide is a key pigment used in the coatings, paper, and plastics industries.
  • Egg products antitrust litigation. We are defending Daybreak Foods, one of the largest producers and marketers of eggs in the United States. Plaintiffs allege supply constraints and price-fixing related to the sale of eggs in the United States. Daybreak was recently dismissed from the indirect purchaser class claims in the MDL but the direct purchaser class and opt-out claims are continuing.
  • Fresh and processed potatoes antitrust litigation. Represent Potandon Produce LLC, the largest marketer of fresh potatoes in North America. Plaintiffs allege supply constraints and price-fixing related to the sale of the majority of the approximately $6 billion of potatoes sold in the United States annually.

Criminal Antitrust Investigations and Litigation

  • Representing a major multi-national corporation in the auto parts price-fixing cartel investigation, currently the largest pending criminal antitrust investigation.
  • Negotiating a leniency petition for a corporate client in a global cartel investigation despite evidence of obstruction of justice by one of our corporate client's senior executives and his subordinate.
  • Negotiating a favorable plea resolution in a major global price-fixing investigation by persuading the U.S. Department of Justice (DOJ) staff that certain conduct constituted a separate conspiracy and was therefore beyond the statute of limitations.
  • Negotiating an amnesty agreement with DOJ whereby the client company and its employees avoided any criminal charges associated with a price-fixing conspiracy that resulted in indictments and convictions of other participants.
  • Persuading senior DOJ officials to overrule the staff recommendation to indict our corporate client for price-fixing, despite evidence from a competitor with amnesty.
  • Defending an individual in obtaining a judgment of acquittal at the close of the government's case in a criminal bid rigging trial.

Civil Antitrust Investigations and Internal Audits

The U.S. Federal Trade Commission (FTC) and/or state attorneys general have recently closed investigations without action with respect to clients we represented in the following industries:

  • Animal health products
  • Musical instruments
  • Printing supplies

We have also handled internal investigations, in the United States and in Europe, requested by companies in the following areas:

  • Oilfield services
  • Building products
  • Transportation

Antitrust Recovery

  • Recovered hundreds of millions for clients in litigation claiming price-fixing and cartel activity in the DRAM industry.
  • Recovered $90 million for clients from attempts to monopolize the copper market.
  • Recovered more than $60 million for clients in litigation claiming price-fixing and cartel activity in the rubber chemicals industry.
  • Negotiated substantial recoveries in a price-fixing class action against LCD manufacturers; we continue to represent several clients, and we are preparing for trial in 2013.
  • Negotiated recoveries of over $30 million for client group in claims against four parcel tanker shipping companies, stemming from their alleged involvement in a conspiracy to rig bids, fix prices, and allocate customers.

Antitrust Counseling Practice

  • Represented a major manufacturer of electronics and musical instruments, advising on its management of multiple dealer and distributor networks, including pricing, e-commerce and gray market issues.
  • Represented a major chemical manufacturer regarding multiple distribution networks, pricing, and production joint ventures.
  • Represented a major rail and shipping company in compliance reviews and training.
  • Represented a major technology and manufacturing company with respect to its relationships with aftermarket service providers for its products.
  • Represented a major manufacturer of aircraft engines, advising on all antitrust issues and providing training to members of its team.
  • Represented a major scuba gear manufacturer with respect to its distribution networks, pricing and gray market issues.

Health Care Antitrust Practice

  • Represented Coventry Health Corporation in its $5.7 billion sale to Aetna.
  • Represented Humana, Inc. in its acquisition of Arcadian Management Services.
  • Represented Siemens Healthcare in its global collaboration with Varian Medical Systems.
  • Guided Sierra Health Services through antitrust challenges related to its $2.6 billion sale to UnitedHealth Group, defending the deal through investigations by the DOJ, the Nevada Attorney General and the Nevada Division of Insurance, and obtained approval of the final consent judgment, clearing the way for the acquisition to close.
  • Obtained an early, voluntary dismissal for HealthNet Inc. in a lawsuit alleging a price-fixing conspiracy under California's Cartrwright Act and Unfair Competition Law.
  • Represented Detroit area hospital Bon Secours against charges it had conspired with other area hospitals to depress nurse wages.
  • Successful early termination of a DOJ antitrust investigation into a health plan's acquisition of a competing health insurer sponsored by a local provider organization.
  • Defeated plaintiff's request for a preliminary injunction and secured voluntary dismissal with prejudice of claims by a plaintiff provider network organization challenging alleged monopolization and refusal to deal by our client, a joint venture PPO sponsored by competing hospitals in Indiana.
  • Secured voluntary dismissal for a health insurance trade association of antitrust allegations by a putative statewide class of chiropractors that the association had conspired with HMOs to boycott chiropractors.
  • Defended a hospital system against charges that it had conspired to boycott the plaintiff hospital, and had attempted to monopolize the hospital market by offering variable discounts based on the number of hospitals included in a payor's PPO network and by excluding the plaintiff hospital from participation in our client's own HMO plan; we won summary judgment, which was affirmed upon appeal.
  • Represented DuPont Pharma (now Bristol Myers Squibb) in the Coumadin antitrust litigation and negotiated favorable settlement of a class action litigation alleging monopolization of the warfarin drug market with Coumadin.

Trade Associations

  • Represent an industry association in the steel products antitrust class action litigation.
  • Serve as outside general counsel to several trade associations, including:
    • The Association for Unmanned Vehicle Systems International
    • The National Association of Nuclear Pharmacies
    • The Bi-National Softwood Lumber Council
    • The Cable Fire Research Association, the Communications Cable & Connectivity Association
    • The Helicopter Association International
  • Provide ongoing antitrust compliance training for numerous associations in the petrochemical, aviation, health care, and manufacturing sectors.
  • Represent several associations responding to government investigations in the agricultural sector.

Antitrust E-Discovery

  • United Technologies’ acquisition of Goodrich
  • AT&T’s Proposed Acquisition of T-Mobile
  • Rio Tinto's divestiture of its Jacob Ranch mine
  • AT&T's acquisition of Centennial Wireless
  • Reed Elsevier's acquisition of ChoicePoint
  • AT&T's acquisition of BellSouth
  • SBC Communications acquisition of AT&T
  • SBC Communications' and Cingular Wireless's acquisition of AT&T Wireless
  • Pratt & Whitney's acquisition of Boeing's Rocketdyne business unit

Antitrust and Intellectual Property

  • Act as outside antitrust counsel to Via Licensing, the nation's leading administrator of IP licensing programs.
  • Act as counsel to the Open Patent Alliance, which was formed to accelerate the widespread adoption and deployment of WiMAX technology and products.
  • Counsel major corporate clients on issues of bilateral patent licensing, and on cutting-edge issues of competitor collaborations involving IP, in the context of multi-lateral licensing, standards setting, and patent pools.
  • Counsel clients and litigate antitrust and IP claims in federal courts, with respect to issues such as Walker Process fraud on the United States Patent and Trademark Office and sham litigation challenges to Noerr-Pennington protection.

European Competition Law

Mergers

  • Represented clients in second stage proceedings and participating in some of the most significant transactions reviewed under the European Union (EU) Merger Regulation both representing merging companies and third party interveners.
  • Managed the challenges that arise in simultaneous clearance procedure before the European Commission and the DOJ/FTC as well as most other merger control authorities across the globe.
  • At the EU level, we have obtained clearances for transactions in industries including telecommunications, pharmaceuticals, crop protection, the automobile industry, industrial components and the Internet.

Litigation

  • Involved in litigation before the EU courts in Luxemburg and in competition law-related litigation at a national level.
  • Developed one of the leading recovery practices in Europe representing large industrial clients wishing to recover damages and other value from cartelists, and we currently have active cases in the UK, Belgium and Germany.

Antitrust and Intellectual Property

  • Advised clients including a number of leading patent pools and undertakings with business critical IP across a range of IP/antitrust issues including standard setting, licensing and R&D arrangements.

Cartel investigations

  • Represented clients both in international investigations before the European Commission and the DOJ and in national investigations before various national authorities in Europe.

Abuse of dominance investigations

  • Represented companies both in investigations before the European Commission and in national investigations before various national authorities in Europe.
  • Defended clients in administrative fine procedures as well as bringing formal complaints.

Counseling

  • Offered business-focused advice on complex issues and "hot topics."
  • Counseled companies with strong market positions across the range of their activities to avoid abuse of dominance issues and advising on complex areas such as the treatment of aftermarkets and information exchange.
  • Provided advice on joint ventures and other agreements between competitors and deliver custom-made interactive compliance programs and training, including in relation to person criminal and civil liability.

Sector inquiries

  • Advised clients involved in sector inquiries and other industry investigations including the recent EU Pharmaceuticals sector inquiry and the United Kingdom market investigation in insolvency practices.

Consumer Protection

  • GreenPan™ Inc. Thermolon™ ceramic coated cookware advertising. Counsel to E.I. DuPont de Nemours and Company in successful challenge of GreenPan’s environmental, health, and safety advertising claims. (NAD case #5519 Oct. 2012).
  • Exergen Corp. Exergen temporal thermometers. Counsel to Kaz USA, Inc. in successful challenge of certain comparative performance advertising claims. (NAD case #5296 Mar. 2, 2011).
  • In the matter of Brain-Pad, Inc. Defended maker of jaw-joint protective mouthguards before the FTC regarding health-related performance claims. (FTC file #122 3073).