GCR 100 - 17th Edition

United States: California

10 January 2017

United States: California

California remains one of the top antitrust spots in the US – if not the world – with many prominent firms counselling clients on cutting-edge issues, including the technology and patent concerns stemming from Silicon Valley.

Elite

GIBSON DUNN & CRUTCHER’s California team leads the way for competition law in the state and also serves as the headquarters of the firm’s top 10 GCR Global Elite practice. The firm has a small army of antitrust lawyers, with 24 partners and 46 other competition attorneys, including Joel Sanders, Trey Nicoud and Robert E Cooper. Partner Daniel Swanson in Los Angeles co-chairs the firm’s antitrust group with partners in Dallas, New York and Washington, DC – together tackling antitrust issues for an impressive list of clients.

The firm scored victories in traditional antitrust matters: for Chevron, helping it secure a dismissal in a price-fixing conspiracy case; for Apple, helping it secure favourable summary judgment in a conspiracy case; and for new client Swisher, for which the team got a US$44 million jury verdict vacated in a Section 2 case. Gibson Dunn stuck with Apple’s e-books case against the Department of Justice in an effort to get Supreme Court review, which was ultimately denied. Gibson Dunn also serves as counsel to Dreamworks in the anti-poaching case filed by a group of former animator employees against several major entertainment companies; the defendants are seeking to appeal class certification. And the California team is involved in litigation for Uber, which seems to constantly find itself in the courts for allegedly fixing prices by setting the same rate for all its drivers while defining them as independent contractors rather than employees.

In the past year, the team won two significant trials using competition arguments outside the antitrust context. In July 2016, after five years of litigation, the firm obtained a US$3 billion jury verdict for Hewlett Packard for Oracle’s refusal to make its database and related enterprise software available on some of HP’s enterprise servers. Gibson Dunn attorneys helped NASDAQ OMX beat the Securities Industry and Financial Markets Association, which claimed that certain NASDAQ data products were not subject to significant competitive forces, in June 2016 after a bench trial. LinkedIn also retained the firm in this past year for its US$26.2 billion acquisition by Microsoft.

Craig A Waldman heads the California competition practice at JONES DAY, which has offices in Los Angeles, Silicon Valley and San Francisco. In total, the firm has nine competition partners and six associates working across the state, including partner Bob Mittelstaedt. Rising star Kate Wallace transferred to the Boston office, where she continues to focus on antitrust issues. Jones Day remains an elite antitrust firm that can tackle almost any competition-related issue that comes up for any of its clients.

The firm is highly active in the merger world, litigating five deals in the last 12 months, with a lot of good work done out of the California practice. Jones Day is representing Aetna in its massive health insurance merger with Humana. Most of that work is handled in Washington, DC, but associate Ausra Deluard in the San Francisco office is assisting. Waldman led the way on advising Atmel, a microcontroller manufacturer, regarding its US$3.56 billion sale to Microchip Technology, a deal that closed in April 2016; and he headed the team handling Wabtec’s US$1.8 billion acquisition of Faiveley Transport, a deal between two products and services providers for the railway industry that the DOJ and European Commission cleared with conditions.

Turning to conduct, a Jones Day team led by partner Eric Enson in Los Angeles defends Holy Stone Enterprise in an ongoing class action suit alleging collusive behaviour among capacitor makers. Partner David Kiernan in San Francisco led the team counselling Sony Pictures Entertainment, which settled in 2016, in a high-profile case brought by a class of current and former employees at Sony, Disney, Lucasfilm, Pixar, Blue Sky Studios and ImageMovers Digital, who said the animation companies conspired to suppress their compensation. The firm was retained after successfully representing Adobe in the similar High-Tech Employees case.

Christopher Yates leads the 13-partner, 33-associate California antitrust team at LATHAM & WATKINS, which handled a variety of cases this past year. Daniel Wall, Al Pfeiffer and Niall Lynch are among the partners that provide counsel to an impressive list of clients. Over the past year, Latham’s California practice has continued its track record of success and has moved up in the market’s perception of its skill and ability in domestic and global antitrust. The California team anchors the global antitrust practice of more than 140 lawyers, and demonstrates an ahead-of-the-curve presence in the intersection of intellectual property and antitrust, particularly as it relates to the technology industry.

A team led by Lynch represented Ferrellgas Partners, which sold Blue Rhino propane tanks, against direct purchasers alleging a section 1 Sherman Act violation following a Federal Trade Commission enforcement action. The US Court of Appeals for the Eighth Circuit upheld a Missouri district court’s dismissal on statute of limitations grounds. Latham also won reversal of a jury verdict this past year in the Cox Communications trial. The San Francisco team worked with colleagues in Washington, DC to convince the court that plaintiffs did not introduce any evidence to support the jury’s finding that Cox’s conduct had precluded any manufacturer of set top boxes from leasing them to Cox subscribers. Wall, Tim O’Mara and Sadik Huseny in San Francisco secured a complete victory for Ticketmaster in a suit by third-party ticket seller StubHub, which alleged that Ticketmaster and the Golden State Warriors conspired to preclude consumers from reselling basketball tickets on StubHub, in order to force them to use an NBA-branded version of the Ticketmaster resale platform instead.

Latham also did considerable work on mergers this past year, such as advising on the tie-up between Globe Specialty Metals and Grupo FerroAtlantica, which created the world’s largest silicon metals producers. That deal required clearance in four jurisdictions, including a 10-month DOJ review. The firm also helped obtain antitrust clearance in seven jurisdictions on behalf of Avago Technologies in its US$37 billion acquisition of Broadcom – the largest semiconductor acquisition ever. Lastly, a team led by partner Hanno Kaiser in San Francisco is helping Microsoft obtain antitrust clearances in the European Union for its US$26.2 billion acquisition of LinkedIn, the professional networking platform.

Dan Sasse and Jason Murray leads the California antitrust practice at CROWELL & MORING, which includes six partners, four counsel and 18 associates. Chahira Solh in Orange County was promoted to partner this past year, and Angela Yu and Christie Stahlke promoted to counsel. Josh Stokes left the firm to become a name partner at the Berry, Silberberg & Stokes boutique.

In the past year, the Crowell team experienced success in all facets of the practice: headline mergers, criminal cartel investigations and high-stakes antitrust litigation for Fortune 100 companies and other high-profile clients. Some of the notable wins include the summary judgment decision in favour of Ericsson regarding an unfair competition claim under state law. The case was scheduled to go to a federal jury trial in October 2016 for the other claims and will likely result in the first court decision to establish worldwide fair, reasonable and non-discriminatory (FRAND) licensing terms for a global portfolio of standard-essential patents in telecom. On the merger front, a Crowell team is helping handle antitrust matters for telecom giant AT&T in its US$85 billion acquisition of media conglomerate Time Warner, although Arnold & Porter has taken the lead.

Brian C Rocca heads up the California antitrust practice at MORGAN LEWIS & BOCKIUS, which is one of the most active and successful practices in the state, with eight partners and five associates handling some large clients. Frank Hinman, the former head, retired this past year, but that did not slow the team down. It continues to advise the likes of Google, Uber, Intel, Comcast and more.

This past year, the California lawyers assisted in the firm’s representation of Uber in its antitrust action in Pennsylvania. Rocca and the team provide strategic counselling and antitrust advice to Google on Android and other services on a global basis, including by engaging with regulators and supporting the company’s policy work in a variety of areas. Morgan Lewis is defending Comcast against a California federal court action filed by Clear Connection, which previously contracted to provide cable-installation services for Comcast. The litigation arose from Comcast’s termination of the contract, pursuant to a contractor realignment plan, which Clear Connection alleges was anticompetitive.

The California team at MORRISON & FOERSTER, led by Penelope A Preovolos and others, remains as busy as ever, with a considerable amount of multi-jurisdictional and cross-office work on its docket. The firm’s clients are market leaders in the industries that are the current focus of antitrust investigations and litigation not only in California, but around the globe. The firm has taken advantage of its position in the Bay Area and made high-tech antitrust and IP work a staple of the practice, in conjunction with the firm’s active IP shop. MoFo represents leaders in the airline, small package delivery, and freight industries, in significant merger reviews, government investigations and civil litigation.

Derek Foran and other San Francisco litigators have been involved in defending an international electronics company in US and international cartel damages claims arising out of allegations of price-fixing of LCD screens. Paul Friedman has worked with a cross-office team to help UPS pay its way out of the freight forwarding antitrust litigation that landed in New York federal court. Friedman and a joint Los Angeles/San Francisco team of lawyers act for UPS in Max Blecher’s Ground Shipping Collusion case as well.

Bo Pearl and Ken O’Rourke lead the West Coast antitrust practice at O’MELVENY & MYERS, and the team benefits from working across offices on a variety of issues. The firm has an experienced stable of antitrust attorneys, including former FTC chief trial litigator Ted Hassi in Washington, DC, and others in California.

Last year, the O’Melveny team continued to counsel US Airways, as part of the American Airlines Group, in its ongoing suit with Sabre, one of the world’s largest global distribution systems. Century City-based partner Chuck Diamond led the way for the California team in the matter, which went to trial as GCR 100 went to press. Pearl, Daniel Petrocelli and David Marroso headed the team that scored a win for longtime O’Melveny client Top Rank in a high- profile antitrust and unfair competition lawsuit against Al Haymon. Documents obtained through O’Melveny’s lawsuit establish that Haymon’s unlawful plan included forcing boxers and broadcasters to enter exclusive agreements prohibiting them from doing business with Top Rank and other legitimate promoters. Haymon agreed to pay Top Rank a very favourable – albeit confidential – settlement.

San Francisco partner Bob Rosenfeld leads the antitrust practice at ORRICK HERRINGTON & SUTCLIFFE, which maintains an impressive list of high-tech clients, based out of Silicon Valley and elsewhere. Three other partners help Rosenfeld in San Francisco and one works out of the firm’s Silicon Valley office.

Orrick’s practice is highly regarded for its cartel-related expertise. In a matter on behalf of several Idaho potato growers, the firm is at the forefront of legal questions regarding the antitrust limits of grower cooperatives. A San Francisco trio of Rosenfeld, partner Russell Cohen and senior counsel Stephen Bomse work on the case, which has implications for several major agricultural industries. Over the past year, the practice has been working on LCD cartel-related cases for Sony, and on matters for multiple companies relating to US DOJ probes into auto parts, capacitors, ball bearings and others.

The Chicago headquarters and New York practice continue to lead the way for more than 100 WINSTON & STRAWN competition attorneys worldwide, but California acts as the third pillar. Longtime antitrust litigator Robert Pringle heads up the practice from San Francisco, which spends its time in and out of the courtroom for a variety of clients on both the plaintiffs’ and defendants’ side of litigations, including Solyndra, Discover Financial Services and Panasonic Avionics.

Winston currently represents NEC in the Optical Disk Drives follow-on action pending in the Northern District of California. The damages claimed by the various plaintiffs total in the billions of dollars, making this one of the largest actions of its kind ever filed. In a headline-grabbing case that may forever alter the landscape of college sports, Winston & Strawn is also representing college football and basketball players in a federal class action antitrust lawsuit seeking injunctive relief against the National Collegiate Athletic Association and the five NCAA “power conferences”, alleging they acted as a cartel to eliminate competition for the athletes.

Partners Daniel Asimow, James Speyer and others continue to handle multiple high-profile matters for ARNOLD & PORTER alongside the firm’s other US and international competition lawyers. Asimow is representing Endo Pharma in the Lidoderm pay-for-delay litigation in the US District Court for the Northern District of California. The team in San Francisco is assisting a multi-office Arnold & Porter group defending Millennium Inorganic Chemicals in the Titanium Dioxide antitrust litigation, also in the Northern District of California. The firm successfully defended the Golden State Warriors in antitrust litigation brought by StubHub against the professional basketball team and Ticketmaster, alleging that the two monopolised the ticket resale market. The California attorneys have worked on behalf of a wide variety of leading companies, including General Electric, Toyota, Visa, Philip Morris, BP, LinkedIn and NBC Universal.

COOLEY’s antitrust practice continues to grow. California partners include Hart-Scott-Rodino specialist Francis Fryscak in Palo Alto, and litigators John Dwyer and Beatriz Mejia in San Francisco. Mazda Antia also assists the team from San Diego. Significant mergers handled by Fryscak and the California team in the last year included Jazz Pharmaceutical’s US$1.5 billion acquisition of Celator Pharmaceuticals, SteelBrick US$360 million acquisition by Salesforce.com, and Justin’s US$286 million acquisition by Hormel Foods Corporation. Litigation successes over the last year include obtaining summary judgment for pharmaceutical company Patheon in litigation brought by joint venture partner Procaps, which sought US$380 million. The cross-office Cooley team, which includes California partner Antia, is now defending that victory on appeal before the Eleventh Circuit.

Partner Phillip Warren is the only former government official in COVINGTON & BURLING’s California operation, which remains active in working alongside the DC partners. Warren led the San Francisco field office of the DOJ’s antitrust division for 12 years. He personally oversaw scores of leniency applications and “markers” during his time in the division, and was integral in developing the US leniency programme and related policies. Partners Evan Cox, Jeffrey Davidson, Anita Stork, Sonya Winner and Emily Henn round out the California team. Stork successfully argued on behalf of Alps Electric in opposition to a motion by the indirect purchaser plaintiffs to consolidate 18 of the parts cases into one massive case that would have geometrically increased Alps’ exposure to damages from the increased joint and several liability.

Christopher Hockett continues to lead the way for DAVIS POLK & WARDWELL in California. The team has been actively involved in a number of cases, including achieving complete victory for T-Mobile in a multibillion-dollar antitrust class action alleging that four wireless carriers (T-Mobile, AT&T, Sprint and Verizon), along with the industry trade association, fixed per-use text-messaging rates. In November 2015, the Supreme Court denied the plaintiffs petition for writ of certiorari. Davis Polk also advised T-Mobile as lead trial counsel in a consolidated litigation in the United States District Court for the Southern District of New York. That lawsuit alleged a conspiracy with the other national wireless carriers to require machine-generated text messages to be sent in bulk using common short codes at inflated rates, in violation of the antitrust laws. On 16 July 2015, the arbitration panel issued an order granting T-Mobile’s motion to dismiss all claims that accrued prior to April 2011, substantially reducing the scope of claimants’ damages claims. The remaining claims asserted by three individual customers were favourably settled in May 2016.

Litigation expert Holly House continues to lead the way for PAUL HASTINGS’ vibrant California antitrust practice. House is a crucial cog in many of the firm’s most prominent antitrust matters, and she often works across offices on major court cases. Chief among them is her work in the New York City tour bus litigation, stemming from a DOJ investigation of an allegedly anticompetitive merger between two rival tour bus groups. She also remains involved, along with Sean Unger, for LG Display in the LCD cartel litigation and the numerous spin-off cases that continue in the Northern District of California federal court. Thomas Brown, meanwhile, worked with a group of DC partners to help eBay settle its no-poach agreement case against the DOJ and the state of California without admitting wrongdoing.

Marie Fiala leads a busy, eight-partner SIDLEY AUSTIN team on the West Coast that advises Huawei in a FRAND-related standard essential patent infringement lawsuit filed in May 2016 against Samsung in the Northern District of California. Huawei is an industry leader in standard essential patents for the 4G LTE technology that is employed in today’s smart phones, including those sold by Samsung. Peter Huston, the DOJ San Francisco field office’s former deputy chief, has been active since joining Sidley in February 2015. He is part of the team counselling Johnson & Johnson Vision Care in its opposition to legislation proposed in several states to ban unilateral pricing policies in the contact lens industry. Sidley has assisted Johnson & Johnson Vision Care in all its efforts, including testifying as an antitrust expert before legislative committees.

Heather Tewksbury, a former DOJ prosecutor, continues to lead the California antitrust practice for WILMER CUTLER PICKERING HALE AND DORR. She helped to kickstart the firm’s West Coast shop, and is joined by Chris Casamassima and an associate working on some significant cases. Tewksbury has counselled Chesapeake Energy in defending against the oil and natural gas collusion case brought by the Michigan attorney general. She also represents Elna in the ongoing follow-on damages action against capacitor makers, and pitched in as counsel to Baker Hughes in litigating a defence of its failed merger with Halliburton.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Gibson Dunn & Crutcher

Daniel G Swanson

24 partners

46 other

Rachel S Brass

Trey Nicoud

Joel S Sanders

Gary Spratling

Daniel G Swanson

Apple, Chunghwa Picture Tubes, UBS, Hewlett-Packard, Aetna, Woodbridge, NEC Token

Jones Day

Craig Waldman

9 partners

6 associates

Craig Waldman

Jeffrey A LeVee

Adobe, Aetna, ICANN, Intuit, Linear Technology Corporation, Presbyterian Healthcare, ResMed, SAP, Sony Pictures Entertainment, Sutter Health, Synopsys, Wabtec

Latham & Watkins

Christopher Yates

13 partners

33 associates

Hanno Kaiser

Niall E Lynch

Al Pfeiffer

Karen E Silverman

Daniel M Wall

American Airlines, Apple, Avago Technologies/Broadcom, Capital One, Cision/GTCR LLC, Cox Communications, CooperVision, Emerson Electric, Express Scripts, Holding Company

Highly recommended

Crowell & Moring

Wm Randolph Smith

6 partners

4 counsel

18 associates

Daniel Sasse

Alcoa, Amazon, AT&T, Blue Cross Blue Shield, Cardinal Health, Chemours, DaVita Healthcare Partners, DuPont, Enterprise Holdings, Ericsson, General Motors, HP Inc

Morgan Lewis & Bockius

Brian C Rocca

8 partners

5 associates

None

California Beer & Beverage Distributors, Comcast Corporation, Google Inc, Ingomar Packing Company, Intel Corp, SanDisk AB, Shell Oil Products US, The Common Application, Inc

Morrison & Foerster

Penelope Preovolos

7 partners

16 associates

Penelope Preovolos

N/A

O'Melveny & Myers

Kenneth R O'Rourke

Bo Pearl

4 partners

3 counsel

13 associates

Kenneth R O’Rourke

Michael Tubach

Impax Laboratories, Samsung, Rohm Semiconductor, FedEx, American Airlines

Orrick Herrington & Sutcliffe

Robert A Rosenfeld

3 partners

2 senior counsel

1 of counsel

1 managing associate

1 contract attorney

Robert A Rosenfeld

M Laurence Popofsky

Stephen V Bomse

Microsoft, Apple, potato farmers in Idaho, Sony, DTS, LG, Salem Health and Salem Hospital, DHL, Crane Co, Sharp Corporation, IronPlanet

Winston & Strawn

Robert Pringle

8 partners and counsel

8 associates

None

NEC Corporation, Nucor Steel, Panasonic, Abbott Laboratories, Driscoll’s Berries, Solyndra Residual Trust, Cisco Systems, Discover Financial Services

Recommended

Arnold & Porter

James Speyer

2 partners

1 counsel

1 associate

None

Endo Pharma, Millennium Inorganic Chemicals

Cooley

Francis Fryscak

3 partners

1 associate

None

Sony, Hsuan Bin Chen, eBay, Patheon

Covington & Burling

N/A (Thomas Barnett & Deborah Garza in Washington, DC)

6 partners

1 associate

None

Samsung, Expedia, the National Football League, Disney, Microsoft, Alps Electric

Davis Polk & Wardwell

Christopher B Hockett

2 partners

10 associates

Christopher B Hockett

T-Mobile, Innolux Corporation, NBC Universal, USGA

Fenwick & West

N/A

N/A

Mark Ostrau

N/A

Paul Hastings

Holly House

3 partners

7 associates

Holly House

Align Technology, Cave Consulting Group, ISSF, Korean Airlines, Samsung, Sara Lee, Twin America, eBay, UTi

Sidley Austin

Marie L Fiala

8 partners

4 associates

None

BorgWarner, CMS Energy, Johnson & Johnson Vision Care, Huawei Technologies, Pacific Gas and Electric 
Company, Quest Diagnostics, United Airlines, Kimpton Hotel and Restaurant Group 


Wilmer Cutlering Pickering Hale and Dorr

Heather Tewksbury

2 partners

1 associate

None

Chesapeake Energy, Elna Co, Bristol Myers Squibb

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