GCR 100 - 17th Edition

Japan

10 January 2017

Japan

Even as the amount of work supplied by domestic enforcement has declined, antitrust practitioners in Japan remain occupied with defending companies from foreign cartel investigations, merger challenges and follow-on litigation.

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Elite

ANDERSON MO¯RI & TOMOTSUNE benefited from Bingham McCutchen’s dissolution in 2015, as the firm’s antitrust lawyers and their clients in Japan found a new home. Partner Vassili Moussis says the ex-Bingham attorneys strengthened the firm – for example, by former Bingham head of practice Atsushi Yamada broadening Anderson Mōri’s expertise in abuse of dominance and bargaining power. The competition practice also hopes to grow internally; the firm welcomed a 44-associate class in 2016.

Partner Hideto Ishida focuses on defending clients from cartel investigations. Anderson Mōri has two cases pending before the JFTC: one for Qualcomm and the other regarding an alleged domestic cartel. The firm is coordinating for a Japanese capacitor client under investigation in seven jurisdictions, acting as a “control tower” to ensure that co-counsel pursue a unified strategy, and for clients in the vehicle shipping inquiry and freight forwarding civil litigation.

The firm is acting as local counsel for NXP Semiconductors in its US$11.8 billion acquisition of Freescale. Partner Etsuko Hara counsels on vertical issues and distribution and licensing agreements, particularly between foreign manufacturers selling into Japan and the domestic distributors.

The team that Kenji Ito leads at MORI HAMADA & MATSUMOTO has antitrust stars even beyond its four Who’s Who Legal: Competition nominees – in 2013, the firm added former JFTC chairman Kazuhiko Takeshima as an economic adviser and law professor Masahiro Murakami as special counsel. No wonder their rivals praise them as “talented guys” who are the go-to practice to handle local merger filings on international deals. Mori Hamada handles the full spectrum of competition law matters: distribution, intellectual property licensing, compliance and private litigation as well as cartels and mergers. At the moment, Ito says they are dealing with a lot of cartel cases – auto parts, financial sectors and capacitors – before the government and in private litigation.

The work for financial companies follows enforcement by the US Department of Justice and the European Commission, not the JFTC’s. The strong financial regulatory team at Mori Hamada is working alongside the competition practice on those matters. Clients also are seeking advice on how to structure distribution systems and handle dealerships to avoid problematic vertical restraints, as the JFTC considers amending its distribution guidelines. Meanwhile, technology and manufacturing companies are interested in how to handle standardisation in the wake of recent changes to the country’s IP guidelines.

The firm has also retained experts for specific deals to respond to economic analysis by the JFTC’s merger division. Ito says such analysis has grown more important in merger control. While their requests for more detailed information from the companies involved in a tie-up may be burdensome, he says, this tendency will strengthen merger review.

Eriko Watanabe, who chairs the competition practice at NAGASHIMA OHNO & TSUNEMATSU, was the third attorney and first woman hired by the JFTC, and even in private practice she retains close ties with the commission. Recently, her work has shifted to more cartel investigations. She says that in two domestic bid-rigging matters, the JFTC closed the file without issuing fines.

“Clients expect us to work on the international cases” whether they are cartel investigations or merger reviews, Watanabe says. She and most of her team have academic and practice experience from the US or Europe. Merger control clients are confidential, but recent deals on which the firm advised include acquisitions of a semiconductor wafer maker, an insurance company, an automatic drink vendor – a huge business in Japan – and a healthcare company.

Partner Koki Yanagisawa is also part of the firm’s litigation group, which has given her the opportunity to work in the small, yet burgeoning area of antitrust litigation in Japan, which includes follow-on damages claims after the JFTC imposes a cease-and-desist order. Many such cases are settled before going to court, she said, and like follow-on lawsuits around the world are impeded by the difficulties in calculating damages. Litigation is even more essential after recent amendments to the anti-monopoly law moved JFTC cases to the courtroom rather than the agency’s administrative chambers.

NISHIMURA & ASAHI rounds out the big four Japanese law firms, and Kozo Kawai heads its competition practice. He is praised by his peers as a “very active and fast-moving lawyer” who is “powerful in leading merger cases”. For example, he is handling the merger filings for both sides of Nippon Steel’s takeover of Nisshin Steel, a company valued at ¥144 billion. Working closely with foreign firms, especially Cleary Gottlieb, Nishimura & Asahi also is advising on Dow/DuPont and SanDisk/Western Digital, as well as deals in the paper industry – in short, the firm represents one or both parties to most of the tie-ups that get additional scrutiny by the JFTC.

Confidential cartel clients in international investigations are in the auto parts, vehicle carrier and capacitor industries. Domestically, the firm represents the largest company in the JFTC’s probe of road pavers. Nishimura & Asahi advises utility companies on how to avoid claims of anticompetitive discrimination; under Japanese law, their market power obliges them to compete fairly with new entrants.

Partner Madoka Shimada is working on an international case regarding Japan’s prohibition on abuse of superior bargaining power, which regulates the relations between large companies and their suppliers, distributors or retailers. The firm also advises major internet companies about matters related to unilateral conduct.

ATSUMI & SAKAI focuses on cartel work and prides itself on its relationships around the globe in organising such matters. Competition practice chairwoman Setsuko Yufu jokes that someone who wrote a textbook on sorting out global settlements of damages claims would deserve a Nobel Prize. She tallies that the auto parts cases required her lawyers to coordinate defence against enforcement agencies and follow-on litigation in more than 10 jurisdictions; the vehicle shipping case – which plays well into partner Tatsuo Yamashima’s expertise in that sector – entails coordinating in more than a dozen. They are also assisting clients in the textile and optical industries.

A busy second half of 2015 included compliance training for executives; Yufu attributes the newfound antitrust consciousness to investigations by the JFTC and foreign enforcers. Atsumi & Sakai also counsels the local subsidiaries of foreign companies on general compliance issues such as distribution and how to negotiate with counterparts under Japan’s prohibition of abuse of superior bargaining position.

The antitrust team at HIBIYA SOGO LAW OFFICES is praised as one of the best in Japan, with partner Toshiaki Tada singled out for marrying excellent analysis with reasoned practical judgement. The firm’s competition practice, headed by Tsutomu Nakato, has several investigations open, including the cardboard and road paver cartels – the latter a criminal case in which Hibiya Sogo represents three companies. The firm is also defending a company against accusations of unfair trade practices in the electric appliance market.

With fewer JFTC cartel cases to work on, Tada says he has become heavily involved in mergers. He has five at the moment, including assisting Kawaii of Nishimura Asahi on the Nippon Steel deal. His colleagues Nakato and Ryuta Kawai are working on civil damages cases – one such matter for 7-Eleven, which was sued after the JFTC found it had illegally pressured franchisees not to cut prices, ended in January 2016 when the Supreme Court refused to hear it.

Tetsuya Nagasawa in Osaka leads the competition team at OH-EBASHI LPC & PARTNERS. Much of the boutique’s antitrust work has been in representing companies under JFTC cartel investigation: NTN in the agency’s bearings probe; several auto parts makers; an electronic parts manufacturer; and a chemical manufacturer. Clients also include several supermarket and pharmaceutical companies in disputes over abuse of superior bargaining position.

However, the firm is a significant part of the civil litigation trend and Nagasawa identifies its work in this area as its most innovative. Recently, Oh-Ebashi represented an agricultural cooperative association in a private monopoly matter, and a consumer parts supplier, a clothing supplier and an equipment manufacturer in civil actions seeking injunctions or damages. It also advises multiple manufacturers seeking merger clearance.

A top US antitrust lawyer praises the “amazing amount of cartel work” done at YABUKI LAW OFFICES, headed by Kimitoshi Yabuki. The firm is a competition boutique in which all 11 lawyers devote at least half of their time to antitrust work. As such, it does no transactional work aside from a handful of notifications each year on smaller mergers.

Recently, it has represented companies in four separate auto parts investigations – one in vehicle shipping, one in capacitors – and is advising on a foreign probe of foreign exchange manipulation. Yabuki says the firm mainly works on cartels, bid rigging, dominance and unilateral conduct, as well as several damages and injunction cases to stop abusive or other violating conduct.

International

Led by Junya Ae and Akira Inoue, the competition group at BAKER & MCKENZIE contends for domestic as well as international matters, and Ae says it looks for lateral hires with Japanese and English language skills. On the other hand, Inoue notes that Baker’s nimble Tokyo office can take on local cases, such as the JFTC’s investigation of agriculture export associations, that rival firms might see as too small.

The pair have helped to represent companies in the capacitor and auto parts cartels, including a ground-breaking success for shock absorber manufacturer KYB in obtaining a fine discount from the US Department of Justice based on its corporate antitrust compliance programme. On the merger side, Ae represented FedEx in its acquisition of TNT before the JFTC; Meiji Yasuda Life Insurance in buying US-based StanCorp Financial; and Sumitomo on obtaining General Electric’s leasing business in Japan – deals worth hundreds of billions of yen each.

FRESHFIELDS BRUCKHAUS DERINGER competition practice heads Takeshi Nakao and Kazuki Okada have different specialties: Nakao in M&A, and Okada in litigation. But Nakao says that senior counsel Kaori Yamada, with her 100% focus on competition law, is the de facto leader of the team. He adds that the practice is expanding, particularly in merger work, and is looking to hire new associates and experienced lawyers.

Yamada’s two years of experience in London help to bridge the gap between Tokyo and the European headquarters of the firm, as do secondments from other offices. Japanese companies seek her advice on US and European antitrust law as well as Japan’s. She and her colleagues assist with many of Freshfields’ international clients on deals and other matters before the JFTC. Closer to home, they represent the historic and massive Mitsui conglomerate, and many electronics, chemical and mining companies.

The competition practice at MORRISON & FOERSTER/ITO & MITOMI, headed by Kei Amemiya, is praised for its “good work” and represents some of the best-known Japanese brands in the world: Fujifilm, Toshiba, Hitachi, Fujitsu and Sumitomo, to name a few. Amemiya advised Fujifilm on the antitrust aspects of its acquisition of Cellular Dynamics International. He says this is largely transactional work for repeat clients, but also some non-cartel investigations on Japan-specific legal issues such as subcontracting or the passing-on of the consumption tax.

Amemiya adds that the corporate side was “lucky to hire James Robinson” at the end of 2014, who is now doing a lot of cartel work, all of which is confidential. Companies have become more careful about compliance, Amemiya says – some now request annual trainings, where once they considered a seminar every five years to be sufficient.

Partner Toshio Dokei and senior counsellor Arthur Mitchell lead a small team in WHITE & CASE’s Tokyo office that includes highly respected associates Seiji Niwa and Takako Onoki, who have been appointed as non-governmental advisors for the JFTC to the International Competition Network. Local partner Mangyo Kinoshita left at the end of 2015 to found a boutique firm, but his former colleagues have picked up the slack on merger filings. The firm advised Zimmer on M&A and antitrust issues in its acquisition of Biomet, a rare Phase II review at the JFTC, which for the first time required a divestiture trustee.

In cartels, the firm is defending a local sweetener maker before the JFTC in administrative hearings. Coordinating with White & Case US lawyers, the attorneys in Tokyo also represent an auto parts manufacturer before the US DOJ, and a Japanese company in US follow-on litigation. Counselling work includes advice to online retail giant Amazon on distribution concerns, and to oil and gas companies regarding certain joint ventures. The firm is regular outside counsel to the Pharmaceutical Research and Manufacturers of America.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Anderson Mo¯ri & Tomotsune

N/A

9 partners

2 counsel

35 associates

Shigeyoshi Ezaki

Etsuko Hara

Hideto Ishida

Vassili Moussis

Yusuke Nakano

NXP, Qualcomm

Mori Hamada & Matsumoto

Kenji Ito

5 partners

1 senior counsel

2 of counsels

10 associates

1 adviser

Tsuyoshi Ikeda

Kenji Ito

Kana Manabe

Harumichi Uchida

Hideki Utsunomiya

Hitachi Limited, Applied Materials

Nagashima Ohno & Tsunematsu

Eriko Watanabe

7 partners

2 of counsel

3 advisers

2 senior associates

Kaoru Hattori

Mitsuo Matsushita

Eriko Watanabe

N/A

Nishimura & Asahi

Kozo Kawai

9 partners

1 counsel

30 associates

Kojiro Fujii

Kozo Kawai

Ryutaro Nakayama

Nippon Steel, Dow, Western Digital, Mitsubishi, Toshiba, Tokyo Electron, Showa Shell Sekiyu

Highly recommended

Atsumi & Sakai

Setsuko Yufu

8 partners

7 associates

Tatsuo Yamashima

Setsuko Yufu

N/A

Hibiya Sogo Law Office

Tsutomu Nakato

11 partners

3 associates

Ryuta Kawai

Tsutomu Nakato

Toshiaki Tada

Nippon Steel

Oh-Ebashi LPC & Partners

Tetsuya Nagasawa

6 partners

2 of counsels

6 associates

Tadashi Ishikawa

Tetsuya Nagasawa

Koya Uemura

N/A

Yabuki Law Offices

Kimitoshi Yabuki

6 partners

2 counsel

3 associates

Kimitoshi Yabuki

Qualcomm, Japanese Society for Rights of Authors, Composers and Publishers

International

Baker & McKenzie

Akira Inoue

Junya Ae

4 partners

2 counsel

10 associates

Akira Inoue

Mitsubishi Electric, FedEx, Abbott Laboratories, Meiji Yasuda, Dai-ichi Life Insurance, Okaya Electric, KYB, Daimler, Sumitomo

Freshfields Bruckhaus Deringer

Takeshi Nakao

2 partners

1 counsel

1 consultant

5 associates

Akinori Uesugi

Mitsui, Intel, Mars, Novartis, ABB, Bristol Meyers, Solvay

Jones Day

Hiromitsu Miyakawa

Shinya Watanabe

1 partner

1 of counsel

1 adviser

2 associates

Hiromitsu Miyakawa

Shinya Watanabe

None

Morrison & Foerster/Ito & Mitomi

Kei Amemiya

2 partners

2 counsel

4 associates

Kei Amemiya

Kentaro Hirayama

Fujifilm, Toshiba, Hitachi, Fujitsu, Sumitomo

White & Case

Toshio Dokei

Arthur Mitchell

3 partners

1 senior counsellor

1 special adviser

3 associates

None

Amazon, Pharmaceutical Research and Manufacturers of America, Toshiba, Toys ‘R’ Us, Visa, Zimmer

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