GCR 100 - 17th Edition

White & Case

10 January 2017

White & Case reprised its role from last year as the eleventh-best firm in the Global Elite, on the strength of its antitrust litigation, practice size and breadth of geographic coverage. With regard to the latter factors, the firm doesn’t quite reach Baker & McKenzie levels of omnipresence, but ranks as an outstanding practice in Brussels, highly recommended in France, New York, Russia, the Czech Republic and Washington, DC, and is recommended by GCR in Japan and Slovakia too.

Merger ranking - Litigation ranking =6 Cartel ranking -
Global head J Mark Gidley
Number of jurisdictions with a competition team 9
Practice size 191
Partners 45
Counsel 25
Percentage of partners/counsel in Who's Who Legal 17
Associates 121
Lateral partner hires 4
Partner departures 2
Former enforcers 8

Global practice chairman J Mark Gidley is among the firm’s ranks of former competition enforcers, having served as the head of the US Department of Justice’s antitrust division temporarily in the early 1990s after a stint as deputy for regulated industries. Notable moves in the past year include Ian Forrester QC’s departure from the Brussels office to become a judge at the EU’s General Court, and the addition of a trio of partners from McDermott Will & Emery in Boston.

The firm once again brought inventive strategies to the courtroom, as it represented the only defendant to escape the Domestic Drywall antitrust litigation. Loading CertainTeed’s summary judgment motion with more than 90 witness declarations, saying the company never discussed price fixing at any of the times that plaintiffs had claimed were opportunities for collusion, won partner Robert Milne recognition as Litigator of the Week by GCR USA. White & Case remains go-to counsel for pharmaceutical companies such as Pfizer, Warner Chilcott, Allergan, Forrest Laboratories, Boehringer Ingelheim and Par that face accusations of pay-for-delay and product-hopping to keep generic versions of drugs off the market.

Both cartel and non-cartel conduct fueled work for the firm worldwide. It represented Grupo Aeroméxico during the Mexican competition authority’s investigation of the market for air transport services, which preliminarily concluded that take-off and landing slots at the Mexico City international airport are an essential input. White & Case pulled French power cable maker Nexans unscathed through a seven-year DOJ grand jury investigation, despite an amnesty applicant and parallel investigations on five continents. Three of the firm’s victories involved appeals: at the EU’s General Court, which found DG Comp failed to prove Toshiba participated in the colour picture tubes cartel, and annulled the air cargo decision against SAS, among other airlines; and at the Federal Court of Australia, which dismissed cartel claims of the Australian Competition and Consumer Commission against Nexans.

Indeed, the firm’s disputes work cannot be divorced from its other competition matters, even in the realm of deals. It acted for EDEKA in the acquisition of Kaiser’s Tengelmann, a deal prohibited by Germany’s Federal Cartel Office, but approved by the economic ministry, but then again temporarily blocked by a court – which necessitated advising on the case. But it isn’t always a fight. Some clients opt to walk away from a contested deal, such as White & Case client TeliaSonera’s proposed joint venture with Telenor in Denmark that the European Commission scrutinised as a four-to-three deal in the telecommunications sector. Still, the firm ends the year litigating a merger: it faces off against the DOJ to defend Anthem’s US$54 billion acquisition of rival health insurer Cigna.

Brussels

Last year, WHITE & CASE lost Brussels veteran Ian Forrester to a judgeship at the European General Court, but practice head Mark Powell and fellow partner Jacquelyn MacLennan are confident that the firm will continue to excel. The practice has long cultivated the reputation of a fighter, with its team of 25 lawyers prepared to take on the commission in tough cases. Together, they speak nearly 20 different languages and remain one of Brussels’ go-to groups for Eastern European matters. The firm announced the hire of Sir Nicholas Forwood QC, formerly a judge at the European General Court, who joined as counsel in March 2016.

The practice maintains a healthy mix of merger and behavioural work. MacLennan was instructed by Toshiba on appeals in the cathode ray tube, gas insulated switchgear and transformers cases. In September 2015, the General Court annulled the €28 million fine imposed on Toshiba for its alleged role in the colour picture tubes cartel, but at the start of 2016 the same court confirmed a €57 million fine against Toshiba for its participation in the gas insulated switchgear cartel. A day later, the Court of Justice upheld a fine against Toshiba for colluding in the power transformers market. Meanwhile, Powell and partner Jérémie Jourdan represent Crédit Agricole in DG Comp’s Libor investigation and the wider team counselled SAS during the air cargo investigation and subsequent litigation. It was one of many airlines to successfully convince the European General Court to annul the commission’s decision in its entirety. Powell also acted for Bulgarian Energy Holding in a probe by the European Commission into the energy company’s alleged abuse of dominance – an investigation that was subsequently closed without an infringement decision.

Czech Republic

The small WHITE & CASE team remains active in the Czech Republic. Partner Ivo Janda leads the three-person practice, although they receive support from colleagues from the dispute resolution practice group. Nevertheless, the firm is one of the few US law firms with a strong presence in the Czech market, and Janda says that the practice is now self-sustaining and is able to obtain domestic work on its own as well as through references from the firm’s global network.

The merger side is busier than ever. Janda and his team played a key role in advising the owners of ČGS Holding, a Czech rubber conglomerate with leading positions in agricultural and speciality tires as well as engineered polymer solutions, on its sale to Swedish industrial giant Trelleborg. Janda and his team also acted for Rockaway Capital on the greater-than €200 million acquisition of Mall.cz, the second largest e-shop in the Czech Republic and Heureka.cz, the largest price comparison website, from Naspers, a South African-based internet services provider with a particular focus on ecommerce. In the cartel law area, the Prague antitrust law team also represents construction company Swietelsky in cartel proceedings before the Czech competition enforcer, which is investigating the largest construction companies on the Czech market for alleged bid rigging.

France

Before becoming a competition lawyer, WHITE & CASE practice head Jean-Paul Tran Thiet, was a special adviser to the French prime minister and spent time in DG Comp, giving him broad experience on which to draw. The firm poached Gide partner Yann Utzschneider in April 2016. Despite some French lawyers saying that it is less visible than it used to be, White & Case nevertheless works on some impressive cases.

Thiet has been fighting against DG Comp’s Euribor decision for Crédit Agricole. The strategy included the unusual step of lodging a complaint regarding the commission’s alleged bias in handling the case – which led to the ombudsman stating that former commissioner Joaquin Almunia “created an impression of public bias” against the bank. He also acted for Outremer as it complained to France’s Competition Authority about an SFR subsidiary abusing its dominance in a pair of overseas territories, resulting in a €10.7 million fine on SFR in November 2015.

Mexico

Partner Iker Arriola leads the antitrust group at WHITE & CASE, where the three partners and eight associates are a good mix between litigators and non-litigators. Over the past couple of years, the group has worked on several headline-grabbing matters.

Along with Hogan Lovells and Basham, the firm advised Comex in its tie-up with PPG, a matter that included getting the International Chamber of Commerce in Mexico to overrule a resolution saying Comex had substantial market power, which was necessary for the merger to be approved. White & Case also advised Tyson de Mexico in the chicken supplier’s merger with Pilgrim’s Pride. Among other matters, the firm is acting on behalf of clients in COFECE’s investigation of the pension funds industry and the use of slots at Mexico City’s international airport.

Russia

Partner Igor Ostapets leads the Russian competition practice at WHITE & CASE in Moscow. There are four associates on the team, which is currently representing Evergreen Marine in the ongoing FAS investigation of an alleged cartel among marine container shipping companies.

On the merger front, the firm is representing new client Cott, one of the world’s largest private-label beverage makers, in its acquisition of water and coffee company Eden Springs in a deal valued at €470 million. Additionally, it advised Naspers Limited, the South African-based global internet and media company, on its US$1.2 billion investment to become the largest shareholder in Avito, the leading online classifieds platform in Russia.

Slovakia

Perhaps the longest-established international law firm in Bratislava is WHITE & CASE, which opened its doors in the city in 1996. Led by partner Marek Staroň, the firm represents multinationals and large domestic companies. The firm is advising Kofola, one of the largest Czecho-Slovak producers of non-alcoholic beverages, in its acquisition of Slovak company WAD Group. The merger is currently under a rare Phase II investigation by the Slovak Antimonopoly Office, as the WAD Group owns a 40% minority stake in beverage company conglomerate Water Holding, and would combine two of the leading non-alcoholic drink producers in the Slovak market. The firm is also representing Toshiba in TV and computer monitor tubes cartel litigation before the Slovak competition authority.

United States: New York

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 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.

United States: Washington, DC

WHITE & CASE promoted Dana Foster and Claire DeLelle in the past year. Global antitrust practice chair J Mark Gidley, who sits in the firm’s Washington, DC office, describes their strengths: Foster’s “got a great head for complex antitrust cases,” while DeLelle brings “enormous expertise in transnational antitrust extraterritorial reach”. Such skills also were necessary for the team acting for Nexans in the DOJ investigation of a cable cartel, as the case drew an amnesty applicant, requests for information under an international treaty, and parallel investigations on five continents.

Gidley and partner Peter Carney were part of the team representing CertainTeed, the only defendant to obtain summary judgment against claims of conspiracy in the drywall market, with an audacious use of scores of witness declarations to prove the company never agreed with competitors at the times plaintiffs said it could have done so. The DC office also continued its work for pharmaceutical companies accused of pay-for-delay deals on behalf of Par Pharmaceutical and Paddock Laboratories in the FTC and private actions regarding AndroGel; and on behalf of Allergan and Warner Chilcott regarding Asacol. In other drugmaker work, White & Case defeated plaintiffs’ motion for summary judgment against Allergan in the Botox class action, and evaded the New York attorney general’s initial attempt to force Forest Laboratories to disgorge profits from its “product hopping” of Namenda. As GCR 100 went to press, Gidley and others went to court to fight the DOJ’s request for an injunction to block Anthem’s US$54 billion acquisition of health insurer Cigna.

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