Readers are invited to vote for the cases, law firms, lawyers, economists and enforcers they believe excelled in 2017.
You can vote for this year’s GCR awards nominees here until midnight EST on Tuesday 20 February. Ballots are limited to one per person and professional email addresses must be submitted when casting votes.
The winners will be announced at the GCR 8th Annual Awards Ceremony on 10 April in Washington, DC. At the dinner, we also will recognise our 2018 Lifetime Achievement Award honouree. Click here for more information on the awards dinner.
If you did not nominate a matter on which you worked that appears in the list below, please email GCRAwards@globalcompetitionreview.com to ensure that we have your information.
Thank you to everyone who submitted nominations. The nominees are:
Merger control matter of the year – Americas
Creative, strategic and innovative competition work for a client on a landmark merger control matter in the Americas.
On 23 August 2017, the Federal Trade Commission concluded its investigation of Amazon’s proposed $13.7 billion acquisition of Whole Foods Market. When the deal was announced in June, it shook the grocery industry and raised concerns that it would lead to job losses and higher prices for consumers. While the review was pending, a group of Congressional Democrats urged the US Department of Justice and FTC to do a more in-depth review. The union that represents many US grocery workers objected to the combination, saying Amazon’s “monopolistic desire to control the retail market and replace good jobs with automation” threatened Whole Foods workers, consumers and the economy. The FTC ultimately cleared the transaction without an in-depth review.
BM&FBOVESPA, Latin America's largest stock exchange, combined its operations with CETIP, the largest securities clearing house in Latin America, making BM&FBOVESPA the largest securities exchange in Latin America. Brazil’s Administrative Council for Economic Defence reviewed the two-to-one merger in a detailed manner, and concluded that blocking the deal could be worse for the market given the synergies that the tie-up created. The enforcer cleared the merger with commitments. Three out of four CADE commissioners voted for the approval, subject to behavioural remedies negotiated with the parties. The reporting commissioner had sought tougher restrictions.
CenturyLink’s $34 billion merger with Level 3 Communications involved in-depth examinations by the US DOJ – which issued a second request – as well as the US Federal Communications Commission, US state enforcers and several Latin American authorities, plus the UK’s Competition and Markets Authority. The US authorities focused on competition between the companies in both backbone network fibre and local last-mile connections. The companies secured a timely closing to the DOJ investigation, with an agreement to limited divestiture remedies and without the need to complete the divestitures before closing.
The US$12.5 billion sale of WhiteWave Foods to Danone required counsel to develop rich evidence of differences in US and EU consumer behaviour, in order to tailor otherwise contradictory arguments for clearance in each jurisdiction. It set a new EU precedent on competition between plant-based and dairy foods, and obtained faster than average conditional clearances in the US and EU, despite vocal opposition from US farmer groups and at least one US senator. The DOJ required divestiture of Danone’s Stonyfield Farms business to avoid losing competition in the markets for raw and fluid organic milk that could hurt both dairy farmers and consumers, and the deal closed globally in April 2017.
Johnson & Johnson/Actelion
In the biggest pure biotech/pharmaceutical deal of 2017 and the largest in the company’s history, Johnson & Johnson acquired Actelion for US$30 billion, with the deal closing in November. As part of the merger, which involved complex interconnected transactions and licensing agreements, Actelion spun off certain clinical development assets into a new company, Idorsia. Johnson & Johnson acquired a minority interest in Idorsia and the right – subject to certain limitations – to increase the interest in the future. The review included multiple Hart-Scott-Rodino filings for the cash tender offer and its interest in Idorsia; US FTC inquiries regarding overlaps between Johnson & Johnson’s pipeline and assets spun off to Idorsia; and effects on existing competition and innovation.
Safran sold threat detection company Morpho Detection to Smiths for $710 million. Morpho’s equipment is used for screening passengers and baggage around the world and is subject to significant regulation; its screening devices are also used for military and government security applications. The deal, which involved two of the world's largest global threat detection businesses, required filings before the US DOJ and CADE, as well as other competition authorities. Because of the security considerations, the US Department of Defense joined the DOJ investigation. The case received unconditional clearance in Brazil; the DOJ required the divestiture of Morpho’s global explosive trace detection business.
Walgreens Boots Alliance/Rite Aid
Walgreens Boots Alliance’s deal with Rite Aid was originally structured as a US$17.2 billion merger, but the review process by state attorneys general and the US FTC gave rise to multiple revisions due to concerns about a three-to-two deal in the market for national pharmacy chains. After a marathon two-year investigation, the US FTC ultimately allowed Walgreens’ acquisition of 1,932 stores from Rite Aid for US$4.37 billion, which meant the buyer obtained more than 40% of Rite Aid’s stores for approximately 25% of the original purchase price.
Merger control matter of the year – Europe
Creative, strategic and innovative competition work for a client on a landmark merger control matter in Europe.
The European Commission raised complex and at times novel conglomerate theories of harm at the intersection of competition and intellectual property as it reviewed Qualcomm’s acquisition of NXP. The commission closely examined the interplay between Qualcomm’s patent portfolio and its acquisition of NXP’s standard essential patents to assess whether the deal would significantly impede effective competition. The companies alleviated the Commission’s concerns in many areas, and addressed the remaining concerns through a novel set of remedies that are likely to be employed as a template in future cases.
The £3.7 billion (€4.2 billion) merger promises to transform the UK grocery sector by bringing together two leading players at different levels of the value chain, with Booker Group operating predominantly at the wholesale level and Tesco at the retail. The deal attracted significant media commentary and competitor opposition. The companies asked the UK’s Competition and Markets Authority for a fast-track reference to Phase II, and received unconditional clearance less than a year after the deal was announced. The CMA recognised for the first time that discounters should be included in the grocery market analysis, as opposed to competing in a separate market.
Central Manchester University Hospitals/University Hospital of South Manchester
The UK’s largest-ever hospital merger involved two groups operating nine hospitals in Manchester. Acknowledging the merger would lessen competition, they argued that any adverse effects were more than offset by the customer benefits the merger would bring. This is the first merger to be cleared by a UK competition authority based on customer benefit arguments. In a successful application for a fast-track Phase II CMA procedure, the hospitals acknowledged the likely loss of competition for the purposes of the Phase I decision. This shortened the review period for the hospitals by nearly two months. The CMA made adverse competition findings in 20 separate markets at Phase II, but agreed that reduced patient mortality, reduced length of stay and shorter times to treatment in cardiology, urology, gynaecology, stroke, orthopaedics and other specialties outweighed any adverse effects arising from the loss of competition.
Mastercard’s £700 million (€795 million) acquisition of Vocalink received UK clearance with groundbreaking non-structural remedies in Phase I. The UK’s CMA had given Mastercard five working days to propose a remedy to address a possible reduction from three to two competitors in future tenders to provide payment infrastructure services to the LINK ATM scheme. The company offered an access remedy making Vocalink's existing network connectivity available to a new supplier of infrastructure services; the transfer to LINK of messaging standard IP rights; and a financial contribution to member switching costs.
Just Eat’s £200 million acquisition of rival UK food ordering marketplace Hungryhouse from Delivery Hero won unconditional clearance from the UK’s CMA following a comprehensive Phase II investigation. The CMA concluded that the companies had a combined market share of more than 80%, with the Phase I case team saying there was a realistic prospect of an anticompetitive effect resulting from the deal. This was the CMA’s first significant finding on a case involving fast-moving online markets; the companies successfully argued that a dynamic approach to competition must be adopted, particularly given indirect network effects and the growing rise of well-resourced players such as Deliveroo, UberEATS and Amazon Restaurants. The CMA decision is noteworthy for its analysis of two-sided online markets and provides a valuable precedent given the likelihood of further cases in dynamic, online markets in the future.
Abbott Laboratories' US$5.8 billion acquisition of Alere required approval of two upfront buyers for three divested businesses. The companies secured Phase I conditional clearance in January 2017, then obtained the removal of three upfront buyer approval conditions imposed by the European Commission in September 2017. A complex divestment package addressed market overlaps in respect of the triage and blood gas systems businesses, and to assuage a novel vertical complaint raised by Danaher, which claimed the combined entity would damage its business by ceasing to market Danaher's tests. Even after formal approval, Danaher actively sought to oppose one of Abbott's upfront purchasers.
Merger control matter of the year – Asia-Pacific, Middle East and Africa
Creative, strategic and innovative competition work for a client on a landmark merger matter in Asia-Pacific, the Middle East or Africa.
Maersk Line/Hamburg Süd
Maersk Line, the world’s largest container liner shipping company, secured conditional approvals in China, Korea and South Africa, and sailed through in Australia, New Zealand and Japan, on its €3.7 billion acquisition of rival Hamburg Süd. The global interconnected nature of the container liner shipping industry required consistent and coordinated reviews and remedies to address concerns in multiple jurisdictions. In China and South Korea, Maersk Line negotiated vessel-sharing agreement non-extensions or withdrawals on routes to South America and the Caribbean. A unique remedy agreed with China’s Ministry of Commerce to reduce reefer capacity on vessels to South America served to address China’s strategic interests. In South Africa, Maersk Line secured conditional clearance amid concerns of potential coordinated effects, which had led the Competition Commission of South Africa blocking Japan’s three major shipping liners from merging only weeks before.
Vodafone India/Idea Cellular
In the largest ever Indian M&A transaction, the US$23 billion merger of India’s second- and third-largest retail mobile operators will create the country’s largest telecommunications operator, with the widest mobile network. The Competition Commission of India concluded that the deals would result in a significant change in concentration in 14 of the 22 telecoms markets in which the parties overlap in India; it also estimated that the merged entity’s combined market shares would exceed 40% in several of those overlapping areas, and found the parties were close competitors in several telecoms markets. Nevertheless, the companies’ counsel demonstrated the existence of significant buyer power in the market, with mobile customers switching easily between competing networks, and at least five remaining competitors to the merged entity in the retail mobile telephony services market. The Competition Commission decided on 24 July 2017 to clear the transaction unconditionally at Phase I, having conducted a Gross Upward Pricing Pressure Index (GUPPI) analysis for the first time.
Horserace betting company Tabcorp's AU$6.37 billion (€4 billion) acquisition of lottery owner Tatts represents the largest and most complex merger clearance in Australia in recent times – a deal that, in a previous iteration, was blocked by the Australian Competition and Consumer Commission. The clearance strategy raised complex dynamics across wagering, gaming, bidding and media markets, including the impact of online competition on traditional wagering models. The 14-month process involved: an application for informal clearance from the ACCC; a statement of issues; a successful application to the Australian Competition Tribunal for authorisation, which involves a different legal test; and a judicial review challenge by the ACCC that resulted in a second tribunal process, ultimately authorising the deal. The process was the largest and most complex of its kind to date, involving over 70 lay witnesses and seven economic experts – with approximately 100 statements or reports before the tribunal -- and negotiation of a divestiture.
PotashCorp’s $38 billion merger with Agrium involved extended reviews by antitrust enforcers in the US, Canada, China, and India; the companies also filed the deal to antitrust enforcers in Russia and Brazil. Although neither company sold in China or India, they were two of the three shareholders in Canpotex, a global logistics and marketing company that provides efficient distribution of potash produced by three major Canadian fertiliser companies to many of the world’s marketplaces. The matter involved litigation in Indian courts, including an appeal against the Competition Commission of India’s initial decision to the National Company Law Appellate Tribunal – a matter of first impression for the recently constituted tribunal. The enforcer settled after briefing to the tribunal. To obtain clearance from the various authorities, PotashCorp agreed to divest its minority interests in other global potash companies, including in Israel Chemicals Limited (Israel), Sociedad Quimica y Minera (Chile), and Arab Potash Company (Jordan). The companies also agreed to divest two of Agrium’s US facilities. Clearance was obtained without any divestitures related to the parties’ potash or retail operations. The commitments in India served as a model for similar commitments in China. It resulted in one of the largest-ever remedies imposed by agencies in the US, China and India, collectively representing billions of dollars of assets to be divested.
China’s Ministry of Commerce conditionally cleared Broadcom’s US$5.9 billion acquisition of Brocade. Unusually, in their clearance decisions, the Chinese, US and EU authorities all accepted behavioural conditions, rather than the purely structural conditions typically favoured in the EU and US. The Mofcom clearance decision is also remarkable as it is one of the two conditional decisions cleared in 2017 within the statutory review period; the five other conditional clearance cases had to be pulled and re-filed. A further notable feature was the sector involved: the filing concerned semiconductors and IT networking, which are sensitive industries in China.
Litigation of the year – Cartel defence
Creative, strategic and innovative litigation on behalf of a defendant in a private action for cartel damages.
Optical Disk Drive
Samsung, Toshiba, and other non-settling defendants in both the indirect purchaser case and several opt-out direct purchaser cases won a major victory when Judge Richard Seeborg of the US District Court for the Northern District of California granted their motion for summary judgment. He accepted defence arguments that the indirect purchaser plaintiffs failed to present evidence sufficient to establish that any overcharges on drives were passed through to buyers of personal computers; and that the remaining opt-out plaintiffs failed to establish the alleged conspiracy was directed at optical disk drives sold to those plaintiffs. Plaintiffs had sought $3 billion in damages and the case was headed for trial in summer 2018.
Non-settling defendants LG Chem, Samsung, Sanyo, Toshiba and Panasonic defeated class certification for both direct and indirect purchaser plaintiffs who alleged a nearly 11-year, worldwide conspiracy to fix the prices of lithium ion batteries – a key component in nearly every modern consumer electronics product. The plaintiffs had been aided by cooperating defendants. The classes pursued claims on behalf of computer manufacturers, nationwide retailers, and consumers, seeking billions in damages from the non-settling defendants. Judge Yvonne Gonzalez Rogers in the US District Court for the Northern District of California denied class certification without prejudice, finding that the plaintiffs failed to show the entire class had been affected by the alleged price-fixing.
Judge Harry Leinenweber of the US District Court for the Northern District of Illinois granted summary judgment to the only remaining non-settling defendants, Georgia-Pacific and Westrock, because he said that “in light of the competing inference of lawful behaviour,” the plaintiffs' evidence “did not point reasonably to express collusion.” Floor-care products manufacturer Kleen Products sued International Paper, Georgia-Pacific, Temple-Inland, Westrock and Weyerhaeuser in September 2010. International Paper, Temple-Inland and Weyerhaeuser settled for $354 million. But Judge Leinenweber found insufficient evidence that the defendants communicated to conspire to raise prices; given the possibility that they took these actions independently, the defendants did not break the law, he said.
UK air cargo follow-on
In October 2017, airlines defending UK litigation tied to their alleged participation in the air cargo cartel scored a resounding victory by striking out half of the value of the claim. Having previously struck out claims for unlawful means conspiracy and the claim by 65,000 Chinese companies, the airlines have reduced claims originally valued at over £5 billion (€5.69 billion) to £150 million (€170.61 million). The application concerned how article 101 of the Treaty on the Functioning of the European Union applied to air transport between EU and non-EU countries before 1 May 2004 and whether, absent any finding of infringement by the European Commission or a national authority, any claims for damages could be made relating to that period. High Court judge Mrs Justice Vivien Rose found that no such claims could be made, greatly reducing the lawsuit’s temporal scope.
Interest Rate Swaps
Facing charges they conspired to rig the market for interest rate swaps, defendant banks successfully limited several of the plaintiffs’ claims through a successful motion to dismiss. Judge Engelmayer’s July 2017 ruling reduced the scope of the complaints and more than halved the amount of time in the class period, reducing it from nine years to four. The judge also granted the banks’ motion to dismiss individual plaintiffs’ claims for unjust enrichment and their claims for tortious interference with business relationships. Finally, the court narrowed the plaintiffs’ theory of injury to a certain category of swaps. While some of the plaintiffs’ claims survive, the ruling will significantly reduce plaintiffs’ potential damages.
Nishikawa Rubber in Auto Parts MDL
In the sprawling auto parts multidistrict follow-on damages litigation, in which dozens of defendants have paid billions of dollars, Nishikawa settled for only 5.4% of its admitted volume of commerce. This puts Nishikawa’s settlement on par with Nippon Seiki’s 2014 ice-breaker settlement at 4.8%. This came while Nishikawa was called to testify when an alleged co-conspirator took the DOJ to trial, creating the possibility of public testimony that could increase Nishikawa’s exposure to civil discovery.
Rail Freight Fuel Surcharge
Plaintiffs accuse major rail companies of conspiring to use fuel surcharges to fix prices, and won class certification in Washington, DC, district court in 2012. The US Court of Appeals for the District of Columbia Circuit reversed and remanded the District Court’s decision certifying the class in August 2013. The 2015 hearing was postponed, at the court’s initiative, to await guidance from the Supreme Court’s ruling in Tyson Foods. In October 2017, the same judge who had granted class certification in 2012 now denied it, following several rounds of briefing and a week-long evidentiary hearing during which five experts testified live.
Litigation of the year – Non-cartel defence
Creative, strategic and innovative litigation on behalf of a defendant in a non-cartel private action.
Walter Merricks v Mastercard
In the largest ever claim before the UK courts – a proposed £14 billion (€15.9 billion) consumer collective action relating to multilateral interchange fees on behalf of 46 million consumers – Mastercard defeated the first major proposed opt-out collective action in the UK’s Competition Appeal Tribunal. In July 2017, the tribunal dismissed the application to certify the proposed collective action, accepting Mastercard’s arguments that the claims were not suitable for certification. Merricks has subsequently sought permission to appeal or judicially review the decision.
iPic v AMC
AMC is the largest film exhibitor in the US, currently operating 1,027 theatres. A competing theatre chain claimed that AMC conspired with another major theatre operator to thwart its development and film licensing efforts by boycotting films and issuing threats to film distributors and real estate developers. iPic claimed that AMC sought to protect its own theatres by attempting to limit the supply of movies available to competing cinemas. It also sought a permanent injunction against AMC’s use of the longstanding film licensing practice known as “clearances”, which allows theatres to seek to license films with limited geographic exclusivity. In July 2017, Judge Wesley Ward in Texas state court granted AMC’s motion for summary judgment, securing a complete victory for AMC on all claims. The court held that evidence neither supported an antitrust conspiracy nor showed that AMC’s conduct affected distributors’ decisions.
Steward Health Care v Blue Cross & Blue Shield
In November 2017, health insurer Blue Cross & Blue Shield of Rhode Island won summary judgment against a monopolisation and conspiracy lawsuit brought by Steward Health Care. Steward, a Massachusetts hospital system, alleged that the insurer illegally stopped Steward from acquiring a hospital in northern Rhode Island, acting both unilaterally and with other providers – including the largest hospital system in Rhode Island – to keep Steward from entering the market. The opinion by Judge William Smith of the US District Court for the District of Rhode Island is currently pending.
Litigation of the year – Non-cartel prosecution
Creative, strategic and innovative litigation on behalf of plaintiffs in a non-cartel private action.
TrueEx v MarkitSERV
TrueEx, a fintech start-up platform for execution of interest rate swaps, obtained a preliminary injunction victory in the US District Court for the Southern District of New York, which blocked defendant MarkitSERV from terminating an agreement that gave trueEX access to MarkitSERV’s critical trade processing network. Although MarkitSERV had a clear contractual right to terminate the agreement, trueEX asserted a Sherman Act section 2 claim based on MarkitSERV’s refusal to deal with trueEX, a challenging claim to bring especially after the Supreme Court’s 2004 ruling in Verizon v Trinko. Judge Lewis Kaplan ruled MarkitSERV must continue to provide trueEX with access to its network for the duration of the action. The companies have now settled.
Amphastar v Momenta and Sandoz
Following an Amphastar appeal supported by the US FTC, the US Court of Appeals for the First Circuit reversed a lower court’s decision that would have immunised competing generic pharmaceutical manufacturers Momenta and Sandoz under the Noerr-Pennington doctrine. Amphastar alleged that the companies engaged in illegal monopolisation when they misled a standards-setting organization into adopting a method for testing anticoagulant drug enoxaparin by failing to disclose a pending patent application potentially covering that testing method. Once the method became the standard and competitors had to use the approved method to test enoxaparin, Momenta and Sandoz sued Amphastar, claiming patent infringement.
Auric v Federal Guild of Hearing Aid Acousticians
In a private enforcement case against the Federal Guild of Hearing Aid Acousticians, Auric, a supplier of hearing aids and respective services, is claiming lost earnings following the German antitrust enforcer’s decision against the guild for restraints on competition. As the Federal Cartel Office stated, the guild “offered health insurance funds more favourable conditions for hearing aids only if they promise to accept hearing aid retailers as the sole providers. Alternative distribution channels such as the dispensing of a hearing aid directly by the treating physician were thus excluded.” Auric won at first instance, with a German court ruling that Auric is entitled to damages, with the amount to be decided later.
Behavioural matter of the year – Americas
Creative, strategic and innovative work carried out in a non-merger matter before an enforcer in the Americas.
Construtora OAS’s Operation Car Wash leniency agreement
Construtora OAS – one of the top five engineering, construction and infrastructure groups in Brazil – executed two leniency agreements with CADE in June 2017. The company reported bid rigging and collusion to fix prices and divide public tenders. The investigation revealed the active participation of public servants in cartel meetings, which could be interpreted as evidence of corruption and bribery. Given that neither Construtora nor its executives had entered into settlement agreements or plea bargains with public prosecutors or other relevant authorities, the admission of the cartel could eventually be construed as the confession of other crimes. However, public prosecutors agreed that the immunity resulting from the CADE leniency agreements should extend to related crimes.
Clearinghouse Payments Company’s business review letter
The Clearing House Payments Company, an organisation comprised of 25 depository financial institutions, obtained a positive business review letter from the DOJ’s Antitrust Division in connection with the development and launch of the first new payment system introduced in the US in more than 40 years. The RTP system will facilitate the clearing and settlement of interbank transactions within seconds, and will support robust messaging compliant with international standards that will create the potential for substantial efficiencies for both payers and payees. The DOJ business review letter recognised the potential for procompetitive effects from the RTP system, and the sufficiency of structural rules to mitigate risks of anticompetitive conduct. The system reflects the procompetitive introduction of a new payment alternative as the result of effective collaboration of industry participants.
Mobile companies dismissal of zero-rating probe
Following a complaint by Brazil’s Public Prosecutor’s Office and a detailed probe regarding Oi, TIM, Vivo and Claro's decisions not to charge for access for certain mobile phone applications, the telecommunications companies won dismissal of the accusation that their zero-rating policies could distort competition and violate net neutrality rules. This was the first proceeding opened in Brazil concerning such a matter in the interface between antitrust and Internet regulation. After a detailed investigation, which included participation of Brazil’s telecommunications regulator and third parties, CADE found that zero-rating offers can be procompetitive, leaving open spaces for new forms of pricing policies in the very dynamic market of access to mobile applications.
American Express in CADE’s electronic payment market investigation
After 16 months of an in-depth investigation of alleged anticompetitive practices in the electronic payment market regarding exclusivity provisions that would create barriers to entry, in July 2017 CADE dismissed the case against American Express. The company demonstrated that its business model complies with both the regulatory and antitrust legal framework, and that there are many new acquirers partnering or negotiating to operate under the AmEx business model.
Behavioural matter of the year – Europe
Creative, strategic and innovative work carried out in a non-merger matter before an enforcer in Europe.
Denso immunity in DG Comp thermal systems investigation
The European Commission’s investigation into air conditioning and engine cooling suppliers looked at four separate infringements and was resolved with the settlement procedure. Denso received full immunity in relation to three of the infringements, avoiding an aggregate fine of €287 million, and received a significant reduction in fine for the fourth infringement for effective cooperation, so that the total fine was €322,000. Behr, Calsonic Kansei, Panasonic, Sanden and Valeo were also involved in the settlement.
Concordia challenges CMA warrant
Concordia Pharmaceuticals persuaded a High Court judge to stop the UK’s Competition and Markets Authority from relying on evidence the CMA had redacted from disclosure by claiming that the information was covered by public interest immunity. Concordia’s challenge marks the first appeal against a search warrant granted by the High Court under section 28 of the UK’s Competition Act. Concordia argued that in the circumstances there was demonstrably no urgency, as any element of surprise had long gone. In November 2017, Mr Justice Marcus Smith upheld Concordia’s position and ruled the CMA could not assert a blanket public immunity defence.
Auto leasing investigation in Italy
Italy’s Competition Authority examined whether companies active in the long-term car leasing market were sharing their commercial strategies and exchanging sensitive information. The investigation focused on information collected via a database, which the parties shared through a trade association. The companies demonstrated that although they shared information, the exchange did not affect prices, and there was no evidence of anticompetitive behaviour. The authority ultimately held that the evidence did not support its preliminary findings that the parties were involved in an illegal system of information exchange operated within the trade association.
Car rental investigation in France
In 2009, France’s Competition Authority initiated proceedings alleging that several car rental companies had illegally exchanged confidential information in 12 French airports, and that some had engaged with other international car rental companies in a concerted practice relating to train station surcharges. But in February 2017, the authority’s decisional body took into account defence arguments and found that because of the nature of the car rental market at airports, the exchange of data did not impede competition by revealing the commercial strategies of competitors. The decisional body also found that there was insufficient evidence to demonstrate the existence of an agreed strategy related to the implementation of an additional train station surcharge.
European Court of Justice concrete rebar cartel judgment
In September 2017, the EU’s top court overturned a decision that ordered members of the concrete rebar cartel to pay €85 million in fines. It marked the second time that the EU’s courts have struck down the rebar decision. The European Commission had fined the companies in 2002, and re-adopted the decision in 2009 after the EU’s first instance court had struck it down on procedural grounds. That re-adoption had not involved issuing a new statement of objections; last year, the European Court of Justice said the failure to send new charges breached the companies’ defence rights, and quashed the re-adopted decision, 15 years after the first decision was issued.
Behavioural matter of the year – Asia-Pacific, Middle East and Africa
Creative, strategic and innovative work carried out in a non-merger matter before an enforcer in Asia-Pacific, the Middle East or Africa.
Indian telecoms companies’ challenge to jurisdiction
A complaint to the Competition Commission of India against Vodafone, Bharti Airtel, Idea Cellular and the Cellular Operators Association of India alleged cartelisation and abuse of dominance in delaying or denying the provision of points of interconnection to Reliance Jio. The defendants appealed to the Bombay High Court, seeking judicial review of the investigation order. The court set aside the order, finding that the enforcer’s intervention was premature, pending determination of the issues by the relevant sectoral regulator; the CCI’s failure to consider important material on record had rendered the CCI’s order perverse; and the CCI had exceeded its jurisdiction by ordering an investigation while the key issues were being litigated. The Competition Commission of India and Reliance Jio have filed appeals to the Supreme Court of India.
Ola abuse of dominance in India
Taxi aggregator ANI Technologies (Ola) successfully defended against an alleged abuse of dominance allegations in various geographic markets in India, involving the first-ever predatory pricing claim in multi-sided platforms. This case involved a unique opportunity for the CCI to examine the conduct of taxi aggregators in India and required complex economic modelling and an in-depth assessment of pricing concerns and economic claims of predatory pricing in multi-sided platforms. The commission decided not to intervene despite Ola’s 69% market shares, finding that the company was not dominant. Meru and FastTrack Call Cabs are appealing to the new National Company Law Appellate Tribunal against the CCI’s order rejecting allegations of predatory pricing.
Egg companies beat Australian cartel charges
In September 2017, the Full Federal Court of Australia upheld the Federal Court’s decision to dismiss the Australian Competition and Consumer Commission’s allegations that two egg producers, three executives and an egg industry association had illegally colluded to reduce egg supplies. The trial court had found that the defendants had planned to take action to tackle egg over-supply, but concluded the ACCC failed to prove their conduct violated Australian cartel laws. The Full Federal Court agreed – rejecting the Australian antitrust enforcer’s claim that it did not have to show there were mutual or reciprocal obligations to make the case stick. The appeals court found the enforcer was obliged to do this, as that was how it had pleaded its case.
Matter of the year
Creative, strategic and innovative work by teams of in-house and external lawyers and economists on merger control, cartel, unilateral conduct, litigation or any other competition matter worldwide.
The China National Chemical Corporation’s $43 billion acquisition of Syngenta was the largest-ever foreign acquisition by a Chinese company, and raised protectionist as well as competition concerns. It required approvals by 19 competition authorities, as well as Committee on Foreign Investment in the US and other foreign investment clearances. Antitrust authorities focused on competition between Syngenta and ChemChina-owned and Israeli-based ADAMA Agricultural Solutions, one of the largest producers of generic pesticides. Moreover, the challenge of achieving regulatory approval was compounded by unprecedented consolidation in the agrochemical sector due to the pending Dow/DuPont and Bayer/Monsanto deals. Yet ultimately clearance in the US, the EU, India and Mexico was subject only to limited divestitures of pesticide assets, and 15 other jurisdictions granted unconditional approval, allowing the acquisition to close barely a year after it was announced.
Dow Chemical’s US$130 billion merger of equals with DuPont implicated market concentrations in materials sciences, specialty products, and agricultural products. The third-largest transaction of all time, it was subject to the antitrust approvals in 24 jurisdictions. Clearance was particularly complex given the local differentiation of agricultural chemicals and seeds, which were the most significant global overlaps. Counsel strategically sequenced regulatory approvals to minimise the commercial impact on the deal. Keeping all jurisdictions moving ahead independently rather than deferring to each other and adopting additional remedies was key to avoiding debilitating divestitures. Most notably, the EU explored novel and aggressive theories of harm, especially regarding innovation competition, which other jurisdictions also felt compelled to investigate. Advocacy in the US minimised required divestitures, reducing the potential for inconsistencies with other jurisdictions. Dow/DuPont was one of the first high-profile deals to be reviewed by CADE and Chile’s antitrust authority since they became suspensory merger control regimes; CADE conditioned clearance on divestitures, particularly of Dow’s Corn Seeds business in Brazil to Chinese conglomerate CITIC for US$1.1 billion; CADE officials reportedly said this was “the largest merger ever filed with CADE”.
Google Shopping investigation
The European Commission slapped Google with a €2.42 billion fine for abuse of dominance after the company demoted or dropped comparison websites such as Foundem and Kelkoo from online search results, and replaced them with Google Shopping. This was more than double the highest fine previously handed out by the commission to a single company, and followed an extensive investigation into the market effect of Google’s online search algorithms. Complainants demonstrated to the commission how existing competition law could be applied to what, initially, seemed to be an entirely new industry sector. Individual companies will now also be able to pursue damages claims against Google in national courts. For its part, Google at least initially has persuaded the commission to accept a remedy that did not affect organic search results and allowed Google to keep its Shopping business. The company is also appealing against the commission’s decision.
Intel v Commission
The European Court of Justice set aside the judgment of the EU General Court that upheld the European Commission’s decision to fine Intel €1.06 billion for allegedly illegal exclusivity rebates. The Court of Justice found that the General Court had failed to properly examine Intel’s arguments that the rebates were not capable of restricting as-efficient competitors. The ECJ set aside the judgment and referred the case back to the General Court. The landmark ruling was widely anticipated and could have potential implications for other rebate cases by raising the burden of proof on the investigating authority.
UPS v Commission
UPS’ victory at the EU’s General Court in March 2017 was the first time in 15 years that a company has successfully appealed against an EU merger prohibition, only the fourth-ever, and the first for a US company. It was also the first successful appeal against a prohibition adopted under the modern EU Merger Regulation, and the first of the modern era of enforcement – characterised by large volumes of data and market information, multiple affected markets, and econometric as well as qualitative arguments. Many observers had thought that the commission had become expert in making its decisions appeal-proof, so that in practice it would not be constrained by a threat of an appeal. While the court ruled on a procedural point linked to econometric analyses, this required it to delve into the model used, and understand its various iterations and the differences between them. The judgment shows the court can and will assess the commission’s economic evidence.
Unwired Planet v Huawei
The dispute in the High Court of England and Wales regarding the licensing of Unwired Planet’s standard essential patents to Huawei involved the question of whether Unwired Planet abused its dominant position by offering to license on terms that allegedly were not fair, reasonable and non-discriminatory. The case culminated in the court ruling for the first time on specific rates that it considered FRAND, and found that Unwired Planet did not abuse its dominance. The court also ruled in support of global licences and agreed to issue an injunction against Huawei if it did not agree one. The judgment, which clarifies the role of competition law in FRAND disputes, is a key one for both licensors and licensees.
Agency of the year – Americas
An agency in the Americas whose work in 2017 was particularly effective, strategic or innovative.
Brazil’s Administrative Council for Economic Defence
CADE historically blocked few mergers – but in 2017, it blocked two deals in a row, raising the authority's bar for clearances and signalling the adoption of a stricter approach. One was Ipiranga/Alesat, which CADE blocked to preserve a maverick that could challenge the practices in the Brazilian fuel resale market. Based mainly on concerns related to coordinated effects, but also related to unilateral market power, and acknowledging that Alesat is a maverick company, CADE’s tribunal blocked the operation unanimously. The second was Kroton/Estácio Participações, which would have created the largest higher education institution in the world by student numbers. CADE quoted a third party’s arguments that the transaction raised incentives for further concentration, ultimately leading to higher prices and lower quality services.
Mexico's Federal Economic Competition Commission
Mexico’s Federal Economic Competition Commission celebrated a banner year in 2017, imposing its largest-ever cartel fine and bringing its first criminal prosecution. In May and June, the commission brought some serious enforcement heat: imposing a record total fine of 1.1 billion pesos (€52.7 million) on four pension funds and 11 individuals; sanctioning seven shipping companies 582 million pesos (€28.5 million) for market allocation in the global roll-on-roll-off shipping cartel; and levying a 369-million-peso (€18.1 million) penalty against Petróleos Mexicanos for failing to comply with commitments agreed as conditions for closing an abuse of dominance probe. In mergers, the authority demanded divestitures in Dow/DuPont and Boehringer Ingelheim/Sanofi; fined Panasonic and Spanish auto parts manufacturer Ficosa 56.2 million pesos (€2.7 million) for failing to notify a deal; and saw out the year by blocking a merger between US wire manufacturer Rea and Magnekom. All that came months after the enforcer referred its first ever criminal case to the public prosecutor over alleged collusion in public health tenders.
US Federal Trade Commission
Despite concerns about how a five-member independent agency would function with only two commissioners, in 2017 the US FTC had another successful year enforcing in both merger and conduct matters. Under acting chairman Maureen Ohlhausen, the agency boosted its advocacy against unnecessary or overbroad occupational licensing restrictions, and engaged in workshops and studies of competition in prescription drugs, hearing aids and certificates of public advantage. The agency filed 10 competition cases in courts – including against the Tronox/Cristal deal – and took action in 25 other competition matters. It won both of its healthcare service merger challenges in federal courts, as well as the 1-800 Contacts case in its administrative tribunal, which raised cutting-edge issues of online advertising markets and intellectual property law.
Canada’s Competition Bureau
Led by commissioner John Pecman, Canada’s Competition Bureau has developed its capacity and organisational efficiency over the past five years. Under Pecman’s leadership, the Bureau has better prioritised its enforcement, targeting cases and investigations that deliver the greatest benefits to consumer and companies. 2017 saw the bureau lead from the front by publishing reports on FinTech and big data, while releasing proposed updates to its immunity and leniency programmes. In December, the Bureau secured an important victory before Canada’s Federal Court of Appeal, which upheld the Competition Tribunal’s 2016 order requiring the Toronto Real Estate Board to remove restrictions on its members’ access to real estate data. In merger control, the bureau reviewed high-profile transactions such as Superior Plus’ acquisition of Canwest Propane from Gibson Energy and the US$36 billion merger of equals between Agrium and PotashCorp, which was cleared without remedies in Canada.
Agency of the year – Europe
An agency in Europe whose work in 2017 was particularly creative, strategic and innovative.
Germany’s Federal Cartel Office
Germany’s antitrust watchdog already has a formidable reputation for cartel enforcement, but in 2017 it bolstered its credentials as one of Europe’s most innovative agencies. Its Facebook investigation, for example, has seen it venture into truly untested ground, as it accuses the social media platform’s data collection practices as constituting illegal unilateral conduct. Changes to Germany’s competition law last year have also given the enforcer additional powers to intervene in mergers, and the country’s courts have vindicated its controversial pursuit of Asics’ decision to ban certain distributors from using price comparison websites: all signs that the Federal Cartel Office’s determination to push the boundaries is here to stay.
UK’s Competition and Markets Authority
After being bogged down by a pair of resource-intensive market investigations, the UK’s Competition and Markets Authority is firmly back on track. Fresh off its first director disqualification in late 2016, the enforcer started the year with an investigation of the tie-up between the UK’s largest supermarket Tesco and wholesaler and franchisor Booker; approved Mastercard/VocaLink with unprecedented Phase I behavioural remedies; charged a pair of pharmaceutical companies for an alleged pay-for-delay scheme, shortly after battling a six-week trial in an appeal against another pay-for-delay decision; and started a rare national security review in Hytera/Sepura. And that was just the first few months of 2017 – there’s plenty more. It’s clear that the agency is going from strength to strength.
Italy’s Competition Authority
2017 was a big year for Italy’s antitrust enforcer, as it handed down a slew of multimillion-euro fines against alleged cartelists – including household names such as the Big Four accountants, which it ordered to pay €23 million for bid-rigging a government tender. There were also €140 million fines to a rebar cartel, and €184 million for companies accused of rigging cement prices. The enforcer also issued its first decision on rebates since the ECJ’s Intel judgment, ordering Unilever to pay €60.6 million. It was a good year in court, too, as the agency saw its 2016 decision that found Aspen illegally inflated cancer drug prices upheld. On top of all that, Italy’s Competition Authority is one of several European enforcers to have entered the big data fray: it has started an investigation of the area alongside the country’s telecommunications and data protection regulators.
Russia's Federal Antimonopoly Service
Russia’s Federal Antimonopoly Service is perhaps best known for its truly prodigious output; the sheer number of investigations the enforcer opens and concludes each year puts every other global antitrust agency in the shade. There’s more to the enforcer than volume, though, and 2017 saw it involved in some unusual decisions, investigations and deal reviews. On the conduct side, it issued a rare disgorgement order – worth a whopping €277 million – to stevedores for excessive pricing and found that Apple committed resale price maintenance. The agency also cleared Bayer/Monsanto conditioned on the merged company sharing their IP with rivals, and approved Uber’s merger with Yandex.Taxi. There’s more change afoot, as the enforcer looks to shake up its leniency programme.
Agency of the year – Asia-Pacific, Middle East and Africa
An agency in Asia-Pacific, the Middle East or Africa whose work in 2017 was particularly creative, strategic and innovative.
Taiwan's Fair Trade Commission
It’s unsurprising that Taiwan’s Fair Trade Commission has rapidly become a major enforcer in the technology space, given the presence of significant manufacturers in the country. After years of involvement in international electronic component cartel investigations, the TFTC took a further jump with its decision to fine Qualcomm a record-breaking NT$23.4 billion (€653 million) for refusing to license its standard-essential patents. The enforcer is joining the ranks of the KFTC and JFTC as one of the most sophisticated in East Asia.
Competition Commission of South Africa
There’s a lot on the Competition Commission of South Africa’s plate right now. Top of the slate is its foreign exchange case. Barring settlements or dropping the case, the enforcer is set to become the first competition authority worldwide to have to prosecute its forex accusations in court, as other countries have reached a deal or issued administrative decisions. Beyond that, the commission is the best-established in Africa, with a track record of cracking down on cartels big and small, and of involvement in some of the world’s biggest deals.
Egypt’s Competition Authority
The Egyptian antitrust enforcer is by far the most active and successful in the Arab-speaking world, with a good number of antitrust investigations and fines under its belt. Last year was probably its biggest yet: its work spanned from obtaining a court order forcing a director to pay for a failure to communicate, to charging the secretary-general of Africa’s football governing body with criminal abuse of dominance, while also declaring void a contract between broadcaster beIN and Cable Network Egypt.
Enforcement action of the year
The best decision or enforcement action from a competition authority or court in 2017.
Germany’s Facebook investigation
In December 2017, Germany’s Federal Cartel Office reached a preliminary conclusion that Facebook’s collection and use of data from third-party sources is abusive. The enforcer considers that the way Facebook gathers data from services it owns, and from websites and apps or other operators with embedded Facebook APIs, is a breach of antitrust law. The authority says the extent and form of data collection without the knowledge or consent of users violates European data protection principles. Facebook now has the opportunity to comment on the authority’s preliminary assessment. It is also undoubtedly the German authority’s highest-profile investigation, and the first case in which a competition authority argues that specific data collection practices may amount to an exploitative abuse affecting a service’s users. The agency says it has the power to monitor the data-processing activities of dominant companies.
European Commission’s Amazon ebooks investigation
The European Commission investigated most-favoured-nation clauses in Amazon's contracts that required publishers to offer Amazon similar or better terms
and conditions than those offered to its competitors. The investigation sought to verify whether Amazon abused its dominant position by relying on contractual clauses that appeared to safeguard it from competition. Under the commitments the commission accepted in May 2017, Amazon will no longer enforce nor introduce such clauses in agreements with publishers in Europe for five years. The decision is the first case analysing – albeit from a preliminary perspective – the alleged dominant position of Amazon in the European ebooks market.
US v EnergySolutions
The DOJ sued in the US District Court for the District of Delaware to block EnergySolutions’ proposed merger with Waste Control Specialists, which also provides disposal of commercial low-level radioactive waste. Because WCS was a relatively recent entrant, data on competitive effects were sparse, but the DOJ was able to use documented procompetitive consequences of entry to show harm from the merger, including non-price effects. In June 2017, the court blocked the merger, finding it would substantially lessen competition and rejecting the proposed “failing firm” defence.
US v Aetna/Humana and Anthem/Cigna
The DOJ sued four of the largest health insurance companies in the US on 21 July 2016 to prevent their consolidation in two proposed mergers: Aetna’s US$34 billion acquisition of Humana and Anthem’s US$54 billion acquisition of Cigna. The Antitrust Division deployed two teams of litigators in separate courtrooms in the US District Court for the District of Columbia in November and December 2016 to argue that each merger would harm distinct groups of consumers, ranging from large employers providing workers benefits, to elderly Americans who opt to receive government-funded healthcare through private insurers. Judge John Bates blocked Aetna/Humana on 23 January 2017; Judge Amy Berman Jackson blocked Anthem/Cigna on 8 February 2017. On 14 February, Aetna, Humana and Cigna said their intended tie-ups would not proceed. However, Anthem kept fighting, and the DOJ won a 2-1 ruling in the US Court of Appeals for the District of Columbia Circuit on 28 April that upheld Judge Jackson’s order.
Academic Excellence Award
An academic competition specialist who has made an outstanding contribution to competition policy in 2017.
An associate researcher at the Université Paris 1 Panthéon-Sorbonne, Thibault Schrepel published several well-regarded academic papers in 2017, including A New Structured Rule of Reason Approach for High-Tech Markets and Predatory Innovation: The Definite Need for Legal Recognition.
Pablo Ibáñez Colomo
Professor Pablo Ibáñez Colomo is associate professor of law at the London School of Economics and Political Science and a visiting professor at the College of Europe in Bruges. He is a general editor of the Journal of European Competition Law & Practice by Oxford University Press and is author of the Chillin’ Competition blog.
Global Antitrust Institute at the Antonin Scalia Law School, George Mason University
The Global Antitrust Institute boasts several antitrust experts who contribute to developing competition policy through education, advocacy and research. Many of its academics formerly held leadership positions at the US FTC or DOJ, including former FTC commissioner Joshua Wright, who serves as the GAI’s executive director. Judge Douglas Ginsburg is director of the Global Law & Economics Program and chair of the institute’s international board of advisors; Bruce Kobayashi is a senior scholar and founding director; John Yun is director of economic education; and Tad Lipsky is director of the Competition Advocacy Program.
Economist of the year
A competition economist whose superior technical skill, practical judgment and excellence in client service in 2017 demonstrate that he or she is among the very best in the field.
Anne Layne-Farrar is a vice president in the antitrust and competition economics practice at Charles River Associates, and is adjunct professor at Northwestern University Pritzker School of Law. Layne-Farrar is a leading economist and academic on the intersection of antitrust and intellectual property law. She has served as an expert in 13 FRAND cases across the globe, testified in 30 antitrust/IP cases, and regularly contributes to amicus briefs. In 2017, she published a comprehensive review of all FRAND cases around the world, and also testified in cases before courts in the US and India.
Robin Noble, a partner at Oxera in Oxford, was instructed in several major European antitrust damages cases in 2017. He continues to advise defendants in trucks cartel litigation and multiple claimants in power cable follow-on claims. He was a testifying expert in the UK’s first attempted class action, Dorothy Gibson v Pride Mobility Products Limited, and his reputation was cited by the Competition Appeal Tribunal in March 2017 as a key reason for allowing the applicant to reformulate its claim. In October 2017 his analysis helped persuade the High Court of England and Wales to order disclosure of documents covering Belgium, France and the Netherlands in the Polyurethane Foam litigation.
Miguel de Quinto Arredonda
Miguel de Quinto Arredonda is a senior associate and economist at Baker McKenzie in Bogotá. Before joining the firm, he served as economic advisor to Colombia’s Superintendent of Industry and Commerce and worked as an independent consultant advising law firms on economic damage claims, competition assessments and economic and market reports. He has taught at Universidad de Bogotá Jorge Tadeo Lozano, Universidad del Rosario and Pontificia Universidad Javeriana. He is currently providing economic advice on several deals filed before different competition authorities, including Unilever/Quala, which requires approval in Mexico, Colombia and Ecuador, and Bayer/Monsanto.
Edward Snyder is professor of economics and management at the Yale School of Management, and an affiliate of Analysis Group. Snyder’s work in 2017 helped advance a better understanding of pricing policies and pass-on effects in complex cartel litigation. His analyses featured in the successful defence of several large technology companies in the long-running Optical Disk Drive litigation. Snyder authored merits reports in seven outstanding cases, in which he estimated overcharges, estimated average pass-on rates, calculated purchase volumes relevant for damages, and combined these estimates to calculate estimated damages. Several defendants agreed to settle and in January 2018, Judge Richard Seeborg granted summary judgment in the four cases that were proceeding to trial – Samsung, Toshiba, BenQ and Samsung/Toshiba joint venture TSST – finding that plaintiff companies failed to prove that the alleged scheme affected them, and that the indirect purchasers had failed to prove harm.
Susan Athey is the Economics of Technology Professor at the Stanford Graduate School of Business. She was consulting chief economist for Microsoft for six years, and now serves on the boards of Expedia, Rover, and Ripple. In 2017 she testified as an expert witness on behalf of the US FTC in the agency’s case against 1-800 Contacts for agreements with competing contact lens retailers not to use each other’s trademarks in online search advertising. The administrative law judge’s decision finding for the FTC cited Athey’s models.
Corporate counsel of the year
An in-house competition lawyer whose superior technical skill and practical judgment on behalf of his or her company in 2017 demonstrate that he or she is among the very best in the field.
Jana Corinna Striezel
As head of antitrust and criminal law at Volkswagen, Striezel leads the automaker’s worldwide defence against allegations that it conspired to increase the prices of German luxury vehicles by agreeing to share commercially sensitive information, and to reach unlawful agreements regarding technology, costs, and suppliers. She is setting the strategy for an effective and coordinated defence across multiple jurisdictions. The European Commission and Germany’s Federal Cartel Office, and possibly others, are investigating the allegations.
As global head of antitrust at Qualcomm, Alvaro Ramos advises on a variety of business units and antitrust matters; handles complex cross-border antitrust filings, such as in Qualcomm/NXP and Broadcom’s hostile bid to buy Qualcomm; and deals with cutting-edge antitrust investigations and litigation across the world, including in the EU, Korea, Taiwan, Japan and the US.
Vodafone’s global head of competition Nick Woodrow has led on numerous high-profile acquisitions and disposals, including recently Vodafone’s proposed merger of its Indian operations with Idea Cellular; and Vodafone and Liberty Global’s Netherlands joint venture. Woodrow also plays a key role in the company’s response to market developments, such as leading on the response to the proposed merger between Three and O2. Vodafone’s representations to the European Commission focused on the potential loss of competition in the UK’s mobile network infrastructure, which ultimately was one of the main reasons for the prohibition of the merger in 2016.
Nick Koberstein is in-house division counsel at Abbott Laboratories. After a lengthy career with the FTC, he has been Abbott's FTC and merger control subject matter expert for more than 10 years. While successfully navigating the $29 billion Abbott Laboratories/St Jude Medical deal through a significant number of regulatory filings around the world, Koberstein was also the lead in-house antitrust counsel on the contentious $5.8 billion Abbott/Alere transaction.
Google was involved in several major antitrust matters during the year, and Oliver Bethell was a critical member of Google’s legal team. Recently promoted to director for Europe, Middle East and Africa competition, he has been a Google in-house antitrust lawyer since 2008. He has led large cross-functional teams in a range of high-profile international investigations and transactions around the world.
Tilman Makatsch is responsible for Deutsche Bahn’s antitrust damages claims. He heads a dedicated unit responsible for claiming antitrust follow-on damages, which handles more than 22 antitrust damages cases worth more than €1 billion across five jurisdictions. His unit is responsible for the conclusion of 34 settlements with a total value of approximately €400 million.
Uber global competition counsel Gail Levine coordinates and leads the company globally, with resources in the US, Latin America, Asia, Africa, India, Europe and the Middle East, to diagnose and fine-tune the company’s practices for compliance with competition laws. Levine has recently been integral in modernising Uber management’s internal approach to global antitrust compliance, and implementing comprehensive antitrust training and overseeing the company’s responses to any inquiries. She recently addressed antitrust clearance issues related to SoftBank’s multibillion-dollar investment in Uber – the largest-ever private secondary transaction in the technology space.
Litigator of the year
A competition litigator whose superior technical skill, practical judgment and excellence in serving clients in court in 2017 demonstrate that he or she is among the very best in the field.
Shari Ross Lahlou
In 2017, Crowell & Moring’s antitrust co-chair Shari Ross Lahlou successfully defended on appeal two significant pre-trial wins, defeated class certification in a notable price-fixing multidistrict litigation, and tried a US$39 billion merger case. The US Court of Appeals for the Third Circuit affirmed a grant of summary judgment in favour of DuPont against Valspar’s claim of US$525 million in damages, clarifying the appropriate standard for assessing evidence in price-fixing cases. She also secured summary judgment in the US Court of Appeals for the Tenth Circuit for Owens & Minor, in a suit brought by Suture Express alleging price bundling and more than US$1 billion in damages. The case addressed the extent to which loyalty-bundled discount pricing can be anticompetitive. Other notable successes last year included helping to convince a federal court to deny class certification in Rail Freight Fuel Surcharge. Lahlou was trial counsel for and led the team defending Humana in the lawsuit brought by the US DOJ to block its proposed merger with Aetna; the government won the case.
J Mark Gidley
White & Case global antitrust practice head Mark Gidley’s highlights of 2017 included representing Anthem in its merger trial and appeal, following a challenge by the US DOJ against its US$54 billion acquisition of Cigna. While the courts blocked the deal, Gidley helped create a new precedent in the DC Circuit for expedited appeals in merger cases – filing the Anthem appellate brief in a record 72 hours. Gidley also defended Richard Usher at trial against the DOJ on accusations of rigging Forex rates. Other notable work included acting for Allergan in several antitrust litigations, including Doryx, securing final victory on all claims in April 2017 when generic Mylan decided to abandon its bid to file a petition of certiorari in the US Supreme Court; leading the defence of Warner Chilcott (Allergan) in Asacol, obtaining in February 2017 partial dismissal of the direct purchaser class plaintiffs’ product hopping claims; and representing Allergan in the Botox class action litigation, which ended with a relatively low direct purchaser settlement in December 2017.
As co-leader of Jones Day’s business litigation practice, John Majoras is considered the go-to antitrust litigator for many of the firm’s clients. After heading the trial defence of Aetna’s proposed acquisition of Humana against the US DOJ, in 2017, he defended Deere & Company in a DOJ lawsuit to block its acquisition of Monsanto’s Precision Planting business, as well as Parker Hannifin in a DOJ antitrust lawsuit challenging its completed US$4.3 billion acquisition of Clarcor. He also defended Marathon Petroleum and its related entities against a monopolisation case filed by the Commonwealth of Kentucky; acted for Union Pacific in Rail Freight Fuel Surcharge; and represented Yazaki in US damages litigation stemming from the auto parts antitrust investigations.
Freshfields Bruckhaus Deringer competition litigator Mark Sansom had a stellar 2017, acting in several high-profile antitrust claims and cementing his reputation as a leader in the field. With Jon Lawrence, who retires from Freshfields in 2018, Sansom led the team that successfully defeated at the class certification stage a proposed £14 billion action on behalf of 46 million consumers against Mastercard – the largest claim in English legal history and the most significant European antitrust class action to date. Sansom also continued his longstanding representation of ABB, co-ordinating its international defence of multiple claims arising from European Commission decisions relating to the gas-insulated switchgear and power cables cartels. The power cables claim by BritNed against ABB goes to trial in February 2018 and is set to become the first cartel damages claim to reach final judgment in the UK. Sansom is also continuing to defend numerous other companies in cartel follow-on disputes, including Infineon in relation to Vodafone’s high-profile claim relating to the smart card chips cartel.
Daniel Beard QC
Daniel Beard QC at Monckton Chambers was lead counsel for Intel in its successful appeal before the European Court of Justice against a decision by the General Court to uphold a €1 billion abuse of dominance fine. The judgment was arguably the most significant EU competition ruling of 2017 and the most important abuse of dominance decision for several years, requiring EU enforcers’ infringement findings to account for evidence and effects. Beard was instrumental to the success of the case and those who attended the oral hearing commented on the excellence of his advocacy. He was also lead counsel for BT in its successful appeal before the UK Competition Appeal Tribunal, challenging the UK communications regulator Ofcom’s findings of market definition and imposition of intrusive remedies. It is believed to be the first time that a UK regulator’s market definition has been successfully challenged.
During 2017, Latham & Watkins partner Dan Wall advised Apple, Toshiba, American Airlines, Broadcom, Union Pacific, Live Nation and others on high-profile litigation matters. He defeated monopolisation and conspiracy claims filed by Samsung against the founders of the SD Card standard by obtaining an arbitration ruling requiring Samsung to drop the claims, on the basis that it breached a cross-licensing agreement with Toshiba by filing the suit. He also defeated a class certification in Rail Freight Fuel Surcharge, leading the defence for all defendants on remand. Other matters included obtaining summary judgment for Apple on key “aftermarket” monopolisation claims in iPhone Antitrust Litigation – a challenge to the carrier agreements that once gave AT&T exclusive rights to the iPhone; and obtaining dismissal on the pleadings for American Airlines in a case claiming that American, Delta and United conspired to limit “combinable” airfares. In non-litigation work, he also leads the worldwide merger clearance effort for Broadcom in its unsolicited takeover battle for Qualcomm.
A senior litigation partner at Quinn Emanuel Urquhart & Sullivan, Dan Brockett is well known for his plaintiff’s side work in antitrust. Judges in the US District Court for the Southern District of New York recently chose him as lead counsel in an array of precedent-setting antitrust and market manipulation cases involving credit default swaps, gold and commodities, ISDAfix, SSA bonds, stock lending, Treasuries and interest rate swaps. Brockett recently recovered close to US$1.9 billion for clients, following the highly publicised settlement of the credit default swap antitrust litigation, in which he acted as co-lead counsel for the plaintiffs. He also secured a US$410 million partial settlement in the ISDAfix case, where he represents a class of investors.
Recognised as a leading antitrust practitioner, Kirkland & Ellis partner Daniel E Laytin obtained several favourable outcomes for his clients in monopolisation and price-fixing cases in 2017. He was one of two lead lawyers representing and acting as co-coordinating counsel for Blue Cross and Blue Shield Association, obtaining summary judgment for the defendants in consolidated class actions challenging the structure of the BCBS system under antitrust laws. He is the lead antitrust attorney for the Chicago Cubs in an ongoing antitrust challenge by neighbouring rooftop businesses seeking to prevent erection of Wrigley Field videoboards – a case in which he obtained dismissal of antitrust claims in federal district and appellate courts; and for Hill-Rom against a competitor’s allegations of monopolisation of hospital-bed related markets. Laytin is also lead counsel for Sanderson Farms in putative antitrust class actions alleging conspiracy to reduce output and raise the prices of broiler chickens.
Dealmaker of the year
A lawyer whose superior knowledge, practical judgement and negotiation skills in merger clearance matters in 2017 demonstrate that he or she is among the very best in the field.
Clifford Chance partner Greg Olsen shepherded several high-profile merger clearances in 2017. Acting for Booker Group, he helped secure unconditional fast-track Phase II clearance for its £3.7 billion (€4.2 billion) merger with Tesco, despite significant opposition from competitors and widespread speculation that the UK’s CMA would require extensive remedies. He also guided Mastercard’s controversial £700 million acquisition of Vocalink, which the CMA cleared in Phase I – the first time the authority ever accepted Phase I non-structural remedies in such a complex matter. In addition to those deals, Olsen also convinced the European Commission to clear 10 other mergers in Phase I in 2017.
Davis Polk & Wardwell partner Ronan Harty is sought out by clients such as Emerson, Syngenta, Gillette, PwC, Red Bull and Hoffmann-La Roche because of his track record obtaining merger clearance in high-value, complex matters. In 2017, his major successes included advising Syngenta on its US$43 billion acquisition by ChemChina, and representing Advanced Semiconductor Engineering in its US$4.35 billion combination with Siliconware Precision Industries. He worked on four large deals for Emerson Electric, including its US$3.15 billion acquisition of Pentair Valves & Controls and its US$1.2 billion sale of Leroy-Somer and Control Techniques. He also found time to steer HSN’s US$2.6 billion Acquisition by Liberty Interactive; PharMerica’s US$1.4 billion acquisition by KKR and Walgreens; and a pair of deals for VF Corporation.
London and Brussels-based Slaughter and May partner Bertrand Louveaux was instructed in several 2017 mergers that required review by UK and EU competition enforcers. Highlights included advising Wood Group on its buyout of Amec Foster Wheeler, handling the worldwide filings and securing UK clearance subject to undertakings; and guiding Rolls-Royce’s acquisition of ITP, which was cleared by the European Commission at Phase I with commitments. He also advised Punch Taverns on its takeover by Heineken; Royal Dutch Shell on its acquisition of BG Group; and GlaxoSmithKline on its agreement with Verily Life Sciences, an Alphabet company, to form Galvani Bioelectronics.
During 2017, Jones Day partner Phillip Proger led three high-profile multibillion-dollar deals, which required the coordination of teams handling merger notification and intensive advocacy efforts before antitrust authorities. He advised Aetna on its proposed US$37 billion acquisition of Humana, which involved a year-long DOJ investigation and a trial defending the agency’s lawsuit to block the deal. He steered Rite Aid’s proposed transactions with Walgreens Boots Alliance, which started in 2015 and underwent extensive review by the US FTC before concluding in late 2017. He also advised PotashCorp on its US$38 billion merger of equals with Canadian agribusiness Agrium, which was cleared by antitrust enforcers following nearly 12 months of scrutiny following concerns that stemmed from recent consolidation in the industry.
Latham & Watkins Washington, DC, office managing partner Michael Egge leads major global deals that require clearance in the Americas, Europe and Asia. In 2017, Egge represented Agrium in its US$36 billion merger with Potash Corporation, which saw a US FTC second request and formal merger review proceedings in five other jurisdictions around the world, including China, Brazil and India. The FTC cleared the tie-up in December 2017, marking the end of a 15-month global effort to get the deal through. Last year, Egge also advised Weatherford International on the sale of its US hydraulic fracturing business to Schlumberger, securing unconditional global clearance despite an in-depth second request investigation by the US DOJ; and represented FMC Technologies in its US$13 billion cross-border merger of equals with Technip.
As co-head of Weil Gotshal & Manges’ global antitrust practice and former head of the Federal Trade Commission’s merger enforcement programme, Steven Newborn has obtained approvals for hundreds of deals, of which some ran into regulatory roadblocks before he was retained. 2017 was a banner year for Newborn, which saw him lead antitrust reviews for over 20 deals worth more than US$50 billion; they all received antitrust approval. Notable deals include advising Campbell Soup Company on its pending US$4.87 billion acquisition of Snyder’s-Lance; acting for Scripps Networks Interactive in its pending US$14.6 billion merger with Discovery Communications; representing Walgreens Boots Alliance in its acquisition of almost 2,000 Rite Aid stores for approximately US$4.38 billion; advising the Sherwin-Williams Company in its US$11.3 billion acquisition of The Valspar Corporation; and steering G & K Services’ US$2.2 billion merger with Cintas.
Cleary Gottlieb Steen & Hamilton partner George Cary was lead global antitrust counsel to Dow Chemical in its US$130 billion merger of equals with DuPont. One of the most complex and challenging international antitrust transactions ever completed, it required merger clearances in over 20 jurisdictions, including the US, EU, China, Brazil, South Africa and India. The deal, which was the third-largest transaction of all time, attracted scrutiny from enforcers, who investigated several overlaps in each jurisdiction. Cary led Cleary Gottlieb’s strategy to avoid inconsistent and potentially debilitating divestitures, focusing on all jurisdictions independently rather than adopting additional remedies based on problems identified in other jurisdictions. At the same time as Dow/DuPont, Cary successfully guided Abbott Laboratories’ US$25 billion acquisition of St Jude Medical and steered Western Digital’s US$17 billion acquisition of SanDisk. He currently advises 21st Century Fox on Disney’s announced $52.4 billion acquisition of the media company.
Clifford H Aronson
Cliff Aronson is the North American leader of Skadden Arps Slate Meagher & Flom’s antitrust group. He headed the Skadden team instructed as global coordinating antitrust counsel to DuPont in its US$130 billion merger with Dow. Led by Aronson, Skadden developed a unique divestiture arrangement involving the exchange of business assets as consideration by both parties. That structure required a separate investigation and clearance by the DOJ, quickly obtained by Skadden on DuPont’s behalf. Aronson coordinated the US review with approvals secured by in the EU, China and several other jurisdictions. He achieved all of this while working on several other high-profile 2017 deals, including Walt Disney/21st Century Fox; United Technologies/Rockwell Collins; Mars/VCA, Centene/Fidelis Care, Express Scripts/EviCore, Penn National Gaming/Pinnacle Entertainment; and Citrix Systems’ US$1.8 billion merger of its GoTo business with LogMeIn.
Lawyer of the year – Under 40
A competition lawyer under the age of 40 whose superior technical skill, practical judgement and excellence in client service in 2017 demonstrate that he or she is among the very best in the field.
Margaret Segall D’Amico
Margaret Segall D’Amico, 36, is a litigation and antitrust partner at Cravath Swaine & Moore. 2017 was a remarkable year, during which she advised Time Warner on its pending US$108.7 billion sale to AT&T– one of the largest and highest-profile mergers of the year. She oversaw the day-to-day running of the DOJ review on behalf of Time Warner, which required the production of approximately 1.5 million documents and multiple investigative hearings, as well as antitrust and other regulatory filings in over 20 jurisdictions across the globe. She is also the company’s trial attorney in the DOJ’s lawsuit to block the deal, which represents the US government’s first vertical merger challenge in several decades. That caseload alone would be a source of pride for many a seasoned antitrust attorney, but D’Amico was also instructed by Alere on its US$8 billion sale to Abbott Laboratories; Biogen on its US$1.25 billion settlement and license agreement with Forward Pharma; Pitney Bowes on its US$475 million acquisition of Newgistics; Becle, known collectively with its subsidiaries as Jose Cuervo, on its pending US$205 million buyout of the Pendleton Whisky brand assets; and Eurazeo in partnership with Primavera Capital Group on its pending majority investment in WorldStrides.
Creighton Macy joined Baker McKenzie as a partner in March 2017, after serving as senior counsel and chief of staff to Renata Hesse in the Department of Justice’s antitrust division. While at the DOJ, Macy was a senior adviser to the acting assistant attorney general on civil and criminal antitrust enforcement, undertaking a significant volume of high-profile civil and criminal matters. Less than a year after leaving the DOJ to join Baker McKenzie, Macy advises companies and individuals on merger control and criminal antitrust.
Thomas Elkins at Linklaters in Paris balances merger control work, behavioural advice and private damages claims. He boasts particular expertise in the pharmaceutical sector, but also acts as long-standing advisor to clients as varied as Peugeot Citroën PSA, Nestlé, Sanofi and Intermarché. In 2017, he advised Peugeot Citroën PSA on its acquisition of Opel, which was cleared by the European Commission and in over a dozen other jurisdictions. The same tie-up also included the acquisition of Opel’s banking business, which triggered separate merger filings in several jurisdictions including Europe. He also successfully defended Sanofi in a preliminary ruling reference to the European Court of Justice and the Paris Court of Appeal in a dispute with Genentech.
Jesse Solomon was the first-ever partner to be promoted from the associate ranks at Davis Polk’s Washington, DC, office, and was the first antitrust associate to be promoted to the firm’s partnership in 16 years. Solomon, 38, has in recent years worked on several complex and challenging antitrust merger reviews for big name clients such as GE, Novo Nordisk, Shire, Smith & Nephew and AstraZeneca. Last year, he advised Aetna on its US$77 billion sale to CVS – the largest deal of 2017, which was investigated by the Department of Justice. He also advised Syngenta on its US$43 billion acquisition by ChemChina, which obtained antitrust approval in the US, EU, China, Canada, Mexico and India; acted for BATS Global Markets on its US$3.2 billion acquisition by CBOE; steered Mitsubishi Tanabe Pharma’s US$1.1 billion acquisition of NeuroDerm; represented Volkswagen Truck & Bus on its US$256 million alliance with Navistar; and advised Metalmark Capital on its sale of WorldStrides.
In 2017, Jones Day partner Yizhe Zhang advised on several high-value multijurisdictional deals that required clearance from China’s Ministry of Commerce – including PotashCorp’s US$38 billion merger with Agrium; Safran’s €8.7 billion acquisition of Zodiac Aerospace; and the US$14.8 billion acquisition of Linear Technology by Analog Devices. As a former staffer in Mofcom’s Anti-Monopoly Office and a key member of the team responsible for drafting China’s Anti-Monopoly Law, Yizhe Zhang’s experience and insight set her apart from other practitioners. Recognised by GCR’s Women in Antitrust 2016, she regularly advises clients across multiple industries, including automotive, aviation, chemicals, technology, pharmaceuticals, energy, retail and transportation.
At just 35 years old, Robins Kaplan principal Meegan Hollywood has already helped recover more than US$1.5 billion for victims of anticompetitive conduct – 80% of which was secured in settlements in US air cargo litigation. She currently acts as co-lead counsel in an antitrust action against the three dominant suppliers of IV saline solution, alleging that defendants Baxter and Hospira orchestrated an artificial price increase under the pretext of a supply shortage. Hollywood is also litigating a proposed class action against Keurig Green Mountain for its alleged participation in a scheme to unfairly monopolise the multibillion-dollar market for “K-Cups” and has served on the court-appointed executive committee in a multidistrict litigation alleging a conspiracy to fix, raise, and maintain the price of polyurethane foam products, securing $433 million in settlements.
Fernando Carreño, a partner at Von Wobeser y Sierra, is considered to be one of the best antitrust lawyers in Mexico. He advised Volaris on the acquisition of airport slots in Mexico City and New York, after the US Department of Transportation ordered Aeroméxico and Delta Air Lines to divest take-off and landing rights at JFK and Mexico City International Airport as a condition for their joint venture. He also advised clients on enforcement investigations in the banking, poultry, sugar, chemicals and pharmaceutical industries. Carreño also advised AB InBev in a market investigation by COFECE in the market of barley seeds, securing a close to the probe any findings or sanctions – potentially the first time such a market investigation has been closed without a ruling of liability against the parties involved. AB InBev also turned to Carreño for advice in various cross-border transactions, securing antitrust clearances in Latin American jurisdictions like El Salvador or Honduras.
Cleary Gottlieb Steen & Hamilton partner Elaine Ewing played a major role in securing global antitrust clearance for Dow Chemical in its US$130 billion merger of equals with DuPont in June 2017. It was the world’s third-largest ever tie-up and one of the most challenging international mergers ever to close, given significant global overlaps and the local differentiation of agricultural chemicals and seeds. The deal required merger clearances in over 20 jurisdictions, including the EU, China, Brazil, India and the US, which proved even more tricky while navigating a difficult transition between the Obama and Trump administrations. In 2017, Ewing also secured antitrust clearance for Abbott Laboratories’ US$25 billion acquisition of St Jude Medical, which was cleared in over a dozen jurisdictions with minimal divestitures, including the US, EU and China, before turning her attention to SUPERVALU’s acquisitions of Unified Grocers and Associated Grocers of Florida, which combined two of the largest grocery wholesalers in the Pacific Northwest and Florida, but were cleared without second requests.
Lawyer of the year
A competition lawyer whose superior skill, practical judgement and excellence in client service in 2017 demonstrate that he or she is among the very best in the field.
Barbara Rosenberg heads the competition practice at BMA Barbosa Müssnich e Aragão Advogados. In 2017, she steered merger filings before CADE on several big-ticket national and international deals that required remedies, including Dow/DuPont, BM&FBovespa/Cetip, LATAM/IAG and Itaú Unibanco/Citibank. She also shepherded several deals that were cleared without commitments, including HP/Samsung, LM/GE Wind, Magnesita/RHI, Oberthur/Safran and Zodiac/Safran.
Brian Facey chairs Blake Cassels & Graydon’s competition, antitrust and foreign investment group, where he handles the most complex and high-value mergers requiring Canadian review. In 2017, Facey led the Canadian merger review process on several tie-ups, including Bell Canada/MTS, Superior Plus LP/Canwest Propane, Pembina Pipeline Corporation/Veresen, Agrium/PotashCorp and Essilor/Luxottica. He also maintains an active behavioural practice, advising a wide range of Canadian companies and investment bankers. He previously chaired the Canadian Bar Association’s competition law section and remains active in the American Bar Association’s section of antitrust law.
John Boyce heads the Brussels office of Slaughter and May, where he has been a partner since 1996. He recently advised FMC on its acquisition of DuPont’s crop protection business following the Dow/DuPont commitments – marking the first time the European Commission has ever approved a remedy purchaser despite competition concerns, which were resolved by Phase I remedies. Boyce continues to advise Tata Steel on its proposed European steel joint venture with ThyssenKrupp, and a major bank on the ongoing forex investigation. Originally from Scotland and qualified as a lawyer in England and Wales, he has reinforced his commitment to Brussels by acquiring Belgian citizenship and being admitted as a Belgian lawyer. Boyce was named as the Competition Lawyer of the Year by Who’s Who Legal in 2017.
Han heads the antitrust practice at Fangda Partners, and was previously head of the Greater China antitrust practice at Freshfields Bruckhaus Deringer. He also previously worked as an official with China’s Ministry of Foreign Trade and Economic Co-operation – the precursor to the Ministry of Commerce. In 2017, he acted in some of the largest and most complex mergers in China, including Dow/Dupont and Bard/BD, which marked two of Mofcom’s seven remedy cases cleared in 2017. Han also acted in all the major Chinese antitrust investigations into international companies in 2017, including investigations into Eastman Chemical and GN Nord for alleged resale price maintenance. He also represents Microsoft in its ongoing antitrust investigation by China’s State Administration for Industry and Commerce – the agency’s only current antitrust investigation into a multinational corporation. He also represented Medtronic in negotiations with China’s National Development and Reform Commission arising out of its medical devices investigation; and has acted in three of the six ongoing abuse of dominance investigations into Chinese ports.
Longtime Cleary Gottlieb Steen & Hamilton partner Mario Siragusa is an important figure in the development of EU antitrust law, and he continues to be involved in agenda-setting cases in his fifth decade of legal practice, both in Brussels and his native Italy. Siragusa represents eyewear manufacturer Essilor in its US$49 billion global merger with Luxottica. He is also lead counsel to Roche as it fights a novel Italian decision finding that it restricted competition by issuing misleading statements, which last year led to an ECJ reference. Siragusa also persuaded the EU’s General Court to partly suspend a DG Comp decision ordering Italy to recover state aid from SACE.
Steven C Sunshine
Steven C Sunshine is global antitrust and competition at Skadden Arps Slate Meagher & Flom. For 30 years, Sunshine has led clients through every aspect of antitrust law – contested mergers, bet-the-company litigation and industry-altering government enforcement – and 2017 was no different. In the technology sector, he advised NXP, Intel, HP and Yahoo!; in healthcare and life sciences he represented Becton Dickinson, Cardinal Health and Gilead; while in consumer products, he advised Anheuser-Busch InBev and SolarCity. In complex multidistrict litigation, Sunshine continues to lead emerging trends and developments in pharmaceutical antitrust law, including cutting-edge litigation through his representation of Actavis and Valeant.
As chair of Clifford Chance’s global antitrust practice, Thomas Vinje last year represented clients in several high-profile competition cases. He represented FairSearch, a coalition of organisations, as the main complainant in the European Commission’s Android investigation, and as a leading intervener in the Google search case. Vinje was instrumental in working with FairSearch to seek robust competition in the online shopping market, which resulted in Google being fined €2.4 billion by the European Commission for abusing its dominant position by promoting its own shopping service. Vinje also advised Oracle on an investigation into alleged abuse of dominance by Korea’s Fair Trade Commission, which ultimately dropped all allegations against the company.
The end of 2017 saw Martin Klusmann stand down as co-global practice group leader of Freshfields Bruckhaus Deringer’s antitrust group, following a maximum six-year term that saw the team continue to go from strength to strength. Klusmann enjoyed an active 2017 across each of the core competition law disciplines, working on robustly negotiated deals, headline-grabbing antitrust investigations and follow-on litigation. ThyssenKrupp turned to Klusmann to advise on the merger of its European operations with India’s Tata Steel, creating the continent’s second-largest steel group. He continues to defend Volkswagen in a European Commission investigation into alleged collusion between German car manufacturers. He regularly advises clients including BP, Chiquita, Infineon, Knauf Group, Mitsui, Tchibo, Solvay and Vodafone; and also maintains an active follow-on damages practice, defending claims in and out of court pursuant to investigations in the automotive, chemicals and food sectors.
Regional firm of the year – Americas
A firm based solely in North, South or Central America that has had an outstandingly successful 2017 in terms of the quality and quantity of its competition work.
Pinheiro Neto Advogados
International firms rely on Pinheiro Neto Advogados when a big-budget merger needs clearance. The competition group, which was established in the 1960s and advises clients in close to 60 countries, advised Dow in its tie-up with DuPont, steering the US$1.1 billion divestiture of Dow AgroSciences’ Brazilian corn seed business and helping to coordinate the company’s global antitrust strategy alongside Cleary Gottlieb Steen & Hamilton.
Robins Kaplan prides itself on securing antitrust victories that affect entire industries. 2017 was a good year for the firm, which recovered over US$300 million in settlements for purchasers of auto parts in multidistrict litigation stemming from the largest-ever US criminal antitrust investigation. The team also filed one of the first complaints against Wells Fargo over its practice of charging loan borrowers for unnecessary auto insurance; was appointed co-lead counsel in antitrust litigation against the dominant suppliers of IV saline solution before filing the first complaint; secured final settlement for Best Buy in litigation over cathode ray tubes, bringing total recoveries to over $250 million; and defeated Keurig Green Mountain’s motion to dismiss a class action for its alleged scheme to unfairly monopolise the ‘K-Cup’ market.
Barbosa Müssnich e Aragão Advogados
BMA was involved in the majority of CADE’s highest-profile matters in 2017. The firm had an impressively strong year, advising one or both companies in several huge deals, including Dow/DuPont, BMFBovespa/Cetip, LATAM/IAG, Itaú Unibanco/Citibank, Itaú/XP, HP/Samsung, Kroton/Estácio, LM Wind/GE, Magnesita/RHI, Oberthur/Safran, Zodiac/Safran, Petrobras/Petrotemex, Essilor/Luxottica and Linde/Praxair. Several behavioural cases also required supervision; the team has been instructed in the majority of international cartel investigations and in almost every Operation Car Wash probe.
Levy & Salomão Advogados
Levy & Salomão Advogados had a good year in 2017, advising clients on a range of mergers and leniency agreements. The firm secured unconditional clearance for American Airlines’ joint venture with LATAM, despite both carriers operating the largest number of flights between north and Latin America. The antitrust group advised SK Global Chemicals on the acquisition of businesses divested during Dow/DuPont; acted for AccorHotels on its purchase of BHG; and secured unconditional clearance for a joint venture between Brazil’s two largest national credit bureaus Serasa and Boa Vista, despite several challenges by third parties. The team also advised Camargo Corrêa on the first leniency agreement agreed with federal prosecutors in São Paulo related to Operation Car Wash.
Pereira Neto Macedo Advogados
Pereira Neto Macedo Advogados grew its case load and antitrust team in 2017, and represented clients in most of Brazil’s high-profile antitrust matters. The firm continues to advise clients on cartel investigations in more than 15 sectors, including forex, auto parts and optical disk drives, in which it agreed a settlement on behalf of Sony. The antitrust team negotiated two leniency agreements for the construction company Construtora OAS and negotiated settlements and case dismissals in behavioural probes examining abuse in the credit card and telecoms sectors. The firm challenged the Kroton/Estácio and AT&T/TimeWarner mergers on behalf of the Laureate and Discovery groups respectively, convincing CADE to block the former and demand substantial behavioural remedies in the latter.
Blake Cassels & Graydon
Many see Blake Cassels & Graydon as the Canadian firm of choice for companies that need merger approval when the going gets tough, complex and multi-jurisdictional. The firm’s work in 2017 built on that reputation by guiding several deals past Canada’s Competition Bureau, including contentious international mergers that were cleared without remedies; cross-border transactions requiring extensive cooperation between enforcers in multiple jurisdictions; and completed deals where the merging companies deployed Canada’s efficiencies defence. Notable highlights include Agrium’s US$36 billion merger with PotashCorp; Superior Plus in its acquisition of Canwest Propane; and Essilor International’s tie-up with Luxottica.
Cohen Milstein Sellers & Toll
Cohen Milstein Sellers & Toll served as lead or co-lead counsel on several high-value litigation claims in 2017. The team represented a certified class of approximately 10,000 animation and visual effects workers in the In re: Animation Workers Antitrust Litigation lawsuit – a case that settled in June 2017 after US District Judge Lucy Koh granted approval to final settlements totalling US$168.5 million. It also secured a US$190 million settlement in the Domestic Drywall litigation. The firm also serves as co-lead counsel in the Interest Rate Swaps Market Manipulation and Treasuries Market Manipulation litigation, and is advising clients in the Stock Lending Market Manipulation litigation.
Cravath Swaine & Moore
Cravath Swaine & Moore is consistently tapped to represent clients in multibillion-dollar mergers and game-changing antitrust litigation. Last year, the firm was instructed on 15 deals worth more than US$280 billion, including British American Tobacco’s US$93 billion merger with Reynolds and Qualcomm’s US$47 billion acquisition of NXP, which received US FTC clearance without a second request. The antitrust group is defending American Express in the US Supreme Court against allegations that the credit card company prohibited merchants from steering customers to rival cards with lower fees. It is also representing Qualcomm in numerous disputes, including competition proceedings by foreign authorities and litigation filed by Apple, the FTC and consumers. The firm continues to advise Alcon in more than 50 putative class actions concerning unilateral pricing policies; Mylan in actions concerning alleged reverse-payment settlement agreements; Morgan Stanley in several lawsuits alleging antitrust violations with respect to interest rate swaps, credit default swaps and stock loan trading; and Nomura International in a consolidated class action alleging collusion and price fixing of supranational, sub-sovereign and agency bonds.
Regional firm of the year – Europe
A firm based solely in Europe that has had an outstandingly successful 2017 in terms of the quality and quantity of its competition work.
Egorov Puginsky Afanasiev & Partners
Egorov Puginsky Afanasiev and Partners houses the largest antitrust practice in Russia, led by partner Natalia Korosteleva, whose team handled 72 matters for 53 clients in 2017. Practice highlights last year include steering a joint venture between Yandex and Uber, which Russia’s Federal Antimonopoly Service cleared in November. The firm also advised Yandex as a complainant in the enforcer’s Google Android abuse of dominance investigation. The antitrust group represented the Russian subsidiary of Mondi Uncoated Fine Paper international in an investigation of suspected abuse of dominance; and defended mining and steel company EVRAZ Group before the Russian enforcer following allegations of concerted actions to impose monopoly prices in the rebar market.
Partners Jaime Folguera and Antonio Guerra lead the antitrust group at Uría Menéndez, which operates out of Spain, Portugal and Brussels. In 2017 the team advised Gamesa on its complex €10 billion merger between Gamesa and Siemens Wind Power, which was notified in several jurisdictions, including the European Commission. The EU enforcer cleared the deal in Phase I without commitments. The team also acted for Munich Re in a Supreme Court case linked to Spanish building insurance cartel proceedings, which prompted the European Commission’s first-ever ex officio intervention in a Spanish appeal.
Formed by Oliver Bretz in late 2014, Brussels and London-based Euclid continues to go from strength to strength on either side of the English Channel, following a merger with fellow boutique Edge Legal in 2017. That tie-up saw Damien Geradin and his well-respected unilateral conduct practice join the firm.
Regional firm of the year – Asia-Pacific, Middle East and Africa
A firm based solely in Asia-Pacific, the Middle East and Africa that has had an outstandingly successful 2017 in terms of the quality and quantity of its competition work.
Allen & Gledhill
Allen & Gledhill partners Daren Shiau and Elsa Chen lead a team that claims to have a hand in every major competition case in Singapore. Recently, the group advised SIA and Airbus in a joint multijurisdictional merger control notification and whistleblower DHL in the international freight forwarding cartel case, in which the company escaped sanctions. The team also advised NSK in the bearings cartel matter, in which it obtained a 50% fine reduction for the company.
Global competition groups turn to T&D Associates for Chinese referrals. John Yong Ren heads the firm’s antitrust team, which had a good year in 2017, working on complex merger control cases and behavioural matters. The group guided Chinese filings for Dow Chemical in its merger with DuPont and for Samsung on the sale of its printer business to HP.
Yoon & Yang
Korea-based Yoon & Yang boasts a well-regarded competition practice. In 2017 it continued to advise national and multinational companies in enforcement investigations. It represents Qualcomm in its appeal against the KFTC’s abuse of dominance decision before the Seoul High Court, and has filed an injunction against the enforcement of that decision before Korea’s Supreme Court. The team secured unconditional KFTC approval for Hoya Corporation’s acquisition of Performance Optics, despite very high market shares, and defended a client in the conveyor belt cartel investigation.
Nisha Kaur Uberoi leads one of India’s largest competition groups at Trilegal, which has offices in Mumbai, Delhi and Bengaluru. The firm houses 15 dedicated antitrust lawyers, who work on competition cases for clients in the cement, auto parts, retail, financial services, telecommunications, e-commerce, automobiles, natural resources, alcoholic beverages and banking sectors. The firm represented LafargeHolcim subsidiary Ambuja Cements in the Competition Commission of India’s cement cartel probe, which led to India’s highest ever competition fine of US$1.6 billion. It also advised taxi aggregator ANI Technologies, better known as Ola Cabs, in a predatory pricing claim involving multi-sided platforms. In deal work, the firm steered Idea Cellular’s US$23 billion merger with Vodafone India and Alibaba on its investment in India's biggest online grocer, Bigbasket.com.
Shardul Amarchand Mangaldas & Co
In 2017, Shardul Amarchand Mangaldas & Co advised several auto parts manufacturers in a wide-ranging cartel investigation, eventually challenging the Competition Commission of India’s investigation order. The team obtained a stay on an auto parts fine imposed against Nissan, after successfully appealing against an order by India’s Competition Appellate Tribunal in the Supreme Court. The firm has also defended Monsanto and Uber in abuse of dominance investigations. The group was instructed in several of the year’s biggest deals: it guided Dow/DuPont and Agrium/Potash through Phase II Indian reviews, and represented Vodafone India in its merger with Idea.