GCR 100 - 19th Edition

O'Melveny & Myers

20 December 2018

Brussels

The competition team at O’Melveny & Myers in Brussels is smaller than most, but that hasn’t stopped it from taking instructions on some important matters. Riccardo Celli, who chairs the European competition practice, and Christian Riis-Madsen, who is managing partner of the Brussels office, lead the seven-lawyer team. It has represented conglomerate Honeywell on several probes; in October 2017, the European Commission abandoned the statement of objections it issued against the company in the refrigerants investigation, without any infringement finding or commitments. Riis-Madsen represented NEX, formerly ICAP, in the yen Libor case. The European General Court quashed the €14.9 million fine imposed by the commission in November 2017, after criticising the EU enforcer’s violation of the broker’s defence rights. The team also previously advised Salesforce.com as a third party on the European Commission’s review of Microsoft’s $26 billion purchase of LinkedIn, in addition to advising another Silicon Valley company on a multibillion-euro merger.

United States: New York

Three partners handle the antitrust workload for O’Melveny & Myers in New York, and the team has associates pitch in on various cases. While the crux of the firm’s competition capabilities in the US remains in Washington, DC, the New York office – led by Andrew Frackman – does some heavy lifting, including for US Airways at trial and on appeal in its ongoing battle with global distribution system Sabre. The team also defends CR Bard against a tying claim brought by Angiodynamics, although the company lost its motion to dismiss in August 2018 against the Boies Schiller & Flexner-represented plaintiff.

O’Melveny counsels Capital One in the credit card interchange matter, which had a settlement rejected by the Second Circuit but a new one emerged in 2018. Several lawyers in the New York office helped to defend American Airlines against accusations that it and three other airlines conspired to restrain capacity. And two associates in New York assisted with non-party discovery for the firm’s client AT&T in connection with the Time Warner merger.

United States: California

While O’Melveny & Myers doesn't name an official chair of its California antitrust practice, Bo Pearl and Michael Tubach are two key partners based in the state, while Ken O’Rourke maintains a presence on both coasts. Who’s Who Legal: Competition nominees Tubach and O’Rourke win rave reviews from rivals. The group punches above its weight and is seen as a top shelf choice for investigations and litigation, despite the retirement of Chuck Diamond after 44 years at the firm. He tried US Airways’ antitrust claim against Sabre, in which the airline won a $15 million jury award that is now on appeal. The firm also has a new generation of lawyers doing partner-level work, such as Stephen McIntyre, who is counsel in the Los Angeles office. He helped to represent drug maker Impax against the FTC and was a principal drafter of the summary judgment brief that got Samsung out of the remaining Optical Disk Drives damages claims. Other defence work against follow-on damages claims includes acting for ROHM in Capacitors and Resistors, Eberspaecher in Automotive Exhaust Systems and MAHLE Behr in Automotive Air Conditioning Systems. Tubach says the firm does a lot of compliance work for SK Hynix, which has grown out of the company’s 2005 criminal conviction in the DRAM cartel. Tubach also represents a private college in connection with the DOJ’s investigation of universities’ “early decision” programmes.

Pearl, who sits in the Century City office, says it was opened to service the entertainment industry and that those clients now ask for competition help as well as in the traditional disputes over royalties and idea theft. Litigation partners Dan Petrocelli and Randy Oppenheimer led the successful defence of AT&T’s acquisition of Time Warner against the DOJ’s challenge, which is currently on appeal. Tubach says having those non-antitrust lawyers try the case forced the antitrust lawyers to translate jargon into terminology that a generalist judge could understand. Petrocelli, along with David Marroso, also represents Global Music Rights, a licensing organisation designed to compete with BMI and ASCAP, whose royalty rates are being challenged as anticompetitive.

United States: Washington, DC

O’Melveny & Myers continues to have one of the leading practices in Washington, DC, with a strong set of cases over the past couple of years. Previous antitrust practice head Richard G Parker left the firm for Gibson Dunn and partner Ted Hassi departed for Debevoise & Plimpton, but co-chairs Ben Bradshaw and Ian Simmons have taken up the slack. As lead trial counsel for both AT&T and Time Warner, O’Melveny defended the companies’ landmark $85.4 billion merger against claims by the Department of Justice’s Antitrust Division that the transaction would harm competition and should be blocked. After five weeks of testimony US District Judge Richard Leon rejected the government’s challenge. The firm also handled work in other high-profile cases, including Parker leading the litigation effort against the Antitrust Division for Halliburton’s proposed acquisition of Baker Hughes, which was ultimately abandoned before trial; and, along with partners Hassi and Katrina Robson, representing Humana in its now-abandoned health insurance merger with Aetna. Despite being on the losing side of that litigation, the firm continues to fight hard against the government.

O’Melveny’s string of successes includes defeating the FTC’s claims alleging that Impax and Endo Pharmaceuticals entered into a reverse payment settlement to block generic versions of the pain relief medication Opana ER. The firm also defeated antitrust claims seeking more than $1 billion in a multi-district litigation alleging that their client, Samsung, was part of a conspiracy to fix prices of optical disk drives. Additionally, the team negotiated the consent decree that helped Alaska Airlines close its acquisition of Virgin America, a deal that the lawyers for the merging companies stressed would lead to a stronger competitor to the “big four” of Delta, American, Southwest and United.

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