GCR Awards 2021: voting now open
Readers are invited to vote for the cases, law firms, lawyers and enforcers they believe excelled in 2020.
You can vote for this year’s GCR awards nominees here until midnight EST on 5 March. To ensure that voting reflects the competition community, we will accept votes only from employees of law firms, economic consultancies, government agencies, universities and competition advocacy organisations. We will not count votes made using personal email addresses. Ballots are limited to one per person and professional email addresses (not Gmail, Hotmail, Yahoo, etc) must be submitted when casting votes. Votes for your own employer, its matters and your colleagues will not be counted.
Due to the ongoing coronavirus pandemic, we will be unable to host our usual in-person awards ceremony this year in Washington, DC. Instead, we will be announcing the awards winners in a series of special reports that we will begin publishing in April.
Unfortunately, due to receiving too few nominations, there are no shortlists for the awards for economist of the year or academic of the year.
If you did not nominate a matter on which you worked that appears in the list, please email [email protected] to ensure that we have your information and can credit your firm or consultancy. Thank you to everyone who submitted nominations.
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.
AbbVie’s $63 billion acquisition of Allergan was one of the largest pharmaceutical deals of the 2020, combining two of the world’s biggest drugmakers. The tie-up closed in May 2020 but faced global antitrust scrutiny. The US Federal Trade Commission approved the deal subject to the divestment of two of Allergan’s businesses to Nestlé and the transfer of a Crohn’s disease treatment to AstraZeneca. The clearance was met with strong dissent from the FTC’s democratic commissioners – Rohit Chopra and Rebecca Kelly Slaughter – who lambasted the agency’s approach to pharmaceutical mergers and questioned the rationale of divesting drugs used to treat pancreatic cancer and cystic fibrosis to the maker of KitKats and Tidy Cats. The three Republican commissioners staunchly defended the clearance, labelling Chopra’s comments as “fallacy” and “without merit”.
Pfizer agreed to sell Upjohn – its off-patent branded and generic established medicines business – to generic drugmaker Mylan in 2019. The FTC cleared the deal in November 2020 after the merging companies agreed to divest 10 of Upjohn’s generic drugs, seven of which competed with Mylan’s products. In a statement concurring with the agency’s approval, commissioner Christine Wilson said the FTC’s staff had thoroughly assessed all theories of harm and negotiated comprehensive remedies. But the deal caused another split at the FTC as commissioners Rebecca Kelly Slaughter and Rohit Chopra reiterated concerns about the agency’s approach to pharmaceutical deals in a joint dissent.
The FTC suffered a rare court loss at the beginning of 2020 when a federal judge refused to grant a preliminary injunction against a proposed merger between chemical companies Evonik and PeroxyChem. The former announced in 2018 its agreement to buy the latter for $625 million, but the FTC sued to block the deal in 2019 alleging that it would harm competition in the market for hydrogen peroxide in the Pacific Northwest and the southern and central regions of the US. But in a ruling dated 24 January 2020, Judge Timothy Kelly of the US District Court for the District of Columbia refused to grant the agency’s requested preliminary injunction, ruling that it made an “important misstep” in failing to recognise how hydrogen peroxide suppliers compete for customers that purchase their products. Meanwhile, Canada’s Competition Bureau conditionally approved the deal after conducting a 10-month long investigation. Evonik agreed to divest its Prince George production facility in British Columbia to United Initiators to address the Bureau’s concerns.
US v Sabre and Farelogix
Sabre’s $360 million acquisition of travel technology rival Farelogix was seen as a test case for the US Department of Justice’s ‘killer acquisition’ theory. Sabre is one of three global distribution systems that travel booking agencies rely on to search for and book flights from airlines. But the DOJ alleged that its acquisition of Farelogix was an attempt by a dominant company to “take out a disruptive competitor that has been an important source of competition and innovation”. In a ruling handed down in April 2020, the US District Court for the District of Delaware found that the agency failed to establish that the deal would substantially lessen competition. Judge Leonard Stark said the two companies do not compete with each other in a relevant market and rejected the DOJ’s bid to block the tie-up, in what was a chastening defeat for Makan Delrahim’s Antitrust Division.
United Technologies Corporation’s $135 billion acquisition of Raytheon was the largest-ever deal in the aerospace and defence industry. The DOJ outlined multiple horizontal and vertical concerns across a range of product markets, including military radio and military global positioning system products, as well as electro-optical infrared sensors used in national security surveillance applications. The DOJ sued to block the deal in March 2020 but simultaneously published a proposed settlement with divestiture remedies. The remedy package, which included the divestiture of Raytheon’s military airborne radio business and two UTC businesses, went beyond those that the merging parties offered to the European Commission in 2020 to obtain approval in Phase I. Canada’s Competition Bureau also concluded that the proposed deal could harm competition in military airborne radios and military GPS product markets, but the authority issued a ‘no action letter’ as a result of the divestitures the parties offered in the US and EU.
Jefferson Health/Albert Einstein Healthcare Network
The FTC was looking to build on its strong record challenging hospital mergers when it sued to block a deal between two healthcare providers in Philadelphia in February 2020. The FTC, along with the Commonwealth of Pennsylvania, alleged that the deal would combine two health systems with a history of fierce competition and that the tie-up would cause competitive harm in the markets for inpatient general acute care services in north Philadelphia and Montgomery County. But in a ruling published on 8 December, Judge Gerald Pappert of the US District Court for the Eastern District of Pennsylvania rejected the agency and government’s preliminary injunction request, finding that the FTC’s market definition did not match the commercial realities of the healthcare industry in south-eastern Pennsylvania, handing the hospitals a memorable victory.
Merger control matter of the year – Europe: Creative, strategic and innovative competition work for a client on a landmark merger control matter in Europe.
Google’s $2.1 billion acquisition of health tracking company Fitbit was filed in multiple jurisdictions including the US, Australia and Japan, but it was the European Commission that posed the biggest hurdle for the companies. Despite strong public pressure to prohibit the deal, the EU enforcer conditionally approved the tie-up in December 2020 following an in-depth investigation. Google offered innovative data-related commitments, which run for 10 years and apply worldwide, including virtual data “silos”, data access permissions, API access and benchmarks for determining data access rights. Competition authorities in South Africa and Japan subsequently accepted the same substantive commitments. The deal closed in January 2021 despite investigations still continuing in the US and Australia.
French multinational rail company Alstom’s €6.2 billion acquisition of Bombardier’s rail equipment division created the world’s second-largest train manufacturer behind China’s CRRC. The deal was filed for review before competition authorities in 14 jurisdictions, including by the European Commission, which conditionally cleared the deal following a brief Phase I review, 18 months after it blocked Alstom’s attempted merger with Siemens. Faced with significant overlaps in multiple markets, counsel negotiated clear-cut structural and behavioural remedies relating to the very high-speed and mainline rolling stock markets and certain parts of the mainline signalling sector. EU competition commissioner Margrethe Vestager said when announcing the clearance in July 2020 that the commitments allowed her agency to speedily review and approve the transaction without the need for an in-depth probe.
Elanco’s $7.6 billion acquisition of Bayer’s animal health business created the second-largest animal health company in the world by revenue. The deal required clearance from 19 antitrust agencies and went on to secure conditional approvals in the EU, US, Australia and Canada subject to the sale of certain medications and pipeline products. The companies’ settlement with the European Commission required the divestiture of Bayer’s antiparasitic drugs used to deworm cats and dogs, as well as two Elanco medications, Osurnia and Vecoxan. Three of the four divestments required an upfront buyer. The US Federal Trade Commission subsequently cleared the tie-up subject to the same commitments plus the requirement to divest a cattle insecticide, while enforcers in Australia and New Zealand required Elanco to sell off two medications for livestock.
The tie-up between Pfizer and Mylan saw the former spin-off Upjohn to create a new global drugmaker with Mylan, one of the top five generic suppliers in the European Economic Area. The European Commission’s investigation focused on overlaps in generics medicines across various therapeutic areas as well as vertical relationships relating to active pharmaceutical ingredients and out-licensing, which are both upstream to the supply of generics. After an initial set of commitments was rejected, Mylan avoided an in-depth review by agreeing to divest portfolios for 12 generic drugs available in 20 countries across the EEA to an up-front buyer.
Intensa Sanpaolo/UBI Banca
Italian banking group Intesa Sanpaolo acquired UBI Banca, Italy’s fifth-largest bank, through a hostile takeover valued at €4.1 billion. The deal created the second-largest bank in the Eurozone by capitalisation and is considered one of the most significant banking mergers in Europe since the 2008 financial crisis. Following a two-month in-depth probe, the Italian Competition Authority cleared the deal in July 2020 after Intesa promised to divest 532 UBI branches to rival BPER Banca. Despite UBI’s directors claiming that the acquisition could wipe out potential competition, the commitments sufficiently resolved the enforcer’s concerns that the merger would strengthen Intesa’s strong position in multiple markets, including loans, life insurance and asset management. The Italian authority also praised the remedies for ensuring healthy and robust competition at regional and national level across all markets potentially affected by the acquisition.
Mastercard’s €2.85 billion purchase of the account-to-account payment business of Danish digital payment service provider Nets was the company’s largest acquisition to date. Despite falling short of turnover thresholds for notification under EU merger rules, the deal was reviewed by the European Commission after national enforcers in Austria, Denmark, Finland, Norway, Sweden and the UK said the regional authority was best placed to examine the potential impacts of the tie-up. The commission cleared the deal in August 2020 after accepting the companies’ proposed remedies package in Phase I. The commitments saw the companies transfer a licence to a suitable purchaser to distribute, supply, sell, develop or otherwise use Nets' Realtime 24/7 technology on an exclusive basis in the European Economic Area and non-exclusively across the rest of the world.
The London Stock Exchange Group agreed to acquire all the shares in Refinitiv, a global provider of financial markets data and infrastructure formerly jointly owned by Blackstone and Thomson Reuters, for $27 billion in August 2019. The European Commission approved the tie-up 17 months later after the companies offered a combination of structural and behavioural commitments that saw the LSE Group, which operates the London Stock Exchange, agree to divest Borsa Italiana, the Italian stock exchange in Milan. The company also promised to provide clearing services on a non-discriminatory basis and to hand over certain trading data to competitors. The EU’s approval was one of 20 clearances that counsel secured globally, including in the US, Canada, Australia, Japan, and Russia – the majority of which were unconditional.
CK Hutchison challenged the European Commission’s decision to block its proposed acquisition of O2 from Telefónica in 2016 after the enforcer’s in-depth review found the deal would significantly impede competition in the retail and wholesale telecoms markets in the UK. Four years later, the EU General Court ruled in CK Hutchison’s favour on each substantive legal and factual ground of appeal. The General Court concluded that the commission failed to prove that the deal would remove an “important competitive force” from the market or lead to higher prices and reduced quality of service. The landmark ruling was the first judgment on the legal test under the EU Merger Regulation since its introduction in 2004 and has become the leading precedent for the assessment of mergers in concentrated markets.
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.
Delivery Hero/Woowa Brothers
The tie-up between Korea’s number one and two players in the online food delivery market led to a thorough investigation by Korea’s Fair Trade Commission, which granted conditional clearance subject to the divestiture of Delivery Hero’s local business in Korea as well as behavioural remedies. Delivery Hero – which owns Yogiyo, Korea’s second-largest food delivery platform – announced in December 2019 its plans to acquire an 87% stake in Woowa, which owns Baedal Minjok, the market leader. The KFTC was concerned that the deal would harm competition to the detriment of restaurants, consumers and delivery riders. Despite voicing initial opposition to the KFTC’s findings, Delivery Hero eventually accepted the agency’s conditional approval, paving way for the deal’s expected closure in the first quarter of 2021.
German auto parts maker ZF Friedrichshafen’s $7 billion merger with Wabco attracted the interest of competition authorities in China and India in 2020. Wabco is one of two main competitors in the Chinese controller market, while ZF is a worldwide supplier of steering, chassis and transmission systems for cars and commercial vehicles. China’s State Administration for Market Regulation warned that the deal would harm competition in the market for medium and commercial heavy vehicles. To allay the SAMR’s concerns, the companies offered to continue providing controllers that enable a vehicle to shift gears effectively to existing customers on fair, reasonable and non-discriminatory terms for six years. Meanwhile, the Competition Commission of India conditionally approved the deal in Phase I in February 2020, despite concerns about the overlaps between ZF’s local joint venture – Brakes India – and Wabco. To remedy those concerns, ZF offered to divest its shareholding in Brakes India. The parties also obtained a favourable order from the Delhi High Court, which granted a stay on the CCI’s divestment timelines, in part due to the coronavirus pandemic. The CCI subsequently granted the parties an extension to complete the divestment and the deal was finalised in May 2020.
Korea Shipbuilding/Daewoo Shipbuilding
Hyundai Heavy Industries’ subsidiary Korea Shipbuilding & Offshore Engineering’s proposed $1.6 billion acquisition of a majority stake in Daewoo Shipbuilding & Marine Engineering represented a deal between two of the world’s largest shipbuilders. China’s State Administration for Market Regulation unconditionally approved the tie-up in December 2020 after a near 17-month review. The deal also received unconditional approval from the Competition and Consumer Commission of Singapore in August 2020 despite initial concerns in four specific large commercial ship markets. But the CCCS found that market feedback and its quantitative assessment indicated viable alternative suppliers will remain in the relevant markets after the deal. The Korean Fair Trade Commission is also expected to issue a decision on the deal this year after experiencing delays in its investigation due to covid-19.
TPG Telecom/Vodafone Hutchison
A deal between Australia’s third-largest mobile operator in Vodafone Hutchison and the country’s second-largest fixed telecoms operator in TPG Telecom was met with aggressive opposition from the Australian Competition and Consumer Commission. The agency alleged that TPG was on track to become the country’s fourth mobile network operator and would be a competitive threat to existing players Telstra, Optus and Vodafone. The ACCC opposed the tie-up in 2019 but Federal Court judge John Middleton ruled that the €9.3 billion merger could proceed after finding there was “no real chance” that TPG would enter the mobile services market. The keenly anticipated judgment was a bitter defeat for the ACCC, but the agency stood by its decision to challenge the deal, maintaining its belief that it would harm competition.
Australian Finance Group/Connective Group
A merger between two of Australia’s largest mortgage aggregators peaked the ACCC’s interest in 2020. The agency issued a statement of issues in February 2020 to Connective Group and Australian Finance Group after finding that their deal would create the country's largest mortgage aggregator by a “significant margin”. The agency’s preliminary assessment found that the merged entity would have the ability and incentive to reduce commissions payable to brokers, increase fees and reduce service levels. Despite those initial concerns, the ACCC concluded in June that it would not oppose the deal as the merged company is likely to face robust competition.
Charoen Pokphand Group’s acquisition of Tesco’s business in Thailand
In a rare conditional merger clearance, Thailand’s Office of Trade Competition Commission in November 2020 approved Charoen Pokphand Group’s $10.6 billion acquisition of Tesco’s local supermarket businesses in Thailand and Malaysia. To secure merger approval, the CP Group committed to source at least 10% of the goods for its 7-Eleven and newly acquired Tesco stores from local small and medium-sized businesses for five years. The CP Group also promised not to enter into another brick-and-mortar merger for three years, while also committing to other behavioural remedies. The deal was said to be the Thai agency’s first major test since reforms to its merger control rules were introduced in 2018.
US chipmaker Nvidia’s $6.9 billion acquisition of Israeli cloud computing company Mellanox required antitrust clearances in several jurisdictions in 2020 but the deal arguably faced the greatest scrutiny in China. Enforcers in the US, EU and Mexico waived the deal through unconditionally, but the SAMR attached behavioural commitments to the tie-up in April 2020. The agency required the merged entity to provide the Chinese market with fair, reasonable and non-discriminatory access to Nvidia’s graphics processing unit accelerators and Mellanox’s high-speed network interconnection equipment. The agency applied seven commitments to the deal in total, which will remain in effect for six years. The tie-up was one of several involving Western companies in sensitive sectors to be cleared by the SAMR in 2020 subject to commitments to protect Chinese customers.
The SAMR announced a Phase II investigation into Cisco System’s $2.8 billion acquisition of Acacia Communications in January 2020, noting at the time that the fibre optics telecommunications sector was a key area of focus. The review was launched amid the US/China trade war, with the SAMR aiming to protect Chinese market players such as Huawei, ZTE and Fiberhome from foreclosure strategies by Cisco. The Chinese agency announced its decision to conditionally clear the tie-up in January 2021, subject to the merged entity continuing to supply digital signal processors to Chinese customers on fair, reasonable and non-discriminatory terms for five years after the deal closed. However, Acacia Communications cancelled the tie-up on 8 January claiming that the approval was not received within the agreed time frame stated in the merger agreement – a decision which has subsequently triggered a legal battle in the US.
Litigation of the year – Cartel defence: Creative, strategic and innovative litigation on behalf of a defendant in a private action for cartel damages.
Mexican Government Bonds Antitrust Litigation
A group of 10 banks successfully fended off claims in December 2020 that they conspired to manipulate the market for Mexican government bonds when Judge Paul Oetken of the US District Court for the Southern District of New York dismissed the complaint for a second time. Relying on a statistical analysis of prices and spreads in the Mexican government bond market, along with public information about an antitrust probe by Mexico’s Federal Economic Competition Commission, a group of pension funds had accused the banks of price-fixing and collusion. The plaintiffs had alleged that they were overcharged when they bought Mexican government bonds from the banks and underpaid when they sold the bonds. Judge Oetken originally granted a motion to dismiss in September 2019 but allowed the plaintiffs to amend their complaint. On 1 December 2020, Judge Oetken dismissed the amended complaint in full for a lack of personal jurisdiction.
Peanut Farmers Antitrust Litigation
In May 2020, Olam Peanut Shelling Company, the US subsidiary of global agricultural giant Olam International, was named as a defendant in the already-ongoing Peanut Farmers antitrust litigation in the US District Court for the Eastern District of Virginia. A putative class of US peanut farmers claimed that Olam and its rivals Birdsong and Golden Peanut agreed to suppress prices for raw peanuts beginning in 2014. Olam adopted an aggressive discovery strategy, pursued third-party evidence and took the lead opposing class certification. The company developed a record that illustrated key flaws in the plaintiffs’ case – failing to account for the effect of the 2014 Farm Bill, which encouraged over-planting of peanuts and caused prices to decrease. Two months before trial was set to begin in January 2021, Olam exited the litigation with a $7.75 million settlement, apparently significantly less than the projected costs of defence. The class was ultimately successful in applying for certification against the remaining defendants.
German Automotive Manufacturers Antitrust Litigation
A group of five German automakers in October 2020 secured a dismissal with prejudice from Judge Charles Breyer of the US District Court for the Northern District of California. Volkswagen, Audi, BMW, Porsche and Daimler-Mercedes stood accused of conspiring to fix prices for certain automotive parts and innovations, echoing similar claims made by the European Commission. Judge Breyer previously dismissed the claims in June 2019 and again in March 2020, although in both instances he allowed the proposed classes of auto dealers and consumers the chance to amend. In the final dismissal, Judge Breyer said he only needed to evaluate new allegations that the defendants had agreed not to innovate their diesel emissions systems and that they participated in a conspiracy to fix prices for steel. He rejected the diesel emissions system claim because it was “factually indistinguishable” from previous similar claims, while also opposing the steel price-fixing claims for failing to plausibly allege any injury or an agreement to pass on surcharges. This victory was seen to be especially significant for the carmakers, as they risked paying treble damages. Furthermore, a negative result could have impacted innovation in the global automotive market.
Yazaki Wire Harness Antitrust Litigation
The Mississippi Supreme Court in April 2020 dismissed all price-fixing claims brought by the state’s attorney general against several manufacturers of automotive wire harnesses; conduct that eight years earlier had been subject to significant fines and criminal penalties in settlements with the US Department of Justice. Three years after the federal competition watchdog settled the claims in 2012, the Mississippi attorney general’s office alleged that the conspiracy violated the state’s antitrust law. When the Mississippi Chancery Court dismissed the complaints for failure to state a claim, the case went up to the state’s Supreme Court, which affirmed the lower court’s ruling against Yazaki, Leoni Wiring Systems, GSW Manufacturing, Denso and Furukawa.
US v Richard Usher et al
Richard Usher and Rohan Ramchandani defeated the first-ever contested antitrust claim brought by a US banking authority – the Office of the Comptroller of the Currency, which sits within the US Department of the Treasury. A jury before Judge Richard Berman of the US District Court for the Southern District of New York previously acquitted the two UK-based currency traders in October 2018 for allegedly conspiring to manipulate the US dollar and euro exchange market. The US Department of Justice’s antitrust division had accused them of coordinating bids. On the same day that the competition watchdog filed charges, the OCC brought a follow-on case against Ramchandani and Usher, seeking their disbarment from trading and a pair of US$5 million fines. Following full briefing on a motion to dismiss, Treasury Department administrative law judge Jennifer Whang “expressed skepticism… there was ‘some force’ to the argument that the DOJ and Federal Trade Commission are better equipped to ‘navigate what can be an extremely complex and economics-driven area of the law’”. The OCC dropped its Sherman Act charges in August 2020.
Litigation of the year – Non-cartel defence: Creative, strategic and innovative litigation on behalf of a defendant in a non-cartel private action.
Anthem v Cigna
The litigation between Anthem and Cigna was borne out of a failed merger attempt, which would have created an insurance behemoth in the US. Anthem successfully defeated an effort by Cigna to collect a major break-fee after the US District Court for the District of Columbia blocked the merger in 2017. Following that ruling, Cigna sought $14.7 billion in damages and a reverse termination fee of $1.8 billion from Anthem in the Delaware Court of Chancery. Anthem countersued for $21.1 billion in damages, accusing Cigna of breaching its obligations by refusing to help Anthem secure antitrust clearance from the DOJ without litigation and by failing to defend the merger at trial. Vice Chancellor Travis Laster did not grant either side the victory they sought, however, ruling that “each party must bear the losses it suffered as a result of their star-crossed venture.” He did side with Anthem, ruling that Cigna breached its obligations under the merger agreement, but said Cigna proved that it was “more likely than not” that the merger would have been blocked on antitrust grounds anyway. “Neither side can recover from the other,” he said, concluding one of the most-watched litigations in the past decade.
US Soccer Federation v Relevant Sports
In July 2020, the US Soccer Federation (USSF) successfully warded off antitrust claims brought by sporting event organiser Relevant Sports. The latter had sued the US soccer body in September 2019 for allegedly entering into a vertical and horizontal conspiracy with the sport’s governing body FIFA (the Fédération Internationale de Football Association) to stop teams from playing competitive international matches in the US. The USSF had sought to compel arbitration or dismiss the claims altogether. Judge Valeria Caproni of the US District Court for the Southern District of New York found that FIFA lacked jurisdiction to arbitrate the claims but sided with the federation and dropped the case. She noted that the USSF complied with a FIFA directive, but said there was insufficient evidence of an unlawful agreement. While the judge left room for Relevant Sports to amend its claim, she noted that USSF had obvious reasons for wanting to adhere to FIFA’s rules – including avoiding the possibility that all US men's soccer players would be found ineligible to play in the World Cup. The court also said that FIFA would need to be a defendant to the case if Relevant was to receive its requested injunctive relief to host games, but that the Southern District of New York lacks jurisdiction to enjoin FIFA from any behaviour.
SSA Bonds Antitrust Litigation
Citigroup and three affiliates in March 2020 secured the dismissal with prejudice of an antitrust class action alleging that it conspired with several major banks to restrain trade in the US dollar-denominated market for supranational, sub-sovereign and agency bonds. Judge Edgardo Ramos of the US District Court for the Southern District of New York said the plaintiffs failed to demonstrate antitrust injury and did not allege a conspiracy among a group of “domestic defendants” – a group that included the three Citigroup entities. Judge Ramos had previously dismissed the case against foreign defendants in October 2019 for a lack of personal jurisdiction, as well as a previous version of the overall lawsuit in August 2018. The case originated in 2016, when a putative class of bond purchasers sued five banks and four individuals for colluding to rig the SSA bond market.
City of Oakland v Oakland Raiders et al
In April 2020, the Oakland Raiders, the National Football League and the other 31 NFL teams won the dismissal with prejudice of claims they conspired to boycott the city of Oakland as the Raiders' home city when relocating the team to Las Vegas. The city had sued the defendants in the US District Court for the Northern District of California, claiming it suffered antitrust harm because the NFL restricts the supply of teams by only permitting 32 teams in the league. The city argued that the conspirators boycotted Oakland in favour of Las Vegas to collect the team’s $378 million relocation fee – an allegedly illicit payment. Judge Joseph Spero ruled that the city failed to show that the Raiders would have remained in the city if more teams were allowed in the NFL. Judge Spero initially dismissed the complaint in July 2019, before axing it completely the following April after Oakland failed to sufficiently address the deficiencies in its original lawsuit. The case is currently on appeal and briefed at the US Court of Appeals for the Ninth Circuit.
Litigation of the year – Cartel prosecution: Creative, strategic and innovative litigation on behalf of plaintiffs in a private action for cartel damages.
Daimler roll-on roll-off damages claims
Daimler was able to secure undisclosed favourable settlements in 2020 for its damages claims against major shipping companies that participated in the global roll-on roll-off cartel. Daimler had sued NYK Line, Compañía Sudamericana de Vapores and Wallenius Wilhelmsen in the UK for their alleged role in a cartel for motor vehicle shipping services, which has been the subject of investigations and fines in the EU, Australia, South Africa, China, Peru, Korea, Mexico, Chile and Japan. Daimler won a major disclosure battle in the High Court of England and Wales in the Spring of 2020 following a hearing with seven expert statements and a joint expert statement, which ultimately led to settlements. The court had previously denied a request by the three shipping companies to split the trial in the follow-on damages suit that sought $374 million.
National Grid/Scottish Power power cables follow-on claims
On the eve of a trial on 11 November 2020, National Grid reached a confidential settlement with Prysmian – its fourth and final settlement with members of the power cables cartel. National Grid filed a £160 million (€180 million) claim against power cables manufacturers ABB, NKT, Prysmian and Safran in 2015, a year after the European Commission issued its power cables infringement decision. The enforcer fined 11 makers of underground and submarine high voltage power cables €302 million for sharing markets over a 10-year period. The electricity grid operator settled with Safran in August 2020, NKT in September and ABB in October. In May 2019, the UK’s Competition Appeal Tribunal joined National Grid and Scottish Power's claims together, but the latter’s claim was only against Prysmian as it had already settled with the other defendants. In July, Prysmian became the final defendant to settle with Scottish Power. The case involved complex econometrics in estimating damages, the linkages between legal, economic and regulatory concepts of pass on and the cost of capital as a financing loss.
Blue Cross Blue Shield Antitrust Litigation
After about eight years of multi-district litigation, including 150 depositions and five years of mediation, a proposed class of subscribers secured a $2.67 billion settlement in the Blue Cross Blue Shield antitrust litigation. The class claimed that Blue Cross Blue Shield, which consists of independent health insurers, carved out geographic markets to avoid having those insurers compete with one another. The class alleged that this scheme led to increased healthcare premiums. In addition to the multibillion-dollar payment, the settlement proposed systemic injunctive relief that will change the landscape for competition in healthcare and allow the “Blues” to compete more rigorously. The settlement is noteworthy not only for its dollar value but also because it stemmed from an independent investigation and did not follow any government action. Judge R David Proctor of the District Court for the Northern District of Alabama preliminarily approved the deal on 30 November 2020. The case began in 2012, when nine different antitrust actions were consolidated before the Alabama federal court. Judge Proctor in April 2018 granted partial summary judgment to the plaintiffs, ruling that BCBS’s alleged conduct should be analysed under the per se standard for horizontal restraints of trade.
Automotive Parts Antitrust Litigation
The follow-on cases from the landmark Automotive Parts antitrust litigation continue to push forward, with Judge Sean Cox of the US District Court for the Eastern District of Michigan in September 2020 granting final approval to six settlements worth $44.8 million between Toyoda Gosei and end purchasers. The Japanese company did not admit guilt but forked over payments in response to allegations it participated in a global conspiracy to fix the price of automotive brake hoses, automotive hoses and occupant safety systems. Following those deals, the end purchasers – a class of consumers and businesses that purchased or leased vehicles containing allegedly price-fixed parts – have recouped more than $1.2 billion in settlements, marking the largest indirect purchaser recovery in US history. The litigation spans 41 separate cases involving more than 160 defendants and has been ongoing for nearly a decade.
Litigation of the year – Non-cartel prosecution: Creative, strategic and innovative litigation on behalf of plaintiffs in a non-cartel private action.
Mastercard v Merricks
The UK’s Supreme Court in December 2020 handed down a ground-breaking judgment allowing the rehearing of a request to certify a proposed competition damages claim against Mastercard. The decision means that the UK’s Competition Appeal Tribunal must rehear Walter Merricks’ request to certify his purported class action claim against Mastercard on behalf of 46.2 million UK consumers. His lawyers plan to argue that consumers that allegedly suffered loss as a result of Mastercard’s unlawful interchange fees but have since died should be included in his class action claim. The Supreme Court’s decision came after Mastercard had appealed against a ruling from the Court of Appeal of England and Wales, which sent Merricks’ claim back to the CAT for reconsideration. Mastercard argued that the CAT acted reasonably when it refused to certify the claim because Merricks did not show the case was suitable for aggregate damages or that he could fairly compensate each individual class member. The case follows-on from the European Commission’s multilateral interchange fees infringement decision against Mastercard, alleging that merchants passed on the inflated price of the company’s anticompetitive fees to UK consumers.
Asda, Argos, Morrisons and others v Mastercard and Visa
The UK’s Supreme Court in June 2020 confirmed that Visa and Mastercard’s interchange fees violated EU competition law, exposing both companies to more than €1 billion in potential damages. The Supreme Court dismissed the companies’ appeal against a ruling from the Court of Appeal of England and Wales, which held that their fees unlawfully restricted merchants in their negotiations with banks over card charges. Following the ruling, the litigation returned to the UK’s Competition Appeal Tribunal, where Sainsbury’s continues to pursue its claims for damages against Visa and Mastercard separately, while retailers Argos, Morrisons and Asda pursue their joint claims against the separate card schemes.
Behavioural matter of the year – Americas: Creative, strategic and innovative work carried out in a non-merger matter before an enforcer in the Americas.
CADE’s commitments decision with Bradesco
Bradesco, one of Brazil’s biggest banks, agreed to pay a €3.6 million fine and committed to share customer data with financial technology application Guiabolso, in order to settle an abuse of dominance probe by Brazil’s Administrative Council for Economic Defence in October 2020. The agreement shut the door on CADE’s years-long probe, which examined whether Bradesco had hampered competition in the fintech sector by refusing to allow its customers to move their data to use Guiabolso’s services – an investigation that fell within the hotly-debated intersection of antitrust, data protection and sector-specific regulation. The settlement is designed to facilitate open banking in the country until specific regulation comes into force in 2021. The bank has promised to enable data portability by developing technological tools to connect its data storage centre with Guiabolso.
DOJ’s investigation into carmakers’ emissions
The US Department of Justice’s antitrust division opened a probe into Ford, Honda, BMW and Volkswagen in the summer of 2019. It alleged that a voluntary agreement between the automakers and the state of California to meet stricter emissions and fuel-efficiency standards than those set by the federal government violated the Sherman Act. The DOJ indicated it was investigating the automakers shortly after President Trump tweeted his criticism of the agreement, prompting Antitrust Division attorney-turned-whistle-blower John Elias to claim that the probe was politically motivated. In February 2020, the Antitrust Division quietly closed its investigation after counsel to the companies convinced the agency that they had independently entered into the agreement with the state and that their discussions did not violate antitrust rules. The case is expected to form the basis of a rulemaking by the Biden Administration.
FTC v Qualcomm
In August 2020, Qualcomm won a unanimous victory in the US Court of Appeals for the Ninth Circuit, which overturned a district court’s ruling in favour of the Federal Trade Commission’s monopolisation claims against the chipmaker. The agency sued Qualcomm in 2017 alleging violations of the FTC Act and the Sherman Act, while seeking a permanent injunction against several practices relating to Qualcomm’s patent licensing and modem chipset businesses. The district court granted the FTC’s injunction request in May 2019, but the Ninth Circuit unanimously overturned that ruling. The appellate court held that Qualcomm had no antitrust duty to license patents on fair, reasonable and non-discriminatory (FRAND) terms. It also ruled that the company's so-called “no licence, no chips” policy was competitively neutral to chip suppliers. In a rare instance of the US antitrust agencies diverging, the DOJ had filed a statement before the court in support of Qualcomm’s appeal. The dispute is considered by many to be the most significant technology-focused antitrust case in the US since Microsoft.
CADE’s power cables cartel decision
Brazil’s Administrative Council for Economic Defence ended its probe into the international power cables cartel with a hybrid settlement agreement in April 2020. The enforcer’s decision confirmed a 2009 settlement with ABB, the very first agreement proposed under its then-new regulations that revolutionised the treatment of cooperating parties and opened the door to a boom of new settlements. After a voting process that lasted several months and involved CADE’s reporting commissioner plus three other commissioners asking to further study the case and present separate votes, the authority fined Nexans, Prysmian, Exsym and Viscas a total of 20.5 million real (€3.6 million). It also confirmed the cooperation of ABB, Sumitomo Electric, Hitachi Cable and JPS, while issuing a finding of no infringement against LS Cable and Taihan, closing the case against all six companies without penalties.
CADE’s investigation into the methionine market
Sanofi, Aventis, Degussa and Nippon Soda secured the Brazilian enforcer’s first decision to close a case based on an interim statute of limitations in March 2020. For eight years, CADE had been investigating whether the companies operated a cartel in the methionine market prior to 1999, based on a European Commission infringement decision from 2002 and the existence of methionine imports into Brazil during the cartel period. CADE’s General Superintendence recommended a finding of infringement against all defendants, but the companies successfully persuaded the enforcer’s attorney general and the Federal Prosecutor’s Office that the General Superintendence could not show conduct producing effects in Brazil and that the investigation was time-barred. CADE’s internal tribunal ultimately dismissed the case against all four companies.
Behavioural matter of the year – Europe: Creative, strategic and innovative work carried out in a non-merger matter before an enforcer in Europe.
CMA’s roofing probe
The UK’s Competition and Markets Authority issued a statement of objections in March 2019 that provisionally found the country’s top three suppliers of rolled lead used in roofing had colluded to fix prices, allocate customers and exchange commercially sensitive information. Counsel to one of the accused companies, Calder, successfully advocated for revisions to the enforcer’s findings and in June 2020 the CMA issued a supplementary statement of objections reducing its claims against Calder to a single allegation of an arrangement not to supply a new business that was a potential competitor. After five months of further negotiations, the authority closed its investigation into Calder without any finding of wrongdoing. The two other companies involved in the probe, Associated Lead Mills and BLM British Lead, settled with the agency and agreed to pay fines totalling more than £9 million.
Italian investigation into carmakers and captive banks
The Italian Competition Authority imposed its largest-ever cartel fine on eight car manufacturers, 12 banks and two trade associations in 2018 after finding that Daimler, Volkswagen, Toyota, Renault, General Motors, Ford and BMW conspired together with their captive banks to fix the terms and conditions for financing and leasing of new cars in Italy between 2003 and 2017. The companies successfully appealed against their €678 million combined penalty, convincing the Regional Administrative Court of Lazio to quash the decision in October 2020 on both procedural and substantive grounds. The appeals court agreed with the companies’ arguments that the enforcer’s three-year preliminary investigation was excessively long, and that the authority failed to show how the exchange of information between banks affected competition in the market for cars sold through financing. The court also highlighted the inconsistencies in the market definition adopted in the decision and the lack of market analysis, as pointed out by counsel to the appellants.
APIG secures interim measures against Google in France
In November 2019, news agency Agence France-Presse (AFP) and two unions representing publishers – the Syndicat des Editeurs de la Presse Magazine (SEPM) and l’Alliance de la Presse d’Information Générale (APIG) – complained to France’s Competition Authority that Google was abusing its dominance and their economic dependency by refusing to pay publishers for displaying snippets of their content in its news results, as required by the EU’s copyright directive. In April 2020, the enforcer issued an interim ruling that required Google to negotiate in good faith with publishers and news agencies on the remuneration for the re-use of their protected content. The Paris Court of Appeal rejected Google’s appeal against the interim relief decision the following October, holding that the company’s conduct was likely to cause serious and immediate harm to the press sector. The interim measures mark the first time in Europe that a competition authority has clearly stated that a national law on neighbouring rights prevents Google from publishing content without compensation.
American Airlines and British Airways obtain interim measures from CMA
Faced with the economic fallout of the covid-19 crisis, American Airlines and British Airways successfully persuaded the UK’s Competition and Markets Authority in September 2020 to adopt interim measures that extended commitments relating to the airlines’ transatlantic joint venture. The airlines committed in 2010 to release landing and take-off slots at London Heathrow Airport and London Gatwick Airport on certain routes, while also opening up their frequent flyer programmes to passengers of new entrants. The CMA began reviewing the remedies in 2018 in anticipation of their expiration in 2020, warning that the agreement could infringe UK and EU rules prohibiting anticompetitive agreements. British Airways and American Airlines originally promised to expand their commitments by offering slots on routes between London and Boston, Dallas and Miami for 10 years, but counsel to the airlines then successfully argued that they should be allowed to continue their original commitments until 2024 given the exceptional circumstances created by the pandemic.
EU General Court’s Lithuanian Railways judgment
In November 2020, the EU General Court reduced Lithuanian Railways’ fine for breaching EU antitrust rules by 28% after the railway company’s counsel successfully argued that the infringement was “relatively limited” in scope. The enforcer said in 2017 that Lithuanian Railways harmed competition in the Baltic rail freight market when it removed 19 kilometres of rail track in October 2008. The EU court agreed that the railway was required to keep the track maintained but lowered the company’s fine to €20 million because the removed track provided only one of the various possible rail links between Latvia and Lithuania. The case raised new questions about the essential facility doctrine – particularly under what circumstances, if at all, a dominant company can be required to invest in a new facility to facilitate market entry by downstream competitors. The decision is currently on appeal before the European Court of Justice.
European Commission’s Aspen commitments
Counsel to Aspen helped bring the European Commission’s first pharmaceutical excessive pricing investigation to an end without a finding of infringement when they submitted commitments on behalf of the drugmaker to reduce the price of six cancer drugs sold in Europe by an average of 73%. The enforcer received the proposals in October 2019 and accepted them in February 2021 after a seven-month public consultation period. Aspen cannot increase its prices for these drugs for 10 years and, as the commitments are retroactive, will make a one-off payment to reimburse those that purchased the medication at the inflated prices from October 2019 until the date that the remedies take effect. The commission had been investigating the drugmaker since May 2017 after it increased the price of six cancer drugs that it acquired in 2012, although Aspen maintained throughout the probe and the commitments procedure that its prices were not excessive.
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.
Hong Kong’s seaport joint venture probe
The investigation by Hong Kong’s Competition Commission into the Hong Kong Seaport Alliance, a contractual joint venture formed by port terminal operators in the territory, resulted in the agency’s second-ever commitments decision and the first requiring the appointment of a monitoring trustee. The alliance was formed by port terminal operators to take advantage of efficiencies and improve the regional competitiveness of the Hong Kong container port, one of the busiest in the world and a key pillar of the local economy. The enforcer’s probe sought to determine if the venture amounted to an anticompetitive agreement. After nearly two years of investigating, the commission found that the alliance was unlikely to give rise to anticompetitive effects in two of the three main markets it was examining. It accepted a set of behavioural commitments proposed by the companies to resolve its concerns about the third market in October 2020, which include price caps and maintaining service levels.
Singapore court slashes chicken distributors cartel fines
In December 2020, Singapore’s Competition Appeal Board slashed several fines imposed by the Competition and Consumer Commission of Singapore in 2018 against eight of 13 chicken distributors found to have participated in a price-fixing cartel. The independent specialist tribunal allowed appeals on liability for the first time since Singapore’s competition law was enacted 17 years ago, cutting the S$26.9 million (€16.7 million) fines by about S$6.5 million (€4 million). Its decision sharply criticised the duration of the enforcer’s investigation, the length of interviews and its failure to provide company representatives with independent translators. The board also laid out fundamental principles that will shape the competition authority’s future enforcement actions, including the “balance of probabilities” standard of proof and the absence of a presumption of innocence in competition proceedings.
Hong Kong’s MFN investigation
Expedia, Booking.com and Trip.com were the subject of the first-ever commitments decision issued by Hong Kong’s Competition Commission in May 2020, with all three agreeing to remove wide price parity clauses from their contracts with accommodation providers in the territory. The enforcer’s investigation into the online travel companies’ most-favoured nation clauses – which required accommodation providers in Hong Kong to always give the platforms the same or better terms as those offered in all other sales channels – mirrored similar probes around the globe and was prompted by a complaint from a travel agents’ trade association. The agency launched a public consultation into the companies’ proposed commitments in March 2020 and officially accepted them two months later.
NCLAT stays CCI’s abuse of dominance fine against Grasim Industries
In March 2020, the Competition Commission of India fined Grasim Industries 302 billion rupees ($41.3 million) – the highest behavioural penalty it issued in 2020 – for allegedly abusing its dominance in the market to supply viscose staple fibres, a biodegradable material used as a sustainable alternative to cotton. The enforcer claimed that the company had charged Indian spinners discriminatory prices and forced them to provide details about their export and import practices. Grasim’s counsel successfully challenged the ruling before India’s National Company Law Appellate Tribunal, securing a stay of the penalty in November 2020. The legal and economic arguments submitted by the company’s advisors convinced the court that the CCI’s market definition contained inconsistencies and that its probe was defective because of due process errors.
Harshita Chawla v WhatsApp/Facebook
WhatsApp and its parent company Facebook fended off allegations of abuse of dominance in India when they convinced the CCI that they did not unlawfully bundle WhatsApp Pay with WhatsApp’s messaging service. Harshita Chawla, an independent lawyer and advocate, accused WhatsApp of unlawfully tying and bundling its services to penetrate the digital payment market. Although it found WhatsApp dominant in the market for over-the-top messaging apps through smartphones, the CCI accepted the companies’ arguments that WhatsApp Pay was an optional feature that required users to register separately and therefore could not amount to any implied or explicit coercion. The agency also agreed that WhatsApp Pay, the messaging company’s newly launched in-app payment system, was constrained by several large incumbents in the Indian payment services market such as Google and Amazon, and that its entry would not adversely affect competition. The enforcer closed its probe without charges in August 2020.
Samir Agarwal v Uber and Ola
Uber and Ola convinced India’s Supreme Court in December 2020 that they did not unlawfully act at the centre of a hub-and-spoke price-fixing arrangement. Ruling that evidence of a “meeting of minds'' between the alleged spokes is essential to a finding of infringement, the court upheld a judgment from the National Company Law Appeal Tribunal in May 2020 that rejected Samir Agarwal’s appeal against the CCI’s decision dismissing his complaint. The tribunal agreed with Uber and Ola’s arguments that there was no evidence of a “meeting of minds” between the drivers and that complainants must demonstrate actual antitrust injury when approaching the competition authority.
Matter of the year: Merger control, cartel, unilateral conduct, litigation or any other competition matter worldwide. Creative, strategic and innovative work by teams of in-house and external lawyers and economists.
Google’s $2.1 billion acquisition of health tracking company Fitbit grabbed headlines internationally as a test case for antitrust enforcers to consider novel theories of harm in the digital economy, particularly data and privacy issues. The deal closed in January 2021 following a 15-month merger review process in the US, EU, Australia, Japan and South Africa. The European Commission approved the tie-up in Phase II in December 2020 after Google offered innovative remedies that include virtual data “silos” and commitments to provide rivals with data access. Competition authorities in South Africa and Japan subsequently accepted the same substantive commitments, while the applicable US and Canadian waiting periods expired without regulatory action. Counsel continues to coordinate with the Department of Justice and the Australian Competition and Consumer Commission, neither of which have closed their reviews into the deal.
French multinational rail company Alstom’s €6.2 billion acquisition of Bombardier’s rail equipment division created the world’s second-largest train manufacturer behind China’s CRRC and was filed to competition enforcers in 14 jurisdictions. Eighteen months after it blocked Alstom’s attempted merger with Siemens and only five months into its Phase I review, the European Commission conditionally cleared the deal subject to structural and behavioural commitments in various signalling markets. Following a second request for information in early July, the US Department of Justice unconditionally cleared the deal in October 2020, after which the New York State Attorney General’s Office closed its own investigation. Local counsel secured swift unconditional Phase I clearance from enforcers in India and Brazil, while authorities in Australia and Canada approved the deal after extended reviews. Although the tie-up was the subject of various challenges from local stakeholders in China, the State Administration for Market Regulation approved it unconditionally in November 2020 following an in-depth investigation.
Fiat Chrysler Automobiles/PSA Group
The global merger of PSA Group and Fiat Chrysler Automobiles to create Stellantis – the world’s third-largest automaker by revenue – required merger filings in 22 jurisdictions. The European Commission’s in-depth probe examined the deal’s impact on the light commercial vehicles sector in 15 EU member states. The agency approved the deal without issuing a statement of objections after PSA entered into a binding agreement with Toyota for the supply and sale of minivans until 2030. Both FCA and PSA also offered a behavioural remedy to facilitate multi-branding in their repairer networks. Enforcers in India, Turkey, Ukraine and Chile also cleared the deal in Phase II, with only the latter requiring commitments. The tie-up also secured unconditional clearance in Brazil, despite the internal tribunal of the Administrative Council for Economic Defence challenging its General Superintendency’s recommendation that the agency approve the deal.
FTC v Qualcomm
In August 2020, Qualcomm won a unanimous victory in the US Court of Appeals for the Ninth Circuit, which overturned a district court’s ruling in favour of the Federal Trade Commission’s monopolisation claims against the chipmaker. The agency sued Qualcomm in 2017 alleging violations of the FTC Act and the Sherman Act, while seeking a permanent injunction against several practices relating to Qualcomm’s patent licensing and modem chipset businesses. The district court granted the FTC’s injunction request in May 2019, but the Ninth Circuit unanimously overturned that ruling. The appellate court held that Qualcomm had no antitrust duty to license patents on fair, reasonable and non-discriminatory (FRAND) terms. It also ruled that the company's so-called “no licence, no chips” policy was competitively neutral to chip suppliers. In a rare instance of the US antitrust agencies diverging, the DOJ had filed a statement before the court in support of Qualcomm’s appeal. The dispute is considered by many to be the most significant technology-focused antitrust case in the US since Microsoft.
The London Stock Exchange Group agreed to purchase Refinitiv, a global provider of financial markets data and infrastructure, for $27 billion in August 2019. The deal was cleared by competition authorities in 21 jurisdictions, most of which waved it through without conditions. The DOJ granted an early termination after reviewing the deal under its updated vertical merger guidelines – the first transaction that either of the US antitrust agencies publicly disclosed had been reviewed under the updated guidance. The European Commission approved the tie-up in January 2021 after a Phase II review, once LSEG agreed to divest the Italian stock exchange in Milan and promised to provide certain services on a non-discriminatory basis. At the time of writing, the Competition and Consumer Commission of Singapore was consulting on LSE’s proposed commitment to make certain foreign exchange benchmarks available to all existing and future customers and clearing houses in the country. Meanwhile, the €4.3 billion spin-off of Borsa Italiana Group to Euronext was reviewed and cleared by Germany’s Federal Cartel Office.
US v Sabre and Farelogix
The DOJ sued to block the merger between Farelogix, an information technology company that connects travel agencies directly with airlines and travel services, and Sabre, a leading global travel distribution intermediary between ticket agents and airlines and travel services, on the grounds that the so‐called “killer acquisition” amounted to a dominant company’s attempt to take out a disruptive, innovative competitor. Judge Leonard Stark of the US District Court for the District of Delaware rejected the agency’s request for a permanent injunction in April 2020 after a two-week bench trial, ruling that the government failed to establish a prima facie case that Sabre’s acquisition of its smaller rival would violate section 7 of the Clayton Act or that the merger was likely to substantially lessen competition. The companies had less luck across the Atlantic, where the UK’s Competition and Markets Authority blocked the tie-up, causing the companies to abandon the deal, albeit while appealing against the CMA’s prohibition decision.
Government agency of the year: A competition enforcer anywhere in the world whose work in 2020 was particularly effective, strategic or innovative.
The Australian Competition and Consumer Commission
In February 2020, the Australian government asked the ACCC to continue its review of digital platforms until 2025 and launch an 18-month inquiry into online advertising. In September, the agency added to that research with a probe into mobile applications stores, which will examine the extent of competition between Google and Apple. The enforcer also recommended a draft law in July that would allow publishers to negotiate with Facebook and Google to receive payment for the use of their content. The first-of-its kind proposal prompted Google to threaten to withdraw its search engine from the country, although it has since reached a compensation agreement with at least one Australian publisher. Digital issues also spilled over into the ACCC’s merger work as it rejected the remedies that secured the European Commission’s approval for Google’s purchase of Fitbit. The enforcer’s review continues despite the companies completing the deal. While all that was ongoing, the ACCC secured a guilty plea from Wallhenius Wilhelmson to close out its investigation into the international roll-on roll-off shipping cartel and brought criminal charges in the steel and pharmaceutical sectors.
The UK’s Competition and Markets Authority
The Competition and Markets Authority’s voice was heard loud and clear in 2020. Following-up on recommendations in the influential Furman Review in 2019, the agency took a leading role in advocating for big tech regulation in the UK. It oversaw a temporary digital markets taskforce and released its online advertising and digital market study, which claimed that the market power of Google and Facebook is causing substantial harm to “society as a whole”. At the end of 2020, the agency issued advice to the government that recommended establishing a permanent Digital Markets Unit within the CMA and requiring certain companies with “strategic market status” to notify all their deals. The government has committed to creating such a regime. On the merger side, the CMA showed it was ready to take on an increased workload following the end of the Brexit withdrawal period by notching up three deal blocks – Sabre/Farelogix, JD Sports/Footasylum and FNZ/GBST – while at least two other planned tie-ups were abandoned in the face of its scrutiny.
The Netherlands’ Authority for Consumers and Markets
The Netherlands’ Authority for Consumers and Markets has adopted the role of something of a pioneer when it comes to the intersection of competition and sustainability initiatives. The agency’s draft guidelines on sustainability-related cooperation agreements under EU competition rules received widespread acclaim, although the enforcer also kept one eye on the digital economy. It completed a market study into the online payment systems sector, which found that large technology companies such as Google and Apple are incentivised to expand further into the market to “reinforce their ecosystems” and recommended that the European Commission use its proposed new gatekeeper rules to prevent these companies from dominating the payments market. The study prompted the agency to launch an investigation into whether payment apps have been unlawfully restricted from accessing software in smartphones needed to provide contactless payment services. It also imposed its highest-ever combined fines in a single case when it fined four cigarette manufacturers over €82 million for exchanging information about the future prices of cigarettes.
Germany’s Federal Cartel Office
Germany’s Federal Cartel Office, which has long been at the forefront of antitrust developments in the digital economy, scored a notable victory in June 2020 when the Federal Court of Justice reinstated the enforcer’s interim ruling requiring Facebook to temporarily stop combining German users’ data on its platform with that gathered from its other services and third-party sites. Unsatisfied with just the one victory against big tech, the FCO also launched a probe into Amazon’s influence over pricing after the company banned sellers from its Marketplace platform for hiking prices of products related to the coronavirus pandemic. It also began probing whether Facebook has abused its dominance by forcing users of its Oculus virtual reality products to set up an account with its main social media platform. The enforcer also kept busy advocating for new amendments to Germany’s competition law, which lawmakers approved at the start of 2021 to give the agency a swathe of new powers to tackle digital issues. In more traditional enforcement, the FCO fined 11 construction companies €110 million for running a decade-long bid-rigging cartel and fined seven crop protection wholesalers €154.6 million for distributing gross price lists and agreeing on discount schemes.
US Federal Trade Commission
The FTC had an action-packed year in 2020, challenging or securing the abandonment of 31 deals and moving to block or undo an unprecedented nine mergers, including two separate hospital deals in Memphis and New Jersey. In a notable victory, the FTC successfully convinced a Missouri federal court to block a proposed joint venture between Peabody Energy and Arch Coal following a trial challenging the deal in the summer of 2020. The agency also got its teeth into several pharmaceutical deals, granting conditional clearance to Abbvie/Allergan and Upjohn/Mylan. The agency bookended 2020 with two high-profile monopolisation cases. The first was brought in January against Vyera Pharmaceuticals and two of its executives – including Martin Shkreli. It then ended the year with a complaint against Facebook, accusing the company of illegally maintaining its monopoly power over personal social network services through anticompetitive mergers and exclusionary conduct. The FTC also published, together with the Department of Justice, a long-awaited version of new vertical merger guidelines in June 2020 – the first time the guidelines have been updated since 1984.
Enforcement action of the year: The best decision or enforcement action from a competition authority or court in 2020.
Germany’s Facebook win
Germany’s highest court handed the Federal Cartel Office a major win when it ruled in June 2020 that Facebook must temporarily stop combining German users’ data on its platform with that gathered from its other services and third-party sites. The ruling came two years after the enforcer ordered Facebook to obtain user consent before combining data from Facebook-owned services – such as WhatsApp and Instagram – and third-party websites with Facebook user accounts; and 10 months after a lower court struck that interim ruling down. The FCO successfully argued before the Federal Court of Justice that breaches of data protection law can amount to an abuse of dominance. The landmark ruling – not just in Europe, but around the world – on the intersection of antitrust and privacy law bolstered FCO president Andreas Mundt’s claims that data is “an essential factor for economic strength” and a “decisive criterion in assessing online market power”.
Turkey’s Google decisions
The Turkish Competition Authority followed up on its 2018 Google Shopping decision with two more infringement decisions against the technology company in 2020. In February, the enforcer fined Google 98.3 million lira (€11.6 million) for “complicating” its competitors' activities in the comparison-shopping and general internet search markets, ordering the company to stop putting its service in an advantageous position. In November, it fined Google 196.7 million lira (€23.3 million) and ordered it to stop abusing its dominant position in the online search advertising market by favouring paid ads in its search results. The latter decision also came with a requirement that Google notify the authority of its proposed corrective measures one month prior to the order’s six-month deadline – a measure taken after the company was fined for failing to timely comply with the enforcer’s Google Shopping remedies. The rulings departed from the European Commission’s similar decisions against Google by laying out extensive and specific compliance remedies. Google must also submit annual reports to the Turkish enforcer for the next five years.
French interim measures against Google
The interim ruling by France’s Competition Authority against Google required the company to negotiate in good faith with publishers and news agencies on the remuneration for the re-use of their protected content. It forms part of a probe examining whether Google’s refusal to pay publishers for displaying snippets of their content in its news results, as required by the EU’s copyright directive, constitutes an abuse of dominance or abuse of economic dependency. Google challenged the interim ruling before the Paris Court of Appeal, which rejected the appeal after finding that the company’s conduct was likely to cause serious and immediate harm to the media sector. The competition authority’s decision lays out a framework for Google to negotiate with the complainant press associations, and under its watchful eye at least one agreement on compensation has been reached. The interim measures mark the first time in Europe that a competition authority has clearly stated that a national law on neighbouring rights prevents Google from publishing content without compensation.
DOJ deferred prosecution agreement with Sandoz
The US Department of Justice issued the largest penalty for a domestic antitrust case in US history when it signed a deferred prosecution agreement with Sandoz in March 2020. The drugmaker agreed to pay $195 million to resolve a four-count felony charge of conspiring to fix prices, rig bids and allocate customers for certain generic medications. According to then-assistant attorney general Makan Delrahim, the Antitrust Division decided not to prosecute Sandoz, in part, to avoid the collateral competitive harm that would stem from a criminal conviction. A guilty verdict would have likely prevented the Novartis subsidiary from selling to federal healthcare programmes for five years. As part of its agreement with the enforcer, Sandoz admitted to conspiring with four rivals over 12 medications between 2013 and 2015. The settlement came one month after former Sandoz executive Hector Armando Kellum pleaded guilty to his role in the collusion, becoming the third individual to plead guilty to charges brought by the DOJ as part of its probe into price-fixing in the generic pharmaceuticals industry.
DOJ secures Christopher Lischewski price-fixing criminal sentence
A California federal judge sentenced Christopher Lischewski to 40 months in prison in June 2020 after the Department of Justice convinced a jury to convict the former Bumble Bee Foods chief executive in December 2019 for his role in an industry-wide canned tuna price-fixing conspiracy. The US District Court for the Northern District of California handed down its sentence after finding the Antitrust Division met its burden of demonstrating that the conspiracy impacted more than $1 billion worth of commerce. Although the 40-month sentence was lower than the eight to ten years that the DOJ had requested, it was close to double the average 20-to-24-month sentence delivered to defendants convicted of antitrust crimes and significantly higher than the base-level sentencing recommendation of 10 to 16 months in prison for a first-time antitrust-related felony. The Antitrust Division later successfully fended off multiple requests from the former chief executive’s counsel that he be released to home confinement during the coronavirus pandemic. Lischewski has appealed against his conviction.
Portuguese food retail hub-and-spoke fines
In December 2020, the Portuguese Competition Authority issued two infringement decisions that fined six major supermarket chains, two beverage suppliers and two board members a combined total of €304 million for fixing the prices of the suppliers’ products. Issued in the midst of the covid-19 pandemic, both decisions were the first in Portugal to sanction a hub-and-spoke conspiracy, concluding that the companies aligned sales prices through common suppliers to restrict competition between supermarkets. The probe implicated some of Portugal’s largest retailers, including Lidl, Auchan and Intermarché, and resulted in the highest fines that the enforcer has ever imposed in one go. The cases add to other investigations underway in the Portuguese retail sector stemming from 44 dawn raids in 2017, which have so far resulted in seven statements of objection alleging hub-and-spoke practices by large food retailers and suppliers of spirits and soft drinks, packaged bread and cakes, as well as personal care, beauty and cosmetic products.
Corporate counsel of the year: An in-house competition lawyer whose superior technical skill and practical judgement on behalf of his or her company in 2020 demonstrate that he or she is among the very best in the field.
Beatrice Vos (Elanco)
Beatrice Vos, Elanco’s deputy general counsel and head of legal for Europe, Middle East and Africa, played a crucial role in the pharmaceutical company’s $7.6 billion deal to acquire Bayer’s animal health division. The deal created the world’s second-largest animal health business and faced global antitrust scrutiny from authorities in the US, EU, Australia and New Zealand. Vos led Elanco’s team through the lengthy merger control process and coordinated with several outside counsel worldwide. She has also made a significant contribution to Elanco’s growth through M&A transactions, licensing deals and research collaborations. Since Elanco became a public company, she has managed the company’s expanded set of compliance obligations, including emerging regulations that impact the animal health business.
Nicholas Woodrow (Vodafone)
Vodafone’s global head of competition, Nick Woodrow, is once again nominated for our in-house counsel award after another busy year handling tough antitrust cases for the telecoms company. In Australia, Vodafone successfully overturned the ACCC’s opposition to its tie-up with TPG before the Federal Court. Woodrow and his team also managed the European Commission’s dual merger control and antitrust investigations of Vodafone’s network sharing agreement and tower joint venture with Telecom Italia. The commission closed its antitrust investigation, using the termination to issue soft guidance on the roll-out of 5G network sharing arrangement across the EU. The agency also accepted innovative access commitments for capacity on Vodafone’s and Telecom Italia’s towers to drive competition.
Emmanuelle Petrovic (Alstom)
Emmanuelle Petrovic has been Alstom’s general counsel since May 2019, just after the European Commission controversially blocked the company’s proposed merger with Siemens that same year. But just over a year after the EU enforcer stopped that high-profile railway deal, Alstom looked to buy the train operations of Canadian business Bombardier for €6.2 billion. Petrovic oversaw all the legal aspects of the deal, which closed in January 2021, including merger filings in 14 jurisdictions. The EU cleared the deal in Phase I subject to an extensive remedy package, while the US Department of Justice unconditionally cleared the deal in October 2020, following a second request. Local counsel secured swift unconditional Phase I clearance from enforcers in Singapore, India and Brazil, while authorities in Australia and Canada approved the deal after extended reviews.
Horacio Gutierrez (Spotify)
Horacio Gutierrez is the head of global affairs and chief legal officer at Spotify. He has led the music streaming application’s efforts to highlight Apple’s anticompetitive App Store practices, which started with a complaint to the European Commission in March 2019 and led to a formal probe. Now other leading app businesses have followed in Spotify’s footsteps to challenge Apple and Google’s app store dominance, including Epic Games, which has filed lawsuits in the US, UK and Australia against both companies. Gutierrez also coordinated Spotify’s response to the EU’s Platform to Business regulation, which came into force last July; its feedback on the EU’s Digital Markets Act, which proposes regulation for certain big technology companies designated as digital “gatekeepers”; and its comments to the US House of Representatives antitrust subcommittee report on digital platforms.
Lorelei Fleming (Hutchison Whampoa)
As Hutchison Whampoa’s deputy general counsel, Lorelei Fleming was instrumental in successfully leading the company through a series of deals in the telecommunications space, as well as a landmark victory at the EU’s General Court in 2020. The court overturned the European Commission’s decision to block the sale of Telefónica’s UK mobile business to CK Hutchison, widely criticising the enforcer for how it analyses competitive effects in merger control. The judgment is likely to become a leading precedent for the assessment of consolidation in telecoms markets.
Catherine Higgs (GSK)
Catherine Higgs, GlaxoSmithKline’s global head of competition law, is responsible for advising on all aspects of antitrust law across the company’s three business divisions: pharmaceuticals, vaccines and consumer health. She oversaw one of the largest M&A deals in 2019, helping to steer GSK’s join venture with Pfizer to form a global consumer healthcare business, which created the world’s largest supplier of over-the-counter medicines. She is also an active contributor to competition policy globally and a champion for women in antitrust law.
Kurt M Kjelland (Qualcomm)
Kurt Kjelland, vice president and legal counsel at Qualcomm, led the chipmaker’s successful defeat of the US Federal Trade Commission’s monopolisation claim. The US Court of Appeals for the Ninth Circuit reversed a lower court’s finding that Qualcomm’s licensing practices for modem chips violated federal antitrust law. Kjelland managed the case for over six years, including the investigative phase, district court discovery, trial and appeal. The landmark ruling further clarifies the law on key issues such as the standards for refusal-to-deal claims, the application of antitrust law to the licensing of standard-essential patents, and the role of antitrust law in rapidly changing markets.
Litigator of the year: A competition litigator whose superior technical skill, practical judgement and excellence in serving clients in court in 2020 demonstrate that he or she is among the very best in the field.
Boris Bronfentrinker (Quinn Emanuel Urquhart & Sullivan)
Boris Bronfentrinker co-heads Quinn Emanuel Urquhart & Sullivan’s UK competition litigation practice. He leads the team representing Walter Merricks in his landmark opt-out class action damages claim against Mastercard on behalf of an estimated 46.2 million consumers, seeking the recovery of alleged loss suffered as a result of the credit card company’s illegal interchange fees. Bronfentrinker played a key role in convincing the UK’s Supreme Court to send the case back to the UK’s Competition Appeal Tribunal to rehear arguments on class certification. Bronfentrinker also leads the Quinn Emanuel team representing several of the world’s largest asset managers and pension funds in a damages claim against the banks involved in rigging foreign exchange rates, while he also represents Fiat Chrysler in claims against members of the Bearings cartel. On the non-claimant side, Bronfentrinker is the lead partner representing Daimler in the Trucks litigation before the UK courts, defending the company against multiple individual claims and two proposed collective actions.
Rachel Adcox (Axinn Veltrop & Harkrider)
Axinn Veltrop & Harkrider partner Rachel Adcox continues to lead on several major class action claims and multi-district antitrust litigation cases in the US. She is lead counsel to Tyson Foods, coordinating the defence of multiple treble-damage class action claims alleging industry-wide conspiracies to raise the price of broiler chickens, pork and turkeys, as well as allegations of a conspiracy to depress broiler grower pay. She also represents Alvogen in the sprawling Generic Pharmaceuticals Antitrust Pricing Litigation, defending the drugmaker against claims it participated in an industry-wide conspiracy to raise prices.
Megan E Jones (Hausfeld)
Hausfeld partner Megan Jones led the team working on the Blue Cross Blue Shield Antitrust Litigation, which resulted in a $2.67 billion settlement in 2020. Jones was counsel to the subscriber plaintiffs, which alleged that Blue Cross Blue Shield, a federation of private health insurance companies, divided the geographic market to avoid competing with each other. Jones worked on the case for eight years, which involved an extensive discovery process, creating an evidentiary record from 75 million pages and over 100 depositions. Jones was also reappointed as co-lead counsel in the Diisocyanates Antitrust Litigation and as sole lead counsel in the Local Television Advertising Antitrust Litigation
Frances Murphy (Morgan Lewis & Bockius)
Frances Murphy, the managing partner of Morgan Lewis & Bockius’ London office, secured another landmark victory for Sainsbury’s in its long-running interchange fee battle with Visa. Building on her impressive Court of Appeal of England and Wales win in 2018, Murphy helped Sainsbury’s and other retailers convince the UK’s Supreme Court that Visa and Mastercard’s interchange fees unlawfully restricted merchants in their negotiations with banks over credit card charges. The ruling in June 2020 opens up the credit card companies to a swathe of damages claims, which are now making their way through the UK courts.
James Aitken (Freshfields Bruckhaus Deringer)
Freshfields Bruckhaus Deringer partner James Aitken was involved in two significant cases before the EU’s General Court in 2020. Aitken led the Freshfields team advising CK Hutchison in its appeal against the European Commission’s decision to block the O2/Three deal in 2016. The General Court overturned the commission’s decision in May 2020, concluding that the authority failed to show the four-to-three tie-up would significantly impede competition in the UK retail or wholesale telecommunications markets. He also advised Facebook in obtaining interim relief from two commission information requests as part of the agency’s probe into the social media company’s online marketplace and data practices. The court ordered Facebook to hand over nearly 4,000 documents, but required any personal information to be viewed alongside Facebook’s lawyers. The court also ordered sensitive documents to be placed in a virtual data room that will only be accessible to a limited number of commission staffers in the presence of an equivalent number of Facebook lawyers.
Karen Hoffman Lent (Skadden Arps Slate Meagher & Flom)
Karen Lent, Skadden Arps Slate Meagher & Flom’s New York antitrust head, enjoyed an impressive 2020. The year started by helping client Sprint defeat a challenge by 13 state attorneys general and the District of Columbia against its $59 billion merger with T-Mobile. Judge Victor Marrero ruled that T-Mobile and Sprint had demonstrated the efficiencies of their merger and gave the green light for the deal to proceed. Lent also advised the Brooklyn Nets in settling two antitrust lawsuits over the termination of season ticket subscriptions. Additionally, she was part of the team that helped convince the US Supreme Court to review a lower court’s decision that found the National Collegiate Athletic Association violated federal antitrust law by limiting academic grants offered to student athletes. Other notable work in 2020 included advising Louis Vuitton in settling litigation in the Delaware Chancery Court challenging its $15.8 billion acquisition of US jeweller Tiffany & Co.
Christopher Yates (Latham & Watkins)
San Francisco-based Latham & Watkins partner Christopher Yates has significant experience spearheading the firm’s competition litigation efforts. He led the team that successfully defended the US Soccer Federation against a federal antitrust suit filed by Relevant Sports that challenged the US soccer body’s alleged entering into a vertical and horizontal conspiracy with the sport’s governing body FIFA to stop teams from playing competitive international matches in the US. In July 2020, the US District Court for the Southern District of New York dismissed Relevant Sports’ antitrust claims. Yates also secured a victory for NorthBay Healthcare, which operates two hospitals, in its dispute with Kaiser Permanente. In December 2020, the US Court of Appeals for the Ninth Circuit overturned a lower court’s ruling dismissing NorthBay’s damages claim alleging that Kaiser Permanente subsidiaries conspired to monopolise the health-insurance market.
Dealmaker of the year: A lawyer whose superior knowledge, practical judgement and negotiation skills in merger clearance matters in 2020 demonstrate that he or she is among the very best in the field.
Liza Carver (Herbert Smith Freehills)
Sydney-based Herbert Smith Freehills partner Liza Carver is renowned as one of the best antitrust lawyers in Australia. A former associate commissioner at the Australian Competition and Consumer Commission, in 2020 Carver secured a major win for TPG in its tie-up with Vodafone Hutchison, one of the country’s three mobile network operators. The telecoms deal was first announced in 2018, after which the ACCC announced its opposition to the merger, citing TPG’s previously expressed interest in entering the market as the country’s fourth mobile network operator. Carver led the team that convinced Australia’s Federal Court to overturn the agency’s opposition to the deal in February 2020.
Andrew L Foster (Skadden Arps Slate Meagher & Flom)
Based in Beijing and Hong Kong, Andrew Foster heads up Skadden’s international competition practice for Asia-Pacific. In 2020, he advised on a pair of deals that were cleared by China’s State Administration for Market Regulation subject to commitments, including WABCO’s $7 billion merger with German auto parts maker ZF Friedrichshafen, which also required remedies ahead of approval in India. He represented Cisco Systems on its $4.5 billion acquisition of Acacia Communications, which the SAMR conditionally approved despite raising competition and industrial policy issues. Other notable deal matters included obtaining unconditional clearance in China for Willis Towers Watson in its $30 billion acquisition by Aon and for KEMET Corporation in its $1.8 billion acquisition by Yageo Corporation.
Jamillia Ferris (Wilson Sonsini Goodrich & Rosati)
Wilson Sonsini Goodrich & Rosati partner Jamillia Ferris led the team that advised Credit Karma on the antitrust aspects of its $7.1 billion sale to financial services company Intuit. David Cicilline, chair of the House of Representatives’ Antitrust Subcommittee, described the deal in April 2020 as a “killer acquisition” and asked the DOJ to closely examine it. Following that review, the antitrust agency cleared the merger subject to Intuit divesting Credit Karma’s digital do-it-yourself tax business. Other notable recent deal work includes advising Marvell on its $10 billion acquisition of Inphi and Lumentum on its $5.7 billion purchase of Coherent.
Nisha Kaur Uberoi (Trilegal)
As head of Trilegal’s competition team, Nisha Kaur Uberoi has developed a reputation as one of India’s premier merger control lawyers. She acted on several high value deals in 2020, obtaining unconditional clearance from the Competition Commission of India for PSA Group in its $50 billion merger with Fiat-Chrysler Automobiles and for the $45 billion tie-up between International Flavors & Fragrances and DuPont’s Nutrition and Biosciences business. Uberoi advised WABCO on its sale to ZF Friedrichshafen, which the CCI cleared in Phase I in February 2020 subject to commitments. The investment arms of Intel and Qualcomm also tapped Uberoi to advise on their investments in Jio Platforms.
Ronan P Harty (Davis Polk & Wardwell)
Davis Polk & Wardwell partner Ronan Harty advised on several multibillion-dollar transactions in 2020. Charles Schwab tapped him to steer its $26 billion acquisition of rival brokerage company TD Ameritrade through a second request by the DOJ, which subsequently approved the deal in June 2020. He also advised Roche on its $4.3 billion acquisition of Spark Therapeutics, which closed at the very end of 2019, following a 10-month probe by the Federal Trade Commission. Other notable deal work includes acting for Gilead Sciences in its $21 billion acquisition of Immunomedics, a deal that was challenged by an investor of the latter before a federal court in Delaware.
Matthew J Reilly (Kirkland & Ellis)
A former assistant director at the US Federal Trade Commission’s bureau of competition, Kirkland & Ellis partner Matt Reilly has recently advised on several high profile and high value merger reviews. He advised drugmaker AbbVie on its acquisition of rival Allergan, securing conditional clearance for the $63 billion deal from the FTC in May 2020 subject to divestments. Reilly also acted for Olympus Partners and its portfolio company Liqui-Box on its acquisition of DS Smith’s plastics division, in a deal that combined the world’s two leading providers of liquid packaging products. He currently represents Sycamore Partners, and its portfolio company Staples in their renewed attempt to acquire Office Depot.
Michael Han (Fangda Partners)
Michael Han, one of China’s most well-known and best respected antitrust lawyers, had a prolific year in 2020. As trade tensions between China and the US escalated, clients regularly sought Han’s advice to guide them on global deals and navigate investigations by China’s State Administration for Market Regulation. Han led teams advising companies in all of the SAMR’s conditional clearances in 2020, including Danaher’s acquisition of GE’s biopharma business, ZF Friedrichshafen’s €6.4 billion purchase of Wabco and Infineon Technologies’ acquisition of Cypress Semiconductor. Han also advised a third-party complainant in negotiating a suitable remedy package for Nvidia’s acquisition of Mellanox and convinced the SAMR to unconditionally clear Korea Shipbuilding & Offshore Engineering’s $1.6 billion acquisition of rival Daewoo Shipbuilding & Marine Engineering in December.
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 2020 demonstrate that he or she is among the very best in the field.
Elaine Ewing (Cleary Gottlieb Steen & Hamilton)
Based in the US capital, Cleary Gottlieb partner Elaine Ewing is highly regarded by her peers as a leading merger control lawyer. In 2020, she advised Google on its $2.1 billion acquisition of Fitbit. The high-profile deal closed in January 2021 following a 15-month antitrust review in the EU, Japan and South Africa, albeit with merger control investigations in the US and Australia still pending. Ewing played a key role guiding the deal before the Department of Justice, while also coordinating local counsel across the rest of the world. She previously did the same for Dow Chemical in its $130 billion merger of equals with DuPont. More recently, Ewing advised LATAM Airlines on the sale of a $1.9 billion stake to Delta Air Lines; IFF on its $45.4 billion merger with DuPont Nutrition & Biosciences; and Coca Cola on multiple transactions.
Justin-Stewart Teitelbaum (Freshfields Bruckhaus Deringer)
Freshfields partner Justin Stewart-Teitelbaum had a busy year in 2020, advising on a handful of major US merger control matters. He was part of the team that successfully defended Evonik against the FTC’s attempt to block its proposed acquisition of PeroxyChem and also advised the London Stock Exchange Group on the US and global merger control aspects of its $27 billion purchase of Refinitiv. In the pharmaceuticals space, he is acting for AstraZeneca in its $39 billion acquisition of Alexion.
Jordan Ellison (Slaughter and May)
Brussels-based Slaughter and May partner Jordan Ellison has advised Google on several matters in the past year, including its appeal to the EU General Court against the European Commission’s AdSense decision, as well as various digital markets studies by competition enforcers in the UK, Australia and Japan. On the deal side, he advised on multiple matters, including Deliveroo on its sale of a minority stake to Amazon, which was reviewed in-depth by the UK’s Competition and Markets Authority and subsequently cleared without remedies.
Marcus Pollard (Linklaters)
As head of Linklaters’ competition practice in Hong Kong, Marcus Pollard advises companies on antitrust matters before the territory’s fledgling enforcer as well as agencies in other emerging competition regimes across the region. He has recently advised on several precedent setting probes and decisions, including acting for Charoen Pokphand Group on its $10.6 billion acquisition of Tesco’s businesses in Thailand and Malaysia, which was conditionally approved by Thailand’s competition watchdog in November 2020 following the agency’s first ever in-depth merger review. Other recent notable “firsts” include defending a leading IT distributor in the first ever cartel prosecution before Hong Kong’s Competition Tribunal and Court of Appeal; acting for Linde in the first ever abuse of dominance prosecution before the same Competition Tribunal; and advising a complainant in a probe by Hong Kong’s Competition Commission into hotel most-favoured-nation clause, which resulted in the territory’s first-ever behavioural commitments.
Margaret T Segall (Cravath Swaine & Moore)
During 2020, Cravath Swaine & Moore partner Margaret T Segall continued to build on her prior experience advising companies on headline-grabbing, mammoth deals. Having previously advised on Time Warner’s $109 billion sale to AT&T and on Anheuser Busch InBev’s $123 billion acquisition of SABMiller, Segall played a lead role in acting for Mylan in its complex $50 billion merger with Pfizer’s Upjohn business. Her team secured conditional approval from the US Federal Trade Commission in November 2020 subject to the divestment of multiple generic drug brands. Segall was also tapped by Centrica to assist on the $3.6 billion sale of its North American energy supply, services and trading business to NRG Energy.
Michelle Marques Machado (Mattos Filho)
Michelle Machado recently led the team at Mattos Filho advising Elanco Animal Health on its acquisition of Bayer’s animal health business, securing unconditional clearance from Brazil’s Administrative Council for Economic Defence in 2020 despite the agency investigating the deal’s effects on competition in 20 relevant markets. She also secured a major win for Sanofi-Aventis, persuading CADE’s internal tribunal that the agency’s cartel probe examining the company’s behaviour in the methionine market was time-barred. Other impressive recent work included successfully arguing that both Sumitomo Electric Industries and J-Power Systems deserved full immunity from a cartel probe in the power cables market, despite Brazil’s leniency programme only fully exempting a first-in applicant from sanctions.
Kelly Fayne (Latham & Watkins)
Latham & Watkins partner Kelly Fayne is a highly regarded merger control lawyer based out of Silicon Valley. Fayne was a key member of the team that represented Intuit in its $7.1 billion acquisition of Credit Karma, securing conditional clearance from the DOJ in November 2020 following an in-depth review of what was viewed as a “killer acquisition”. Other notable merger control work includes advising AMD on its $35 billion acquisition of Xilinx and serving as second chair to partner Dan Wall while examining economic experts during a post-closing DOJ arbitration as required to address the agency’s challenge to Novelis’ $2.6 billion acquisition of Aleris.
Aparna Mehra (Shardul Amarchand Mangaldas & Co)
In 2020, Shardul Amarchand Mangaldas partner Aparna Mehra successfully secured conditional approval from the Competition Commission of India for ZF’s acquisition of WABCO, as well as unconditional clearance for Reliance’s acquisition of Future Retail, the country’s largest brick and mortar retail deal. She also steered through merger control KKR’s acquisition of JB Chemicals and Kubota’s minority acquisition of Escorts. Additionally, she led the team that secured what the firm described as a watershed decision in ChrysCapital/Intas, the first-time remedies were imposed on private equity investment and common minority ownership in India.
Lawyer of the year: A competition lawyer of any age whose superior skill, practical judgement and excellence in client service in 2020 demonstrate that he or she is among the very best in the field.
Amanda Reeves (Latham & Watkins)
Shortlisted for our dealmaker of the year award last year and now up for lawyer of the year, Mandy Reeves, global chair of Latham & Watkins' antitrust practice, had another stellar 12 months working on some of the year’s most challenging matters. She led negotiations with the US Department of Justice on behalf of Novelis, structuring a novel agreement to arbitrate a merger dispute after closing, which cleared the way for the company’s $2.6 billion acquisition of Aleris. In addition to that ground-breaking work, she advised Intuit on its $7.1 billion purchase of Credit Karma, which the DOJ reviewed and conditionally cleared in November 2020 despite concerns about it being a “killer acquisition”. She is also defending Surescripts in the FTC’s high-profile lawsuit claiming the company monopolised e-prescription markets through exclusionary contracts.
Gary Bornstein (Cravath Swaine & Moore)
As co-head of Cravath's litigation department, Gary Bornstein led the defence for Qualcomm against the Federal Trade Commission’s high-profile complaint seeking a permanent injunction against the chipmaker’s patent licensing practices. He helped the company secure a unanimous victory in the US Court of Appeals for the Ninth Circuit, which confirmed that its business model did not fall foul of the antitrust laws. Bornstein was also tapped by Fortnite-creator Epic Games to steer its high-profile litigation against Apple and Google, which are both accused of breaching antitrust rules through the distribution of mobile apps and the processing of in-app purchases.
Antoine Winckler (Cleary Gottlieb Steen & Hamilton)
Brussels-based Cleary Gottlieb partner Antoine Winckler led on several important matters in 2020. Perhaps the most high-profile of these was advising Alstom on its acquisition of Bombardier, which the European Commission conditionally cleared subject to structural and behavioural commitments in July 2020 following just two months of pre-notification – and only 18 months after the same agency blocked Alstom’s tie-up with Siemens. Other notable deal work included advising Veolia on its €2.9 billion acquisition of Engie's 29.9% stake in Suez and CANAL+ in its partnership with beIN SPORTS. Away from merger control, Winckler advised Google in two abuse of dominance cases before France’s Competition Authority and Whirlpool in a high-profile probe by the same agency.
Simon Priddis (Freshfields Bruckhaus Deringer)
As managing partner of Freshfields’ UK competition group, Simon Priddis led from the front on several headline-grabbing deals during 2020. He headed up the competition team that represented the London Stock Exchange Group in its $27 billion acquisition of Refinitiv. The deal secured conditional clearance from the European Commission in January 2021, subject to the divestment of the Italian stock exchange in Milan and innovative behavioural commitments to provide open and non-discriminatory access to certain data and clearing products. He also led the team that was brought in by JD Sports to advise on its merger with Footasylum after the deal was blocked by the UK’s Competition and Markets Authority. The team successfully convinced the Competition Appeal Tribunal to overturn the CMA’s decision in November 2020 and take another look at the merger. Other notable work included advising Viagogo on the Phase II review by the CMA into its acquisition of StubHub.
Steven C Sunshine (Skadden Arps Slate Meagher & Flom)
Steven Sunshine, head of Skadden Arps Slate Meagher & Flom’s global antitrust practice, has recently advised clients on some of the highest profile US merger challenges. Within the space of eight weeks in the first half of 2020, Sunshine led two separate teams in back-to-back merger trials. Tapped by Sprint as lead trial counsel, Sunshine successfully defended the company’s merger with T-Mobile against a challenge by 13 state attorneys general and the District of Columbia. He also defended Sabre in the DOJ’s unsuccessful challenge against the company's proposed $360 million acquisition of Farelogix, which the agency characterised as a “killer acquisition”. Additionally, he helped Anheuser-Busch InBev secure the dismissal of federal antitrust claims accusing the company of conspiring with a rival to exclude US breweries from the beer market in Canada.
Axel Gutermuth (Arnold & Porter)
Arnold & Porter partner Axel Gutermuth enjoyed a busy year in 2020, representing Fitbit in its headline-grabbing sale to Google, a ground-breaking merger that secured conditional approval from the European Commission after a Phase II probe. He was tapped as lead European counsel by AbbVie in its $63 billion acquisition of Allergan, obtaining conditional clearance in the EU during Phase I. He previously led the team handling non-US merger control work for Monsanto in its $66 billion acquisition by Bayer.
Regional firm of the year – Americas: A firm based solely in North, South and Central America that has had an outstandingly successful 2020 in terms of the quality and quantity of its competition work.
Cravath Swaine & Moore
Winner of the award for regional firm of the year for the Americas in 2020, Cravath Swaine & Moore is once again up for nomination. The 22-partner team in New York, which is led by Christine Varney, had another successful year representing Qualcomm in multiple antitrust cases, including securing a resounding victory before the US Court of Appeals for the Ninth Circuit. A three-judge panel reversed a ruling in favour of the US Federal Trade Commission, which found the chipmaker had illegally monopolised markets for certain cellular modems. In another high-profile case that has generated global attention, Epic Games turned to Cravath to lead two separate cases against Apple and Google, which are both accused of anticompetitive practices in the distribution of mobile applications. The team continues to defend Blue Cross Blue Shield against antitrust damages claims, having agreed a $2.67 billion settlement in one case in 2020. In deal work, the team represented Mylan in its tie-up with Pfizer’s Upjohn business, which the FTC conditionally cleared in October 2020.
Axinn Veltrop & Harkrider
Axinn Veltrop & Harkrider remains a go-to destination for some of the most significant antitrust matters in the US. The team is defending Google in investigations by the US Department of Justice and the state of Texas, which are scrutinising its online advertising business. The firm also advised Thermo Fisher Scientific on its attempted $12.5 billion purchase of molecular diagnostics company QIAGEN. The US Federal Trade Commission issued a second request to the merging parties in April 2020, but the deal was eventually abandoned after QIAGEN failed to secure shareholder support. Other notable work includes representing Tufts Health in its merger with Harvard Pilgrim Health Care, which the DOJ cleared with divestment remedies in December 2020. On the litigation side, Axinn is defending Tyson Foods against treble damages class action claims, as well as advising pharmaceutical company Alvogen in the Generic Pharmaceuticals Antitrust Pricing Litigation.
Pereira Neto Macedo
The Brazilian antitrust practice at Pereira Neto Macedo – ranked as elite by GCR – had another impressive year working on some of the country’s most notable cases. The team helped client Bradesco – one of Brazil’s largest banks – settle an abuse of dominance investigation by the Administrative Council for Economic Defence, after agreeing to pay a €3.6 million fine and adhere to data sharing commitments. In an impressive win, the team overturned CADE’s decision to temporarily suspend Facebook’s agreement with Cielo – the country’s largest card payment processor – to offer businesses the option of receiving payments via Facebook’s WhatsApp messaging platform. CADE issued an injunction while it investigated the deal’s potential anticompetitive effects, but the enforcer’s investigative arm reversed that decision after the companies successfully argued the agreement would not hinder competition.
Stikeman Elliott is home to one of Canada’s most highly regarded competition practices. The firm had a busy year in merger work, advising Air Canada in its $720 million acquisition of Transat. Despite the two airlines being each other’s closest competitors on flight routes between Europe and Canada, the country’s Ministry of Transport, which was reviewing the merger on public interest grounds, cleared the deal subject to commitments in February 2021. Willis Towers Watson has tapped the firm to handle the Canadian aspects of its $80 billion merger with Aon, in a deal that would create the world’s largest insurance brokerage company. Bayer also sought the firm’s expertise in the $7.6 billion sale of its animal health business to Elanco. The team also continues to represent Sobeys in the Competition Bureau’s ongoing investigation into an alleged bread cartel.
Paul Weiss Rifkind Wharton & Garrison
The team at Paul Weiss Rifkind Wharton & Garrison secured a memorable victory before the US District Court for the District of Delaware in April 2020 when Judge Leonard Stark denied the Department of Justice’s bid to block the proposed acquisition of its client Farelogix by Sabre. The court rejected the agency’s market definitions, finding that the two companies did not compete in the same market. Despite the victory, the deal was later abandoned after the UK’s Competition and Markets Authority blocked the tie-up – a decision that Sabre is challenging. In other litigation work, the team helped clients Morgan Stanley, Deutsche Bank and Nomura successfully resolve high-value class action claims. The team also advised Elanco on its $7.6 billion acquisition of Bayer’s animal health business and Mastercard in its acquisition of financial technology company Finicity, which the Department of Justice cleared unconditionally in November 2020. Meanwhile, Amazon tapped the firm to advise it on the high-profile hearing in August before the House of Representatives antitrust subcommittee.
Regional firm of the year – Europe: A firm based solely in Europe that has had an outstandingly successful 2020 in terms of the quality and quantity of its competition work.
Uría Menéndez has excellent competition teams in Spain, Portugal and Brussels, which kept busy in 2020 working on a host of complex matters. The firm acted for Adidas in settling an abuse of dominance probe by Spain’s competition authority in February 2020, after the clothing maker agreed to remove clauses from its contracts with distributors and franchisees that restricted online sales. Additionally, the firm has advised clients on complex abuse investigations scrutinising excessive and predatory pricing in the pharmaceuticals sector. On the deals side, the firm advised Telefónica on its creation of a joint venture with Prosegur and continues to act for Air Europa on its sale to International Airlines Group. Beyond traditional merger control and antitrust work, the firm is also especially active in the competition damages field. The team is defending DAF against hundreds of claims in Spain following on from the EU’s Trucks cartel decision, while dealing with various preliminary ruling requests to the European Court of Justice.
De Brauw Blackstone Westbroek
Jolling de Pree, winner of GCR’s award for litigator of the year in 2020, leads the antitrust practice at De Brauw. The firm has one of the best competition litigation groups in the Netherlands, defending British Airways and DAF Trucks against multiple claims in multiple jurisdictions that follow on from the European Commission’s respective Air Cargo and Trucks cartel decisions. The team is extremely strong on traditional merger control and antitrust work, acting as co-lead counsel to GrandVision in its ongoing sale to EssilorLuxottica, which the European Commission sent to Phase II in February 2020. The team also assisted Takeaway.com with its acquisition of Just Eat, which was reviewed and cleared by the UK’s Competition and Markets Authority. The firm continues to act for the same company in its ongoing tie-up with Grubhub.
Alrud Law Firm
Housing one of the best and largest competition practices in Russia, Alrud acted on several important matters in 2020. Partners Vassily Rudomino and German Zakharov lead the wider team, which defended Booking.com against an abuse of dominance probe by Russia’s Federal Antimonopoly Service relating to its most-favoured-nation clauses. On the merger control side, the firm represented Danaher Corporation in its $21.4 billion acquisition of GE’s Biopharma business and acted for Fiat Chrysler Automobiles in its merger with Peugeot. Both of those deals were cleared without conditions, as were multiple other transactions that the firm advised on.
Erdem & Erdem
Mert Karamustafaoğlu, an ex-case handler at the Turkish Competition Authority, leads the tight-knit antitrust team at Erdem & Erdem. In 2020, the firm advised Turkish Airlines in a precedent-setting abuse of dominance probe, as well as Yemeksepeti, an online food delivery company, in a probe examining its use of most-favoured-nation clauses. Both investigations were two of the first that ever led to the Turkish enforcer accepting commitments as part of a behavioural probe.
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 2020 in terms of the quality and quantity of its competition work.
Consistently ranked among Australia’s elite competition practices, it is no surprise that MinterEllison regularly works on some of the country’s most notable antitrust cases. The firm is advising the state of New South Wales in the Australian Competition and Consumer Commission’s ongoing litigation against NSW Ports, which it accuses of conspiring with the state government to restrict rival ports’ ability to compete for container trade. The team also represents a senior executive at Citigroup in a high-profile cartel case, which alleges that ANZ, Citigroup, Deutsche Bank and several employees colluded to distribute A$789 million worth of ANZ shares to bank executives.
Fangda Partners is routinely cited as China’s leading antitrust practice, headed by highly regarded partner Michael Han. The team was involved in all four conditional clearance decisions by China’s State Administration for Market Regulation in 2020. Most of the deals involved China-specific remedies despite being cleared unconditionally in other jurisdictions. Those clearance decisions included Danaher’s acquisition of GE’s biopharma business and ZF Friedrichshafen’s purchase of Wabco. The firm also advised a third-party in opposing Nvidia’s $6.9 billion acquisition of Mellanox in order to achieve a favourable remedy package.
Kim & Chang
Kim & Chang stands out in the Korean market for the size and breadth of its practice. Its 42-partner team advised on some of 2020’s most notable deals, including LVMH’s acquisition of Tiffany & Co; Fiat Chrysler and PSA Group’s €38 billion merger; and Danaher’s acquisition of GE’s biopharma businesses. The team also represented Delivery Hero in its acquisition of an 87% stake in Woowa Brothers. The deal combined Korea’s number one and two food delivery platforms but was cleared with remedies by the Korean Fair Trade Commission in December 2020. In behavioural work, the firm advises a confidential mobile phone carrier and telecommunications operator in separate KFTC probes. It also represented reinsurance company Korean Re in its successful appeal against KFTC fines for abuse of dominance.
Rajah & Tann
Rajah & Tann prides itself on having antitrust offices across south east Asia. The firm has one of Singapore’s most active competition practices, which consists of an all-female three-partner team, led by Kala Anandarajah. The firm advised Toh Thye San Farm in Singapore’s Fresh Chicken cartel case, successfully convincing the country’s Competition Appeal Board to slash the company’s fine from €1.4 million to approximately €450,000. The team is also representing an unnamed client in the Competition and Consumer Commission of Singapore’s probe into the online food delivery and virtual kitchen sectors. In Thailand, the firm represented the Charoen Pokphand Group in its $10.6 billion acquisition of Tesco’s local supermarket businesses in Thailand and Malaysia. Thailand’s Office of Trade Competition Commission approved the deal in a rare conditional clearance in November 2020. The team is also active in merger control work in Vietnam, Philippines and Indonesia.
ENSafrica has a revered competition practice that spans seven countries in Africa, including Kenya, South Africa, Namibia and Mauritius. The firm advised Mylan in its merger with Pfizer’s Upjohn business, which required notification in South Africa, Kenya and Namibia, as well as to the regional competition authority for the Common Market for Eastern and Southern Africa. The firm also acted for Allergan on the South African aspects of its $63 billion acquisition by AbbVie. In behavioural work, the firm advised Dis-Chem in defending an excessive pricing complaint brought by the Competition Commission of South Africa. In a settlement decision, the Competition Tribunal of South Africa fined the company €67,000 for inflating the price of surgical masks during the covid-19 pandemic. The team also advised Vodacom in an abuse of dominance complaint relating to the supply and delivery of mobile telecommunications services to the government, although the case was ultimately not referred to the tribunal.
Shardul Amarchand Mangaldas & Co
Shardul Amarchand Mangaldas & Co continues to house India’s finest competition practice. The firm handled several large global deals in 2020, including advising on all aspects of ZF Friedrichshafen’s acquisition of WABCO, securing conditional clearance from the Competition Commission of India. Fiat Chrysler also turned to the firm to advise it on the Indian aspects of its deal with PSA Group, which the CCI cleared unconditionally. Additionally, the team also advised Metso and Outotec on the latter’s acquisition of the former’s minerals business, which the CCI conditionally cleared in March 2020. The competition group also worked on some impressive behavioural cases during the past year, including several in the technology sector. It helped WhatsApp and Facebook fight off a complaint that they unlawfully bundled WhatsApp Pay with WhatsApp’s messaging service.
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