GCR 100 - 19th Edition

Kirkland & Ellis

Professional notice

United States: Illinois

Chicago antitrust giant Kirkland & Ellis expanded its partnership once again last year, now boasting 39 partners and nine associates working alongside long-time practice leader James Mutchnik.

With their corporate colleagues’ M&A practice booming, the team at Kirkland is consistently one of the most active for merger clearance work. In the Federal Trade Commission’s 2017 fiscal year, the firm filed 311 Hart-Scott-Rodino notifications and handled five second requests. So far in the FTC’s 2018 fiscal year, Kirkland has made more than 270 HSR filings, with 2017 marking the fourth consecutive year the competition department filed more than 200 HSR notifications.

Kirkland has also been getting the job done in court. The team acted as counsel to the Blue Cross & Blue Shield Association (BCBSA) in a series of putative class action lawsuits filed across the nation challenging the structure of the Blue System of health insurance as anticompetitive geographic market division. The lawsuits seek to force BCBSA to allow multiple Blue licensees to offer insurance in individual states, and also seek treble damages for alleged overpayments of premiums and alleged underpayments of provider reimbursements. The plaintiffs’ putative classes include the millions of Americans who are insured by Blue Cross & Blue Shield Plans and all doctors and hospitals that negotiate with Blue Plans.

United States: New York

The antitrust team at Kirkland & Ellis appears in this year’s survey after doing steadily good work out of the New York office. The team defends Akorn against Fera Pharmaceuticals’ lawsuit for more than $100 million in compensatory damages and additional punitive damages. The court dismissed the competition claim in 2013, but Akorn fired back with counterclaims against Fera and Perrigo that they allegedly tried to block Akorn’s entry into the Bacitracin Ophthalmic ointment market in violation of sections 1 and 2 of the Sherman Act. Akorn defeated the motion to dismiss before the litigants settled all claims in early 2018. Kirkland’s New York team also advised Akorn in the generic pharmaceuticals investigation. The firm won the dismissal of state law claims against Teva Pharmaceuticals regarding an alleged pay-for-delay settlement involving cholesterol drug Niaspan. On the merger front, Micro Focus International hired Kirkland for its acquisition of Hewlett-Packard Enterprise’s software business – an $8.8 billion deal – securing an early termination of the Hart-Scott-Rodino Act waiting period after a preliminary investigation by the DOJ’s antitrust division. Charter Communications retained the firm for its operating platform partnership with Comcast. Kirkland also advised General Motors on a $2.25 billion investment by SoftBank Vision Fund; L Catterton in its sale to JM Smucker; and Marriott Vacations Worldwide in the acquisition of the outstanding shares of ILG.

United States: Washington, DC

Partner Carla AR Hine joined Kirkland & Ellis  from McDermott Will & Emery in late August 2017 to boost its already strong DC practice. Hine joins Mark Kovner and 17 other partners and the firm boasts an impressive list of clients that call on Kirkland when they engage in bet-the-company deals. Those included advising Boeing in its pending $4.2 billion acquisition of KLX, a provider of aviation parts and services; Grubhub on its acquisition of Yelp’s online food-ordering business, Eat24, for $287.5 million and Tronox on the acquisition of the titanium dioxide business of Cristal for $1.6 billion. More high-profile merger cases include assisting Teva in the largest-ever pharma­ceutical divestiture during its massive deal with Allergan and advising Charter Communications in its $78 billion acquisition of Time Warner Cable.

The Kirkland DC team represented Deutsche Bank in enforcement investigations and class action cases in New York concerning alleged price-fixing in the global market for foreign exchange currencies. The team counselled Ranbaxy Pharmaceuticals in multi-district class action antitrust litigation alleging that Ranbaxy’s patent settlement with Pfizer was a so-called “reverse payment” settlement that delayed a generic version of the drug Lipitor. A motion for judgment on the pleadings in the indirect purchaser case was filed and remains pending. Farther back, Kirkland represented ABB Optical in the Disposable Contact Lens antitrust litigation, which accused lens distributors of conspiring to maintain minimum resale pricing in violation of state and federal antitrust laws.

OVERVIEW

Our antitrust and competition practice group guides clients through their greatest challenges and opportunities relating to fair competition in a global marketplace.

Our integrated team advises on all aspects of competition law. We provide preeminent criminal and civil antitrust litigation defence, government investigation defence, expedited transaction clearance and real-world counseling experience. Our attorneys have worked as former prosecutors, supervisors and attorneys in the US Department of Justice’s antitrust division (DOJ) and the Federal Trade Commission (FTC), and as prosecutors at a wide variety of other law enforcement agencies.

We work with buyers and sellers through all facets of the mergers and acquisitions regulatory clearance process, starting at the earliest stages of a deal to identify, allocate and reduce potential antitrust issues. By assessing the level of regulatory risk at the outset, we can better prepare the legal and economic analyses necessary to navigate clients through the entire deal negotiation and clearance process.

We have developed cost-effective systems and specially trained personnel for the preparation of Hart-Scott-Rodino (HSR) and foreign merger control notifications. We consistently file more HSR notifications in US transactions than any other law firm in the world.

Our trial-ready reputation gives us an edge in antitrust litigation. We routinely defend our clients in their most important government-initiated investigations and in private antitrust cases in federal and state courts against the DOJ, the FTC and state attorneys general. In Europe, our attorneys successfully handle cases before the U.K. Competition Appeal Tribunal, the English High Court and the European Court in Luxembourg.

CAPABILITIES

Litigation

Kirkland’s antitrust litigation practice is led by a core group of experienced and practical trial lawyers who successfully defend clients in their most important government-initiated and private antitrust cases. The team’s expertise covers the full spectrum of antitrust claims, including cartels, monopolisation, pricing disputes, unfair competition, price discrimination, intellectual property and merger-related litigation. 

M&A

Kirkland has immense experience in US and foreign M&A clearances. Kirkland files over 325 Hart Scott Rodino (HSR) notifications annually – the firm files HSR notifications in approximately 15% of all transactions reported to US antitrust agencies annually – and regularly handles transactions requiring European, Asian and Latin American antitrust clearances. Working closely with Kirkland’s corporate attorneys, the antitrust group provides realistic pre-transaction assessments, assists in contractual risk allocation negotiations, and secures expedited regulatory clearances.

Cartels

Kirkland lawyers have years of experience litigating high-profile criminal antitrust and cartel-related matters, both domestically and internationally. While the firm’s history of involvement in such matters is goes back decades, Kirkland lawyers remain at the forefront of this high-stakes practice, defending numerous clients who have come under criminal and civil antitrust scrutiny, whether in the US or other sovereign nations and international bodies. In the course of these ongoing matters, Kirkland lawyers have successfully obtained favourable, non-prosecution resolutions and reasonable settlements and defeated the government at trial.

International

Kirkland has extensive experience working with the antitrust and competition agencies around the world. Kirkland has competition lawyers in London and Shanghai, plus a network of competition attorney contacts, including throughout Australia, Brazil, Canada, the EU, the remainder of Europe, Japan, Mexico, South Africa and many other countries. This network ensures seamless compliance with the relevant notification requirements and allows for prompt competition clearances from those authorities.

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