White & Case made a jump in our Global Elite rankings this year, due in part to the firm’s impressive merger practice handling both major mergers – think Olympic/Aegean and others – as well as smaller deals that still required antitrust advice. The firm also handled a number of deals on which it did not do the corporate work – one of a handful of metrics we believe demonstrates the strength of the practice and its past successes.
|J Mark Gidley
|Number of jurisdictions with a competition team
|Who's Who Legal nominees
|Percentage of partners/counsel in Who's Who Legal
|Counsel and consultants
|Lateral partner hires
The firm’s cartel practice is impressive as well, but perhaps not by the metrics GCR measured this year. The firm says it takes pride in its track record of defending against cartel accusations and winning. “In our opinion, the number of amnesty, immunity and leniency applications is only a measure of a firm’s success if you believe that self-defence and demanding the prosecutor prove its case are a less prudent course of action than surrender and confession,” the firm wrote in response to GCR’s questions.
This is a typical White & Case sentiment. Mark Gidley has constructed a team that is both whip-smart and composed of born-and-bred contrarians who believe cases are worth fighting, especially if a prosecutor has chosen to stand on shaky legal ground. The firm has been at the forefront of a global push to ensure the due process rights of antitrust defendants, and it continues to battle those alleged wrongs wherever it can.
White & Case is also ahead of its peers when fighting antitrust claims tied to pay-for-delay pharmaceutical litigation. In both government and private cases, the firm has fought on behalf of clients who believe they are working within the patent system to preserve their intellectual property rights and settle patent litigation as they see fit. Par Pharmaceutical, GlaxoSmithKline, Boehringer Ingelheim and others have all picked White & Case to handle such matters.
Clients also benefit from the firm’s size and global reach. It has the fifth-largest competition practice in the world and appears in 11 GCR 100-ranked jurisdictions, the third most this year. The White & Case team combines the size and scope of an antitrust powerhouse with the legal creativity and insight of a top boutique.
White & Case is proud of its reputation as a fighter prepared to take on the Commission. In total, the firm has four Who’s Who Legal: Competition nominees. Jacquelyn MacLennan is now part of the four-person executive committee in charge of the firm, and Mark Powell leads the practice. The highly experienced Ian Forrester QC remains active too. MacLennan is in charge of Toshiba’s appeals in the cathode ray tube, gas insulated switchgear and transformers cases. Meanwhile, Powell is advising Nexans’ on its challenge against its €71 million fine for being part of the power cables cartel, as well as a separate appeal against the commission’s dawn raid. He is also counsel to one of three banks that decided to contest rather than settle the Commission’s charges in the Euribor cartel.
The practice’s 28 lawyers speak close to 20 different languages, including Slovenian and Bulgarian. Indeed, White & Case is one of the go-to firms in Brussels for eastern European matters. Powell, who had a strikingly busy and successful year, represented Romanian power exchange OPCOM, which received a €1 million fine in March for abusing its dominance by requiring electricity traders to obtain Romanian VAT registration.
In October 2013, together with fellow partner Assimakis Komninos, Powell secured EU approval for the merger of Olympic and Aegean Airlines. It is the first time the Commission has approved a merger it had previously prohibited, and a rare example of a successful failing firm defence. Another notable merger was DuPont/Kuraray, in which White & Case represented DuPont. The Commission approved the deal in Phase I, subject to conditions, at the end of April. The firm is currently busy with the merger between orthopaedic manufacturers Zimmer and Biomet.
White & Case is one of the few American firms to hold a convincing presence in the Czech market. Its Prague practice is headed by partners Ivo Janda and Tomáš Zagar, who work with two counsel and three associates, and Janda says the practice is now self-sustainable, able to get by on domestic work as well as references from its larger global network.
The merger side is busy, the firm says. It is advising on Travel Service’s acquisition of a 34 per cent stake in Czech Airlines, a deal that required clearance in five jurisdictions, and PPF Group’s sale of a €2.5 billion, 49 per cent stake in Generali PPF Holding back to Generali. In cartel work, the firm acted for Toshiba in the gas insulated switchgear case and defended Unipetrol and Synthos Kralupy in a European Commission investigation of alleged collusion between petrochemical companies. Among various state aid matters, Czech national air carrier ČSA relies on the group for advice on the restructuring and rescue plan for the company. The firm is also involved in private damages cases, acting for České Radiokomunikace in a dispute against Telefónica over allegedly operating a margin squeeze.
White & Case’s competition team in France, led by Jean-Paul Tran Thiet, has been involved in a large number of major merger clearance mandates over the past year. The firm currently advises Klépierre in its disposal of retail galleries to Carrefour, Bavaria Industries in its takeover of the European Management Services division of Pitney Bowes, and a Belgian investment company in its acquisition of Groupe Socotec from Qualium. A cross-office team at White & Case also secured early termination in the United States and France for Shenzhen Hepalink Pharmaceutical’s acquisition of Scientific Protein Laboratories. The deal is believed to be the first merger clearance for a large Chinese transaction before the French Competition Authority.
Despite the firm’s heavy merger workload, White & Case remains busy in other areas of competition law. White & Case also successfully advised Mercedes-Benz in having a ban on the registration of new cars lifted in France, which was deemed to be distorting competition. In its final ruling in May, the Council of State confirmed all arguments raised by the manufacturer and ordered that the government’s decision be permanently lifted. Tran Thiet continues to advise energy company Nexans in a challenge against DG Comp’s dawn raid procedures.
Of counsel Tihamér Tóth heads the competition group at White & Case. He works alongside two partners who also specialise in other matters: István Réczicza is also head of the regulatory group and Ildikó Csák leads the employment law practice. They are supported by two associates who also spend time working on matters outside the competition field. Tóth – a former vice president of Hungary’s Competition Authority – focuses almost entirely on European competition law and state aid. Electricity company Magyar Villamos Művek is just one of the companies that relies on the firm for state aid advice.
Last year White & Case was involved in a large cartel case involving Hungarian mills, advising several large mills in their appeals, one of which led to the overturning of one of the authority’s largest cartel fines to date. It also acted for Toshiba in the cathode ray tube investigation, where the technology giant escaped a fine and infringement finding. The firm was able to secure similar treatment for an AkzoNobel subsidiary, which escaped a fine in a car-painting cartel investigation. The firm is acting for Hamburger Recycling Group in a merger filing relating to its purchase of two of the country’s largest paper recycling companies, a process that involved coordinating the merger filing in Serbia. The firm also takes on compliance work, including advising Vascular Venture, a major medical device supplier, on the introduction of a watertight compliance programme.
Rivals of top US law firm White & Case LLP say its profile in the Mexican antitrust market has improved significantly over the past few years. Led by Who’s Who Legal nominee Iker Arriola Peñalosa, the antitrust group has grown since the last edition of GCR 100 and now has nine lawyers. The firm has a growing presence in antitrust litigation as enforcement efforts have increased and more cases head to court.
The firm’s growing and impressive caseload has necessitated the additional manpower. It is counsel to the Mexican subsidiary of Tyson Foods in the government’s long-running investigation of an alleged cartel among poultry suppliers. The new CFC upheld the old authority’s decision to fine Tyson, so the company is now taking the matter to the federal courts. White & Case is also advising Tyson on the sale of its Mexican chicken business to Brazil’s JBS, which is still under antitrust review. Elsewhere, Arriola and his team are advising Mexican paint company Comex on its sale to PPG Industries after an earlier deal with the US’s Sherwin-Williams buckled under regulatory pressure. Grupo Imagen turns to White & Case for Mexican antitrust advice, as does banking giant the Royal Bank of Scotland.
Litigator Grigory Chernyshov leads the Russian competition practice at White & Case in Moscow. There are four other lawyers on the team, including one other partner. The practice unsurprisingly benefits from being part of one of the world’s best-known firms for competition litigation and, unlike many of its international rivals in Moscow, handles its fair share of domestic behavioural work, as well as cross-border mergers.
For example, White & Case advised Russian Sea Group, the largest seafood producer in Russia, with respect to drafting the company’s supply agreements so as to comply with domestic antitrust laws. Chernyshov and his team assisted Microsoft in obtaining Russian merger clearance for its acquisition of Nokia’s Devices and Services Business and, in other matters, advised Goodyear on a claim filed by a competitor with the FAS over alleged anti-competitive advertising. Other active clients include Deutsche Bank, BNP Paribas, Boeing and Toshiba.
White & Case has an established presence in Slovakia, led by competition head Marek Staroň. The five-person team maintains a steady workload for major clients, including Toshiba and Skanska. It is currently appealing a decision by the Antimonopoly Office against Toshiba that is pending before the Supreme Court, but a ruling is expected by the close of 2014. The office is also tasked with work from the country’s Ministry of Economy as it reorganises the dominant gas utility, SPP Group.
United States: New York
White & Case remains extremely busy, with practice co-head Robert Milne saying the team is focused on three areas: cartel litigation, pharmaceutical antitrust issues and merger work. He shares the practice leadership with Who’s Who Legal nominee Joseph Angland. Partner Martin M Toto continues to collaborate with his West Coast and Washington, DC colleagues to defend Toshiba from direct and indirect television purchasers’ follow-on claims in the LCD and CRT class actions.
After the apparent setback of the Supreme Court’s ruling in 2013 that pharmaceutical reverse payment settlements could violate antitrust law, the firm roared back on behalf of Pfizer and Actavis on their Lipitor, Effexor and Loestrin drugs, obtaining a pair of rulings in September 2014 that dismissed all Sherman Act claims. It was less fortunate that same month when a procedural appellate decision reversed a district court’s dismissal of a lawsuit against its client, the Organization of the Petroleum Exporting Countries, for a conspiracy to monopolise and fix prices, and remanded to the district court with instructions to consider whether it could allow the plaintiff to serve White & Case with the lawsuit.
United States: Washington, DC
Both by design and personal predilection, the antitrust group at White & Case has attracted lawyers who thrive when advocating for clients locked in matters that touch on issues of due process, right to access and a handful of other novel legal questions. “We’re actually creating rights that help the average guy,” says J Mark Gidley, the group’s practice leader and a Who’s Who Legal nominee. While “average guy” might not precisely capture what White & Case does – their clients include enormous corporations such as Toshiba and Actavis – the philosophy of challenging the status quo and embracing what Gidley calls “counter-cultural ideas” is something the DC antitrust group prides itself on.
In the last couple of months, White & Case lawyers successfully dismissed three back-to-back lawsuits challenging reverse-payment patent litigation settlements on behalf of clients Warner Chilcott, Pfizer and Wyeth Pharmaceuticals. The decisions – all now under appeal – have greatly stoked the debate on the legality of such deals after Actavis. The firm is also taking a lead on other pharmaceutical antitrust litigation, defending Warner Chilcott in an ongoing antitrust battle with Mylan over alleged “product hopping”, and more recently being retained by Actavis to defend against a lawsuit by New York’s attorney general.