White & Case

White & Case cracked the top 10 this year after a gradual rise up the chart, thanks in part to the Global Elite’s heightened emphasis on private litigation, where the firm has long shone, and non-cartel conduct investigations, where the firm has a pharmaceutical focus. White & Case has also built up its merger and cartel practices, bringing to them the same ready-to-fight stance.

Indicative of an ongoing effort to strengthen its European practice, the firm followed its welcoming of Yann Utzschneider and his team in Paris in 2016 with the January 2017 addition of Marc Israel from Macfarlanes in London – a relatively small office and one that historically had to share its competition lawyers with the general commercial litigation team. However, White & Case lost Börries Ahrens in Hamburg to Allen & Overy; Joseph Angland in New York to retirement; and Jean-Paul Tran Thiet in Paris to his own one-man shop.

Of course, the big merger news of the past year was Anthem’s effort to buy the increasingly reluctant Cigna, which the US Department of Justice sued to block. White & Case defended Anthem’s bid for its fellow health insurer through a trial in Washington, DC, an appeal and an attempt at the Supreme Court, with an expedited appeal filed in three days and a petition for high court review filed in five days based on a dissenting opinion in the appeals court about the importance of the efficiencies defence. Other major deal work included getting BUPA’s acquisition of Oasis Dental Care referred back from the European Commission to the UK’s Competition and Markets Authority, which cleared the purchase quickly and unconditionally; clearances in Austria, Germany and Poland – the latter after a Phase II investigation – for Greenbrier’s establishment of a joint venture with the competitor Astra Rail; Carl Icahn’s sale of XO Communications to Verizon, which drew a DOJ second request but was ultimately cleared without remedies; SOCAR’s attempted acquisition of the Greek gas transmission operator DESFA, which the Azerbaijani company abandoned after a Phase II review by the European Commission; and the United Arab Shipping Company’s US$12 billion tie-up with Hapag-Lloyd.

In criminal defence, the firm looks to avoid having clients plead guilty. Unlike its alleged co-conspirators in price-fixing automotive steel tubes, Maruyasu is putting the DOJ to its evidence, and after the US Court of Appeals for the Sixth Circuit refused to dismiss the indictment against the Japanese company for lack of personal jurisdiction, a trial is set for 2018. White & Case is also trying the jurisdictional argument on behalf of foreign exchange trader Richard Usher in Manhattan federal court. But the firm will shoot for immunity, fine discounts or the closure of an investigation where it can persuade a competition authority to grant them, as it did for Hertz in France and Principal Group in Mexico.

For years, White & Case has been fighting the US Federal Trade Commission’s enforcement against pharmaceutical companies for allegedly preventing generic drug competition. That battle goes on, particularly for Allergan’s subsidiaries, and now involves certain state attorneys general too. Notably, the firm is also assisting drugmakers in Europe who face both pay-for-delay and other concerns: Servier, which awaits a General Court ruling after a four-day-long hearing; Pfizer in an excessive pricing appeal in the UK; and GlaxoSmithKline’s Greek epic case on parallel trade. The firm also has some high-profile but confidential non-cartel conduct mandates in Europe, particularly for companies responding to statements of objections or appealing against European Commission decisions.

As one would expect of a top litigation firm, White & Case also represents its pharma clients in private US antitrust litigation regarding a host of products, with a major victory in the Doryx case in September 2016. The US Court of Appeals for the Third Circuit held that the relevant market was for all prescription acne medications – rather than only Doryx and generic versions thereof, as the plaintiff Mylan claimed – that the changes to Doryx did not constitute exclusionary conduct, and that even if they did, benefits such as improved safety outweighed any anticompetitive harm. Other drugmakers that White & Case defends in litigation include Boehringer Ingelheim, Pfizer and Upsher-Smith. Outside the pharmaceutical realm, White & Case represents Furukawa, Maruyasu and NTN in auto parts follow-on actions – the latter in UK proceedings in the Competition Appeal Tribunal. The firm acts for Toshiba in the lithiumion battery cell follow-on actions, which were denied class certification in April 2017, and in the cathode ray tube antitrust litigation.