Overview
Global businesses feel the growing impact of new competition laws and more sophisticated competition law enforcement around the world. Regardless of whether our clients’ critical competition issues concern developed or emerging jurisdictions — or several jurisdictions at once — Skadden provides timely, seamless assistance with their competition law challenges. Our Antitrust/Competition Group possesses the proven ability to pilot the most sophisticated international competition investigations, merger reviews and litigations through the complexities of this new and shifting framework. Given that today’s competition law enforcers increasingly coordinate, clients should expect the same from their counsel.
Chambers USA, Legal 500, Benchmark Litigation and U.S. News — Best Lawyers Best Law Firms recognize Skadden as one of the top-tier firms in the area of antitrust and competition. According to Bloomberg Law, Skadden had the highest number of representations in federal antitrust cases involving the 10 companies with the largest market capitalizations in the technology, pharmaceutical and financial services sectors from 2007-21, and The Deal awarded the Skadden team the 2021 Deal of the Year (Large Cap). According to Lex Machina, we were the most active defendants’ law firm in antitrust cases filed from 2018-20. Additionally, we rank among Global Competition Review’s Global Elite in the GCR 100, the publication’s guide to the world’s leading competition law practices.
Skadden is consistently recognized as having one of the leading antitrust/competition practices in the area of European Union and International Competition by Chambers Europe, Global Competition Review, IFLR1000 and The Legal 500. We were named Corporate Team of the Year and Competition or Antitrust Team of the Year at The Lawyer European Awards 2021, in addition to being recognized as one of Law360’s Competition Groups of the Year for 2020.
Our accomplishments on behalf of clients across industries include:
- obtaining timely clearance from antitrust merger control agencies around the globe, including in the U.S., the EU, the U.K., Japan, China, Australia, Brazil and South Africa, for highly complex mergers, acquisitions and joint ventures;
- the successful defense of major clients in treble-damage U.S. class action litigation, monopolization claims and other government and private U.S. civil disputes;
- guiding companies through U.S. grand jury investigations and EU and EU Member State administrative investigations and court procedures for claims including merger litigation, cartel, price-fixing, excessive pricing, dominance, parallel trade, geoblocking and vertical restraints issues;
- advising clients in connection with Federal Trade Commission (FTC) investigations and administrative proceedings;
- coordinating strategies in leniency applications and cartel investigations in parallel actions by authorities around the world;
- successfully completing commitment proceedings, avoiding any finding of antitrust infringement, and successful completing informal engagement with U.S., EU and EU Member State antitrust agencies, avoiding formal allegations being raised and leading to the closure of infringement proceedings; and
- establishing and maintaining global antitrust compliance programs, including audits, dawn raid training, in-house counsel workshops and in-person and online compliance training.
Our Antitrust/Competition Group draws on the resources of Skadden’s worldwide platform, which includes focused, integrated services in global mergers and acquisitions, government enforcement and white collar criminal investigations and litigation, trial-level and appellate litigation, and international arbitration. In the U.S., Skadden lawyers assist clients in hearings before the U.S. Congress and federal regulatory agencies, including those in health care, energy, transportation and communications as well as the Department of Defense. In the EU, our lawyers have capabilities in U.K., German and French competition laws.
Global Scope of Services
Skadden antitrust and competition attorneys plan and execute regulatory filings for mergers, acquisitions and joint ventures in jurisdictions around the globe by marshalling the resources of our worldwide network of offices and working closely with experienced local counsel. This well-developed practice is fundamental to our successful completion of the most complex cross-border transactions (including non-solicited acquisitions). When litigation connected to mergers and other transactions becomes unavoidable, Skadden’s Antitrust/Competition Group advises on disputes globally and in the U.S., managing cases before the federal courts and at the FTC, as well as in the EU General Court and Court of Justice.
Our services include:
- coordinating closely and continuously with clients and the M&A team to ensure that obtaining antitrust approvals is a primary objective of the overall transaction strategy;
- advising clients regarding the potential antitrust risks of proposed business combinations;
- helping clients structure transactions and draft transaction documents that address those risks; and
- obtaining timely antitrust approval from the Antitrust Division of the U.S. Department of Justice (DOJ), FTC, the European Commission, national authorities of the EU Member States, the Ministry of Commerce of the People’s Republic of China and other jurisdictions worldwide.
In the U.S., we handle all types of business combination matters before the DOJ, the FTC and U.S. state attorneys general, including:
- advising clients with respect to the requirements of and compliance with the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976;
- working proactively to minimize the time required for any investigation by the FTC, the DOJ or state attorneys general; and
- managing responses to DOJ and FTC requests for additional information, facilitating client compliance quickly, completely and cost effectively.
In the EU, the assistance we provide to clients in notifications to the European Commission includes:
- advising clients on strategic issues in obtaining European Commission approval for all types of transaction structures, consistent with the transactions’ timing demands;
- preparing the Form CO as efficiently as possible, in order to minimize the information-gathering burden for clients; and
- obtaining approval consistent with client expectations as to timing and result.
Skadden also has an extensive practice and proven track record of successfully navigating the most complex, in-depth Phase II proceedings.
In all transactions, we coordinate global notification and approval requirements, working with local Skadden offices and a global network of external counsel, selected exclusively for their antitrust merger control experience and capabilities in their home jurisdictions. Subject to the clients’ preferences, we take a highly centralized approach to rest-of-world notifications, minimizing the information-gathering burden on the client and avoiding redundant data requests and inconsistent use of antitrust merits arguments.
We also assist with the antitrust considerations applicable to due diligence review (information exchanges) and planning for pre- and post-closing integration of the combined companies’ global operations. Our advice regarding potential transaction structures is designed to minimize the demands and substantive risks of competition and foreign investment notifications.
In addition to mergers and acquisitions, we counsel clients regarding the unique challenges presented by the application of global antitrust and competition laws to potential joint ventures, minority investments and other strategic collaborations.
Related Regulatory Matters
A wide variety of businesses retain Skadden in connection with competition issues that arise in the context of regulatory matters. We handle the antitrust aspects of rulemaking proceedings and mergers and acquisitions that fall within the jurisdiction of agencies such as the Office of the Comptroller of the Currency, the Federal Reserve Board, the Securities and Exchange Commission, the U.S. Department of Transportation, the Federal Communications Commission, the Federal Energy Regulatory Commission and state insurance departments. In the EU, we regularly counsel clients on a variety of issues, including state aid and public procurement.
Skadden has an extensive practice defending clients in private litigation, as well as those accused of criminal violations of antitrust and competition laws. Attorneys across offices coordinate closely on multijurisdictional investigations and representing clients in all phases of grand jury matters, as well as in trials, sentencings and appeals.
We have extensive counseling, litigation and jury trial experience in a broad variety of civil and criminal disputes, including treble-damage class action litigation, monopolization claims, price-fixing allegations, Racketeer Influenced and Corrupt Organizations Act (RICO) claims and other matters.
A significant part of Skadden’s U.S. antitrust litigation experience includes a dedicated sports law practice. Our attorneys have served as lead trial counsel to a number of sports leagues, including the National Football League, the National Basketball Association, the National Hockey League, the National Collegiate Athletic Association, the PGA Tour and the Arena Football League, in a variety of litigations and dispute resolutions involving antitrust claims.
In the EU, a significant part of Skadden’s antitrust litigation experience includes proceedings before the European General Court against European Commission findings of antitrust infringements. We have represented companies in administrative proceedings before the commission and in the defense against civil claims arising from these findings.
We routinely advise clients on matters involving investigations before various government agencies. In the EU, we advise clients on Article 101 and Article 102 issues and defend clients against increasingly vigorous antitrust enforcement actions brought by the European Commission and, if necessary, in appeals of European Commission decisions concerning these issues to the European courts. We also assist clients with investigations by the DOJ and FTC into alleged violations of the Sherman and Clayton antitrust acts and Section 5 of the FTC Act.
In the context of growing coordination between global antitrust authorities in the field of cartel investigations, Skadden has built a sophisticated practice assisting clients in building integrated strategies to face such investigations. Parallel investigations by authorities in diverse jurisdictions such as the U.S., Canada, the EU, South Africa, South Korea, Japan and Australia require carefully conceived global strategies to address often important differences in antitrust procedural requirements and policy priorities, including:
- requirements for leniency applications;
- document production, confidentiality and privilege;
- jurisdictions with and without criminal sanctions for cartel behavior; and
- third-party access to evidence produced in other jurisdictions, both in litigation and administrative proceedings.
Our attorneys have been at the forefront of emerging trends and developments in the antitrust and competition arena and have been recognized for their leadership. Skadden was recently named The American Lawyer’s White Collar/Regulatory Litigation Department of the Year and the New York Law Journal’s 2021 Litigation Department of the Year, as well as several times as a finalist for The American Lawyer’s Litigation Department of the Year. In addition to Chambers Global and Chambers USA, numerous publications have named our group members to top antitrust lawyer lists, including Global Counsel, Global Competition Review, The Best Lawyers in America, The Legal 500 and Who’s Who Legal.
Our antitrust attorneys have authored hundreds of articles and publications on competition issues, including what is considered the leading treatise on HSR law, “Acquisitions Under the Hart-Scott- Rodino Antitrust Improvements Act, Third Edition”; the American Bar Association’s Premerger Notification Practice Manual; regular columns for the New York Law Journal; and frequent articles for the Antitrust Law Journal, the European Competition Law Review and the Global Competition Litigation Review. We often lecture before the Practising Law Institute, the College of Europe and other professional organizations, and our group hosts leadership seminars on developments in global competition law.
Experience
- ABB Ltd with the antitrust aspects of its:
- $7.8 billion sale of a 80.1% stake in its Power Grids division to Hitachi, Ltd; and
- $2.6 billion acquisition of the industrial solutions business of General Electric Company.
- Advantest Corporation with the CFIUS and antitrust aspects of its $185 million acquisition of the commercial semiconductor system level test business of Astronics Corporation.
- Anheuser-Busch Inbev with the antitrust aspects of its $321 million acquisition of the remaining stake in Craft Brew Alliance that it did not already own.
- CommScope Holding Company, Inc. with the antitrust aspects of its $7.4 billion acquisition of ARRIS International plc.
- Corning Inc. with the competition aspects of its $900 million acquisition of substantially all of the communication markets division of 3M Company.
- General Electric Company with the antitrust aspects of its $630 million sale of MRA Systems, LLC to Vision Technologies Aerospace Incorporated, a subsidiary of Singapore Technologies Engineering Ltd.
- Hewlett Packard Enterprise Company with the antitrust and national security aspects of its $1.3 billion acquisition of Cray Inc.
- L1 Retail with the antitrust aspects of its $1.8 billion acquisition of Holland & Barrett Retail Limited.
- Roper Technologies, Inc. and its subsidiary, Strata Decision Technology, with the antitrust aspects of Strata’s $365 million acquisition of Enterprise Performance Systems, Inc. from Allscripts Healthcare Solutions, Inc.
- Air Canada with the antitrust aspects of its $523 million combination agreement with Transat A.T. Inc.
- Axiata Group Berhad in its $30 billion proposed merger of equals with Telenor Group’s Asia-Pacific business, across 10 countries.
- BioCryst Pharmaceuticals, Inc. in connection with a campaign by Great Point Partners, LLC in opposition to BioCryst’s proposed merger with Idera Pharmaceuticals, Inc.
- Caesars Entertainment Corporation in its $17.3 billion acquisition by Eldorado Resorts, Inc.
- Centene Corporation in its $17.3 billion merger with WellCare Health Plans, Inc.
- Crescent Acquisition Corp. in its merger with F45 Training Holdings Inc. to create a publicly traded global fitness training and lifestyle brand.
- DuPont de Nemours, Inc. in the $45.4 billion merger of its Nutrition & Biosciences business with International Flavors & Fragrances Inc. This was a reverse Morris trust transaction.
- Exact Sciences Corporation in its $2.8 billion acquisition of Genomic Health, Inc.
- GS Acquisition Holdings Corp in its $5.3 billion acquisition of Vertiv Holdings LLC, a portfolio company of Platinum Equity Advisors, LLC. As a result of the merger, Vertiv became a publicly traded company.
- Renault SA in its proposed, but terminated, €32.6 billion merger with Fiat Chrysler Automobiles.
- Sprint Corporation as co-counsel with the regulatory aspects of its $59 billion merger with T-Mobile US, Inc.
- Vencore Holding Corp. in its merger via a reverse Morris trust transaction with KeyPoint Government Solutions, Inc. and the U.S. public sector business of DXC Technology Company to form a separate, publicly traded company.
- Versum Materials, Inc. with the antitrust aspects of its $6.4 billion acquisition by Merck KGaA.
- Willis Towers Watson in its $30 billion acquisition by Aon plc.
- Worldpay, Inc. in its $43 billion merger with Fidelity National Information Services, Inc.
- Xperi Corporation in its $3 billion merger with TiVo Corporation.
- American Express Company, Bank of America Corporation, JP Morgan Chase & Co. and Wells Fargo & Company in their formation of TruSight, an industry-wide technology platform to facilitate data collection, review and validation for third-party risk management.
- Coty Inc. in its strategic partnership with Kylie Cosmetics, including Coty’s $600 million acquisition of a 51% stake in the partnership.
- Intel Corporation in the antitrust aspects of its $4.2 billion joint venture with TPG Capital, L.P. to form an independent cybersecurity company called McAfee.
- Konecranes plc in its €147 million ($163 million) acquisition of the remaining 50% stake in its MHE-Demag (S) Pte. Ltd. joint venture from partner Jebsen & Jessen (GmbH & Co.) KG.
- Nokia Corporation in connection with the creation of a new Nokia Shanghai Bell joint venture with China Huaxin Post & Telecommunication Economy Development Center for the integration of Alcatel-Lucent Shanghai Bell Co., Ltd. and Nokia’s China business.
- Pfizer Inc. with the tax aspects of a joint venture combining its and GlaxoSmithKline plc’s consumer health care businesses.
- Energy Solutions in a trial defending the company against the U.S. Department of Justice’s (DOJ) lawsuit to block Energy Solutions’ proposed $367 million acquisition of Waste Control Specialists.
- Sabre Corporation in successfully blocking the DOJ’s challenge to the company’s proposed $360 million acquisition of FareLogix Inc.
- Sprint Corporation in successfully defending antitrust claims filed in the U.S. District Court for the Southern District of New York by the attorneys general of 14 states and the District of Columbia to block Sprint and T-Mobile’s proposed $59 billion merger.
- Veritas Capital and its portfolio company Verscend Technologies Inc. in successfully resolving a merger litigation involving 14(a) claims in connection with Verscend’s $4.9 billion acquisition of Cotiviti Holdings Inc.
- WABCO Holdings Inc. in a federal antitrust action filed by the DOJ relating to a required divestiture in connection with WABCO’s merger with ZF Friedrichshafen AG.
- Bausch & Lomb, Inc. in challenging a Utah statute that would prevent contact lens manufacturers from implementing unilateral pricing policies and setting a minimum retail price for their products.
- Citigroup Inc. in:
- an antitrust class action alleging that numerous primary dealer defendants colluded to manipulate the U.S. Department of the Treasury securities markets in violation of the Sherman Act and the Commodity Exchange Act;
- the dismissal of consolidated putative class actions alleging manipulation of the benchmark Volatility Index and associated products in violation of the Sherman Act, the Commodity Exchange Act and the Securities Exchange Act; and
- the dismissal of a lawsuit alleging a conspiracy between several major banks to restrain trade in the U.S. dollar-denominated market for supranational, sub-sovereign and agency (SSA) bonds in violation of Section 1 of the Sherman Act.
- Credit Acceptance Corp. in securing a Ninth Circuit affirmance of the district court’s grant of summary judgment dismissing all claims in an antitrust case brought by competitor Westlake Services, LLC seeking nearly $1 billion in damages after mandatory trebling under the antitrust laws.
- Dyson Ltd. in successfully challenging EU standards that unlawfully favored Dyson’s competitors resulting in the General Court annulling the regulation on the energy labelling of vacuum cleaners.
- Five New York City law schools (Cardozo, Columbia, Fordham, NYU and St. John’s) in securing a settlement of a New York state court litigation alleging tortious interference and fraud arising out of claims that the schools interfered with a bar examination preparation course provider’s ability to market its course to the school’s students.
- Glencore Xstrata and its affiliate Pacorini Metals USA (n/k/a Access World USA LLC) in:
- securing the dismissal of federally consolidated antitrust claims alleging a conspiracy to manipulate the supply of zinc to increase its price and monopolize a purported market for London Metal Exchange zinc warehousing services; and
- securing the dismissal of state and federal antitrust claims brought by several plaintiffs in a multidistrict litigation alleging that Pacorini Metals conspired to manipulate the supply of aluminum to increase its price.
- J.P. Morgan Chase & Co. in:
- securing a favorable verdict in a multidistrict litigation stemming from claims that MasterCard’s initial public offering unfairly affected competition and violated several antitrust regulations, including the Sherman and Clayton Antitrust acts;
- resolving an antitrust class action arising out of an alleged conspiracy to manipulate the market for bonds issued by government sponsored entities, such as Fannie Mae and Freddie Mac from 2009 through 2015; and
- resolving an antitrust class action alleging manipulation of foreign exchange benchmark rates, such as the WM/Reuters Closing Spot Rates.
- J.P. Morgan Chase & Co. and its affiliates in resolving an antitrust class action lawsuit in U.S. District Court for the District of Columbia alleging a conspiracy to fix the fees paid by consumers for access to automated teller machines.
- Nokia Corporation in the defense of a federal antitrust challenge brought by Apple against Nokia’s patent licensing program.
- Postmates Inc. in a putative class action alleging that Postmates’ contracts with restaurants violate Sections 1 and 2 of the Sherman Act by purportedly preventing restaurants from offering meals at lower prices to dine-in or delivery customers than the price available on the Postmates platform.
- SanDisk Corp. in securing a Federal Circuit appellate affirmance of a favorable district court summary judgment in a long-running antitrust class action accusing SanDisk of fraudulently obtaining two patents from the U.S. Patent and Trademark Office (PTO) and enforcing them in order to monopolize markets for flash memory chips and products. On appeal, the Federal Circuit agreed that the plaintiffs failed to provide sufficient evidence for a reasonable juror to find that SanDisk intended to deceive the PTO, and affirmed summary judgment for SanDisk on that basis alone.
- Teva Affiliates and Teva Holdco (fka Watson Pharmaceuticals) in the defense of putative class actions filed in the U.S. District Court for the Southern District of New York by purported classes of end payors for and direct purchasers of the pharmaceuticals ACTOS® and ACTO plus Met® against Takeda, the innovator, and several generic manufacturers, including Watson. Skadden previously represented Actavis, which owned Watson prior to Teva, and Watson in these matters:
- Actavis, Inc. in securing the denial of class certification in a class action brought by direct purchaser plaintiffs against the company alleging it conspired with Solvay Pharmaceuticals, Inc. to enter into an anticompetitive patent litigation settlement relating to the drug AndroGel in 2006;
- Watson Pharmaceuticals, Inc. and current and former affiliates in a $157 million settlement of a multidistrict litigation, centralized in the Northern District of California, relating to the pharmaceutical product Lidoderm; and
- Watson Laboratories, Inc. in securing the severance of antitrust claims brought by the Federal Trade Commission related to the pharmaceutical products Lidoderm® and Opana® ER.
- Vitol Inc. and Vitol S.A. in securing the Second Circuit affirmance of the dismissal of Commodity Exchange Act and antitrust claims in a multidistrict class action by a purported class of individuals alleging market manipulation and price fixing in the market for Brent crude oil. The U.S. Supreme Court later denied plaintiff’s petition for certiorari.
- Brooklyn Nets, LLC in a federal antitrust action and a related putative class action filed in the U.S. District Court for the Eastern District of New York in connection with the Nets’ termination of season ticket subscriptions.
- The NCAA in securing a Ninth Circuit affirmance of final approval of a $209 million settlement of the damages portion of the “grant-in-aid” class action antitrust lawsuit brought by NCAA Division I football and men’s and women’s basketball student-athletes.
- PGA TOUR Inc. in securing a Ninth Circuit affirmance of the dismissal with prejudice of a federal antitrust complaint brought by 168 caddies at the TOUR’s golf tournaments alleging that, by requiring caddies to wear bibs that often include the tournament sponsor’s corporate logo, the TOUR violated antitrust laws, the Lanham Act and the caddies’ rights of publicity.
- The National Basketball Association and Commissioner Adam Silver in securing the dismissal of an appeal of former Los Angeles Clippers owner Donald Sterling’s lawsuit challenging a fine and lifetime ban prohibiting his involvement in the business operations or management of the Clippers.
- The National Basketball Association and its 30 member teams (as lead counsel) in a declaratory class action lawsuit against the NBA Players Association and all NBA Players, filed in the U.S. District Court for the Southern District of New York in connection with the NBA’s lockout. The lawsuit sought to establish, among other things, that the NBA’s lockout was not a violation of federal antitrust laws and that if the Players Association decertified or disclaimed interest in its role as exclusive bargaining representative of NBA players, and that action were found to be valid under federal labor law, then all existing player contracts would become void and unenforceable. Skadden also served as lead counsel defending the NBA against two antitrust lawsuits brought by the NBA players challenging the NBA lockout. In December 2011, the NBPA and the NBA ratified a new collective bargaining agreement.
- The National Football League and all 32 National Football League clubs (collectively, the NFL) in securing a Second Circuit affirmance of the dismissal with prejudice of a complaint brought against the NFL by seven professional photographers who photographed NFL events.
- The National Hockey League in a declaratory judgment action in the U.S. District Court for the Southern District of New York against the NHL Players’ Association and various players who threatened to “disclaim interest” in order to bring antitrust claims against the league and its clubs.
- Barclays Capital Inc. in a favorable resolution of parallel investigations by the DOJ, SEC and Special Inspector General for the Troubled Asset Relief Program into Barclays’ secondary market trading of residential mortgage-backed securities.
- GE Aviation, as member of the CFM International joint venture, in the successful resolution of a complaint made to the European Commission (EC) accusing CFM of abuse of dominance, putting an end to a preliminary investigation by the EC into alleged anticompetitive contracts between airlines and CFM.
- Kuoni in resolving an investigation by the EU Commission into so-called geoblocking clauses that provided for different hotel accommodation conditions depending on the location or residence of the traveler.
- Thomas Cook plc in resolving an investigation by the EU Commission into geoblocking clauses that provided for different hotel accommodation conditions depending on the location or residence of the traveler.