Crowell & Moring's Antitrust Group: Sophisticated ... strategies for successful outcomes ... 101:10...

aaaantitntitrntitntitrt usustt

sophisticated strategies for successful outcomes

Antitrust_CM brochure2_cc.indd 1Antitrust_CM brochure2_cc.indd 1 4/5/11 1:10 PM4/5/11 1:10 PM

From the largest transactions to the most complex litigation, from

practical counseling to antitrust risk management, our antitrust lawyers

offer unparalleled quality and client service. We invest in understanding

your goals, your business, your industry, and your risk tolerances.

Chambers USA recognizes Crowell & Moring’s Antitrust Group as a

leading antitrust practice in Washington, DC. It quoted one client as

saying: “What we look for in outside counsel is intelligence, fl exibility,

and the ability to quickly grasp problems and issues and provide timely

alternatives and solutions with value –– this team has it all.”

we understand

Crowell & Moring’s Antitrust Group

Antitrust_CM brochure2_cc.indd 2Antitrust_CM brochure2_cc.indd 2 4/13/11 7:40 AM4/13/11 7:40 AM

World-class and worldwide

Crowell & Moring’s Antitrust Group covers the full range of substantive antitrust

and trade regulation issues, including:

• Full-service merger and acquisition representation

• Defense of civil litigation and government investigations

• Pursuit of damages in recovery actions through both opt-out litigation

and claims management

• Criminal grand jury investigations and trials

• Pragmatic counseling to manage antitrust risks, including conducting audits

and sophisticated compliance training

• Trade association representation

We are known by the company we keep. Our long-standing client relationships include:

• Alcoa • AT&T• DuPont • CSX• Nestlé S.A. • Reed Elsevier• UnitedHealth Group • United Technologies• Yamaha Corporation of America


Our current and recent engagements include:

• Representing AT&T in the highly visible iPhones class action litigation

• Recovering hundreds of millions of dollars for clients in the DRAM industry

• Counseling UTC through its $1.8 billion acquisition of GE Security

• Defending Johnson & Johnson before the California Supreme Court

• Prosecuting recovery claims for AT&T, Motorola, Target, Sears, and others as liaison counsel for all direct action plaintiffs in the LCD (TFT) Flat Panel Antitrust MDL

• Persuading the Department of Justice to dismiss an investigation against our client, an agricultural cooperative, with no adverse action

We have also defended many non-public investigations (civil and criminal) before the FTC and the DOJ and have advocated seeking enforcement actions against our clients’ suppliers or competitors.

We represent leading, global companies in virtually every industry, from chemicals and health care to aerospace and telecommunications. Our clients range from large multinational companies where we partner with sophisticated in-house legal departments to technology companies where we deal directly with the business team.

Our strengths lie in our unparalleled quality, speed of response, and deep understanding of the strategic role of antitrust counsel in business. Our creative value-based billing arrangements ensure that you receive excellent service, exceptional results, and outstanding value.

With 50 lawyers in fi ve U.S. offi ces, London, and Brussels, our team has a broad range of experience at the Department of Justice, the Federal Trade Commission, and the U.K. Offi ce of Fair Trading and Competition Commission.


Crowell & Moring has successfully handled the antitrust clearance of some of the largest and most complex transactions in recent history. We pride ourselves on guiding clients through favorable reviews of their most important strategic transactions.

While many fi rms would consider handling only one second request per year to be an active practice, over the past fi ve years, Crowell & Moring has successfully handled 14 second request investigations, and the deal closed all 14 times. In many other instances, we were able to avoid the issuance of a second request altogether.

A unique approach

Our strategy is to invest in developing an expertise in our clients’ businesses as the basis for long-standing client relationships. That knowledge helps us to identify which transactions are likely to attract signifi cant scrutiny, and to prepare you to manage the merger review process, rather than be managed by it. Where appropriate, we begin the advocacy process in advance, positioning your company to respond quickly to initial requests for documents and information, and ultimately to avoid delays to the transaction’s consummation. We have deep experience working with the antitrust and competition agencies and, where necessary, we are prepared to litigate a government challenge.

Mergers & Acquisitions


We represent clients in all sectors of the economy, including telecommunications, chemicals, health care, energy, media, agriculture, fi nance, waste disposal, consumer goods, and many others. We provide regular M&A representation to sophisticated multinational clients, for example:

• AT&T – $86 billion acquisition of BellSouth

• SBC Communications and Cingular Wireless – $41 billion acquisition of AT&T Wireless (the largest all-cash transaction in U.S. history)

• DuPont – $6.3 billion acquisition of Danisco

• Rio Tinto – divestiture of U.S. coal assets

• Reed Elsevier – $4.1 billion acquisition of ChoicePoint

• DuPont – $4.4 billion divestiture of the Invista fi bers business to Koch Industries and its acquisition of MECS from American Capital

• Metsäliitto Group – divestiture of M-real Corporation

• United Technologies – $1.8 billion acquisition of the GE Security business and its $2.8 billion acquisition of Kidde plc

• Sierra Health Services – $2.6 billion acquisition by UnitedHealth Group

We also have extensive experience handling transactions involving aerospace, defense, intelligence, and other government contractors. These transactions often raise particular substantive and procedural issues, and require coordination between DOJ/FTC and DOD, NASA or other government agencies, including CFIUS. Our track record includes representing UTC/Pratt & Whitney in its acquisition of Boeing’s Rocketdyne liquid space propulsion business, as well as multiple intelligence industry transactions.

Mergers & Acquisitions


Joint Ventures & Teaming Agreements

Our practice also includes counseling with respect to the formation and operation of joint ventures, teaming arrangements, and other competitor collaborations. Unlike mergers and acquisitions, these transactions raise the additional issues of ongoing relationships between existing competitors. Our attorneys analyze potential joint ventures and work with clients to accomplish their business goals while managing the antitrust risk. Examples of our representations include:

• Pratt & Whitney – formation of aeroengine joint ventures with General Electric and Rolls Royce

• Alcoa – formation of its purchasing joint venture, Evermore Recycling

• DuPont – formation of its biotech trait and genetics licensing joint venture, Greenleaf Genetics, with Syngenta

• Bank of America, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Merrill Lynch, and UBS – formation of trading platform ICE U.S. Trust

• Sikorsky – teaming arrangement with Lockheed Martin to support helicopters for the U.S. Navy

Multi-Jurisdictional Transactions

Crowell & Moring has signifi cant expertise in assessing international merger control and competition fi ling requirements. We work closely with a strong network of local counsel to coordinate and manage competition fi lings and clear transactions around the world. In the recent past, we have successfully handled transactions that required fi lings in Brazil, Canada, China, Germany, Italy, Korea, Russia, South Africa, Turkey, Taiwan, and several other jurisdictions.


We are widely recognized as having one of the preeminent antitrust litigation practices in the U.S. Our lawyers handle a broad spectrum of antitrust matters and regularly litigate issues involving the complex interface of antitrust and IPissues in federal and state courts. Our experienced antitrust litigators have achieved signifi cant victories for clients, both defending claims and pursuing recovery opportunities. We have litigated claims brought under the Sherman Act §§ 1 and 2, the Walker Process doctrine, the Clayton Act, the Robinson-Patman Act, the Lanham Act, California’s Cartwright Act and Unfair Competition Law, and a host of other state antitrust and unfair competition laws.

In addition to handling traditional antitrust defense matters, we also pursue opportunities for clients to recover damages or other value when they are the victims of antitrust violations. We provide sophisticated recovery alternatives to class actions through opt-out litigation. We take a balanced, tailored approach that demonstrates resolve and commitment, while recognizing the importance of maintaining relationships with actual or potential suppliers. We have recovered hundreds of millions of dollars for clients that they would not have received if they had pursued the traditional class action approach.

Recent representative engagements include:

• Defense of AT&T in In re Apple & AT&T Mobility iPhone Antitrust Litigation

• Recovery of more than $200 million for clients in litigation claiming price-fi xing and cartel activity in the DRAM industry

• Defense of CSX in defense of price-fi xing claims in In re Rail Fuel Surcharge Litigation

• Defense of Yamaha Corporation of America in In re Musical Instruments and Equipment Antitrust Litigation

• Recovery of $90 million for clients from attempts to monopolize the copper market

• Representation of AT&T, Motorola, Target, Sears, CompUSA, and Radio Shack in opt-out recovery action against various manufacturers of LCDs

• Defense of DuPont in an antitrust counterclaim in trade secrets litigation and in class actions claiming price-fi xing for titanium dioxide

• Defense of Daybreak Foods, Inc. against claims that it participated in a conspiracy to fi x egg prices through its involvement in the activities of an agricultural cooperative

Civil Antitrust Litigation


Whether it’s grand jury investigations, amnesty applications, extradition proceedings, or litigating against the government, our team has the experience to navigate clients through all phases of civil or criminal antitrust investigations, or criminal antitrust litigation.

Our team handles the full range of investigations, including matters involving the Department of Justice, Federal Trade Commission, and state attorneys general. We have defended companies and their employees against government allegations of price-fi xing, bid rigging, market allocation, customer allocation, and related issues of fraud and corruption. Our representations often extend to dealing with competition authorities around the globe, including Europe, Canada, and Asia.

We have a track record of successful outcomes, including, in a substantial number of instances, convincing the DOJ to close investigations with no action taken against our clients – even when the DOJ had amnesty applicants in the same cartel. Representative engagements include:

• Negotiating a leniency petition for a corporate client in a global cartel investigation, despite evidence of obstruction of justice by a senior executive and a subordinate

• Negotiating a favorable plea resolution in a major global price-fi xing investigation by persuading the DOJ staff that certain conduct constituted a separate conspiracy and was therefore beyond the statute of limitations

• Negotiating an amnesty agreement with DOJ, whereby the client company and its employees avoided criminal charges associated with a price-fi xing conspiracy that resulted in indictments and convictions of other participants

• Persuading senior DOJ offi cials to overrule the staff recommendation to indict our corporate client for price-fi xing, despite evidence from a competitor with amnesty

g

Government Investigations & Criminal Antitrust Defense


Crowell & Moring’s antitrust professionals regularly counsel high-profi le clients on antitrust compliance issues, not only in conjunction with ongoing transactional or litigation work, but as a long-term relationship – collaborating with you on the day-to-day running of your businesses.

Our philosophy is grounded in business reality. We help you to be responsive to your stakeholders and accomplish your business goals while minimizing – and managing – antitrust risk. We specialize in sophisticated advice that’s grounded in the most up-to-date knowledge of the law, no matter how quickly it changes. This pragmatic advice focuses on solving business challenges and strengthening your competitive position.

Additionally, with antitrust enforcement activity on the rise, companies must be more judicious than ever in providing meaningful compliance training to executives and other key decision-makers. We offer tailored antitrust compliance training programs for executives, business and sales teams, and your legal department. We can also conduct audits to ensure compliance and to augment your practices and policies as needed.

high-profi le clients long-term relationships

Antitrust Counseling


Our team counsels and litigates at the cutting edge of distribution law, designing distribution structures and agreements as well as Minimum Advertised and Minimum Resale Price Policies. We also counsel clients in all aspects of distribution, price and non-price resale restrictions, and Robinson-Patman Act compliance. Recent examples include successfully defending an FTC investigation involving minimum advertised prices and representing Yamaha Corporation of America in class action litigation fi led as a follow-on to the FTC’s settlement with an industry trade association.

We work closely with you to develop and support sophisticated “go-to-market” strategies, which may involve complex channel management programs. Our experience in dual distribution settings carries over to our aftermarkets practice as well, where we work with you to protect your substantial investments in customer service, technical support, and intellectual property. When litigation or complaints arise, we frame the legal issues to your advantage and defend your aftermarket policies.

Distribution Law, Aftermarkets, and Channel Strategy


Our extensive legal experience with technology-driven issues includes the overlap among technology, intellectual property, and competition laws across the United States, Europe, and other international arenas. We are outside antitrust counsel to Via Licensing, the nation’s leading administrator of standards-based joint licensing programs, and counsel to the Open Patent Alliance, which was formed to accelerate the widespread adoption and deployment of WiMAX technology and products. We routinely counsel major corporate clients on issues of bilateral patent licensing and competitor collaborations involving IP, in the context of multi-lateral licensing, standards setting, and patent pools. In addition, we counsel clients and litigate antitrust and IP claims in federal courts, with respect to issues such as Walker Process fraud on the United States Patent and Trademark Offi ce and sham litigation challenges to Noerr-Pennington protection.

We have many years of hands-on experience with specifi c legal and business issues raised by the acquisition, licensing, and limitations on the use of IP rights. In an area where the law is made through formal and informal guidance (rather than litigated cases), our team has a deep understanding of IP and the technical issues that need to be included in the legal analysis.

Antitrust and Intellectual Property


The European competition law practice extends Crowell & Moring’s incomparable levels of quality and client service – and includes mergers, litigation, IP/antitrust, cartel and abuse of dominance investigations, counseling, and sector inquiries. Based in Brussels and London, we offer a wealth of experience before the European Commission, the EU Courts, and a range of national courts and regulators. Our broad client base of leading European and U.S. multinationals relies on us for fi rst-class European competition law advice and seamless integration with our U.S. antitrust practice.

Mergers. We have represented clients in second stage proceedings and participated in some of the most signifi cant transactions reviewed under the EU Merger Regulation. We have represented merging companies and third-party interveners. We have managed challenges in simultaneous clearance procedure before the European Commission and the U.S. Department of Justice/Federal Trade Commission, as well as most other merger control authorities across the globe. At the EU level, we have obtained clearances for transactions in industries such as telecommunications, pharmaceuticals, crop protection, automobiles, industrial components, and the Internet.

Litigation. Our practice encompasses both traditional defense litigation and cutting-edge recovery. We are regularly involved in litigation before the EU courts in Luxemburg and in competition law-related litigation at the national level. We have also developed one of the leading recovery practices in Europe, representing large industrial clients that want to recover damages and other value from cartelists. Our innovative solutions allow clients to maximize recovery while limiting upfront costs and minimizing risks.

European Competition Law


Antitrust and IP. We routinely advise clients (including a number of leading patent pools and undertakings with business-critical IP) on a range of IP/antitrust issues such as standard setting, licensing, and R&D arrangements.

Cartel investigations. We have represented clients in international investigations before the European Commission and the U.S. Department of Justice, and in national investigations before various authorities in Europe.

Abuse of dominance investigations. We have represented companies in investigations before the European Commission and in national investigations. Our extensive experience includes defending clients in administrative fi ne procedures, as well as bringing formal complaints.

Counseling. We offer business-focused advice on complex issues and “hot topics.” This includes routinely counseling companies with strong market positions across the range of their activities to avoid abuse of dominance issues and advising them on complex areas such as the treatment of aftermarkets and information exchange. We regularly provide advice on joint ventures and other agreements between competitors – and we deliver custom-made interactive compliance programs and training.

Sector inquiries. We advise clients involved in sector inquiries and other industry investigations, including the recent EU Pharmaceuticals sector inquiry and the UK market investigation into insolvency practices.


American Iron and Steel Institute

Alcoa Inc.

Avaya Inc.

AT&T Inc.

Committee of Chief Risk Offi cers

Coventry Health Care, Inc.

CSX Corporation

Daybreak Foods, Inc.

E. I. du Pont de Nemours and Company

Humana, Inc.

Motorola Mobility, Inc.

National Council of Farmer Cooperatives

Nestlé S.A.

Open Patent Alliance

Potandon Produce L.L.C.

Rambus, Inc.

Reed Elsevier Group PLC

Rio Tinto Group

United Technologies Corporation

UnitedHealth Group Incorporated

Yamaha Corporation of America

ep ese a e antitrust clients


Crowell & Moring's Antitrust Group: Sophisticated ... strategies for successful outcomes ... 101:10...

Documents

Transcript of Crowell & Moring's Antitrust Group: Sophisticated ... strategies for successful outcomes ... 101:10...