Sullivan & Cromwell has a very diverse antitrust practice, successfully litigating private antitrust cases and government enforcement actions, as well as representing clients before competition law agencies around the world. The Firm has consistently been ranked among the world’s leading competition law firms by independent analysts and prominent legal publications.
- In 2011, for the 11th consecutive year, Chambers Global recognized S&C as one of the leading antitrust firms in the United States.
- Global Competition Review has consistently cited S&C as one of the leading competition law firms in the world, naming the Firm as a member of the GCR 100 in every issue since the publication’s inception in 1999.
- In each of its consecutive editions since 2003, Chambers USA has identified S&C among the leading antitrust firms in New York.
- PLC Which Lawyer? Yearbook has recommended S&C as a leading antitrust/competition firm in consecutive editions, from 2001 to the present.
- The Legal 500: United States has noted the view of clients that S&C’s antitrust practice offers “‘very responsive’ service that is ‘attentive to strategic needs.’”
- Euromoney’s Benchmark Litigation has ranked S&C in the top tier nationwide for antitrust in every year since its inception in 2008.
- In 2012, in its second edition, U.S. News - Best Lawyers Best Law Firms awarded S&C Tier 1 rankings Nationwide and in New York for both Antitrust Law and Litigation - Antitrust.
S&C takes a multidisciplinary approach to every matter, drawing on its deep antitrust experience and coupling that with the Firm’s leadership position in corporate, financial and transactional matters. The Firm has extensive experience representing clients from a variety of industry segments before competition authorities and courts in the U.S., the European Union and elsewhere. Importantly, S&C’s antitrust lawyers are capable of moving seamlessly from providing advice to handling litigation, including any necessary appeals, without changing the members of the team.
The Firm also has an enviable track record of securing U.S. antitrust clearances for domestic and cross-border mergers, acquisitions and dispositions in the face of heightened scrutiny of such transactions by U.S. antitrust enforcement authorities. S&C is active in the antitrust aspects of some of the largest M&A transactions every year.
S&C focuses on developing long-term client relationships. Thus, the Firm’s approach to antitrust advice emphasizes in-depth understanding of each client’s business. S&C antitrust lawyers provide advice relating to high-level business strategies, mergers (including any related litigation), antitrust investigations and threats of private litigation and, where appropriate, challenges to other companies’ anticompetitive practices. The complexities of our clients’ businesses are quickly mastered by S&C’s antitrust lawyers.
Significant Antitrust Matters
S&C represents many of the world’s leading business and financial enterprises in their most significant antitrust matters, including numerous representations and investigations that have never become public.
Antitrust Litigation and Investigations
Since 1991, the Firm has represented Microsoft in government investigations as well as in private antitrust litigation brought in numerous jurisdictions by competitors and classes of end-users of Microsoft software, obtaining dismissals on the merits of dozens of cases. The Firm also successfully resolved a major case for Microsoft following a three-month jury trial in Iowa, and has obtained six favorable rulings on related matters from the U.S. Court of Appeals for the Fourth Circuit.
In December 2011, following nine weeks of trial, the U.S. District Court for the District of Utah declared a mistrial in a long-running multi-billion dollar antitrust lawsuit brought by Novell against S&C client Microsoft, resulting in no recovery thus far for Novell. Novell’s sole remaining claim alleges that, in violation of Sections 1 and 2 of the Sherman Act, Microsoft engaged in anticompetitive conduct that delayed the development of Novell’s business productivity applications, WordPerfect and Quattro Pro, limited their compatibility with the Windows 95 operating system, and caused harm to competition in the PC operating system market. After the trial, which featured testimony from more than 20 witnesses, the jury deliberated for three days, but was deadlocked on liability issues and did not even reach the issue of damages. S&C earlier obtained the dismissal of Novell’s five other claims on motions to dismiss and for summary judgment.
S&C also has prevailed in court and before enforcement agencies on competition law-based challenges to the assertion of valuable intellectual property rights. For example, S&C obtained dismissal on summary judgment of a $1 billion antitrust claim brought against Philips Electronics relating to CD technology that included tying, monopolization and price-fixing allegations.
Other recent significant antitrust litigations and investigations handled by S&C include representation of:
- Barclays Capital in litigation, including a putative antitrust class action, brought in connection with the high-profile $5.3 billion leveraged buyout of Del Monte Foods Company by a group of private equity funds led by KKR.
- British Airways in the cleanup aspects of two global criminal antitrust investigations and in related multidistrict class action lawsuits pending in U.S. District Court for the Eastern District of New York involving allegations of price fixing of fuel surcharges with respect to cargo air services and passenger air services.
- Cablevision Systems Corporation in a consumer antitrust class action pending in federal court in California that challenges, as unreasonable restraints of trade in violation of Section 1 of the Sherman Act, the agreements between all major television programmers and cable and satellite companies on the ground that the agreements require the distributors to offer the programming to subscribers on tiers and do not allow consumers to choose individual channels on an “a la carte” basis.
- a European company in connection with a recently announced EC investigation into anticompetitive practices in the commercial vehicles sector. S&C also represents the company in a parallel inquiry by the U.K. Office of Fair Trading into the same practices.
- the Financial Accounting Standards Board (“FASB”) – the principal private sector organization for establishing financial accounting standards in the U.S. – and its governing body, the Financial Accounting Foundation (“FAF”), in an antitrust action brought by Silicon Economics, Inc. (“SEI”) relating to SEI’s patented method of financial accounting.
- Goldman Sachs in a number of antitrust matters, including in connection with: (i) a publicly reported investigation by the Antitrust Division of the U.S. Department of Justice into credit derivatives trading and (ii) a purported class action pending in Boston against several leading private equity firms alleging that they conspired to suppress the prices paid for companies being taken private in leveraged buyouts.
- JPMorgan Chase in more than forty putative class action lawsuits in federal court alleging a conspiracy to manipulate the silver futures market in violation of the Sherman Act and the Commodity Exchange Act.
- Microsoft in an application to annul a $1.3 billion fine imposed by the European Commission for Microsoft’s alleged failure to comply with certain provisions of the decision issued by the European Commission in March 2004. The application was filed with the General Court of the European Union in Luxembourg on May 9, 2008; an oral hearing before a three-judge panel was held in May 2011.
- Moody’s before several state attorneys general on rating practice inquiries – some by individual offices, others coordinated multi-state efforts – including publicly announced investigations conducted by New York, California, Connecticut and Ohio.
- MPEG LA in Sherman Act litigation brought in federal court in California by a licensee.
- Philips Electronics in class action antitrust Multidistrict Litigation pending in the Northern District of California and in related worldwide governmental investigations in connection with the sale of thin film transistor liquid crystal display (“TFT-LCD”) panels.
- Technicolor in a global criminal antitrust investigation, conducted by both the DOJ and the European Commission, for alleged price-fixing and other anticompetitive conduct in the cathode-ray tube business.
- VeriFone Systems, Inc. in its successful acquisition of Hypercom Corporation, including litigation brought by the target, intense scrutiny by antitrust and competition law authorities, and ultimately, a civil antitrust action brought by the U.S. Department of Justice that sought to enjoin the acquisition, all of which were resolved successfully for VeriFone.
- Wachovia Bank, N.A. in connection with the high-profile investigations by the Antitrust Division of the DOJ, the SEC, bank regulators and a consortium of state attorneys general into industry-wide bid-rigging in connection with the awarding of guaranteed investment contracts in the multibillion dollar municipal bond derivatives market. S&C also represents Wachovia in related class action antitrust litigation pending in the U.S. District Court for the Southern District of New York brought by several municipalities and other plaintiffs against over thirty financial institutions and brokerages.
The Firm has obtained clearances for numerous mergers from U.S. and European antitrust authorities. Recent examples include advising:
- Alcon, Inc. (Switzerland) in connection with the purchase by Novartis AG (Switzerland) of a 52% interest in Alcon held by Nestlé S.A. (completed August 2010), and Novartis’s subsequent acquisition of the 23% of Alcon shares held by the public (completed April 2011).
- Bank of Montreal (Canada) in its well-publicized $4.1 billion acquisition (completed July 2011) of Marshall & Ilsley Corporation (U.S.) and its overlapping Midwestern banking business.
- Barclays PLC (U.K.) in the sale of HomEq Servicing, its U.S. mortgage servicing business, to Ocwen Financial Corp. (U.S.) for approximately $1.3 billion (completed September 2010).
- British Airways PLC (U.K.) on obtaining U.S. antitrust approvals for both (i) a three-way, metal-neutral joint venture between BA, Iberia (Spain) and American Airlines (U.S.) covering their transatlantic businesses; and (ii) the subsequent $9 billion merger of BA and Iberia (completed January 2011), one of the largest deals in aviation history, according to Time.com.
- CPTN Holding (U.S.), a consortium of technology companies organized by client Microsoft Corp., on both the formation of an LLC with Apple, EMC and Oracle, and CPTN’s subsequent $450 million purchase (completed May 2011) of approximately 882 patents and patent applications from Novell, Inc. (U.S.) and a subsidiary of Attachmate Corp. (U.S.).
- First Niagara Financial Group, Inc. (U.S.) in its $1.5 billion combination (completed April 2011) with NewAlliance BancShares, Inc. (U.S.), creating a top-25 U.S. bank with more than $29 billion in assets and $18 billion in deposits.
- Gildan Activewear Inc. (U.S.) in its $350 million acquisition (completed April 2011) of Gold Toe Moretz Holdings Corp. (U.S.).
- Goldman Sachs through its principal investment area, Goldman Sachs PIA (U.S.), in its €1.2 billion acquisition (completed October 2010) with TPG Capital (U.S.) of Ontex (Belgium) from Candover Investments.
- Harris Corporation (U.S.) in its $397.5 million acquisition (completed April 2011) of Schlumberger Limited’s Global Connectivity Services business (U.K.), which provides satellite communications services to remote locations, including oil rigs and cruise ships. The transaction involved global merger clearance activity in Norway, Brazil and other locations, and immediately follows Harris’s $525 million acquisition (completed July 2010) of CapRock Communications (U.S.) from Abry Partners LLC (U.S.) – a transaction on which S&C also advised.
- Kinetic Concepts, Inc. (U.S.) on backup U.S. and E.U. antitrust advice in connection with its $6.3 billion acquisition (completed November 2011) by a consortium comprising funds advised by Apax Partners (U.K.), together with controlled affiliates of Canada Pension Plan Investment Board and the Public Sector Pension Investment Board (Canada).
- Pharmasset, Inc. (U.S.) in its $11 billion acquisition (completed January 2012) by Gilead Sciences, Inc. (U.S.)
- Rio Tinto in the divestment of its Alcan Global Packaging business in three separate transactions comprising: the $2.03 billion sale of its Global Pharmaceuticals, Global Tobacco, Food Europe and Food Asia businesses to Amcor (completed July 2010); the $1.2 billion sale of its Food Americas packaging business to Bemis (completed March 2010); and the sale of Alcan Beauty Packaging to Sun Capital Partners (completed July 2010).
- R.R. Donnelley & Sons Company (U.S.) in its $481 million acquisition (completed November 2010) of Bowne & Co., Inc. (U.S.).
- Skype Global S.à. r.l. (Luxembourg) and Silver Lake Partners (U.S.) in the $8.5 billion acquisition (completed October 2011) of Skype by Microsoft Corporation (U.S.) from a Silver Lake-led investor group.
- Trafigura Beheer B.V. on antirust and competition aspects of its pre-acquisition agreement with Iberian Minerals Corp. pursuant to which Trafigura agreed to make an all-cash offer (C$1.10 per share) for the outstanding registered shares of Iberian that it did not already own.
- VeriFone in its $485 million acquisition (completed August 2011) of Hypercom Corp.
- World Color Press Inc. (Canada) in its $1.4 billion acquisition (completed July 2010) by Quad/Graphics, Inc. (U.S.). Through presentations to the FTC, World Color Press avoided a Second Request on this combination of the second- and third-largest printers of magazines and catalogues.
Other notable transactions on which S&C’s antitrust lawyers have worked include:
- AmSouth Bancorporation in its $10 billion merger with Regions Financial
- Archipelago in its $10.5 billion merger with the New York Stock Exchange
- The Bank of New York, Inc. in its $16.5 billion merger with Mellon Financial Corporation
- Endesa in the $58.4 billion tender offer by Enel and Acciona, as well as the prior unsolicited tender offers by E.ON and Gas Natural SDG
- InBev in its $60.8 billion acquisition of Anheuser-Busch as well as in its sale of Rolling Rock and its U.S. Import Agreement with Anheuser-Busch
Over the last several years, S&C has also handled important antitrust-related matters for AIG, AkzoNobel, AmSouth Bancorporation, The Bank of New York, Barclays, Billabong, British Airways, British Petroleum, CA, Cablevision, Condé Nast Publications, Diageo, Eisai, EnCana, Endesa, Fiserv, Goldman Sachs, Hilton Hotels, InBev, J.C. Flowers & Co., JPMorgan Chase, KarstadtQuelle, Kodak, Koninklijke Philips Electronics, Manuli Rubber Industries, Markem, Microsoft, Moody’s, Morgan Crucible, R.R. Donnelley & Sons, Rio Tinto, Rolls-Royce, Solvay, Technicolor, Tenaris, Ternium, UnitedHealth Group, VeriFone Holdings, Wachovia and World Color Press.
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