Antitrust and Competition
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, Arps, Slate, Meagher & Flom LLP and affiliates (“Skadden”) provides timely, seamless assistance with their competition law challenges. Our Antitrust and Competition Group possesses the unique and 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.
Skadden was selected by The American Lawyer as a finalist in its 2014 Litigation Department of the Year issue and named among Law360’s Competition Groups of 2013. We were named the Antitrust Firm of the Year at the 2013 Benchmark Litigation Annual Awards. In 2012, the Financial Times ranked Skadden second in the country in its “US Innovative Lawyers” report, in which we were recognized for our representation of Sprint in successfully opposing AT&T’s acquisition of T-Mobile, and Express Scripts in securing antitrust clearance in its acquisition of Medco. Chambers USA, Legal 500 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. In addition, 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.
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, Japan and China, 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 cartel, price-fixing, dominance, parallel trade and vertical restraints issues;
- advising clients in connection with FTC investigations and administrative proceedings;
- coordinating strategies in leniency applications and cartel investigations in parallel actions by authorities around the world; and
- establishing and maintaining global antitrust compliance programs, including audits, dawn raid training, in-house counsel workshops and in-person and online compliance training.
To best assist clients, our Antitrust and 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.
Mergers, Acquisitions and Joint Ventures
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).
Our services include:
- coordinating closely and continuously with clients and the M&A team to ensure that obtaining 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), the Federal Trade Commission (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.
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 connection with regulatory matters. We handle the antitrust aspects of rule-making 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.
When litigation connected to mergers and other transactions becomes unavoidable, Skadden’s Antitrust and 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.
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 PGA Tour and the Arena Football League, in a variety of litigations and dispute resolutions involving antitrust claims.
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 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 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.
Skadden’s practice also includes counseling and regulatory advice in the U.S. and EU on matters including review of distribution agreements, intellectual property licenses (e.g., patents, know-how, trademarks and copyrights) and other strategic arrangements. We also help clients design, implement and monitor global antitrust audit and compliance programs. Our services in this area include preparing the program; educating client personnel via in-person and interactive teleconference presentations; and conducting audits (surprise or announced) in consultation with clients' internal counsel.
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. 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, Legal 500 and Who's Who Legal.
Our 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. We often lecture before the Practising Law Institute and other professional organizations, and our group hosts leadership seminars on developments in global competition law.
- 21st Century Fox, Inc. in its proposed, but terminated, $80 billion acquisition of Time Warner Inc.
- ACCO Brands Corporation in its $860 million merger with MeadWestvaco Corporation’s Consumer & Office Products business.
- Actavis, Inc. with the antitrust aspects of its $8.5 billion acquisition of Warner Chilcott plc (Ireland).
- Actavis plc (Ireland) with the antitrust aspects of its $28 billion acquisition of Forest Laboratories Inc. As part of this transaction, Actavis and Forest agreed to sell or relinquish their rights to four generic pharmaceuticals that treat hypertension, angina and cirrhosis, and prevent seizures.
- Advantest Corporation (Japan) in an approximately $1.1 billion acquisition of Verigy Ltd. (Singapore). Both companies offer automatic test equipment for semiconductor manufacturers.
- Alfa-Access-Renova (AAR) in the $56 billion sale of TNK-BP, a joint venture between AAR and BP plc (United Kingdom), to Rosneft Oil Company (Russia). This was the largest M&A transaction in the world in 2012.
- the unsecured creditors’ committee of AMR Corporation, the parent company of American Airlines Inc., in the company’s $11 billion merger with US Airways Group, Inc. as part of AMR’s Chapter 11 reorganization. Skadden also represented the companies in the DOJ’s lawsuit to block the merger.
- Amylin Pharmaceuticals, Inc. in its $7 billion acquisition by Bristol-Myers Squibb Company. The Daily Journal named this transaction one of the top 10 California M&A deals by value announced in 2012.
- Anheuser-Busch InBev in its $20.1 billion acquisition of the remaining stake of Grupo Modelo, S.A.B. de C.V. that it didn’t already own.
- Anixter International Inc. in its $420 million acquisition of Tri-Ed Distribution, Inc. from Audax Group, Inc.
- Archer Daniels Midland Company in its $3.1 billion acquisition of WILD Flavors GmbH (Switzerland).
- Arthur T. Demoulas in an agreement under which Arthur T. Demoulas and other the Class B shareholders will acquire the 50.5 percent ownership interest of Market Basket currently owned by the Class A shareholders. Arthur T. Demoulas will return to Market Basket with day-to-day operational authority of the company.
ASML (the Netherlands), the world’s leading producer of equipment for computer chip manufacture, in its:
- $2.5 billion acquisition of Cymer (US), including clearances in Korea, Japan, the U.S, and other jurisdictions; and
- $5.2 billion sale of a 23 percent stake to various customers, including Taiwan Semiconductor Manufacturing Company, Ltd. and Intel Corporation.
- Bally Technologies, Inc. in its $5.1 billion acquisition by Scientific Games Corporation.
- Banco BTG Pactual S.A. (Brazil) in its acquisition of Ariel Re (Holdings) Limited (Bermuda) from Global Atlantic Financial Group (Bermuda).
- Becker Underwood, Inc., a producer of non-pesticide agricultural products, in its $1 billion acquisition by BASF (Germany), a chemical company.
BlackRock, Inc. in:
- securing early termination from the FTC and unconditional Phase I clearance from the European Commission in connection with its approximately $20 billion acquisition of Barclays Global Investors from Barclays Bank PLC. Skadden also represented BlackRock in connection with all other competition filings required in connection with this transaction, including in Canada, Mexico, Brazil and Japan;
- its acquisition of Macquarie’s real estate business, MGPA (Bermuda); and
- its proposed acquisition of Credit Suisse’s ETF division.
- in connection with a number of U.S. and international acquisitions of semiconductor companies, including Provigent Inc. (Israel), Beceem Communications Inc., and Teknovus Inc.; and
- in its approximately $3.7 billion acquisition of NetLogic Microsystems, Inc.
- Brookdale Senior Living Inc. (a portfolio company of Fortress Investment Group LLC) in its $2.8 billion merger with Emeritus Corporation.
- Bureau of National Affairs, Inc. in connection with the antitrust aspects of its $990 million acquisition by Bloomberg Inc.
- Carl Zeiss AG, an international leader in optics and optoelectronics, in its acquisition of Xradia, Inc.
- Cementos Argos (Colombia) in its $720 million acquisition of the Florida cement and concrete businesses of Vulcan Materials Company.
- Centennial Communications Corp. in connection with the antitrust review of AT&T Inc.’s $2.8 billion acquisition of Centennial. To resolve the investigation conducted by the DOJ, the FCC and the Office of the Attorney General of Louisiana, AT&T agreed to divest operations in eight service areas in Louisiana and Mississippi, and to honor agreements for roaming on Centennial’s network.
- Cephalon, Inc. in its $6.8 billion acquisition by Teva Pharmaceutical Industries Limited (Israel).
CF Industries Holdings, Inc.:
- throughout a three-way, 14-month battle that reshaped the North American fertilizer sector. The contest began in January 2009 when CF Industries launched an unsolicited tender offer for Terra Industries. In the next month, Agrium Inc. launched a separate unsolicited tender offer for CF Industries. When the dust settled, Skadden’s antitrust team won clearance without conditions for CF Industries’ combination with Terra from both U.S. and Canadian authorities. CF Industries and Terra ultimately entered into a negotiated agreement and completed the transaction in April 2010. The combined company is the world’s second-largest nitrogen fertilizer producer, and the transaction had a total value of approximately $4.7 billion;
- in its $910 million acquisition of a stake in Canadian Fertilizers Limited, owned by Viterra, Inc.; and
- in the $1.4 billion sale of its phosphate mining and manufacturing business to The Mosaic Company.
- Chevron Corporation in its $4.3 billion acquisition of Atlas Energy, Inc., a natural gas developer and producer.
- China National Bluestar (Group) Corporation, a chemical manufacturer, in its $2 billion acquisition of Norway-based silicon producer Elkem AS from Orkla ASA, also of Norway. We also advised Bluestar on the Russian antitrust filing for the transaction. This transaction was named 2011 “Deal of the Year” by China Business Law Journal.
- China XD Electric Co., Ltd. in its joint venture with the digital energy business of General Electric Company to deliver a full line of electric transmission and distribution and grid automation services. As part of the joint venture GE will acquire a 15 percent equity stake in XD Electric for $535 million.
- Chocoladefabriken Lindt & Spruengli AG (Switzerland) in its acquisition of Russell Stover Candies, Inc.
- Classified Ventures, LLC in its $585 million sale of Apartments.com, LLC to CoStar Group Inc.
- Classified Ventures, LLC and its selling members in connection with Classified Ventures’ $1.8 billion acquisition by Gannett Co., Inc.
CME Group Inc. in:
- its $820 million acquisition of GFI Group Inc. and related $165 million sale of GFI’s interdealer broker business to a group formed by management of GFI;
- its $11.8 billion acquisition of Chicago Board of Trade;
- its $9.3 billion acquisition of NYMEX; and
- its $126 million acquisition of the Kansas City Board of Trade.
- Cobham plc (United Kingdom) in its $1.5 billion acquisition of Aeroflex Holding Corp.
- Compuware Corporation in its $2.5 billion acquisition by Thomas Bravo LLC.
- Corning Inc. with the antitrust aspects of its acquisition of MobileAccess Networks, Inc. and its $730 million acquisition of a majority stake in Discovery Labware Inc. from Becton, Dickinson and Company.
- Dell Inc. in its $2.4 billion acquisition of Quest Software, Inc.
- Dentsply International Inc. in connection with the antitrust regulatory approvals in its $1.8 billion acquisition of Astra Tech AB from AstraZeneca. Dentsply is a leading global supplier of professional dental products and Astra Tech is a leading provider of dental implants.
- Deutsche Bank AG in its $1.7 billion sale of The Cosmopolitan of Las Vegas, a hotel and casino, to Blackstone Real Estate Partners VII, L.P.
- DigitalGlobe, Inc. in its $900 million merger with GeoEye, Inc.
- Diversey Holdings Inc. in connection with the antitrust and regulatory approvals in its $4.3 billion sale to Sealed Air Corporation. Diversey is a leading global provider of cleaning, sanitization and hygiene solutions.
- Doughty Hanson & Co. (United Kingdom), a private equity firm, in its $1.4 billion sale of Vue Entertainment Ltd. (United Kingdom), an operator of movie theaters, to Alberta Investment Management Corporation (Canada) and OMERS Private Equity (Canada).
- affiliates of Doughty Hanson & Co. Managers Limited (United Kingdom) in the $1.1 billion sale, along with Euroland Investments B.V. (the Netherlands), of Norit N.V. (the Netherlands), a manufacturer of carbon-based products, to Cabot Corporation, a specialty chemicals company.
- Duke Energy Corporation and Progress Energy, Inc. in connection with the antitrust and regulatory aspects of their merger agreement, in which Duke Energy agreed to acquire Progress Energy for $13.7 billion. he combined company will be called Duke Energy and will be the largest utility in the United States.
- Dynegy Inc. in connection with the $3.45 billion acquisition of coal and gas generation assets in New England and the Midwest from Energy Capital Partners.
- in its approximately $260 million acquisition of O.R. Solutions, Inc., a privately held company. Ecolab provides cleaning, sanitizing, food safety and infection prevention products and services. O.R. Solutions develops and markets surgical fluid warming and cooling systems in the United States; and
- with the antitrust aspects of its $8.1 billion acquisition of Nalco Holding Company, a provider of sustainability services focused on industrial water, energy and air applications.
Endo Pharmaceuticals Holdings Inc. in:
- its $2.9 billion acquisition of American Medical Systems, a provider of devices and therapies for male and female pelvic health; and
- its $1.2 billion acquisition of Qualitest Pharmaceuticals, a leading, privately held generics company.
- EnergySolutions, Inc., a nuclear services company, in its $1.1 billion acquisition by a subsidiary of Energy Capital Partners II, LLC, a private equity firm. Skadden also represented EnergySolutions in a related financing matter.
- Entergy Corporation in its approximately $310 million acquisition from Acadia Power Partners of a 50 percent interest in the Acadia generating plant. In its extended review, the Department of Justice focused on incentives and ability to cause competitive effects in wholly regulated electric power markets.
- EQT Corporation in its transaction with PNG Companies LLC, the parent company of Peoples Natural Gas Company LLC, involving the transfer of EQT’s local gas distribution company, Equitable Gas, in exchange for $720 million, certain midstream pipeline assets of Peoples and certain commercial arrangements.
- Excelitas Technologies Corp. in its acquisition of Qioptiq S.a.r.l. (Luxembourg). Both companies are manufacturers of electronic and optical components.
Exelon Corporation in:
- its $7.9 billion stock-for-stock merger with Constellation Energy Group, Inc.; and
- the successful antitrust review of its unsolicited offer to acquire NRG Energy, Inc. The proposed acquisition would have created the largest electricity and nuclear generation company in the United States in terms of assets and generation capacity. Skadden’s advocacy on behalf of Exelon addressed several areas of overlapping activities identified by the Department of Justice. Although NRG shareholders ultimately rejected the offer, Skadden’s efforts, including a response to an intensive DOJ second request, left Exelon well positioned to proceed to closing. Skadden also successfully handled regulatory review of the proposed acquisition by the Federal Energy Regulatory Commission.
- Exelon Corporation and Pepco Holdings, Inc. with the regulatory aspects of Exelon’s $6.8 billion acquisition of Pepco to create the leading mid-Atlantic electric and gas utility.
Express Scripts, Inc. in:
- its $4.7 billion acquisition of WellPoint, Inc.’s NextRx subsidiaries. Both Express Scripts and NextRx provide pharmacy benefit management services; and
- its $29.1 billion acquisition of Medco Health Solutions, Inc. The deal is the second-largest announced transaction of the year.
- Fortress Investment Group LLC in its $363 million repurchase of a 12 percent stake from Nomura Holdings, Inc. (Japan).
- Frontier Communications Corporation in its $2 billion acquisition of AT&T’s wireline business and statewide fiber network that provides services to residential, commercial and wholesale customers in Connecticut.
General Electric Company:
- with the global antitrust aspects of its $16.9 billion acquisition of the energy unit of Alstom SA (France); and
- on the antitrust and competition law aspects of its $4.3 billion acquisition of Avio S.p.A. from private equity firm Cinven and Italian aerospace group Finmeccanica.
Genesis HealthCare Corporation, a provider of rehabilitation and assisted living services, in its:
- acquisition of Skilled Healthcare Group, Inc.; and
- $275 million acquisition of Sun Healthcare Group Inc.
- GenOn Energy, Inc. in its $6 billion stock-for-stock merger with NRG Energy Inc., which created the largest independent power producer in the United States.
- The Hershey Company in the $584 million acquisition by its subsidiary, Hershey Netherlands B.V., of an 80 percent stake in Shanghai Golden Monkey Food Joint Stock Co., Ltd. (China).
- Hillenbrand, Inc., a holding company for a funeral products manufacturer and an industrial equipment supplier, in its $530 million acquisition of Coperion GmbH (Germany), a manufacturer of industrial machinery and plants, from Deutsche Beteiligungs AG (Germany), a private equity firm.
- Hillshire Brands Company (formerly Sara Lee Corporation) in its $8.6 billion unsolicited acquisition by Tyson Foods, Inc. Skadden previously represented Hillshire in its $7.7 billion unsolicited bid by Pilgrim’s Pride Corporation.
- Hitachi, Ltd. in the $4.3 billion sale of its wholly owned subsidiary, Hitachi Global Storage Technologies, to Western Digital.
- Hughes Telematics, Inc., a provider of telecommunications systems for automobiles, in its $730 million acquisition by Verizon Communications Inc.
- JLL Partners in its $2.6 billion transaction with Royal DSM, a Dutch chemicals and nutrition company, and Patheon Inc.
- Joh. A. Benckiser GmbH, a holding company based in Germany, as the lead investor in its proposed $9.8 billion acquisition D.E Master Blenders 1753 N.V. (the Netherlands), a coffee and tea producer. Skadden also advised on the related €3.3 billion acquisition financing, which won International Financial Review’s “EMEA Leveraged Loan of the Year” award for 2013.
- JPMorgan Chase & Co. as financial advisor to International Rectifier Corporation in its $3 billion acquisition by Infineon Technologies AG (Germany).
- Jos. A. Bank Clothiers Inc. in its unsolicited, but subsequently agreed upon, $1.8 billion acquisition by The Men’s Wearhouse, Inc.
- funds managed by Kelso & Company and StoneRiver Group, L.P. in connection with the merger of Progressive Medical, Inc. and PMSI, Inc.
- LCY Chemical Corp. in combining its styrenic block copolymers business with Kraton Performance Polymers and taking back a 50 percent interest in the combined company.
- LSI Corporation in its $6.6 billion acquisition by Avago Technologies Limited.
- Marubeni Corporation in its $5.3 billion acquisition of Gavilon Group LLC. Skadden handled the global antitrust competition reviews, including in the U.S., China and ten other jurisdictions.
- McKesson Corporation in connection with its $2.16 billion acquisition of US Oncology Holdings, Inc. McKesson, currently ranked 15th on the Fortune 500, is a health care services and information technology company. US Oncology Holdings is a leading integrated oncology company.
- Merck KGaA (Germany) in its $17 billion acquisition of Sigma-Aldrich Corporation, a chemical company for the life science industry.
- MIPS Technologies, Inc. in its simultaneous patent sale to AST and the sale of its operating business to Imagination Technologies Group.
- Mount Sinai Medical Center in its merger with Continuum Health Partners.
- Mylan Inc. in its $1.6 billion acquisition of Agila Specialties Private Limited (India), a developer, manufacturer and marketer of generic injectable products, from Strides Arcolab Limited (India).
- NewYork-Presbyterian Hospital with the antitrust aspects of its acquisition of NYU Downtown Hospital.
NIKE, Inc. in:
- its $570 million sale of Cole Haan LLC to Apax Partners LLC. Skadden also represented Nike in related financing matters; and
- its $225 million sale of Umbro International Ltd. (United Kingdom) to Iconix Brand Group, Inc.
- Nokia Corporation in the $7.2 billion sale of its devices and services business and license of its patents to Microsoft.
- Nordion Inc. (Canada) in its $805 million acquisition by Sterigenics International, Inc.
- Norwest Equity Partners in its $315 million sale of Caliber Company, the parent company of Savage Sports Corporation, a manufacturer of firearms for the hunting and sport shooting industries, to Alliant Techsystems Inc., a producer of aerospace and defense products. Skadden also represented Norwest Equity Partners in the related acquisition financing.
- NTT DOCOMO, Inc. (Japan) in its $290 million tender offer for Buongiorno S.p.A. (Italy), a developer of mobile applications, through NTT’s subsidiary DOCOMO Deutschland GmbH (Germany).
- OAO Severstal (Russia) in the $2.3 billion sale of its subsidiaries Severstal Columbus, LLC and Severstal Dearborn, LLC to Steel Dynamics Inc. and AK Steel Corporation.
Outokumpu Oyj (Finland) in:
- its €2.8 billion acquisition of the Inoxum business unit from ThyssenKrupp AG (Germany). The combined entity will be a global leader in stainless steel manufacturing. This transaction was named “M&A Deal of the Year” for 2012 at the 2013 IFLR European Awards (April 2013); and
- the proposed sale of ThyssenKrupp Acciai Speciali Terni S.p.A. (Italy) and Outokumpu VDM GmbH (Germany) to ThyssenKrupp AG (Germany). Both Outokumpu and ThyssenKrupp are manufacturers of stainless steel.
- Pan American Silver Corp. with the U.S. securities, antitrust and tax aspects of its $1.5 billion acquisition of Minefinders Corporation Ltd. Both companies are based in Canada.
- along with a group of Canadian investors, in their $1.1 billion acquisition of Atrium Innovations Inc. (Canada), a manufacturer of health and nutrition products;
- along with the Marazzi Group SpA (Italy), in Marazzi’s $1.5 billion acquisition by Mohawk Industries, Inc.; and
- in its $1.1 billion sale of its portfolio company, Renaissance Learning Inc., to Hellman & Friedman LLC.
- Pfizer Inc. in its acquisition of Ferrosan’s consumer health care business, which includes dietary supplements and lifestyle products, from Altor 2003 Fund GP Limited. Based in Copenhagen, Ferrosan sells products primarily in the Nordic region and the emerging markets of Russia and Central and Eastern Europe.
- Rain CII Carbon LLC, a subsidiary of Rain Commodities Limited (India), in its $914 million acquisition of RÜTGERS (Germany), a manufacturer of specialty chemicals, from funds advised by Triton (United Kingdom).
- Revlon, Inc., a manufacturer of mainstream cosmetics, skin care and personal care products, in its $660 million acquisition of The Colomer Group Spain S.L., a manufacturer of beauty products.
- Rockwood Holdings, Inc. with the antitrust aspects of the $1.3 billion sale of its titanium dioxide pigments and four other non-strategic businesses to Huntsman Corporation.
- SanDisk Corporation in its $1.1 billion acquisition of Fusion-io, Inc.
- Sensata Technologies Holding N.V. (the Netherlands) in the $1 billion acquisition by its wholly owned indirect subsidiary Sensata Technologies B.V. of Schrader International, Inc. from Madison Dearborn Partners, LLC.
- Shelf Drilling International Holdings, Ltd. (United Arab Emirates), a company sponsored by Castle Harlan, Inc., CHAMP Private Equity (Australia) and Lime Rock Partners, in its $1.1 billion acquisition of 38 shallow water drilling rigs from Transocean Ltd. (Switzerland). This transaction received the highest ranking in the Corporate & Commercial category in the Financial Times’ 2013 “US Innovative Lawyers” report. Skadden also represented Shelf Drilling International Holdings in the related acquisition financing which included a $475 million Rule 144A/Regulation S high-yield offering of 8.625% senior secured notes due 2018.
- Southwest Airlines Co. in connection with the DOJ investigation of its acquisition of AirTran Holdings, Inc.
- Spotify Limited (Luxembourg) in its acquisition of The Echo Nest Corporation.
Sprint Nextel Corporation in:
- its $21.6 billion sale of a 78 percent stake to Softbank Corporation (Japan) and the related $3.1 billion 1% convertible bond issue. The deal is the largest-ever overseas acquisition by a Japanese company. This deal was awarded “Global M&A Deal of the Year: Grand Prize” at the 2013 American Lawyer Global Legal Awards; and
- its $2.5 billion acquisition of the remaining 50 percent stake in Clearwire Corporation that it did not already own.
- Stanley Black & Decker, a provider of hand tools, power tools and accessories, and electronic security solutions, in its $850 million acquisition of Infastech (Hong Kong), a manufacturer of mechanical fasteners.
- Steinway Musical Instruments Inc. in its $512 million acquisition by Paulson & Co. Inc., a private equity firm.
Stryker Corporation in:
- its $1.5 billion acquisition of Boston Scientific Corporation’s neurovascular business;
- its $316 million acquisition of Orthovita, Inc.; and
- its $1.65 billion acquisition of MAKO Surgical Corp.
- Summit Entertainment, LLC in its $413 million acquisition by Lions Gate Entertainment Corporation.
- TOMS Shoes, Inc. in the sale of a 50 percent stake to Bain Capital.
- Toray Industries, Inc. (Japan), a manufacturer of chemical products, in its $584 million acquisition of Zoltek Companies Inc., a manufacturer of carbon fibers.
Valeant Pharmaceuticals International, Inc. (Canada) in:
- in its proposed unsolicited $46 billion acquisition of Allergan Inc.;
- with the antitrust aspects of the $1.4 billion sale of its filler and toxin treatments to Nestlé S.A. (Switzerland);
- its $8.7 billion acquisition of Bausch & Lomb Holdings Incorporated, a manufacturer of ophthalmic surgical and eye care products; and
- its $414 million acquisition of the outstanding common stock of Obagi Medical Products, Inc.
- ViroPharma in its $4.2 billion acquisition by Shire plc.
Visteon Corporation, a manufacturer of auto parts, in:
- the $1.5 billion sale of its 50 percent stake in Yanfeng Visteon Automotive Trim Systems Co., Ltd., a joint venture between Visteon and Huayu Automotive Systems Co., Ltd. (HASCO), to HASCO. Both Yanfeng and HASCO are based in China; and
- its $265 million acquisition of the automotive electronics business of Johnson Controls Inc.
- The Vitol Group in its $2.6 billion acquisition of the Australian downstream businesses of Royal Dutch Shell plc.
- Vocus, Inc. in its $446 million acquisition by GTCR, LLC.
- Vue Entertainment Ltd. (United Kingdom), a portfolio company of United Kingdom-based Doughty Hanson & Co., in its acquisition of Multikino S.A. (Poland). Both parties are operators of movie theaters.
- The Walt Disney Company in its $4 billion acquisition of Lucasfilm Ltd. The Daily Journal named this transaction one of the top 10 California M&A deals by value announced in 2012.
- The Warnaco Group, Inc. in its $2.9 billion acquisition by PVH Corp.
Watson Pharmaceuticals, Inc., a leading generic and specialty pharmaceutical company:
- in connection with the worldwide antitrust aspects of its $5.6 billion acquisition of Actavis Group (Switzerland); and in connection with the antitrust aspects of its $562 million acquisition of Specifar S.A. (Greece);
- in securing antitrust approval for its $1.75 billion acquisition of Arrow Group, another prominent pharmaceutical company. Skadden secured approval for the transaction in five months, effectively allowing the acquisition to proceed with the limited divestiture of three minor products; and
- with the antitrust aspects of its approximately $92.5 million acquisition of the U.S. rights to the Crinone and Priocheve progesterone gel product line from Columbia Laboratories, Inc.
- Wisconsin Energy Corp. in its $9.1 billion acquisition of Integrys Energy Group, Inc. The combined company will be named WEC Energy Group, Inc.
- Broadcast Music, Inc. in connection with enforcement and modification of an antitrust consent decree.
- CME Group and Dow Jones & Company in their $1.3 billion index services joint venture to create CME Group Index Services LLC; CME Group in its subsequent index services joint venture with McGraw Hill & Co. that combined CME Group Index Services with S&P Indices and now maintains and licenses the iconic Dow Jones Industrial Average and the S&P 500, along with hundreds of thousands of other indices; and CME Group in its $1 billion global preferred strategic partnership with Brazilian exchange operator BM&F Bovespa S.A.
- a global pharmaceutical company in its discussions with another pharmaceutical manufacturer regarding several potential joint collaborations.
- Anheuser-Busch InBev in a settlement with the U.S. Department of Justice Antitrust Division in litigation challenging AB InBev’s proposed acquisition of the remaining stake in Grupo Modelo that it did not already own, and in the successful dismissal of a suit brought by private plaintiffs to block the transaction.
- Amylin Pharmaceuticals in a first-of-its kind deal in which Amylin and Eli Lilly and Company terminated their alliance in connection with the diabetes drug Exenatide and resolved outstanding litigation between the companies. Previously counsel to Amylin in a lawsuit alleging breach of a commercialization agreement for diabetes drugs and an antitrust claim against Eli Lilly, then successfully negotiated the settlement that resulted in the alliance termination.
- the unsecured creditors committee of AMR Corporation, the parent company of American Airlines, Inc., in settling litigation brought by the U.S. Justice Department and numerous state attorneys general challenging the merger of AMR and US Airways.
- Chicago Bridge & Iron Company N.V. (the Netherlands) in the appeal of a Federal Trade Commission decision that held that Chicago Bridge & Trade’s 2001 acquisition of Pitt-Des Moines, Inc. violated antitrust laws by creating a monopoly. As a result of Skadden’s efforts in pursuing an aggressive appellate strategy, Chicago Bridge & Iron ultimately agreed to divest less than 10 percent (by value) of the assets the FTC had demanded be sold in its administrative complaint.
- DRS Technologies Inc. in a successful litigation and CFIUS review that resulted in the completion of its $5.2 billion acquisition by Italy-based Finmeccanica SpA.
- Express Scripts in the settlement of a federal class action litigation brought by shareholders of Medco Health Solutions related to Express Scripts’ acquisition of Medco and a related dismissal of antitrust claims brought in federal court.
- Southwest Airlines Co. in the defense of an antitrust lawsuit filed by 43 individual plaintiffs challenging the merger as anticompetitive. On June 2, 2011, the Ninth Circuit dismissed the private plaintiffs’ attempted interlocutory appeal of a TRO denial by the district court and concomitantly dismissed as moot a related emergency motion. Most recently, the Ninth Circuit granted Southwest’s motion for sanctions and attorneys’ fees against the plaintiffs’ counsel for unreasonable and vexatious conduct.
- Sprint Corporation in its successful opposition to AT&T Inc.’s approximately $39 billion acquisition of T-Mobile USA Inc. On Sept. 6, 2011, Skadden filed suit in the U.S. District Court for the District of Columbia seeking to challenge the proposed merger on antitrust grounds. The firm also represented Sprint before the Antitrust Division of the Department of Justice and the FCC in connection with this matter.
- Wild Oats in convincing a federal judge to deny the U.S. government’s request to temporarily block Whole Foods Markets Inc.’s $565 million purchase of Wild Oats.
- 3Taps in a lawsuit brought against Craigslist alleging anti-competitive business practices to maintain a monopoly in the online classified ads market and separately in the defense of claims brought by Craigslist alleging copyright violations against 3Taps.
- ABB Ltd. in securing a favorable settlement in a cartel investigation by Brazil’s Administrative Council for Economic Defense CADE, which accused ABB of fixing the price of underground and submarine power cables.
Actavis, Inc., a generic pharmaceutical company, in:
- defending putative class actions challenging the settlement of Hatch Waxman patent litigation relating to the drug Actos;
- defending an antitrust suit brought by the Federal Trade Commission challenging a 2006 settlement of Hatch-Waxman patent litigation relating to the drug AndroGel. Skadden also represents Actavis in nine follow-on private actions brought by various groups of purchaser plaintiffs;
- defendant putative class actions challenging the settlement of Hatch Waxman patent litigation relating to the drug Lidoderm; and
- representing the company and CEO Paul Bisaro in securing the right to take discovery against the Federal Trade Commission in connection with a dispute over subpoena enforcement. We believe that this is the first time discovery has ever been allowed against the FTC during an investigation.
- Actavis, Valeant and Mylan in continuing enforcement actions and litigations brought by competition authorities.
- Amylin Pharmaceuticals, Inc. in an antitrust lawsuit against Eli Lilly and Company in the U.S. District Court for the Southern District of California alleging breach of a commercialization agreement for diabetes drugs.
- Arclin in the settlement of an antitrust lawsuit in the District of Oregon alleging violations of the Robinson-Patman Act.
- AXIS Capital Holdings Ltd. in securing a favorable settlement in class action litigation in the U.S. District Court for the District of New Jersey alleging antitrust and RICO claims with respect to a purported scheme to reduce or eliminate competition for commercial insurance purchased through brokers.
- Cemex Inc. in securing the denial of class certification and subsequent dismissal of a putative class action brought in federal district court in Florida by direct and indirect purchasers alleging price fixing, territorial and customer allocation in the cement and ready-mix concrete industries.
- Chase Paymentech Solutions, LLC in the settlement of a lawsuit in the U.S. District Court for the District of New Jersey brought by Heartland Payment Systems, Inc. in connection with alleged violations of the Sherman Act.
- China National Minerals Co., Ltd. in the dismissal of a purported class action in the District of New Jersey alleging that China National, along with other Chinese magnesite producers and exporters, engaged in a conspiracy to fix the prices of magnesite exported from China to the United States. The U.S. Court of Appeals for the Third Circuit subsequently vacated the dismissal and remanded the case for further consideration for dismissal by the district court. Skadden is representing China National in its motion for rehearing en banc.
- CIBC World Markets Corp., Cowen and Company, LLC, ING Barings LLC and ABN AMRO Inc. in putative class actions of issuers and purchasers of initial public offerings alleging that the defendant IPO underwriters, including our clients, violated the antitrust laws by allegedly agreeing to fix the fees charged to issuers of IPOs valued between $20 million to $80 million at 7 percent of the proceeds of the IPOs. The actions were resolved successfully, following a number of notable decisions during the course of the litigation.
De Beers S.A. in:
- the dismissal of federal and state antitrust claims brought by a former customer who alleged that seven De Beers companies had monopolized and conspired to restrain trade in the gem-diamond industry. Following two prior rulings dismissing claims against six of the seven defendants, the U.S. District Court for the Southern District of New York ordered the dismissal of the remaining claims;
- the affirmance by the Third Circuit of a $295 million settlement of seven antitrust class actions relating to gem diamonds;
- the dismissal of a treble-damage antitrust suit in S.D.N.Y. by a former sightholder alleging overcharges in the price of gem diamonds; and
- a class action litigation in the Supreme Court of British Columbia accusing De Beers and others of engaging in anticompetitive practices affecting the gem grade diamond industry in Canada.
- Domfoam International, Inc. and Valle Foam Industries (1995) Inc. (Canada) in connection with more than 40 antitrust price-fixing lawsuits regarding an alleged conspiracy among manufacturers of polyurethane foam, consolidated for pretrial purposes in the U.S. District Court for the Northern District of Ohio. The case is currently in the preliminary stages.
- DRS C3 Systems, Inc. (United States) in the Federal Court of Australia, New South Wales District, in civil proceedings brought by the Australian Competition and Consumer Commission and a settlement in February 2010 based on allegations of a violation of Australia’s Trade Practices Act of 1974.
- Energy Transfer Partners, L.P. in a putative class action filed by natural gas sellers claiming unlawful restraint of trade, monopolization through predatory pricing and common law fraud. The court concluded that the plaintiffs failed adequately to allege common law fraud, a conspiracy, predatory pricing, a plausible relevant antitrust market or any cognizable antitrust injury. The plaintiffs appealed the district’s dismissal of the common law fraud claims, and the Fifth Circuit affirmed the dismissal.
- Flint Energy Services Ltd. (Canada) in the settlement of a government antitrust prosecution in connection with pipeline regulations.
- Glencore Xstrata/Pacorini Metals USA in multidistrict treble-damage litigation involving aluminum warehousing and pricing practices.
HarperCollins Publishers in:
- the settlement of parens patriae cases and related class actions alleging antitrust violations relating to the sale of e-books; and
- the dismissal of a putative class action in the Southern District of New York alleging antitrust violations related to the DRM technology used in connection with ebooks purchased by owners of Amazon Kindle devices.
- Horizon Lines in a multidistrict treble-damage litigation involving allegations of price fixing in connection with ocean transportation in domestic trades. The U.S. District Court significantly reduced a criminal fine and approved settlement of treble-damage litigation.
- JAKKS Pacific, Inc., a manufacturer of toys, in the dismissal of a lawsuit in the U.S. District Court for the Southern District of New York and in Connecticut state court, in which World Wrestling Entertainment, Inc. alleged claims in connection with antitrust and RICO violations, including racketeering, bribery and money-laundering. The U.S. Court of Appeals for the Second Circuit affirmed the dismissal.
JPMorgan Chase & Co. in:
- a nationwide putative class action alleging a conspiracy among consumer lenders, credit reporting bureaus and credit scoring agencies to restrict the availability of consumer loans and to inflate and fix loan pricing through the exchange of consumer creditworthiness information and credit scores. The court granted JPMorgan’s motion to dismiss the complaint, with prejudice;
- the largest antitrust class action in history — a putative nationwide class action of millions of merchants alleging a conspiracy in violation of Section 1 of the Sherman Act, between and among Visa, MasterCard and their member banks, to fix and artificially raise interchange fees, which affect the discount rate that a merchant pays on each transaction made with a payment card. The plaintiffs also allege monopolization by the networks under Section 2 of the Sherman Act, and violation of Section 7 of the Clayton Act arising from each network’s reorganization. In addition to damages, the plaintiffs seek injunctive relief against certain network point-of-sale rules;
- a nationwide putative class action alleging a conspiracy among various private equity and securities firms to fix the bid processes in connection with various leveraged buyout transactions;
- an antitrust suit brought by a union pension plan alleging JPM and several banks conspired to restrain competition within the credit default swaps market;
- a federal class action lawsuit alleging that various bank defendants had engaged in a horizontal conspiracy among themselves and with the network defendants, Visa and MasterCard, to fix the fees paid by consumers for access to automated teller machines; and
- several federal class actions alleging that foreign currency dealers, including JPMorgan Chase, conspired to manipulate the benchmark WM/Reuters currency exchange rate.
KeySpan Corporation, now part of National Grid plc,
- in connection with a negotiated settlement of a Department of Justice investigation into allegations that a KeySpan financial swap transaction kept electricity prices artificially high in New York City, and in connection with related putative state and federal class actions in New York, each seeking at least $118 million in damages. The U.S. District Court for the Southern District of New York court granted KeySpan’s motion to dismiss with prejudice on standing and filed rate doctrine grounds; and
- in connection with an investigation by the U.S. Department of Justice’s Antitrust Division into allegations that KeySpan kept electricity prices artificially high by using a derivative transaction to take a financial stake in one of its main competitors, Astoria Generating.
KLM Royal Dutch Airlines (KLM) in:
- the dismissal of a putative class action alleging that KLM and several other international airlines fixed surcharges on certain passenger routes between Europe and Asia on the basis that the court lacked subject matter jurisdiction pursuant to the Foreign Trade Antitrust Improvements Act;
- the dismissal of a putative class action alleging that KLM and several other international airlines fixed surcharges on certain passenger routes between Europe and the United States on the basis that the plaintiffs failed to state a claim under Rule 12(b)(6); and
- a settlement on favorable terms of multidistrict treble damage actions in which KLM and several other major international airlines are alleged to have violated federal, state and foreign antitrust laws in connection with the setting of certain surcharges for the provision of air cargo shipping services.
- Merrill Lynch & Co., Inc. in the affirmance by the Second Circuit of the dismissal of class action suits brought in the U.S. District Court for the Southern District of New York by issuers and investors of auction rate securities alleging antitrust violations.
- Morgan Stanley in the settlement of a putative class action by state, local and municipal government entities, government agencies and private entities alleging antitrust violations against Wall Street banks and other investment firms for allegedly conspiring to fix, maintain or stabilize the price of municipal derivatives and to engage in bid rigging.
- Norfolk Southern Corporation in multidistrict treble-damage actions in which Norfolk Southern and the other major railroads are alleged to have violated federal and state antitrust laws in connection with the assessment of rail freight fuel surcharges. The U.S. District Court for the District of Columbia dismissed the case with respect to the state indirect purchaser claims, ruling that the claims were preempted by the Interstate Commerce Commission Termination Act of 1995. In 2010, the U.S. Court of Appeals for the District of Columbia affirmed the dismissal. Litigation of the federal direct purchaser claims is ongoing.
- Pfizer Inc. in connection with a putative class action and opt-out claims by direct purchasers of Neurontin alleging monopolistic conduct, and in a federal class action alleging RICO violations related to programs offered by Pfizer that assist consumers in making co-payments for the prescription medicines Celebrex, Chantix, Effexor XR, Geodon, Lipitor and Pristiq.
- Realogy Corporation, Century 21 Real Estate LLC and Coldwell Banker Real Estate LLC in an antitrust class action alleging that real estate brokers fixed brokerage commissions charged to sellers of residential real estate in Kentucky.
- SanDisk Corp. in two cases in defense of antitrust counterclaims relating to the company’s licensing of its patented flash memory technology, and in the dismissal of a federal antitrust suit in which PNY Technologies alleged that SanDisk threatened litigation to force anti-competitive patent licensing agreements.
- Spanish Broadcasting System, Inc. in securing summary judgment on all counts against certain of its preferred stockholders who sought declaratory and compensatory relief arising from purported breaches of a certificate of designations.
- U.S. International Media, LLC in connection with three tortious interference with contract lawsuits brought by various entities that represent television stations in the sale of spot advertising, in the Supreme Court of the State of New York. In response, USIM filed antitrust counterclaims against these entities alleging a conspiracy in restraint of trade in violation of the Donnelly Act and successfully defended against the plaintiffs’ motion to dismiss, which the court denied in April 2011.
- Valeant Pharmaceuticals International, Inc. and wholly owned subsidiary Medicis Pharmaceutical Corporation in numerous pending private actions concerning Medicis’ enforcement of its patent rights related to acne product Solodyn® and Medicis’ subsequent settlements of the patent cases with various generic manufacturers. There are currently 15 actions, two of which are direct purchaser actions and 13 of which are indirect purchaser actions, pending before Judge Denise Casper of the District of Massachusetts, following a transfer of the case to that court by the Judicial Panel on Multidistrict Litigation.
- Vitol, S.A. in putative class actions alleging, inter alia, that the defendants conspired to raise Brent Crude oil prices and the prices of Brent Crude Oil futures contracts on NYMEX and ICE.
- XM Satellite Radio Inc. in a putative class action lawsuit filed against it in the United States District Court for the Southern District of New York by former XM customer Richard Vaccariello. In the lawsuit, Mr. Vaccariello alleges that XM fails to provide customers with notice of the renewal of their service contracts for XM satellite radio as required by New York General Obligations Law Section 5-903 and has engaged in a deceptive act or practice in violation of New York General Business Law Section 349.
National Basketball Association (NBA):
- and Commissioner Adam Silver in state and federal lawsuits brought against the NBA and Mr. Silver by former LA Clippers owner Donald Sterling seeking to enjoin the NBA from approving the sale of the Clippers to Steve Ballmer in addition to monetary damages of $1 billion from the NBA and Mr. Silver. Sterling commenced litigation after the NBA banned him from the league for life and assessed a $2.5 million fine after a recording was released to the media of Sterling making numerous racist comments;
- and its 30 member teams in a federal declaratory class action lawsuit against the National Basketball Players Association and all NBA Players in connection with the NBA’s lockout, which involved establishing that the NBA’s lockout was not a violation of federal antitrust laws, among other things. Skadden also served as lead counsel defending the NBA against two antitrust lawsuits brought by the NBA players challenging the NBA lockout; and
- in an important ruling for the NBA and four NBA teams that had previously been members of the American Basketball Association (ABA) — the Denver Nuggets, the Indiana Pacers, the New Jersey Nets and the San Antonio Spurs — in obtaining dismissal of breach of contract claims filed against them by another former ABA team, the Spirits of St. Louis. On Oct. 19, 2009, Justice Barbara Kapnick of the commercial division of the New York State Supreme Court, New York County, granted the defendants’ motion and dismissed the Spirits’ claims without prejudice. The Spirits have appealed that decision to the Appellate Division, First Department, and filed a brief in support of its appeal, which is currently adjourned by stipulation until the court’s November 2010 calendar;
- National Collegiate Athletic Association (NCAA) in a federal antitrust class action by Division I football and men’s basketball players challenging the NCAA’s amateurism rules barring compensation for athletes other than educational expenses.
National Football League (NFL):
- in the affirmance by the Third Circuit of a dismissal of a lawsuit in the U.S. District Court for the District of New Jersey alleging tort, contract and RICO claims in connection with the New England Patriots’ alleged videotaping of New York Jets coaches and players during a game at Giants Stadium. The court held that the plaintiff received exactly what he paid for — the right to view an NFL football game at Giants Stadium — and could not maintain an action based on his subjective expectations about the fairness of the game; and
- along with NFL Ventures, NFL Productions, NFL Enterprises, NFL Properties and the 32 NFL Member Clubs in a federal lawsuit brought by seven photographers against the NFL entities, the Associated Press, Getty Images, and Replay Photos alleging that the companies infringed the photographers’ copyrights in hundreds of their photographs of NFL content by using and/or permitting use of the photographs royalty-free without permission or a valid license. The plaintiffs also claim that the defendants conspired to restrain trade in the market for the commercial licensing of NFL-themed photos, in violation of the Sherman Act, by entering into exclusive agreements for the licensing NFL-themed photos for commercial use, and (for the NFL entities only) by agreeing to collectively license their intellectual property in NFL-themed photos.
National Hockey League (NHL):
- in several federal antitrust class actions alleging that the NHL, Major League Baseball (MLB), Comcast Corporation and DirecTV improperly restricted competition on sports broadcasts;
- as amicus curiae in Brady v. NFL, challenging the legality of the NFL lockout;
- in the highly publicized arbitration upholding its rejection of the 17-year, $102 million contract between Ilya Kovalchuk and the New Jersey Devils. After the National Hockey League Players’ Association filed a grievance in response to the league’s rejection of the contract, the parties presented their cases in arbitration. The arbitrator accepted the NHL’s argument that the last years of the contract were “reasonably unlikely” to be performed, ruling that the contract therefore constituted a “circumvention” of the parties’ collective bargaining agreement;
- in a dispute in the U.S. Bankruptcy Court for the District of Arizona in connection with the proposed sale of the Phoenix Coyotes. Skadden successfully argued that the U.S. Bankruptcy Court could not be used to decide ownership control and the relocation of teams. The court held that the NHL has the right under its constitution for its board of governors to consent to a transfer of ownership and any potential relocation of the team to Ontario. The court found that these consent rights could not be set aside under the bankruptcy laws or the antitrust laws, and the judge rejected the sale;
- in the successful resolution of a lawsuit brought before the U.S. District Court for the Southern District of New York by Madison Square Garden L.P. (MSG) (the owner of the New York Rangers), over the operation of the New York Rangers team website. The Southern District of New York denied MSG’s request for a preliminary injunction and the U.S. Court of Appeals affirmed the district court’s denial. The lawsuit returned to the Southern District of New York, where most of MSG’s claims were dismissed, and the NHL and MSG reached a settlement;
- a putative class action lawsuit alleging violations of federal antitrust laws, including for conspiracy and monopolization, in connection with the NHL improperly eliminating competition in the distribution of live men’s hockey games on television and over the Internet;
- a purported class action lawsuit in New Jersey federal court alleging that Philadelphia Flyers season ticket holders were improperly charged for 2011 Winter Classic tickets; and
- the successful negotiation and drafting of a new Collective Bargaining Agreement with the National Hockey League Players’ Association.
- NCAA, NBA, NFL, NHL and MLB in securing a Third Circuit affirmance of a lower court’s decision granting the sports leagues’ motion for summary judgment and issuing a permanent injunction preventing New Jersey Governor Chris Christie’s proposed sports wagering scheme from taking effect.
- Rutgers University in an independent review of the men’s basketball program in connection with the university’s dismissal of the head coach in April 2013.
- ABB Ltd in a cartel investigation before the European Commission and several other antitrust agencies throughout the world. ABB Ltd was granted full immunity in the decision by the European Commission issued in April 2014. Subsequently, ABB Ltd lodged an appeal against the Commission Decision. In the same matter, we assisted ABB Ltd in securing a favorable settlement for ABB Ltd before the Brazilian antitrust authority. The settlement was the first under Brazil’s new cartel settlement rules.
- a non-public DOJ investigation regarding derivatives trading information.
- two non-public investigations in the EU regarding derivatives trading information and derivatives clearing, respectively.
- several investigations by the Federal Trade Commission in the pharmaceutical industry.
- a DOJ investigation in the air cargo transportation industry.
- a grand jury investigation involving ocean transportation in domestic trades.
- a DOJ civil non-merger investigation of competitive issues in the New York City electricity capacity market.
- two non-public multinational cartel investigations of an electronic components manufacturer.
- a non-public multinational cartel investigation of a transportation company.
- a grand jury investigation conducted by the Office of the Attorney General of New Jersey into fuel surcharges of a transportation company.
- an investigation by the Department of Justice into hiring practices in the high-tech industry.
- GlaxoSmithKline plc in the successful appeal before the EU General Court and subsequently the EU Court of Justice against a Commission decision finding that GlaxoSmithKline’s pricing policy violated Article 101 by restricting parallel imports between EU Member States that, according to the Commission, was “tantamount to an export ban.”
- Horizon Lines in a grand jury investigation involving ocean transportation in domestic trades.
- Intel Corporation in relation to the investigation by the European Commission concerning loyalty rebates and other conduct related to pricing that it alleged constituted an abuse of Intel’s alleged dominant position in the market for x86 CPUs. Skadden also is involved in the appeal against the Commission decision that is currently pending before the EU General Court.
- PokerStars in connection with government investigations into the online poker industry.
- several large, multinational firms in international cartel proceedings that span jurisdictions across different continents. Skadden has successfully assisted companies in obtaining conditional immunity with the European Commission and other competition law agencies, ensuring close coordination of contacts with the different competition law agencies and a seamless representation across continents where agencies increasingly interact. Skadden also is advising companies on issues of parental liability for collusive conduct, an area of considerable interest and controversy in the EU given the Commission’s presumption of parental liability for wholly owned subsidiaries.