Antitrust and Competition

Leaders

Peter Sullivan New York
View Profile
Daniel G. Swanson Los Angeles
View Profile
M. Sean Royall Dallas
View Profile
Scott Hammond Washington, D.C.
View Profile
Gary R. Spratling San Francisco
View Profile

Overview

Repeatedly recognized by Chambers and other publications as one of the top antitrust practices in the world, Gibson, Dunn & Crutcher's worldwide Antitrust and Competition Practice Group numbers over 150 lawyers located throughout the United States, Europe and Asia.  Our antitrust team includes former high-ranking officials from the U.S. Department of Justice (DOJ), the U.S. Federal Trade Commission (FTC), the U.S. Solicitor General's Office and the European Commission, as well as Fellows of the American College of Trial Lawyers.  The practice group is seamlessly integrated with Gibson Dunn's powerhouse class action and appellate litigation teams to enable the firm to handle any crisis, as well as a matter from inception all the way through the U.S. Supreme Court.

The Antitrust and Competition group handles leading-edge competition matters on U.S. and international competition issues, including:

  • Government review of mergers and acquisitions
  • Cartel investigations and the defense of cartel prosecutions
  • Class action treble damage litigation
  • Private antitrust litigation in the United States and Europe
  • Defense of private sector clients in antitrust actions before government authorities

Gibson Dunn's merger clearance practice draws on its skilled competition law lawyers in the United States, Europe and Asia, using its deep experience with enforcement authorities throughout the world.  Gibson Dunn takes a highly proactive approach to merger clearance through early analysis of potential antitrust issues and engagement with regulators to efficiently obtain approval of the largest and most complex transactions.  In the past several years we have successfully assisted clients in securing clearance for transactions in a wide range of industries, including obtaining unconditional clearance for three transactions after second request investigations by the DOJ and FTC. 

Described as "one of the best cartel teams" in the world (Global Competition Review), Gibson Dunn boasts a breadth of experience and deep bench of United States- and Europe-based practitioners that are unparalleled.  We have represented clients in over 100 cartel investigations conducted by the DOJ and competition authorities abroad, and have successfully secured full immunity for more than 50 U.S. and non-U.S. companies and their officers, directors and employees in roughly 20 countries on five continents.  It is our strong belief that no law firm in the world has defended as many corporate clients in cartel matters before the DOJ and the European Union or has successfully obtained non-prosecution protection on behalf of so many companies and individuals as Gibson Dunn.  For that reason, our firm is regularly sought out as the number one choice of counsel to represent, and coordinate the global defense of, companies that are the subject of cartel investigations by enforcement authorities around the globe, as well as to handle the follow-on private treble damage litigation.  

No law firm has a more distinguished record of success than Gibson Dunn in handling high-stakes antitrust litigation.  For more than a quarter of a century Gibson Dunn has represented clients in antitrust cases in U.S. federal and state courts against the government and private parties.  These cases have frequently involved cutting-edge antitrust issues and the most challenging class actions.  Rare among antitrust practices, Gibson Dunn's antitrust litigators are some of the most experienced courtroom lawyers in the United States, with a track record of success winning cases at trial and on appeal.  The firm has extensive experience taking complex antitrust and competition cases to trial and, in combination with one of the top appellate practices in the country, regularly represents our antitrust and competition clients in all levels of appellate courts. 

Gibson Dunn's European antitrust and competition lawyers are based in our Brussels, London, Munich and Paris offices.  They coordinate seamlessly with our U.S. practice to serve clients on all aspects of European Union and EU national competition law, including competition advocacy. 

The cases handled by our firm involve disparate fact patterns across a range of industries, fora and postures, but they are linked by a common thread: They represent the most important and most challenging legal matters faced by the firm's clients.  Our results demonstrate why the largest companies in the world call on us when the stakes are highest and when the path to success is most challenging. 

Experience and Recent Representations

  • Successfully represented Aetna in a novel challenge to a locally dominant health insurer's exclusionary contracts. 
  • Obtained complete dismissal for Sanofi-Aventis in a novel, multibillion-dollar antitrust-based False Claims Act case alleging anticompetitive exclusion of generic drug competition.  
  • Obtained dismissal for DreamWorks Animation SKG, Inc. in a class action alleging that DreamWorks and other animation studios Pixar, Lucasfilm, Blue Sky Studios, ImageMovers, Sony Pictures Animation and Sony Pictures Imageworks violated federal and state antitrust laws when they allegedly entered into per se unlawful agreements not to solicit each other's employees and to fix ranges of compensation for employees.  The Northern District of California granted defendants' joint motion to dismiss the complaint on the ground that plaintiffs' claims were all time-barred.  The court agreed with defendants that the accrual rule – not the discovery rule – applies to antitrust claims. 
  • Secured affirmance from the California Court of Appeal of the dismissal, also obtained by Gibson Dunn, of a putative class action seeking more than $6 billion in restitution from Time Warner Cable (TWC) for allegedly "forcing" Southern California pay TV subscribers to subsidize the cost of new television rights agreements with the Los Angeles Dodgers and the Los Angeles Lakers.  Arguing that TWC and all other Southern California pay TV providers should offer these channels on an à la carte basis, plaintiffs claimed that requiring non-sports fans to pay for unwanted sports programming violated California's Unfair Competition Law.  The Court of Appeal held that because TWC's shifting of existing sports programming to new channels on the enhanced basic cable tier – even if accompanied by an alleged rate increase – was not a "fundamental change" to the service, federal law and regulations preempted plaintiffs' claim.  
  • Secured affirmance from a Florida District Court of Appeal of the summary judgment we won, two weeks before trial, for AkzoNobel in an antitrust conspiracy case seeking nearly $70 million in damages.  Plaintiffs, terminated distributors of yacht paint, alleged that AkzoNobel's subsidiary, International Paint, terminated them pursuant to a vertical price-fixing conspiracy.  This case is one of the few ever litigated under the U.S. Supreme Court's landmark Leegin decision, also a Gibson Dunn win, applying the rule of reason standard to alleged vertical price fixing. 
  • Secured reversal, on behalf of BNSF Railway, of a district court order certifying a class of 30,000 rail shippers seeking many billions in damages in a price-fixing case.  Plaintiffs alleged that BNSF, along with three other major rail companies, conspired to use the fuel surcharges they each imposed in the wake of the wars in Iraq and Afghanistan to fix prices charged to customers between 2003 and 2008.  The D.C. Circuit granted defendants' Rule 23(f) petition for interlocutory review, a first for the court of appeals since the rule was adopted in 1998.  The court then concluded that the plaintiffs' damages model was faulty, vacated the decision, and remanded the matter to the district court.
  • Obtained a victory for Comcast Corporation when the U.S. Supreme Court reversed an order certifying a class of more than two million current and former Comcast subscribers, who alleged anticompetitive conduct on the company's part but failed to establish that damages could be calculated on a classwide basis.  
  • Secured dismissal in the Southern District of New York in a majority of claims filed against UBS AG and 15 other banks in three class actions and four individual actions that claimed unlawful manipulation and collusion in the process of setting the U.S. dollar LIBOR reference rate.
  • Represented Leegin Creative Leather Products in the U.S. Supreme Court in a landmark case overturning the century-old per se rule against resale price maintenance.  The Court overturned its 1911 Dr. Miles Medical Co. v. John D. Park & Sons, Inc. decision, pursuant to which vertical minimum resale price maintenance agreements were per se unlawful.  In Leegin, the Court held that agreements between a manufacturer and its retailers establishing minimum resale prices for the manufacturer's goods should be evaluated on a case-by-case basis under the rule of reason.  The decision represented a fundamental change in the law relating to product distribution in the United States.
  • Intel in its $16.7 billion acquisition of chipmaker Altera.
  • Hewlett-Packard in its $3 billion acquisition of Aruba Networks.
  • Norbord in its $600 million acquisition of Ainsworth, which created the world's largest manufacturer of oriented strandboard.
  • AT&T in its acquisition of DirecTV.
  • AECOM in its $6 billion acquisition of URS.
  • A joint venture creating the world's largest shipping liner consortium, which required antitrust work in 22 jurisdictions.
  • Tenet Healthcare in its formation of an historic $2 billion joint venture resulting in the largest ever acquisition of outpatient surgery centers.
  • Tenet Healthcare in its $1.7 billion acquisition of Vanguard Health Systems.
  • Ameristar in its $2.8 billion sale to Pinnacle Entertainment.
  • Matson in its $500 million acquisition of Horizon.

Gibson Dunn frequently represents its clients in follow-on treble damage civil litigation spawned by government investigations.  Cases have included the following industries and areas:   

  • Liquid crystal display
  • Cathode ray tubes
  • Dynamic random-access memory
  • Static random-access memory
  • London Interbank Offered Rate (LIBOR)
  • Freight forwarding
  • Hawaii-Guam cabotage
  • Urethane
  • Air cargo shipping services
  • Rubber chemicals

Across the European Union, we represent clients in a range of industries in cartel investigations by the EU and various Member States.  These include price-fixing investigations by the German Federal Cartel Office and Germany's biggest resale price maintenance investigation in history, which covers the entire food and beverages sector.  The wide spectrum of client industries includes:

  • Technology, media and telecommunications (TMT)
  • Consumer goods
  • Display devices
  • Power cables
  • Engineering
  • Liner shipping 

Gibson Dunn's European antitrust and competition lawyers are based in our offices in Brussels, London, Munich and Paris.  They work closely with our leading U.S. antitrust and competition practice to service the firm's clients on all aspects of European Union and EU national competition law, including competition advocacy.

Our Brussels office, which marked its 10-year anniversary in 2014, serves as the hub of the antitrust and competition group in Europe and, in close coordination with the firm's other global offices, provides the excellence and distinctive added value sought by our clients.  Our offices have coordinated a number of large and successful representations of clients involved in international merger and joint venture transactions, cartel investigations, abusive behavior investigations and complex international distribution and licensing arrangements.  International corporations, industry associations and government agencies regularly turn to our lawyers for strategic advice and representation on sophisticated matters with a multinational dimension that require the particular insight, technical skills and knowledge of the complex Brussels decision-making process for which our team has become well known. 

Clients also frequently come to us for advice on the EU issues affecting their strategic market interests or business models, and the team has a successful record of converting the most difficult competition regulatory challenges into opportunities.  Whether working on an innovative monopolization defense ("abuse of dominance" in the EU), a complex merger review, a sweeping cartel investigation, the development of a sophisticated pan-European sales channel or the exploration of the interfaces between antitrust rules and intellectual property or sector-specific regulation, we have an established record of adopting forward-looking approaches that allow our clients to make informed choices at each critical stage of the relevant procedure.

Recent representations include: 

  • Representing ICOMP, a leading industry association dealing with online commerce and antitrust, data protection and intellectual property issues, including in a number of antitrust proceedings initiated by the European Commission concerning Google.  The Commission's investigation of Google, of global importance and the most high-profile matter of 2015, is a landmark case for the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU) in the Internet economy. 
  • Defending EXSYM Corporation and its part-parent SWCC Showa Holdings Company, Ltd. in the European Commission's investigation into price-fixing and market sharing in the high and ultra-high voltage power cables sector.
  • Representing a number of internationally renowned brand names on licensing and distribution arrangements in Europe, on the open EC consultations concerning the Technology Transfer Block Exemption Regulation (TTBER), the European Commission's competition rules for the assessment of technology transfer agreements, digital agenda and compliance with the EU's emerging policies on e-commerce.  
  • Representing clients in a broad variety of sectors (such as energy, infrastructure, TMT and transport) in complex State aid and public procurement cases before the European Commission.
  • Representing some of the world's leading players in the financial services sector in matters that include the LIBOR and credit default swaps (CDS) competition law investigations, major EU merger filings in the insurance sector and a national filing in Poland regarding local money lending.  In connection with these representations, the Brussels office has developed a very broad-ranging regulatory practice covering all aspects of the financial services sector that includes insurance, reinsurance, the regulation of CDS and the obligations of credit ratings agencies. 
  • Providing advisory services to various energy sector stakeholders regarding all key aspects of the EU regulatory framework and State aids policy that apply to the sector, including the details of the 2nd & 3rd Energy Liberalization Package, Renewables, Emissions Trading System and Carbon Capture and Storage.
  • Handling numerous cases in the TMT sector, especially in relation to abusive practices, the development of regulatory policy, the representation of increasingly more clients in mergers falling under the EU Merger Regulation and national merger rules in complex cases, and the provision of advice relating to EU and Member State data protection rules.
  • Secured major settlements for telecommunications sector clients, notably Netia (Poland's largest alternative fixed-line telecommunications operator) and Si.mobil (Slovenia's second largest mobile operator) in two separate follow-on actions arising from actions brought under Article 102 TFEU for refusal to deal and predatory pricing/margin squeezing.
  • Successfully defended the specialist software manufacturer MathWorks in a complaint brought by a competitor under Article 102 TFEU for its alleged refusal to license.
  • Represented Chunghwa Picture Tubes, Ltd. in the European Commission's European LCD, and TV & Computer Monitor Tubes investigations. 
  • Representing numerous major companies in merger filings.
  • Acting as European competition counsel to MSC Mediterranean Shipping Company S.A on the establishment of the biggest liner shipping cooperative arrangement in history, a long-term operational alliance on East-West trades called the 2M network.
  • Represented Schlumberger Limited, a global oilfield services provider, as antitrust counsel in a subsea joint venture with Cameron International, a major subsea equipment supplier.  Clearance was obtained in the United States (after a two-month DOJ investigation) and from Brazil's antitrust authority (CADE), the European Commission and China's MOFCOM.