Editorial: Competition in California

01 August 2007

Merger and acquisition work and control is traditionally handled in New York and Washington, DC and consequently many of the featured lawyers focus on antitrust litigation in areas such as cartels and monopolisation. This chapter also highlights the leading players in the plaintiff ’s bar – a number of whom are among the best known in the country. The nature of this area also dictates that the practices of the lawyers we list are not limited to California, with many working on matters of national and international importance. According to our findings, Gibson Dunn & Crutcher LLP boasts California’s most respected competition practice. Not only did the four Gibson Dunn partners we select poll a combined total of recommendations unmatched by lawyers at any rival, the firm was also the outfit that most rivals cited as their most admired competitor. “Superb” Gary Spratling co-chairs the firm’s antitrust and trade regulation practice group and received more nominations than any other individual in the following section. One prominent source noted, “Gary is not only a leading antitrust lawyer, he really has done more to redefine and improve antitrust enforcement than perhaps anyone in history.” The esteem in which he is held is evident in our findings. Spratling joined the firm in 2000 following 28 years with the US Department of Justice and comes recommended as “quite outstanding for criminal and cartel work”. Robert Cooper is rated as a “fabulous litigator” and a “big player” in the market. Among other high-profile matters, Cooper has successfully defended American Airlines in three highly publicised cases and victories. One rival noted, “he’s one of the best of our generation and has a great facility for understanding the case deeply and putting it into terms the jury understands.” Daniel Swanson co-chairs the firm’s antitrust group and is a “big name” in the industry. He has recently worked on a number of high-pro- file matters such as representing Pfizer in a federal antitrust case pending in New York. The case alleged conspiracy and monopolisation and was brought by a secondary drug wholesaler. He also represented Twentieth Century Fox in relation to the European Commission’s inquiry into the high-definition DVD market as well as the Motion Picture Association of America in multiple matters relating to antitrust and IP. Swanson is evidently one of California’s, if not the country’s, leading authorities in the field and one prominent corporate counsel remarked, “[he] has a doctorate in economics that really shines through and is charming, engaging and generally first rate.” Joel Sanders completes the firm’s leading quartet in the chapter and was recommended to researchers as “intellectually strong”. Among other matters, Sanders is representing the world’s second largest Dynamic Random Access Memory manufacturer, Micron Technology, in the DRAM antitrust litigation. He also represented the world’s largest maker of hard disk drives, Seagate Technology, before the FTC and the European Commission in connection with its $1.9 billion acquisition of Maxtor, a competitor. The deal closed in 2006, having been approved by the authorities in both Europe and the United States. A strong stable of clients coupled with some of the practice area’s most respected individuals ensures Gibson Dunn top billing in this year’s survey. 

Despite the loss of Thomas Rosch to the post of federal trade commissioner in early 2006, Latham & Watkins LLP maintains an excellent reputation in the antitrust arena, featuring three individuals on the following pages. Daniel Wall is chief among these and he currently chairs the firm’s global antitrust and competition practice group. Wall boasts an even distribution of work – our sources recommend him for litigation, merger reviews and antitrust counselling. Praised by one as an “outstanding litigator”, Wall’s work as lead trial counsel to Oracle in United States v Oracle Corp, the DoJ’s challenge to the company’s hostile tender offer for PeopleSoft, was highlighted on a number of occasions. Partner Karen Silverman is “very, very able” and “belongs on any list of the leaders in the state”, according to one rival. Silverman’s work on merger defence was particularly noted but she also has a leading reputation for litigation, enforcement matters (private and governmental) and antitrust counselling, to name but a few. Charles Crompton is similarly well regarded and worked alongside Wall on US v Oracle. Crompton also comes recommended for his work in the IP arena and completes a strong showing for Latham & Watkins in this section. 

Heller Ehrman LLP also fields three nominees– Robert Rosenfeld, Stephen Bomse and Laurence Popofsky. Bomse chairs the global competition practice and is a “big name” and “top of anyone’s list – outstanding”, according to our findings. Recommended as “one of the deans of the Californian antitrust bar”, Bomse is a “seasoned litigator”, sources say. Representative clients include Visa USA, for whom he was lead counsel in the Wal-Mart case, 3M, Coca-Cola, Pacific Gas & Electric, SunTrust Banks, and Wayerhaeuser, among others. Laurence Popofsky also comes recommended as “one of the leading lights for litigation” and in recent years led the firm’s litigation teams representing Visa USA in litigation involving Dean Witter, Discover and American Express. Popofsky is someone one prominent source “would go to with a really thorny antitrust issue”. Robert Rosenfeld was lauded as “the star of the Heller Ehrman team” and he leads the firm’s representation of Microsoft Corporation in antitrust cases filed both within the US and overseas. Rosenfeld’s work within the health care industry was also noted and he forms part of a strong team at what one rival classed as “an important firm”. 

Silicon Valley heavyweight Fenwick & West LLP also fields two highly rated practitioners on the following pages. Formed in Palo Alto in 1972 the firm has played an active role in the region ever since, incorporating Apple Computer in 1976 and taking Oracle public in 1986. The firm’s IP credentials were often noted and according to our findings it also boasts a strong antitrust practice. This was significantly bolstered in 2003 by Tyler Baker’s move from Texan firm Carrington Coleman Sloman and Blumenthal. Baker is said to be “an outstanding litigator” – respondents to our survey noted his work at the intersection between antitrust and IP. Representative clients include Symantec, Intuit, Leegin Creative Leather Products, Macromedia, Coca-Cola and Barclays Global Investors NA, to name but a few. Baker’s work on the Leegin case, in which the Supreme Court changed the rule regarding vertical price fixing, was said to be particularly impressive. Mark Ostrau co-chairs the firm’s antitrust and unfair competition group with Baker and is rated as “very capable”. Ostrau’s transactional capabilities were noted and he has worked on the antitrust issues surrounding deals such as Cisco System’s acquisition of Scientific Atlanta, Macromedia’s sale to Adobe Systems and Symantec’s acquisition of Veritas Software.

Geraldine Alexis moved to the San Francisco offices of Perkins Coie LLP from Bingham McCutchen LLP in July 2007. Alexis is “well regarded” among clients and competitors alike and has a “good touch and sees all the angles”, according to sources. Her practice concentrates on the areas of antitrust and trade regulation, and from 1979 to 1981 she was attorney adviser in the office of legal counsel in the US DoJ. 

Palo Alto-based Robert Taylor represents Mintz Levin Cohn Ferris Glovsky and Popeo PC in this chapter and has a strong grounding in the IP arena. Taylor chaired the antitrust section of the American Bar Association from 1991 to 1992 and is “extremely well thought of ” in the industry. 

Cooley Godward LLP’s 2006 merger with New York firm Kronish Lieb Weiner & Hellman LLP brought with it a strong practice related to criminal price-fixing, which complemented Cooley’s existing antitrust practice. Craig Waldman splits his time between the San Francisco and Palo Alto of- fices of the combined firm Cooley Godward Kronish LLP and is “well regarded for merger defence and regulatory work”, a legacy from his time at the FTC where he led numerous merger and non-merger investigations. Highlights include serving as counsel for Adobe Systems in its $3.4 billion acquisition of Macromedia as well as being retained by Siebel Systems in its $5.85 billion acquisition by Oracle. Waldman also comes recommended for antitrust litigation and counselling. 

Another Silicon Valley powerhouse, Wilson Sonsini Goodrich & Rosati LLP, boasts one of California’s most respected practitioners: Chris Compton. Compton served as counsel to YouTube in its $1.65 billion acquisition by Google and is said to be particularly good in the high-tech and emerging growth sectors. While much of his time is spent on merger-related work, he also has a strong counselling practice where he advises on issues such as IP, licensing and distribution. Mary Cranston is immediate past chair of Pillsbury Winthrop Shaw Pittman LLP and currently serves as senior partner. Cranston is one of the state’s best-known practitioners and is gearing up her antitrust and securities litigation practices to take on a higher volume of work than previous commitments perhaps allowed. Cranston has worked on both state and federal civil and criminal antitrust investigations and was consistently recommended during our survey. Penelope Preovolos is a partner in the litigation department of Morrison & Foerster LLP and comes recommended as an “outstanding counsellor and very savvy on antitrust distribution and pricing”. Significant matters in which she has been involved include representing Barnes & Noble in an action involving federal and state antitrust claims regarding discriminatory discounts and other benefits from publishers and distributors. The firm obtained summary judgment on all monetary damages claims and settled the remaining ones on favourable terms during the second week of trial. The firm also represents Chanel in In re Cosmetics Antitrust Litigation, a federal and state antitrust litigation alleging resale price maintenance and associated vertical conduct by cosmetics manufacturers and their suppliers. Preovolos’s work on section 17200 of the California Business and Professions Code was also noted. 

Jesse Markham recently joined Holme Roberts & Owen LLP from Morrison & Foerster and serves as co-chair of the firm’s antitrust team. Markham was praised as “intellectually grounded” and a “well- established litigator”. Before joining Morrison & Foerster he worked at Rogers & Wells and Orrick Herrington & Sutcliffe. He also served as deputy attorney general of antitrust for Massachusetts and California. Much of Markham’s time is spent on class actions and recent highlights include obtaining the voluntary dismissal of price fixing and market allocation claims against Canadian company Catalyst Paper in In re Publication Paper Antitrust Litigation. Among other highlights, Markham also represented JPMorgan Chase in In Re ATM Interchange Fee Antitrust Litigation, a group of class actions alleging that setting of the fee that card-issuing banks pay to ATM owners in the Star network amounts to per se illegal price fixing. Markham’s reputation in the field will undoubtedly bolster Holme Roberts & Owen’s presence in the Californian market. 

Arthur Burke practises in the Menlo Park office of Davis Polk & Wardwell. Burke comes recommended for litigation and one source noted, “over the years he has become more active on merger defence”, an area in which he has represented Comcast in DoJ and FTC investigations into deals such as its $52 billion acquisition of the cable and broadband business of AT&T. On the litigation side of the industry Burke represented Oracle in litigation relating to its unsolicited tender offer for PeopleSoft. Fellow partner, Christopher Hockett has worked extensively for Intel, Oracle and T-Mobile, and is said to be “very effective at mobilising his team”. He is serving as lead counsel for Oracle in an action the company brought in March 2007 against SAP, its biggest competitor, alleging violations of the Federal Computer Fraud and Abuse Act, the California Computer Data Access and Fraud Act, the California Unfair Competition Law, and related business torts. Hockett is also serving as lead counsel for T-Mobile in approximately a dozen unfair competition actions in California, Florida, Washington and Idaho regarding handset locking and early termination fees charged to customers. Arnold & Porter LLP is perhaps best known for its strength in the DC market but in the figure of Ronald Redcay it boasts what one prominent source described as an “extraordinary litigator and deep thinker who is good on his feet”. Redcay is a partner in the firm’s LA office and prior to joining the firm served as deputy general counsel of Atlantic Richfield where he worked on a variety of matters including successfully obtaining antitrust clearance in the company’s merger with BP Amoco. Robert Pringle boasts “good trial and counselling skills” and heads the antitrust/ competition practice at Thelen Reid Brown Raysman & Steiner LLP. Sources noted his work on the DRAM litigation and he is said to have “been doing antitrust for many years”. 

As noted, California also maintains an active plaintiff ’s bar and its most prominent players are listed on the following pages. Gene Crew of Townsend and Townsend and Crew LLP has tried cases across a variety of industries and is “well regarded with lots of experience”. Boasting “more big antitrust verdicts than just about anyone I know”, according to one rival, he is perhaps best known for his work on the Microsoft class action litigation where he was lead counsel for the plaintiffs in a case which settled in 2003 with Microsoft agreeing to pay $1.1 billion to the class and for the bulk of any unclaimed funds to go to the California Department of Education for the purchase of computer products for the state’s schools. Max Blecher of Blecher & Collins is a “towering figure on the plaintiff side” and is rated by sources as “an exceptional trial lawyer”. Blecher is a fellow of the American College of Trial Lawyers and significant matters include representing a group of 10 service operators in a suit against Eastman Kodak which resulted in a $72 million judgment for the plaintiffs. One of Blecher’s primary skills is said to be his “ability to take complex economics and make a good antitrust case”, and he emerges as the most highly nominated plaintiffs lawyer in the chapter. William Bernstein of Lieff Cabraser Heimann & Bernstein LLP is another “leading figure” on the plaintiff ’s side and representative matters include successful prosecutions on price fixing in the pharmaceuticals industry on behalf of retail pharmacies as well as achieving charges against natural gas marketing companies for the manipulation of the price of natural gas in California. Bruce Simon practises at his own firm and was described by one leading light as “a powerhouse”. Joseph Alioto at the Alioto Law Firm completes our breakdown of California’s most prominent players. Rated as “one of the most significant plaintiffs lawyers in San Francisco”, he has launched successful cases across a diverse set of industries including pharmaceuticals, automobiles and newspapers, to name but a few.

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