Antitrust/Competition

US Criminal and Civil Investigations and Litigation

• Won dismissal on summary judgment of antitrust and unfair competition claims seeking $900 million in damages for attempted monopolization of wholesale power in the Carolinas brought against Duke Energy Corp.
• Obtained dismissal of a multi-district litigation encompassing more than a dozen antitrust actions brought by putative classes of students and off-campus booksellers alleging an unlawful conspiracy among publishers and on-campus bookstore operators to fix prices and eliminate competition in the market for higher education course materials.
• Defended National Milk Producers Federation, a federation of US dairy cooperatives, in several direct and indirect civil class actions under federal and state law. The claims sought damages allegedly caused by a long-running federation program relating to supplies of raw milk linked to some $9.5 billion worth of higher payments to dairy farmers. The cases raised fundamental yet rarely addressed questions of the scope of statutory exemptions from antitrust laws for agricultural cooperatives. These matters each settled for a small fraction of the alleged damages.
• Won summary judgment for Aquestive, an upstream supplier to a pharmaceutical company, in US federal litigation regarding antitrust conspiracy and product-hopping allegations brought by 42 state attorneys general. Our summary judgment motions raised unique issues concerning whether a supplier of innovative technology to a pharmaceutical manufacturer may be held liable as a co-conspirator in the drug company’s efforts to engage in lifecycle management for its products.
• Represented a company CEO and multiple sales executives in relation to civil cases and a criminal investigation for alleged price-fixing conspiracy by poultry processing companies regarding the prices of broiler chickens.
• Secured a victory for Georgetown Day School (GDS), in connection with a US Department of Justice Antitrust Division investigation of eight DC-area private schools. The schools were alleged to have collectively agreed to stop offering Advanced Placement classes by 2022, in violation of the Sherman Act. After a two-and-a-half year investigation, culminating in the submission of an extensive white paper addressing the legal and factual problems with the allegations, the Antitrust Division announced its decision to decline to bring an enforcement action against GDS and the other schools.
• Defended NYK Group, a leading Asian shipping group in the roll-on-roll-off car carrier cartel investigation by the European Commission, leading to multi-party settlement and seven related follow-on private damages claims, in a number of jurisdictions and including one of the first UK competition law class actions.
• Represented a national service provider in investigation by attorneys general of New York, Florida, and Ohio into allegations of coordination with competitors relating to contracting practices, resulting in no action taken.
• Represented Amadeus as a defendant against claims alleging conspiracy among three global distribution systems to impose substantially similar terms to distribute airline tickets. The case involved complex regulatory questions and developments in high-technology markets, and was settled on favorable terms.
• On behalf of Arizona Public Service Company, persuaded the DOJ Antitrust Division to challenge the proposed Energy Solutions-WCS merger that would have reduced competition in processing of nuclear waste and assisted DOJ at the successful trial that blocked the transaction.
• Defended Korean food manufacturer Yakult in a class action alleging price-fixing of products made in Korea and sold in the US. Obtained the only complete dismissal of for any defendant in the action, which continued against other against defendants.
• Persuaded the DOJ Antitrust Division to abandon the largest monopoly investigation in the history of the electric power industry. After more than two years of investigation and review of millions of documents, the DOJ readied to bring a landmark monopolization case challenging our client utility’s generation procurement and transmission planning practices, and threatening divestiture. After Steptoe presented the client’s factual and economic case to Antitrust Division management, DOJ elected not to go forward.
• Counsel to multiple clients, including an amnesty applicant, in connection with DOJ Antitrust Division’s investigations into the auto parts industry. Steptoe conducted an internal investigation, prepared witnesses for on-the-record proffer interviews by government investigators, and negotiated final resolutions in both the criminal matter and follow-on class action and opt-out litigation.                             

European Union/United Kingdom Investigations and Litigation

• Achieved a dismissal in English High Court for an Asian carrier regarding follow-on damages claim to the air cargo cartel infringement decision that the European Commission adopted. Settled the same matter for a second carrier.
• Secured immunity for Japanese auto parts manufacturer in European Commission cartel investigation and subsequently defended it in follow-on damages claim.
• Successfully defended a Japanese bank in the European Commission's LIBOR cartel investigation.
• Defended a Japanese shipping company in the European Commission's car carrier cartel investigation and in multiple private damages follow-on actions in the English courts.
• Representing two UK companies in ongoing challenge to Norwegian wool subsidy scheme in multiple courts, including bringing and arguing appeal before the EFTA Court.

Mergers, Acquisitions, & Joint Ventures

• Represented DISH in successfully challenging the proposed merger of T-Mobile and Sprint, forging a remedy to make DISH the fourth mobile carrier alongside T-Mobile, AT&T and Verizon, and then successfully defending the merger as conditioned in antitrust litigation in two federal courts.
• Successfully advised Public Service Enterprise Group, Inc. and PSEG Power for antitrust and related regulatory approval issues in the proposed sale of its fossil generating fleet to PSEG’s generation competitors. This is one of the largest fossil fleets in the PJM regional market.
• Represented American Express Global Business Travel in the US and international antitrust review of its 2021 acquisitions of Egencia, the leading digital travel management platform, from Expedia Group, and of Ovation Travel Group, including Lawyers Travel. These acquisitions followed on the 2018 acquisition of Hogg Robinson Group, another leading global travel management company.*
• Representing BNSF Railway Company before the Surface Transportation Board in proceedings regarding the proposed merger between Canadian Pacific Railway Limited and Kansas City Southern Railway.
• Represented Entergy in connection with its acquisition of a power plant before the DOJ Antitrust Division. Successfully obtained clearance for the transaction following the DOJ’s Second Request investigation.
• Successfully overcame horizontal and vertical merger issues for Fresenius Medical Care to close the multibillion-dollar acquisition of the largest home hemodialysis equipment supplier, following an FTC Second Request investigation.*
• Provided creative transaction structuring advice that was critical in facilitating the $18 billion investment by SK Hynix in Toshiba’s NAND (flash memory) business.*

*Matters handled at prior firm.