Off the back of Freshfields’ recent recruitment of former FTC commissioner Christine Wilson into its US antitrust practice as a senior adviser, LB looks at the growing importance of competition law, and what it means for the firm’s global strategy
Freshfields has in recent years arguably made greater strides than most peers in investing in its US business. Insiders stress that this is part of a worldwide push for ‘global elite’ status – a strategy that sees the firm aim to be, in the words of global antitrust, competition, and trade group head Alastair Chapman, ‘a US firm for US clients, a European firm for European clients, an Asian firm for Asian clients, and a global firm for all our clients’.
Antitrust has emerged as a core element of this strategy. ‘Competition has always been one of our premium products,’ says global managing partner Alan Mason. ‘Our US antitrust practice is the same size as our London and Brussels practices and all three are integral to providing our clients with an integrated global offering which is essential at a time when antitrust agencies around the world are coordinating with each other more than ever before.’
‘It’s no secret that the US and UK antitrust authorities have become two of the most interventionist regimes,’ notes Chapman. In this environment, ‘You can’t think about the FTC [Federal Trade Commission] or the CMA [Competition and Markets Authority] alone.’ And Freshfields aims to provide ‘joined-up advice on all of those regimes.’ Wilson concurs: ‘I have been at other international law firms, and I have been known to encourage other law firms to open offices in other important antitrust jurisdictions. And when I was a client working at Delta Air Lines I wanted counsel that could provide seamless antitrust support across all those jurisdictions.’
And Wilson’s hire is the latest of many high-profile recruits to the practice. CMA senior director Colin Raftery joined Freshfields in London in October 2023. Last June saw the firm add antitrust litigators Heather Lamberg in Washington DC and Justina Sessions in Silicon Valley, while antitrust and foreign investment partner Charlotte Colin-Dubuisson joined in Paris this January. US antitrust, competition, and trade head Jamillia Ferris joined from Wilson Sonsini in September 2022.
‘Freshfields aims to be a US firm for US clients, a European firm for European clients, an Asian firm for Asian clients, and a global firm for all our clients.’
Alastair Chapman, Freshfields
And Freshfields is not the only firm expanding in competition. Eye-catching London moves over the last year include Linklaters partner Simon Pritchard’s exit for Latham & Watkins in March, Linklaters’ October hire of Addleshaw Goddard competition head Bruce Kilpatrick, and Paul Weiss’ December hire of Linklaters antitrust and foreign investment practice head Nicole Kar. All three are in the Legal 500 Hall of Fame for EU and competition.
Perhaps more than most, though, Freshfields is keen to show it can make similar moves to those of major US firms. On this front, Wilson’s FTC experience is notable. Her departure last February followed that of fellow Republican Noah Phillips, who joined Cravath as a partner in October 2022.
Moves between government and private practice are common in the US – of the five Legal 500 merger control Hall of Famers, only Davis Polk’s Ronan Harty has no FTC experience. Weil’s Steven Newborn was director of litigation at the FTC’s bureau of competition before leaving in 1994, while Cleary Gottlieb’s George Cary was a competition bureau deputy director until 1998. Kirkland’s Matthew Reilly was deputy assistant director of the Mergers I division 2004-07 and assistant director of Mergers IV 2007-12. And Arnold & Porter’s global antitrust group head Debbie Feinstein left A&P for the FTC in 2013, where she served as competition bureau director before rejoining her firm in 2017. Four of the six commissioners who left the FTC in the last decade also returned to private practice.
In a UK context, ‘Christine is in the nicest possible way relatively unusual,’ says Chapman. ‘She’s got this ideal combination of private practice, in-house, and regulatory experience.’ And while Wilson acknowledges ‘concerns from some stakeholders about what they view as a revolving door’, she argues that her experience allows her to better counsel clients on compliance: ‘I understand what it is that regulators want to see in terms of business conduct.’
Though it is by no means unheard of for UK firms to hire from government agencies, Raftery’s hire can be seen as an attempt to bring the benefits of this more American approach to the UK.
‘Almost a new practice area’
There is no shortage of high-profile cross-border antitrust interventions, with the protracted saga of Microsoft’s acquisition of Activision Blizzard among the most notable. The FTC’s attempts to block the merger were shot down in the courts, and the FTC withdrew its challenge in July 2023. This left the CMA, in the words of one antitrust partner at another firm, ‘standing on the world stage, naked’. Out on a limb, the CMA, in the words of another partner, ‘bent over backwards’. It dropped its opposition and the merger completed in October 2023. While the circumstances of this case were unusual, the message to dealmakers was clear: now more than ever, those seeking to do major M&A deals must pay close attention to regulators, not just in the US but around the world.
But Freshfields’ antitrust ambitions are not limited to transactional support. ‘We don’t see antitrust as just merger control,’ explains Mason. ‘In fact, there’s almost a new practice area evolving at the intersection of antitrust, foreign investment, consumer protection, data, cyber, and litigation.’
Clients need straight regulatory advice, of course. But Freshfields also sees opportunities in litigation. The firm is already representing Google in an antitrust suit brought by eight states and the Department of Justice (DOJ), with a team led by global antitrust litigation group co-head Eric Mahr, who joined from the DOJ in February 2018.
In the UK, meanwhile, London managing partner Mark Sansom is acting for the defendant in Merricks v Mastercard – a high-value piece of group litigation with major significance for the developing Competition Appeal Tribunal (CAT) regime. Opt-out class actions are only permitted in the CAT, and government proposals to override the PACCAR ruling’s ban on damages-based agreements (DBAs) in litigation funding would allow DBAs only in the CAT. Expertise in competition law will thus be crucial to UK firms that want to capitalise on large-scale funded group litigation.
‘We don’t see antitrust as just merger control. In fact, there’s almost a new practice area evolving at the intersection of antitrust, foreign investment, consumer protection, data, cyber, and litigation.’
Alan Mason, Freshfields
‘We have talked a fair amount about antitrust and competition law,’ says Wilson, ‘but other areas where the jurisdictions have engaged in a fair amount of cooperation or at least discussion cross-border include consumer protection and data security.’ The scope for data class actions in the UK is uncertain. The CAT declined to certify putative class representative Dr Liza Lovdahl Gormsen’s claim against Meta. But it also allowed Lovdahl Gormsen to reformulate her claim at a hearing in January. Judgment is expected within months, and will send a clear signal as to what sort of claims the CAT will allow. Regardless, few doubt that both data disputes and regulatory activity on data will increase.
Foreign investment, too, offers opportunities. ‘When we think about transactions in the States we think typically about merger control, about getting through the FTC and the DOJ,’ says Chapman. ‘But the other thing to add for non-US investors is the foreign investment regime: when you want to get a deal over the line, you need to think about CFIUS as well.’ The reference to CFIUS, the committee on foreign investment in the US, is not incidental: foreign investment and national security partner Aimen Mir joined Freshfields’ Washington DC office from CFIUS in February 2019, and CFIUS head Brian Reissaus joined as a senior adviser in December 2023.
As always when firms make a big US push, Freshfields is open to the accusation that it is spending a lot of money without much return. However, positive signs are visible in the firm’s work for Google. But Google is already an established client in other jurisdictions, and critics argue that the firm has yet to demonstrate that it can win over major new clients with its US antitrust offering – though the late January announcement that Freshfields is acting as antitrust and regulatory counsel for Hewlett-Packard’s acquisition of Juniper Networks may indicate a shift on this point.
US commentators remain split – though even sceptics of Freshfields’ success in other areas rarely point to antitrust hires as poor investments.
One thing, though, is undeniable: Freshfields is putting its money where its mouth is.