McDermott Will & Schulte, a global law firm

Effective anticorruption compliance is critical to any company operating internationally. We regularly conduct internal investigations of reported concerns under the Foreign Corrupt Practices Act (FCPA) and other anti-bribery laws to determine the veracity of allegations and to advise companies on responding effectively, including taking steps to reduce opportunities for future misconduct. We also defend companies and individuals in government enforcement and regulatory investigations by authorities in the United States and other countries.

We leverage our investigations and defense experience to assist clients in developing effective compliance programs and with appropriate compliance policies, procedures and training designed to enhance rather than disrupt business operations. We conduct global compliance risk assessments to help our clients make informed decisions on how to allocate compliance resources. We assist clients in conducting anticorruption due diligence and drafting strong contracts in cross-border deals and engagements of third-party representatives in order to mitigate the significant anticorruption risks those relationships present.

Our team includes former senior lawyers from the US Department of Justice (DOJ), US attorneys' offices and the US Securities and Exchange Commission (SEC), and individuals with deep in-house compliance, computer forensics and accounting experience, who collaborate to provide clients with the multidisciplinary experience and counsel that anticorruption matters often require.

They got great results for us in our toughest litigation. In court, they are fierce competitors and well-prepared advocates.
– Client Testimonial

McDermott Will & Schulte lawyers have been on many of the landmark antitrust litigation cases of this century. From securing summary judgment in the precedent-setting price-fixing chocolate confectionary litigation to prevailing on behalf of several hospital systems in the first batch of wage-fixing class actions, we have successfully litigated and defended on appeal the full gamut of novel antitrust cases.

Clients turn to us for our enviable track record in cutting-edge matters and unparalleled experience as lead counsel on actions involving:

• Price-fixing
• Cartels
• Monopolization
• Tying
• Dealer terminations
• Group boycotts and refusals to deal
• Exclusive dealing
• Antitrust counterclaims in patent and trademark litigation
• Litigated challenges to mergers and acquisitions

Our antitrust class action defense lawyers are some of the most experienced in the United States, and we are on the pulse of litigating private competition law damages claims in Europe. We regularly represent clients before foreign and domestic regulatory agencies, including the Federal Trade Commission (FTC), the US Department of Justice (DOJ), state attorneys general and the European Commission (EC) Directorate-General for Competition. We also represent clients in competition litigation in European Union and Member State courts.

Members of our team previously held key positions regulatory and law enforcement agencies, including the FTC, the DOJ and the EC.

Who We Represent

Understanding our clients’ industries is paramount to litigation success. Our experience encompasses most markets, and we regularly deliver results for clients from all sectors of the economy, including the following:

• Consumer products
• Food, beverage and agribusiness
• Healthcare
• Life sciences
• Financial services
• Insurance
• E-commerce
• Digital advertising
• Aerospace and defense
• Chemicals
• Energy
• Manufacturing
• Technology

The firm performs at a very high level.
– Client Testimonial, Chambers USA

McDermott Will & Schulte has extensive experience successfully defending antitrust criminal cartel investigations at every step, including those brought by the US Department of Justice (DOJ). We recognize that targets of government cartel investigations and defendants in litigation need real-world options in a fast-paced, high-pressure environment.

The team’s record of success speaks to the quality and efficiency of our representation. We help clients respond immediately to coordinated actions of regulatory and law enforcement officials around the world (including so-called “dawn raids”).

Our areas of focus

Drawing on our firsthand knowledge of agency priorities and investigative procedures, we develop compelling arguments that demonstrate the validity and legality of our clients’ business practices. Our all-encompassing capabilities include:

• Handling amnesty and leniency applications
• Defending grand jury investigations
• Conducting thorough internal investigations to determine the facts, secure documents, ensure forensic evidence preservation and develop compelling defenses
• Securing the lowest fines and reaching non-prosecutorial agreements and immune status for individuals
• Successfully defending criminal trials

Our antitrust team also represents clients in follow-on civil litigation proceedings, helping clients navigate complex antitrust challenges and deliver optimal results.

Based in our Brussels office, McDermott Will & Schulte’s EU Competition team provides end-to-end antitrust and competition representation before the European Commission, other EU institutions and the various national competition authorities.

Our multilingual, multinational team of competition lawyers counsels clients on the entire spectrum of competition issues, including:

• Merger clearance, including structuring and presenting transactions, managing notification processes for multinational transactions, and developing timely, cost-effective strategies for obtaining regulatory clearance
• Cartels, including providing coordinated advice in the EU, United States and elsewhere to defend international cartel investigations and prosecutions
• Horizontal and vertical agreements, including advising on joint research and development, standardization, and supply and distribution agreements
• Abuse of dominance, including defense of companies against regulatory allegations and private complaints of infringement, and pursuing redress on behalf of clients victimized by dominant competitors and suppliers
• State aid, including analyzing the legal situation and drafting documents
• Compliance, including performing competition law compliance audits and helping clients address related regulations involving commercial bribery, data protection, privacy, trade and intellectual property
• Competition litigation, including providing sophisticated defense of clients in national and EU courts in class actions and multi-jurisdictional proceedings.

Our clients include many of the premier international enterprises whose products are major household names, as well as many of the world’s top manufacturers, suppliers, distributors and service providers. We have firsthand experience and a deep understanding of the industries in which our clients operate, including life sciences, chemicals, energy, food and beverages, manufacturing, technology and networks.

[McDermott Will & Schulte] shines particularly in the defense of antitrust claims in the healthcare and pharmaceuticals space.
– The Legal 500 US

Grounded in McDermott Will & Schulte’s approach of providing practical advice and tailored solutions, our health antitrust lawyers address the healthcare industry’s unique challenges with business-friendly strategies. Clients in this heavily regulated, rapidly evolving space turn to us for our creative defense of deals, government investigations and litigation.

We use pragmatic yet innovative tactics to respond to antitrust claims and risks. Our clients include:

• Pharmaceutical and medical device manufacturers
• Medical wholesaler distributors and group purchasing organizations (GPOs)
• Health InsurTech companies
• Hospitals and providers
• Payors
• Pharmacy benefit managers (PBMs)
• Health private equity firms

Deals

With the weight of our top-ranked healthcare law firm behind them, clients rely on and trust us to navigate highly complex antitrust issues. We guide them through the antitrust implications of mergers, acquisitions and joint ventures.

Thanks to our advocacy and other strategic actions, we have handled dozens of major US Federal Trade Commission (FTC) healthcare investigations that we guided through to close while avoiding any challenge. On the pulse of the FTC’s and US Department of Justice (DOJ)’s increasing focus on health antitrust issues, our team also advises on vertical and conglomerate mergers, serial acquisitions (e.g., rollups) and platform deals.

Government Investigations

Government agencies are ramping up their scrutiny of potential anti-competitive activity in the healthcare industry. Our health antitrust team stands prepared to represent clients through resulting investigations.

On behalf of our clients, we regularly handle investigations into allegations ranging from market allocation to criminal wage-fixing brought by the FTC, DOJ and state attorneys general – working swiftly and effectively to resolve inquiries.

Litigation

When we’re called upon to defend them, our clients know they are in the capable hands of first-chair litigators. Our team has decades of experience defending antitrust claims before courts around the United States.

Our track record includes successfully defending some of the largest health organizations against antitrust violations and class action litigation. However, we don’t just copy and paste the playbook from our past victories. We offer each client a tailored strategy supported by our extensive knowledge and unparalleled litigation skills to achieve the optimal result for their business.

Just one example of our industry-leading experience is McDermott Will & Schulte’s representation of a former senior executive at DaVita. In this first-ever criminal “no poach” market allocation case, we served as lead counsel from the outset of a DOJ investigation through the not-guilty jury verdict.

The [firm’s] lawyers are sophisticated in their advice as well as thorough in their planning and solutions.
– Chambers USA

Antitrust authorities around the world have increasingly focused their attention on the interplay between competition law and intellectual property (IP) law. Indeed, the European Commission, the US Federal Trade Commission and other enforcement authorities have shown considerable willingness to investigate and challenge IP-driven transactions in IP-sensitive industries, often relying on completely new theories of harm which require careful analysis. Investigations and litigation in this context can result in severe penalties including fines, injunctive relief, (treble) damages and unenforceability of agreements and patent rights.

At McDermott Will & Schulte, we understand the business needs associated with the acquisition, licensing and restrictions on the use of IP rights. More importantly, we are aware of the strategic importance of IP and of the true commercial value of such assets. In helping our clients protect and capitalize on proprietary technologies, we focus on pragmatic and business-friendly advice, rather than providing theoretical assessments and opinions. Our antitrust and IP lawyers work hand-in-hand with a view to providing solution-oriented guidance on how to use IP most efficiently without risking competition law exposure. Likewise, we can advise on how clients may use antitrust laws to defend their businesses against anticompetitive use of intellectual property by others.

The apparent tension that exists between these two areas of the law stems from the fact that, while antitrust seeks to protect competition, IP laws grant time-limited statutory monopolies. Antitrust issues in IP cases most commonly arise in a variety of situations including concerns raised with respect to the licensing of technology, standard-setting and patent-pooling arrangements, fraudulent and bad faith patent enforcement, the exercising of patent holder rights in respect to an invention, and holders rights of standard-essential patents in their access to injunctive relief vis-à-vis parties.

We offer a unique international platform for the coordination of legal and technical efforts, and a one-stop shop for global antitrust counseling. Our lawyers are not only highly qualified and dedicated professionals, but also hold invaluable insights into the enforcement priorities of antitrust regulators across the world.

[McDermott Will & Schulte has] considerable expertise in handling complicated merger clearances.
– Chambers USA

Our team's global antitrust and competition team has extensive experience in all facets of the merger review process. We understand the concerns of business leaders and regulators alike across the world and have a reputation for success in even the most difficult, complex deals.

Companies need to navigate multiple regulatory regimes to complete their M&A transactions, including antitrust reviews, foreign investment notifications and foreign subsidies regulation. Our team's practical, efficient advice helps clients navigate these regimes and delivers successful outcomes to get their deals closed. With lawyers in the United States, the United Kingdom, Germany, France and Belgium, our team prepares our clients for merger regulatory trends and new regimes.

Antitrust/Competition Law Filings and Clearance

In the increasingly complex regulatory landscape, businesses must have a captain with the experience necessary to handle government investigations and coordinate across filing regimes.

We regularly defend clients in merger-related antitrust investigations and inquiries before the US Federal Trade Commission (FTC), the US Department of Justice (DOJ), the European Commission (EC) and other international jurisdictions. We work hand-in-hand with clients at every step, from the earliest transaction consideration through the initial waiting period and, when required, compliance with agency requests for additional information, including “second requests.” When necessary, we vigorously defend transactions in court.

We also represent third parties that wish to oppose transactions before the FTC, DOJ and regulatory bodies in other major jurisdictions, and we manage local counsel effectively when filings are required in locations where we do not have an office. In addition, we assist companies in obtaining regulatory clearance for their purchase of assets being sold under a divesture order. For example, we represented FactSet in obtaining EC-suitable purchaser approval for its acquisition of S&P’s CUSIP Global Services business for $1.9 billion when that business had to be divested to resolve EC concerns with the merger between S&P and IHS Markit.

Clients value our ability to overcome regulatory hurdles and to do so quickly. The key to our success is our technically skilled and practically oriented team, including many former regulators with outstanding relationships with investigators and prosecutors. Globally, we anticipate issues rather than wait for regulators to find problems. We learn the industry and clearly communicate with agency staff so that we can address issues early on and avoid a lengthy investigation where possible.

We continue to explore creative ways to obtain merger clearances swiftly and efficiently. For example, we obtained a very rare derogation (non-enforcement) of the premerger waiting period in an acquisition that needed to be closed very rapidly to comply with European Union (EU) regulations arising from the ongoing conflict in Ukraine. Our team brings significant depth in navigating the multifaceted and complex intricacies of compliance with the Hart-Scott-Rodino Act (HSR) and multijurisdictional merger filing analysis. We have a large HSR team, headed by a former member of the FTC’s Premerger Notification Office who is highly skilled in assessing transactions for reportability, reporting and expediting transactions wherever possible. Our team is one of the most frequent filers, and we recently made over 100 HSR filings in a single year.

Foreign Direct Investment

The number of jurisdictions imposing foreign direct investment (FDI) filing requirements is growing substantially in light of changing geopolitical dynamics and the increasing use of cross-border restrictions to support national security interests. Our team has the practical know-how to navigate FDI regimes around the world to manage the filing strategy for our clients wherever needed. Clients benefit from leveraging not only our in-house global team but also our strong relationships with peer firms and local experts across the world. We provide prefiling screenings for reportability and lead the filing process from start to finish.

Foreign Subsidies Regulation

The EU Foreign Subsidies Regulation (FSR) implemented in 2023 presents an unprecedented regulatory obstacle for global M&A transactions. We guide clients through the additional hurdles and mandatory filing requirements and advise on developing and implementing proactive tracking procedures for financial contributions received from non-EU member states to allow companies to comply with the new regulation.

Our team thrives on developing lasting relationships with clients through which we develop keen insights into their businesses, competitors, and strategies. This allows us to serve as strategic counselors across their competition law requirements.

We assist not only with major events such as litigations, investigations, and M&A, but also in a broad range of day-to-day business counseling. Effective counseling can mitigate investigations and litigation for clients.

We regularly assist clients in connection with the following issues:

• Antitrust compliance programs and audits
• Competitor collaborations and teaming arrangements
• Trade association membership and conduct
• Interlocking directorate counseling under the Clayton Act
• Distribution network structuring, including dealer terminations
• Robinson-Patman Act/price discrimination
• Resale price maintenance/minimum advertised pricing programs
• Exclusive contracts
• Refusals to deal with rivals
• Pricing and discounting arrangements, including loyalty and bundled discounts
• Multiproduct arrangements raising tying or bundling considerations
• Intellectual property restrictions
• Standard setting

We have been at the forefront of many of the landmark antitrust litigation cases of this century and have played a leading role in numerous major criminal cartel investigations brought by the US Department of Justice and other international enforcers. Our lawyers can assist companies and individuals at every step when they’re faced with government investigations, criminal cartel defense, class action defense, and other civil litigation.

We understand the concerns of business leaders and regulators alike across the world and have a reputation for success in even the most difficult, complex deals. A substantial portion of our M&A work involves situations where we are hired specifically to handle the merger clearance process while other leading international firms manage the corporate transaction. Our antitrust team has extensive experience handling matters involving:

• Hart-Scott-Rodino Act and US merger clearance
• European Commission and member state merger notification and clearance
• Multijurisdictional filing assessment and management
• Representing third parties impacted by a merger or acquisition, including fast-turn responses to enforcers’ data demands
• EU Foreign Subsidies Regulation
• Foreign Direct Investment assessment and filings
• EU competition law
• European state aid counseling and litigation