Strategic Research Sponsor of the American Bar Association's Section of International Law
John D Harkrider
Office:
114 West 47th Street
10036-1510
City:
New York
State:
New York
Country:
USA
Tel:
+1 212 728 2210
Fax:
+1 212 728 2201

Questions and Answers:

Who's Who Legal Thought Leaders - Competition: Lawyers

John Harkrider has been lead or co-lead counsel on nearly half a trillion dollars’ worth of M&A deals, including cross-border deals such as Thermo/Life Technologies and Ball/Rexam as well as Google/Motorola and Google/ITA. He was named American Lawyer Litigator of Week for his representation of Google, and GCR Lawyer of the Year for his representation of Tyson and Thermo Fisher. He has represented Google, Motorola Mobility and Red Hat on competition deals involving standard essential patents and privateering.  

WHAT ATTRACTED YOU TO A CAREER IN COMPETITION LAW?

Antitrust allows me to address the proper role of government in addressing market imperfection in a rigorous manner, with deep access to facts and in collaboration with leading economists. In this capacity, I’ve been able to work with clients such as Google, Apple, Tyson Foods, Thermo Fisher Scientific, Red Hat, Dell and EMC and with Nobel Prize winners Jean Tirole, Eric Maskin and Dan McFadden. 

WHAT HAS BEEN THE MOST EXCITING COMPETITION MATTER YOU HAVE WORKED ON?

Representation of Google on both M&A and patent work has been extremely challenging. Because Google is a disruptive firm it challenges the profits of incumbent firms by providing innovative products at low and frequently free prices. Rivals of Google complained to regulators and petitioned them to prevent Google from offering great products at a lower price. Thankfully, regulators in the United States were able to see through these efforts and protect consumers instead of incumbents. 

WHAT WAS THE MOST CHALLENGING ASPECT OF LEAVING AN ESTABLISHED LAW FIRM TO FORM A NEW MARKET PLAYER?

To convince clients that they should split their antitrust work from the corporate work; and to convince the corporate firm advising the client on the deal that you are neither a threat nor an obstacle. This means that you need to treat the corporate firm as the client, keeping them informed, seeking their judgement and views, and working tirelessly to get the deal closed.

TO WHAT EXTENT IS THE FTC AT THE FOREFRONT OF COMPETITION MATTERS IN THE US AND GLOBALLY?

I have great respect for the FTC but would not say they are more at the forefront of competition matters than the DOJ. I do believe, however, that the FTC/DOJ continue to set the global standard for fact-based analysis focused on improving consumer welfare.

WHAT DO GLOBALISATION AND A MORE DIVERSE GLOBAL ECONOMY MEAN FOR LAWYERS AND POLICYMAKERS IN THE FIELD OF COMPETITION?

Large mergers require filings in dozens of jurisdictions, which requires one to understand how a decision by one jurisdiction to extend or close an investigation impacts the decision in another jurisdiction. This requires a deep understanding of the legal, political and cultural reality of jurisdictions as diverse as China, Europe, Brazil and the United States.

WHAT ADVICE WOULD YOU GIVE TO ASPIRING COMPETITION LAWYERS?

There is no guarantee you are the smartest person in the room, so the only thing you can control is that you are the hardest working.

IS THERE CURRENTLY AN EFFECTIVE MERGER CONTROL REGIME IN THE US?

Very much so. It is rigorous, fact-based and free of political interference and still focuses on consumer welfare.

YOU HAVE ENJOYED A DISTINGUISHED CAREER SO FAR. WHAT WOULD YOU STILL LIKE TO ACHIEVE?

I’d love to have the opportunity to set policy at the FTC or DOJ.

Biography:

Who's Who Legal Competition: Lawyers

John D Harkrider left Skadden, Arps in 1995 to become a founding partner and now co-chair of Axinn's antitrust practice. In 2013 he was selected as Litigator of the Week by American Lawyer; in 2012, John was named lawyer of the year by Global Competition Review and was listed as a most valued person (MVP) in competition by Law360.

Representative merger work includes acting for Dell in its US$67 billion acquisition of EMC; Ball in its US$6.7 billion acquisition of Rexam; Thermo Fisher Scientific in its US$13.5 billion acquisition of LIFE Technologies; Stanley Black & Decker in its acquisition of Craftsman brand from Sears; Google in its US$12.5 billion acquisition of Motorola Mobility and US$700 million acquisition of ITA; and BellSouth/Cingular in its US$41 billion acquisition of AT&T Wireless and US$67 billion acquisition by AT&T.

Representative conduct investigations as lead counsel include Google with respect to the FTC's investigation into its use of standard essential patents; Stanley Black & Decker with respect to Made in USA claims under Section 5 of the FTC Act; and GSI/eBay with respect to conspiracy claims before the NY Attorney General.

Representative first chair antitrust litigation work includes Black & Decker in a conspiracy claim made by SawStop in the Eastern District of Virginia; Tyson and George's with respect to Tyson's sale of assets to George's in the Western District of Virginia; SunGard in a merger challenge by the Department of Justice, Omnicare in its Sherman Act claims against United Health; and United Technologies Corporation in connection with Walker Process and Handgards claims in the Northern District of Illinois, and the District of Maryland.

Mr Harkrider has published extensively on antitrust including “Cash Tender Offers Under the HSR Act: Protecting an Efficient Market for Corporate Control” (Antitrust, Autumn 2016); “Working the Clock: Strategic Choices in Managing Global Regulatory Review Timelines” (ABA, 2016); “Seeing the Forest Through the SEPs” (Antitrust, Summer 2013); “Obama: the First Year” (Antitrust, Summer 2010); "Lessons from the Great Depression" (Antitrust, Spring 2009); "Antitrust Enforcement During the Bush Administration: An Econometric Estimation" (Antitrust, Summer 2008); “Econometrics: Legal, Practical and Technical Issues" (ABA); "Risk-Shifting Provisions and Antitrust Risk: An Empirical Examination" (Antitrust, Autumn 2005); and "Proving Anticompetitive Impact: Moving Past Merger Guidelines Presumptions" (2004 Milton Handler Antitrust Review, 2005; Columbia Business Law Review 317, 2005).

Mr Harkrider obtained his law degree in 1991 from the University of California Hastings College of the Law, where he was a member of the Order of the Coif. He obtained his BA from the Honors College at the University of Michigan in 1988, where he graduated with highest honours. He also went through a PhD programme at the University of Michigan (did not complete dissertation).

He has been on the editorial board of Antitrust (ABA) from 2007 to present, and was the vice chair of the economics committee of the antitrust section from 2003 to 2006.

WWL says: John Harkrider is one of the USA's most prominent antitrust litigators, with an unrivalled corporate practice as well as deep expertise in litigation and agency investigations.

This biography is an extract from Who's Who Legal: Competition which can be purchased from our Shop.

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