Trained in the EU and the US, Daniel Bitton navigates clients through high-stakes antitrust matters across the globe, including representing Google in various federal and state investigations of its business practices in the US and inquiries in other jurisdictions. He is regular antitrust counsel to Google, McKesson, and Stanley Black & Decker, and has also represented clients such as Dell and Thermo Fisher Scientific in major global merger clearance investigations. He also defends foreign and domestic clients in high-stakes antitrust litigation and class actions.
What qualities make for an effective competition lawyer?
Industry knowledge and commercial awareness: know your client’s business inside out and make sure you truly understand their business model and objectives. Intellectual curiosity and stubborn diligence: stay intellectually curious and pressure test what you learn. Strategic mind: understand and play out the incentives of all stakeholders involved to optimise outcomes. Hardworking: work harder than everyone else.
How have the US competition authorities’ approach to competition regulation developed since you started practising?
The approach has not changed in any truly material sense, other than slight pendulum swings from more to less aggressive antitrust enforcement as administrations change. Sure, there have been important developments in the law (e.g., Trinko, Leegin, AMEX), and new or updated agency guidelines and procedures (e.g. horizontal and vertical merger guidelines). But none fundamentally changed things; mostly it reflected adaptation to already evolved practice and thinking. There are currently proposed bills in the US to amend the antitrust laws with respect to mergers and single-firm conduct. In addition, the majority staff of the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law recently issued a report recommending similar and additional changes to the antitrust laws, as well as sector-specific regulation and structural interventions for tech. However, a response from minority members of the House indicates that the recommendations in the majority staff report are not uniformly supported. Certain antitrust agency officials also have expressed disagreement with the recommendations of the majority staff report. It is not yet clear what will come of the proposed bills or the recommendations made in the majority staff report. It may depend, in part, on the outcome of the elections. If any of the proposed bills or majority staff recommendations were to make it into law, it could mean a significant change for the approach to antitrust in the US, depending on how such legislative change would be applied by the courts.
To what extent is antitrust becoming more politicised?
I’ll let others be the judge of that, and simply note the following recent trends and developments. Antitrust has received much more attention from politicians and presidential candidates in recent years than it had for decades prior. News reports and the recent congressional hearings suggest that there are diverging reasons among politicians for their focus on antitrust. Recently, a career DOJ lawyer testified in a house judiciary committee hearing that he believed that certain antitrust investigations were politically motivated.
What key trends are you noticing in the healthcare sector, and how are they affecting your practice?
There has been substantial vertical integration through mergers in healthcare. To the extent that remains a trend, the US agencies’ new vertical merger guidelines will be an often-consulted resource in my healthcare practice. During the coronavirus pandemic, there has also been a need for more collaboration among competing healthcare companies to ensure swift supply of emergency supplies. That has involved business review letters from DOJ in some cases, which could become a more frequently used process for healthcare collaborations driven by the pandemic. Another trend in healthcare has been the increased use of large-scale data and analytics. As in other industries, this could become a greater focus of antitrust agencies in some healthcare matters. Finally, as the FTC’s case against Surescripts shows, multi-sided platforms also exist in healthcare. Accordingly, the Supreme Court’s decision in Ohio v American Express regarding market definition and competitive effects analysis in two-sided platform markets may not only prove important in big tech cases, but also in healthcare matters.
What is the most memorable case that you have advised on, and why?
The beauty of antitrust is that every case is interesting and memorable because it always forces you to really understand how an industry works. It is like earning a mini MBA in a particular industry every time. So, there is not one “most memorable case”. All of them are because, in each case, I learned things I never knew about yet another sector of the economy. That said, my ongoing work for clients like Google, McKesson and Stanley Black & Decker has been extremely rewarding and memorable because it allows me to be part of innovative initiatives that improve people’s daily lives, whether it is in finding information online, patient care, or the ability to improve or repair your home. Plus, I get to work with their incredibly talented business people and lawyers, who are among the best in their fields and thus keep you sharp.
How would you like to see your practice develop over the next five years?
I look forward to continuing to work with the great clients I have the privilege of representing today, while also developing new relationships that enable me to help other corporates innovate and achieve their business objectives as well. In doing so, I ultimately want to grow our San Francisco office to match our other offices in NY, DC and Connecticut.
Trained in the EU and the US, Daniel Bitton navigates clients through antitrust litigation, government investigations and merger clearance processes across the globe. He is regular antitrust counsel to major Fortune 500 companies including Google, McKesson and Stanley Black & Decker.
Daniel’s recent matters include representing Google in highly publicized litigation and various investigations of its advertising technology business in the US and other jurisdictions; McKesson subsidiary RelayHealth in antitrust class actions and a related FTC investigation and litigation regarding Surescripts; Shintech and Shin-Etsu in antitrust class actions; three Danfoss Group companies in cartel litigation; Stanley Black & Decker in its acquisition of a minority stake in MTD Products; Johnson Controls in its US$2 billion sale of Scott Safety to 3M; McKesson in various M&A transactions, including its US$3.4 billion healthcare technology joint venture with Change Healthcare and its US$1.4 billion acquisition of CoverMyMeds; Dell in its US$67 billion acquisition of EMC (largest tech deal in history; nominated for GCR’s Deal of the Year award); Thermo Fisher Scientific in its US$13.6 billion acquisition of Life Technologies (nominated for GCR Matter of the Year award); and Google in its US$2.35 billion sale of Motorola Home to ARRIS, and its US$700 million acquisition of ITA Software (winner of GCR’s Merger Control Matter of the Year (Americas) Award).
Daniel’s publications on antitrust include “United States – E-Commerce and Big Data: Merger Control,” (2020 and 2019); “A Deep Dive into the Antitrust Claims Against Facebook” (2020); and “Let Me Ride: No Short-Cuts in the Antitrust Analysis of Ride Hailing” (2019).