Trained in the EU and the US, Daniel Bitton navigates clients through high-stakes antitrust matters across the globe. He is regular antitrust counsel to Google, McKesson, and Stanley Black & Decker, including in federal and state antitrust investigations and merger clearance processes in the US and overseas. Daniel has also represented Dell and Thermo Fisher Scientific in major global merger clearance investigations. In addition, Daniel defends foreign and domestic clients in high-stakes antitrust litigation and class actions, including Shintech, Shin-Etsu and three Danfoss Group companies.
What motivated you to specialise in competition law?
The opportunity to influence international public policy, work with intellectually curious people across borders and cultures, and help some of the most successful and innovative companies in the world with existential issues.
What are you enjoying most about helping to develop the firm’s new office in San Francisco?
In antitrust, we often learn about our clients’ efforts to grow their business and help them navigate and clear hurdles in that process. I love that, and it is exciting and valuable to now be involved in that process myself in a very real way; it has given more dimension to my work and perspective as an antitrust lawyer. I really enjoy looking for talent, building out a team and developing and growing client relationships, especially here in the Bay Area where so much of the world’s innovation happens. It is an inspiring environment in which to be an entrepreneur. Of course, it helps a lot that we already had significant brand equity here with clients such as Google, McKesson, and Silver Lake Partners, and that our antitrust and IP focus matches well with the needs of companies out here. For me, personally, it is also great to be back in the Bay Area because it is where I met my amazing wife more than 19 years ago, as a foreign exchange student at University of California, Berkeley.
What are the main legal challenges that large tech companies are facing with regard to competition concerns?
As an antitrust lawyer, it is interesting to see antitrust getting so much press coverage and political attention these days, including in presidential campaigns. Unfortunately, it is not always for the right reasons. The focus on large tech companies, for example, often seems to reflect a regression to the “big is bad” brand of antitrust of the earlier part of the 20th century, with relatively little rigour in analysis and apparent disregard for empirical evidence to the contrary. Of course, scrutiny comes with the territory for large, successful firms in any industry; that is understandable and appropriate. But it is curious that online services – the sector of the economy that is experiencing some of the highest rates of innovation, growth, investment and new market entry, as well as the lowest prices (often free services) – is seeing the greatest antitrust scrutiny. That suggests something is off.
There seem to be at least two things going on that pose challenges for large tech companies. First, the internet and large tech firms have facilitated such an efficient and competitive marketplace that there are bound to be many firms that cannot survive in that environment. That breeds a lot of complainants who lobby government for legislative or regulatory changes that provide relief from those competitive pressures and protect their margins – ie, rent seeking. An example: an association for news publishers has lobbied for legislation that would exempt them from the Sherman Antitrust Act to collectively bargain with tech platforms – ie, form a cartel – to get paid for (non-copyrighted) snippets of news content shown on the tech platforms. The three government branches should all be wary of such attempts as they usually come at the expense of competition and consumers.
Second, there seems to be a tendency to think that antitrust is a cure for all perceived ailments. Scandals such as Cambridge Analytica and the Russian election interference have increased concerns around privacy and the impact of social media on public opinion. Some of this seems to be driving the current antitrust climate. Yet antitrust was never designed, and is ill-equipped, to solve such issues. In fact, some have invoked antitrust to suggest that big tech firms need to share their user data with competitors, yet that would be in direct tension with the objective of protecting user privacy. This creates a challenging maze of legal issues for large tech firms to navigate.
You are trained in both European and US antitrust law – how does this enhance your work in private practice?
My clients all operate in many parts of the world. Virtually no deal or business practice is merely subject to US antitrust law. To represent and assist clients well, you have to be able to assess issues with a global perspective. Having been schooled and trained in two key jurisdictions with distinct approaches provides me with a good foundation in process and substance across many jurisdictions. In my experience, that has been a valuable differentiator.
How are you seeing the current political climate affect proposals for regulation and antitrust investigations in the US?
At the moment, there is a lot of posturing by politicians in light of their presidential and re-election campaigns. But it is too early to tell what will actually happen; a sea change, as some seem to suggest, or not. Ask me again after the elections.
In your opinion, where does the future of antitrust lie?
Some are arguing for more sector-specific ex ante regulations; others argue that we can do what we need to do within the current framework. I am in the latter camp.
What has been the best piece of career advice you have received?
There are plenty of smart people out there. Work harder than everyone else.
Daniel Bitton is a “very hard-working” lawyer who is endorsed for his “excellent analytical ability, strong client skills and excellent commercial awareness”.
Trained in the EU and US, Mr Bitton navigates Fortune 500 clients through antitrust litigation, government investigations and merger clearance processes across the globe. Mr Bitton is regular antitrust counsel to major Fortune 500 companies like Google, McKesson and Johnson Controls. His recent representations include defending three Danfoss Group companies in a federal cartel litigation brought by GE; securing global clearance for Johnson Controls’ US$2 billion sale of Scott Safety to 3M; securing clearance for several significant deals by McKesson, including its US$3.4 billion healthcare technology joint venture with Change Healthcare, its US$1.4 billion acquisition of CoverMyMeds, and its US$735 million acquisition of RxCrossRoads from CVS; securing global clearance for Dell’s US$67 billion acquisition of EMC (largest tech deal in history; nominated for GCR Deal of the Year award); securing global clearance for Thermo Fisher Scientific’s US$13.6 billion acquisition of Life Technologies (nominated for GCR Matter of the Year award); assisting Google in various government investigations and securing clearance for Google’s US$2.35 billion sale of Motorola Home to ARRIS and its US$700 million acquisition of ITA Software (GCR Merger Control Matter of the Year – Americas); helping Tomkins plc prevail in a landmark case before the European Court of Justice about parent liability for a former subsidiary’s cartel violations (nominated for GCR Behavioural Matter of the Year – Europe award).
Mr Bitton’s recent publications on antitrust include the following: “United States – E-Commerce and Big Data: Merger Control” (January 2019); “Transatlantic Use of Witness Statements: How EU Cooperation Obligations can Lead to Violation of the Fifth Amendment” (December 2017); “Merger Control in the US: Obama’s Legacy” (October 2016); “Merger Control in China: Looking Back at Eight Years of Enforcement Under the Anti-Monopoly Law” (October 2016) and the Concurrences Antitrust Writing Award nominated article, “Heisenberg’s Uncertainty Principle, Extraterritoriality and Comity” (Autumn 2015).