ao link
Who's Who Legal
Who's Who Legal
Menu
Thought Leaders

Thought Leaders

Thought Leader

WWL Ranking: Global Elite Thought Leader

WWL says

John Harkrider is a “truly terrific lawyer” in receipt of recommendations from market commentators across north America and Europe for his diverse antitrust practice.

Questions & Answers

John Harkrider has been lead or co-lead counsel on nearly US$500 billion worth of M&A deals, including cross-border deals such as Thermo/Life Technologies, Thermo/Qiagen, Ball/Rexam and Google/ITA. He was named American Lawyer’s Litigator of the Week for his representation of Google, and GCR’s Lawyer of the Year for his representation of Tyson and Thermo Fisher. He currently represents Google in monopolisation cases.

What inspired you to pursue a legal career?

Paying off college debt. What inspired me to become an antitrust lawyer was that antitrust fundamentally deals with the appropriate role of government in regulating the economy. Antitrust allows me to use a combination of economic theory, statistics and documentary evidence to understand whether a transaction or a practice harms consumer welfare.

How do you prepare for a merger investigation?

Our best practice is to do a fairly extensive analysis of internal documents and emails as well as company data to handicap risk. We pressure test ideas with business people and economists. We then develop a strategy and timeline for substantive filings for domestic and international merger filings and then execute the strategy.

What impact has a slowdown in the global economy had on the number of M&A transactions in the US market?

So far it has not had an impact on our practice. As a firm we are hired mostly to deal with transactions that are likely to receive a Second Request. The slowdown in the global economy has impacted the total number of deals, but not necessarily the small number of deals that receive extensive review. 

What common pitfalls arise when regulators in conduct investigations and mergers approach a two-sided market platform? How might these pitfalls be navigated?

While antitrust enforcement agencies like to think of themselves as law enforcement, my view is that two-sided markets unavoidably lead agencies to think more like regulators. For example, in Farelogix, the decision by the DOJ and CMA to focus on the impact of Farelogix on GDS fees, but ignore both the fact that Farelogix increased costs to travel agencies, which were then passed onto consumers, as well as the fact that Farelogix reduced price competition between airlines, was essentially a regulatory decision that airlines matter more than travel agencies and travellers. Conversely, a decision to consider the aggregate impact on consumer welfare by balancing reduced price competition and higher agency fees against potentially higher GDS fees also places the government in a complex regulatory analysis. 

How might competition authorities change their approach to mergers to better benefit the market?

Competition authorities should focus more on internal documents and data and less on the views of competitors spinning out speculative theories of harm. 

What makes Axinn stand out from its competitors in the market?

There are lots of great competition law firms and lawyers so standing out is difficult. Our passion is probably the strongest differentiation - we will walk through walls for our client. But I also think we bring a rare combination of strategic thinking, litigation experience, economic and econometric skills, as well as plain old hard work. Our view is there is no guarantee that you will be the smartest person in the room, so you have to be the hardest working one.

What can be done to improve diversity in antitrust?

I think we need to get to lawyers earlier in the funnel. We need to approach diverse law student organisations like BLSA, HLSA, ALSA and Lambda Legal in their first years and get students excited about antitrust and the fairness and efficiency of competitive markets. The idea that markets should not give advantages to incumbents over new entrants should be a really inspiring idea for diverse lawyers.  

Where, in your opinion, does the future of the practice area lie?

I think integrated practices that combine economic, strategic, litigation and deal-making skills are the future. Sometimes you need to fight. Other times you need to outfox. Still, other times you need to cut a deal. One needs the skills to do all of these things. 

Thought Leaders - Competition 2021

Q&A

WWL Ranking: Thought Leader

WWL says

John Harkrider is a “truly terrific lawyer” in receipt of recommendations from market commentators across north America and Europe for his diverse antitrust practice.

Questions & Answers

John Harkrider has been lead or co-lead counsel on nearly US$500 billion worth of M&A deals, including cross-border deals such as Thermo/Life Technologies, Thermo/Qiagen, Ball/Rexam and Google/ITA. He was named American Lawyer’s Litigator of the Week for his representation of Google, and GCR’s Lawyer of the Year for his representation of Tyson and Thermo Fisher. He currently represents Google in monopolisation cases.

What do clients look for when selecting a competition lawyer?

Experienced clients look for lawyers who understand their business and strategic objectives, provide clear-eyed assessments of regulatory risk, are tireless advocates for their positions, have the ability to present evidence and arguments that regulators and courts find persuasive, can develop strategies that maximise outcomes, and can cut a deal, if necessary, that accomplishes that client’s objectives. 

To what extent would you say merger control is becoming too burdensome?

I think the search through emails is largely unproductive. I believe that the truth is in the strategic documents and marketing documents. There are, of course, bad emails, but it isn’t clear if these emails reflect company policy, or the uninformed views of a given individual on a given day. If we continue with the discovery of emails, I would like to consider quantitative metrics such as the frequency that certain competitors or concepts are found in documents, versus the outsized impact of anecdotal evidence. 

What do you anticipate will be the implications of big data on competition law?

It’s unclear. I think that data may or may not be a barrier to entry depending on the ability of competing firms and business models to compete with different sets of data. 

How can competition enforcement become more efficient?

I think the United States should move to a more defined, staged process that represents the best ideas of the private bar and government agencies, instead of a “take it or leave it” timing letter. Ideally, the process would include both obligations on the parties and the government that lead to a more efficient process. 

How do you effectively co-ordinate complex, multi-jurisdictional matters?

We take a “best of breed” approach that utilises Tier 1 and Tier 2 Chambers-ranked firms across multiple jurisdictions. We work collaboratively with major jurisdictions to develop a timeline and strategy to complete the deal and maximise returns if there is a divestiture. We then provide briefing sessions, access to local teams, to ensure that filings fully reflect local realities. 

What are the biggest challenges facing the market now, and how might they be navigated?

I believe the expansion of competition law to move beyond the consumer welfare standard increases the ability of legacy firms to restrain disruptive firms. I believe there needs to be the same level of discovery of internal documents of complaining firms as there is of the firms whose practices are being investigated, especially where the complaining firm is a large, dominant firm. 

What is the most memorable merger or acquisition that you have advised on?

Thermo Fisher’s 2020 proposed acquisition of Qiagen, a leading provider of sample prep consumables used in covid-19 molecular diagnostic tests, by Thermo Fisher, a leading provider of q-PCR consumables used in covid-19 tests. 

What key skills and traits would you encourage in the next generation of competition lawyers?

I think clients need lawyers with technical and strategic skills. On the technical side, I would recommend lawyers gain expertise in quantitative analysis, econometrics and technology. On the strategic side, I would recommend that lawyers work for the government for several years to gain insight into the arguments and strategies that would be effective in that setting.

Global Leader

Competition 2020

Professional Biography

WWL Ranking: Recommended

WWL says

John Harkrider is a “truly terrific lawyer” in receipt of recommendations from market commentators across north America and Europe for his diverse antitrust practice.

Biography

John Harkrider was named GCR’s Lawyer of the Year, as well as Litigator of the Week by The American Lawyer in connection with the FTC’s investigation of Google. He currently represents Google in the Section 2 investigation before agencies throughout the world and serves as global lead antitrust counsel to Thermo Fisher in its US$11.5 billion acquisition of QIAGEN NV.

He advised Dell in its US$67 billion acquisition of EMC; Ball in its US$6.85 billion acquisition of Rexam PLC; Thermo Fisher in its US$13.6 billion acquisition of Life Technologies; Google in its US$12.5 billion acquisition of Motorola Mobility and its US$700 million acquisition of ITA; Cingular in its US$41 billion acquisition of AT&T; and BellSouth in its US$67 billion acquisition by AT&T. He also advised IMG in its merger with Learfield and MasterCard’s board of directors with respect to their IPO to end the claimed structural conspiracy between the banks.

Mr Harkrider has represented Stanley Black & Decker, Tyson and United Technologies in Sherman Act litigation in district and circuit courts throughout the US. In government investigations, he advised Google with respect to the FTC’s investigation of Standard Essential Patents, and Stanley Black & Decker with respect to Made in USA Claims.

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 honours college at the University of Michigan in 1988, where he graduated with highest honours. He has been on the editorial board of Antitrust (ABA) from 2007 to present.

Law Business Research
Law Business Research Ltd
Meridian House, 34-35 Farringdon Street
London EC4A 4HL, UK
© Law Business Research Ltd 1998-2021. All rights reserved.
Company No.: 03281866