John Harkrider has been lead or co-lead counsel on nearly $500 billion worth of M&A deals, including cross-border deals such as Thermo/Life Technologies, 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 has represented Google, Motorola Mobility and Red Hat on competition deals involving standard-essential patents and privateering.
Describe your career to date.
I started in the New York office of Skadden in 1991. In 1997, I started a new firm with Steve Axinn, the global head of Skadden’s antitrust department, and Jim Veltrop, an intellectual property lawyer. Over the years, we’ve grown the firm from three lawyers to more than 85, including more than 45 antitrust lawyers. I’ve had the pleasure of working on some of the most interesting matters, including representing Google for more than 10 years, acting as lead global counsel in cross-border transactions such as Thermo Fisher/Life, Ball/Rexam and Dell/EMC, and arguing cases in Circuit Courts across the country (including against John Roberts in the Ninth Circuit).
How has US competition law evolved since you first began practising?
Merger practice before the agencies has expanded dramatically, in terms of both substance and process. From a substantive perspective, the agencies have moved from market definition to competitive effects, and from merger simulation towards hot documents indicating pricing pressure. From a process perspective, second requests have gotten vastly broader, rolling productions have become the norm, and data productions have become essentially impossible to respond to without significant modifications.
What are the challenges of navigating competitor claims against large innovative firms?
The core of competitor complaints can typically be reduced to conflicts over business model (it is difficult to charge for content when users don’t have to pay for advertising-supported content), conflicts over product design (a change that improves quality for users may diminish the demand for a competing product), and conflicts over product quality (it is difficult to compete against a superior-quality product). Agencies that see their role as protecting competition can see through these claims, but agencies that see their role as protecting competitors are enticed by them. It is for this reason that agencies must not take the rivals’ claims at face value, but conduct the same sort of exacting discovery of rivals as they would of the parties.
In your opinion, should the relevant standard in competition policy favour consumer welfare or total welfare?
Consumer welfare. Not only do policymakers lack the tools to balance the interests of consumers in lower prices against the interests of producers in terms of higher profits, but the discretion that such a balance would entail would create opportunities for rent-seeking and potentially delegitimise antitrust.
What impact have the diverging approaches of the US and EU competition authorities had on how you advise clients?
In representing the merging parties, the lack of de novo judicial review in the EU means that it is critical to stage EU approval first, so one has an ability to litigate the matter in the US. In representing complainants, the ability of the parties to access the file in the EU means that it is critical to make complaints to the US agencies, instead of the EU agencies, if one wants to avoid retribution by the parties.
How do you see the current activist approach of the Competition and Markets Authority changing post-Brexit?
Eventually it needs to. All regulators need thresholds below which deals are not reportable. The market share threshold is not sufficiently precise as it could capture deals with high global shares, but virtually no sales in the UK. That is not sustainable from a resource perspective.
How do you seek to support and encourage diversity of viewpoint among first-year lawyers at Axinn?
We tell them their job isn’t to prove that the partner’s view is right; it is to prove that the partner’s view is wrong. That pressure testing refines and improves work product.
What career advice would you give to lawyers looking to pursue a career in competition law?
Read the documents carefully. Understand the incentives of parties and agencies. Be respectful of co-counsel and the agencies.
John Harkrider co-chairs the firm’s antitrust group and is highlighted for his particular expertise when it comes to merger proceedings and FTC investigations.
John Harkrider co-chairs the firm’s antitrust practice and has worked on some of the largest and most significant antitrust matters over the last 25 years. Mr Harkrider was named as Global Competition Review’s Lawyer of the Year for his representation of Thermo Fisher Scientific, Google and Tyson Foods. He was also named as Litigator of the Week by The American Lawyer in connection with the FTC investigation of Google. Mr Harkrider has won Global Competition Review’s Matter of the Year and Merger Control Matter of the Year – Americas. In the merger context, he advised Dell in its US$67 billion acquisition of EMC; Ball Corporation in its $6.85 billion acquisition of Rexam PLC; Thermo Fisher Scientific in its $13.1 billion acquisition of Life Technologies; and Google in its US$12.5 billion acquisition of Motorola Mobility as well as its US$700 million acquisition of ITA; Cingular in its US$41 billion acquisition of AT&T; BellSouth in its US$67 billion acquisition by AT&T. He also represented Endeavor in its merger with Learfield, and Sabre in its proposed acquisition of Farelogix.
In litigation, Mr Harkrider represented Stanley Black & Decker, Tyson and United Technologies in Sherman Act litigation in district and circuit courts throughout the United States. He has also litigated five different merger challenges brought by or against government agencies. In government investigations, Mr Harkrider advised Google with respect to the FTC’s investigation of standard-essential patents, and Stanley Black & Decker with respect to “Made in USA” claims. In counselling, he has advised MasterCard’s board of directors with respect to their IPO as well as the board of directors of a major European air cargo company with respect to possible criminal liability.
Mr Harkrider has published extensively on antitrust including “Antitrust in the Trump Administration: A Tough Enforcer That Believes in Limited Government” (Antitrust, Summer 2018); “Concentrated Benefits and Dispersed Costs Rent-Seeking by Incumbents Against Innovative and Disruptive Web Based Firms” (Concurrences, March 2018); “Cash Tender Offers Under the HSR Act: Protecting an Efficient Market for Corporate Control” (Antitrust, Fall 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, Fall 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 honours 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.