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Thought Leaders

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Thought Leader

WWL Ranking: Global Elite Thought Leader

Questions & Answers

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 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 almost 70, including more than 40 antitrust lawyers. I’ve had the pleasure of working on some of the most interesting matters, including representing Apple in the Apple/IBM joint venture; Google in Google/Motorola Mobility and Google/ITA; and the Department of Justice in its challenge of Worldcom’s acquisition of Sprint.

How has the field of competition law changed since you started practising?

I think it has become both more and less rigorous over time. Horizontal and vertical merger investigations have become more rigorous in their economic analysis but conduct investigations have gotten significantly less rigorous. This is particularly a concern when regulators go after large innovative companies at the behest of less innovative incumbents. In addition, it is not clear that the standard essential patent investigations took due account of the complex relationship between intellectual property rights and innovation.

What is the most significant trend in antitrust you are noticing at present?

Efforts by incumbent firms to use antitrust laws to restrain disruptive business models. While frequently voiced in terms of protecting “the little guy”, they are in truth frequently efforts by large incumbent firms to prevent innovative rivals from out-competing them with lower (and sometimes free) prices and more innovative products.

How does your work as a litigator help your transactional practice?

Great question. They say that war is diplomacy by other means. Well, litigation is dealmaking by other means. In the USA, the only leverage that the parties have before the regulators is the ability to litigate; that right needs to be preserved in the merger agreement, and, in the end, needs to be exercised cautiously – but with confidence. Thinking like a litigator – what do I need to prove, what evidence do I have, and what story does it tell – helps inform how one should build a case to regulators and then, potentially, to a court.

Do antitrust authorities have a role in regulating product innovations by companies with a large market share?

They have a very limited role for three reasons. First, there are no real standards to judge product changes and improvements. This doesn’t mean that exclusionary product innovations don’t exist, it’s just difficult to distinguish them from actual improvements, or even genuine efforts that didn’t work out. Second, even if an exclusionary innovation were identified, it’s very difficult to set standards that would avoid future harm without also limiting future benefits. Third, complainants are usually competitors who are harmed whenever the dominant firm lowers price or improves product quality. Again, this doesn’t mean that some of these complaints aren’t genuine, it’s just that the complainant’s interests are not correlated with consumer welfare. As a result, before bringing a case against a dominant firm, regulators should insist upon objective evidence of harm to consumer welfare (in the form of higher prices or lower quality), subjective evidence that the product innovation was not genuine, and, should be mindful that the firm complaining may just be complaining that they have to lower their prices, improve their quality, or adjust their business model.

You have worked on a number of significant cases in the past. What is your proudest achievement to date?

I really loved working for the Department of Justice. I have extreme respect for the hardworking and dedicated lawyers, economists, paralegals and other professionals at the agency. It is a great thing to dedicate a part of your life to improve the welfare of others.

As a founding partner of Axinn, Veltrop & Harkrider, what advice would you give to someone looking to start their own firm?

Part of me wants to say don’t, but the other part of me wants to say it’s an amazing, rewarding and humbling experience building a firm. You need to work harder than the biggest and best firms in the world. You need to enjoy finance and firm management. And you need to respect and appreciate the hard working lawyers who have trusted you with their careers.

Where do you believe the future of competition law lies?

In fighting impulses to restrain innovation.

WWL Ranking: Thought Leader

Questions & Answers

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 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 almost 70, including more than 40 antitrust lawyers. I’ve had the pleasure of working on some of the most interesting matters, including representing Apple in the Apple/IBM joint venture; Google in Google/Motorola Mobility and Google/ITA; and the Department of Justice in its challenge of Worldcom’s acquisition of Sprint.  

HOW HAS THE FIELD OF COMPETITION LAW CHANGED SINCE YOU STARTED PRACTISING?

I think it has become both more and less rigorous over time. Horizontal and vertical merger investigations have become more rigorous in their economic analysis but conduct investigations have gotten significantly less rigorous. This is particularly a concern when regulators go after large innovative companies on the behest of less innovative incumbents. In addition, it is not clear that the standard essential patent investigations took due account of the complex relationship between intellectual property rights and innovation. 

WHAT IS THE MOST SIGNIFICANT TREND IN ANTITRUST YOU ARE NOTICING AT PRESENT?

Efforts by incumbent firms to use antitrust laws to restrain disruptive business models. While frequently voiced in terms of protecting “the little guy”, they are in truth frequently efforts by large incumbent firms to prevent innovative rivals from out-competing them with lower (and sometimes free) prices and more innovative products.

HOW DOES YOUR WORK AS A LITIGATOR HELP YOUR TRANSACTIONAL PRACTICE?

Great question. They say that war is diplomacy by other means. Well, litigation is dealmaking by other means. In the USA, the only leverage that the parties have before the regulators is the ability to litigate; that right needs to be preserved in the merger agreement, and, in the end needs to be exercised cautiously – but with confidence. Thinking like a litigator – what do I need to prove, what evidence do I have, and what story does it tell – helps inform how one should build a case to regulators and then, potentially, to a court.

DO ANTITRUST AUTHORITIES HAVE A ROLE IN REGULATING PRODUCT INNOVATIONS BY COMPANIES WITH A LARGE MARKET SHARE?

They have a very limited role for three reasons. First, there are no real standards to judge product changes and improvements. This doesn’t mean that exclusionary product innovations don’t exist, it’s just difficult to distinguish them from actual improvements, or even genuine efforts that didn’t work out. Second, even if an exclusionary innovation were identified, it’s very difficult to set standards that would avoid future harm without also limiting future benefits. Third, complainants are usually competitors who are harmed whenever the dominant firm lowers price or improves product quality. Again, this doesn’t mean that some of these complaints aren’t genuine, it’s just that the complainant’s interests are not correlated with consumer welfare. As a result, before bringing a case against a dominant firm, regulators should insist upon objective evidence of harm to consumer welfare (in the form of higher prices or lower quality), subjective evidence that the product innovation was not genuine, and, should be mindful that the firm complaining may just be complaining that they have to lower their prices, improve their quality, or adjust their business model. 

YOU HAVE WORKED ON A NUMBER OF SIGNIFICANT CASES IN THE PAST. WHAT IS YOUR PROUDEST ACHIEVEMENT TO DATE?

I really loved working for the Department of Justice. I have extreme respect for the hard working and dedicated lawyers, economists, paralegals and other professionals at the agency. It is a great thing to dedicate a part of your life to improve the welfare of others. 

AS A FOUNDING PARTNER OF AXINN, VELTROP & HARKRIDER, WHAT ADVICE WOULD YOU GIVE TO SOMEONE LOOKING TO START THEIR OWN FIRM?

Part of me wants to say don’t, but the other part of me wants to say it’s an amazing, rewarding and humbling experience building a firm. You need to work harder than the biggest and best firms in the world. You need to enjoy finance and firm management. And you need to respect and appreciate the hard working lawyers who have trusted you with their careers. 

WHERE DO YOU BELIEVE THE FUTURE OF COMPETITION LAW LIES?

In fighting impulses to restrain innovation. 

Global Leader

Competition 2019

Professional Biography

WWL Ranking: Global Elite Thought Leader

WWL says

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.

Biography

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.

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