Nelson Fitts joined Wachtell, Lipton, Rosen & Katz in 2000 following his clerkship for the Honorable John G Heyburn II of the US District Court for the Western District of Kentucky in Louisville. He received an AB in History cum laude from Princeton University in 1996 and a JD from Columbia Law School in 1999. He was named partner in 2007 and focuses on analysis of competition issues in mergers, acquisitions, auctions, joint ventures, and takeover defence and advocacy before federal, state and foreign antitrust authorities, representing parties in a broad range of energy, industrial, chemical, medical, pharmaceutical, financial and technology transactions.
WHAT MADE YOU DECIDE ON A CAREER IN COMPETITION LAW?
Alan Marx, a former DOJ attorney and adjunct professor at Vanderbilt, introduced me to antitrust law during a summer job after my first year of law school. Alan is the country’s best newspaper antitrust lawyer, as well as a gifted and patient teacher; his passion for competition law was contagious. After working for Alan and studying with Harvey Goldschmid at Columbia, I was hooked.
WHAT ASPECT OF WORKING IN THIS FIELD DO YOU ENJOY THE MOST?
I most enjoy the “mixed media” of M&A antitrust practice: analysis, research and assessment, often at a deal’s earliest stages; drafting and negotiating agreements alongside our corporate colleagues; and advocating and arguing before regulators around the world. Constantly changing modes of work — day to day, and deal to deal — keeps the work fresh, and the nature of deal practice is fast-paced, intense, substantive, and people-focused.
MERGERS AND ACQUISITIONS HAVE REACHED RECORD HIGHS IN RECENT MONTHS. HOW HAS THIS IMPACTED THE TYPE AND VOLUME OF WORK YOU HAVE BEEN RECEIVING?
The firm handles a significant number of large, difficult M&A and takeover defence matters every year. Our group is leanly staffed and stays very busy with the firm’s deals as well as occasional outside work. My own assignments are all over the map, representing buyers and sellers in chemicals, pipelines, refining, marketing, exploration and production, medical devices, regional gaming, and distribution industries, as well as keystone divestiture buyers for global antitrust settlements. Most recently we have seen an uptick of private equity buyers, which generally carry less antitrust risk but can be highly complex.
WHAT EFFECT HAS THE INCREASED INFLUENCE OF THE COMMITTEE ON FOREIGN INVESTMENT IN THE USA HAD ON THE WORK OF COMPETITION LAWYERS?
For foreign buyers — even nominally foreign buyers (those with US headquarters, leadership and shareholders, but incorporated overseas) — the current CFIUS enforcement environment feels uncertain, even unpredictable. There’s long been timing and behavioural commitment risk in the CFIUS process, but after Broadcom/Qualcomm buyers may be faced with existential deal risk. A lack of transparency and general resistance to advocacy can make the process even more frustrating than most competition clearances.
The indirect effects on US buyers are subtle but very real. Merger control regimes overseas, particularly in developing economies, may incorporate elements of foreign investment review into competition clearances — whether openly or otherwise — and some US buyers fear reciprocal or even retributive treatment in response to CFIUS scrutiny and changing international trade policies.
WHAT IMPACT WOULD A BROADENING OF EXEMPTIONS FOR DIRECTORS AND OFFICERS UNDER THE HART-SCOTT-RODINO ACT HAVE ON COMPETITION LAW?
In recent years, the FTC has investigated or brought enforcement actions against many individuals for violations of the HSR Act’s notification and waiting period requirements when acquiring a small percentage of companies where they serve as officers or directors. Despite those highly publicised actions (some with large monetary penalties), some well-meaning officers and directors continue to miss their technical reporting obligations under the HSR Act. The reason is simple: Those obligations make no sense.
Corporate officers don’t compete with the corporations that employ them, and corporate directors don’t compete with the corporations on whose boards they serve. To the contrary, corporations and their shareholders have a strong interest in promoting long-term stock ownership by officers and directors. Requiring unnecessary HSR notifications, and attendant filing fees, adds delay and expense to their investments, and prosecuting failures to file diverts scarce enforcement resources from more serious competition concerns.
Rather than delaying and taxing shareholder-friendly investments — and consistent with the administration’s mandate to eliminate unnecessary regulation — the Commission should adopt an appropriate exemption.
DO YOU THINK THE SMARTER ACT WOULD IMPROVE OR WORSEN THE COMPETITION REVIEW PROCESS IN THE UNITED STATES?
On balance, some version of the proposed SMARTER Act would improve the US merger review process. The goal is not to harmonise the Antitrust Division and the FTC (the authorities are already closely aligned in legal and economic analysis), but to ensure efficiency and fairness for deals challenged by the FTC. The HSR Act established a clearance process, not an approval process, and it did so without assigning industries to one authority or the other. Tough deals in “FTC industries” should be subject to challenge only before an Article III federal court, just like those in “DOJ industries”, without duplicative challenges and procedures in a parallel administrative trial. The recent Tronox/Cristal matter is a poster child for the SMARTER Act, with the FTC prosecuting a full Part 3 administrative trial, only to then sue for injunctive relief in district court.
WACHTELL, LIPTON, ROSEN & KATZ HAS A UNIQUE FUNDING STRUCTURE. HOW DOES THIS BENEFIT YOUR CLIENTS?
We generally bill on a project basis, rather than using hours as the sole or primary determinant of our fees. We feel this approach, which the firm has relied on for over 50 years, aligns our interests with the client’s much more effectively. Our goal is to obtain successful outcomes for a deal — quickly and efficiently.
WHAT IS YOUR PROUDEST ACHIEVEMENT TO DATE?
Nelson Fitts is an “outstanding” lawyer who is “really at the top of his game” according to sources.
Nelson O Fitts joined Wachtell, Lipton, Rosen & Katz in 2000 and was named partner in 2007. He practises in the firm's antitrust department, where he focuses on analysis of competition issues in mergers, acquisitions, auctions, joint ventures, takeover defence and advocacy before federal, state and foreign antitrust authorities.
Mr Fitts has represented parties in a broad range of energy, industrial, medical, pharmaceutical, financial, and technology transactions, including Spectra Energy in its merger with Enbridge; CR Bard in its proposed merger with Becton, Dickinson; CST Brands in its proposed sale to Alimentation Couche-Tard; Hewlett Packard Enterprise in the merger of its software business with Micro Focus; Energy Transfer in its proposed merger with Williams; Airgas in its merger with Air Liquide and in its successful takeover defence against a hostile bid by Air Products and Chemicals; STERIS in its acquisition of Synergy Health; Target in the sale of its pharmacy and clinic businesses to CVS Health; Covidien in its merger with Medtronic; Lincoln Financial in the sale of its media business to Entercom; CareFusion in its acquisition by Becton, Dickinson; Cardinal Health in its generic drug purchasing JV with CVS Caremark; GTECH in its merger with International Game Technology; El Paso in its sale to Kinder Morgan; Cooper Industries in its merger with Eaton; Chicago Bridge & Iron in its acquisition of Shaw Group; Copano Energy in its sale to Kinder Morgan; MAKO Surgical in its sale to Stryker; Sunoco in its sale to Energy Transfer; Kellogg in its acquisition of Pringles; Atlas Energy in its merger with Chevron and Atlas Pipeline Partners in its merger with Targa Resources; Fidelity National Information Systems in its acquisition of Metavante Technologies; Rohm and Haas in its sale to Dow Chemical; BEA Systems in its sale to Oracle; Brown-Forman in its acquisition of Tequila Herradura; Washington Group International in its sale to URS and URS in its merger with AECOM Technology; CheckFree in its merger with Fiserv; Reynolds and Reynolds in its sale to Universal Computer Systems; ConocoPhillips in its acquisition of Burlington Resources, its spin-off of Phillip 66, and the sale of Flying J to Pilot; Maytag in its sale to Whirlpool; Valero Energy in its acquisition of Premcor and its purchases of ethanol plants; NuStar Energy in its merger with Kaneb Pipe Line Company; NeighborCare in its acquisition by Omnicare; Bank One in its merger with JP Morgan Chase; and Phillips Petroleum in its acquisition of Tosco and its merger with Conoco. Mr Fitts is included Who's Who Legal: Competition and named by Chambers USA as a leading antitrust lawyer. In 2012, Global Competition Review named him one of the top 40 competition lawyers under the age of 40 worldwide. He is a frequent writer and lecturer on antitrust and mergers and acquisitions.
Mr Fitts joined the firm following his clerkship for the Honorable John G Heyburn II of the US District Court for the Western District of Kentucky in Louisville. He received an AB in history cum laude from Princeton University in 1996 and a JD from Columbia Law School in 1999. At Columbia, Mr Fitts was a James Kent Scholar and an editor of the Columbia Law Review.
Mr Fitts served on the antitrust and trade regulation committee of the Association of the Bar of the City of New York and is a member of the American Bar Association's antitrust section. He chairs the advisory council of Woodberry Forest School in Virginia.