John D Harkrider
Office:
114 West 47th Street
10036-1510
City:
New York
State:
New York
Country:
USA
Tel:
+1 212 728 2210
Fax:
+1 212 728 2201

Questions and Answers:

Who's Who Legal Thought Leaders Global Elite

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.

Who's Who Legal Thought Leaders - Competition

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. 

Biography:

Who's Who Legal Competition: Lawyers

John D Harkrider left Skadden, Arps in 1995 to become a founding partner and now co-chair of Axinn's antitrust practice. In 2013 he was selected as Litigator of the Week by American Lawyer; in 2012, John was named Lawyer of the Year by Global Competition Review and was listed as a most valued person (MVP) in competition by Law360.

Representative merger work includes acting for Dell in its US$67 billion acquisition of EMC; Ball in its US$6.7 billion acquisition of Rexam; Thermo Fisher Scientific in its US$13.5 billion acquisition of LIFE Technologies; Stanley Black & Decker in its acquisition of Craftsman brand from Sears; Google in its US$12.5 billion acquisition of Motorola Mobility and US$700 million acquisition of ITA; and BellSouth/Cingular in its US$41 billion acquisition of AT&T Wireless and US$67 billion acquisition by AT&T.

Representative conduct investigations as lead counsel include Google with respect to the FTC's investigation into its use of standard essential patents; Stanley Black & Decker with respect to Made in USA claims under Section 5 of the FTC Act; and GSI/eBay with respect to conspiracy claims before the NY Attorney General.

Representative first chair antitrust litigation work includes Black & Decker in a conspiracy claim made by SawStop in the Eastern District of Virginia and Fourth Circuit; Tyson with respect to a Sherman Act claim made by a putative class of poultry growers; Tyson and George's with respect to Tyson's sale of assets to George's in the Western District of Virginia; SunGard in a merger challenge by the Department of Justice, Omnicare in its Sherman Act claims against United Health; and United Technologies Corporation in connection with Walker Process and Handgards claims in the Northern District of Illinois, and the District of Maryland.

Mr Harkrider has published extensively on antitrust including “Cash Tender Offers Under the HSR Act: Protecting an Efficient Market for Corporate Control” (Antitrust, Autumn 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, Autumn 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 Honors 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.

WWL says: John Harkrider of Axinn Veltrop & Harkrider is an “absolute must” for inclusion, according to interviewees. His antitrust expertise runs the gamut, with vast transactional, agency and litigation experience.

This biography is an extract from Who's Who Legal: Competition which can be purchased from our Shop.

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