Legal Business

Global Outlook sponsored briefing: Internal investigations and public enforcement: challenges under Italian law

Global Outlook sponsored briefing: Internal investigations and public enforcement: challenges under Italian law

Cleary Gottlieb’s Francesco De Biasi, Andrea Mantovani and Alessandra Anselmi examine the challenges facing companies

Internal investigations and public enforcement actions pose significant legal challenges for companies. The inherent multidisciplinary nature of the most frequent issues, which requires an in-depth knowledge not only of the laws and regulations of the relevant industry, but also of criminal, corporate, contract, data protection and labour law (often in more than one jurisdiction), increases these challenges.

Legal Business

Comment: Deal view – Cleary Gottlieb seeks to avoid City M&A anonymity in the age of US disruptors

Comment: Deal view – Cleary Gottlieb seeks to avoid City M&A anonymity in the age of US disruptors

The London contingent of Cleary Gottlieb Steen & Hamilton has recently moved across the road into premises so new they do not yet have a postcode recognised by Google Maps. The irony is not lost if you consider the firm’s role as counsel to Google on some of the most high-profile antitrust cases in recent years. You would have thought they would have had that detail covered.

Uncharted or otherwise, the shiny new office can only be seen as a vote of confidence from Manhattan, especially as it will allow the City branch to accommodate some 180 lawyers – 40 more than it currently houses. But despite an exceptional competition practice and a long-established European network, Cleary ’s struggle to become a big hitter in London for mainstream M&A has been evident.

Two recent mandates for London-led teams announced in February stood out as being the exceptions to the rule for the corporate team rather than the latest in a string of major deals. Cleary consolidated longstanding relationships and bolstered its public M&A ambitions by advising Fidessa group on the proposed £1.4bn takeover offer from fellow financial software company Temenos Group, as well as American Express on its joint venture’s £400m takeover of Hogg Robinson Group.

Simon Jay led the team that advised Fidessa, having forged a relationship with the company in 1997 when he advised on its initial public offering, while Tihir Sarkar – who advised Amex in 2014 on the formation of the joint venture – led again for Amex. Those deals stand out as rare London-led plays since the firm advised Qatar Investment Authority on its acquisition, as part of a consortium, of a 61% stake in National Grid’s gas distribution business, which closed in March 2017.

But while there is a dearth of substantive M&A work out of London, Cleary has been busy elsewhere. The firm is quick to point to a pair of significant mandates during 2017: advising General Motors on the sale of its Opel/Vauxhall subsidiary and General Motors Financial Company’s European operations to Groupe PSA. The transactions were valued at €1.3bn and €0.9bn respectively. The deals were led out of Paris and New York but featured Bob Penn – one of the firm’s rare lateral hires from Allen & Overy in 2016 – advising on regulatory matters in London.

The firm’s rigid lockstep partnership model perhaps poses a challenge to its expansion in London now more than ever, in a climate where the likes of Kirkland & Ellis and Latham & Watkins are splashing the cash to attract top performers. And although extremely conservative about making up partners internally, Cleary’s only London partner promotion in the latest round was in corporate. The promotion of Nallini Puri is evidence of the maturity of Cleary’s corporate practice that is now allowing lawyers to climb the ranks internally.

London fee-earner count has also increased a substantial 21% in the last year, rising to 140 lawyers from 116. The increase is thanks to the firm taking on more trainees and holding on to more of its associates, rather than an uncharacteristic hiring spree.

Jay is bullish about the firm’s position in London and its ability to deepen its bench following the move. ‘The new office is one of the biggest financial commitments the firm has ever made. It has been great for morale and will be good for hiring.’

But a shiny new office is not enough on its own to help a prestige firm realise its ambitions in an aggressive market – it simply provides room to manoeuvre. Being old school will only get you so far in the age of disruption.

nathalie.tidman@legalease.co.uk

Legal Business

Deal view: Cleary Gottlieb seeks to avoid City M&A anonymity in the age of US disruptors

Deal view: Cleary Gottlieb seeks to avoid City M&A anonymity in the age of US disruptors

The London contingent of Cleary Gottlieb Steen & Hamilton has recently moved across the road into premises so new they do not yet have a postcode recognised by Google Maps. The irony is not lost if you consider the firm’s role as counsel to Google on some of the most high-profile antitrust cases in recent years. You would have thought they would have had that detail covered.

Uncharted or otherwise, the shiny new office can only be seen as a vote of confidence from Manhattan, especially as it will allow the City branch to accommodate some 180 lawyers – 40 more than it currently houses. But despite an exceptional competition practice and a long-established European network, Cleary ’s struggle to become a big hitter in London for mainstream M&A has been evident.

Legal Business

Cleary Gottlieb makes London disputes play as Herbert Smith Freehills loses seasoned partner

Cleary Gottlieb makes London disputes play as Herbert Smith Freehills loses seasoned partner

The continued dominance of US firms in the City lateral market shows no sign of slowing, with Cleary Gottlieb Steen & Hamilton yesterday (20 November) bringing in experienced disputes partner James Norris-Jones from Herbert Smith Freehills (HSF) to its office in the capital.

Norris-Jones, who was made a partner at HSF in 2012, has a broad practice that encompasses High Court litigation as well as arbitration. His arrival will boost Cleary’s already well-established London disputes team, comprising partners Sunil Gadhia, Jonathan Kelly, Christopher Moore, David Sabel and Romano Subiotto QC.

Norris-Jones commented: ‘I have had a fantastic 16 years at HSF, had the ability to work on some landmark cases and make good friends and colleagues. It is now time for a change and a new challenge.’

In a statement, Cleary managing partner Michael Gerstenzang said that Norris-Jones will add ‘formidable depth and breadth of talent’ to the firm, while disputes partner Kelly added that Norris-Jones has ‘developed an impressive practice and earned the respect of clients.’

During his career at HSF, Norris-Jones notably represented RBS in the shareholder group action that settled in June.

The arrival of Norris-Jones will be a welcome boost for Cleary’s City , after it suffered the loss of capital markets partner Simon Ovenden to Simmons & Simmons earlier this year.

For HSF, Norris-Jones’ departure represents the second partner prised away by a US firm since the summer. Global energy co-head Anna Howell left for Gibson, Dunn & Crutcher in June, to bolster the US firm’s fast-growing practice.

tom.baker@legalease.co.uk

Legal Business

US firms lead in Europe as Franco-German merger creates new rail giant

US firms lead in Europe as Franco-German merger creates new rail giant

Latham and Cleary advise as Siemens and Alstom combine

US law firms took the lead as Siemens agreed to combine its transport operations with former rival Alstom in a merger of equals to counter the threat from China to the European railway industry.

Legal Business

Akin Gump reveals trainee salary increases, as NQ pay remains static yet competitive

Akin Gump reveals trainee salary increases, as NQ pay remains static yet competitive

Akin Gump has increased trainee salaries by 12% and 8% for first and second years respectively, with the group representing the first trainees the US firm has taken on, while its newly qualified (NQ) pay remained static this financial year.

The trainees, who are set to qualify this autumn, are Akin’s only trainee intake and were formed when it took over Bingham McCutchen’s London office in 2015.

Despite only starting a trainee programme in 2015, Akin is raising incoming first-year trainee pay from £43,000 to £48,000, and second-year salaries from £48,000 to £52,000.

The US firm’s first-year pay packets are also competitive, equal to that of Cleary Gottlieb Steen & Hamilton, and only trumped by Debevoise & Plimpton at £50,000, according to Lex100.

NQ pay at the firm remains £112,500 at current exchange rates. The firm last increased NQ remuneration levels in September 2016 from £100,000.

This, however, remains one of the most competitive NQ rates on the market, with peers such as Jones Day last week announcing an increase of up to £100,000, while Skadden, Arps, Slate, Meagher & Flom pays NQs up to £118,000, according to Lex100.

The firm has up to four trainee places available for its next intake in 2019, receiving around 300 applications per year, and the salary increases will be effective from September 2017.

Akin’s director of international legal recruiting and development in London Victoria Widdows said trainees at Akin ‘quickly become an integral part of the London office and we want to ensure that salaries are reflective of this at the top end of the market, as is the case with our NQ salaries’.

Georgiana.tudor@legalease.co.uk

Legal Business

Cleary, CC and Covington lead as EC fine Google €2.4bn for abuse of dominance in online shopping comparison

Cleary, CC and Covington lead as EC fine Google €2.4bn for abuse of dominance in online shopping comparison

The European Commission (EC) has today (27 June) fined Google €2.4bn for abuse of dominance as a search engine, illegally promoting its own comparison shopping service above others in breach of antitrust law, creating expectations of a raft of damages claims based on the finding.

 The EC told the global company to end its illegal conduct within 90 days or face penalties of up to 5% of Google’s parent company Alphabet’s average daily worldwide turnover.

Cleary Gottlieb Steen & Hamilton competition partner Maurits Dolmans and Brussels partners Thomas Graf and Robbert Snelders acted for Google. Julia Holz co-ordinated Google’s in-house defence.

Clifford Chance partner Thomas Vinje represented 15-company consortium Fairsearch which submitted evidence in relation to rival shopping services in the case, including as Foundem, TripAdvisor, Expedia and Trivago. 

Covington & Burling’s Miranda Cole advised Expedia, TripAdvisor and Trivago. 

Today, Fairsearch stated that the decision ‘sets a powerful precedent’ that the EC can use to restore competition on other specialised online search services, such as those for travel.

Competition chief Margrethe Vestager said that Google’s strategy for its comparison shopping service had not just attracted customers ‘by making its product better’ than rivals but instead had ‘abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.’

Google’s activity was ‘illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate.’ It also ‘denied European consumers a genuine choice of services and the full benefits of innovation,’ she said.

The EC also said that as a result of its practices, Google’s comparison shopping service is far more visible to consumers in Google’s search results than rivals’ comparison shopping services, which are pushed down and less visible.

A Google spokesperson said today that the company will consider appealing the decision. It said that its shopping comparison service connects ‘users with thousands of advertisers, large and small, in ways that are useful for both.’

 

While the EC could have fined Google up to 10% of its annual global turnover, Peter Willis, EU competition co-head at Bird & Bird described the case as ‘significant’ partly for being largest EC fine to date on a single company.

‘It’s likely to be portrayed as another instance of the Commission bashing US tech companies’, but the EC’s position ‘will be that it has fined Google not because it is a large US tech company, but because it has abused its dominant market position by squeezing out its rivals in related markets’, he added.

There is likely to be ‘a series of damages claims brought by the rivals that were excluded from the market by Google’s conduct.  They will be able to use the decision as the basis for a damages claim before the national courts.’

The EC’s decision will ‘establish Google’s liability and a damages claim will in principle be limited to establishing the loss,’ Willis added.

In 2004, the EC fined €497m Microsoft for illegally leveraging its dominant position.

Google’s search engine provides search results to consumers who pay for the service with their data, according to the EC. Nearly all of Google’s revenues come from advertising, many shown on a consumer search.

The EC said that Google’s search algorithms had ‘systematically’ promoted its own comparison shopping service to consumers at the top of the page on a Google search while demoting rival comparison shopping services.

The decision followed a seven year investigation into Google’s online shopping comparison service.

Foundem originally accused Google in 2009 of lowering its ranking on the search engine in favour of its own companies.  In July 2016, the EC released a statement of objections that Google abused its dominant market position by ‘systematically favouring its comparison shopping service in its search result pages.’

Google later sought to defend its position on the basis that the accusations and evidence represented just ‘the interests of a small number of websites.’

Kent Walker, general counsel at Google, has blogged that the EC’s case ‘doesn’t fit the reality of how most people shop online.’ Walker argued that rather than looking for products on a search engine, consumers reach merchant websites in many different ways such as social media websites and online advertisements.

There are currently two separate investigations pending into Google, one regarding its use of the Android operating system and another into its AdSense service. 

tom.baker@legalease.co.uk and miriam.kenner@legalbusiness.co.uk

Legal Business

Cleary defends Google in face of potential €1bn EC antitrust shopping market abuse fine

Cleary defends Google in face of potential €1bn EC antitrust shopping market abuse fine

The European Commission’s (EC) probe of Google’s online shopping practices is reported to be closing in coming months with a potential €1bn (£875m) fine, in a case in which Clifford Chance (CC), Cleary Gottlieb Steen & Hamilton and Covington & Burling all act. 

For seven years, the European regulator has been investigating allegations that Google favours its own online shopping price comparison services above others on its search engine, abusing its dominant market position in breach of antitrust law.

According to media reports, the Brussels-based agency is nearing a decision on a fine against the company.

In 2009, UK price comparison website Foundem accused Google of lowering its ranking on the search engine in favour of its own companies. At least 30 other similar complaints soon followed from companies such as Microsoft, Expedia and TripAdvisor.

The fine is expected to break the EC’s previous record in relation to an technology company antitrust breach after it fined Intel €1.06 billion in May 2009 for granting favourable rebates to companies such as Dell, HP, and Lenovo, for acquiring all or nearly all of their chips from Intel. 

The EC opened this Google antitrust case in 2010. In July 2016, the EC formally stated that Google ‘has abused its dominant position by systematically favouring its comparison shopping service in its search result pages.’ Google denied the allegations and delayed its response.

The EC is concerned that Google promotes its own services its rivals’ cost to the ‘detriment of consumers’ who have to pay more due to resulting market distortion. It also claims that Google’s conduct ‘stifles innovation’ in the market for online shopping.

The EC also sent a statement of objections to Google in relation to advertising. According to the EC, Google restricted the ability of certain third party websites to display search advertisements from its competitors. The three firms are also involved in this separate investigation.

Alphabet Group, a holding company, has owned the US multinational conglomerate and other Google subsidiaries since a corporate restructure in 2015.

Cleary’s London-based competition partner Maurits Dolmans and Brussels partners Thomas Graf and Robbert Snelders act are defending Google. Google’s internal competition lawyer Julia Holz co-ordinates the company’s in-house defence.

Led by partner Thomas Vinje, CC is advising Fairsearch, a 15-strong consortium with allegations against Google in the case. Covington & Burling’s Miranda Cole acts for Expedia, TripAdvisor and trivago.

In December 2016, Google’s UK and Ireland legal chief Emma Jelley left the company to join tech start-up Onfido as general counsel.

Jelley had overseen the company’s legal affairs in the UK and Ireland for eight years.

tom.baker@legalease.co.uk

 

 

 

Legal Business

Too big to fail

Too big to fail

Experienced financial regulation partner Bob Penn, who moved to Cleary Gottlieb Steen & Hamilton last year and advised HSBC on the controversial bank ring-fencing reforms while at Allen & Overy (A&O), is clear on whether those reforms are fit for purpose. ‘This is a hugely unwelcome and disruptive process, and frankly yet another distraction from running a profitable bank at a time when they are already facing a cascade of regulatory reform and the prospect of Brexit.’

Legal Business

‘No justiciable defence’: Cleary, NRF and Quinn to go another round in $3bn Russian bond dispute

‘No justiciable defence’: Cleary, NRF and Quinn to go another round in $3bn Russian bond dispute

Partners from Cleary Gottlieb Steen & Hamilton, Norton Rose Fulbright and Quinn Emanuel Urquhart & Sullivan are set to go another round as Ukraine has vowed to appeal a pre-trial decision over a $3bn Russian bond repayment.

The High Court has ruled that Ukraine did not provide a ‘justiciable defence’ in the case, heard in London’s recently created financial court.

The case relates to a $3bn loan Russia made out to Ukraine in December 2013 in the form of a Eurobond. The Law Debenture Trust Corporation is the trustee of the bond, which was arranged by White & Case and Clifford Chance.

Ukraine argued the loan was made as part of wider Russian economic and military pressure to prevent Ukraine from signing an EU Association Agreement at the Vilnius Summit in November 2013. In March 2014, Russia annexed Crimea.

But following a pre-trial hearing, Justice Blair concluded: ‘The threats of the use of force by Russia which are relied upon by Ukraine as vitiating the Eurobond transaction fall within the foreign act of state doctrine as issues upon which the court should refrain from adjudicating.

‘This is a claim for repayment of debt instruments to which the court has held that there is no justiciable defence.’

Quinn partner Alex Gerbi lead for Ukraine and Norton Rose’s financial disputes partner Michael Godden acted for The Law Debenture Trust Corporation, the trustee directed by Russia’s Ministry of Finance to bring the case. Cleary acted for the Russian government, with a team including partners David Sabel and Jonathan Kelly.

Norton Rose instructed Brick Court’s Mark Howard QC and Oliver Jones. Fountain Court Chambers’ Bankim Thanki QC and Simon Atrill and Essex Court Chambers’ Malcolm Shaw QC were enlisted by Quinn.

In August 2015, Weil, Gotshal & Manges and White & Case acted as the lead advisers as Ukraine struck a debt-relief deal on its $18bn sovereign debt pile in a bid to rebuild its fragile economy.

tom.baker@legalease.co.uk