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FTC Meeting Signals Aggressive and Novel Enforcement to Come-1

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Alex Okuliar and David Shaw authored an article discussing changes at the Federal Trade Commission (FTC), republished in NYU Law's Compliance & Enforcement Blog.

FTC Meeting Signals Aggressive and Novel Enforcement to Come

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Alex Okuliar and David Shaw authored an article discussing changes at the Federal Trade Commission (FTC) that was republished in NYU Law's Compliance & Enforcement Blog."As one of her first acts, Chair Khan called for a Commission meeting on Thursday, July 1, 2021 to consider and vote on several important changes to agency rules and procedures, as well as to open several broad investigations."Read the <a target="_blank" href="https://wp.nyu.edu/compliance_enforcement/2021/07/19/ftc-meeting-signals-aggressive-and-novel-enforcement-to-come/">full article</a>.

FTC Meeting Signals Aggressive and Novel Enforcement to Come

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Alex Okuliar is co-chair of Morrison Foerster’s Global Antitrust Law Practice Group. A former Department of Justice (DOJ) and Federal Trade Commission (FTC) official, Alex draws on two decades of experience with mergers, government investigations, and litigation to represent clients in high-profile and high-stakes antitrust matters.From 2020 to 2021, Alex served as the Deputy Assistant Attorney General for Civil Enforcement in the DOJ Antitrust Division. In this role, he supervised more than 150 attorneys and staff responsible for merger and conduct investigations and enforcement actions across a range of industries. His most notable public investigations and actions include the agency’s review of digital platforms, its landmark monopolization case against Google, and the creation of the Civil Conduct Task Force. He also oversaw numerous merger investigations, including the $180 billion merger of United Technologies and Raytheon, Waste Management’s $4.6 billion acquisition of Advanced Disposal Services, Liberty Latin America’s $1.95 billion purchase of AT&T’s Puerto Rico wireless and wireline business, and Google’s $2 billion acquisition of Fitbit.Earlier in his career, Alex served as an attorney advisor to an FTC Commissioner and a trial attorney in the Networks & Technology Enforcement Section of the DOJ Antitrust Division.Before his service as a DOJ Deputy AAG, Alex was a partner at another leading international firm. Alex regularly represents clients before federal, state, and foreign authorities in connection with government investigations of conduct and mergers. He also has extensive experience litigating antitrust disputes, particularly those related to conduct involving technology companies and issues at the intersection of antitrust and intellectual property. Alex also regularly represents clients advocating on antitrust and competition enforcement policy issues.Alex has been frequently acknowledged for the quality of his work and client service. Recognitions include the following:<ul><li>“The ‘excellent’ Alex Okuliar has a broad practice taking in merger clearance, conduct investigations and antitrust litigation. He is particularly noted for his work on behalf of media and technology companies.” – Chambers USA, DC Antitrust 2020</li><li>“Alex Okuliar litigates cutting-edge antitrust topics such as platform competition and data collection as well as media cases.” – Legal 500, Litigation Defense 2020</li><li>“Alex Okuliar brings a deep knowledge of the law and economics of antitrust, and the ability to frame that knowledge within the unique circumstances of the digital economy.” – Legal 500, Merger Control 2020 (Client Testimonial)</li><li>“Alex Okuliar brings a calm and thoughtful approach to the matters he advises on. He has good judgment and delivers advice in a user-friendly format. He stays current on emerging issues in antitrust law and provides a helpful perspective on areas of risk and how to best address those areas.” – Legal 500, Cartels 2020 (Client Testimonial)</li></ul>Alex is also active in the bar. He currently serves as the co-chair of the Joint Conduct Committee of the ABA Antitrust Law Section and is the former co-chair of the Section’s Intellectual Property Committee. He writes and speaks frequently on important issues relating to technology and antitrust enforcement.Alex received his B.S. in economics and B.A. with distinction in history from the Wharton School of the University of Pennsylvania and his J.D. from Vanderbilt University Law School.Before law school, Alex co-founded and sold an online technology company.<h4>Representative Experience</h4><h5>Deals</h5><ul><li>Represented proptech company ShowingTime in the FTC Second Request investigation of the company’s $500 million acquisition by Zillow.</li><li>Represented Axalta Coating Systems in its $600 million acquisition of U-POL Holdings, a leading manufacturer of automotive repair and refinish products.</li><li>Represented animal biopharmaceutical company Kindred BioSciences in its $440 million acquisition by Elanco.</li><li>Advised Schlumberger on the creation of a global oil field services technology joint venture, Sensia, with Rockwell Automation.</li><li>Represented Microsoft in multiple deals, including its $7.5 billion acquisition of GitHub, a collaborative application system.</li><li>Advised Superior Plus on multiple deals, including its $900 million acquisition of NGL’s U.S. propane retail business.</li><li>Advised Nova Chemicals on its joint venture with Borealis and Total to build a $1.7 billion ethylene cracker and a polyethylene plant in Texas.</li><li>Represented Cisco in its $610 million acquisition of Viptela, a privately held software-defined wide area network (SD-WAN) company.</li><li>Advised Otsuka Pharmaceuticals Co. on its $250 million acquisition of Neurovance, a privately held clinical-stage pharmaceutical company focused on the development of therapies for ADHD and related disorders.</li><li>Represented Molina Healthcare in the $220 million sale of its Medicaid information systems business to DXC Technology Company.</li><li>Represented Planet Labs, an earth-imaging satellite company, in its acquisition of Google’s Terra Bella Technologies satellite business.</li><li>Advised Nodal Exchange Holdings, a leading energy financial derivatives exchange, on multiple transactions, including its acquisition by EEX, part of the Deutsche Boerse Group.</li><li>Advised Marubeni Corp., a major Japanese trading company, on its acquisition of Creekstone Farms Premium Beef, a top supplier of USDA-certified beef and pork products.</li><li>Advised Apigee, a cloud-computing company, on its $625 million sale to Google.</li><li>Represented consumer technology company VTech Group in the FTC investigation of its acquisition of educational toy manufacturer LeapFrog.</li><li>Represented a private equity fund in the FTC investigation of the client’s acquisition of a plastics distributor from a leading global chemicals company.</li><li>Represented AVG Technologies in its $1.3 billion sale to Avast Software, maker of antivirus and security software.</li><li>Represented a leading semiconductor photomask manufacturer in the DOJ investigation of its sale to a Japanese technology company.</li><li>Represented midstream energy company Enterprise Product Partners in multiple transactions, including the FTC <a href="https://www.ftc.gov/enforcement/cases-proceedings/0410039/enterprise-products-partners-lp-dan-l-duncan-matter" target="_blank">investigation</a> of the company’s $13 billion merger with GulfTerra and the related divestiture settlement.</li><li>Represented Hispanic Broadcasting Company, the nation’s largest Spanish-language radio network, in the year-long DOJ investigation of the company’s $3 billion sale to Univision and a related settlement.</li><li>Advised a consortium of leading energy companies in the $1.4 billion <a href="https://www.law360.com/articles/1204026/locke-lord-orrick-helm-nextera-unit-s-1-4b-pipeline-co-buy" target="_blank">sale</a> of Meade Pipeline, which owned a natural gas pipeline system in the Mid-Atlantic to a unit of NextEra Energy.</li></ul><h5>Litigation</h5><ul><li>United States v. Google: While at DOJ, Alex was the senior Division official overseeing the DOJ team representing the United States in its landmark monopolization case against a leading online search engine.</li><li>American Broadcasting Companies et al. v. Goodfriend et al. (SDNY): Represented online streaming service in its antitrust counterclaim against the nation’s television networks in connection with a copyright lawsuit.</li><li>In re Air Cargo Shipping Services Antitrust Litigation (EDNY): Represented international air cargo defendant in putative class action over claims of price-fixing.</li><li>In re Korean Air Lines Antitrust Litigation (CD Cal): Represented Asiana Airlines in defense of indirect and direct purchaser civil class actions alleging price-fixing of passenger airfares.</li><li>Honeywell International (multiple courts): Alex was counsel to Honeywell in numerous putative class actions of indirect purchasers alleging monopolization involving the sale of certain home thermostats.</li><li>American Express v. Visa, et al. (SDNY): Represented major credit card issuer against claims of group boycott by a global credit card network and card issuer.</li><li>In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MDL 1720, EDNY): Represented major credit card issuer in class actions alleging an agreement to fix the price of fees charged to merchants for accepting credit card payments.</li><li>Airline predatory pricing: Alex defended an airline against allegations of predatory pricing in Hawaii.</li></ul><h5>Investigations, Cartel Defense, and Policy Advocacy</h5><ul><li>Represented a major chemicals company as a leniency applicant in a DOJ criminal price-fixing investigation.</li><li>Represented an airline in various DOJ criminal cargo and passenger airfare antitrust investigations.</li><li>Represented a technology company in the DOJ investigation of an alleged no-poach agreement relating to employee hiring.</li><li>Handled internal investigations of possible price fixing, bid rigging and related conduct in various industries, including energy, health care, finance, e-commerce, and chemicals.</li><li>Represented a major energy company as a third-party complainant and witness in an FTC investigation leading to litigation against the merging companies.</li><li>Represented numerous companies, including a major healthcare company and several technology companies, as third-party respondents to various FTC and DOJ civil investigative demands and subpoenas.</li><li>Represented clients in drafting and submitting comments and white papers, and in advocating policy positions, to global antitrust authorities, including the DOJ, FTC, DG Comp, CMA, KFTC, MOFCOM (now SAMR), CADE (Brazil), and others in response to requests for input on proposed merger guidelines and IP/antitrust enforcement policies and guidelines.</li><li>Represented a major hospital system in a State AG price-fixing and market allocation investigation. </li><li>Represented a ticket reseller in a State AG consumer protection investigation.</li></ul>

Alexander Okuliar

Co-chair Global Antitrust Law Practice Group

David Shaw is a partner in Morrison & Foerster’s Global Antitrust Law Practice group, where he draws upon his extensive experience across merger clearance litigation, cartel representations, counseling, and State Attorney General antitrust enforcement to guide clients through government-facing antitrust matters.Most recently, David was the Deputy Chief of Staff and Counsel to the Assistant Attorney General in the Antitrust Division of the Department of Justice (DOJ). In this role, he advised and assisted the head of the Antitrust Division on law and policy related to the Division and managed relationships with state attorneys general across all Division matters, including directly handling relationships in the highest stakes and most sensitive matters facing the Division.Additionally, David held a leadership role with respect to conduct and merger reviews related to leading online platforms and held particular responsibility for Telecommunications and Broadband; Transportation, Energy, and Agriculture; Competition Policy and Advocacy; and International Sections of the Antitrust Division.David also served as a Trial Attorney in the Technology and Financial Services Section of the Antitrust Division, where he handled all aspects of the merger review process, from reviewing HSR filings to preliminary investigations, Second Request investigations, and merger challenges. In this role, he served on the trial teams for some of the most high-profile antitrust lawsuits in the technology and energy sectors.Before his government service at the DOJ, David was an associate at another leading international firm.David is also active in the bar and currently serves as the vice chair of the Exemptions and Immunities Committee of the ABA Antitrust Law Section.David earned his B.A., magna cum laude with Highest Honors in government, from Patrick Henry College, and his J.D. from Georgetown University Law Center, where he served as Articles Editor for the Georgetown Law Journal.

David J. Shaw

Partner

Antitrust Law