2015 Annual Review

Setting precedent

In disputes ranging from antitrust and patent infringement claims to the unconstitutionality of trade laws and a record-breaking bankruptcy, White & Case successfully represented leading global companies in defending their interests around the world.

Maximizing recovery in largest-ever US industrial bankruptcy
After the largest leveraged buyout in history, declining energy prices forced the US$40 billion-plus bankruptcy of Energy Future Holdings Corp. (EFH). We successfully represented a group of unsecured noteholders who were set to recover pennies on their billions of dollars in claims. After 18 months of contentious litigation, we designed and achieved consensus for a plan of reorganization that the US Bankruptcy Court in Delaware ultimately confirmed. The plan provides for the tax-free spin-off of EFH’s merchant energy business to satisfy more than US$25 billion of secured debt and allows our clients to buy EFH’s subsidiary, Oncor, Texas’s largest regulated utility, and realize substantial upside value by converting its parent holding companies into a real estate investment trust (REIT) with the investment of up to US$12.6 billion in additional new capital. This innovative approach may be the first use of a REIT to resolve a bankruptcy and may enable our clients to receive a higher return on their investments than even certain secured lenders in the cases.

Victory for innovation in first-of-its-kind “product hopping” case
In a case with massive implications for innovation not only in pharmaceuticals but in all industries, we won the first-ever victory on a full evidentiary record in a “product hopping” litigation for pharmaceutical giant Warner Chilcott/Actavis regarding its Doryx® acne medication. Generic drug-maker Mylan Pharmaceuticals claimed that Warner Chilcott/Actavis violated antitrust laws by reformulating Doryx in an anti-generic strategy of “product hopping” or “product switching,” solely to delay and impede generic competition for Doryx. A US federal court disagreed, holding that allowing antitrust litigation by generics when brand drugs are reformulated will stifle innovation.

99% of claims dismissed in US$1.3 billion arbitration
We secured a significant victory for the Republic of Uzbekistan in its longstanding dispute with Oxus Gold plc, when an ad hoc UNCITRAL tribunal dismissed more than 99 percent of the US$1.3 billion in damages Oxus claimed for alleged violations of the Uzbekistan-United Kingdom bilateral investment treaty.

Calling card patent claim against Verizon disconnected
We won a complete victory for Verizon Communications, Inc. in a multi-year litigation, when a US federal court granted our motion for judgment on the pleadings that the patent-in-suit was invalid. Verizon and three other telecommunications providers had been sued based on a claim that their calling card products infringed the plaintiff’s patent on telecommunications payment methods. The plaintiff had sought damages in the eight-to-nine-figure range.

French law found to unjustifiably restrict freedom of trade
We won a ruling from France’s top constitutional authority, the Conseil Constitutionnel, allowing French companies to produce and export bisphenol A (BPA)-based food contact materials (such as containers for drinking or cans with interior coatings) outside France, if the importing country permits it. We represented PlasticsEurope, a trade association representing the European plastics manufacturers, which challenged a French law suspending the manufacturing and sale of food contact materials containing BPA, a carbon-based synthetic compound. The Conseil ruled the law unjustifiably restricts the freedom of trade, because it also bans the manufacture and export of BPA-based food contact materials outside France, even when other European countries allow it, and is thus unconstitutional.

EU General Court annuls €28 million cartel fine against Toshiba
In a high-profile challenge to a European Commission (EC) cartel decision on Color Picture Tubes (CPTs) for television sets, we convinced the EU General Court to find that Toshiba Corporation had not participated in the CPT cartel and to annul the €28 million fine the EC had imposed on it. Toshiba was the only company out of all the defendants to successfully argue it was not guilty of cartel conduct.

Toys “R” Us -Japan navigates JFTC antitrust investigation and appeal
Toys “R” Us-Japan Ltd. faced a Japan Fair Trade Commission (JFTC) investigation regarding claims of abuse of superior bargaining position under Japan’s Antimonopoly Act. We successfully represented it in the investigation and subsequent appeal by getting the surcharge cited in the JFTC’s draft order cut significantly, a virtually unprecedented result, and on appeal and in a groundbreaking ruling, convincing the JFTC to reverse and reduce previously imposed fines. The JFTC also rescinded part of a cease-and-desist order against Toys “R” Us, a very rare action by a JFTC hearing panel.

USB connector “conspiracy” claim defeated
The maker of a USB connector sued Foxconn Electronics, Inc. and Foxconn International, Inc., (Foxconn), subsidiaries of Hon Hai Precision Industry Co. Ltd., a leading electronics manufacturer. The plaintiff claimed Foxconn conspired with an industry standards body—USB Implementers’ Forum (USB-IF)—to deny certification of the plaintiff’s USB product in order to protect Foxconn from competition. We won a complete dismissal in US federal court. The court found no plausible agreement between Foxconn and USB-IF and that the certification activities were legitimate industry conduct that did not violate the Sherman Act.

UCB’s US$838 million/year pharmaceutical product protected
We obtained a judgment for global pharmaceutical maker UCB in the “rocket docket” of the US Eastern District of Virginia declaring that its Cimzia® product (with US$838 million in 2014 net sales) did not infringe Yeda Research and Development Ltd.’s patent.