Senior Partner, U.S. and Global Head of LitigationA&O: 1983-present
Partner, Head of U.S. Litigation practiceA&O: 2003-present
Partner, Head of Australia Litigation practiceA&O: 2011-present
Brechje Van Der Velden
Senior Partner, NetherlandsA&O: 2000-present
THE AIM: LITIGATION PRACTICE TO GENERATE 25% OF THE FIRM’S REVENUE STREAM BY 2020
BETWEEN 2012 AND 2016, REVENUES GENERATED BY LITIGATION GREW BY MORE THAN 40%
It has long been the case that business has operated globally, or, at least, across many countries. That trend shows no sign of abating, as U.S., European and Japanese multinationals are joined and challenged by, amongst others, their counterparts in China and India.
At the same time, these multinationals are increasingly subject to global regulation. National regulators are joining forces to ensure consistency and avoidance of regulatory ‘arbitrage’ (where businesses can choose or move to more loosely regulated jurisdictions). Then there is the extraterritorial reach of antitrust, anti-money laundering, anti-bribery and corruption legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), and sanctions which can hit businesses even in jurisdictions in which they do not have operations.
Given that wrongdoing and disputes are inevitable, it follows that investigations, enforcement and controversy are increasingly global in nature. That makes dispute resolution more complex and far-reaching. It is an unwelcome, but necessary legal service – no business likes to have to deal with disputes, or pay lawyers to help resolve them. Disputes are expensive, time-consuming and their outcome is often uncertain – and businesses dislike nothing more than uncertainty.
Throw into the mix the fact that dispute resolution can lead to tricky questions of conflicts – you definitely don’t want to be representing the other side against a valued client. You can also see that the major law firms are constantly faced with many complex issues as they seek to develop their litigation capability. Nonetheless in the vast majority of the leading U.S. firms, litigation often represents more than 30% of the business and is extremely profitable.
Tim House, senior partner for the U.S. and global head of Litigation at A&O, prefers to look at this complex set of interrelated factors as an opportunity, rather than a threat. “In such a complex environment, international businesses are looking for a law firm that can deliver global advice under one roof to help them solve their most challenging commercial disputes and regulatory investigations,” he says. “That is exactly what we offer, and we have plans in place that will make our offering even more attractive to existing and potential clients.”
Not that A&O is starting a litigation capability from scratch. Indeed, the firm can draw on a long history of dispute resolution. George Allen, one of the firm’s founders, was involved in what was probably the ultimate constitutional dispute – whether Edward VIII, King of the United Kingdom, should abdicate in order to marry Wallis Simpson. It was an unprecedented issue that involved referring back for authority to the Magna Carta.
However, the impetus to start a dedicated Litigation practice came from William Martin, who joined the firm as an office boy in August 1930. He went on to qualify as a lawyer, become a partner, head the Litigation department and, in the 1960s, was one of three senior partners. Since then the practice has included some legendary names, among them Sir John Charles, John New and David Mackie, A&O’s first QC.
A&O was also forward-thinking in the areas of dispute on which it advised. So, for example, it was one of the first law firms to develop a European practice, and Anthony Paines achieved the distinction of being the first solicitor to appear as an advocate before the European Court of Justice in Luxembourg in 1974.
More recently, the Litigation practice has been growing quickly and very profitably: between 2012 and 2016, revenues generated by Litigation grew by more than 40%. The Lawyer Global Litigation Top 50 notes that in 2016, A&O appointed or hired more litigation partners and lawyers than any other law firm.
In 2017, there were 94 partners who focused on dispute resolution, which includes arbitration, investigations, mediation and other forms of alternative dispute resolution, as well as litigation. Just under a fifth of A&O lawyers work in dispute resolution. It is now a top ranked practice globally.
Expanding the global Litigation practice is therefore well on the way to being achieved, as Tim notes. “When I became head of the Litigation practice in 2008, I thought there was no reason why Litigation could not join Banking, Corporate and Capital Markets as the fourth great pillar of our success. That became my mission.
“Our focus was on the types of work that are quintessentially cross-border and international, such as cross-border regulatory enforcement work, global investigations, and international arbitration. All this had to be done in tandem with having leading domestic litigation capability in the main financial and commercial centres of the world to manage the complex disputes that dog global businesses. We decided early on that a key area was intellectual property (IP). IP is of fundamental importance to companies’ businesses, particularly in the tech and life sciences sectors, and protection of it requires an international capability.”
As disputes become more international, disparate and complex, so has the emphasis been on integrating our dispute resolution lawyers across the network. Teams are assembled from different offices, as required, on the basis of the nature of the dispute and individual skills and experience. That may include lawyers with qualifications in many different legal systems. Given the power of the U.S. financial institutions, the increasing growth of U.S. law in international transactions and the extra-territorial ambitions of the U.S. enforcement agencies, there is a particular need for those who are U.S. law-qualified.
Over the past ten or so years, A&O has continued to develop its U.S. capability, both nationally and around the A&O network. With English or New York law being the law of choice in most global transactions, it is deemed essential to have qualified lawyers in each of these legal regimes available, across the major international financial centres.
It is not just lawyers who are brought in on teams: a major case now involves professional project managers, the LSC in Belfast and, quite often, consultants from Peerpoint, A&O’s global platform for self-directed consultant lawyers. Resources are allocated where they are needed; in 2017 we had the first instance of a senior project manager, David Armsworth-Maw, relocating – in this case to our Perth office to assist on an arbitration.
“When clients see how we work, with multijurisdictional, multicultural teams of lawyers and other professionals who know, like and respect each other from many previous engagements, they see the difference between what we offer in a single firm and contrast it with the alternative – namely, to assemble an ad hoc team from multiple firms, each with their own ways of working and each with their own interests. It is no comparison. Proper, instinctive collaboration and consistency are essential if a business is threatened by litigation or enforcement action that could cripple the business, particularly if it is under assault in multiple countries by multiple agencies, or has to enforce its rights across a global market,” Tim says.
Excellent coordination between the offices and team members has never been more important, notes Brechje Van Der Velden, a Litigation partner as well as senior partner in the firm’s Amsterdam office. “We have to be very strategic in working out the best arguments to win a case,” she says. “What might play well in the Dutch courts could easily put you at a disadvantage in another jurisdiction, depending on a whole host of factors.
“From time to time, we have quite deliberately held back on potential winning arguments in one jurisdiction so as not to prejudice our overall case. That requires good judgement.”
Tim says: “Looking back over the past ten or so years, we rode the wave of globalisation, but we recognise there are challenges ahead that we will need to meet if we are truly to consolidate our position as a market leader in global litigation and emerge pre-eminent.”
The first of those challenges is increasing the size and capability of A&O’s U.S. dispute resolution practice.
IN 2017, THERE WERE 94 PARTNERS WHO FOCUSED ON DISPUTE RESOLUTION
LAWYERS IN THE U.S. DISPUTE RESOLUTION PRACTICE
A&O NOW HAS MORE THAN 100 SPECIALIST IP LAWYERS ACROSS EUROPE, ASIA PACIFIC AND THE U.S.
JUST UNDER A FIFTH OF A&O LAWYERS WORK IN DISPUTE RESOLUTION
Founded in 2003 by A&O with Michael Feldberg as its initial head, the U.S practice has established itself well both in the U.S. and throughout the network and now comprises some 45 lawyers. U.S. litigation lawyers in both New York and Washington DC work collectively to solve clients’ complex litigation needs across a variety of disciplines. Those lawyers are passionate – in the courtroom and facing government prosecutors and regulators – about advocating for their clients’ interests.
The recent expansion of the U.S. Litigation practice is all the more impressive given that A&O is constantly competing in a market dominated by large U.S. law firms, with long-established relationships.
The U.S. holds the largest market for litigation (“Litigation is a national sport,” jokes Michael) and will continue to dominate. Jay Pultman, who now heads the firm’s U.S. Litigation practice, notes that this is for two reasons. The first is the more aggressive regulators, with greater propensity to prosecute and enforce; and the second is in civil cases with the preponderance of class actions, punitive damages and jury trials.
There has been significant growth in the number of U.S. lawyers and the practice has taken on a wide range of cases, particularly in financial services regulation and investigations, antitrust and the energy and commodities practice. But, as Michael says, “we can do more”. As well as looking to strengthen all areas of securities litigation, white collar crime and commercial litigation, the practice will be looking to add an IP capability and build a commercial and international arbitration team, with a focus on U.S. and Latin American work.
The competitive advantage of the U.S. practice is its international reach. Jay puts it this way: “We have a two-pronged approach: to build our U.S. practice with domestic clients in mind, and to continue to integrate our U.S. law capability into the global platform. We are confident that there will continue to be a strong need to service clients who are facing cross-border disputes or investigations, and we are ready for them.”
A&O also offers another real advantage in its global Litigation practice, and that is its one-firm culture. As Michael notes: “By offering a firm that can handle all aspects of the litigation, and coordinating local counsel, if necessary, we make the process so much more efficient. This contrasts with the position where clients need to instruct several different law firms on one matter. We know our approach adds real value, especially in complex situations, where we can take the weight off clients’ shoulders.”
John Samaha, who leads the Australian Litigation practice, agrees whole heartedly with that benefit and says: “The A&O culture, which is rooted in collaboration, encourages teamwork. That, in turn, makes the process of allocating resources that much easier. People are willing to be flexible and go where they are needed. Clients tell us regularly they like that approach.”
More widely, the firm is looking to expand its capability in investigations (both civil and criminal), IP and international arbitration, all of which are anticipated to generate more work in the future, as Tim notes: “We expect investigations and enforcement activity centred on antitrust, anti-bribery and corruption and sanctions and anti-money laundering to continue apace.”
Within IP, in the past year new partners have been hired in London, Germany and Asia. With a series of major lateral hires, A&O now has more than 100 specialist IP lawyers across Europe, Asia Pacific and the U.S. The practice is making rapid progress in establishing A&O as one of the pre-eminent international IP firms.
The LSC in Belfast also plays a crucial role in the IP practice, supporting the scientific research that is always an essential component of IP protection, particularly in patent disputes. The growing importance that businesses attach to cyber security and data protection, in the wake of increased cyber attacks and tighter regulation, respectively, is leading to a significant increase in the number of instructions in these areas of law.
One of the explicit components of the strategy to become a leading global litigation law firm and to increase Litigation’s share of A&O’s overall profits entails the investment in, and development of, technology. Investment in data management will help to generate revenue and profitability, but more importantly, will have a material positive impact both for our clients and the way we work internally. Brechje says: “If we let the technology come to our assistance by relieving us of much of the mechanistic side of litigation, that frees the lawyers up to consider the essential issues. You can do the thinking and let the technology do the work.”
The task is immense. As the volumes of data grow exponentially, it has become ever more important to harness the technology to store, manage and search it. A&O is exploring the most advanced software for use in e-discovery (the electronic assembly of documents and information relevant to a dispute), which includes not just predictive coding and automatic searches but also visual analytics, voice recognition and the use of AI to sort data.
Processing data is one challenge; how that data is then used is of equal importance. There is therefore a strong emphasis on collaboration between lawyers, e-discovery specialists and project management professionals, ensuring an efficient e-disclosure service to clients. More professionals with expertise in e-discovery are being employed, including Scott Robson, who joined the firm in October to replace Vince Neicho, who retired in May.
Not surprisingly, this is a huge and ever-changing task, requiring flexibility to adapt to advances in the technology. Yann Chatreau, who heads IT Risk in APAC and is the global head of IT for Litigation, says that is why A&O has opted for open ‘eco systems’ so they can be adapted and augmented as the software improves.
The LSC is again playing a key role: it uses Collaborate, a web-based platform which enables lawyers to communicate instructions, share documents and guidance across offices, to keep them up to date with developments and ensure efficiency – all part of ensuring that A&O is joined up and coordinated.
Alongside the investment in IT, A&O is stepping up its project management capability. The immediate benefit is a more efficient use of resources, allowing lawyers to focus more on the output of the IT product and improve the service to clients. However, Tim stresses that lawyers cannot detach themselves from the process and that, increasingly, clients expect them to be technologically savvy.
Underpinning everything is the need to establish excellent relationships with clients, who, perhaps more than in any other practice area, depend on their lawyers to offer judgement and guidance in situations where there are no easy answers or solutions. Those relationships have to withstand some severe tests, as Brechje notes: “Quite often, and naturally, there will be differences of opinion. It is very easy to have a fight with a client, just as much as with the other side! But you have to be bold, choose a strategy and defend it. Ultimately, that is why clients choose and respect us.”
Exciting times, then, for the A&O global Litigation practice. Definitely a case of ‘watch this space’.
Here are a few cases on which A&O’s global litigation lawyers have advised:
A&O acts for over 30 international investors in ten different claims under the Energy Charter Treaty (ECT) against Spain, regarding investments in the Spanish renewable energy sector. Claims arise out of retrospective changes made by Spain to the sector’s regulatory investment framework, which have led to investors making huge losses. In May 2017, our client, Eiser Infrastructure, in one of these cases was awarded compensation of EUR128 million, plus interest, for violations by the Spanish government of the ECT, failing to afford our client’s investment fair and equitable treatment. Enforcement proceedings have now begun in New York.
This is Spain’s first defeat in ECT claims against it regarding reforms to its renewable energy programme, having previously prevailed in two other claims arising from the same background (A&O did not act on those two cases).
A&O successfully represented the Dutch bank ING in worldwide litigation arising out of the collapse of the Danish OW Bunker Group, the world’s largest supplier of marine fuel prior to its collapse in 2014 and one of the largest maritime bankruptcies in history. The litigation, which culminated in a landmark UK Supreme Court case, was fought in more than 20 jurisdictions including the U.S., the UK, Singapore, Hong Kong, Belgium, the UAE and Canada.
A&O represents the Bosch companies, the world’s largest automotive suppliers, in the multidistrict Automotive Parts Antitrust Litigation, consolidated in the United States District Court for the Eastern District of Michigan. The litigation involves 35 separate auto parts and claims by automobile dealers, end payors and direct and indirect purchasers, who seek billions of dollars of damages for alleged cartel behaviour.
A&O is fielding a cross-border team from London, New York, Hong Kong and Beijing representing a major international hedge fund in relation to the myriad legal proceedings arising out of the theft of highly valuable confidential information and trading strategies by a former UK employee. The case involves multiple civil and criminal proceedings in several jurisdictions, including England, Hong Kong and the U.S.
A&O is advising Pfizer in enforcing its second medical use patent for its blockbuster, Lyrica (pregabalin), against Actavis and a large number of generic companies in the UK, France and Germany.
A&O is advising Samsung Electronics Co. Ltd and its French subsidiary, Samsung Electronics France, which are being sued for patent infringement by Technicolor, worldwide technology leader in the media and entertainment sector, in relation to a range of standard essential patents (‘SEPs’) and non-SEPs targeting a wide range of their phones and tablets, as well as a number of other products.