Antitrust/Competition

Michael Bernstein is a partner in the firm's antitrust/competition practice group. His practice focuses on federal and state government reviews of mergers and acquisitions, civil antitrust litigation, government investigations, and antitrust counseling.

Mr. Bernstein has advised clients in a wide range of industries including retail, food, consumer goods, entertainment, software, computer and information technology, telecommunications, chemicals, oil and gas, automotive parts, building materials, financial services, private equity and healthcare, among others.

Mr. Bernstein has been an active member in the American Bar Association (ABA) Section of Antitrust Law, as well as other Bar organizations. In 2010, Mr. Bernstein was a member of the International Bar Association Antitrust Working Group that submitted comments regarding the Proposed U.S. Horizontal Merger Guidelines. He also recently served as the Young Lawyer Representative to the ABA Section of Antitrust Law's Health Care Conference Planning Team.

Antitrust/Competition Representative Matters

Representative Transactions

• Intel in connection with its purchase of security software firm McAfee for US$7.68 billion. The transaction was cleared without a second request in the US and with Phase I commitments in the European Union.
• AMC Entertainment Inc. in its acquisition of most of the assets of Kerasotes ShowPlace Theatres LLC. The matter was resolved with the DOJ and various state attorneys general with limited divestitures. Counseled AMC regarding the acquisition and responding to federal and state inquiries. Assisted with the development of substantive arguments and participated in divestiture and consent decree negotiations.
• Visa Inc. in connection with its US$2 billion acquisition of Cybersource, a leading provider of merchant payment solutions for Internet commerce.
• Cisco Systems, Inc. in its acquisition of Starent Networks, Corp. Assisted Cisco in securing DOJ approval of the transaction without responding to a second request.
• Altria Group, Inc. in its acquisition of UST Inc. Assisted Altria in securing early termination of the Hart-Scott-Rodino waiting period.
• Unilever in the sale of its Lawry's & Adolph's branded spice blends, seasoning blends, and liquid marinades business. Counseled Unilever regarding the transaction and with respect to its response to a second request by the Federal Trade Commission (FTC). Focused on the preparation of interrogatory responses and development of economic evidence, negotiated the scope of the second request, and managed the compliance process.
• Adobe in its US$3.4 billion acquisition of Macromedia, a leading developer of software used by creative professionals and web developers. Transaction permitted to close without divestitures after second request. Counseled Adobe with respect to its response to a second request by the DOJ. Focused on the preparation of interrogatory responses, management of the privilege review process, and assisting with witness deposition preparation.
• Loews Cineplex Entertainment Corporation in its merger with AMC Entertainment Inc. Together the firms will own or operate 334 theatres nationwide. The matter was resolved with the DOJ and various state attorneys general with the divestiture of only 10 theatres. Counseled Loews regarding the transaction and with its response to formal inquiries from both federal and state authorities, as well as assisting with the divestiture and consent decree negotiations.
• Occidental Chemical Company in the US$360 million purchase of Vulcan Materials Company's chemical assets. Counseled Occidental Chemical with its response to a second request by the Federal Trade Commission (FTC).
• Counseled global reinforcements and composites manufacturer in FTC review of an acquisition of a competitor.
• Assisted global building materials company in avoiding a second request in connection with the sale of a business to a competitor.

Representative Litigation

• Vibo Corp. v. California, No. 37-2008-00097878-CU-MC-CTML (July 21, 2009). Obtained summary judgment on behalf of defendant tobacco company in a declaratory relief action regarding a provision of the nationwide tobacco settlement agreement.
• Vibo Corp. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009). Represented defendant tobacco company in its defense against antitrust and constitutional claims based on the nationwide tobacco settlement agreement. Obtained dismissal of case.
• In re: OSB Antitrust Litigation. Represented defendant oriented strand board manufacturer in a civil price fixing matter brought by direct and indirect purchasers. Counseled on litigation strategy, drafted dispositive motions, worked with testifying expert economist, deposed plaintiffs, appeared on behalf of client at hearings, managed discovery, and assisted in settlement negotiations.

Other Experience

• Represented clients in various non-public criminal and civil antitrust investigations.
• Counseled clients on issues related to Clayton Act § 8 (interlocking directorates).
• Advised clients on various contract, pricing, distribution, and other related issues.
• Advised clients on the consumer protection issues presented in advertising.
• Provided regulatory, legislative, and litigation advice relating to current and potential product regulations by various state and federal governmental entities.