Alex Okuliar

Partner

Washington, D.C.


Read full biography at www.orrick.com

Alex is an antitrust lawyer, litigator, and former enforcer at both the FTC and DOJ. He has been recognized as "excellent" by Global Competition Review, included in US Merger Control by Legal 500, and designated a Future Leader by GCR and Who's Who Legal.

Alex divides his practice between transactions, counseling, and litigation. From 2012-2015, Alex served as advisor to FTC Commissioner (and current Acting Chair) Maureen Ohlhausen, counseling her on the agency's numerous investigations, enforcement actions, and policies. He also engaged with enforcers outside the United States on key policy issues, including the proper role of antitrust analysis in intellectual property disputes. Earlier, from 2010-2012, Alex was a trial attorney at the DOJ Antitrust Division focused on technology and finance. 

In addition to his government work, Alex has more than a decade of experience in private practice. He has defended the transactions of domestic and international technology, media, and energy clients before antitrust agencies and represented class action defendants in federal and state court litigation around the United States. Before law school, Alex co-founded and sold an online technology company.


RECENT MATTERS

  • Cisco.  Represented Cisco in its $610 million acquisition of Viptela, a privately held software-defined wide area network (SD-WAN) company (2017).
  • Otsuka Pharmaceuticals Co.  Advised a major Japanese pharmaceutical company 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 (2017).
  • Planet Labs.  Represented earth-imaging satellite company in its acquisition of Google's Terra Bella Technologies business (2017).
  • Michelin North America.  Advised Michelin on its acquisition of NexTraq, a U.S. provider of commercial fleet telematics, from FLEETCOR Technologies (2017).
  • Nodal Exchange Holdings.  Advised leading energy derivatives exchange on its acquisition by EEX, part of the Deutsche Boerse Group (2017).
  • Marubeni Corp.  Advised major Japanese trading company on its acquisition of Creekstone Farms Premium Beef, a top supplier of USDA-certified beef and pork products (2017).
  • Apigee.  Represented cloud computing company Apigee in its $625 million sale to Google (2016).
  • VTech.  Represented VTech in the FTC investigation of its acquisition of Leapfrog (2016).
  • AVG Technologies.  Represented AVG in its $1.3 billion sale to Avast Software, maker of antivirus and security software (2016).
  • Private Equity Fund.  Represented private equity fund in its acquisition of a plastics distributor (2016).

ADDITIONAL SELECTED EXPERIENCE (includes representations prior to joining Orrick)

Technology and Media

        Transactions

  • Cisco.  Represented Cisco in its $610 million acquisition of Viptela, a privately held software-defined wide area network (SD-WAN) company (2017).
  • Planet Labs.  Represented earth-imaging satellite company in its acquisition of Google's Terra Bella Technologies business (2017).
  • Apigee.  Represented cloud computing company Apigee in its $625 million sale to Google (2016).
  • VTech.  Represented VTech in the FTC investigation of its acquisition of Leapfrog (2016). 
  • AVG Technologies.  Represented AVG in its $1.3 billion sale to Avast Software, maker of antivirus and security software (2016).
  • Photomask Manufacturer.  Represented semiconductor photomask manufacturer in the DOJ review of its acquisition by another manufacturer.
  • National Radio Network.  Represented Spanish-language radio network in its $3 billion acquisition by the nation's largest Spanish-language television network.
  • National Radio Network.  Defended radio network in the DOJ review of multi-station acquisition.
  • Government Experience.  Numerous transactions reviewed at DOJ and FTC, including Google/ITA (online travel software), Universal/EMI (music distribution), and dozens of additional deals in these sectors.

       Litigation

  • Technology Equipment Company.  Defended leading home equipment technology company in class actions alleging monopolization for exercise of intellectual property rights.
  • Semiconductor Manufacturer.  Defended semiconductor company against claims of price fixing in federal court class action.

Energy and Infrastructure

  • Private Equity Fund. Represented private equity fund in its acquisition of a plastics distributor (2016).
  • Midstream Energy Services Company.  Represented company in FTC review of the company's $13 billion acquisition of a midstream services provider; negotiated a consent decree involving divestitures.
  • Midstream Energy Services Company.  Defended company before the FTC review in its review of an acquisition of assets in Texas and Oklahoma.
  • Renewable Power Generator.  Representing renewable energy generator in structuring a joint venture for generation and transmission services.
  • Oil Producer.  Represented oil producer in negotiating a joint venture arrangement for pipeline services.
  • Government Experience.  While at the FTC, advised on numerous proposed transactions, including pipeline sales, as well as retail and industrial manufacturing and distribution deals. Drafted Commission opinions on multiple transactions (restaurant food and supplies distribution, office supply stores and glass bottle manufacturers). Advised on the Commission’s decisions and drafted opinions and statements in the administrative case involving allegations of price fixing and exclusive dealing, In re McWane; the decision was upheld on review at the Eleventh Circuit and certiorari denied by the U.S. Supreme Court.

Financial Services

  • Nodal Exchange Holdings.  Represented a major financial exchange in its "nine-figure" acquisition by EEX, part of the Deutsche Boerse Group (2017).
  • National Bank.  Defended bank against group boycott allegations in multi-year case involving credit card payment networks.
  • National Bank.  Defended bank against allegations of price fixing involving the merchant interchange rate for credit card payment networks.  
  • Government Experience.  As a trial attorney at DOJ, investigated the proposed merger of the New York Stock Exchange and Deutsche Borse, the proposed takeover of NYSE by NASDAQ, and many other deals involving financial exchanges and related businesses.

Health Care and Life Sciences

  • Branded Pharmaceutical Company.  Represented branded drug maker in the negotiation of a licensing agreement. 
  • Regional Hospital System.  Represented a health care provider in an investigation into a clinical integration program and joint venture. 
  • National Hospital System.  Presented concerns of a third party to the FTC regarding a proposed health care merger.
  • Government Experience.  As an FTC advisor, reviewed many transactions in life sciences, medical devices, and hospitals, as well as the resolution of agency concerns. In addition, worked on the agency’s appellate and Supreme Court strategy pre-Actavis and its amicus briefs and staff enforcement recommendations post-Actavis. At the DOJ, litigated the lawfulness of most favored nations clauses imposed by a health insurer on health care providers.

Transportation

  • National Discount Air Carrier.  Presented proposed deal to the federal antitrust agencies for an acquisition of airport slots. 
  • Global Air Carrier.  Defended a major Asian air carrier in federal district and appellate courts against class actions alleging price fixing of passenger air fares. See In re Korean Air Lines Co. Antitrust Litig., 567 F. Supp. 2d 1213 (C.D. Cal. July 23, 2008), aff’d in part, vacated in part, 642 F.3d 685 (9th Cir. 2011).
  • National Discount Air Carrier.  Defended an air carrier against allegations of predatory pricing.
  • Government Experience.  Investigated the purchase and sale of airport slots between two major airlines while at DOJ.

Posts by: Alex Okuliar

Is Big Data a Big Deal? A Competition Law Approach to Big Data

Big Data Wordcloud Concept with the word big data in large block letters in red color surrounded by a cloud of related words in blue European Competition Journal article proposing a framework to determine the competitive significance of big data

Orrick Antitrust & Competition partner Alex Okuliar has co-authored an article in the European Competition Journal with Greg Sivinski, Assistant General Counsel in the Competition Law Group at Microsoft, and Lars Kjolbye, a partner at Latham & Watkins in Brussels, in which they propose a framework to determine the competitive significance of data.  The framework first considers whether the parties own or control the relevant data. The second consideration is whether the relevant data is commercially available as a product or as an input for products of downstream competitors. The third consideration is whether the relevant data is proprietary to the owner’s or controller’s products or services and a competitively critical input. The last consideration is whether reasonably available substitutes for the relevant data exist or whether the data is unique.

The article can be accessed here.

 

Pricing Algorithms: Conscious Parallelism or Conscious Commitment?

Blue screen of multi colored computer code Pricing Algorithms: Conscious Parallelism or Conscious Commitment?

Antitrust partner Alex Okuliar and associate Elena Kamenir published a column on Competition Policy International about recent commentary by the global enforcement community on pricing algorithms, the legal precedent supporting the US antitrust agencies’ views, and the possible antitrust implications for businesses. To view the column, please visit here.

 

 

DOJ and FTC Set Possible Criminal Liability Trap for HR Professionals

DOJ FTC October 20, 2016 release Antitrust Guidance for Human Resource Professionals application of antitrust laws to employee hiring and compensation criminal liabilty trap for HR professionals

In an October surprise, the DOJ and FTC (collectively, the “Agencies”) released guidance for HR professionals on the application of the antitrust laws to employee hiring and compensation.  The Agencies’ October 20, 2016 release, Antitrust Guidance for Human Resource Professionals, announced that “naked” agreements among employers not to poach each other’s employees and to fix wages and other terms of employment are per se illegal.  Critically, for the first time, the Agencies warn that such agreements could result in criminal prosecution against individual HR professionals, other company executives, as well as the company.  This Guidance, coupled with repeated requests to approach the Agencies to report such agreements, signals a significant shift in enforcement focus for the Agencies, including a further move to individual prosecutions, particularly when taken together with last year’s DOJ Yates Memorandum calling for more emphasis on individual executive liability.

READ MORE

Antitrust and Competition Law Is Being Wielded as an Increasingly Effective Weapon to Diminish Patent Rights in the U.S.

IP Antitrust Law diminish patent rights in the US

Partners Jay Jurata and Alex Okuliar recently published a chapter on IP and Antitrust in The Antitrust Review of the Americas 2017 published by Global Competition Review. They note that antitrust and competition law is being wielded as an increasingly effective weapon to diminish patent rights in the US. Follow the link to the chapter.

Federal Trade Commission Publishes Study Analyzing Patent Assertion Entity Organization and Behavior

For years, a debate has swirled in Washington and around the country about the role and economic value of “patent assertion entities” – often referred to derisively in the press as “patent trolls.” Some of these PAEs have been known to blanket small businesses with threatening letters claiming infringement of sometimes questionable patents hoping to receive a quick payout. The Federal Trade Commission just recently published a long-awaited Patent Assertion Entity Activity Study that analyzes the structure, organization, and behavior of PAEs, hoping to inform the debate about these entities. Using responses from a sample of 22 PAEs and more than 2,500 PAE affiliates and related entities, the study analyzes PAE acquisitions, litigation, and licensing practices over a six-year period. The findings in the study are extensive and are likely to provoke further discussion and debate. The Commission’s key findings and recommendations are discussed below. READ MORE

Are Patent Rights Poised for a Resurgence?

Patent Rights Resurgence Word Cloud

Partners Alex Okuliar and Jim Tierney recently published a piece in the National Law Journal entitled Are Patent Rights Poised for a Resurgence?  They argue that after several years of retrenchment, economic trends in the US and China, as well as developments at the federal agencies and US courts, could signal a return to stronger protections for patent owners. Follow the link to the article.

 

FTC and DOJ Antitrust Division Request Comments on Proposed Revisions to Antitrust Guidelines for Licensing IP

After several turbulent years of litigation and policy wrangling, many have asked whether the federal antitrust agencies should rewrite their two-decade old Antitrust Guidelines for the Licensing of Intellectual Property (“Guidelines”).  Should they provide clearer guidance regarding thorny questions about licensing standard essential patents (SEPs), patent assertion entities (PAEs), reverse payment settlements, or other matters that have prompted new guidelines from other enforcers around the world?  On August 12, the Federal Trade Commission and US Department of Justice’s Antitrust Division responded with modest updates to the Guidelines, likely setting themselves up for considerable commentary in the weeks to come.

READ MORE

Second Circuit Rules That Judges Can Decertify a Class After a Jury Verdict

The Second Circuit recently held that under Federal Rule of Civil Procedure 23, a district court judge can decertify a class after a jury verdict in favor of the class but before entering judgment, upholding a Southern District Court of New York decision granting defendants’ post-verdict motion to decertify the class.  Joseph Mazzei v. The Money Store, TMS Mortgage Inc., HomEq Servicing Corp., No. 15-2054 (2d Cir. July 15, 2016).  The Second Circuit’s decision confirms that after a court certifies a class, defendants should continue to develop evidence to seek to decertify the class even after a jury verdict in favor of the class.

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Court Awards $3M Sanction and Adverse Inference for Spoliation in Antitrust Case

On July 6, 2016, Judge Leonard P. Stark, of the federal district court in Delaware, ordered a $3 million punitive monetary sanction, and an adverse inference jury instruction, against antitrust defendant Plantronics after finding that a top executive at the company had deleted thousands of potentially relevant emails.  This case is noteworthy both because of the severity of the sanction and the court’s decision to impute the conduct of an employee to the company even though numerous preservation practices were in place and the employee was instructed not to destroy information.

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ValueAct Settlement Marks Record Penalty in Heightened Agency Efforts Against HSR Act Violations

Where is the line drawn between acquisitions of securities made “solely for the purpose of investment” on one hand, and influencing control, thereby requiring regulatory approval, on the other hand? That is the central cautionary question that was reinforced by the July 12, 2016, Department of Justice (“DOJ”) settlement with ValueAct Capital.  The well-known activist investment firm agreed to pay $11 million to settle a suit alleging that it violated the premerger reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).  ValueAct purchased more than $2.5 billion of shares in two oil companies, Baker Hughes Inc. and Halliburton Co., after they announced they would merge.  The DOJ alleged that ValueAct used its ownership position to influence the proposed merger and other aspects of Baker Hughes and Halliburton, and thus could not rely on the exemption.

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U.S. District Court Denies FTC’s Motion for a Preliminary Injunction Blocking Chicago-area Advocate Health / NorthShore Hospital Merger

On June 14, 2016, U.S. District Judge Jorge Alonso, of the Northern District of Illinois, denied a motion for preliminary injunction by the Federal Trade Commission (“FTC”) and the Attorney General for the State of Illinois, seeking to block the proposed merger between Advocate Health Care and the NorthShore University Health System (“NorthShore”) in the Chicago metropolitan area.[1]  According to Judge Alonso’s opinion released on June 20, the Plaintiffs failed to prove a relevant geographic market, the lack of which the Court deemed fatal to the Plaintiffs’ case.[2]

This loss could be a blow for the FTC’s health care competition enforcement program.  It is the agency’s second loss in district court this year in a hospital merger challenge.  Additionally, as we noted in our May 13, 2016 blog post concerning the FTC’s earlier loss on the Hershey merger—now on appeal to the Third Circuit—both cases reflect push-back by courts against what to this point have been highly successful FTC market definition and consumer harm arguments in hospital merger cases.

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No Easy Answers: Ohlhausen Challenges Notion of “Monopoly Problem” In the US

On June 1, 2016, FTC Commissioner Maureen Ohlhausen delivered remarks in Hong Kong, pushing back on recent news reports implying that the United States currently suffers from a “monopoly problem” causing a reduction of competition in the marketplace.  Recent articles and opinion pieces in The Economist and The New York Times suggest that the consolidation of market power, and lack of antitrust enforcement preventing such consolidation, are having a noticeable effect and harming consumers and innovation.  Indeed, the precursor to these reports—an April 14, 2016 report from the Council of Economic Advisers (“CEA”), entitled “Benefits of Competition and Indicators of Market Power,” argues there has been a decline of competition in certain parts of the U.S. economy due the concentration of monopoly power in the hands of a select few players in certain industries (e.g., airlines, cable, networking).  The CEA report suggests U.S. agencies should explore how certain factors—the use of Big Data, increased price transparency, and common stock ownership—affect competition.  As a result of the CEA report, President Obama issued an Executive Order on April 15, 2016, directing antitrust enforcement agencies to use their authority to “promote competition.”

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U.S. District Court Denies FTC’s Motion for a Preliminary Injunction Blocking Penn State Hershey / PinnacleHealth Hospital Merger

On May 9, 2016, U.S. District Judge John Jones III, of the Middle District of Pennsylvania, rejected a motion for preliminary injunction by the Federal Trade Commission (“FTC”) and the Pennsylvania Attorney General to halt the proposed merger between Penn State Hershey Medical Center (“Hershey”) and PinnacleHealth System (“Pinnacle”).  The Court’s decision represents a potential setback for the FTC’s enforcement against hospital consolidation around the country.  The opinion raises further questions about recent analyses endorsed by the agency and other federal courts when reviewing hospital mergers.  The Court has extended the temporary restraining order in effect until May 27, 2016, to allow the FTC and the Attorney General to seek relief from the 3d Circuit.

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1st Circ. Charts Conservative Post-Actavis Course In Loestrin

Members of Orrick’s Life Sciences practice with experience addressing pharmaceutical industry antitrust and IP issues recently published an article analyzing the recent decision of the U.S. Court of Appeals for the Federal Circuit in In re Loestrin, No. 14-2071 (1st Cir. Feb. 22, 2016).  In that decision—only the second appellate decision applying the Supreme Court’s seminal 2013 decision in FTC v. Actavis , the First Circuit addresses a few of the antitrust issues surrounding so-called “reverse-payment” settlements of patent infringement litigation between branded and generic drug manufacturers.  To read the published article, please click here.

FTC Puts “Standalone” Section 5 Enforcement Approach on the Record

For the first time in its 101-year history, the Federal Trade Commission yesterday issued a policy statement outlining the extent of its authority to police “unfair methods of competition” on a “standalone” basis under Section 5 of the Federal Trade Commission Act.[1]  In a terse Statement of Enforcement Principles, the Commission laid out a framework for its Section 5 jurisprudence that was predictably tethered to the familiar antitrust “rule of reason” analysis but also sets forth a potentially expansive approach to enforcement.[2]  Indeed, the Commission’s approach could encompass novel enforcement theories premised on acts or practices that “contravene the spirit of the antitrust laws” as well as those incipient acts that, if allowed to mature or complete, “could violate the Sherman or Clayton Act.”[3]  Commissioner Ohlhausen’s lone dissent recognizes these potentially disconcerting developments for private industry.[4] READ MORE