ProfessionalsScott A. Sher
Scott Sher is global co-chair of the Antitrust Practice Group and has represented companies before competition authorities in transactions collectively totaling more than $1 trillion over the past 20 years, including some of the highest-profile consolidation deals in the life sciences, technology and retail markets. Scott is lauded as a “true star of the antitrust bar” by Global Competition Review and ranked Band 1 for Antitrust by Chambers USA in Washington, D.C.
Scott has counseled hundreds of clients with respect to antitrust issues that arise in the M&A process, including Google, Dolby, Trulia, Twitter, Southeastern Grocers, Northeastern Grocers, Careem, Seagate and Qualcomm, advocating before the U.S. Department of Justice, the Federal Trade Commission and global competition authorities.
Beyond his decades of experience in clearance matters, Scott focuses on helping clients, whether buyers or sellers, assess potential antitrust risk early in the deal process, and putting them in the best position to understand and obtain the deal protection terms they need to meet their business objectives. Whether he is representing a small firm with promising technology being acquired by a large private equity firm with a competitor portfolio company, a large multinational client fending against a rival’s hostile tender offer, or a retailer selling a portion of its business to a competitor where the FTC may demand multiple divestitures, Scott helps his clients understand the most likely deal outcomes, strategize to maximize deal value and certainty of close, and position the transaction to close as expeditiously as possible.
More broadly, Scott has unparalleled expertise in counseling clients on their business strategies. His work with companies across industries with different go-to-market strategies gives him a deep understanding of how antitrust laws impact his clients’ distribution, pricing, and licensing policies. This experience enables him to help clients efficiently achieve their objectives while steering them clear of potential liability. Specifically, Scott has guided major retail and technology firms in implementing pricing and distribution policies and guidelines in order to manage complex channel conflict issues, resale price maintenance concerns, exclusivity provisions and price bundling strategies. He also works with life science companies who often engage in intricate inbound and outbound licensing programs that include issues ranging from potential Hart-Scott-Rodino reportability to ensuring that firms competing with each other in therapeutic markets can maximize the impact of collaborative arrangements without running afoul of competition laws.
Scott’s select representations include:
- ForgeRock, a global digital identity leader, in its acquisition by Thoma Bravo, a leading technology Private Equity firm, with portfolio company Ping that competes against ForgeRock, a transaction valued at approximately $2.3 billion.
- Qualcomm in connection with its successful $1.4 billion acquisition of NUVIA, a world-class CPU and technology design company, and its $4.5 billion acquisition of Arriver from Veoneer.
- Price Chopper in regard to its merger with Tops Market, creating a supermarket retailer with approximately 300 stores in six states.
- Marvell Technology in regard to its $10 billion acquisition of Inphi, a Santa Clara-based chip company that makes high-speed analog and mix-signal components and optical subsystems.
- Vivint Solar in connection with its acquisition by SunRun, a transaction that combined the two leading solar financing companies in the world, in an investigation by the Department of Justice.
- Southeastern Grocers in connection with the sale of 62 Bi-Lo stores to Ahold Delhaize, in a second request investigation conducted by the FTC.
- Outbrain in connection with its proposed acquisition by Taboola, a transaction that combined the two leading content recommendation firms, following an in-depth second request by the DOJ. The parties received clearance from the DOJ, but abandoned the transaction for unrelated reasons.
- Careem in connection with its acquisition by Uber Technologies, a transaction that combined two leading ride-sharing companies, through investigations by the Egyptian Competition Agency (ECA), the Saudi Arabian competition authority (GAC), and other competition authorities in the Middle East.
- Twin America in connection with its successful dismissal of a monopolization claim brought by competitor Go New York Tours in the Southern District of New York.
- WeddingWire in connection with its acquisition of XO Group, a transaction that combined the two largest online wedding marketplace websites, in an investigation by the DOJ.
- Cvent in connection with its acquisition by Vista Partners, a transaction that combined the two largest strategic meeting management software vendors, in a review that included an in-depth second request.
- Associated Wholesale Grocers in connection with its acquisition of Affiliated Foods of the Midwest, combining the two largest national wholesale food cooperatives, in an investigation by the FTC, and in connection with its acquisition of a group of stores from Albertsons, as a part of the FTC’s divestiture order in the Albertsons-Safeway merger.
- Pharmacyclics before the FTC in connection with its $21 billion acquisition by AbbVie, involving next-generation chronic lymphocytic leukemia therapies.
- Trulia in connection with its successful acquisition by Zillow, a transaction that combined the two leading national real estate portals, in a review that included an in-depth second request and commission vote to approve the transaction.
- Dolby in connection with its acquisition of Doremi Technologies, a transaction that combined leading digital cinema server firms, in investigations before the DOJ and EC.
- CoPart in connection with its acquisition of car salvage competitor QCSA holdings, a transaction that combined two of the leading national car salvage companies, in an investigation by the FTC.
- Google in connection with the FTC’s investigation into a number of its business practices and various matters including the FTC’s investigation into its acquisition of Waze, one of the leading crowd-sourced map companies; before the FTC and other regulatory and political fora in connection with the company's acquisition of DoubleClick. After the issuance of a second request, the FTC closed its investigation in December 2007, noting that the acquisition of DoubleClick was unlikely to substantially lessen competition; and in connection with its successful acquisition of ITA Software, which included a significant DOJ investigation into the transaction. Google completed the acquisition after agreeing to a consent order to license ITA's software on a non-discriminatory basis.
- Seagate Technology in its acquisition of the hard-disk-drive business of Samsung Electronics, a transaction that combined two leading HDD manufacturers, which received significant scrutiny from the FTC, as well as the EC and MOFCOM in China.
- McAfee, Inc. in connection with the FTC and EC investigations into whether its acquisition by Intel Corporation would lessen competition in the security software or CPU markets.
- Sun Microsystems in connection with its acquisition by Oracle Corporation, working with the DOJ to dispel any concern that the transaction would cause any lessening of competition in the JAVA or database markets.
- Nuance with regard to its acquisitions of VoiceSignal, Philips Speech Recognition Services, and eScription, in connection with Department of Justice investigations into whether the transactions would lessen competition in the speech recognition market.
- Hebei Welcome Pharmaceutical and North China Pharmaceutical Group (NCPG) in the closely watched case concerning alleged price fixing committed by vitamin C manufacturers, including vitamin C exported from China. Scott and his team successfully persuaded the Second Circuit to overturn a $150 million judgment against Hebei and NCPG, and prevailed after two appeals to the United States Supreme Court. The case raised important and precedential application of the antitrust laws in situations where a foreign sovereign compelled the defendant’s actions.
- Private equity fund Vector Capital after the company was sued along with Francisco Partners by a class of WatchGuard Technologies investors who claimed that the two funds had colluded in their bidding to acquire WatchGuard voting securities. The firm secured the first-ever published opinion from the Western District of Washington concluding that such joint bidding does not implicate the antitrust laws.
- Brocade Communications Systems in connection with the FTC's investigation and second request regarding Brocade's proposed acquisition of McDATA Corporation. The FTC ultimately voted to clear the acquisition in January 2007.
- HP in connection with its acquisition of Compaq, which at the time, combined the two largest PC, server and attached storage companies in the world.
- Varian Medical Systems in connection with its acquisition by Agilent, a transaction that combined two of the largest scientific instrument companies in the world.
INDUSTRY AWARDS AND RECOGNITIONS
Scott has been perennially recognized as one of the leading antitrust practitioners in industry publications, including in Chambers Global, Chambers USA and Global Competition Review, among others. The 2023 edition of Chambers USA ranked Scott in Band 1 for his antitrust work in D.C. He is consistently recognized and nominated by clients to the Thomson Reuters Stand-out Lawyers and routinely included in Lawdragon 500 Leading Litigators in America.
PROFESSIONAL AFFILIATIONS AND THOUGHT LEADERSHIP
Scott also frequently speaks and writes on topics concerning merger review for various publications and organizations including Concurrences, Global Competition Review, ABA Section of Antitrust Law, LexisNexis, and others. He has held numerous leadership positions in the ABA’s Section of Antitrust Law, including co-chair and vice chair of several committees.
Scott clerked for the Honorable Joseph T. Sneed III of the U.S. Court of Appeals for the Ninth Circuit and the Honorable Charles A. Legge of the U.S. District Court for the Northern District of California. He previously led the antitrust practice at another major firm.