A cursory exploration of the hiring strategies of American firms in 2017 leads straight to Kirkland or Latham. Yet The Lawyer’s Top 50 US firms in London report shows the brouhaha around David Higgins eclipses other, equally targeted talent acquisitions. And arguably one of the most significant hires in the last few years has been not in private equity or leveraged finance, but in competition: namely, Ali Nikpay.
Nikpay joined Gibson Dunn in 2013, having built his career at DG Comp and then the OFT. This week he was named as the lead competition partner for Asda, working aside Slaughter and May partners Sally Wokes, Victoria MacDuff and Nigel Boardman on the megadeal with Sainsbury’s. Linklaters was on the other side, with partners Nicole Kar and Simon Pritchard leading on competition.
As co-counsel mandates go, it’s a plum job. And a US firm displacing the mighty competition department at Slaughter and May, no less, has not gone unremarked by City competition partners. “They’ll be bloody livid,” speculates one, with just the tiniest shade of glee. Despite the fact that Slaughters’ Bertrand Louveaux had advised Asda on the Competition Commission’s market investigation into the supply of groceries in the UK and on the OFT’s investigation into dairy products – including representing Asda before the Competition Appeals Tribunal – Gibson’s Nikpay nevertheless managed to get the call.
US firms’ cheerleaders in certain sections of the press will no doubt heap yet more doom upon magic circle firms, but Nikpay’s success in getting through Asda’s door is down to a combination of specific circumstances. First – and this is where the network effect is a structural advantage – Gibson has a significant client relationship with Walmart. Washington DC partner Adam Vincenzo was lead antitrust counsel on Walmart’s $3bn acquisition of internet retailer Jet.com (cleared by the Federal Trade Commission in 2016) and on its 2017 acquisition of online retailer Bonobos. Nevertheless, what is more important is the specifics. As a deal precipitated by the threat of online retail, and in particular the faint rumble of Jeff Bezos’s tanks on the lawn, the competition elements of the Sainbury’s-Asda deal have attracted considerable notice from commentators.
Nikpay’s success on a superficially different but nevertheless related retail sector is significant here; namely, the 2016 merger between Gala Coral and Ladbrokes, a transaction that had been on and off the table for years. That deal, between the then-second and third largest bookmakers in the UK, was hugely dependent on regulatory approval, with Nikpay’s arguments that the deal should be analysed on a local not a national angle, and also through the lens of online competition, winning the day. Plaudits abounded. Several partners note Nikpay’s can-do attitude: “Ali is Mr Positive,” says one.
Nikpay’s background at the regulator – and his training as an economist – was a crucial selling point for Asda, and has been Gibson Dunn’s entry point into a number of UK corporates. “Antitrust undeniably raises political issues as well as technical issues,” says a City competition partner. “Ali has relationships and insights that the Slaughters team, brilliant though they are, don’t quite have in equal measure.”
It won’t be a one-off. What is more than ever at stake is understanding the regulator’s outlook in a landscape where digital has changed the game, and in a world where after March 2019 the CMA will have a considerably extended remit, including ruling on state aid.
Any hires from the regulator are all about getting insight into thinking; just look at the scramble for recruits from the enforcement agencies, the most recent being ex-DPP Alison Saunders to Linklaters. “The way the CMA and Commission look at markets doesn’t stand still,’ says one competition partner. ‘Some firms tend to go back to old cases to apply an existing methodology, but the CMA is constantly evolving its ideas.” The traffic between private practice and competition regulator is not high, but it has produced some quality catches, largely for magic circle firms: Nelson Jung at Clifford Chance, Simon Priddis at Freshfields and Linklaters’ Simon Pritchard, who is currently on for Sainsbury’s on the Asda deal. Nikpay aside, the only US firm hire of recent times was Jonathan Parker, who joined Latham as a partner after a stint as director of mergers at the CMA – prior to that he was a senior associate at A&O.
Private practitioners predict less traffic between private practice and the regulator in the near term, citing the internal restructure at the CMA that means that responsibilities are spread out between a larger number of team leaders, a move that is seen as partly defensive. “The CMA didn’t like one or two indiviudals having a huge amount of influence or being better known,” says one partner.
Still, now is the perfect time to join the regulator and make your name. The CMA has vacancies for a senior director in mergers and senior legal director in mergers, markets and sector regulation. The new technology team at the CMA, which will include the new post of chief data and technology insights officer, underlines the extent to which digital and online market disruption will dominate competition policy over the next few years. “It’ll be the most interesting time for them,” says one partner. “The big question is, are they going to have the cojones to take on someone like Google, going forward?”
But back to Sainsbury’s. Once Slaughters partners have recovered from their internal lament at missing the deal of the year, they will have some work to do to make sure no further ground is lost to the US. Once is unlucky, but twice would be a trend.