Cross-border Quarterly

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1 PRACTICAL LAW COMPANY April-June 2007 Volume 3 Number 2 Cross-border Quarterly The journal for Cross-border subscribers Takeovers Directive Implementation and impact ALSO IN THIS ISSUE User generated content services Offshore and multi-jurisdictional outsourcing contracts Competition and Life Sciences Super Leagues Which lawyer? Awards 2007 Includes SpeedRead summaries of additional articles published to the web

2 Life Sciences advisers The market leaders 2007 Andre Brown reveals the results of the 2007 Life Sciences Industry and Regulatory Super Leagues and analyses the practices of the leading firms. The life sciences industry is a high risk, high reward sector and, as such, has long been seen as a lucrative niche for many law firms. The main incumbents are willing to dedicate large sums to legal services such as intellectual property (IP) litigation and patent counselling, since, in their battle against generic rivals, even the slightest continuance of a patent on a blockbuster drug can mean millions of dollars in additional revenue. In addition, the ever-present threat of product liability claims, a trend towards compulsory licensing in developing countries (especially over HIV/AIDS drugs) and the growing activism of national regulatory agencies (both in the pre- and post-approval stages) have ensured a steady flow of work to specialist lawyers over the past few years. Illustration: Annie Boberg However, the legal demands of life sciences companies have spread beyond the traditional niche areas of regulatory, IP and product liability advice. Transactional lawyers are in growing demand as a result of the large number of acquisitions and partnering deals taking place, driven by both big pharma s need to fill up its pipeline of new drugs, and consolidation within both the innovative and generic industries. This trend is reflected in the Which lawyer? rankings of leading life sciences law firms and lawyers, where ex- 11 Find this article and related materials at

3 Methodology The Which lawyer? Life Sciences Industry and Regulatory Super Leagues are based on research conducted for the Cross-border Life Sciences Handbook 2006/07 (see and Which lawyer? (see The rankings in this article are based on the position online as at 15 January Basis of research: surveys of general counsel drawn from Law Department Profiles within or active in each of the jurisdictions covered, as well as client feedback and peer reviews by lawyers in or active in each jurisdiction. On the basis of the research, we rank lawyers and law firms for their expertise in life sciences law. 2. Life sciences practice areas covered in the Cross-border Life Sciences Handbook 2006/07: regulatory, intellectual property, corporate and commercial (or commercial and partnering, and corporate in some jurisdictions), product liability and competition/antitrust. For the US, regulatory (medical devices), patent counselling, and government enforcement and investigations are also researched. 3. Law firms and lawyers are ranked in each practice area as leading, highly recommended, recommended or recognised in the jurisdictions in which they have a presence or relevant capability. 4. The Which lawyer? Life Sciences Industry Super League results are calculated by aggregating the results of law firm and lawyer recommendations in all of the above practice areas across 33 jurisdictions, with different points allocated to the level of recommendation. Firm recommendations are given more weighting than individual rankings. The Which lawyer? Life Sciences Regulatory Super League results are calculated using the same methodology, but based on law firm and lawyer recommendations in only the regulatory and regulatory (medical devices) practice areas. 5. Firms are ranked by total score and then by number of recommended lawyers, so if firms receive identical scores they are ranked in accordance with which firm has the most recommended lawyers. No consideration is given to the number of jurisdictions in which the firm operates, nor its profitability. 6. Policy on mergers: points are aggregated if a full merger has been implemented before the calculations for the Super Leagues commence. Correspondent and alliance firms are not included. 7. Firm names are abbreviated to those used in the home jurisdiction. 8. Which lawyer? is added to and updated continuously online. For a full explanation of the research and practice areas/subcategories covered, please visit the US, and Sträter in Germany; and, for IP litigation, Fitzpatrick Cella Harper & Scinto and Finnegan Henderson Farabow Garrett & Dunner in the US. And despite the demise of several high profile boutiques in the US, both fullservice and boutique firms are still active in servicing the needs of the life sciences industry. Against this background, this article analyses the results of the Which lawyer? Life Sciences Industry and Regulatory Super Leagues for 2007, revealing the law firms that have most successfully developed their practices in line with the growing sophistication and needs of clients. The Industry Super League identifies the leading firms globally for life sciences advice in all practice areas surveyed by Which lawyer?, while the Regulatory Super League identifies the firms with the top regulatory practices (see box, Methodology). Industry Super League results The results of the 2007 Life Sciences Industry Super League reveal few dramatic changes at the top end of the table, with the top five places being claimed by the same firms as last year, albeit in a slightly different order (Covington & Burling, Bird & Bird, Baker & McKenzie, Arnold & Porter and Freshfields Bruckhaus Deringer). However, outside the upper ranks, the results reveal a high degree of movement within the market, with five new firms making it into the Super League for the first time. This reflects increased investment in the industry by the law firms in question, but also changes in the methodology used to compile this year s Super League results (notably, the new points weighting system) and the addition of new jurisdictions and practice area specialisations (see box, Methodology). pertise is also ranked in the commercial and partnering, corporate and competition/anti-trust areas (see the Crossborder Life Sciences Handbook 2006/07 for our full, country-by-country rankings in all practice areas). The growth in transactional work, along with the increasing cross-over between regulatory, IP and competition advice, as exemplified by the May 2006 AstraZeneca ruling in the EU (Case COMP/A.37/37.507/F3), means that many law firms are adopting a multi-disciplinary or full product life cycle approach to servicing clients in the sector. Examples include Covington & Burling, Simmons & Simmons and Freshfields Bruckhaus Deringer (see below, Industry Super League results). This said, boutique firms are often still the favoured choice for high stakes patent litigation and jurisdiction-specific regulatory advice in countries such as Germany, Italy and the US. Examples include: in the regulatory field, Hyman Phelps & McNamara (eleventh place in the Regulatory Super League) and Buc & Beardsley in Overall leader Covington & Burling maintains pole position for the second year running in both the Industry and Regulatory Super Leagues an outstanding achievement. Long synonymous with pharmaceutical regulatory work in Washington DC, it is one of the few firms to have developed a genuinely transatlantic full-service life sciences practice, with hubs on both the East and West Coasts of the US, and in London and Brussels. Within the US, the recent focus has been on building a solid succession plan on the regulatory front to fol- 12

4 Industry Super League 2007 Rank Firm Total score Number of recommended lawyers Recommended in... 1 Covington & Burling Belgium, England and Wales, EU, US 2 Bird & Bird Belgium, China/Hong Kong, England and Wales, France, Germany, Italy, Spain, Sweden 3 Baker & McKenzie China/Hong Kong, Czech Republic, England and Wales, EU, France, Germany, Hungary, Italy, Japan, Poland, Singapore, Spain, Thailand 4 Arnold & Porter England and Wales, EU, US 5 Freshfields Bruckhaus Deringer Austria, England and Wales, EU, Germany, China/Hong Kong, Hungary, Italy, Japan, The Netherlands 6 Lovells China/Hong Kong, England and Wales, Germany, Italy, The Netherlands, Poland 7 Simmons & Simmons 99 8 England and Wales, France, Italy, Japan, Portugal 8 Sidley Austin EU, US 9 WilmerHale 83 8 England and Wales, US 10 Morrison & Foerster England and Wales, Japan, US 11 Hogan & Hartson EU, Germany, Hungary, Poland, US 12 Howrey 76 6 Belgium, EU, France, Germany, The Netherlands, US 13 Dechert England and Wales, France, US 14 Morgan Lewis 68 7 England and Wales, Japan, US 15 Clifford Chance 66 5 England and Wales, EU, France, Germany, Spain 16 CMS Cameron McKenna 64 5 Czech Republic, England and Wales, Hungary, Poland 17 Jones Day 57 3 China/Hong Kong, EU, France, Japan, US 18 Plesner Svane Grønborg 55 8 Denmark 19 Ropes & Gray 55 7 US 20 Allens Arthur Robinson 54 6 Australia low on from the likes of Peter Barton Hutt, as well as bulking up its patent litigation capabilities. Retaining second place this year is Bird & Bird (eighth place in the Regulatory Super League), which benefits from a strong pan-european network of offices. In London, the setback created by the departure of co-practice leader John Wilkinson was short-lived following the arrival of Sally Shorthose, although the departure of Urban Paulsson, undoubtedly the leading collaborative and partnering expert in the Scandinavian region, will come as a blow to the firm s pan-eu collaborative group. In Paris, the firm is known for its regulatory strength and the addition of significant patent litigation capability will no doubt boost the group s industry capabilities. Its Spanish operation will be one to watch in the coming years, with many commentators expecting the firm to take its fair share of the growing life sciences work on the Iberian Peninsula as the relatively new office builds critical mass. Moving up two places into third place is Baker & McKenzie (second place in the Regulatory Super League). Although the firm s extensive global network is undoubtedly a major asset, its strength in the Asia-Pacific region and in Europe ensures that it makes the legal adviser shortlist of many life sciences companies. IP and regulatory advice are the two most visible fortes of the global group, although tapping into the work arising from complex licensing deals in Asia is very much a growth area for the Hong Kong office, with an especially strong focus on China-related deals. Arnold & Porter in fourth place (third place in the Regulatory Super League) has, like its Washington DC rivals, placed particular emphasis recently on maintaining its top-notch reputation for regulatory work through its succession plans. In the US, several lateral hires over the last couple of years have redressed what many observers saw as a generational gap between the highly-esteemed Bill Vodra and Don Beers, and the next 15

5 Regulatory Super League 2007 Rank Firm Total score Number of recommended lawyers Recommended in... 1 Covington & Burling 71 8 Belgium, England and Wales, EU, US 2 Baker & McKenzie 63 7 Czech Republic, EU, France, Germany, Hungary, Italy, Poland, Spain, Thailand 3 Arnold & Porter 47 5 England and Wales, EU, US 4 Hogan & Hartson 45 7 EU, Hungary, Poland, US 5 Morgan Lewis 30 4 England and Wales, US 6 Sidley Austin 26 4 EU, US 7 McKenna Long & Aldridge 25 4 Belgium, EU, US 8 Bird & Bird 25 3 England and Wales, France, Italy 9 NautaDutilh 25 1 Belgium, EU, The Netherlands 10 Freshfields Bruckhaus Deringer 23 2 Austria, EU, Germany 11 Hyman Phelps & McNamara 22 4 US 12 Lovells 21 3 Germany, The Netherlands, Poland 13 Faus & Moliner 21 2 EU, Spain =14 King & Spalding 18 2 US =14 Clifford Chance 18 2 EU, Germany 15 CMS Cameron McKenna 18 1 Czech Republic, England and Wales, Hungary, Poland 16 Simmons & Simmons 18 0 England and Wales, France, Portugal, Italy 17 Hengeler Mueller 17 1 EU, Germany 18 WilmerHale 16 1 US 19 Mannheimer Swartling 15 1 EU, Sweden =20 Jausas 14 2 Spain =20 Avvocati Associati Franzosi Dal Negro Pensato Setti 14 2 Italy =20 Ogilvy Renault 14 2 Canada level of talent. In Europe, Ian Dodds- Smith remains one of the most respected and highly sought-after figures for regulatory advice, and he is complemented by the firm s strong reputation in Brussels for competition work. Rounding off the top five is Freshfields Bruckhaus Deringer (tenth place in the Regulatory Super League), which fortunately has maintained all of its key life sciences partners during the firmwide partner restructuring of Although many observers point to its German practice as the source of its strength, especially on the regulatory front, the firm also benefits from a good cross-border IP litigation practice. In addition, its corporate prowess ensures that it is often considered by major pharmaceutical companies for large transactions. A strong China practice also means that the firm is well placed to build its regional presence once the need for specialised industry advice grows. Sixth to tenth positions are occupied by Lovells, Simmons & Simmons, Sidley Austin, Wilmer- Hale and Morrison & Foerster respectively. Lovells reputation in this sector is anchored by its cross-border patent litigation and product liability capabilities in Europe. However, as regulatory and IP issues grow increasingly intertwined, the firm s regulatory practice continues to grow (and the firm is ranked twelfth in the Regulatory Super League). Simmons & Simmons strength derives from its strong cross-disciplinary practice in London, although its product liability expertise in Paris, headed by the highly-esteemed Jacques- Antoine Robert, is commended for standing head and shoulders above the competition. It also secured sixteenth place in the Regulatory Super League. 16

6 Climbing four places this year to eighth position (sixth place in the Regulatory Super League) is Sidley Austin. The firm s practice has grown most notably in the US, where it has continued to bulk up its IP capabilities, with the hire of two patent lawyers in Washington, DC from Arnold & Porter. Its government enforcement and investigations, and product liability practices both continue to be pre-eminent. WilmerHale is this year s biggest riser (up ten places to ninth place), benefiting from a strong showing in the two new categories added to the Which lawyer? rankings in the US: patent counselling and regulatory (medical devices). It will be interesting to see how and if the firm decides to rebuild its regulatory practice following the departure of Mark Heller to Goodwin Procter (WilmerHale is currently ranked eighteenth in the Regulatory Super League). Corporate and partnering transactions, and IP litigation, continue to be the most highly visible practices at the firm. Rounding off the top ten is Morrison & Foerster. It stands out from its major competitors for having a solid industry presence in Japan - a market in which many foreign law firms have found it hard to expand outside their traditional M&A and finance strengths. In the US, the focus is on building its profile in the corporate and partnering spheres on the West Coast (an area in which the London office has been able to consolidate its market-leading position). Also, the strong patent counselling practice is creating a solid niche in advising venture capital groups on the IP aspects of their biotech investments. Notable new arrivals in this year s Industry Super League are all US firms Hogan & Hartson, Howrey, Dechert, Jones Day and Ropes & Gray. While the latter two firms benefited from the addition of new research categories by Which lawyer? in the US (reflecting the high degree of specialisation necessary to provide advice in these areas in that jurisdiction), the other firms were rewarded for their investment in building strong European practices. In eleventh place, Hogan & Hartson (fourth place in the Regulatory Super League) has long been highly regarded for its regulatory prowess for medical devices clients in the US, although in recent years, its pharmaceutical capabilities have gone from strength to strength. In Europe, the firm has been successful in capitalising on the growing amount of work in Central and Eastern Europe through its presences in Poland and Hungary. Howrey, in twelfth place, made its intentions known in the European marketplace with the double hire of regulatory/competition expert Maarten Meulenbelt and patent litigation star Benoît Strowel in Brussels, and the addition of a new German office in Munich with biotech expert Joachim Feldges. If the success of its pan- EU IP practice is anything to go by, the life sciences group will no doubt become a major player in the market. Dechert (thirteenth place) is best known in Europe for its stellar corporate and partnering practice based in Paris (having integrated most of the life sciences capabilities of the now defunct Coudert). In the US, the firm s product liability group, currently representing Merck in its Vioxx litigation, is one of the go-to teams for life sciences companies on bet-thecompany type of claims. The next three firms all appear in both Super Leagues. Morgan Lewis (fourteenth place in the Industry Super League and fifth place in the Regulatory Super League) is a long-established industry player in the US for regulatory and partnering matters, as well as being increasingly active in high stakes government enforcement cases. The relatively small London and Tokyo practices provide international capability, and the firm s recent joint venture tie-up with Japanese firm TMI Associates is likely to boost its profile even further among local industry clients. Clifford Chance (fifteenth place in the Industry Super League and joint fourteenth place in the Regulatory Super League) continues to feature in the industry with the help of its Barcelona and Düsseldorf offices, where ground-breaking patent litigation and regulatory advice, respectively, form the core focuses of the group. An expansive global reach, especially on major cross-border corporate matters, undoubtedly works in the firm s favour in the current climate of heightened industry deal activity. CMS Cameron McKenna (sixteenth place in the Industry Super League and fifteenth place in the Regulatory Super League) is particularly well regarded for its London and Central & Eastern European operations. In addition, working in conjunction with its CMS partners, especially in France and The Netherlands, it maintains an impressive network for industry issues. Other firms earning a place in the Industry Super League this year are Plesner Svane Grønborg (eighteenth place) and Allens Arthur Robinson (twentieth place). Regulatory Super League results Just over half of the firms claiming a place in the Regulatory Super League also appear in the Industry Super League (see above, Industry Super League results). This includes all of the top ten regulatory firms, with the exception of McKenna Long & Aldridge and NautaDutilh. McKenna Long & Aldridge (seventh place in the Regulatory Super League) benefits from the addition of the new regulatory (medical devices) category in the Which lawyer? research this year for the US (where it is recommended). Its Brussels office continues to be particularly active on EU regulatory advice in the biosciences and food supplements arenas, and forms an integral part of its transatlantic offering to industry clients. The loss of partners within its Brussels life sciences team has meant that the past year has been a period of consolidation for Benelux firm NautaDutilh (ninth place in the Regulatory Super League). However, its Amsterdam office, through Carla Schoonderbeek, continues to shine in relation to domestic reimbursement issues and EU-wide regulatory advice. The other firms earning a place in this year s Regulatory Super League are Hyman Phelps & McNamara (eleventh), Faus & Moliner (thirteenth), King & Spalding (joint fourteenth), Hengeler Mueller (seventeenth), Mannheimer Swartling (nineteenth), and Jausas, Avvocati Associati Franzosi Dal Negro Pensato Setti and Ogilvy Renault (all joint twentieth). 18

7 COVINGTON & BURLING LLP LIFE SCIENCES INDUSTRY GROUP WORLDWIDE INTEGRATION Regulatory Corporate Partnering Commercial Intellectual Property Competition Brussels London N e w Yo r k San Francisco Wa s h i n g t o n Litigation & Investigations