XxxxxxxxxCover story xxxxxxxxxxxx A&O

By Natasha Bernal WE PA litigationL empireAY on which the or years, firms have invested in On a global scale, all of the 30 largest litigation firms sun never sets – that’s A&O’s plan, corporate and finance to try to capture in the world eclipse A&O; at the top of the list, and it is investing big-time in the high-profile global clients. But Allen & Overy has a total of 352 litigation partners; DLA Piper has initiative. But will it pay off? (A&O)’s shift towards litigation suggests the three times the amount of partners as A&O; Kirkland & Ffight for big clients may no longer be in the boardroom, Ellis boasts 287; while Jones Day has 268. but in the courtroom. True, A&O could bulk up through lateral hires, but If the firm’s wager goes according to plan it will this would hardly help secure new lines of business from TO become first in line for big-ticket litigation work on both big corporates. At a series of meetings, conference calls sides of the Atlantic as well as in Asia. In short, the sun and brainstorming sessions last year, litigation partners will never set on the A&O litigation empire. quickly set on a trump card: IP litigation. “In 2008 [the litigation practice] made up 10 per cent of A&O’s revenue,” A&O global litigation head Tim Strategic pillars House tells . “We went back to the board in “IP and patent litigation rapidly emerged as strategic September [2016] to refresh the mandate. We want to pillars for the firm,” global IP head and IP litigation make 25 per cent of the firm’s global revenue.” partner Nicola Dagg says. “It’s global, it’s modern and WIN But A&O’s litigation practice has a long way to go it’s sophisticated. Our global footprint and expertise before it pushes ahead of its magic circle competitors. matches our footprint.” Should the litigation practice reach its target it would be A&O’s 82 lawyers in the UK, continental Europe and evenly matched with Freshfields Bruckhaus Deringer, Shanghai, will see an investment bonanza. where litigation contributes 25 per cent of the firm’s On the surface, the new business presented to A&O global revenue. Right now though, litigation at A&O management by House and Dagg is simple. Hire key contributes 19 per cent – below (20 per cent) laterals in IP litigation as a launching pad to build up and above (18 per cent). Europe, China and eventually the US; and use those To achieve this growth and be seen as a serious player relationships to leverage the firm’s influence advising in litigation A&O needs to invest in headcount. Accord- high-profile corporates on day-to-day matters. ing to figures fromThe Lawyer’s Global 200 A&O, with The first step was to grow London. Compared with 99 partners, is stuck in the middle of the magic circle other magic circle firms, which have lean IP litigation pack in terms of litigation partner numbers: below teams of around two partners apiece, A&O now stands Freshfields’ 106 and above Linklaters’ 90 and Clifford out with nine partners and counting.

PHOTOGRAPHY BY MICHAELDONALD.COM BY PHOTOGRAPHY Chance’s 89. “From an IP perspective we’re playing a big

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­strategic ballgame,” Dagg says. “We have had clients and none had client conflicts with the firm – partly because Top 10 law firms by case days Top 10 law firms by cases others comment that we have now got an extremely Simmons is known for representing innovator compa- in IP litigation (2016) in IP litigation (2016) strong team and people have recognised that as a step nies in court rather than generics. change in the market.” Sources close to both firms claim these hires secured How London’s litigation Rank Firm Case days Rank Firm Cases Without major US capability, the majority of IP liti- succession plans for Dagg at A&O, and simultaneously 1 Powell Gilbert 47 1 Powell Gilbert 13 gation-heavy UK firms are playing it safe, keeping their dashed those of Simmons. aristocrats line up 2 Taylor Wessing 32 2 10 teams slim and focusing on the big battles raging in the “Simmons is a high-quality IP group – no-one under- 3 Bristows 30 =3 Bird & Bird 8 domestic courts. But while they opt for caution, A&O is stands why they left,” a source claims. “I think there was A&O is listed in both 4 Bird & Bird 25 =3 Taylor Wessing 8 busy playing a completely different game. some element of succession planning for Nicola Dagg. the top 10 firms by 5 Simmons & Simmons 21 5 Gowling WLG 7 number of cases “We’ve seen five years of high demand in life sciences They’ve been trying to recruit for a long time but they 6 Allen & Overy 17 6 6 and the top 10 firms for patent litigation,” Dagg says. “We’re working on the haven’t been able to build up.” by number of case 7 15 7 Hogan Lovells 5 biggest, highest profile cases in the market. We recognise There may be some truth in that. Since the Simmons days in The Lawyer’s 8 Gowling WLG 14 =8 Allen & Overy 4 this and, based on client feedback, we need more hires it’s been all musical chairs in A&O’s litigation prac- Litigation Tracker. 9 DLA Piper 13 =8 Marks & Clerk 4 breadth and depth – that’s what’s behind the investment. tice. After Dagg’s ascent to global IP head, House took While litigation 10 EIP Legal 13 =8 Simmons & Simmons 4 represents around “Our big corporate clients expect a sophisticated IP on the extra role of US managing partner. Source: The Lawyer Litigation Tracker 18 per cent of A&O’s practice within A&O and this will be a response to that.” Meanwhile, in Dagg’s team Stone was global revenue, this Some question whether this plan is good business sense named head of brands and Döring was made has grown consider- or is just a matter of big personalities making a persuasive London IP head. A&O IP team scorecard ably, from 10 per cent in 2008. argument. After all, one source jokes, who could be more Dagg dismisses these theories. 2015 2016 difficult to argue with than a patent lawyer? “I don’t think any of the London hires are A&O IP part- ners have mainly “IP litigation investment isn’t traditionally what the succession plans at all,” she claims. “I’ve taken instructed barristers magic circle has done,” a patent litigator says. “They go on the role of global head of IP, which was from 3 New Square through phases of it being fashionable, but they’ve entirely expected. I’m not going anywhere, and 8 New Square 15cases cases7 closed down their patent litigation capability in the past I’m in London, I’m not moving anywhere. It’s alongside compe- because it’s not as profitable as their other work.” about needing a bigger team and needing tition advice from Monckton Square in A&O’s strategy is a complete U-turn from 10 years more breadth and depth within the practice. the past two years. ago when it was doing a lot of M&A work but not much “We are illustrating to clients that we have Simmons & Sim- IP or patent litigation. But partner Neville Cordell, who a phenomenal team now – the best in the 20 mons partners relied joined the firm in 2009 from DLA Piper, insists this is London market. We’re able to show to clients case30 days case days on the same sets. a long-term strategy coming to fruition rather than a that we’re doing work from patents through An increase of cases from a single change of pace. to trademarks. The clients are always the firm rather than two Case that set a “This is different from what the [other] magic circle most important thing.” separate entities new standard in firms are doing,” Cordell claims. “IP litigation is impor- Perhaps the most significant hire for the cases from the same fees – the ‘Dagg’ tant and we think other firms are making a mistake going firm to illustrate this point is brand expert 8 1 client could make the opposite way. Back [when I joined] it was a lot Stone. With Stone the firm gained a trade- wins wins chambers nervous, In 2008 A&O was slammed by the but sources close to smaller, but you can see over the years we have grown.” mark practice with work from headline clients High Court for racking up almost the sets describe it as £5.2m in costs and spending the such as Coca-Cola and Amazon, and found a “strengthening of equivalent of nine years of The Simmons coup the missing piece of the puzzle that links pat- the relationship”. manpower for a five-day trial. A&O has been prolific in raiding talent from Simmons & ent litigation with day-to-day work. “Your eggs are In the now-infamous patent Simmons in particular – four partners and six associates A lot of clients in the trademark side want 6 5 in one basket with infringement case Research In losses losses Dagg,” a source joined the IP litigation team in London in the past year a one-stop shop, Cordell says. Motion UK (RIM) v Visto Mr Justice within the bar says. Floyd held there was “quite a stag- alone. They came in three waves; first was rising star Mar- “We’ve lost work in the past because they “Frank relationships, gering disparity” between the cost jan Noor, then IP litigator Marc Döring and finally brands wanted us to file something and then also varied clients and These figures include procedural cases relating estimates of the two parties. lawyer David Stone and tech litigator Mark Heaney. have a trademarks practice,” he admits. to IP disputes Nicola has a huge Visto’s lead partner Gary Moss With them came an increase in work from headline Stone’s soft IP practice focuses on copy- portfolio. IP-focused from Taylor Wessing estimated chambers aren’t clients such as Eli Lilly, Fontem Ventures, Coca-Cola, right and brands as well as litigation. While it that his firm’s costs would be £1m worrying – they have compared with £5.18m for A&O Fox Entertainment, Procter & Gamble and the Japan is complementary to the work the patent team is doing a great relationship acting for RIM. Tobacco-owned Leo Pharma. There are also some land- it also involves more frequent client relationship with A&O.” Floyd J ruled: “If one adds mark cases planned for 2017. ­management, which works well for A&O’s cross-selling up all the hours spent by RIM’s Among these are mammoth IP battles. Noor is strategy. , one finds that some nine defending Eli Lilly’s two patents for blockbuster erectile A&O has already outlined plans to recruit associates man-years have been spent over 15 months – all for a trial with no dysfunction product Tadalafil against ICOS Corpora- to bolster its capability in Europe. disclosure which lasted about tion, while David Stone is representing Fox in the ‘Glee’ “Part of my task as the new head of the practice is to IP-focused five days.” case, set to reach the Supreme Court later this year. galvanise that team,” Stone says. “We’ll be bulking up.” Dagg instructed Antony Watson chambers aren’t “We need more “It was a now or never moment,” Döring tells The A core focus of the trademarks practice will be in QC as lead counsel with Thomas breadth and Lawyer. “I was at Simmons for 22 years and the oppor- ­Belfast in the medium term, Stone says, which will make worrying – they Hinchliffe, both of Three New Square, for RIM. depth – that’s tunity arose to join A&O. This was an opportunity for it cost-effective. New hires will join the team of six sci- have a great Moss instructed lead counsel what’s behind me personally, with the platform that it offers and the entific analysts who help with the patent team’s casework. relationship Henry Carr QC of 11 South the investment,” strategy for the patent practice and international offer- Despite them all having patent litigation teams, A&O with A&O” Square, assisted by Henry Ward of says Nicola ing. It just made sense to me.” is the sole magic circle firm to invest in an additional 8 New Square. Dagg (pictured) A quick survey of ex-Simmons partners shows that trademark practice.

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Where A&O Marc Döring United Patent operates Court will be IP partners, litigation IP lawyers, litigation make or break (all qualified/admitted lawyers excluding partners) for UK IP teams Belgium Since the six-year The Unified Patent Court’s 2 partners (UPC) launch this year will 7 lawyers RIM intellectual make or break IP practices property legal battle in the UK market. Czech Republic Companies are split and a new rulebook. We’re 0 partners everyone in the between those that want determined to put forward 2 lawyers London market to help shape the UPC and an excellent team from day measures fees in those opting out. For the one. France 3 partners ‘Daggs’ – one Dagg latter group, London litiga- “To be credible as a 10 lawyers tion is expected to remain force in the UPC you have equals £5,000” tops. Firms’ fates rest on to show you can operate Germany their clients’ strategies. in all the courts. There 2 partners A&O’s Noor says: “Some will be an appeals court 7 lawyers companies want to help in Luxembourg, central develop the law, but some courts in Munich, Paris and Hungary don’t want to take the risk.” London, and local courts 1 partner Many in the market say everywhere. The language 4 lawyers work will be as normal but will be English.” are quick to point to plans A&O’s Döring is of the Italy things. The first, that she is a heavyweight in London. to consolidate in Europe. same opinion and adds: 0 partners The second – said with a chuckle– is about how every- 1 lawyer Bristows senior partner “If the UPC were to fall one now measures fees in ‘Daggs’. “One Dagg equals Edward Nodder says: “We through we have major intend to be the number teams where patent Luxembourg £5,000,” a source claims. 1 partner one firm in the UPC. litigation takes place. If it In fact, depending on which IP litigator you talk to, 5 lawyers “We have a jurisdiction goes ahead we’re in all the valuation changes from £1m to £6m. that’s almost as able as the places where those Netherlands “A&O has the reputation of being hugely expensive,” the US – a new judiciary centres will be set up.” 0 partners a trademark litigator says. “It’s slightly odd because gen- 5 lawyers erally magic circle firms run down their IP groups to focus on transactional matters.” Poland “Clifford Chance and Linklaters had trademark prac- 0 partners According to a litigation partner at another magic tices until 2004/5,” Stone says. “They haven’t gone back 2 lawyers circle firm, Dagg’s reputation for being costly is simply into it. There may be a perception that this work can’t not accurate. Slovakia be done profitably. I disagree with that. It’s shortsighted. 1 partner “People always reference a case from years ago when “You’re in constant contact with clients. It does mean 1 lawyer talking about A&O fees,” he claims, “but if we had run you have regular contact with clients, helping to build that case we’d have racked up similar costs because of their strategy. Interesting work comes out of that.” Spain the big due diligence exercise.” 0 partners This added focus, alongside the presence of transac- 1 lawyer Dagg’s team backs her up. Those who came from Sim- tional and regulatory IP capability, has not gone unno- mons last year claim to have brought their clients over ticed in the market. UK on the same rates. 9 partners “Other firms have got pockets of expertise, really 31 + 1* lawyer “Many clients are already here [working with other strong on either patents or trademarks,” a source close practices], so they know the fee rates,” Döring claims. to A&O says. “The thing that separates A&O is that it’s China “They haven’t had a problem. There’s a misperception the firm that has both, so it’s top of the tree for both.” 1 partner perpetuated by competitors that we are more expensive It’s clear that Dagg has begun to deliver on A&O’s 2 lawyers than other law firms. Clients vote with their feet – they long-term strategy. One partner at a rival firm claims either want to come to the firm or they don’t.” that Dagg “has put IP litigation on the map” in A&O. UAE But Dagg’s money problem may resurface after the 1 partner He’s not wrong. The rise of the IP litigation practice has 2 lawyers launch of the Unified Patents Court (UPC) later this matched Dagg’s own ascent at the firm. year, when the London courts’ premium in IP will After joining from legacy Lovells in 2007 she became US immediately become diluted. well-known for working on landmark trials such as the 1 partner The on-again off-again project, which may yet be patent 12 case for Research in Motion, a six-year IP 1 lawyer derailed by Brexit plans, would allow patents to be battle that put the company on the brink of a possible fought out in any European court, with results valid * trademark attorney court-ordered shutdown of its widely used BlackBerry across 25 European countries. wireless email device. “They are going to be competing in that court with At A&O Dagg rode the wave of work coming from the other specialist patent court lawyers whose hourly rates life sciences sector, at the forefront of a complex dispute are much lower,” an IP partner tells The Lawyer. “One for Novartis against Medimmune, part of AstraZeneca. wonders whether clients are going to be happy to pay a Dagg’s ambition is well-known. Ask any IP litigation premium compared to the much cheaper service they partner in the City about her, and they will say two can get elsewhere.” David Stone Marjan Noor

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A&O cases to watch in 2017 A&O client Case date

Pfizer/Warner-Lambert V Actavis (Supreme Court) TBC

Regeneron V Kymab (Court of Appeal) October 2017

Illumina (High Court) V Premaitha Health July 2017

Pfizer V Amgen (High Court) Stayed –TBC

Teva (High Court) V Boehringer Ingelheim International Stayed – TBC

Eli Lilly and ICOS Corporation V Actavis, Teva, Actelion and Mylan (Court of Appeal) July 2017

(1) Actavis Group PTCEHF (2) Actavis UK Limited V Boehringer Ingelheim GmbH TBC

The Coca-Cola Company V Modern Industrial Trading Company (General Court) TBC

Comic Enterprises Limited (Supreme Court) V Twentieth Century Fox Film Corporation November 2017

Heraeus (Court of Appeal) V Biomet October 2017

Leonardo MW LT V ELBIT Systems Electro-Optics ELOP (High Court) November 2017

A&O’s most-instructed chambers

Firm Instructions 2015 Instructions 2016 No. of cases 2015 No. of cases 2016 3 New Square 18 8 9 9 8 New Square 1 1 1 1 Monckton Chambers 3 3 2 2

Although the UPC central division is split between A&O has a lot of them think to have a firm that acts everywhere. prove to be successful where other magic circle firms Paris, Vienna and Munich, patent infringement cases in the firm’s strategy of reputation of The better network we have, the higher we will be have failed. Options are limited – either firms look for could be brought in any of the divisions in Europe. rebuilding ahead of the being hugely ranked. We want to be number one.” a merger or a high profile series of laterals with key Most UK-headquartered firms with patent litigation launch of the UPC. expensive. China is another piece of the global puzzle. With the ­clients to build up capability. Sources cite client con- We have number practices have some presence in Europe, though not The firm hire of former in-houser David Shen in Shanghai the There is no guarantee that the grass is greener on the flicts as the reason for Bur- says this is a many have a sizeable number of lawyers on the ground. one teams in the firm now has a leader for its two-strong team in the city, other side of the fence. In fact, sources indicate that the don’s decision not to join in ‘misperception’ Freshfields has eight lawyers across Munich and the firm’s merger with CMS UK and France, with ‘invaluable’ experience working with corporates. gravy train of patent litigation may be reaching the end Amsterdam, while Linklaters and Clifford Chance have Cameron McKenna and and we want to “You need China – the major multinationals expect of the track for many firms looking for easy wins. one lawyer apiece in Paris. The contrast with IP-heavy Nabarro. The remaining service in all requirements,” Döring says. “Patent litigation in the US is contracting fast,” a eight partners in London, be number one firms like Taylor Wessing (with 39 lawyers in Munich, Hiring spree “I’m excited about David Shen,” Noor adds. “China source in management at a UK firm says. “Troll litiga- headed by Joel Barry, in Germany” that changed London, Amsterdam and Paris) or Bird & Bird (with 88 have a focus on brand and Neville Cordell is important to pharma companies. To have someone tion has been big in the US for years. If they lose they lawyers in the same jurisdictions) is significant. the IP landscape trademark litigation. who’s been in pharma for years is a great opportunity.” don’t have to bill costs. We’re seeing a big rise in Europe. UK firms that do not have some presence on the In the same week a A&O is the only UK-headquartered firm with a sig- I would not be investing in patent litigation right now, ground are likely to find themselves at a disadvantage, Last month, two very differ- nine-strong team from nificant patent litigation practice in Shanghai. Data to be honest.” ent sets of hires indicated ­ a patent litigator tells The Lawyer. “You can go as a UK a shift in the London IP decamped to IP firm collected by The Lawyer shows that several firms includ- And should A&O achieve everything it has set out to lawyer and appear in the local division in Belgium and litigation landscape. Bristows in a coup for the ing Freshfields, Clifford Chance and Bird & Bird have do, the danger could then be the pipeline of work drying most divisions have a provision for doing things in Eng- The first was former latter’s expansion strategy. a practice in Hong Kong while others such as Taylor up, leaving a costly lawyer base without enough work to lish but you can’t guarantee it,” he adds. Olswang interim CEO According to Bristows’ Wessing have opted for Singapore as a hub instead. justify the investment. In London partners are working So where does A&O fit in? With presence in Paris, Michael Burdon’s move Nodder and partner Theo Despite opportunities in Asia the endgame for A&O on an average of two high-profile cases this year, with to Simmons & Simmons. It Savvides, these hires Warsaw, Amsterdam and Munich the firm is not at the was a momentous hire that added bench strength in lies in the West. Having first invested in a US presence many others behind the scenes in arbitration. If their level of Taylor Wessing or Bird & Bird, but it plans to grow would deliver Burdon’s key the brands practice. back in 1985 when it opened in New York, the past main clients decide to cut down on IP litigation or take strategically, and bulk up in Munich to bring it closer to client Boston Scientific to “Brands are difficult decade has seen it ramp up its presence. Now the firm it elsewhere, it could send A&O into a tailspin. the 31 and 10-strong teams in London and Paris. Simmons’ fledgling patent to do successfully and is betting on its IP litigation strategy getting the firm a The weight of A&O’s new ambition rests firmly on the A lot of US firms are looking at a strategy similar to litigation practice, which profitably,” Savvides says. foot in the door on high-profile cases in North America. shoulders of the IP litigation practice and its ability to had been decimated after “It’s one of those [practices] A&O’s in Europe and China, Cordell says. the departures of Noor, where you have to focus in For now, the firm’s rumblings about building a pres- channel high-profile work into other areas of the firm. “We have number one teams in the UK and France, Döring, Stone and Heaney. and look at your strategy to ence in the US are just that – rumblings. However, The stakes are high, but if A&O wants to break ranks and we want to be number one in Germany,” says Cor- It was also a turning point embed it into the practice.” House’s positioning as US managing partner indicates and push aside the competition in three key markets, it dell. “Clients like to pick a firm in each country but a that the firm is planning to make a big move that may has to bet the house.

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