Edward (Ted) Henneberry is a member of Bingham's Antitrust and Competition Group, splitting his time between the London and Washington, D.C., offices. His practice focuses on antitrust and international competition law, particularly on cross-border merger transactions, multijurisdictional cartel investigations and dominant firm conduct.
Ted is one of the few U.S. antitrust lawyers who has held a position as a senior competition enforcement official in the European Union. From 2003 to 2006, he was a Member of the Irish Competition Authority as well as director of its Mergers and Cartel Enforcement divisions. As a Member, he participated directly on the Advisory Committee of the European Commission in major merger policy and competition enforcement matters, including the drafting of the EC's Merger Guidelines. He also served on the Experts' Committee advising the EC in the drafting of its Green Paper on Private Damages Remedies as well as on the Competition Committee of the Organisation for Economic Cooperation and Development (OECD) in Paris.
Ted has played a significant role in the International Competition Network, where he acted as co-chair of the Mergers Working Group and was responsible for the drafting of the ICN's Merger Remedies Study and the Merger Guidelines Workbook. More recently, he participated as a member of a select group of U.S. lawyers in a mergers training workshop for senior officials of the Ministry of Commerce of the People's Republic of China in Beijing. He continues to serve as a non-governmental advisor to the ICN for the U.S. Department of Justice and the Federal Trade Commission.
Ted began his career as a trial attorney in the Honors Program of the Antitrust Division of the U.S. Department of Justice and, since then, has been involved in some of the most significant antitrust matters over the last 40 years. He has extensive trial and appellate experience in U.S. federal and state courts, as well as in administrative proceedings and investigations in Europe. He represents major international companies and counsels senior management in strategic acquisitions and mergers, and government investigations.
Ted is a frequent writer and speaker on international merger and competition enforcement issues and has lectured as a visiting fellow on European and Irish Competition Law at University College Dublin. He has been named inBest Lawyers in Americafor antitrust law since 2009, and was recommended by theLegal 500in both the United Kingdom and United States editions for 2011.
Awards & Honors
• Best Lawyers, Antitrust Law (2009-2014)
• Super Lawyers, Washington, D.C. (2013-2014)
• The International Who's Who of Competition Lawyers & Economists(2013-2014)
• Legal 500, United States, Antitrust (2013)
• Legal 500, United Kingdom, Antitrust (2011)
Recent Speaking Engagements
•Moderator,Practical Aspects of International Cooperation in Merger Cases: Substantive Assessment & Remedies,Third Merger Working Group International Cooperation Project's Teleseminar hosted by the ICN Mergers Working Group (January 2014)
•Merger Remedies: Challenges and Opportunities, 12th Annual ICN Meeting, Warsaw, Poland (April 2013)
•Increase in Criminal Cases/Fines Against Japanese Executives and the Key Issues (Crucial Points that Japanese Executives Need to Know), Japanese Chamber of Commerce, New York (November 2012)
•Chair, Plenary Session, The Role of Economics Evidence in Merger Analysis, International Competition Network's Merger Workshop, Bogota, Colombia (November 2012)
•Competition and the Use, Acquisition and Enforcement of IPRs: The Patent Wars and other Phenomena, UK Law Society, Competition Section (October 2012)
•Competition Damage Actions: Practice & Pitfalls, British Institute of International & Comparative Law, London (November 2011)
•Recent Developments in Merger Enforcement in the Communication Sectors: the U.S. Perspective, 22nd Annual Communications & Competition Law Conference, Vienna (May 2011)
•Economic Analysis in Merger Review, Italian Antitrust Authority, I.C.N. Mergers Workshop, Rome (November 2010)
•The Internet & Competition Issues, 21st Communications & Competition Law Conference, Barcelona (May 2010)
•Merger Enforcement In the Current Economic Crisis: The U.S. View, 13th Annual IBA Competition Conference, Fiesole (September 2009)
•Europe and the Globalization of Antitrust: Unilateral Firm Conduct, Studienvereinigung Kartelrecht/IBA Antitrust Conference, Berlin (2008)
•Chair,International Cartels Conference - Current Issues in Multi-National Investigations, British Institute of International and Comparative Law Conference, London (2008)
•Co-author, OFT Sets Tougher Fines for Infringements of Competition Law Including Cartels and Abuses of Dominance, Bingham alert(September 17, 2012)
•Perils of Representation of Individual Targets of Multi-National Cartel Investigations, ABA/IBA Eighth International Cartel Workshop, Paris(February 2010)
•Co-author, Competition Goes Flat - China's Refusal to Allow Coca-Cola's Huiyuan Bid Suggests a Worrying Move Toward Protectionism, AsiaLaw(April 2009)
•Co-author, Joint Venture Investigations After Publication of the Consolidated Jurisdictional Notice, Global Competition Review, The European Antitrust Review(2009)
•Private Enforcement in EC Competition Law: The Passing on Defence and Standing for Indirect Purchasers, Representative Organisations and Other Groups, Vol. 1/2006 ERA-Forum 15(2006)
In the News
Henneberry Discusses DOJ's Airline Merger Fight Law360, Oct. 8, 2013 - The U.S. Department of Justice's bid to block US Airways Group Inc. from joining forces with American Airlines Inc. may have gotten off to a bumpy start from a combination of union opposition, a change of heart by the Texas attorney general and the government shutdown, but lawyers say the obstacles will have little impact on the outcome of the antitrust regulator's challenge. As some legal professionals have concluded, the concerns driving the recent state and union opposition had little to do with the merits of the antitrust case. I don't think courts in a merger case particularly look at [state attorneys general] as leads for trial anyway [and] I would say the reasons why they're pulling out have to do with noncompetition issues, said partner Ted Henneberry. I don't see any material impact from these decisions, I think the core issues will remain the same for the court to decide. History has shown that even though the DOJ's resources may be constrained because of the shutdown, state attorneys general rarely bring a game-changing level of manpower to bear when they join federal merger challenges. Given the constraints that the DOJ's under, Ted concluded, theoretically they could have relied upon the states to pick up that slack, though typically that doesn't happen, typically states aren't well-equipped to take on a major merger case or even to assist in it.
Henneberry Opines on Apple E-Book Injunction Law360, Sept. 6, 2013 - A federal judge recently ordered Apple Inc. to renegotiate its distribution agreements with five publishers the company allegedly conspired with to fix e-book prices and to abide by an external compliance monitor, but the judge refused to put limits on the iPad maker's dealings in other types of content. U.S. District Judge Denise Cote issued an injunction against Apple that bans the company from helping the publishers coordinate again in the future, forces the company to treat e-book apps the same way it does all other apps, and requires the company both to hire an internal antitrust compliance officer and to report to an external monitor. Most of the injunction's provisions are fairly typical, according to partner Ted Henneberry, who noted that both the scope and length of the injunction were far more narrow than what the Department of Justice had originally proposed. The injunction is set to take effect in 30 days, unless Apple can win a stay.
Henneberry Opines on DOJ Challenge to Airline Merger Law360, Aug. 21, 2013 - The U.S. Department of Justice's recent suit to block an $11 billion merger of American Airlines and U.S. Airways has a lot in common with the agency's 2011 challenge to AT&T's tie-up with T-Mobile. The DOJ's complaint argues that American Airlines and U.S. Airways directly compete on thousands of heavily traveled nonstop and connecting routes and warns the merged airline would command a hefty 69 percent of all takeoff and landing slots at Reagan National Airport in Washington, D.C. I would think on the evidence side, it's going to still come down to what routes are we talking about and what's the price effects, and I think that may be in the defendants' favor when they start doing that, said partner Ted Henneberry. The notion of a maverick firm - a company that plays a disruptive role in the market to the benefit of customers - also comes up in both the cell phone and airline complaints, even if the DOJ didn't explicitly use the label in the new suit. The underlying theory in both cases seems to be that they're very concerned, in accordance with their merger enforcement policies and under the guidelines, with any transaction that appears to take out a maverick, Ted said, In both cases that seems to be the main motivating driver. According to the DOJ, the proposed mergers would also take the number of competitors in the market from four to three. With AT&T there were just four players, and the complaint in the American Airlines case is concentrated again on what the top four have of the domestic air travel market, Ted said. So in that sense, I think they are quite similar and do reflect a consistent enforcement policy by the division in looking at what roles companies play particularly in these concentrated industries.
Three Antitrust Lawyers Named to 'Who's Who' List Global Competition Review, January 2013 - Partners Davina Garrod, Ted Henneberry and Thane Scott were listed in theInternational Who's Who of Competition Lawyers & Economists 2013, published by Global Competition Review. The list is an excerpt from the 2013 edition of theInternational Who's Who of Business Lawyers.
Henneberry Discusses EU-Blocked UPS-TNT Deal Law360, Jan. 14, 2013 - UPS Inc.'s $6.8 billion bid for TNT Express NV became another casualty of the European Commission's (EC) merger enforcement Monday, proving the antitrust watchdog isn't afraid to put the brakes on high-profile, high-value mergers when competition is at stake. The European Union antitrust enforcer raised concerns that the merger would hinder competition in the already-concentrated market for small-parcel express delivery services. Though UPS made repeated offers to shed assets in order to appease those concerns, the companies ultimately opted to walk away from the deal after regulators told them they were planning to block it. I had assumed that they were going to be able to make a deal, with the efforts that UPS was making ... but it got to the point where UPS just couldn't give up more, probably, without undermining the whole value of the deal, said partner Ted Henneberry. It does mean that [the EC is] going to take these hard positions unless they get the kind of deal that they think passes muster. And UPS, which is now paying TNT a $200 million breakup fee, had to have known the merger would face tough scrutiny, given how concentrated the market was, Henneberry added. I don't think they... got blindsided so much as the EC was just taking a very hard position on what they wanted out of this, he said.
Global Competition Review Honors Antitrust Lawyers Global Competition Review, Jan. 3, 2014 - Partners Davina Garrod and Thane Scott and senior counsel Ted Henneberry were recognized for the second consecutive year inGlobal Competition Review's International Who's Who of Competition Lawyers & Economists 2014. Nominees were selected based on the results of comprehensive surveys, recommendations, interviews and questionnaires. The list is an excerpt from the 2014 edition of theInternational Who's Who of Business Lawyers.
Henneberry Opines on EU Pay-for-Delay Cases
Law360, July 30, 2012 - The European Commission (EC) brought its second pay-for-delay case on Monday, challenging patent settlements between Servier SAS and several generic drugmakers. Lawyers say the European Union (EU) watchdog may have an easier time barring the practice than its U.S. counterpart because its courts rarely overrule the regulator on the scope of EU competition law. Given the differences in systems, on balance I would say the [European] Commission's approach probably has a better chance of success, of being given the benefit of the doubt, than here [in the U.S.], said partner Ted Henneberry. The difference is the courts will give deference to the commission in saying, 'OK, you've demonstrated that this has anti-competitive effects, and we'll uphold that.' In addition, the EU General Court and the European Court of Justice give the EC far more deference than the Federal Trade Commission (FTC) benefits from in the federal courts. If I had to call it, I'd put more odds on the commission succeeding than I would on the FTC just because of the differences in the systems, Henneberry said. Their burden won't be as heavy as it is here for the FTC.
Henneberry Opines on Review of 38M E.ON Fine
Law360, June 21, 2012 - A European Union court didn't dig deep enough when reviewing a 38 million (US$50 million) antitrust fine against E.ON Energy AG, according to Advocate General Yves Bot, an adviser to the EU's highest court. Bot urged the European Court of Justice to partially overturn the decision upholding the European Commission's penalty - assed in 2008 for tampering with a seal investigators placed at E.ON's offices during a dawn antitrust raid - and send it back to the EU's General Court. According to partner Ted Henneberry, Bot's opinion, which specifically criticized the lower court for failing to take its own look at E.ON's financials and consider the mitigating claim that the seal was broken through negligence, is part and parcel of the general trend within EU courts to force the commission to a tougher standard when it comes to calculating antitrust fines. What [Bot] is saying now is, 'You the lower court didn't do your job in full...you didn't hold the commission's feet to the fire,' Henneberry said. It's basically saying...well, this may just be process, but the same central rules apply in the way you're supposed to assess fines. Henneberry stated it was a fairly strong opinion and unusual for Bot to suggest returning the case to a lower court. Any time you undertake conduct like destroying documents or anything that threatens the integrity of an investigation, [the regulators are] going to react, Henneberry said. Even in the advocate general's report, he's not saying this isn't worthy of being punished, he's just saying you've got to balance it.