Arthur J. Burke
  1. Partner

As a partner in Davis Polk’s Litigation Department in New York and Northern California, Mr. Burke has represented clients in a variety of antitrust, securities, corporate governance and general litigation matters. In his antitrust practice, he also advises clients on the competition law aspects of mergers and acquisitions.

Work Highlights

RECENT M&A-RELATED ANTITRUST REPRESENTATIONS
  • Stewart Title in its proposed $1.2 billion acquisition by Fidelity National Financial, Inc. (2018)
  • SS&C, a global provider of financial services software and software-enabled services, in multiple transactions, including its:
    • $1.5 billion acquisition of Intralinks (2018)
    • $5.4 billion acquisition of DST Systems (2018)
    • $321 million acquisition of Citi's alternative investor services business (2016)
    • $2.3 billion acquisition of Advent Software (including a DOJ second request investigation) (2015)
  • Equinix, a provider of global data center services, in multiple acquisitions, including its acquisition of data centers from Verizon (2017) and its acquisition of Switch and Data (including a DOJ second request investigation) (2009-10)
  • Suez, a French-based multinational with operations in water, electricity, natural gas supply and waste management, in a DOJ review of its acquisition of the water treatment business of General Electric (2017)
  • Chemtura, a specialty chemicals firm, in its $2.7 billion acquisition by Lanxess (2017)
  • NBCUniversal in its $3.8 billion acquisition of DreamWorks Animation (2016)
  • ARM Holdings plc, a semiconductor and software design company, in its $38 billion acquisition by SoftBank Group Corp. (2016)
  • Affymetrix, a provider of life science products and molecular diagnostic products, in its $1.3 billion acquisition by Thermo Fisher Scientific (2016)
  • Comcast, the nation's largest cable company, in:
    • A DOJ investigation of its $3.6 billion spectrum sale to and commercial agreements with Verizon Wireless (2012)
    • DOJ and FCC investigations of its acquisition of a majority interest in NBCUniversal (2009-11)
  • TE Connectivity in connection with its acquisitions of Creganna (2016), Deutsch Group SAS (2012) and ADC Telecommunications (2010) and its divestiture of its M/A-COM business (2007); also coordinated international merger approvals; all deals closed without conditions
  • Blackbaud, an application software company, in a DOJ investigation of its acquisition of Convio (2012)
  • SDI Health, a provider of healthcare analytics and market insights, in an FTC investigation of its acquisition by IMS Health; the transaction closed in 2011 pursuant to an FTC consent decree
  • LoopNet, an online real estate marketplace, in an FTC investigation of its $860 million acquisition by CoStar; the transaction closed in 2012 pursuant to an FTC consent decree

Mr. Burke has also provided antitrust advice in connection with the formation of joint ventures and standard-setting organizations and consortia.

RECENT LITIGATION REPRESENTATIONS
  • Leading financial institutions in numerous antitrust suits alleging price-fixing and/or manipulation of financial benchmarks and financial instruments, including:
    • A major financial institution in an ongoing MDL antitrust litigation alleging a conspiracy to manipulate the LIBOR benchmark; in this matter, Mr. Burke and Davis Polk are liaison counsel for the joint defense group and have successfully obtained dismissals of multiple claims brought by various plaintiff groups and successfully defeated class certification for several purported classes, see, e.g., In re LIBOR-Based Fin. Instruments Antitrust Litig., 2016-2 Trade Case (CCH) ¶79,860 (S.D.N.Y. 2016) (dismissing multiple claims because plaintiffs did not meet “efficient enforcer” criteria); 299 F. Supp. 3d 430 (S.D.N.Y. 2018) (denying class certification for multiple purported classes)
    • A major financial institution in an ongoing antitrust litigation alleging a conspiracy to manipulate the market for Mexican government bonds
    • A major financial institution in an ongoing antitrust litigation alleging a conspiracy to manipulate the ISDAfix benchmark rate
    • A major financial institution in an ongoing antitrust litigation alleging a conspiracy to manipulate foreign exchange rates
    • A major financial institution in an ongoing antitrust litigation alleging a conspiracy to block the exchange trading of interest rate swaps
  • Comcast and NBCUniversal in a successful defense of a suit, challenging NBC's decision not to renew its affiliation agreement with a local broadcaster in Boston; the complaint was dismissed in 2016, see WHDH-TV v. Comcast Corp., 186 F. Supp. 3d 109 (D. Mass. 2016)
  • Comcast in:
    • Successfully obtaining summary judgment (after extensive discovery), disposing of a monopolization claim brought by a competitor in the advertising sales representation business, see Viamedia, Inc. v. Comcast Corp., 2018 U.S. Dist. LEXIS 138661 (N.D. Ill. August 16, 2018)
    • Successfully defending two lawsuits challenging certain territorial rules of the National Hockey League and Major League baseball (both of which were co-defendants); following a three-day hearing, the District Court denied certification of a damages class and granted a Daubert motion excluding plaintiffs' damages expert, see Lauman v. NHL, 105 F. Supp. 3d 384 and 117 F. Supp. 3d 299 (S.D.N.Y. 2015); the lawsuits subsequently settled on favorable terms in 2015 and 2016
    • Successfully defending an antitrust suit in Los Angeles federal court challenging the alleged practice of selling cable channels in "bundled tiers"; Mr. Burke argued the appeal of this case for the joint defense group and the Ninth Circuit affirmed the dismissal of the case in 2012, see Brantley v. NBC Universal, Inc., 675 F.3d 1192 (9th Cir. 2012)
    • Successfully defending multiple antitrust lawsuits brought by cable networks challenging refusals to deal by Comcast and seeking compelled carriage, see, e.g., Southern Entertainment Television v. Comcast, 270 Fed. Appx. 747 (11th Cir. 2008); America Channel v. Time Warner Cable, Inc., 2007-2 Trade Cas. (CCH) ¶75,833 (D. Minn. 2007)
    • Successfully defending two 2009 trials before an FCC administrative law judge concerning "discrimination" claims brought by sports programming channels; both matters settled on favorable terms
    • Successfully defending a suit seeking to challenge the FCC's approval of Comcast's acquisition of AT&T Broadband; Mr. Burke successfully argued that matter before the D.C. Circuit, see Consumer Fed. of Am. v. FCC, 348 F.3d 1009 (D.C. Cir. 2003)
  • Oracle Corporation in:
    • A 2007 lawsuit in Santa Clara Superior Court seeking to block its $500 million acquisition of Agile Software; the court denied the plaintiffs' motion for a preliminary injunction and the case was dismissed with prejudice
    • Litigation and a two-week trial arising out of its unsolicited tender offer for PeopleSoft, including a two-week trial in Delaware Chancery Court; Oracle acquired PeopleSoft in January 2005
  • Various companies and individuals in nonpublic criminal grand jury investigations alleging price-fixing conspiracies among competitors

Recognition

Mr. Burke is listed as a leading lawyer for Antitrust and Competition in numerous legal industry publications, including:

  • Chambers Global
  • Chambers USA
  • The Legal 500 U.S.
  • Benchmark Litigation
  • Expert Guide
  • Who's Who Legal–International
  • U.S. News – Best Lawyers
  • Law360 – "Competition MVP of the Year," 2013


Mr. Burke is a member of Davis Polk's Antitrust Group, which was named:

  • Law360 – "Competition Group of the Year," 2012, 2014, 2015 and 2016
  • U.S. News – Best Lawyers Best Law Firms – "Law Firm of the Year," 2013

Of Note

  • Speaker at numerous antitrust seminars and conferences
CURRENT MEMBERSHIPS
  • Publications Officer, Section of Antitrust Law, American Bar Association, 2018-present
PAST MEMBERSHIP
  • Council Member, Section of Antitrust Law, American Bar Association, 2015-2018
  • Chair, Media & Technology Committee, Section of Antitrust Law, American Bar Association, 2012-2015
  • Co-Chair, Antitrust Section's Intellectual Property Committee, American Bar Association, 2009-2012
  • Member, Antitrust Committee and Mergers Subcommittee, New York City Bar, 2001-2003

Professional History

  • Partner, 2000-present
  • Associate, 1993-2000
  • Law Clerk, Hon. Douglas H. Ginsburg, U.S. Court of Appeals, D.C. Circuit, 1992-1993

Bar Admissions

  • State of New York
  • State of California
  • U.S. Court of Appeals, D.C. Circuit
  • U.S. Court of Appeals, First Circuit
  • U.S. Court of Appeals, Second Circuit
  • U.S. Court of Appeals, Third Circuit
  • U.S. Court of Appeals, Fifth Circuit
  • U.S. Court of Appeals, Seventh Circuit
  • U.S. Court of Appeals, Eighth Circuit
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. District Court, C.D. California
  • U.S. District Court, E.D. California
  • U.S. District Court, N.D. California
  • U.S. District Court, S.D. New York

Education

  • B.A., University of Pennsylvania, 1989
    • magna cum laude
  • B.S., University of Pennsylvania, 1989
  • J.D., University of Michigan Law School, 1992
    • magna cum laude
    • Editor, Law Review