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MoFo Advises ShowingTime on $500 Million Acquisition by Zillow Group

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Morrison & Foerster LLP (“MoFo”) represented ShowingTime.com, Inc. (“ShowingTime”), a leading provider of home showing software and market stats services for the residential real estate industry, on the antitrust aspects of its $500 million all-cash acquisition by Zillow Group, Inc. ShowingTime’s showing products and services simplify the appointment scheduling process for real estate professionals, buyers, and sellers.

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Morrison & Foerster LLP (“MoFo”) represented <a target="_blank" href="https://showingtime.com/">ShowingTime.com</a>, Inc. (“ShowingTime”), a leading provider of home showing software and market stats services for the residential real estate industry, on the antitrust aspects of its $500 million all-cash acquisition by Zillow Group, Inc. ShowingTime’s showing products and services simplify the appointment scheduling process for real estate professionals, buyers, and sellers.MoFo’s Antitrust group successfully guided ShowingTime through the FTC’s Second Request investigation and related advocacy. The MoFo team was led by partners Alexander Okuliar and Megan Gerking, and associates Eric Olson, David Grothouse, Alexa DiCunzolo, Haydn Forrest, Aaron Scheinman, Amanda Gayer, Nicole Ang, Alison Frost, Alexander Najarian, Candace Heinze, and Zachary Maldonado, and senior paralegal Alfredo Chamorro and paralegal Cailey Folts.The transaction was signed on February 6, 2021, and closed recently, upon meeting customary closing conditions.

MoFo Advises ShowingTime on $500 Million Acquisition by Zillow Group

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Alex Okuliar is Co-Chair of Morrison Foerster’s Global Antitrust Law Practice Group. He is the former Deputy Assistant Attorney General for Civil Antitrust Enforcement at the U.S. Department of Justice and a former advisor at the Federal Trade Commission. His practice includes litigation, merger reviews, and government investigations.“The ‘excellent’ Alex Okuliar has a broad practice taking in merger clearance, conduct investigations and antitrust litigation. He is particularly noted for his work on behalf of media and technology companies.” – Chambers USA, DC AntitrustAlex represents clients in lawsuits in federal and state courts around the United States. He has helped clients succeed in a wide range of cases, including class actions and private party disputes alleging price fixing, monopolization, group boycotts, market allocation, and tying.He also regularly represents clients in merger and conduct investigations by the U.S. Department of Justice, the Federal Trade Commission, state Attorneys General, and foreign agencies, including the European Commission and the UK Competition and Markets Authority. He has guided clients through the complex global merger clearance process and litigated agency merger challenges through trial.Alex has a history of notable agency leadership experience. He was appointed the Deputy Assistant Attorney General for Civil Enforcement in the DOJ Antitrust Division in 2020 and in that role oversaw more than 150 career staff, dozens of complex merger investigations, and an industry-wide review of online platforms. He was also one of the principal architects and leaders of the agency’s landmark search monopolization case against Google (U.S. v. Google). Earlier in his career, Alex served as an attorney advisor to former FTC Commissioner Ohlhausen and a trial attorney in the DOJ Antitrust Division. Prior to his service as Deputy AAG, Alex was a partner at another international law firm.Alex is a thought leader and a frequent writer and speaker. He currently serves as the co-chair of the ABA Antitrust Law Section’s Joint Conduct Committee, and is the former chair of the Section’s Intellectual Property Committee and co-chair of the 2023 Antitrust Fall Forum on Artificial Intelligence. He is also a member of the Corporations, Securities & Antitrust Executive Committee of The Federalist Society for Law and Public Policy Studies. Alex serves on Morrison Foerster’s AI Steering Committee and Life Sciences Steering Committee.Alex has also edited or contributed to leading antitrust treatises and handbooks, including Antitrust Law Developments (7th edition), the Premerger Notification Practice Manual (3rd and 4th editions), and the Intellectual Property and Antitrust Handbook (2nd edition).Before law school, Alex co-founded and sold an online technology company.<h4>Representative Experience</h4><h5>Merger Review and Litigation</h5>Alex has worked on nearly a thousand deals across many industry sectors over his roughly 25-year career. He has handled dozens of second requests and litigated merger cases through trial. Clients appreciate the range and depth of experience he can offer them. As one client noted in The Legal 500 U.S. Antitrust: Merger Control guide, “Alex Okuliar brings a deep knowledge of the law and economics of antitrust, and the ability to frame that knowledge within the unique circumstances of the digital economy.”His notable public representations include:<ul><li>Microsoft in many deals, including its $7.5 billion acquisition of GitHub, an AI-powered developer platform.</li><li>Unity Software Inc. in multiple transactions, including its all-stock $4.4 billion acquisition of ironSource and the concurrent $1 billion PIPE investment in the company by Silver Lake and Sequoia, and in response to the related $13.6 billion unsolicited acquisition proposal from AppLovin Corporation.</li><li>Hispanic Broadcasting Company in its $3 billion sale to Univision, which closed with a settlement after a year-long DOJ Second Request investigation.</li><li>AVG Technologies in its $1.3 billion sale to Avast Software, maker of antivirus and security software.</li><li>ShowingTime, a leading proptech company, in its $500 million sale to Zillow, which cleared successfully without conditions after a Second Request investigation by the FTC.</li><li>Propel Media in federal court to defend against the FTC’s challenge to its proposed acquisition by IQVIA.</li><li>Enterprise Products Partners in multiple deals, including its $13 billion acquisition of GulfTerra, which closed with limited divestitures after an FTC Second Request investigation.</li><li>Nova Chemicals in its joint venture to build a $1.7 billion ethylene cracker and a polyethylene plant in Texas with Borealis and Total.</li><li>Meade Pipeline Co. in the $1.37 billion sale of its natural gas pipeline system to NextEra Energy Partners.</li><li>Sugar Foods Corporation in its sale to Pritzker Private Capital.</li><li>Infineon Technologies AG in the sale of its HiRel DC-DC converter business to Micross Components, Inc.</li><li>Cisco in multiple matters, including its $600 million acquisition of SD-WAN provider, Viptela.</li><li>Kindred Biosciences in its approximately $450 million sale to Elanco Animal Health.</li><li>Otsuka Pharmaceuticals in its roughly $250 million acquisition of ADHD-drug developer, Neurovance.</li></ul>While serving at the DOJ and FTC, Alex investigated or oversaw the review of hundreds of transactions, including the $180 billion merger of United Technologies and Raytheon, NASDAQ’s proposed $11 billion acquisition of NYSE Euronext, Deutsche Boerse’s proposed $10 billion acquisition of NYSE Euronext, Waste Management’s $4.6 billion acquisition of Advanced Disposal Services, Liberty Latin America’s $1.95 billion purchase of AT&T Puerto Rico, Google’s $2 billion acquisition of Fitbit, Google’s $700 million acquisition of ITA Software, Reading Health System’s proposed acquisition of Surgical Institute of Reading, and Universal Health Service’s acquisition of Ascend Health Corporation, among many others.<h5>Antitrust Conduct Litigation</h5>Alex has represented clients in some of the most significant antitrust cases of the last twenty years, including government enforcement, class actions and private party disputes, and has represented both plaintiffs and defendants. As The Legal 500 U.S. Antitrust: Civil Litigation/Class Actions Defense guide noted, “Alex Okuliar litigates cutting-edge antitrust topics such as platform competition and data collection as well as media cases.” His thought leadership on class action issues has also been cited by courts (See In re GPU Antitrust Litigation, 253 F.R.D. 478, 492–3 (2008)).His current representations include:<ul class="li-text-orange"><li class="li-text-orange">Avadel, a leading biopharmaceutical company, in Jazz Pharmaceuticals v. Avadel CNS Pharmaceuticals (D. Del.), an antitrust counterclaim alleging monopolization and other unlawful conduct by Jazz Pharmaceuticals. Avadel alleges that Jazz improperly listed a distribution system patent in the FDA’s Orange Book to extend its monopoly power over certain narcolepsy drugs. The New York Times coverage of the case can be found on the <a href="https://www.nytimes.com/2023/02/28/business/jazz-narcolepsy-avadel-patents.html" target="_blank">The New York Times</a> website. The FTC also filed an <a href="https://www.ftc.gov/news-events/news/press-releases/2022/11/ftc-amicus-brief-challenges-abuse-fda-orange-book-listing-procedures-block-drug-competition" target="_blank">amicus brief</a> explaining to the Court the harm to competition from such listings.</li><li class="li-text-orange">Icon, a real estate development company, in Icon v. Southwest Regional Council of Carpenters, et al. (C.D. Cal.), a federal antitrust lawsuit against two unions and other co-conspirators. Icon alleges the unions are attempting to monopolize certain labor markets, among other unlawful conduct, by submitting sham environmental petitions to slow or block new real estate developments and then offering to abandon those petitions in exchange for hiring of union labor. See the press coverage in <a href="https://www.bloomberglaw.com/bloomberglawnews/antitrust/XEJFH0U8000000?bna_news_filter=antitrust#jcite" target="_blank">Bloomberg</a>.</li><li class="li-text-orange">Provi, an e-commerce platform, in Tiz (d/b/a Provi) v. Southern Glazer’s and Republic National Distribution Co. (N.D. Ill.), an antitrust claim alleging monopolization, tying, and group boycott, among other conduct, by the nation’s largest alcohol distributors to eliminate new and innovative online marketplace competition from Provi. See coverage of the case by <a href="https://www.politico.com/news/2022/03/29/alcohol-ordering-antitrust-suit-00021383" target="_self">Politico</a>.</li><li>A large national consumer products company (E.D. Pa) in its defense against a monopolization case alleging deceptive conduct before a standard-setting organization and patent holdup related to an alleged standard essential technology patent.</li><li>A national financial institution in its defense against state law claims of unfair competition in connection with a business transaction.</li></ul>Some of his other clients include:<ul><li>Asiana Airlines in In re Korean Air Lines Co. Antitrust Litigation (C.D. Cal.) against an MDL class action alleging price-fixing of passenger air fares. He prevailed on motion to dismiss claims of indirect purchasers of passenger air fares, which was upheld in relevant part on appeal, and the remainder of the case settled. See In re Korean Air Lines Co. Antitrust Litigation, 567 F. Supp. 2d 1213 (C.D. Cal. 2008), aff’d in part, vacated in part, 642 F.3d 685 (9th Cir. 2011).</li><li>Asiana Airlines in In re Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y), an MDL class action alleging price-fixing of cargo shipping fees. The case was ultimately settled.</li><li>Capital One in In re Payment Card Interchange Fee and Merchant Discount Litigation (E.D.N.Y.), where he defended the client against alleged price-fixing claims related to credit card interchange fees. This matter ultimately settled.</li><li>Capital One in American Express v. Visa, et al. (S.D.N.Y.), where he defended the client against group boycott claims alleging that certain exclusive bylaws for the Visa and Mastercard credit card networks represented an agreement to boycott American Express. The case settled after years of litigation.</li><li>Honeywell in Wright v. Honeywell (Vt.), McKinnon v. Honeywell (Me.), Fagan v. Honeywell (Mass.), and Roos v. Honeywell (Cal.), where he defended the client against class actions in several state courts alleging monopolization of certain home thermostats. Certain cases were dismissed after briefing and oral argument and others were ultimately settled.</li><li>The United States in United States v. Google (search) (D.D.C.), in its landmark monopolization case against a leading online search engine. He served as the senior Antitrust Division official overseeing the DOJ staff team to develop and prosecute the lawsuit.</li><li>A leading online professional networking site in its defense against unfair competition claims based on allegations that the site had blocked a competing site from scraping its data to develop another service.</li><li>A leading medical imaging technology company in an antitrust counterclaim related to a patent infringement action.</li><li>An online media streaming company in an antitrust counterclaim against the major national television broadcasters related to a copyright infringement lawsuit.</li></ul><h5>Government Investigations & Policy Advocacy</h5>Alex also handles investigations, compliance counseling, and policy advocacy for governmental entities. As one client noted in The Legal 500 U.S. Antitrust: Cartels guide, “Alex Okuliar brings a calm and thoughtful approach to the matters he advises on. He has good judgment and delivers advice in a user-friendly format. He stays current on emerging issues in antitrust law and provides a helpful perspective on areas of risk and how to best address those areas.” Some of his matters include representing:<ul><li>An AI company in an FTC investigation of a technology platform.</li><li>A technology company in its defense against an FTC investigation into an alleged order violation.</li><li>A major chemical company as a leniency applicant in a DOJ criminal price-fixing investigation.</li><li>An airline in various DOJ criminal cargo and passenger airfare antitrust investigations.</li><li>A technology company in a DOJ investigation of an alleged no-poach agreement relating to employee hiring.</li><li>A major energy company as a third-party complainant and witness in an FTC investigation leading to litigation against the merging companies.</li><li>An energy company in an internal investigation of trading activity related to allegations of price fixing.</li><li>A major hospital system in a state AG price-fixing and market allocation investigation.</li><li>A ticket reseller in a state AG consumer protection investigation.</li><li>Clients advocating to government agencies on issues relating to technology platforms, mergers, and issues involving antitrust and intellectual property.</li></ul>

Alexander Okuliar

Co-chair Global Antitrust Law Practice Group

Megan Gerking is a partner in Morrison Foerster’s Global Antitrust Law practice, specializing in government-facing antitrust matters. Megan represents companies in criminal and civil conduct investigations before the U.S. Department of Justice (DOJ) Antitrust Division, Federal Trade Commission (FTC), and state enforcers and in all phases of the merger review process before U.S. and foreign competition authorities.Megan, a former trial attorney with the DOJ’s Antitrust Division, is an experienced antitrust attorney focused on complex antitrust law matters, including government investigations, strategic transactions, and civil litigation. She regularly counsels clients on antitrust issues arising from industry consortiums, trade association activities, and other collaborations. While serving in the Antitrust Division, Megan investigated and prosecuted federal antitrust violations and international cartel cases. She leverages her DOJ experience when reviewing, developing, and implementing clients’ antitrust compliance programs and routinely delivers antitrust compliance training for employees.As part of Megan’s merger practice, she regularly helps clients in all aspects of merger review, including developing strategy for structuring transactions, assessing and complying with obligations under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR Act”), and securing clearance from antitrust enforcers in the United States and abroad. Megan has represented third parties in agency reviews of deals, including at trial.Megan has experience representing clients across a broad range of industries, including media, telecom, technology and software, financial services, consumer products, aviation, higher education, manufacturing, agriculture, and life sciences. While in the Antitrust Division, Megan prosecuted the first individual extradited to the United States on an antitrust charge. For her work investigating and prosecuting international price fixing, bid rigging, and market-allocation conspiracies by automotive parts suppliers, Megan earned the Assistant Attorney General’s Award for Distinguished Service. Megan was also awarded the DOJ’s Outstanding Mentor Award by the Attorney General. Further, she was recognized this past year in Bloomberg Law’s 40 Under 40 and as a finalist for The American Lawyer’s 2022 Young Lawyer of the Year. Additionally, Megan has served as a Non-Governmental Advisor to the International Competition Network (ICN) and spoke at the ICN Cartel Workshop in Lisbon, Portugal, in November 2022. Megan is also a member of our global Environmental, Social, and Governance (ESG) steering committee.Megan is currently an editor of ABA magazine The Antitrust Source. Megan received her J.D., cum laude, from Georgetown University Law Center, where she served on the editorial board of The Tax Lawyer. She received her B.A. in economics and political science from the University of Michigan.Before attending law school, Megan worked in the DOJ’s Office of Public Affairs, assisting the Assistant Attorney General of the Antitrust Division in all media matters and serving as a spokesperson for national media. She also worked as a paralegal for the Antitrust Division, supporting trial attorneys investigating and prosecuting corporations and individuals for violations of criminal antitrust laws.<h4>Representative Experience</h4><h5>Criminal and Civil Antitrust Investigations</h5><ul><li>Obtained non-prosecution protection for two healthcare companies she represented in separate DOJ Antitrust Division criminal investigations.</li><li>Represented an energy company in a criminal investigation.</li><li>Obtained a non-prosecution agreement for a senior executive in a criminal investigation into market allocation and bid rigging of generic drugs by the DOJ.</li><li>Regularly advises senior executives on DOJ antitrust criminal investigations involving allegations of price fixing, market and customer allocation, and bid rigging and obtained non-prosecution protection for several individuals.</li><li>Assisted a technology company in an FTC monopolization investigation.</li><li>Represented a private equity fund in a state AG investigation.</li><li>Counseled a senior executive in an international criminal cartel investigation.</li><li>Obtained a non-prosecution agreement for a senior executive in a criminal investigation into conduct related to the hiring of employees.</li></ul><h5>Antitrust Merger Review</h5><ul><li>ShowingTime. Navigated ShowingTime Inc., a leading real estate showing management and market stats technology provider, through an extended review by the Federal Trade Commission of its $500 million vertical acquisition by Zillow Group. </li><li>Unity Technologies Corp. Obtained merger clearances for Unity in connection with an asset carve-out acquisition from Weta Digital for certain assets, including its audiovisual effects development and management software tools, for a purchase price of $1.625 billion. </li><li>Grant Thornton. Advised and obtained merger clearances for Grant Thornton LLP in connection with the sale of its Public Sector Advisory practice to Guidehouse.</li><li>Divvy. Represented Divvy, a leader in spend management, in its $2.5 billion stock and cash sale to Bill.com.</li><li>NTT LTD. Represented NTT, a leading IT infrastructure and services company, in its $330 million cash sale of WhiteHat Security to Synopsys, Inc.</li><li>Palo Alto Networks. Advised Palo Alto Networks on its agreement to acquire Cider Security, a pioneer in application security and software supply chain security.</li><li>Continental Building Products. Represented Continental Building Products, a North American leader in wallboard and joint compound materials, in negotiations to secure antitrust approvals for its sale to Saint-Gobain. The transaction cleared without a “second request” investigation.</li><li>The Walt Disney Company. Assisted The Walt Disney Co. in its $71 billion acquisition of certain businesses from 21st Century Fox.</li><li>Bombardier. Represented Canadian aircraft manufacturer Bombardier in connection with the worldwide antitrust clearance of its sale of a controlling interest in the “C Series” line of commercial passenger jets to Airbus. The transaction cleared without any second-phase reviews.</li><li>Advised third parties on civil investigative demand (CID) responses, including Nouryon, a global specialty chemical leader, as a third-party witness in an FTC litigation challenge of a transaction between Evonik and PeroxyChem.</li><li>Counseled corporate clients on antitrust issues in complex transactions, including collaborations, joint ventures, acquisitions, and mergers.</li></ul><h5>Antitrust Litigation</h5><ul><li>Glenmark Pharmaceuticals, Inc. Representing Glenmark in a federal antitrust multidistrict litigation alleging price fixing and market allocation of generic drugs by manufacturers of generic drugs.</li><li>Nexstar Media Group. Representing Nexstar, America’s largest local television and media company, in federal antitrust litigation alleging price fixing in television advertising.</li><li>Represented a leading international financial institution in multiple, sprawling class action lawsuits alleging a global conspiracy by some of the world’s largest banks to manipulate the interbank offer rate (IBOR) benchmark for multiple currencies.</li></ul>

Megan E. Gerking

Partner

Alexa DiCunzolo is an associate in the Litigation Department of Morrison & Foerster’s Washington, D.C. office and a member of the Global Antitrust Law Practice Group.Alexa helps clients address a wide range of antitrust concerns, including both litigation and transactional matters. She is dedicated to helping clients identify and mitigate antitrust risks while achieving their business goals and to defending their interests when litigation arises.A significant portion of Alexa’s practice is devoted to helping guide clients through the Hart-Scott-Rodino pre-merger notification process, from determining when notification is required to supplying necessary information to enforcement agencies to advising on antitrust risk-mitigation strategies.Alexa received her J.D. with honors from the George Washington University Law School, where she was a staff member of The Guide to International Research for the George Washington International Law Review. She graduated summa cum laude with a B.A. in political science and government from Loyola University Maryland.

Alexa Rae DiCunzolo

Associate

Haydn Forrest is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.Haydn practices at the intersection of privacy and antitrust. He counsels clients in connection with highly sensitive matters relating to data breaches, congressional investigations, data security, and privacy. He has particular experience advising clients on legal issues implicated by digital platforms, from ensuring that pricing policies are consistent with U.S. federal and state, and international competition laws to managing the privacy considerations relating to the collection and use of personal data. He also represents clients before the Federal Trade Commission, the U.S. Department of Justice, and foreign competition authorities in all phases of merger review, from pre-deal counseling through litigation. Haydn has also helped conduct internal investigations ranging from compliance with the Foreign Agents Registration Act and Foreign Corrupt Practices Act to potential criminal and civil antitrust violations.Prior to law school, Haydn worked at the Federal Trade Commission as an honors paralegal. Haydn received his B.A. in international relations and political science from Tufts University.

Haydn Forrest

Aaron Scheinman is an associate in the Litigation Department of Morrison Foerster’s Washington, D. C. office.His practice includes advising clients on a variety of antitrust matters, including all phases of merger review before U.S. and international competition authorities and complex civil litigation. He also works on cybersecurity and data privacy issues.Aaron received his J.D. with honors from the Georgetown University Law Center, where he was the Articles Editor of The Georgetown Law Technology Review. During law school, he interned at the Federal Trade Commission and the Federal District Court for the District of New Hampshire. He graduated summa cum laude with a B.S. in economics from the University of New Hampshire.

Aaron Heath Scheinman

Before joining MoFo’s Litigation Department, Zachary worked as a law clerk at the L.A. District Attorney’s Office Consumer Protection Division, where he worked on a variety of complex consumer and environmental issues. Zachary analyzed and organized data sets for environmental matters, in addition to researching issues of jurisdiction and U.S. federal preemption.Zachary received his J.D. from the University of California, Los Angeles, School of Law, where he served as the Academic Support Chair for the Latinx Law Students Association and the Chief Development Editor of the Chicanx-Latinx Law Review.Zachary received his B.A., summa cum laude, in History from the University of California, Los Angeles, where he was a member of the College Honors Program, the Golden Key International Honor Society, and the Tau Sigma National Honors Society.

Zachary Maldonado

Antitrust Law