Korea

Provided global advice to client Advanced Micro Devices in relation to its antitrust battle against Intel, including representing AMD in the complaint filed in US court against Intel—the largest federal court monopolization case pending in the US—and in cases brought against Intel by the European Commission. An important aspect of this global fight has taken place in Korea. O'Melveny worked with local counsel in Korea in an investigation of Intel's practices by the Korea Fair Trade Commission. The KFTC found that Intel had violated Korea's Monopoly Regulation and Fair Trade Act. More specifically, the KFTC found that Intel had coerced exclusive dealing arrangements with two Korean computer manufacturers. The KFTC issued a cease and desist order and imposed a fine on Intel. 

Represented Asiana Airlines in what that the US Court of Appeals for the Ninth Circuit called “a matter of first impression.” The court held that the Airline Deregulation Act preempts state antitrust claims against foreign air passenger carriers. This appeal, argued by O’Melveny, affirmed the district court. The US Court of Appeals for the Second Circuit later issued an opinion reaching the same conclusion in connection with foreign air cargo carriers; O’Melveny argued the appeal on behalf of 30 airlines. The ruling extinguished hundreds of millions of dollars of potential exposure and marked the end of the case.

Advised CJ ENM, the leading entertainment company originated from Korea, in a definitive agreement to acquire an 80% stake of the scripted business of US-based global premium content studio, Endeavor Content, from its parent company Endeavor Group Holdings for an enterprise valuation of US$850 million.

Headquartered in Seoul, Korea, CJ ENM is best known for its recent multiple Academy Award-winning film Parasite. CJ ENM’s entertainment division engages in a wide array of businesses across the industry spectrum, including media content, music, film, performing arts, and animation. This acquisition is the largest M&A for CJ ENM, which first invested in DreamWorks and jumped into the content business 26 years ago.

Based in Beverly Hills, California and launched in 2017, Endeavor Content is a production advisory, sales, and distribution studio that has owned, financed, and/or sold more than 125 films and television series that have garnered more than 69 Emmy wins and nominations and 59 Academy Award wins and nominations.

Assisted this leading Korea-based petrochemicals company with its US$2.5 billion acquisition of US-based adhesives and coatings manufacturer Kraton Corporation—one of only a handful of successful Korean acquisitions of US-listed companies.

Defended Hyundai/Kia in numerous government investigations, consumer class actions, intellectual property, and product liability cases matters over the years. Among our publishable accomplishments:

• Achieved a favorable settlement for Hyundai Motor America and Hyundai Motor Company in a putative class action likewise alleging defects in the panoramic sunroof glass of several Hyundai models. 
  
  
• Advised Kia Motors America on investigations by the National Highway Traffic Safety Administration and the US Attorney’s Office for the Southern District of New York into the recall of 2.3 million vehicles equipped with the Theta II engine, over defects that could cause engine fires.

Advised Samsung Group companies in numerous strategic acquisitions and investments, including Samsung Display’s acquisition of eMagin Corporation (NYSE: EMAN), a US-based leader of Active-Matrix OLED microdisplays for high-resolution, AR/VR, and other near-eye imaging products, for approximately US$218 million in cash.

Defended Samsung in numerous patent infringement and antitrust matters over the years. Among our recent accomplishments: 

• Secured a victory for Samsung Electronics and US-based subsidiaries in two consolidated patent infringement lawsuits brought by Virginia Innovation Sciences (VIS) in the Eastern District of Virginia. VIS accused dozens of Samsung’s flagship products including the Galaxy S series smartphones, Galaxy Tab, and Galaxy Note products of infringing six patents purportedly covering the transmission of downloaded video content from a mobile device onto an alternative display such as a television. VIS sought over US$100 million in past damages and a royalty on future sales through expiration of the patents in 2025. First, O’Melveny won a motion that removed willful infringement from the case and invalidated certain claims. Next, on the eve of trial, Samsung won summary judgment of non-infringement on most of the remaining claims which severely limited potential damages. These rulings, combined with other key victories at the pretrial conference, signaled the death knell for the cases. VIS stipulated to a judgment of non-infringement in order to create a final appealable judgment, resulting in a complete district court victory for Samsung and saving it the cost of completing trial.
  
  
• Defeated class certification on a multibillion-dollar price-fixing claim against Samsung, Toshiba, Panasonic, Sony, Philips, BenQ, Hitachi, LG, and several joint ventures owned by combinations of these companies. The Northern District of California denied class certification as to both direct purchasers and indirect purchasers in an antitrust MDL in which major manufacturers of Optical Disk Drives (ODD) and products containing ODDs were alleged over a six year period (2004-2010) to have conspired to fix prices and to have engaged in bid rigging. O’Melveny argued the motion on behalf of the direct purchaser defendants and drafted the winning brief on class certification. This is only the second time that a court has denied class certification in the civil setting even though certain defendants and their executives pleaded guilty on the criminal side. The Ninth Circuit subsequently denied the plaintiffs’ petition for permission to appeal.

Defended SK Group in numerous investments and acquisitions. Among our publishable accomplishments:

• Advised Korea-based SK E&S Co., Ltd., a global leader in clean energy solutions, on its up to US$400 million equity investment in REV Renewables, LLC, an LS Power company focused on the development, acquisition and operation of renewables and energy storage.
  
  
• Advised SK Innovation in its investment in Amogy Inc., a pioneer of ammonia power solutions. O’Melveny represented SK Innovation as the lead investor in the US$139 million Series B-1 financing of Amogy, Inc. SK Innovation’s investment in this round was $50 million. This follows SK Innovation’s initial $30 million investment in Amogy in July 2022.

Helped SK hynix Inc. (formerly Hynix Semiconductor) obtain a favorable settlement in long-running patent and antitrust litigation with Rambus, Inc. The 13-year dispute involved litigation on two continents, in multiple trial courts (with trials in state and federal courts), multiple appellate proceedings (in state and federal appeals courts) and litigation before multiple agencies, including the US Federal Trade Commission, European Commission, International Trade Commission, US Patent & Trademark Office, European Patent Office, and several European courts. The stakes were huge and included a one-time jury verdict for hundreds of millions of dollars (since vacated by O’Melveny on appeal) and a US$12 billion antitrust claim against SK hynix and other memory companies defeated by O’Melveny at trial. A seminal decision came from the Federal Circuit, with O’Melveny winning reversal of a judgment in favor of Rambus and ultimately an order imposing US$250 million in sanctions against Rambus for destruction of evidence before trial, one of the largest sanctions awards in US history. The sanctions led to a settlement resolving all claims in the hard fought global battle.