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Antitrust Litigation

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Overview

Kellogg Hansen is among the nation’s premiere law firms in the areas of antitrust litigation and enforcement. It is no exaggeration that the firm’s cases have reshaped the substantive and procedural law of antitrust over the last two decades. Our precedent-setting appellate victories include Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Pacific Bell Tel. Co. v. Linkline Communications, Inc., 555 U.S. 438 (2009); American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013).

At the trial level, Kellogg Hansen has secured both the largest and second largest antitrust verdicts and defended those verdicts on appeal. See In re Urethane Antitrust Litig., 768 F.3d 1245 (10th Cir. 2014) (affirming $1.2 billion price-fixing verdict); Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002) (affirming $1.05 billion monopolization verdict), cert. denied, 537 U.S. 1148 (2003). We have also obtained many large settlements and successfully defended against similarly large antitrust claims.

Noteworthy Representations

Kellogg Hansen attorneys currently represent American Express in the Supreme Court’s most significant Rule of Reason antitrust case in two decades. Ohio v. American Express Co., No. 16-1454 (U.S.). 

Kellogg Hansen partner Derek Ho is currently serving as co-lead counsel for the plaintiffs in a major antitrust litigation against the two leading providers of dealer management systems, CDK Global, LLC and The Reynolds & Reynolds Company.  Kellogg Hansen attorneys have spearheaded the investigation of the core claims in this antitrust litigation.  In 2017, Global Competition Review named partners Derek Ho, Michael Nemelka, and Aaron PannerLitigators of the Week” for successfully obtaining a rare preliminary injunction on behalf of their client, Authenticom, Inc. In re Dealer Management Systems Antitrust Litigation, MDL No. 2817 (N.D. Ill.).

Kellogg Hansen attorneys represent Viamedia Corporation in an antitrust suit alleging unlawful tying and exclusive dealing in the local cable advertising representation market. The Court has denied Comcast’s motion to dismiss and the parties have completed discovery. Viamedia Inc. v. Comcast Corp., No. 16-cv-05486 (N.D. Ill.).

Kellogg Hansen attorneys represent Veeva Systems Inc. in antitrust claims against IQVIA Inc. and IMS Software Services Ltd. (IQVIA). Veeva is alleging that IQVIA is abusing its monopoly power as the dominant provider of data products for life sciences companies to suppress competition and prevent life sciences companies from using Veeva’s competing data and software products. IQVIA Inc. and IMS Software Services Ltd. v. Veeva Systems Inc., No. 17-cv-00177 (D.N.J.).

Kellogg Hansen attorneys represent a corporate client and the direct purchaser class. In re Lithium Ion Batteries Antitrust Litigation, No. 13-md-02420 (N.D. Cal.).

Kellogg Hansen attorneys successfully represented six corporate class representative clients, including Dial Corporation and other plaintiffs in this Sherman Act monopolization case involving in-store promotions. On the first day of trial, Kellogg Hansen attorneys secured a settlement of $250 million and significant injunctive relief for both their clients and the certified class of 699 consumer product goods companies. The American Antitrust Institute named Kellogg Hansen a 2017 Antitrust Enforcement Awards honoree for “Outstanding Antitrust Litigation Achievement in Private Law Practice” for their representation in this case. Dial Corp. v. News Corp., No. 13-cv-06802 (S.D.N.Y.). 

Kellogg Hansen attorneys served as court-appointed co-lead class counsel on behalf of a class of direct purchasers that included all the major automakers as well as a number of other Fortune 500 companies in a proposed class action alleging several manufacturers colluded to inflate steel prices. After defeating a motion to dismiss and persuading the court to certify a class, the claims were settled for approximately $194 million in the aggregate. In re Steel Antitrust Litigation, No. 08-cv-5214 (N.D. Ill.).

The court of appeals affirmed, on interlocutory appeal, certification of a class of direct purchasers of containerboard products claiming that manufacturers colluded to suppress supply and increase prices. International Paper Co. recently agreed to pay $354 million to settle the class action. Kellogg Hansen attorneys argued the case and represented purchaser respondents. Kleen Products LLC v. International Paper Co., 831 F.3d 919 (7th Cir. 2016), cert. denied, 137 S. Ct. 1582 (2017). 

Kellogg Hansen attorneys successfully defended Verizon Wireless against a multi-billion dollar price-fixing suit, winning summary judgment and affirmance on appeal and taking the lead in briefing and argument on behalf of all defendants. In re Text Messaging Antitrust Litigation, 782 F.3d 867 (7th Cir. 2015).

In one of the few antitrust class actions to go to trial, Kellogg Hansen attorneys served as co-lead trial counsel for a class of direct purchasers in a four-week jury trial in 2013 alleging price fixing by the Dow Chemical Company. The jury ultimately rendered a $1.2 billion verdict, the largest antitrust verdict in U.S. history. The verdict was upheld on appeal at the circuit level, and the case settled while under review by the Supreme Court. In its final approval order, the District Court wrote: “[i]n almost 25 years of service on the bench, this Court has not experienced a more remarkable result.” In re Urethane Antitrust Litigation, MDL No. 1616 (D. Kan. 2013). 

In a major Supreme Court antitrust arbitration victory, Kellogg Hansen attorneys argued successfully for American Express that the Federal Arbitration Act does not permit courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of federal antitrust claims. American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013). 

Kellogg Hansen attorneys argued successfully that the district court judgment granting defendants’ motion to dismiss for failure to state a claim under § 1 of the Sherman Act, 15 U.S.C. § 1, be vacated and remanded. Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162 (2d Cir. 2012), cert. denied, 568 U.S. 1087 (2013). 

Kellogg Hansen attorneys were retained by AT&T Inc. to serve as lead trial counsel in the Department of Justice lawsuit to enjoin the merger of AT&T Inc. and T-Mobile USA, Inc. United States v. AT&T Inc., T-Mobile USA, Inc., and Deutsche Telekom AG, No. 11-01560 (D.D.C.). 

Kellogg Hansen attorneys won reversal of a Ninth Circuit “price squeeze” decision, overturning 60-year-old precedent, and persuaded the Supreme Court to adopt a broad ruling that, in the absence of a duty to deal, a wholesale monopolist has no obligation to avoid setting prices that disadvantage downstream rivals. Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555 U.S. 438 (2009). 

Kellogg Hansen attorneys represented classes of California, Kansas, New York, and Wisconsin consumers of moist smokeless tobacco in antitrust and related actions against U.S. Smokeless Tobacco, in which the consumers alleged, among other things, that U.S. Smokeless Tobacco engaged in anticompetitive behavior that had the effect of unlawfully raising prices paid by consumers, thereby causing hundreds of millions of dollars in damages. After plaintiffs scored numerous victories on class certification, discovery, and other issues, these matters settled on favorable terms collectively for hundreds of millions of dollars in value for consumers. Smokeless Tobacco Consumer Class Actions (2000-2008). 

Kellogg Hansen attorneys successfully represented AT&T and other telecommunications firms in securing reversal of the Second Circuit ruling and dismissal of antitrust conspiracy claim in the most significant decision on pleading standards in 50 years. This landmark decision established that parallel conduct, absent plausible evidence of agreement, is insufficient to state a claim under § 1 of the Sherman Act. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 

Kellogg Hansen attorneys successfully represented Verizon in a leading case limiting firms’ affirmative obligations to assist competitors under Section 2 of the Sherman Act. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). 

Kellogg Hansen attorneys obtained a jury verdict of $318.75 million for fraud and unfair trade practices arising out of contract negotiations between plaintiff, a high-technology start-up company, and defendant, a major ultrasound company. This was one of the largest unfair trade practices judgments ($180 million collected in a settlement). Volumetrics Medical Imaging, Inc. v. ATL Ultrasound, Inc., No. 01-cv-00182 (M.D.N.C.). 

Kellogg Hansen attorneys represented Conwood in obtaining and defending the largest antitrust verdict ever affirmed on appeal. The jury found that United States Tobacco (UST) abused its monopoly power and awarded Conwood $1.05 billion in damages. UST ultimately paid the entire verdict plus interest after appeals were exhausted. The trial team included now-Supreme Court Justice Neil Gorsuch. Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002), cert. denied, 537 U.S. 1148 (2003).

Kellogg Hansen attorneys represented the plaintiffs in Coordination Proceedings Special Title (Rule 1550(b)) Microsoft I – V Cases. Kellogg Hansen attorneys investigated, drafted, and filed the complaint in Lingo v. Microsoft Corp., No. 301357 (Cal. Super. Ct., San Fran.), which became the lead case against Microsoft in California after consolidation, on February 18, 1999. On January 10, 2003, plaintiffs’ counsel and the class representatives reached an agreement with Microsoft on a settlement, which provided $1.1 billion in monetary benefits to California consumers and municipalities. This settlement is the largest recovery of a monopoly overcharge ever achieved in the United States and the largest recovery ever achieved under California’s Cartwright Act or California’s Unfair Competition Act. Coordination Proceedings Special Title (Rule 1550(b)) Microsoft I – V Cases, J.C.C.P. No. 4106 (Cal. Super. Ct., San Fran.).

Kellogg Hansen attorneys represented a group of industrial copper purchasers in an antitrust action against J.P. Morgan, in which the purchasers alleged that J.P. Morgan participated in a conspiracy to manipulate the worldwide price of copper, thereby causing hundreds of millions of dollars in damages. Plaintiffs successfully opposed a motion for summary judgment, and the matter settled favorably immediately before trial with the clients recovering approximately forty times more than their share of the class recovery against the other defendants in an earlier phase of the litigation. In re Copper Antitrust Litigation, MDL 1303 (W.D. Wis. 2000).

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