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Antitrust Institute 2016: Developments & Hot Topics


Speaker(s): Daniel G. Swanson, Harvey I. Saferstein, Harvey M. Applebaum, Heather S. Nyong’o, Holly A. House, Juan A. Arteaga, Lisl J. Dunlop, Michael Lawrence, Patricia A. Conners, Robert P. Taylor, Saul P. Morgenstern, Stuart N. Senator, Theodore L. Banks, William H. Efron, Yvonne S. Quinn
Recorded on: May. 4, 2016
PLI Program #: 148984

Juan A. Arteaga

Juan A. Arteaga is the Chief of Staff and Senior Counsel to the Assistant Attorney General for the U.S. Department of Justice’s Antitrust Division.  His responsibilities include overseeing civil merger and conduct investigations as well as advising the Assistant Attorney General, Deputy Assistant Attorneys General and Director of Litigation on various investigations, litigations and policy matters.  Since joining the Antitrust Division in September 2013, Juan has served as a senior trial attorney and advisor on various merger litigations as well as high-priority conduct and merger investigations.  Prior to joining the Antitrust Division, Juan was a litigation counsel in the New York office of Simpson Thacher & Bartlett LLP, where his practice focused on antitrust litigation, securities litigation, international arbitrations and government and internal investigations.  Juan is a graduate of Columbia Law School, where he was a Harlan Fiske Stone Scholar and managing editor of the Columbia Law Review.


Bob Taylor is the founder and owner of RPT Legal Strategies PC in San Francisco and Palo Alto, providing legal and business advice to companies and investors with respect to all aspects of intellectual property and related fields of endeavor.  He also serves as a Venture Advisor to New Enterprise Associates and as a patent law expert for the National Venture Capital Association.

For more than 30 years, Bob focused primarily on intellectual property litigation, serving as lead trial counsel and/or appellate counsel in dozens of patent, copyright, trade secret and antitrust cases involving a wide range of technologies and industries.  He is a Fellow of the American College of Trial Lawyers,  a former chair of the Antitrust Section of American Bar Association, and a Lifetime Member of the American Law Institute.

Bob has written and lectured extensively on the business and legal problems associated with both intellectual property protection and the laws related to competition.  He served for several years as the co-chair of the Antitrust Committee of Intellectual Property Owners Association and also as a Member of IPO’s Amicus Committee.  Bob also served as a member of the 1992 Commission on Patent Law Reform.

Bob holds a J.D degree from Georgetown University Law Center and was a member of the editorial board of the Georgetown Law Journal.  He holds a B.S.E.E degree from the University of Arizona and was elected to Tau Beta Pi. 


Heather S. Nyong’o leads WilmerHale's California cartel practice, part of the firm's internationally recognized Antitrust and Competition Group. She has represented numerous multinational corporations and executives in cross-border criminal and civil antitrust investigations and litigation. Most recently this includes obtaining an acquittal for client Rohan Ramchandani, a former London-based foreign exchange trader who faced a sentence of up to 10 years in prison had he been convicted on criminal antitrust charges.

In 2018, Chambers USA recognized Ms. Nyong'o with band 3 rankings in both the California Antitrust and Nationwide Cartel categories. She was also recognized by Chambers Global and Legal 500 for her antitrust work. Ms. Nyong’o is included in the most recent Women in Antitrust list published by Global Competition Review, and has been acknowledged as Attorney of the Year by The Recorder in 2012, received a California Lawyer Attorney of the Year (CLAY) Award for corporate antitrust in 2013, was recognized as one of the Top Women Lawyers by the Daily Journal in 2014 and 2016, and was named Litigator of the Week by GCR USA for her defense work in 2014.

Ms. Nyong’o joined the firm in 2014 after serving as a trial attorney in the Antitrust Division of the US Department of Justice in San Francisco, where she handled some of the most significant investigations and criminal prosecutions brought by the agency in recent years.


 


Holly House is an Antitrust and Competition partner in the Litigation Department of Paul Hastings. Her practice focuses on antitrust and trade regulation matters as well as complex commercial disputes. Ms. House has successfully represented premier clients as both plaintiffs and defendants in myriad types of commercial, intellectual property and class action disputes, including at several notable trials.

Ms. House is the past chair of the California State Bar’s Antitrust and Unfair Competition Law Section. For the past five years, she has been selected one of the "Top 250 Women in Litigation" nationwide, one of the top 50 women lawyers in Northern California, and a national and local "Litigation Star." She also has been honored as one of the "Top 100 California Women Lawyers” by the Daily Journal every year since 2010, one of the Best Lawyers in America since 2005, and a Northern California “Super Lawyer” since this peer award was first offered. Ms. House has also repeatedly been named one of the top antitrust lawyers in the United States by Chambers USA, where sources single her out as “a reliable and responsive, business-savvy practitioner” and "a long-standing, diligent antitrust attorney -- she commands great respect."

Accolades and Recognitions

  • Benchmark Litigation, Top 250 Women in Litigation (2013–2016)
  • Benchmark Litigation, Local Litigation Star, California (2013–2016)
  • Benchmark Litigation, National Litigation Star (2017)
  • Top (100) Women Lawyers/Top 75 Women Litigators, Daily Journal (2010–2015)
  • Top 50 Women Lawyers, Northern California, Super Lawyers (2011, 2012, 2015, 2016)
  • Best Lawyers in America, leading lawyer in Litigation - Antitrust Law (2005–2016)
  • Chambers USA, leading lawyer in Antitrust (California) (2004, 2007, 2009–2016)
  • Global Competition Review: Who's Who Legal: Leading Practitioner Competition (2016)
  • Super Lawyers, Northern California (2004–2015)
  • Oracle v. SAP — Top Plaintiff Verdict, Daily Journal (2011)
  • Super Lawyers Corporate Counsel Edition, Top Attorney in Corporate Litigation (Antitrust) (2009)
  • PLC Cross-Border Competition and Leniency Handbook, prominent practitioner in the antitrust field (2007–2009)

Professional and Community Involvement

  • Bar  Association of San Francisco, Chair – Complex Litigation Executive Committee (2016–2017); Vice-Chair (2015–2016); Secretary (2014–2015)
  • San Francisco Intellectual Property Law Association – Board Director (2015–2016)
  • Adviser, State Bar of California’s Antitrust and Unfair Competition Section (2005–present)
  • Chair of Executive Committee, State Bar of California’s Antitrust and Unfair Competition Section (2004–2005)
  • First vice chair, vice chair (Golden State Institute), secretary-treasurer and editor of Competition, Executive Committee, State Bar of California’s Antitrust and Unfair Competition Section (past)
  • ABA Antitrust Section


Lisl J. Dunlop, Partner, Axinn: A partner in Axinn’s New York office, Lisl Dunlop has more than twenty-five years of experience in antitrust and competition issues, including counseling, litigation, and transactions.

Lisl guides clients through the antitrust-related aspects of mergers and acquisitions, joint ventures and other combinations, and sales and distribution matters. She also represents clients in antitrust agency investigations, and has represented major corporations in complex antitrust litigations.


 


Michael Lawrence is an antitrust lawyer with extensive in-house experience at high-tech companies. He has regularly focused on the intersection of intellectual property and antitrust law. Mr. Lawrence is Senior  Competition Counsel at Google Inc. From 2005 to 2011, he was a competition attorney at Intel Corporation. Before that, he spent most of his legal career at Latham & Watkins where he specialized in intellectual property, antitrust and commercial litigation. Outside of his professional work, Mr. Lawrence taught Intellectual Property as an adjunct professor at Loyola Law School from 2003 to 2005. He also served as Editor-in-Chief of Antitrust and Intellectual Property, a publication of the ABA Section of Antitrust Law, from 2005 to 2007.

Education

J.D., cum laude, Georgetown University Law Center

B.A., summa cum laude, University of California, Los Angeles

University of Sussex, Brighton, England


Patricia Conners is Chief Associate Deputy Attorney General under Florida Attorney General Ashley Moody, overseeing the Antitrust, Complex Enforcement, Consumer Protection, Lemon Law Arbitration and Civil Rights Divisions as well as other things. She was the supervising attorney in the state's lawsuit against BP and others arising from the Deepwater Horizon oil spill disaster as well as the supervising attorney representing Florida in the multistate negotiations with the five major mortgage servicers over various issues arising from the foreclosure crisis, among other significant complex enforcement matters.

In addition to her general management responsibilities, Ms. Conners continues to serve as the Director of the Antitrust Division for the Attorney General's Office, where, since 1995, she has been responsible for implementing and overseeing the Attorney General's state and federal antitrust enforcement efforts.

She is board-certified in Antitrust and Trade Regulation by the Florida Bar and is a past chair of the Antitrust and Trade Regulation Certification Committee of the Florida Bar. She is also active in the Antitrust Law section of the ABA, where she has held a variety of leadership positions.

She was Chair of the NAAG Multistate Antitrust Task Force from 2001 to 2005, a position through which she coordinated multistate antitrust enforcement efforts and developed and ensured the implementation of policy related to Task Force initiatives.

Ms. Conners received both her undergraduate and J.D. degrees from the University of Florida.


Saul P. Morgenstern is a partner in the law firm of Arnold & Porter Kaye Scholer LLP, where he represents clients across a broad spectrum of industries in complex antitrust and other commercial disputes before a wide variety of jurisdictions within and outside of the US.  He also advises US and global companies with respect to antitrust compliance, designing and executing industry- and client-specific compliance training for both inside counsel and business personnel, and regularly counsels clients on the antitrust implications of business combinations, trade association activities, distribution and pricing programs and other aspects of competitor and customer relations.

Chambers USA, Chambers Global, Global Competition Review and Legal 500 have ranked Saul among the top antitrust lawyers in New York and nationally, and LMG Life Sciences has named him a “Life Sciences Star” multiple times.  He was named a Law 360 Antitrust MVP in 2017, and a National Law Journal M&A and Antitrust Trailblazer in 2015.  Mr. Morgenstern has served as a member of the Executive Committee and Section Chair of the New York State Bar Association Antitrust Section, and as Vice-Chair of several committees of the American Bar Association Antitrust Section.  He speaks and writes regularly on antitrust and compliance issues facing US and multi-national businesses, and has served as Co-Chair of this PLI Annual Antitrust Program for a number of years.

Mr. Morgenstern also maintains an active pro bono practice, principally focusing on children’s and family issues, representing children, parents and organizations to advance education access and address related issues facing disadvantaged and disabled students and communities.  He holds a J.D., with distinction, from Hofstra University and a B.S. from Boston University.


Theodore L. Banks (Ted) is a partner in the firm of Scharf Banks Marmor LLC in Chicago, where his practice concentrates on compliance, general corporate, and antitrust matters.  He is also President of Compliance & Competition Consultants, LLC, a firm devoted to assisting corporations in development of effective and efficient programs in the areas of corporate compliance, internal investigations, and records management. 

He currently serves as a compliance monitor on behalf of the Federal Trade Commission and the Competition Bureau of Canada, monitoring the compliance programs of United Airlines, Air Canada, McKesson Corp., and Staples, Inc.   He is also an Associate Adjunct Professor of Law at Loyola University (Chicago) School of Law, where he teaches corporate compliance in the J.D., M.J., and L.L.M. programs.

Before entering private practice, he served as Chief Counsel & Senior Director, Global Compliance Policy, at Kraft Foods in Northfield, Illinois.  During his career at Kraft, his responsibilities also included supervision of complex litigation, negotiation of major corporate transactions, global records management, antitrust, and supervision of computer applications used in the Corporate and Legal Affairs Department.   He was responsible for automating the activities of the Law Department, and, among other accomplishments, created one of the first client-facing intranets in the country.  He directed many substantial corporate transactions, including the $19 billion acquisition of Nabisco by Kraft.  He successfully managed several antitrust cases as a plaintiff, where the company was able to recover substantial sums outside of the class action context.

Ted is a graduate of Beloit College (B.A. Government) and the University of Denver Sturm College of Law, where he served as Editor-in-Chief of the Denver Journal of International Law and Policy.

Ted has written numerous articles on antitrust, compliance, and legal automation topics. He co-edited the Corporate Legal Compliance Handbook, published by Aspen/Wolters-Kluwer, and his multi-volume treatise, Distribution Law: Antitrust Principles and Practice, also published by Aspen/Wolters-Kluwer, is now in its second edition.  He is also the author of the chapter on antitrust compliance in the Antitrust Adviser, published by Thomson Reuters.  He was a chapter author and one of the editors of the Antitrust Compliance Handbook, published by the ABA Section of Antitrust Law. In the ABA Cybersecurity Handbook, he wrote the chapter on cybersecurity for small businesses (and small law firms). He has been recognized as a “Super Lawyer,” as one of the “Attorneys Who Matter,” and one of 50 “Governance, Risk & Compliance Trailblazers and Pioneers. He is a frequent speaker at professional education programs, where he strives not to bore the attendees too much.


Harvey heads up the legal department of this 80-year-old national distributor of headwear and bags for the sporting and promotional goods industry.  His practice focuses on antitrust and price discrimination issues as well as arbitration and litigation. He also covers matters arising in the trademark and copyright arena. Harvey also teaches a course in advertising law at UCLA Law School.

Harvey received a Bachelor of Arts degree in English Literature  from the University of California at Berkeley in 1965, and a Juris Doctor degree from Harvard  University School of Law in 1968. Prior to joining Sportsman in 2017, Harvey was a partner in various law firms in Los Angeles, including Munger Tolles & Olson, Irell & Manella, Fried Frank, Chadbourne & Parke, and Mintz Levin.

Harvey  speaks and writes frequently on trade regulation issues as well as legal ethics involving the State Bar of California, where Harvey was President, and the Federal Trade Commission, where Harvey served as a Regional Director and an Assistant to Federal Trade Commissioner Elman.


Daniel G. Swanson is a partner in Gibson, Dunn & Crutcher LLP, with offices in Los Angeles and Brussels. Mr. Swanson, who co-chairs Gibson Dunn’s Antitrust and Competition Practice Group, is a trial and appellate lawyer.  His practice focuses on antitrust and competition law, including trial and appellate litigation, class actions, grand jury and civil investigations, merger review, regulatory and competition policy matters, and antitrust counseling.  He is Co-Chair of the International Bar Association’s Antitrust Section, which is the world’s largest organization of international antitrust practitioners.  In addition to antitrust matters, Mr. Swanson has handled a wide variety of commercial litigation disputes.

Mr. Swanson graduated magna cum laude from Harvard Law School and holds a Ph.D. in economics from Harvard University, where he was a Harvard Teaching Fellow.  He is a member of the California and Brussels Bars, and is a solicitor of England and Wales and the Republic of Ireland.  He is admitted to practice before the U.S. Supreme Court, the Federal Circuit and the Second, Third, Fourth, Fifth, Sixth, Ninth and Tenth Circuits.

Chambers USA gives Mr. Swanson a “Band 1” ranking and reports that he “has a vast amount of antitrust expertise covering everything from merger investigations to civil and criminal litigation” and describes him as “a highly regarded trial lawyer with a wealth of experience” and as “a ‘tough opponent’ in civil and criminal litigation, alleged cartel matters and IP-related issues.”  WHO’S WHO LEGAL comments that “Daniel Swanson is a leading competition litigator whose ‘economics PhD is part of what makes him an outstanding attorney,’” and who “scores very highly for his ‘tenacious and persuasive’ litigation practice across a wide range of competition matters.”  THE LEGAL 500 places him in a small group of Leading Lawyers for U.S. antitrust and class action litigation.  BENCHMARK LITIGATION GUIDE ranks Mr. Swanson as an Antitrust “National Star” and as a California “Litigation Star.”  He has repeatedly been named Best Lawyers’ “Lawyer of the Year” for Antitrust Litigation in Los Angeles, most recently for 2020.

Mr Swanson has litigated dozens of Sherman Act Section 2 monopolization and dominance cases—including so-called “bet the company” cases—based on a wide range of alleged conduct (e.g., exclusive dealing, refusals to deal, tying, bundling), including defeating the landmark predatory pricing case brought by the Department of Justice, United States v. AMR Corp., 140 F. Supp. 2d 1141 (D. Kan. 2001), aff’d, 335 F.3d 1109 (10th Cir. 2003).  For many years, he has given the annual lecture on monopoly law for the Practicing Law Institute’s Annual Developments in Antitrust Law program.  Mr. Swanson’s practice has a strong focus on the tech sector, network industries, digital platforms, and media and entertainment businesses.  He regularly handles antitrust matters involving patents, copyrights and other intellectual property rights and was asked to testify about standard setting in the DOJ-FTC Joint Hearings regarding Competition and Intellectual Property Law and Policy.  He is the author (with Prof. William J. Baumol) of Reasonable and Nondiscriminatory (RAND) Royalties, Standards Selection, and Control of Market Power, 73 ANTITRUST L.J. 1 (2005) and The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, 70 ANTITRUST L.J. 661 (2003), on which the U.S. Supreme Court relied in Illinois Tool Works v. Independent Ink, 547 U.S. 28 (2006).  Mr. Swanson has also served as a Non-Governmental Advisor (NGA) to the ICN Unilateral Conduct Working Group in its work focused on monopolization and dominance law.

 


Harvey Applebaum is a senior counsel in Covington & Burling's Antitrust and International Trade Practices. His antitrust and consumer protection practice includes Department of Justice and FTC investigations and litigation, both civil and criminal;
private antitrust litigation; and a diverse counseling practice, including distribution, price discrimination, competitor arrangements, mergers and joint ventures, intellectual
property, and trade associations.

Mr. Applebaum's international trade practice involves International Trade Commission, Commerce Department and U.S. Trade Representative proceedings under the antidumping and countervailing duty laws, Section 201 of the Trade Act and other trade laws, and WTO and NAFTA dispute matters. He also has an active practice in customs law matters, including classification, valuation, foreign origin, compliance reviews, NAFTA, and penalty proceedings. He has been regularly involved in trade law and customs law judicial appeals.

Mr. Applebaum is a former Chairman of the American Bar Association Antitrust Law Section, was the first Chairman of the Editorial Board of ABA Antitrust Law Developments, was Chairman of the Section's Robinson-Patman Act Committee, and has been a member of several Antitrust Section task forces. 

Mr. Applebaum conducted an antitrust practice seminar at Virginia Law School for over fifty years. He has written numerous articles on antitrust law and international trade law subjects. He has participated regularly in continuing legal education seminars and programs and has regularly chaired programs on antitrust and trade law topics. For example, he speaks regularly on the Robinson-Patman Act at the PLI Annual Antitrust Institute in New York

 


William H. Efron is the Director of the Federal Trade Commission's Northeast Regional Office. He previously served as Acting Regional Director from March 2012 to June 2012. Prior to joining the FTC in 2009, Mr. Efron was an associate at Simpson Thacher & Bartlett LLP.  He received his J.D. from the University of Virginia School of Law and his B.A. from the University of Pennsylvania.


Yvonne Quinn is a member of the Firm’s Litigation Group and one of two partners in charge of coordinating the Firm’s Antitrust Group. Her practice focuses on antitrust litigation, merger analysis and review, and counseling work.

Ms. Quinn’s clients include leading commercial banks, equity funds, investment banks, insurance companies, cable television operators, television programming suppliers, newspapers, publishers, sports franchise owners, advertising sales and healthcare companies, pharmaceutical and chemical companies, and many others.

Ms. Quinn has been a co-chair of the Practising Law Institute’s Annual Antitrust Law Institute in New York since 2001 and has taught the mergers and acquisitions portion of the Institute since 1995. She is a member of the Executive Committee of the Antitrust Section of the New York State Bar Association and a vice chair of the Financial Services Committee of the Antitrust Section of the American Bar Association. From 1989 to 1992, she was the chair of the Antitrust and Trade Regulation Committee of the New York City Bar Association.

Ms. Quinn has been recognized as a leading antitrust practitioner in, among other guides to the legal profession:

  • Benchmark Litigation – National Practice Area Star: Antitrust (2019); Local Litigation Star (2008-2019); Litigation Star (2008-2018); and Top 250 Women in Litigation (2012-2018)
  • Chambers USA (2003-2019)
  • Chambers Global (2003, 2004-2005, 2011-2020)
  • The Legal 500 United States (2007, 2009, 2011-2018)
  • Law Business Research’s The International Who’s Who of Competition Lawyers and The International Who’s Who of Business Lawyers
  • Euromoney’s Guide to the World’s Leading Competition and Antitrust Lawyers (every year since 1998)
  • The Best Lawyers in America (2007-2019)
  • Lawdragon 3000: Leading Lawyers in America (2009-2010) and Lawdragon 500: Leading Lawyers in America (finalist)
  • New York Super Lawyers (2006-2019)

 


Stuart N. Senator

 

· Los Angeles

· T: (213) 683-9528

· Stuart.Senator@mto.com

Practice Areas

· Litigation

· Antitrust

· Professional Liability

Industries

· Legal Services

· Pharmaceuticals

Education

· UC Berkeley School of Law
(J.D., 1989) Order of the Coif
Executive Editor, California
Law Review, 1988-89

· UC Berkeley
(M.A., 1987)

· Princeton University
(A.B., cum laude, 1984)

Clerkships

· Judge Charles E. Wiggins,
U.S. Court of Appeals, Ninth Circuit, 1989-1990

Bar Admissions

· California

Stuart N. Senator is a litigation partner in the Los Angeles office of Munger, Tolles & Olson LLP. His practice focuses primarily on complex business litigation in trial and appellate courts. Mr. Senator’s clients include a diverse group of national and international companies, and his major areas of practice include antitrust, unfair competition, legal malpractice/malicious prosecution and law firm ethics and conflicts of interest.

Mr. Senator provides antitrust counseling and compliance advice on numerous subjects, including distribution practices, pricing, trade association activity and mergers. Mr. Senator has also been an invited presenter at various professional conferences regarding antitrust issues. In addition to his work for clients, Mr. Senator is General Counsel to the firm, advising on issues relating to legal ethics and law firm management.

Community Service/Pro Bono

Mr. Senator is active in community affairs and pro bono matters. He has been a trustee of the Santa Monica Mountains Conservancy Foundation, a director of Menorah Housing Foundation and a trustee of the California State Parks Foundation.

In 2010, Mr. Senator received the Social Justice Award from the American Civil Liberties Union for his work in leading litigation to protect farm workers from unsafe work conditions. In 2013, Mr. Senator received Public Counsel’s Pro Bono Award for Impact Litigation for his continued work on this issue. Mr. Senator has also received the Western Law Center For Disability Rights' Pro Bono Award for leading litigation to further the rights of individuals with disabilities.

Key Representations

  • Solvay Pharmaceuticals in the United States Supreme Court in the recent FTC v. Actavis case, in which the Court determined the appropriate level of antitrust scrutiny for so-called “reverse payment” settlements of pharmaceutical patent litigation and rejected the FTC’s proposed presumption of illegality for those settlements.
  • Shell Oil Company in defense of antitrust challenges to gasoline pricing and joint ventures, including obtaining a unanimous decision of the United States Supreme Court in Shell's favor.
  • AbbVie Inc., formerly Abbott Laboratories, in:
    • Multiple class actions and litigation by a competitor, alleging predatory pricing of HIV drugs.
      • Obtained a defense verdict at a jury trial on the competitor’s antitrust claims for $1.7 billion in damages, which was recognized by the Daily Journal as one of the top verdicts of 2011.
      • Obtained ruling from U.S. Court of Appeals for the 9th Circuit in the indirect purchaser class action that Abbott pricing was not actionable under the antitrust laws.
    • Government investigations and multi-district civil class action litigations alleging that settlements of patent litigation violated federal and state antitrust laws.
      • Obtained precedential decision from 11th Circuit rejecting per se rule and articulating standard for analysis of patent settlements under antitrust laws.
      • Obtained appellate decision vacating district court’s certification of class of direct purchasers.
      • Obtained defense verdict in a jury trial on all claims of a non-settling defendant, affirmed by 9th Circuit in a decision cited by Law360 as one of 2009’s major decisions in antitrust law.
      • Obtained dismissal of FTC’s first post-Actavis challenge to an alleged “reverse payment” settlement
  • Takeda Pharmaceuticals in defense of class action and private litigation alleging violation of the antitrust laws from a pharmaceutical intellectual property settlement agreement.
  • LG Display in defense of class action and individual antitrust cases stemming from allegations of price-fixing among manufacturers of LCD panels.Certain of the cases have now been successfully resolved on behalf of LG Display and others remain pending.
  • United Farm Workers and individual farm workers in litigation that resulted in Cal/OSHA’s increased oversight of agriculture employers’ provision of shade, water and rest breaks for farm workers who pick crops in sweltering heat.
  • International, national and local law firms in defending legal malpractice claims.
  • International, national and local law firms in defending against disqualification motions.