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Antitrust Institute 2017: Developments & Hot Topics


Speaker(s): Daniel G. Swanson, Gil Ohana, Harvey M. Applebaum, Heather S. Nyong’o, Holly A. House, Jeffrey Martino, Lisl J. Dunlop, Patricia A. Conners, Robert P. Taylor, Saul P. Morgenstern, Theodore L. Banks, William H. Efron, Yvonne S. Quinn
Recorded on: Apr. 17, 2017
PLI Program #: 185248

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 serves as a Venture Advisor to New Enterprise Associates and as a patent law expert for the National Venture Capital Association.  He also serves on the advisory boards of the Alliance of U.S. Startups and Inventors for Jobs (“USIJ”) and the United States Intellectual Property Alliance (“USIPA”), both groups advocating strongly for reliable and enforceable patent rights.

For more than 40 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 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 served as a member of the 1992 Commission on Patent Law Reform.  He is a former chair of the Antitrust Section of the American Bar Association, a former Patent Examiner, and a long-time member of the Institute of Electrical and Electronics Engineers.

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.  He served in the U.S. Army and worked as an engineer for Motorola and for Bell & Howell before attending law school.


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.


Gil Ohana is Senior Director, Antitrust and Competition for Cisco Systems, the leading manufacturer of networking equipment for the Internet. Gil regularly advises Cisco on antitrust issues relating to mergers and acquisitions, joint ventures, standard setting, distribution, intellectual property licensing, and government investigations, and government and private litigation. Gil writes and speaks regularly on antitrust issues in mergers and acquisitions, as well as IP licensing, standard-setting, antitrust issues in patent litigation, and other subjects at the intersection of antitrust and intellectual property law. He has participated in discussions of standards development organization IPR policies at leading SDOs such as ANSI, ETSI, IEEE-SA, and IETF.

From 1993 through 1996, Gil was a trial attorney with the Antitrust Division of the U.S. Department of Justice, where he participated in the Division's investigation of Microsoft's software licensing practices and its successful court challenge to Microsoft's proposed acquisition of Intuit.

Gil received his law degree from Columbia University, where he was articles editor of the Law Review, and his B.A. from Harvard College. He is admitted to the bars of California and the District of Columbia.


Heather S. Nyong’o is Partner-in-Charge of WilmerHale’s San Francisco office. She 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. Ms. Nyong’o’s nearly 20 years in the white collar and antitrust space includes a tenure in the Antitrust Division of the US department of Justice (DOJ).

Ms. Nyong’o is widely known for her trial work: Diversity Journal included her in its 2017 “Women Worth Watching” list; Daily Journal named her a Top Antitrust Lawyer in 2020 and featured her as one of the Top Women Lawyers in 2014 and 2016; in 2014 GCR USA named her Litigator of the Week for her defense work; and The National Law Journal featured her as an M&A and Antitrust Trailblazer in 2018, and a Litigation Trailblazer and a Winning Litigator in 2019. Chambers USAChambers Global and The Legal 500 United States consistently rank Ms. Nyong’o as a highly regarded lawyer. Chambers USA describes Ms. Nyong’o as a “criminal antitrust expert” and “very talented trial lawyer” who is “absolutely brilliant” and knows “how the Antitrust Division thinks.” A client states, “Her unmatched knowledge, skills and abilities helped us win the case."

Ms. Nyong’o won the Attorney General’s Award during her time at the DOJ, the DOJ’s second highest honor. While there, she handled the most significant investigations and criminal prosecutions that the agency had brought in recent years. After her trial attorney success at the DOJ, Ms. Nyong’o joined WilmerHale in 2014.

Known as a leader in her field of law, notable thought leadership organizations often ask Ms. Nyong’o to lead antitrust and trial panels at their sponsored events. Examples are: the American Bar Association (ABA), GCR Live, Practicing Law Institute, Golden State Institute and the National Institute on White Collar Crime. Ms. Nyong’o is a Fellow of the Litigation Counsel of America – Trial Lawyer Honorary Society. She also vice chairs the Cartel and Criminal Enforcement Committee for the ABA and is a member of the ABA’s International Task Force. She advises the California Lawyer’s Antitrust, Unfair Competition, and Privacy Executive Committee. The California State Bar and Westlaw’s Journal of Competition appointed Ms. Nyong’o as its editor-in-chief for two 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.


 


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 Morgenstern is a senior antitrust and litigation lawyer at Arnold & Porter Kaye Scholer LLP, resident in the New York Office.  He counsels and represents US and global companies across a broad spectrum of industries in complex antitrust and other commercial matters, class actions and multijurisdictional litigation before US federal and state courts, international arbitral tribunals, and in US government, state and foreign investigations. Saul also advises clients with respect to the antitrust implications of mergers, acquisitions, joint ventures, trade association activities, distribution and pricing programs and other aspects of competitor and customer relations. 

Saul is ranked as a leading antitrust practitioner by both Chambers Global and Chambers USA, listed by Legal 500 for Cartels and Civil and Class Action litigation, and was a 2017 Law360 Competition MVP, and in 2020 received the William T. Lifland Award for contributions and accomplishments in the field of antitrust from the New York State Bar Association Antitrust Law Section.  Saul speaks and writes regularly on antitrust and compliance issues facing US and multi-national businesses, and has co-chaired the Practising Law Institute's two-day annual Antitrust Law Institute for several years.  He received his J.D. with distinction from the Hofstra University School of Law in 1982, and his B.S. from Boston University in 1974.


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.


William H. Efron is the Director of the Federal Trade Commission’s Northeast Regional Office.  On behalf of the FTC’s Bureau of Competition, he oversees merger and conduct investigations and litigations.  On behalf of the FTC’s Bureau of Consumer Protection, he oversees investigations and litigations involving unfair, deceptive and fraudulent practices.  Prior to joining the FTC, 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 is continuing her more than 40 year career as an antitrust lawyer as a Retired Partner/Of Counsel of Sullivan & Cromwell LLP.  During those 40 plus years, Yvonne has advised companies on acquisitions in a wide variety of industries, including banking and other financial services, newspapers, magazines, pharmaceutical companies, book publishers and cable television programming.  In addition, she has also handled both civil and criminal antitrust cases such as those resulting from the FX controversies of the last decade.

Yvonne earned her law degree and a master’s degree in economics from the University of Michigan and began her career as a young associate on IBM’s defense against the government and private Section 2 cases that were pending in the late 1970s and then jumped to Sullivan & Cromwell in 1980.


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

 


In January 2014, Jeff Martino became Chief of the New York Office. He rejoins the Division after serving for three years in the U.S. Attorney’s Office, District of Arizona. While there, Martino served first as an Assistant U.S. Attorney, during which time he conducted eight jury trials and numerous pretrial hearings in complex matters. He then was appointed Chief of the office’s Financial Crime and Public Integrity Section, where he supervised the investigation and/or prosecution of more than 200 individuals and corporations. Martino started his career in the Antitrust Division’s New York Office in 2002 where he helped prosecute more than 50 individual and corporate defendants, including in U.S. v. Yaron et al.; U.S. v. McDonald et al.; and U.S. v. General Linen et al. In 2011, Martino received an Assistant Attorney General Award.