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Antitrust Challenges to Settlements of Patent Litigation: What Pharmaceutical Companies Need to Know


Speaker(s): M. Howard Morse, Megan Browdie
Recorded on: Sep. 9, 2016
PLI Program #: 192791

Howard Morse is a partner in the Antitrust & Competition practice group and a member of Cooley's Business department. He joined the Firm in 2010 and is resident in the Washington, DC office.

Mr. Morse regularly represents businesses before the Federal Trade Commission, the Department of Justice, and State Attorneys General, in investigations involving mergers, acquisitions, joint ventures, alleged monopolization, and restraint of trade cases. He also counsels clients on antitrust issues and represents companies in private antitrust litigation.

Mr. Morse has been at the forefront of applying antitrust law to the high-tech sector and the intersection of antitrust and intellectual property law, including issues related to innovation markets, patent pools, standard setting, and settlement of intellectual property litigation.

Before joining Cooley, Mr. Morse served for 10 years at the Federal Trade Commission as deputy assistant director for policy and assistant director of the FTC's Bureau of Competition. At the FTC, he was responsible for more than 50 enforcement actions including Hart-Scott-Rodino civil penalty and merger enforcement actions in the pharmaceutical and medical device industries and in the computer hardware and software industries. Mr. Morse received the FTC's Award for Superior Service for "furthering the Commission's Merger Enforcement Program" and for "advancing the antitrust mission of the Federal Trade Commission in innovation markets and high technology industries."

Mr. Morse has been recognized as a leading antitrust lawyer by Best Lawyers in America, Chambers USA Guide to America's Leading Lawyers, Super Lawyers, Who's Who in American Law, The International Who's Who of Competition Lawyers & Economists and The International Who's Who of Business Lawyers. The Chambers USA 2015 Guide to America's Leading Lawyers says Mr. Morse "is 'both knowledgeable and practical'" and that he is "a well-respected antitrust counselor, particularly experienced in advising hi-tech companies on the intersection between antitrust and IP law."

Representative matters include:

Mergers and Acquisitions

  • Semiconductor equipment manufacturer – obtained clearance for sale of company with promising products expected to become a significant competitor to leading firm, after second request investigation by DOJ.
  • Web-based services – obtained clearance for sale of family history website to leader in the sector after extended investigation by FTC.
  • 3D printer manufacturer – obtained clearance for merger of leading 3D printer manufacturers and acquisitions of other 3D printer manufacturers.
  • Medical device manufacturer – obtained clearance for sale of developer of revolutionary subcutaneous implantable cardiac defibrillator by leading defibrillator manufacturer.
  • Automotive parts manufacturer – obtained clearance for sale of automotive battery business, a transaction that combined two of three leading firms.
  • Various clients – counsel on numerous acquisitions, obtaining clearance without a second request by proactively engaging with antitrust agencies, coordinating global competition filings and reviews in multiple jurisdictions.
  • Encouraging government enforcement – successful in convincing the government to take enforcement action against acquisitions in the computer hardware and software and medical device industries.
  • Counsel to companies acquiring assets required to be divested under government antitrust consent decrees.

Anticompetitive Practices

  • Monopolization litigation – obtained dismissal of monopolization and related claims against NetJets Inc. in McCagg v. Marquis Jet Partners, Inc.
  • Federal investigations – persuaded DOJ to close investigation into practices of specialized and professional accrediting agency, convinced FTC to challenge exclusive dealing by leading competitor of veterinary device manufacturer.
  • State attorneys general investigations – persuaded authorities to close multi-state investigations of alleged group boycott in online brokerage industry and of licensing practices of leading computer software developer.
  • Antitrust counterclaims in patent litigation – successfully asserted antitrust counterclaims in litigation over introduction of the first MP3 player in RIAA v. Diamond Multimedia Systems, Inc.
  • Various pharmaceutical companies – counsel on settlement of patent litigation, including filing notifications under Medicare Modernization Act, and regarding authorized generic drugs.

Consumer Protection Matters

  • Privacy – convinced FTC to close various investigations of privacy practices, negotiated consent agreement for ScanScout, Inc. resolving allegations of deceptive use of Flash cookies.
  • False advertising – obtained favorable settlement for alleged false advertising by leading dietary supplement supplier after establishing efficacy of products.
  • Consumer class actions – defeated class certification in blast faxing litigation in City Lights School, Inc. v. T-MobileUSA, Inc.

Mr. Morse is a member of the American Bar Association Antitrust Section Council and previously chaired the Section's Federal Civil Enforcement, Intellectual Property, Computer Industry and Exemptions & Immunities Committees. Mr. Morse has testified before Congress, the Antitrust Modernization Commission and the DOJ/FTC hearings on Competition and Intellectual Property Law and Policy.

Education

  • Harvard Law School
    JD, 1984, cum laude
  • Dartmouth College
    AB, 1981, summa cum laude

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Megan Browdie is an associate in Cooley's Antitrust & Competition practice group, resident in the firm's Washington, DC office.

Megan advises clients on antitrust issues, including with respect to mergers and acquisitions, compliance with the Hart-Scott-Rodino Act, licensing of intellectual property, and distribution. She has experience in matters before the Department of Justice, Federal Trade Commission, and state attorneys general, as well as in federal court. Megan has worked with clients in a number of industries, including automotive, consumer goods, computer hardware and software, financial services, oil and gas, pharmaceuticals and medical devices, publishing, and telecommunications.

Recent matters include:

  • Bertelsmann – Obtained clearance for Bertelsmann subsidiary Random House's proposed book publishing venture with Penguin, combining the two largest book publishers in the country.
  • Delphi Automotive – Represented Delphi Automotive on US antitrust aspects of mergers and acquisitions, including the company's $727 million sale of its thermal business to MAHLE GmbH.
  • Kodak – Defended Kodak against allegations of illegal tying and monopolization in Collins v. Kodak, which settled on confidential terms. On team that successfully argued for a new standard for implicit (i.e., non-contractual) tying in Sixth Circuit.
  • Millennial Media – Represented Millennial Media, a leading independent mobile advertising and data platform, before the FTC in connection with its acquisition of Jumptap, a mobile advertising platform focused on programmatic and mobile-first approach to reaching audiences.
  • NetScout Systems – Represented NetScout, a provider of performance analytics and operational intelligence solutions for telecommunications service provider and enterprise customers, in obtaining unconditional DOJ clearance of NetScout's proposed $2.6 billion acquisition of the Communications Business of Danaher Corporation. DOJ issued a Second Request but closed its investigation without imposing any remedial conditions on the parties.
  • Qualcomm – Represented Qualcomm in connection with several deals, including sale of its Omnitracs business to Vista Equity and its acquisition of Wilocity.
  • Snyder's-Lance – Represented Snyder's-Lance in obtaining FTC clearance for its acquisition of Snack Factory/Pretzel Crisps.
    • Tesoro – Represented Tesoro before the FTC in nine-month investigation of Tesoro's proposed $1.3 billion acquisition of British Petroleum's Southern California Refining and Marketing business and other related assets. Cooley received both FTC and California AG clearances for Tesoro by proving that the proposed acquisition would not raise gasoline prices or otherwise lessen competition in California, despite the FTC previously blocking several similar refinery acquisitions in California.

Megan is active in the antitrust bar, where she serves as the Young Lawyer Representative to the ABA Antitrust Section's Mergers and Acquisitions Committee. She has spoken on "Recent Developments" for the Health Care and Pharmaceuticals Committee, contributed to the DOJ Civil Antitrust Practice and Procedure Manual, and been published in the Federal Civil Enforcement Committee newsletter. She is also a member of Cooley's DC office pro bono committee.

Megan was recognized by Super Lawyers as a "Rising Star" in antitrust.

Megan graduated from Georgetown University Law Center, where she was the Executive Notes Editor of the Georgetown Journal of Legal Ethics. While attending Georgetown she interned at the Bureau of Competition at the Federal Trade Commission.

Education

  • Georgetown University Law Center
    JD, 2010
  • Case Western Reserve University
    BS Mechanical Engineering, 2006

Bar Admissions

  • District of Columbia
  • New York

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