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Developments in Antitrust Law & Regulation 2021


Speaker(s): Cory Brader Leuchten, Craig G. Falls, Daniel G. Swanson, Heather S. Nyong’o, Jennifer B. Patterson, Michael Cole, Robert P. Taylor, Saul P. Morgenstern, Theodore L. Banks, William H. Efron, Yvonne S. Quinn
Recorded on: Apr. 15, 2021
PLI Program #: 305035

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.


Cory Brader Leuchten serves as a Senior Counsel in the Office of the Attorney General at the Department of Justice’s Antitrust Division.  Since joining the Division in 2014, she has been involved in merger and conduct investigations and litigation spanning a number of industries, including telecommunications, mobile wireless, data security, agriculture, airlines, printing, and financial services.  Most recently, Cory was the investigative lead on the Division’s challenge to Visa’s proposed acquisition of Plaid.  Before joining the Division, Cory clerked for the U.S. Court of Appeals for the Third Circuit and the U.S. District Court for the Southern District of New York.  She received her J.D. summa cum laude from the University of Pennsylvania and her undergraduate degree with distinction from Cornell University.  Notable awards and achievements include the Assistant Attorney General of the United States, Antitrust Division, Award of Distinction (2020- T-Mobile/Sprint Merger Team) (2019 – AT&T-Time Warner Merger Team, Bayer-Monsanto Merger Team) (2018 – Dodgers Investigation).


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.


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.


 


MICHAEL E. COLE    Since July 1999, Michael has served as an Assistant Attorney General with the Office of the Connecticut Attorney General.  In July 2004 Michael was promoted to serve as the Chief of the Antitrust Department.  In October 2012, Michael was designated to lead the Office’s newly formed Antitrust and Government Program Fraud Department.  Michael  stepped down as the Chief of the Department in January, 2021.

Michael began his legal career in 1992 with the U.S. Department of Justice’s Antitrust Division’s New York Field Office where he prosecuted criminal antitrust and tax matters.  Subsequent to his time with the Antitrust Division, Michael worked at a large Connecticut law firm where he worked in the health care fraud practice group from November 1997 until July 1999. 

Michael has a unique skillset as one of the few government civil prosecutors with both extensive antitrust and false claims act experience.  Michael has supervised and/or personally led numerous antitrust, competition enforcement and health care fraud investigations in a number of markets at both the national and local levels, including, insurance, waste, financial services, health care, digital publishing and pharmaceutical. 

Michael graduated with honors from Quinnipiac University School of Law in 1992.  Prior to law school, Michael served as an infantry officer with the U.S. Marine Corps.


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.


Jennifer Patterson is a partner at Arnold & Porter.  She has more than 25 years of experience representing clients across a range of industries, including rail freight transportation, pharmaceuticals, chemicals, and auto parts.  She represents clients in private antitrust lawsuits, including class actions, and in government investigations and enforcement proceedings. She has advised on compliance policies and antitrust training programs, and has handled internal investigations concerning potential antitrust violations. She has also advised companies on the antitrust implications of mergers, acquisitions, and other transactions. 

Ms. Patterson went to Georgetown Law School, has a masters from the Georgetown School of Foreign Service, and a B.A. from Vanderbilt.


 


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.


Craig Falls is an antitrust partner at Dechert LLP in Washington, D.C.  Craig defends clients in antitrust investigations and private litigation involving cutting-edge issues of exclusionary conduct, and he regularly counsels, publishes, and speaks on topics concerning the application of antitrust law to vertical restraints and vertical relationships.