Emily C. Curran-Huberty
Carolyn Hoecker Luedtke
Glenn D. Pomerantz
Justin P. Raphael
Stuart N. Senator
Rohit K. Singla
Our representations include:
Regulatory Matters and Antitrust Counseling
We have led companies through merger evaluations and investigations, and interacted with federal agencies to forestall their concerns.
- Verizon, before the California Public Utilities Commission, seeking regulatory approval of its planned $7 billion acquisition of TracFone Wireless, Inc., the largest pre-paid wireless provider in the U.S.
- A major film studio navigating recently relaxed Department of Justice rules on owning chains of movie theaters.
- An unnamed client regarding the merger of two entertainment streaming services.
- Multiple firms in matters at the intersection of antitrust, standards, patents and intellectual property.
Trials and Appeals
We have won precedent-setting victories for our clients in bet-the-company matters and represent a wide range of clients in disputes that challenge their entire business model.
- Steves & Sons, Inc., in the first matter ever in which a jury, not a regulatory body, has required divestiture as a remedy in private litigation over a completed merger.
- AbbVie, in overlapping class actions and enforcement proceedings in multiple jurisdictions.
- Google, in multidistrict litigation alleging the monopolization of Android app distribution and Google Play Store billing.
- LinkedIn, in its lawsuit with hiQ Labs, Inc., which used bots to scrape the LinkedIn site for data and claims that LinkedIn is attempting to exclude competitors to its employee analytics services.
- Lyft, from antitrust claims that its pricing model is deliberately below cost and designed to drive competitors, such as limousine companies, out the market.
- BNSF Railways, in a sprawling multi-district proceeding involving price-fixing claims.
- Actavis, as lead appellate counsel in the landmark FTC v. Actavis decision, where the U.S. Supreme Court held that "reverse payment" pharma patent settlements are not presumptively unlawful.
Detailed examples of how Munger, Tolles & Olson has guided its clients through complex matters follow:
- Winning the first successful private suit contesting a completed merger
Client: Steves & Sons, Inc.
We successfully defended the first jury decision to require a defendant to divest an asset after losing an antitrust case. In a groundbreaking decision in favor of our client, family-owned door manufacturer Steves & Sons, the Fourth Circuit upheld a lower court’s decision that required the defendant, JELD-WEN, another door manufacturer, to divest a manufacturing facility it had acquired in its 2012 merger with CraftMaster Furniture.
The lower court’s decision was the first jury trial to apply Section 7 of the Clayton Act in 40 years. The Clayton Act bans mergers that substantially lessen competition, and this trial marked the first time that a court, not a regulatory body like the Federal Trade Commission, has used the act to require a company to divest an asset as a remedy in private litigation for a merger that had already been completed.
The Fourth Circuit also affirmed the Eastern District of Virginia’s award of $12 million in past damages, later trebled to $36 million. The case attracted significant attention from the U.S. Department of Justice, which filed an amicus brief supporting Steves & Sons, and from legal commentators recognizing its significance.
In February 2020, Munger, Tolles also represented Steves in a new lawsuit against JELD-WEN following JELD-WEN’s notice of “allocation” under its supply agreement. Following depositions and an evidentiary hearing, Steves was awarded a preliminary injunction pending a full trial before the parties settled.
Press Coverage: Fourth Circuit Upholds Private Parties’ Right to Challenge Mergers
- Reversing a $448 million court-ordered penalty and persuading the FTC to dismiss a claim
With co-counsel, we convinced a Third Circuit panel to reverse a court-ordered $448 million penalty against pharmaceuticals firms AbbVie and Besins Healthcare for allegedly delaying generic forms of the testosterone treatment AndroGel through “sham litigation.” Presaging a subsequent Supreme Court decision, the Third Circuit set a precedent by concluding that the Federal Trade Commission (FTC) lacked disgorgement authority.
The panel also reversed the lower court's finding that AbbVie and Besins' infringement suit against Teva Pharmaceuticals USA, Inc., was a “sham” intended to delay Teva's generic form of AndroGel and that the companies could have reasonably believed the suit could succeed.
The panel ruled that while AbbVie and Besins have monopoly power in the relevant market for similar treatments, the commission "has not shown the monopolization entitles it to any remedy," including injunctive relief. Although the panel held that a claim of an alleged reverse-payment settlement agreement with Teva could proceed, the FTC was persuaded to voluntarily dismiss the claim with prejudice.
Press Coverage: FTC Drops AndroGel Antitrust Case Against AbbVie