Our attorneys draw on decades of experience in the field, and include:
Experience
Our representations include:
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. Our representations include:
- Steves & Sons, Inc., in the first matter ever in which a jury, not a regulatory body, required divestiture as a remedy in private litigation over a completed merger.
- AbbVie, in overlapping class actions and enforcement proceedings in multiple jurisdictions related to patent settlements with generic drug manufacturers regarding the testosterone replacement therapy AndroGel, with claims totaling billions of dollars.
- Google, in settling multidistrict litigation alleging the monopolization of Android app distribution and Google Play Store billing.
- An online service provider, in its lawsuit with hiQ Labs, Inc., which used bots to scrape the provider's site for data and claims that the provider is attempting to exclude competitors to its employee analytics services.
- Lyft, from claims that its pricing model deliberately fixes ride fares for both drivers and passengers.
- BNSF Railways, in a sprawling multi-district proceeding involving price-fixing claims brought against four of the largest railroads in the U.S.
- Solvay, 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, but should be evaluated under the rule of reason.
- Chevron, in a suit alleging it conspired with other oil companies to raise gasoline prices.
- The attorneys general of New York and California, in coordination with 12 other states, to lead an antitrust challenge to the $26 billion Sprint/T Mobile merger.
Regulatory Matters and Antitrust Counseling
We have led companies through merger evaluations and investigations, and interacted with federal agencies to forestall their concerns. Our representations include:
- 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 relaxed Department of Justice rules on owning chains of movie theaters.
- An unnamed client regarding the billion-dollar merger of two streaming services.
- Multiple firms in matters at the intersection of antitrust, standards, patents and intellectual property.
Case Studies
Detailed examples of how Munger, Tolles & Olson has guided its clients through complex antitrust matters follow.
Steves & Sons, Inc.: The first private suit forcing divestiture after a completed merger
Munger, Tolles & Olson successfully obtained the first ever private party jury verdict requiring divestiture under Section 7 of the Clayton Act for our client, family-owned door manufacturer Steves & Sons. After a jury found that the consummated merger of two of our clients’ suppliers violated the Clayton Act, the court awarded our client a post-consummation divestiture remedy—the first such remedy ever awarded to a private party under that statute. We later successfully defended the remedy on appeal.
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, 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 & Olson also represented Steves & Sons 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. In March 2021, the Fourth Circuit denied JELD-WEN’s en banc hearing petition, affirming the divestiture and rejecting JELD-WEN’s laches defense, which argued that Steves waited too long to initiate the suit. The Fourth Circuit also affirmed the award of past damages.
We are now working with Steves & Sons to implement the court’s remedy and ensure that competition is restored to the market.
Media Coverage: Fourth Circuit Won't Rethink Upholding Private Divestiture Order
AbbVie: Denying class certification in a $6 billion matter claiming “sham litigation”
Munger, Tolles & Olson represents AbbVie Inc., a research-based biopharmaceutical company, in connection with long-running putative class actions by direct and indirect purchasers of the dyslipidemia treatment drug Niaspan, In Re: Niaspan Antitrust Litigation. Plaintiffs allege that settlement agreements between two predecessor companies, now owned by AbbVie and Teva, were designed to prevent generic versions of Niaspan from hitting the market.
On August 17, 2021, a Pennsylvania federal judge declined to certify a class of end-payor plaintiffs, finding that they had again failed to meet the ascertainability requirement for class certification. The plaintiffs appealed to the Third Circuit, with partner Elaine Goldenberg representing AbbVie and arguing the appeal on September 6, 2022.
On April 24, 2023, the Third Circuit ruled for AbbVie and affirmed the district court’s denial of class certification in full, providing a strong defense of the ascertainability requirement in the course of doing so. On June 5, 2023, the Third Circuit denied plaintiffs’ petition for rehearing of that decision.
The Third Circuit’s decision is highly significant for several reasons. The decision is now the leading precedent on how the ascertainability requirement applies in pharmaceutical-industry litigation, since plaintiffs must rely on similar data to try to establish ascertainability in every pharmaceutical case. The decision also will affect the application of this requirement, which has been the subject of dispute among the circuits, in a wide variety of other litigation. And the decision closes the door to billions of dollars in damages sought by the plaintiffs.
Media Coverage: 3rd Circ. Upholds Class Cert. Denial In Niaspan MDL
Contact
Glenn D. Pomerantz
Rohit K. Singla
Kyle W. Mach