The stakes in antitrust litigation are high. Because of the potential for treble damages and joint liability, antitrust and competition matters present great financial risks. Antitrust cases also can go to the heart of companies’ most important business practices and affect how their prices, profits and key competitive business strategies will—or will not—operate in the marketplace. Competition litigation is often substantial in scope and complexity and plays out in multiple arenas. When faced with the necessity of competition litigation, our clients turn to Thompson Hine because our antitrust litigation lawyers combine deep substantive knowledge of antitrust and competition laws with an experience-won understanding of trial processes and procedures required to best represent our clients’ long-term interests.
Our antitrust lawyers litigate. We have deep experience in litigation involving antitrust and competition issues. Our trial lawyers have handled a wide range of antitrust matters: dealer terminations, price fixing and monopolization cases, Robinson-Patman claims, challenges to exclusive arrangements, tying and bundling complaints, multidistrict class actions and preliminary injunctions in merger cases. We are also experienced in dealing with nuances and the changing nature of how the law treats the interaction of intellectual property and antitrust, such as handling claims brought in patent cases, including Walker Process counterclaims. We have litigated claims brought under the Sherman Act, the Clayton Act, the Robinson-Patman Act, the Lanham Act, California’s Cartwright Act, Ohio’s Valentine Act, New York’s Donnelly Act and a host of other state antitrust and unfair competition laws.
We know how to navigate the complex procedural and multijurisdictional issues that often arise with antitrust claims. We handle proceedings before the Judicial Panel on Multidistrict Litigation, class certification and Class Action Fairness Act consolidation, coordination of private actions and government enforcement proceedings and third-party practice. We understand how antitrust matters often take place simultaneously in multiple fora and can involve numerous parties. We deal fairly and forthrightly with joint defense or prosecution counsel. We are experienced in representing clients in government investigations, regulatory proceedings and agency litigation concerning both competition law and consumer protection issues and dealing with resulting private actions. We understand how to cooperate with or litigate against the Antitrust Division of the Department of Justice, the Federal Trade Commission (FTC), and state attorneys general and other state agencies. We also have the experience necessary to take complex cases to trial, and we make sure our cases are well positioned to be tried.
Economic evidence and theory have become key components in competition cases. We work extensively with expert witnesses, particularly economists. We are experienced in bringing and defending Daubert challenges and are focused on the increasing importance of economic models to defeat or support class certification. We are not generalists who have worked occasionally on antitrust claims, but antitrust professionals with deep knowledge and experience capable of handling any and all types of antitrust litigation.
We also recognize that litigation often is not a “win at all costs” proposition, but must be assessed within the context of business objectives and budgets. Using SmartPaTH®, Thompson Hine’s highly innovative legal project management system, we budget and staff matters at appropriate levels and decide how best to use our in-house technology, external technology providers and contract lawyers to help manage the costs of litigation. We also work with you to select a litigation strategy that best positions the case for resolution – either on the merits or by settlement.
We also have seen how businesses can be harmed by anticompetitive conduct and we represent them as plaintiffs, opt-outs, or simply in claim recovery administration, to help them obtain recovery of their overpayments. Often by opting out of class actions and pursuing their own direct claims, our clients are able to achieve significantly better and faster results than they would otherwise receive by remaining class members.
Listed below are representative antitrust matters in which our partners have participated.
- Serving as lead trial counsel for book publisher Penguin (USA) Inc. in the eBooks action brought and tried by the U.S. Department of Justice — named by Global Competition Review as the Behavioral Matter of the Year (2013—Americas) — as well as in over 30 cases brought by state attorneys general and private class actions. United States of America v. Apple, Inc., 1:12-CV-02826 (S.D.N.Y.); Texas v. Penguin Group (USA) Inc., 1:12-CV--03394 (S.D.N.Y); In re Electronic Books Antitrust Litigation, 1:11-MDL-02293 (S.D.N.Y.)
- Representing a manufacturer of electronic key duplication equipment in an action alleging conduct by a competitor in violation of Section 2 of the Sherman Act to exclude the client from access to big box retail chains, Hy-Ko Products Co. v. The Hillman Group, No. 5:10-CV-00992-DDD (N.D.Ohio). The district court’s order denying defendants’ motion to dismiss is reported at 2011 U.S. Dist. LEXIS 21938 (N.D. Ohio 2011). The case was settled after commencement of discovery.
- Serving as lead trial attorney in a competitor-plaintiff antitrust and business torts action in New Jersey federal district court. Archbrook Laguna LLC v. New Age Electronic, 2:08-cv-01421 (D.N.J.).
- Representing a manufacturer of flooring compound for commercial construction applications in an action in which the defendant counterclaimed for secondary-line price discrimination under Section 2(a) of the Robinson-Patman Act and commercial bribery under Section 2(c) of the Act, Dayton Superior Corp. v. Marjam Supply Co., No. 2:07-cv-05215-DRH-MLO (E.D.N.Y.). The district court’s order denying dismissal of the Section 2(a) claim and granting dismissal of the Section 2(c) claim is reported at 2011 U.S. Dist. LEXIS 17221 (E.D.N.Y. 2011). The case was subsequently settled.
- Representing a manufacturer of high-pressure laminates against a claim of secondary-line price discrimination in violation of ch. 93A of the Massachusetts General Laws, Prime Plywood & Panel, Inc. v. Formica Corp., No. 1:09-cv-30212 (D.Mass.). The case was settled.
- Representing a distributor of polyethylene resins in which the defendant counterclaimed for secondary-line price discrimination in violation of Section 2(a) of the Robinson-Patman Act, PolyOne Corp. v. Cellect, LLC, No. 09-CV-11054-GAO (D. Mass.). The counterclaim was dismissed with prejudice in 2012 as a discovery sanction.
- Representing a scrap metal distributor and its parent corporation in a direct purchaser price-fixing class action. The case was tried to a verdict, and the decision on appeal is reported at In re Scrap Metal Antitrust Litigation, 527 F.3d 517 (6th Cir. 2008).
- Representing a terminated distributor of power transmission parts in an action alleging a resale price maintenance conspiracy between the manufacturer and a competing distributor. The case was settled following the district court’s order denying defendants’ motion to dismiss, Bearing Distributors, Inc. v. Rockwell Automation, Inc., 2006 WL 2709779 (N.D. Ohio Sept. 20, 2006).
- Defending The Coca-Cola Company in a leading monopolization and distribution case brought under Section 2 of the Sherman Act and subsequent appeal to the Second Circuit. PepsiCo v. Coca-Cola, 315 F.3d 101(2d Cir. 2002).
- Representing a global electronic manufacturer in multi-district litigation consolidating class actions alleging a global price fixing conspiracy. In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 4:02-MDL-486 (N.D. Cal.).
- Serving as Ohio counsel for a manufacturer of PVC modifiers in a direct purchaser price-fixing class action under Ohio’s antitrust statute, the Valentine Act, Heritage Plastics, Inc. v. Rohm and Haas Co., No. 03-CV-113 (Court of Common Pleas, Belmont County, Ohio). The action, alleging price fixing by manufacturers of PVC modifiers and plastic additives, was voluntarily dismissed by class counsel following a February 27, 2004 ruling on defendants’ motion to dismiss.
- Representing a manufacturer of magnetic iron oxide in a direct purchaser price-fixing class action, eMag Solutions LLC v. Toda Kogyo Corp., No. C-02-161 (N.D. Cal.), and related indirect purchaser class actions in California, Massachusetts, Michigan and Kansas. The district court’s opinion granting a motion to dismiss on FTAIA grounds is reported at 2005 WL 1712084 (N.D. Cal. 2005). All cases were eventually settled.
- Representing a manufacturer of high-pressure laminates in consolidated direct purchaser price-fixing class actions, In re High Pressure Laminates Antitrust Litigation, No. 00-MD-1368 (S.D.N.Y.), and related indirect purchaser class actions in 11 states and the District of Columbia. The direct purchaser actions were voluntarily dismissed in December 2003 following the conclusion of discovery, with indirect purchaser actions dismissed thereafter.
- Representing a global telecommunications company in a long-distance telephone reseller case alleging antitrust and business tort claims. American Telephone v. AT&T, 2:93-CV-1389 (N.D. Ala.)
- Representing a food equipment manufacturer in action alleging refusal to deal in violation of § 1 of the Sherman Act. Westman Commission Co. v. Hobart Int’l, Inc., 796 F.2d 1216 (10th Cir. 1986), cert. denied, 486 U.S. 1005 (1987).