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Antitrust Institute 2015: Developments & Hot Topics

 
Author(s): Saul P. Morgenstern, Harvey I. Saferstein, Yvonne S. Quinn
Practice Area: Antitrust, Corporate & Securities
Published: May 2015
PLI Item #: 59236
CHB Spine #: B2175, B2176

Saul Morgenstern, Co-Chair of the firm's Antitrust practice group, litigates complex disputes, class actions and multi-jurisdictional cases before US federal and state courts, international arbitral tribunals, the Federal Trade Commission and the US International Trade Commission, and represents clients in US Government, State and foreign investigations. He also advises companies 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 has represented clients across a broad spectrum of industries, including the chemical, computer hardware and software, energy, entertainment, insurance, financial, leisure, luxury consumer goods, pharmaceutical, publishing, real estate, telecommunications and toy industries.

Saul has repeatedly been recognized in Chambers USA: America’s Leading Lawyers for Business, which most recently quoted clients who credited his "excellent legal expertise and pragmatic counseling style." Previously Chambers recognized him as "business-focused in his advice, which is really appreciated and he helps guide us through all the gray areas" (2012), a "much admired . . . experienced attorney with a strong, substantive practice" (2011), as offering expertise "with clients in a wide range of industries, including pharmaceutical, publishing, semi-conductor and retail" (2009) and for his ability "to bring about a compromise between parties in tricky stand-off situations," observing that "[t]his skill is a result of the excellent strategies he plans after carefully and thoroughly considering the issues?" (2008).

Recently, Saul was named in the Competition and Antitrust (2014) Expert Guide by Legal Media Group. He was recognized as a "Life Science Star" in Euromoney's LMG Life Sciences Guide for 2013 and 2012, is recognized by US News & World Report Best Lawyers and PLC Which Lawyer, and was noted as a leading antitrust practitioner by Global Competition Review in 2013, 2012 and 2009. He is ranked in Best Lawyers in America (2005-2014) for the area of antitrust law.

Representative Matters

Antitrust

The Bookhouse of Stuyvesant Plaza, et al. v. Amazon.com et al. Successfully defended Penguin Random House LLC in class action complaint brought in the US District Court for the Southern District of New York by retail booksellers, alleging that Amazon.com and major publishers of electronic books conspired to prevent retail booksellers from selling electronic books by agreeing to use digital rights management software proprietary to Amazon, which prevents Kindle owners from purchasing electronic books from sources other than Amazon. On a motion to dismiss, obtained dismissal with prejudice of all claims against defendant publishers.

In Re Skelaxin (Metaxalone) Antitrust Litigation, MDL No. 2343, and related cases. Defending brand name pharmaceutical manufacturer in several federal and state class actions alleging that the manufacturer conspired with a potential generic entrant to delay or block generic entry in violation of Section 1 of the Sherman Act and certain state antitrust, unfair trade practices and related laws. Recently defeated motions for class certification by plaintiffs seeking to represent classes of Indirect Purchasers for Resale (e.g., pharmacies) and End Payor Indirect Purchasers (e.g., health insurers, pharmacy benefit managers, consumers).

In Re Rail Freight Fuel Surcharge Antitrust Litigation (US District Court., D.D.C.). Co-counsel defending major railroad in several nationwide class action antitrust law suits against major US railroads alleging collusion to fix fuel surcharges on freight shipments in violation of the Sherman Act.

In re Electronic Books Antitrust Litigation. Representation of Random House, Inc. in connection with US Department of Justice investigation into the adoption of "agency" as a means of distributing electronic books (which culminated in actions filed in the US District Court for the Southern District of New York by the DOJ against Apple, Inc. and five publishers other than Random House); and defense of Random House in originally-filed consumer class actions (Random House dropped from the cases upon filing of a consolidated class action complaint).

Novartis Acquisition of Fougera Holdings, Inc. Advised Novartis AG with respect to the competition law issues associated with its July 2012 $1.5 billion acquisition of a competing dermatologics company, Fougera Holdings, Inc., and represented the company before the Federal Trade Commission to obtain clearance for the acquisition.

Clayworth, et al. v. Pfizer Inc, et al. (Superior Court of California, Alameda County). Obtained summary judgment dismissing on the merits an action by California retail pharmacies alleging a conspiracy among brand name prescription drug manufacturers to fix prices in violation of the Cartwright Act, California?s state antitrust law. Summary judgment was affirmed by the California Court of Appeal and, on November 28, 2012, the California Supreme Court denied plaintiffs? Petition for Leave to Appeal. On June 3, 2013, the United States Supreme Court denied plaintiffs? Petition for a Writ of Certiorari.

Novartis Acquisition of Corthera, Inc. Advised Novartis International AG in connection with competition and regulatory approval aspects of its February 2010 acquisition of Corthera, Inc., a privately-held biopharmaceutical company engaged in the research and development of Relaxin, for US$120million, with Corthera's shareholders being eligible for additional payments of up to US$500million contingent upon successful development and commercial milestones, and assisted the company in obtaining early termination of Federal Trade Commission review of the transaction.

Drug Mart Pharmacy Corp., et al. v. American Home Products Corp., et al. (US District Court, E.D.N.Y.). Obtained summary judgment for client Pfizer Inc and its codefendants dismissing all damages claims by representative plaintiffs in price discrimination actions brought by several thousand independent pharmacies against a group of major brand name prescription drug manufacturers.

In re Pharmaceutical Industry Average Wholesale Price Litigation (US District Court, D. Mass). Obtained voluntary dismissal of horizontal antitrust claims asserted in private third-party payor and Medicare beneficiary class actions against Together Rx LLC and its founding members, as well as all consumer fraud and Medicaid fraud claims against the firm's client asserted by the same plaintiffs.

In re Stock Options Trading Antitrust Litigation (US District Court, S.D.N.Y.). Defended market maker in multi-district class actions alleging agreements restricting multiple listing of options, in violation of the Sherman Act.

In re Compensation of Managerial, Professional and Technical Employees Antitrust Litigation (US District Court, D.N.J.). Defended Union Oil Company of California and its parent in multi-district class actions in which plaintiffs allege that information-sharing in the oil and petrochemical industries retarded salary growth in violation of the Sherman Act. The plaintiffs' two motions for class certification were denied in 2003 and 2006.

In re Magazine Antitrust Litigation (US District Court, S.D.N.Y.). Obtained a favorable resolution on behalf of major publishers of consumer magazines in multi-district class actions, in which plaintiffs claimed that the publishers, along with their trade association, fixed the prices at which subscriptions were sold.

International Arbitration and Alternative Dispute Resolution

Banestyrelsen, et al. v. France Telecom SA, et al. (International Chamber of Commerce, International Court of Arbitration). Obtained an award of approximately €60 million plus interest, attorneys' fees and costs on behalf of a group of minority shareholders in a Danish telecommunications company, in an international arbitration proceeding against France Telecom and certain of its affiliates in connection with their breach of an agreement to buy certain of the minority's interests.

Finansministeriet, et al. v. Wirefree Services Denmark A/S, et al. (International Chamber of Commerce, International Court of Arbitration). Represented Danish Finance Ministry and a consortium of investors in a Danish telecommunications company to enforce certain minority rights pursuant to corporate governance and shareholder agreements under Danish law. Obtained favorable resolution prior to hearing.

Mindscape, Ltd. v. Riverdeep Group, plc (International Centre for Dispute Resolution; US District Court, D. Mass.; N.Y. Supreme Court, N.Y. County). Successfully defended Irish software manufacturer against efforts to obtain injunctive relief in two courts and obtained a favorable resolution through international mediation of dispute regarding international licensing agreement.

Fraud, RICO, Securities and Commercial Litigation

Novartis Pharmaceuticals Corporation v. State of Alabama (Supreme Court of Alabama). Led a team of national and Alabama counsel to obtain the reversal of $33 million jury verdict and judgment in a Medicaid fraud action brought by the State of Alabama against a major multi-national pharmaceutical manufacturer. The Alabama Supreme Court reversed, finding that the case should never have been put to the jury in light of the documentary record presented at trial, and ordered judgment entered on behalf of the defendant-appellant.

State of Alaska v. Alpharma, Inc., et al.; State of Idaho v. Aventis Pharmaceuticals Inc., et al.; State of Illinois v. Abbott Labs, Inc., et al.; Commonwealth of Kentucky v. Alpharma, Inc., et al.; State of Louisiana v. Abbott Labs, Inc., et al.; State of Mississippi v. Abbott Labs, Inc., et al.; State of Oklahoma v. Abbott Labs, Inc., et al.; State of Wisconsin v. Amgen, Inc., et al.; Defending pharmaceutical manufacturer in actions brought by or on behalf of state Medicaid agencies asserting that prescription drug manufacturers reported inaccurate pricing benchmarks, allegedly violating various of their individual state fraud, consumer protection and other laws.

SR International Business Insurance Co. Ltd. v. World Trade Center Properties LLC, et al. (US Court of Appeals for the Second Circuit). Successfully defended property and casualty insurer, which provided property insurance on the World Trade Center complex, against a summary judgment motion and interlocutory appeal to the Second Circuit by the lessees, lenders and owners seeking a ruling that, as a matter of law, the attack and destruction of the complex on September 11, 2001 constituted two occurrences for insurance coverage purposes.

Bar Associations, Memberships and Activities

American Bar Association - Section of Antitrust

  • Editorial Board, Antitrust Law Developments 2009 Update
  • Price Discrimination Committee, Vice Chair (2006–2009)
  • Trade Associations Committee, Vice Chair (2002–2005)

Section of Intellectual Property

Section of Litigation

New York State Bar Association

  • Antitrust Law Section (Chair, 2007; Executive Committee, 2001–present)
  • Special Committee on Sarbanes-Oxley Issues (2005–2006)

Association of the Bar of the City of New York

  • Committee on Lawyers' Quality of Life (1997–2000)
  • Committee on Federal Legislation (1991–1993)
  • Committee on Professional Responsibility (1988–1991)

Federal Bar Council (Second Circuit)

  • Public Service Committee (2002–present)

International Trademark Association

  • The Trademark Reporter Editorial Board (1994–2000)
  • Publications Committee (1992–1994)

Board Memberships

Martin Luther King, Jr. High School Community Advisory Board (Chairman 1998–2003)

National Center on Addiction and Substance Abuse at Columbia University Institutional Review Board (1999–2002)

Publications

"Competition and Antitrust Law," with Margaret A. Prystowsky, Nigel Parr and Joanna Christoforou, International Corporate Practice: A Practitioner's Guide to Global Success (Practising Law Institute 2013) (First Edition, 2008).

Price Discrimination Handbook (ABA Section of Antitrust Law 2012), Project Co-Chair and Co-Editor, with Scott P. Perlman.

"Resale Price Maintenance After 'Leegin'," with Brett Dockwell, New York Law Journal (March 8, 2010).

Antitrust and Associations Handbook (ABA Section of Antitrust Law 2009), Co-Editor, with Christopher J. MacAvoy.

"Antitrust Enforcement in High Technology Industries: Keeping Cyberspace Safe for Innovators or Just Another Speed Trap on the Information Superhighway," with Eamon O'Kelly, 19th Annual Institute on Computer Law (Practising Law Institute (547) 1999).

"Antitrust Issues Affecting the Publishing Industry," Print and Electronic Publishing (Practising Law Institute (516) 1998 and (480) 1997).

"Directors' Duties in Connection With Securities and Exchange Commission Investigations," Securities Litigation and Regulatory Practice (Institute of Continuing Legal Education in Georgia, October 9, 1997). Kaye Scholer LLP Saul P. Morgenstern 

"Practical Considerations for Counsel in Securities and Exchange Commission Enforcement Proceedings," Representing Clients in Securities Litigation and Regulatory Matters (Institute of Continuing Legal Education in Georgia, October 6, 1995).

Principal Editor: "Advertising of Private Certification after Peel v. Illinois Attorney Registration and Disciplinary Commission," 46 Record of The Association of The Bar of The City of New York 390 (1991).

Speeches and Programs

"Cartels and Other Horizontal Relationships," Antitrust Institute 2014: Developments & Hot Topics (Practising Law Institute, New York City, May 5, 2014)

"Cartels and Other Horizontal Relationships," Antitrust Institute 2012/2011: Developments & Hot Topics (Practising Law Institute, New York City, May 7-8, 2012/January 20, 2011).

Panelist, "Is the Robinson-Patman Act the Right Rx for the Pharmaceutical Industry?" (American Bar Association, Section of Antitrust Law Teleseminar, December 8, 2009)

American Bar Association Antitrust Litigation Program — "Preparing and Trying an Antitrust Case Against the Government," Panelist and Planning Committee Member (American Bar Association Section of Antitrust Law, Washington, DC, October 16, 2009).

"Relationships Among Competitors," 47th Annual Antitrust Law Institute (Practising Law Institute, New York City, May 8, 2006).

Moderator, "Trade and Professional Associations, Weighing The Risks and Benefits" (American Bar Association (ABA) Antitrust Section Spring Meeting, Washington, DC, March 30, 2005).

"Relationships Among Competitors," 45th Annual Antitrust Law Institute (Practising Law Institute, New York City, May 13, 2004).

Moderator, "Emerging Roles for Trade Associations as Plaintiffs: Policy Issues and Legal Strategies" (ABA Antitrust Section Spring Meeting, Washington, DC, March 31, 2004).

"Antitrust-Based Challenges To Registration Eligibility Requirements," 18th Annual Equine Law Conference (University of Kentucky Continuing Legal Education, Lexington, KY, April 30, 2003).

"Antitrust: The Significance of Microsoft and Intel and Competition in Cyberspace," 19th Annual Institute on Computer Law (Practising Law Institute, New York City, March 1999).

Moderator, "Janet Reno in Cyberspace: Can Antitrust Enforcement Work in the Computer Industry?" (ABA Annual Meeting, Toronto, Ontario, August 4, 1998).

"Antitrust Issues Affecting the Publishing Industry," Print and Electronic Publishing, Legal and Business Issues in Book and Magazine Publishing (Practising Law Institute, New York City, May 1998 and 1997).

Panelist, Third Annual Securities Litigation and Regulatory Practice seminar (Institute of Continuing Legal Education in Georgia, Atlanta, GA, October 9, 1997).

"Discovery and Expert Discovery in Federal Court," Advanced Litigation Technologies seminar (Institute for Continuing Education, New York City, May 16, 1997).

Panelist, "Representing Clients in Securities Litigation and Regulatory Matters" seminar (Institute of Continuing Legal Education in Georgia, Atlanta, GA, October 6, 1995).


Yvonne Quinn is a member of the Firm's Litigation Group and one of two partners in charge of coordinating the Firm's Antitrust Group. Her practice focuses on antitrust litigation, merger analysis and review, and counseling work.

Ms. Quinn's clients include leading commercial banks, equity funds, investment banks, insurance companies, cable television operators, television programming suppliers, newspapers, publishers, sports franchise owners, advertising sales and healthcare companies, pharmaceutical and chemical companies, and many others.

Ms. Quinn has been a co-chair of the Practising Law Institute's Annual Antitrust Law Institute in New York since 2001 and has taught the mergers and acquisitions portion of the Institute since 1995. She is a member of the Executive Committee of the Antitrust Section of the New York State Bar Association and a vice chair of the Financial Services Committee of the Antitrust Section of the American Bar Association. From 1989 to 1992, she was the chair of the Antitrust and Trade Regulation Committee of the New York City Bar Association.

Ms. Quinn has been recognized as a leading antitrust practitioner in, among other guides to the legal profession:

  • Euromoney's Benchmark: America's Leading Litigation Firms and Attorneys (New York) (2008-2013)
  • Chambers USA (2003-2012)
  • Chambers Global (2003, 2004-2005, 2011)
  • The Legal 500, United States (2011)
  • Law Business Research's The International Who's Who of Competition Lawyers (2004-2007, 2009) and The International Who's Who of Business Lawyers (2004-2007, 2009)
  • Euromoney's Guide to the World's Leading Competition and Antitrust Lawyers (every year since 1998)
  • The Best Lawyers in America (2007-2013)
  • Lawdragon 3000: Leading Lawyers in America (2009-2010) and Lawdragon 500: Leading Lawyers in America (finalist)
  • New York Super Lawyers (2006-2012)

PRACTICES & CAPABILITIES

  • Litigation
  • Antitrust
  • Criminal Defense & Investigations
  • Financial Services
  • Consumer & Retail
  • Payment Systems

EDUCATION

  • 1977, University of Michigan, M.A.
  • 1976, University of Michigan Law School, J.D.
  • 1973, University of Illinois, B.A.

BAR ADMISSIONS

  • New York

 

 


Harvey Saferstein is the Managing Member for the firm’s Los Angeles office. His practice includes antitrust and intellectual property counseling and litigation, as well as complex commercial and business litigation.

With an extensive litigation background, Harvey has experience as trial and appellate counsel in antitrust cases and class actions within federal and state courts. In antitrust and consumer protection investigations, he has represented numerous businesses, advising them on how to comply with state and federal antitrust laws (such as the Robinson-Patman Act), consumer protection laws, and other business regulations. Additionally, Harvey has conducted compliance seminars for major corporations, performed Hart-Scott-Rodino filings in mergers and joint ventures, and offered compliance counseling for major advertisers regarding consumer protection laws, intellectual property rights, and media law. Harvey has handled a variety of patent cases in Los Angeles and San Diego federal court, including cases involving software and media patents.

Among Harvey’s many litigation management successes is his involvement in the organization, structuring, and hiring of personnel for a free-standing “branch” office in Chicago. This group went on to represent a Chicago-based client in a hostile takeover. Harvey has also represented persons and companies alleged to have been involved in criminal price fixing.

Outside of the antitrust and class action realm, Harvey has handled all types of business disputes, including intellectual property, employment disputes, and complex business litigation.

As member of the Board of Governors and President of the State Bar of California, as well as the Chair of the Ninth Circuit Judicial Conference, Harvey has had the opportunity to become involved in the appointment process for both state and federal judges in California and Los Angeles.

During law school, he was the executive editor of the Harvard Law Review. After graduating from law school, Harvey served as a law clerk to Chief Judge Bailey Aldrich, US Court of Appeals for the First Circuit, in Boston, Massachusetts, and as an attorney advisor to Federal Trade Commissioner Philip Elman in Washington, DC. Harvey served as Regional Director of the Federal Trade Commission for two years.