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Antitrust Institute 2015: Developments & Hot Topics

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

Saul Morgenstern represents clients across a broad spectrum of industries in complex antitrust and other commercial disputes, class actions and multijurisdictional litigation before US federal and state courts, international arbitral tribunals, and in US government, state and foreign investigations. He also advises US and global 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.

Mr. Morgenstern speaks and writes regularly on antitrust and compliance issues facing US and multi-national businesses, and most recently Co-Chaired the Practising Law Institute's two-day program "Antitrust Law Institute 2016: Developments and Hot Topics" held in New York City on May 4 and 5, 2016.

Experience Antitrust/Competition

  • Generic pharmaceuticals manufacturer in defense of wholesaler (direct purchaser) and third party payor (indirect purchaser) class actions in several federal district courts, in which plaintiffs allege that the company conspired with several other generic drug makers to increase prices of a number of different generic drugs, creams, lotions and ointments. (US District Courts, SDNY, DNJ and EDPa).
  • Pfizer and Warner-Lambert against claims brought by the State of Louisiana that Pfizer and Warner-Lambert delayed the introduction of generic versions of Neurontin® by bringing alleged “sham” litigation to enforce patents, causing the State Medicaid Agency to overpay for branded Neurontin®, allegedly in violation of Louisiana anti-monopoly and other laws. State of Louisiana v. Pfizer Inc. and Warner-Lambert Company, LLC (19th Judicial Dist. Ct., Parish of East Baton Rouge).
  • Penguin Group in actions brought by defunct electronic book resellers claiming to have been forced out of business as a result of an alleged conspiracy among Apple, Inc. and five major publishers to shift the sale of electronic books to an “agency model” distribution methodology. All three cases were dismissed on the defendants’ motions for summary judgment, and two of the plaintiffs – Abbey House Media and Diesel Books LLC, are appealing from those judgments. Abbey House Media, Inc. d/b/a BooksOnBoard v. Apple, Inc.; Diesel Ebooks, LLC v. Apple, Inc.; DNAML PTY, Limited v. Apple, Inc. (US District Court, SDNY).
  • Brand name pharmaceutical manufacturer against third party payor health plans claims that it brought so-called “sham” litigation to enforce patents in an effort to impede generic competition. United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund, et al. v. Novartis Pharmaceuticals Corporation, et al. (US District Court, D. Mass.).
  • Penguin Random House LLC in successful defense of a 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. The Bookhouse of Stuyvesant Plaza, et al. v. Amazon.com et al. (US District Court, SDNY).
  • King Pharmaceuticals LLC in several federal and state class actions alleging that 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. 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), successfully resolved remaining "opt-out" plaintiffs cases and currently defending related actions in state court.
  • Major railroad, serving as co-counsel, 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 Rail Freight Fuel Surcharge Antitrust Litigation (US District Court., DDC).
  • 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). In re Electronic Books Antitrust Litigation.
  • Novartis AG with respect to the competition law issues associated with its July 2012 US$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. Novartis Acquisition of Fougera Holdings, Inc.
  • Brand name prescription drug manufacturer in obtaining summary judgment on behalf of it and its codefendants, dismissing on the merits an action by California retail pharmacies alleging a conspiracy 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. Clayworth, et al. v. Pfizer Inc, et al. (Superior Court of California, Alameda County).
  • Novartis 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$120 million, 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. Novartis Acquisition of Corthera, Inc.
  • Pfizer Inc and its codefendants in obtaining summary judgment, 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. Drug Mart Pharmacy Corp., et al. v. American Home Products Corp., et al. (US District Court, EDNY).
  • Together Rx LLC and its founding members, in obtaining voluntary dismissal of horizontal antitrust claims asserted in private third-party payor and Medicare beneficiary class actions as well as all consumer fraud and Medicaid fraud claims against the firm’s client asserted by the same plaintiffs. In re Pharmaceutical Industry Average Wholesale Price Litigation (US District Court, D. Mass).
  • Market maker in multi-district class actions alleging agreements restricting multiple listing of options, in violation of the Sherman Act. In re Stock Options Trading Antitrust Litigation (US District Court, SDNY).
  • 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 Compensation of Managerial, Professional and Technical Employees Antitrust Litigation (US District Court, DNJ).
  • Major publishers of consumer magazines in successfully obtaining a favorable resolution 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. In re Magazine Antitrust Litigation (US District Court, SDNY).

Commercial Litigation

  • Major multi-national pharmaceutical manufacturer in obtaining the reversal of a US$33 million jury verdict and judgment in a Medicaid fraud action brought by the State of Alabama against the client. In Novartis Pharmaceuticals Corporation v. State of Alabama (Supreme Court of Alabama), we led a team of national and Alabama counsel and 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.
  • 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. Cases include 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.; and State of Wisconsin v. Amgen, Inc., et al.
  • Property and casualty insurer, which provided property insurance on the World Trade Center complex, in 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 in the case SR International Business Insurance Co. Ltd. v. World Trade Center Properties LLC, et al. (US Court of Appeals for the Second Circuit).

International Arbitration and ADR

  • Group of minority shareholders in a Danish telecommunications company in an international arbitration proceeding conducted in Brussels by the International Chamber of Commerce, International Court of Arbitration against a major European telecommunications and internet services provider and certain of its affiliates in connection with their breach of an agreement to buy certain of the minority’s interests. Obtained an award of approximately €60 million plus interest, attorneys’ fees and costs on behalf of the group of minority shareholders.
  • 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, in an international arbitration proceeding conducted by the International Chamber of Commerce, International Court of Arbitration. Obtained favorable resolution prior to hearing.
  • Irish software manufacturer in efforts to obtain injunctive relief in two courts and obtained a favorable resolution through international mediation of dispute regarding international licensing agreement in the case Mindscape, Ltd. v. Riverdeep Group, plc (International Centre for Dispute Resolution; US District Court, D. Mass.; N.Y. Supreme Court, N.Y. County).

Recognition

  • Chambers USA
    Antitrust (New York) (2012-2015)
  • LMG Life Sciences
    "Life Sciences Star" (2012-2016)
    Antitrust Litigator of the Year Award (2015)
  • U.S. News & World Report and Best Lawyers
  • PLC Which lawyer?
  • Competition and Antitrust Expert Guide (2014)
  • Global Competition Review
    Leading Antitrust Practitioner (2009, 2012-2013)
  • Best Lawyers
    Antitrust Law (2005-2016)
  • Who's Who Legal: Competition (2015)

Professional and Community Activities

  • Section of Antitrust—Editorial Board, Antitrust Law Developments (2009—); Price Discrimination Committee, Vice Chair (2006–2009); Trade Associations Committee, Vice Chair (2002–2005), Section of Intellectual Property. Section of Litigation. American Bar Association
  • Antitrust Law Section (Chair, 2007; Executive Committee, 2001–present); Special Committee on Sarbanes-Oxley Issues (2005–2006), New York State Bar Association
  • Committee on Lawyers' Quality of Life, (1997–2000); Committee on Federal Legislation (1991–1993); Committee on Professional Responsibility (1988–1991), Association of the Bar of the City of New York
  • Public Service Committee (2002–2007), Federal Bar Council (Second Circuit)
  • The Trademark Reporter Editorial Board (1994–2000), Publications Committee (1992–1994), International Trademark Association
  • Board Member (Chairman 1998–2003), Martin Luther King, Jr. High School Community Advisory Board
  • Board Member (1999–2002), National Center on Addiction and Substance Abuse at Columbia University Institutional Review Board

Areas of Focus

  • Antitrust/Competition
  • Antitrust Litigation
  • Commercial Litigation
  • Intellectual Property

Education

  • JD, Hofstra University School of Law, 1981, with distinction
  • BS, Boston University, 1974

Admissions

  • New York
  • Supreme Court of the United States
  • US Court of Appeals for the Second Circuit
  • US Court of Appeals for the Third Circuit
  • US Court of Appeals for the Seventh Circuit
  • US District Courts for the Southern, Eastern, and Western Districts of New York
  • US District Court for the Northern District of New York
  • US District Court for the Southern District of California
  • US District Court for the Southern District of Illinois


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 Association of the Bar of the City of New York.

Ms. Quinn has been recognized as a leading antitrust practitioner in Euromoney’s Benchmark: America’s Leading Litigation Firms and Attorneys (2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016); Chambers USA (2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016); Chambers Global (2003, 2004, 2005, 2011, 2012, 2013, 2014, 2015);  The Legal 500 United States (2007, 2009, 2011, 2012, 2013, 2014, 2015); Law Business Research’s The International Who’s Who of Competition Lawyers (2004, 2005, 2006, 2007, 2009) and The International Who’s Who of Business Lawyers (2005, 2006, 2007, 2009); Euromoney’s Guide to the World’s Leading Competition and Antitrust Lawyers (2002, 2006, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016); The Best Lawyers in America (2007, 2008, 2009, 2010, 2011,2012, 2013, 2014, 2015, 2016, 2017); and Lawdragon 500: Leading Lawyers in America (finalist), among other guides to the legal profession.

Education

1977, University of Michigan, M.A.

1976, University of Michigan Law School, J.D.

1973, University of Illinois, B.A.


Harvey Saferstein specializes in antitrust and intellectual property counseling and litigation, and complex commercial and business litigation.

Harvey has previously been a partner with various prominent Los Angeles law firms.  He was also the Regional Director of the Federal Trade Commission from 1978 to 1980.

From 1992-1993, Harvey served as President of the State Bar of California.

Currently, Harvey is a Member of the California State Bar’s California Access to Justice Committee.  He has been involved in many other committees with the State Bar of California including, Chair, Board on Discipline and Admission; Vice Chair, Legal Services; Co-Chair, LAW-HELP-LA Task Force; Member, Legal Committee; Member, Labor Relations; Member, Administrative of Justice; and Member of the Antitrust Section Executive Committee.

Harvey also served on the Judicial Council of California from 1993-1997. His committee work entailed participating on the Executive Committee, Rules and Forms Committee, Executive and Planning Committee, and Bench/Bar Coalition. He is an active member in the Ninth Circuit Judicial Conference and American Bar Association Antitrust and Intellectual Property Sections. Other bar activities include service on the Board of Trustee of the Los Angeles County Bar Association (1987-1989), President of the Association of Business Trial Lawyers (1994-95), President of the Legal Aid Foundation of Los Angeles (1987-1989), member of the Harvard Law School Board of Directors (1993-1997), and Vice President of the Disability Rights Legal Center in Los Angeles (2004-present).

Harvey’s litigation activities include trial and appellate counsel in antitrust cases and class actions in federal and state trial and appellate courts. He has also appeared before federal and state agencies and represented various businesses in federal and state investigations into antitrust and consumer protection matters. His counseling work encompasses advising clients on how to comply with state and federal antitrust laws, consumer protection laws, and other business regulations; conducting compliance seminars and programs for major corporations; advising on and conducting Hart-Scott-Rodino compliance and filing procedures in mergers and joint ventures such as the Robinson-Patman Act; and compliance counseling for major advertisers regarding consumer protection laws, intellectual property rights and media law. Harvey's litigation management cases have involved organizing, setting up and hiring personnel for a free-standing "branch" office in Chicago, IL, to represent a Chicago-based client in a hostile takeover. He also coordinated a post-trial team to overturn a $700 million federal antitrust jury verdict.  Harvey also successfully brought and settled a major antitrust/unfair competition case against a national retailer and an international food supplier on behalf of a terminated customer.

Harvey is admitted to practice in California. He received his B.A., Phi Beta Kappa, from University of California at Berkeley in 1965, and earned his J.D. from Harvard Law School, magna cum laude, in 1968, where 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, U.S. Court of Appeals for the First Circuit, Boston, Massachusetts, and as an Attorney Advisor to Federal Trade Commissioner Philip Elman in Washington, D.C.