Appellate Litigation

Orrick’s Antitrust and Competition Group has a distinguished history of handling appellate antitrust cases.

Our lawyers have briefed, and argued on appeal, cases that are considered to be among the constellation of leading antitrust precedents, including a number of the U.S. Supreme Court’s key decisions. Not only do we routinely represent clients from the beginning of litigation through all levels of appeal, we also frequently are retained in significant matters for the first time on appeal.
  • U.S. Supreme Court

    GTE Sylvania. In the U.S. Supreme Court’s decision in Continental TV vs. GTE Sylvania, our lawyers prevailed for GTE Sylvania against allegations that vertical non-price restraints constituted a per se violation of Section 1 of the Sherman Act. This landmark decision established the rule of reason as the governing standard in vertical non-price restraint cases.

    Leegin. In an important extension of our representation of GTE Sylvania in the Sylvania case, our lawyers were retained by two dozen economists (including nine former chief economists for the U.S. Department of Justice and Federal Trade Commission) to support application of the rule of reason to resale price maintenance agreements in Leegin Creative Leather Products v. PSKS. Our lawyers’ amicus brief was cited several times by the Court in its ruling.

    Weyerhaeuser Corporation. Our lawyers obtained a unanimous U.S. Supreme Court ruling in favor of Weyerhaeuser in the Court’s most recent decision addressing pricing rules under Section 2 of the Sherman Act. The Court reversed a $79 million judgment against Weyerhaeuser.

    Dagher. In the leading U.S. Supreme Court case on joint ventures, our lawyers submitted an amicus brief on behalf of Microsoft, Coca-Cola and Visa in support of the application of the single entity analysis to the fully integrated joint venture at issue.

    Credit Suisse Securities. Our lawyers filed an amicus brief in Credit Suisse Securities (USA) LLC v. Billing on behalf of the Washington Legal Foundation, arguing that implied antitrust immunity attaches to initial public offering activity by investment firms because it is regulated by the SEC.

    Liggett Group Inc. Our lawyers represented Liggett Group in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., from the inception of the case through the U.S. Supreme Court. The decision established the rule for predatory pricing under the Robinson-Patman Act and Section 2 of the Sherman Act.

    Catalano. In a landmark antitrust action, Catalano v. Target Sales, our lawyers obtained for the plaintiff class a per curiam decision of the U.S. Supreme Court, holding that the elimination of trade credit constitutes per se price fixing under the antitrust laws.

    Midcal Aluminum, Inc. Our lawyers represented Midcal Aluminum in the most significant U.S. Supreme Court case addressing the state action doctrine.

    Other Appellate Courts

    PeaceHealth. In one of the leading appellate court opinions on bundled pricing, our lawyers secured victory for PeaceHealth in the Ninth Circuit, reversing a Section 2 verdict for the plaintiff.

    3M Company. Our lawyers represented 3M on appeal in the Third Circuit in LePage’s, the other leading appellate case addressing bundled discounts.

    Masimo Corporation. Our lawyers represent Masimo in an appeal in the Ninth Circuit addressing important issues concerning market share discounts and bundled pricing.

    Hawaii Medical Association. Our lawyers obtained summary judgment and prevailed in the Ninth Circuit in defending the HMA against claims that it conspired with its member physicians and other healthcare organizations to fix prices and boycott a managed healthcare plan. 

    Visa U.S.A. Inc.  Our lawyers represented Visa in several high-profile appeals, including in the United States v. Visa U.S.A. action brought by the U.S. Department of Justice in the Second Circuit.

    Pacific Gas & Electric Company. Our lawyers successfully defended PG&E in obtaining the dismissal of a $950 million claim, and then prevailed on appeal in the Ninth Circuit. The action, brought under Section 1 of the Sherman Act and various California statutes, alleged price fixing in the acquisition of natural gas in Canada on behalf of PG&E and a wholly owned subsidiary.

    Crane Co. Our lawyers persuaded the Seventh Circuit to leave in place a preliminary injunction that Crane secured against B.F. Goodrich with regard to its acquisition of Coltec.

    Discovery Communications. Our lawyers represented Discovery in persuading the Fifth Circuit to affirm the summary dismissal of tying claims that had been filed against one of its subsidiaries, The Learning Channel.

    Irvin Industries, Inc. Our lawyers successfully resolved a predatory pricing case on behalf of the plaintiff after obtaining reversal in the Second Circuit of the district court’s order granting summary judgment for the defendants.

    United Artists Corporation. In Solinger v. A&M Records, our lawyers obtained summary judgment in favor of United Artists in a case under Section 1 of the Sherman Act, which was upheld on appeal by the Ninth Circuit.

    Pennzoil-Quaker State Company. Our lawyers obtained a Ninth Circuit ruling affirming the district court’s rejection of a private party’s Clayton Act challenge to the merger of Pennzoil and Quaker State.