Private Rechtsstreitigkeiten

Orrick’s Antitrust and Competition Group has been on the front lines of private antitrust litigation for decades, playing a central role in some of the most important cases that have defined the sophisticated legal and economic analysis that applies to the most complicated antitrust issues.

We have extensive experience with every type of antitrust claim, including claims involving price fixing, predatory pricing and buying, bundling and loyalty programs, tying, exclusive dealing, monopolization, product distribution, counterclaims in infringement actions, mergers and acquisitions.

We routinely handle the most challenging antitrust claims and procedurally complicated antitrust litigation, at times managing scores of cases involving many parties spanning multiple jurisdictions.

Our lawyers have a strong record in both the trial and appellate courts. In fact, companies often turn to us to handle their most important appeals, switching from other law firms that represented them at trial.

In the higher courts, we not only have succeeded for our clients, but we have had a profound effect in shaping antitrust law in cases such as the U.S. Supreme Court’s landmark decisions such as GTE Sylvania, Catalano, Brooke Group, Credit Suisse, Weyerhaeuser, Leegin and Dagher. Our lawyers do not simply apply existing antitrust and competition law; rather, we create antitrust and competition law.

We also are in the forefront of private damage actions in the European Union. And we filed one of the first private damage actions in the European Union, an action against the dominant rail carrier on behalf of the Enron Receiver.

  • Appellate Cases

    Our lawyers have been involved in some of the most significant appeals in private antitrust litigation, helping shape the legal and economic frameworks routinely used in both government enforcement proceedings and private litigation.

    Bundled Pricing and Loyalty Discounts

    Our lawyers have been involved in the most significant bundled pricing and loyalty discount cases, and we are recognized as leading experts in this developing area.

    PeaceHealth. In one of the leading appellate court decisions 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 decision addressing bundled discounts and in related follow-on litigation.

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

    Kohler Company. Our lawyers represented Kohler in cutting-edge antitrust counterclaims concerning bundled pricing and exclusive dealing in the sale of lawnmower engines.

    General Motors Corporation. Our lawyers represented GM in litigation brought by a significant customer alleging that GM’s loyalty program constituted illegal monopolization and price discrimination.

    Cartels

    Our lawyers have handled private litigation involving cartels and other horizontal agreements among competitors, including civil cases that were not follow-on actions to criminal enforcement proceedings. We are highly skilled at handling price-fixing, bid-rigging and boycott cases in federal and state courts, including multidistrict litigation.

    Dominant Firms

    We are leaders in representing dominant firms in private antitrust litigation, including federal and state claims brought by competitors, direct purchasers and indirect purchasers. We have handled such claims for some of the largest and most familiar corporations in the world, but also have handled cases for smaller clients in narrower and localized markets. We also have represented plaintiffs and filed claims against dominant firms, including in the European Union.

    Microsoft Corp. Our lawyers have represented Microsoft in numerous cases in venues across the United States, including in antitrust consumer class actions initiated in the wake of litigation against the U.S. DOJ and antitrust litigation brought by competitors including Sun Microsystems, RealNetworks, Burst and Be.

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

    Visa U.S.A. Inc. Our lawyers served as counsel in several large, high-profile matters for Visa, including the so-called Wal-Mart class action—the largest private treble damage action in U.S. history. After the settlement of that action, our lawyers obtained dismissals of follow-on state antitrust claims in 17 of 20 states. Our lawyers also represented Visa through trial and appeal in an action brought by the U.S. DOJ challenging Visa’s membership rules and seeking to restructure the credit card industry, as well as in separate litigation involving challenges to transaction fees for currency conversion.

    Oil Company. Our lawyers prevailed on behalf of a major oil and gas company in proceedings initiated by its competitor Dyneff (Group KMG) before the European Commission, the French Competition Authorities and the French Courts with respect to an alleged abuse of dominant position.

    Enron Receiver. Our lawyers pursued a follow-on damages action before the Competition Appeal Tribunal against the dominant rail carrier in the United Kingdom on behalf of the Enron Receiver.

    Industrial Firm. Our lawyers represented a leading industrial firm specializing in carbohydrates derivatives in proceedings before French courts relating to an alleged cartel and abuse of dominant position.

    ProLiance LLC. Our lawyers obtained a dismissal by the U.S. Court of Appeals of claims for monopolization and monopoly leveraging brought by competing marketers against a joint venture of utilities in the unregulated sale of natural gas and pipeline transportation.

    Transamerica Computer Company. Our lawyers represented Transamerica in a seven-month jury trial in federal court in Transamerica Computer Company v. IBM. This case involved claims of monopolization and attempted monopolization by IBM in the general-purpose computer systems market, as well as sub-markets for plug-compatible disk and tape drives.

    MovieFone. Our lawyers recovered US$12.5 million settlement on behalf of MovieFone in a monopolization case against Ticketmaster.

    Chemical Product Technologies. Our lawyers represented the plaintiff in a monopolization case involving herbicides.

    The Penn Traffic Company. Our lawyers successfully defended The Penn Traffic Company against monopolization claims brought by a competitor related to the supermarket business in Jamestown, New York. After a three-week trial in federal court in Buffalo, New York, the jury returned a verdict in favor of Penn Traffic.

    Intellectual Property

    Our lawyers work closely with our intellectual property lawyers to litigate the challenging issues at the intersection of antitrust and intellectual property law, including issues that arise in the context of specific license terms, standard-essential patents, patent assertion entities, patent misuse, patent pools and antitrust counterclaims in infringement suits.

    Mergers and Acquisitions

    In addition to advising and counseling clients on how to get their mergers and acquisitions approved by regulatory agencies across the globe, our lawyers are equally adept at handling private challenges to mergers.

    Pricing and Distribution

    For decades our lawyers have shaped modern antitrust law relating to pricing and distribution. We have been lead counsel in some of the most influential cases of the past half century.

    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 constitute 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, and is widely credited with having laid the framework for modern antitrust analysis in the United States.

    Leegin. In an important extension of our landmark 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. DOJ and FTC) to support application of the rule of reason to resale price maintenance agreements in Leegin Creative Leather Products v. PSKS. Our amicus brief was cited several times by the Court in its ruling.

    Liggett Group Inc. Our lawyers represented Liggett in Brooke Group Inc. v. Brown & Williamson Tobacco Corp., from the inception of the case through the U.S. Supreme Court, including a 115-day jury trial that resulted in an award of US$150 million to Liggett. The decision established the rule for predatory pricing under the Robinson-Patman Act and Section 2 of the Sherman Act.

    Data Storage Manufacturer. Our lawyers represented a leader in the data storage product market before French courts and during a litigation initiated by one of our client’s main competitors, based on the allegation that our client had put in place a resale-at-loss policy on certain products in order to exclude them from the market, resulting in alleged unfair competition practices.

    Consumer Electronics Manufacturer. Our lawyers represent a high-end consumer electronics manufacturer in numerous litigation cases involving the major dealers of its selective European distribution network before French commercial courts.

    Richemont. Our lawyers advise Richemont on a regular basis concerning a number of distribution issues, in particular the distribution of luxury products on the Internet.

    Catalano. Our lawyers obtained a decision of the U.S. Supreme Court for the plaintiff class ruling that the elimination of trade credit constitutes per se price fixing under the antitrust laws.

    Pacific Gas & Electric Company. Our lawyers successfully defended PG&E in obtaining the dismissal of a US$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.

    Contel Cellular. Our lawyers represented the plaintiff, a cellular service provider, in an action against competitors for below-cost pricing in violation of California antitrust laws.

    Crane Co. Our lawyers represented Crane Co. in the successful defense of a class action price-fixing case in TransAmerican Refining Corp. v. Crane Co.

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

    Aggregate Products Inc. Our lawyers obtained a settlement on behalf of the plaintiff in a predatory pricing case after a special master ruled that the defendant had engaged in below cost pricing.

    The Coca-Cola Company. Our lawyers obtained a summary judgment for The Coca-Cola Company and two of its bottlers in class action suits under the Cartwright Act alleging price fixing of beverages sold at 7-Eleven stores.

    Levi Strauss & Company. Our lawyers obtained a favorable settlement for Levi Strauss resolving an antitrust class action alleging overcharges as a result of retail price maintenance.

    Bristol-Meyers Squibb Co. Our lawyers defended Bristol-Meyers Squibb in several class actions under California’s Cartwright Act and Unfair Practices Act alleging price-fixing and price discrimination.

    MCA Distribution Corp. Our lawyers defended MCA Distribution against claims asserted under the Robinson-Patman Act and Sections 1 and 2 of the Sherman Act alleging that the terms for the company’s distribution of records and tapes to chain retailers were more favorable than they were to independent retailers.