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Antitrust Litigation and
Counseling

Our Antitrust Practice

 

 

 

 

 

 

 

 

Overview of Our Antitrust Work

Antitrust law is our principal area of expertise. The leaders of our antitrust practice are William Markham and Jarod Bona, who both received their law degrees from Harvard Law School and their formative training as antitrust attorneys in leading global firms. We litigate antitrust claims and conduct antitrust appeals under the laws of the United States and California for both plaintiffs and defendants in civil and criminal antitrust proceedings. We also provide strategic and ongoing antitrust counseling to world-leading businesses, their challengers, other substantial companies, small businesses, and other market participants. We principally represent and advise competitors, commercial customers, and suppliers in matters that concern federal and California antitrust law, and we have extensive experience litigating competitor lawsuits that arise under federal antitrust law. On occasion, we also represent wronged consumers in significant matters. More generally, we have extensive experience litigating and giving advice about matters that concern the following provisions of federal and California antitrust law:

    • Section 1 of the Sherman Act (unlawful restraints of trade) and California’s Cartwright Act (trade restraints that affect California commerce), including the application of these laws to covenants not to compete, non-solicitation agreements, and other kinds of restrictive contractual covenants.
    • Section 2 of the Sherman Act
      (the monopolization offenses).
    • Section 3 of the Clayton Act
      (exclusive-dealing and tying arrangements).
    • Section 7 of the Clayton Act
      (anticompetitive mergers and acquisitions).
    • The Robinson-Patman Act (price discrimination) and California’s Unfair Practices Act (price discrimination that affects California commerce).
    • Antitrust Violations Arising from the Misuse of Intellectual Property: A business can misuse its intellectual property or improperly invoke intellectual property rights in ways that can violate federal and state antitrust laws. Antitrust claims can arise from a firm’s misuse of legal rights conferred by patents, copyrights, trademarks, trade dress or trade secrets, but only when the misuse permits the firm to restrain or monopolize trade unlawfully.

We perform our antitrust work at the highest level of proficiency, have received public recognition, are widely regarded as experts on antitrust matters, and have obtained superb outcomes for our clients, helping them to avoid antitrust liability and obtain appropriate redress for anticompetitive abuses. For a listing of the specific kinds of antitrust matters that we have handled, click here. For a listing of the different industries in which we have advised and represented clients on antitrust matters, click here. For a partial list of some of our notable successes, click here.

Our Recent Antitrust Cases and Matters

In recent years, Mr. Markham has served as lead attorney for the following companies in significant antitrust cases: (1) a substantial maritime shipper in Southern California (Curtin Maritime, lead appellate attorney); (2) a national provider of travel nurses (Aya Healthcare, Inc. and Aya Healthcare Services, Inc., lead attorney); (3) a consortium of private-equity lenders (lead attorney); (4) a publicly-held retailer of hardware supplies that operated ninety stores (Orchard Supply Hardware LLC, lead attorney); (5) the largest privately-owned manufacturer of precast concrete products in North America (Jensen Precast, Inc., lead attorney); (6) a national polypropylene manufacturer (lead attorney in criminal investigation); (7) a distributor of medical devices (SMRT LLC, lead attorney); and (8) the world’s leading manufacturer of pulse oximetry products (Masimo Corporation, serving as antitrust adviser to its patent attorneys in bet-the-company patent and antitrust litigations).

In recent years, Mr. Markham has also provided antitrust counseling to various global corporations and other major companies, including the following: the world’s largest manufacturer of LED products (Nichia Corporation; strategic counseling in various matters as well as master contract negotiations with its largest customer); a global automobile manufacturer (Isuzu Motors, Ltd.; counseling about multinational acquisitions and divestitures); a leading manufacturer of pulse oximetry products in the United States (Masimo Corporation, antitrust adviser in strategic matters); and various other companies.

On behalf of wronged consumers, Mr. Markham also pioneered an antitrust challenge to certain business practices employed by the world’s largest retailer of replaceable contact lenses (1-800 Contacts, Inc.), discerning that by its bidding agreements with smaller rivals it had not only rigged bidding for online ads, but also allocated internet sales leads and advertising opportunities with its direct rivals. This challenge was successfully litigated and settled on behalf of wronged consumers in a consolidated class-action, in which Mr. Markham collaborated with several of the nation’s leading antitrust firms. The total amount of the consumers’ class recovery was $40 million.

Our Extensive Trial Experience and Ability to Accept Large Cases

We have extensive experience trying cases successfully and believe that this proficiency distinguishes our firm from many others, since most antitrust cases settle before trial, and therefore many antitrust attorneys understandably lack experience trying their cases in court. Our experience trying cases makes a significant difference in our ability to litigate antitrust claims: we will not hesitate to try a worthy case to a jury, and our adversaries can usually grasp this point from the manner in which we perform our work.

We can capably litigate complex, large and sprawling antitrust cases even when opposed by large teams of experienced attorneys fielded by elite and very large law firms. We have done so on past occasion and can readily do so on short notice: our core group is usually sufficient for the core work in any case, no matter how large, and on short notice we can enlist further help from other attorneys, paralegals, expert consultants, and e-discovery providers with whom we have collaborated on past occasion and whose work we trust.

Our Public Appearances in National Media

Mr. Markham has appeared in various national and regional media to discuss newsworthy antitrust matters, and he has been quoted in the following links by NBC, The Los Angeles Times, The Florida Times-Union, and Competition 360, a leading antitrust newspaper. Mr. Markham also appeared twice on Bloomberg TV in order to offer commentary about Apple’s jury trial in a prominent antitrust case. In the first show, he analyzed the trial and what went wrong for the plaintiffs, speaking after Mr. Tim Higgins. In the second show, he discussed the significance of the case for Apple, once again speaking after Mr. Higgins.

In addition, Mr. Markham and Mr. Bona have both given lectures on antitrust law for other attorneys (MCLE classes) and written extensively about antitrust law. Mr. Markham occasionally posts comments and articles about antitrust matters in his blog, and Mr. Bona does this same in his own blog. Other attorneys frequently consult their works when seeking guidance on antitrust issues.

Our Recent Appellate Appearances Before the Ninth Circuit

Mr. Markham recently appeared before the Ninth Circuit in two different antitrust appeals of national importance. The Ninth Circuit recorded these hearings on videotape for public viewing. In the first hearing, Mr. Markham brought an appeal on behalf of a healthcare staffing company, which alleged that its rival had restrained trade in the healthcare staffing industry by its use of interrelated contracts with its various business partners. In this appeal, the United States Department of Justice intervened in order to explain its view of the controlling law (it was the same as Mr. Markham’s view), and the opposing side was represented by the lead antitrust attorney for one of the world’s largest law firms. In the second hearing, Mr. Markham sought a reversal of the lower court’s dismissal of his client’s antitrust challenge. The Ninth Circuit largely agreed with Mr. Markham’s statement of the controlling antitrust law and subsequently granted his request, reversing the judgment below and remanding the case for further proceedings. The case thereafter settled under a confidential agreement.

AN OVERVIEW OF ANTITRUST LAW

Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.

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WHY ANTITRUST LAWS MATTER?

The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct “lines of commerce” or “relevant markets.” This alone is their proper purpose. 

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UNLAWFUL PRICE DISCRIMINATION

In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.

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THE REACH OF ANTITRUST LAW

Antitrust law is the law of competition. It must always be carefully considered by competitors that wish to collaborate as well as by any firm that arguably has substantial market power.

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The Law Offices of William Markham, P.C.

  • 619.221.4400
  • 619.224.3974
  • 402 West Broadway, Suite 400
    San Diego, CA 92101.

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