Successful Antitrust Matters

Antitrust Counsel to World’s Largest Manufacturer of LED Products. Mr. Markham provided antitrust counsel to the world’s largest manufacturer of LED products during its contract negotiations with a world-famous, major producer of electronic devices. Mr. Markham acted as the lead negotiator on antitrust issues for his client during these contract negotiations, which were successfully concluded in a manner that protected both sides from inadvertent exposure to antitrust complications. Under the contract, Mr. Markham’s client has remained the largest seller of LED products to the producer and its affiliates in its supply chain, making annual sales on an enormous scale. Mr. Markham has since remained this client’s antitrust advisor on other strategic matters.

Antitrust Litigation and Settlement: Challenged Group Boycott. Mr. Markham obtained a highly favorable settlement for a reseller of business equipment who challenged certain distribution restrictions imposed by the predominant manufacturers of these devices. The case was as follows: The manufacturers stopped selling the equipment to the reseller because it had tried to make sales in violation of their restrictive distribution policies. By the settlement, they resumed making sales to the reseller, made exceptions to their challenged policies, and paid a substantial settlement.

Antitrust Litigation and Settlement: Challenged Group Boycott and Related Restraints of Trade. Mr. Markham obtained a highly favorable settlement for a major, publicly-traded retailer that alleged that its rival had coordinated a group boycott and employed false advertising in order to undermine its operations shortly after it had developed an innovative manner of making its retail sales during changing times.

Antitrust Defense In Criminal Investigation and Related Civil Matter. Mr. Markham successfully defended a manufacturer of polypropylene products against potential claims of price-fixing and horizontal market allocation brought under Section 1 of the Sherman Act. This supplier was initially designated a “target” in an ongoing criminal investigation undertaken by the Department  of Justice, Antitrust Division. Mr. Markham persuaded the DOJ to close its investigation without filing a complaint, and he persuaded would-be civil litigants not to seek relief against his client. In this case, Mr. Markham’s client obtained an unqualified and prompt release from any possible liability or obligation.

Antitrust Amnesty: Mr. Markham successfully negotiated and concluded a comprehensive antitrust amnesty agreement between his client and the US Department of Justice, Antitrust Division. Under this agreement, Mr. Markham’s client was absolved of all responsibility in a matter that eventually led to criminal convictions and major civil settlements against all of the other participants in a conspiracy to fix prices and allocate markets by territory.

Antitrust Settlement: Resolution of Standards-Setting Matter. In this case, Mr. Markham collaborated with others to persuade a prominent national standards-setting agency, the American Society for Testing and Materials, to revise two of its private standards for certain kinds of construction materials. The revised standards allow the inclusion of an entire category of products made by Mr. Markham’s client. This matter was privately resolved by the parties before any litigation was initiated. In this matter, Mr. Markham’s client alleged that certain “interested” members of the standard-setting agency had deceived the agency into adopting standards that improperly excluded a category of products made by the client and others. The colluding members did so to exclude the unwelcome competition posed by the excluded category of products. Mr. Markham’s essential antitrust theory was that the colluding members by their conduct had unlawfully restrained trade in violation of Section 1 of the Sherman Act, and that the standards-setting agency possibly bore responsibility itself because it had failed to enforce its own procedures properly. In this matter, Mr. Markham interacted with a national trade association that supported his client’s position. The result constituted an unqualified success for Mr. Markham’s client and all other similarly situated manufacturers.

Antitrust Litigation: Lead Counsel in Major Litigation Over Telecommunications Infrastructure. Mr. Markham was lead counsel for a major firm in a substantial, full-blown antitrust litigation that was busily litigated from 2006 to 2010 in the Northern District of California and then in the Ninth Circuit Court of Appeals. Mr. Markham’s client, Jensen Precast, was the largest privately-owned manufacturer of precast concrete products in North America. It asserted antitrust claims and related claims against AT&T and one of its suppliers, Oldcastle Precast, which was the world’s largest producer of precast concrete products (it was also a subsidiary of CRH plc, the world’s largest seller of construction materials). These defendants ultimately prevailed after years of closely contested litigation, but before then they curtailed one of their principal offending practices in response to the lawsuit, allowing Mr. Markham’s client to resume making sales of an entire line of products that it had been prevented from selling (precast electrical vaults in the vast regions of California and Nevada served by AT&T’s landline network).

Defendants were represented by two teams of preeminent, world renowned antitrust attorneys. The trial court substantially rejected their motions to dismiss and the entirety of their first round of motions for summary judgment. Much later in the case, the trial court granted a second motion for summary judgment, ending the case shortly before trial was scheduled to begin. By then, both sides had largely prepared for the trial. Mr. Markham also handled the appeal, continuing to oppose some of the best antitrust practitioners in the world. The Ninth Circuit affirmed the trial court’s grant of summary judgment, definitively concluding the litigation. From this experience, Mr. Markham learned to act as a lead attorney in major antitrust litigation against dominant firms represented by world-leading antitrust attorneys both in trial court and on appeal. He also collaborated closely with Professor Robert Hall (ret.), the famous antitrust economist at Stanford University and the Hoover Institution.

This case also gave rise to a related class action against A&T, in which Mr. Markham and two other law firms represented property developers that had suffered losses because of the challenged pricing manipulation. Case name: Jensen Enterprises, Inc. v. Oldcastle Precast, Inc. et al. (9th Cir., Case No. 09-15861). The related class action was La Collina dal Lago, L.P. v. Pacific Bell Telephone Company (CA Sup. Ct., Sacramento Cty., Case No. 2009-00037035-CU-BT).

Antitrust Litigation and Settlements: Intellectual Property Disputes. Early in his career Mr. Markham worked as an associate in the antitrust practice of a major international law firm (Coudert Bros., now dissolved). During this period, he principally litigated claims and cross-claims under the Sherman Act in disputes that concerned (1) the alleged misuse of copyrights for computer software; and (2) competition among service-providers for the maintenance of computer hardware and other kinds of office equipment. Some of these cases were major, prominent antitrust cases that received significant national attention in the early 1990s. One of them was fully tried, and Mr. Markham acted as a junior attorney for the trial team. Before leaving this firm, Mr. Markham was given authority to prepare and litigate a significant antitrust case.

You can read more about our antitrust practice here, and you might also wish to read the following three articles on antitrust law by Mr. Markham that discuss the essential principles and various doctrines of U.S. antitrust law:  An Overview of Antitrust LawWhy Antitrust Laws Matter, and Unlawful Price Discrimination: An Obscure Antitrust Offense.