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 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 Settlement: Challenged Group Boycott and Related Restraints of Trade. Mr. Markham obtained a highly favorable settlement for a major 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 Litigation: Successful Defense In Criminal/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 Litigation: Successful Coordination of 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 Litigation: 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.  In this matter, Mr. Markham alleged that certain “interested” members of the standard-setting agency had deceived the agency into adopting standards that improperly excluded the category of products made by Mr. Markham’s client and others. These members did so in order to exclude the unwelcome competition posed by this line of products. Mr. Markham alleged that the conduct constituted an impermissible restraint of trade in violation of Section 1 of the Sherman Act, and he asserted corresponding claims against the offending members, as well as related claims against the standards-setting agency itself for failing 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 conducted for longer than three years in the Northern District of California, then appealed in the Ninth Circuit. Mr. Markham’s client, Jensen Precast, was the largest privately held precast concrete producer in North America. It asserted antitrust claims and related claims against AT&T and one of its suppliers, Oldcastle Precast, which was a subsidiary of the world’s largest construction materials firm, CRH plc.

These defendants curtailed the principal offending practice six days after Mr. Markham’s client filed suit, allowing Mr. Markham’s client to resume making sales of an entire line of products that it had been prevented from selling.

Defendants were represented by two teams of preeminent, world renowned antitrust attorneys. When they moved for summary judgment early in the case, the trial court rejected all of their challenges and ruled that all of the claims of Mr. Markham’s client could proceed to trial. After extensive discovery and expert analysis, the Defendants were able to point to their post-lawsuit reforms and a new analysis of the economics of the case in order to prevail on a second motion for summary judgment, which ended the case in their favor more than three years after Mr. Markham had first filed it. Even so, the challenged conduct immediately stopped because of the lawsuit, and the Defendants never resumed this course of conduct.

Mr. Markham was hired to handle the appeal, and he again litigated against some of the best antitrust practitioners in the world on the appeal, but the Ninth Circuit affirmed the ruling below. During this case, Mr. Markham emerged as an attorney who is not only highly knowledgeable in antitrust law and litigation, but also capable of acting as the lead attorney in major antitrust litigation. He collaborated closely in this case with Professor Robert Hall, the famous antitrust economist at Stanford University and the Hoover Institution. 

Mr. Markham’s client was a manufacturer of a necessary component used to connect new property developments in California and Nevada to AT&T’s underground infrastructure. On this client’s behalf, Mr. Markham argued that AT&T and one of its suppliers had acted in concert to force substantially all property developers in California and Nevada to purchase the product in question only from this one supplier, but not from any of the supplier’s rivals, the largest of which was Mr. Markham’s client. The supplier in turn refused to sell this product to Mr. Markham’s client, which therefore could not sell other, related products and offer to install the preferred supplier’s compulsory products along with its own products. According to this challenge, AT&T and the supplier agreed to exclude all of the supplier’s competitors as part of a larger effort by AT&T to subject the property developers to a price manipulation, by which the property developers were forced to pay substantially higher prices for the products in question.

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:  Intellectual Property Disputes.  Early in his career Mr. Markham worked as an associate in the antitrust practice of a major international law firm (Coudert Brothers, 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.

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.