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William A. Markham
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About William Markham

William Markham is a trial and appellate attorney whose firm is located in San Diego. He obtained his law degree from Harvard Law School in 1987 and has litigated cases in California for the past thirty-four years. He tries cases in court and principally litigates the following kinds of claims: antitrust (civil and criminal), false advertisingtrademark offenses, copyright infringement, securities fraud, complex business litigation, and complex real estate matters, including complex foreclosures (judicial and non-judicial). This page offers a full description of his professional expertise, recent engagements, and past accomplishments.

 

Antitrust Litigation and Counseling

A trial lawyer with special proficiency in antitrust law, Mr. Markham has developed a thorough understanding of the antitrust laws of the United States and California. He now devotes much of his practice to litigating antitrust claims and providing antitrust counseling in strategic matters for substantial companies. He has also written well-received articles on antitrust law and maintains an active, popular blog that discusses antitrust issues, trade issues, and other topical themes. You can read more about our antitrust practice here

Lead Attorney in Major Antitrust Litigation

Mr. Markham has acted as the lead attorney for his clients in several major antitrust cases, usually representing businesses harmed by exclusionary practices employed by dominant competitors that seek to corner their markets. Here is a short list of his recent engagements:

  • Currently, lead attorney for several significant companies that are closely monitoring present antitrust developments to decide whether to bring antitrust challenges against gatekeeper firms that abuse their control of access to inputs and markets.
  • Lead attorney for a national provider of travel nurses in antitrust litigation against the dominant provider, which ceased using a principal challenged practice after the case began (Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., S.D. Cal., 2017, Case No. 3:17-cv-00205; Ninth Circuit, Case No. 20-55679). This case led to two published decisions (one by a federal district court and a second one by the Ninth Circuit). On appeal, the Department of Justice’s Antitrust Division intervened to express its agreement with Mr. Markham’s statement of the controlling law on employers’ no-poaching agreements.
  • Co-counsel with several leading antitrust firms in a private antitrust challenge against restraints on competitive advertising practiced by the world’s largest retailer of contact lenses and several of its smaller competitors. Mr. Markham was the first attorney to develop this antitrust challenge in a case (Stillings v. 1-800 Contacts, N.D. Cal., 2016, Case No. 3:16-cv-5400) that was later consolidated with several similar cases (Thompson v. 1-800 Contacts, Inc., D. Utah, 2016. Case No. 2:16-cv-01183). The consolidated cases were settled by a series of highly favorable, court-approved agreements that resulted in overall payments of $40 million to classes of plaintiffs harmed by the defendants’ anticompetitive practices.
  • Lead appellate attorney for a regional shipper in appellate antitrust litigation against the owner of the sole commercial port that serves Santa Catalina Island as well as its favored shipper (Curtin Maritime Corp. v. Santa Catalina Island Co., 9th Cir., 2018, Appeal No. 18-55338). In that matter, Mr. Markham obtained from the Ninth Circuit Court of Appeals an appellate reversal of the judgment given below, by which the case had been dismissed with prejudice by the United States District Court for the Central District of California. The case was subsequently settled on confidential terms after further litigation in the Central District of California.
  • Lead attorney for a publicly-traded retailer of hardware supplies, asserting claims for antitrust violations and false advertising against the dominant national retailer and two of its suppliers. These claims survived the defendants’ protracted challenge to their legal sufficiency and led to two published decisions. The case settled soon thereafter in accordance with a confidential settlement agreement. (Orchard Supply Hardware LLC v. Home Depot USA, Inc., N.D. Cal., 2012. Case No. 12-cv-6361).
  • Lead attorney for a distributor of medical devices in significant antitrust litigation under California law against two manufacturers and their favored distributor (SMRT LLC v. Resmed Corp., Cal. Sup. Ct., S.D. Cty., 2011. Case No. 37-2011-00087297). The case survived the Defendants’ aggressive litigation of the pleadings, then settled on confidential terms shortly after discovery procedures began.
  • Lead attorney for the largest private manufacturer of precast concrete products in North America, bringing an antitrust challenge against the world’s largest manufacturer of these kinds of products and its trading partner, a global telecommunications firm (Jensen Enterprises, Inc. v. Oldcastle Precast, Inc., N.D. Cal., 2006. Case No. C 06 0247). Shortly after Mr. Markham filed the case, the defendants afforded substantial prospective relief, ending the parties’ principal dispute at the outset of the case. The case was litigated for approximately four years in federal district court and then in the Ninth Circuit, surviving the defendants’ challenge to the pleadings and their first round of motions for summary judgment. All discovery procedures in the case and most pre-trial preparations were completed before the district court dismissed the case shortly before trial in response to the defendants’ second round of motions for summary judgment. That dismissal was affirmed on appeal after full appellate proceedings.

Antitrust Counseling to Global Firms and Others

Mr. Markham also provides counseling on antitrust matters, patent misuse, patent licensing, non-compete covenants, non-solicitation covenants, and all other kinds of contractual trade restraints (covenants that limit or proscribe future commercial activity). Among other engagements, Mr. Markham has served as the United States antitrust adviser to the world’s largest manufacturer of LED products in various strategic matters for the company and has provided antitrust counseling to a global automobile manufacturer concerning its multinational acquisitions and divestitures. He has also provided strategic antitrust counseling and guidance to the world’s leading manufacturer of pulse oximetry equipment in various matters and advised its patent attorneys about antitrust matters during its recent, bet-the-company patent and antitrust litigation. More generally, Mr. Markham has advised many companies over the years in significant antitrust matters of various kinds that have arisen in various industries. His clients have included global firms, major competitors, fledgling competitors, suppliers, and business customers.

Trademark Litigation, False Advertising Claims, and Other Complex Business Litigation

Mr. Markham has served as the lead attorney for large clients in litigations for trademark infringement, product-counterfeiting, and false advertising arising under the federal Lanham Act and California’s statutory and common law on unfair competition. In one such case, he was the lead attorney for an alleged ringleader defendant in the sprawling “5-Hour energy” counterfeiting litigations (Innovation Ventures LLC v. Pittsburgh Wholesale Grocers, Inc., N.D. Cal., 2012). He has also served several times as the lead attorney in cases for commercial fraud and securities fraud and is proficient in the federal and state laws that govern these kinds of disputes: in fraud cases, the outcome typically depends on uncovering and clearly explaining complicated, initially confusing facts.

Trial Work and Appeals

Early in his career, Mr. Markham tried many smaller civil matters and thereby gained significant trial experience, and since then he has tried several larger matters, winning both jury verdicts and bench verdicts after fully contested trials in difficult, intractable controversies. His most recent trial was a three-day bench trial in United States Bankruptcy Court (S.D. Cal., 2014), in which his client prevailed and established that the full amount of her state-court judgment against the debtor was nondischargeable in bankruptcy. (After obtaining this judgment, the parties reached a final settlement of all outstanding disputes between them.) You can read more about Mr. Markham’s trials here.

Mr. Markham has also litigated various appeals in federal and California courts, obtaining affirmances of successful outcomes as well as two appellate reversals of judgments rendered against his clients — one from the federal Ninth Circuit Court of Appeals and the other from a California Court of Appeal.

Mr. Markham’s trial experience makes a difference. He relishes trying cases and will readily proceed to trial if he cannot obtain a satisfactory settlement for his client. This circumstance in turn seems to help him to elicit favorable settlements from adversaries who grasp that he can try the case if it cannot be settled on reasonable terms. In fact, he has obtained many successful settlements for both plaintiffs and defendants and in particular has obtained large recoveries for several of his clients in closely contested, fully litigated matters, which he would have tried if no settlement had been reached.

Summary Judgment Against a Global Bank in Complex Lender Litigation

In one very recent case (concluded in 2018), Mr. Markham prevailed on the merits before trial, defeating a lender’s claim to perfect and enforce an equitable lien on summary judgment. In that case, the world’s largest bank, JPMorgan Chase Bank, N.A., sought to perfect and enforce its lien rights by seizing and selling a highly valuable property in San Diego in order to satisfy an old debt. After a particularly arduous litigation, Mr. Markham’s clients prevailed on summary judgment by showing that the lender’s confusingly stated claims, once properly characterized, were barred as a matter of law. Mr. Markham subsequently recovered his attorney’s fees and costs of suit from the lender, with an upward multiplier to reflect his contingent fee and the excellence of his work. The lender thereafter abandoned its appeal, ending this matter definitively. Case Name: JPMorgan Chase Bank, N.A. v. Cho et al. (Cal. Sup. Ct., SD Cty., 37-2016-00045054-CU-OR-CTL).

Professional Qualifications and Experience

Mr. Markham received his law degree in 1987 from Harvard Law School after graduating with highest honors from the University of California, Santa Barbara in 1984. While at law school, Mr. Markham served as an editor and later as an associate editor of the Harvard International Law Journal, and he worked as a summer clerk in Montréal, Québec in the competition group of one of Canada’s leading law firms, Ogilvy Renault (now part of Norton Rose Fulbright).

After law school, Mr. Markham passed the California Bar exam on his first attempt and was admitted by petition to the District of Columbia Bar Association because of his qualifying high score on the California Bar exam. He received his initial training as an antitrust litigator in a leading global law firm (Coudert Bros, now dissolved), whose clients included sovereign governments, other government agencies, Fortune 500 and Fortune 100 companies, universities, and other prominent companies and individuals. In 1990, he opened his own practice so that he could act as lead attorney and try cases in court, and he thereafter tried many smaller matters while he was still a young attorney. Over time he evolved into an accomplished trial attorney who litigates and tries substantial cases, and eventually he limited his work to certain core practice areas (listed above). Trying cases in court has been his essential work and the organizing principle of all of his litigations, even those that settle.

Publications, Media Appearances, and Legal Instruction

Mr. Markham is the author of a series of popular, well-received articles that address various legal issues, and he also maintains a popular blog on antitrust issues, trade matters, and the practice of law. He has been interviewed and quoted by The New York Times, Bloomberg TV, Vice Media, ESPN, The Los Angeles Times, CNN, NBC-San Diego, Univision, and other media. The New York Times has characterized him as an “expert” in foreclosure law. He also served as an adjunct professor of legal advocacy and legal writing at Hastings Law School, as well as an adjunct professor of constitutional law at Lincoln Law School, and he has been a featured lecturer on antitrust law and foreclosure law in classes taught to California attorneys (MCLE classes).

Professional Honors and Recognition

Mr. Markham has received substantial recognition from his peers. Every year since 2013, he has been listed as a “Super Lawyer” for antitrust law in the San Diego region by SuperLawyers.com and Super Lawyers Magazine, which list only the leading attorneys in each practice area in each region of the country. He has also received a rating of 9.8 by Avvo, the online attorney rating service. In the annual poll of San Diego attorneys conducted by The San Diego Daily Transcript, he has repeatedly been a semi-finalist for “best business litigator” (2006, 2007, 2011 and 2012) and also for “best real estate litigator” (2010) and “best intellectual property litigator” (2015). He also has been recognized as one of San Diego’s “best real estate attorneys” in San Diego Metro Magazine (2011 and 2012). In addition, in 2013 he served on the LRIS Committee of the San Diego County Bar Association, which sets attorney referral standards and provides the general public with referrals to qualified attorneys who practice law in San Diego County. While serving on the LRIS Committee, he helped to establish new LRIS standards for key lawyer-referral panels. He has also served as a judge in the Moot Court Honors Competition of San Diego University Law School.

Foreign Languages and Further Information

Mr. Markham is genuinely fluent in French, which he speaks like a native French speaker. He can also converse with complete fluency in Spanish. He is admitted to practice law in California, Washington, D.C., and various federal courts, and he belongs to the following professional organizations: the French-American Chamber of Commerce (San Diego County), the State Bar of California, the District of Columbia Bar, and the San Diego County Bar Association. You can contact him directly at [email protected]. When he is not litigating, he loves to “follow the sea” and is devoted to various maritime passions. He enjoyed a short sabbatical from his work during part of 2001.

Appearances on Bloomberg TV: Videos

Below are two videos of Mr. Markham’s recent appearances on Bloomberg TV. On one show, he analyzed a major antitrust trial that was tried to a jury, speaking after Mr. Tim Higgins and appearing by telephone. On the next show, he explained why in his view the jury ruled for the defendant (Apple, Inc.), speaking after Mr. Higgins and appearing in person.

Appearances Before the Ninth Circuit Court of Appeals: Videos

On various occasions, Mr. Markham has served as the lead appellate attorney in significant antitrust appeals heard by the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). The Ninth Circuit now provides videotapes of its proceedings, and therefore Mr. Markham’s last two appearances before the Ninth Circuit are shown in the below videos. In all appellate appearances, the parties first submit extensive briefs, then appear at a hearing to answer appellate judges’ questions about the issues raised on appeal, as can be seen in the below two videos.

In the first video, Mr. Markham represented a large provider of travel nurses that made an antitrust challenge to business practices employed by a rival provider. This case attracted national attention, and during the appeal the U.S. Department of Justice’s Antitrust Division intervened in the case to express its agreement with Mr. Markham’s statement of the law on key antitrust issues: namely, what constitutes a naked no-poaching agreement between rival employers?, and, more generally, what constitutes a restraint of trade that is unlawful per se? In a published decision, the Ninth Circuit denied the appeal after drawing a narrow distinction between the case before it and a similar case in which the Seventh Circuit reached the opposite conclusion. Case Name and Published Decision: Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., 9 F.4th 1102 (9th Cir. 2021).

In the second video, Mr. Markham argued in support of his client’s request to overturn a federal district court’s dismissal of its antitrust case. The Ninth Circuit agreed with his essential points and subsequently issued a decision that reversed the dismissal and reinstated the case, which subsequently settled. Case Name: Curtin Maritime Corp. v. Santa Catalina Island Co., Case No. 18-55338, 9th Cir. 2018.

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