William Markham

William Markham is a trial attorney based in San Diego who obtained his law degree from Harvard Law School in 1987 and has litigated cases in California for the past twenty-nine years. He tries cases in court and principally litigates the following kinds of matters: antitrust cases (civil and criminal)false advertisingtrademark offenses, securities fraud, other kinds of business litigation, and certain kinds of real estate litigation.

Antitrust Litigation and Counseling. A trial lawyer, Mr. Markham has developed a thorough understanding of federal and California antitrust law over the years. In particular, he litigates claims and provides antitrust counseling in matters that implicate the following antitrust laws: Section 1 of the Sherman Act (unlawful restraints of trade); covenants not to compete and other kinds of restrictive contractual covenants; Section 2 of the Sherman Act (the monopolization offenses); the intersection of antitrust law and intellectual property law; 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); California’s Cartwright Act (trade restraints that affect California commerce); and California’s Unfair Practices Act (price discrimination that affects California commerce). He has also written well-received articles on antitrust law and maintains an active, popular blog in which he frequently discusses current issues and disputes arising in antitrust law.

Lead Attorney in Major Antitrust Litigations. Mr. Markham has acted as the lead attorney in various major antitrust cases, often representing businesses that have been harmed by exclusionary practices used by dominant competitors. Here is a short list of his recent engagements:

    • Currently, the lead attorney for a national provider of medical-travelers in antitrust litigation against the dominant provider (Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., S.D. Cal., 2017).
    • Lead attorney for a publicly-traded regional retailer of hardware supplies, asserting antitrust claims and false advertising claims on its behalf against the dominant national retailer and two of its suppliers (Orchard Supply Hardware LLC v. Home Depot USA, Inc., N.D. Cal., 2012).
    • 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).
    • Lead attorney for a distributor of medical devices in significant antitrust litigation against two manufacturers and their favored distributor (SMRT LLC v. Resmed Corp., Cal. Sup. Ct., S.D. Cty., 2011).
    • The first attorney to develop a class-action antitrust challenge to advertising restrictions employed by the world’s largest retailer of replaceable contact lenses (Stillings v. 1-800 Contacts, Inc., N.D. Cal., 2016). Other attorneys subsequently brought their own parallel cases. All of these cases have been transferred and consolidated in a proposed class-action entitled Thompson v. 1-800 Contacts, Inc. (D. Utah, 2016). In this matter, Mr. Markham is collaborating with leading class-action firms.

Antitrust Counseling to Global Firms and Others. Mr. Markham also provides counseling on antitrust matters and covenants not to compete. He 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 her state-court jury verdicts were nondischargeable in bankruptcy. He also served as the trial attorney in the preceding state-court case, presenting his client’s case to a jury (Cal. Sup. Ct., 2007). He has also litigated various appeals in federal and California courts, obtaining affirmances of successful outcomes as well as a reversal of a judgment rendered against his client.

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.

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, CNN, ESPN, 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 the highest possible rating of 10.0 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, and he can 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 wm@markhamlawfirm.com. 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.