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Antitrust Settlements

$40 Million in Antitrust Litigation Under Publicly Disclosed Settlement

In 2016, we developed an antitrust challenge against 1-800 Contacts, which is the leading online retailer of contact lenses in the United States. We raised this challenge on behalf of online purchasers of contact lenses. Several other law firms brought similar cases shortly thereafter, and all of these cases were subsequently consolidated into one case, in which we collaborated with other leading antitrust firms. According to this antitrust challenge, 1-800 Contacts and several other online retailers agreed to restrict their respective internet advertisements for contact lenses and to withhold commercially important information from prospective customers. In this case, the purchasers obtained valuable settlements with the different defendants, obtaining a total recovery of $40 million.
Original Case (brought by Mr. Markham): Stillings v. 1-800 Contacts, N.D. Cal., 2016, Case No. 3:16-cv-5400; Consolidated Cases: Thompson v. 1-800 Contacts, Inc., D. Utah, 2016, Case No. 2:16-cv-01257-TS.

Reversal on Appeal of Antitrust Case/Subsequent Settlement

Mr. Markham was engaged to appeal a federal district court’s dismissal of an antitrust case brought by another attorney. He succeeded in the effort, convincing the Ninth Circuit Court of Appeals to reverse the dismissal and remand the case to the federal district court in Los Angeles for further proceedings. The case settled on confidential terms after it was reinstated in the federal district court. Case NameCurtin Maritime Corp. v. Santa Catalina Island Co. (9th Cir. 2018, Case No. 18-55338).

Antitrust Settlement: Challenged Group Boycott

We obtained a highly favorable, confidential 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 Confidential Settlement: Challenged Group Boycott and Related Restraints of Trade

In this matter, we obtained another highly favorable, confidential settlement on behalf of a prominent, publicly traded California retail chain that sued a direct competitor, alleging that the competitor had prevailed on two major suppliers to refuse to make further sales it, and also alleging that the competitor had engaged in actionable false advertising.

Antitrust Dispute and Confidential 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 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 in Marine Fender Case

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: Litigation Results in Curtailment of Challenged Practice

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).

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