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Antitrust Litigation and
Counseling

Overview of Our Antitrust Work

Antitrust law is our principal area of expertise. The leader of our antitrust practice is William Markham, who received his law degree from Harvard Law School and his formative training as an antitrust litigator in a leading global firm (Coudert Brothers, now dissolved).

We litigate antitrust claims and conduct antitrust appeals under the laws of the United States and California for both plaintiffs and defendants in civil and criminal antitrust proceedings. We also provide strategic and ongoing antitrust counseling to world-leading businesses, industry challengers, disruptive innovators, emerging rivals, suppliers, commercial customers, large companies, small businesses, investors, and other market participants.

We perform our antitrust work at the highest level of proficiency, have received public recognition, are widely regarded as experts on antitrust matters, and have obtained superb outcomes for our clients, helping them to avoid antitrust liability and obtain appropriate redress for anticompetitive abuses. We principally represent and advise competitors, commercial customers, and suppliers in matters that concern federal and California antitrust law, and we have extensive experience litigating competitor lawsuits that arise under federal antitrust law. On occasion, we also represent wronged consumers in significant matters.

For a listing of the specific kinds of antitrust matters that we have handled, click here. For a listing of the different industries in which we have advised and represented clients on antitrust matters, click here. For a list of our notable successes, click here. To see Mr. Markham’s articles on antitrust law, click here.

If you scroll down, or use the index above, you can learn much more about our antitrust practice on this page.

Antitrust Claims That We Have Litigated or Analyzed for Our Clients

The below-listed federal and state antitrust laws constitute the subject-matter of most of our firm’s work. We litigate claims that arise under these laws, advise our clients about their meaning and reach, and help our clients to negotiate and prepare contracts that take them appropriately into account.

Unlawful Restraint of Trade

Litigating and advising our clients about restraints of trade has been the bread and butter of our practice. The term “restraint of trade” was developed at common law in England and refers to conspiracies in restraint of trade and contracts in restraint of trade
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Unlawful Restraint of Trade under California’s Cartwright Act

We have substantial experience litigating and advising clients about claims made under California’s Cartwright Act, which is California’s principal competition law. It is codified at Cal. Bus. & Prof. Code § 16700 et seq. and prohibits any unlawful restraint of trade that substantially affects California commerce.

Historically, California case law on restraint of trade followed the federal law developed under Section 1 of the Sherman Act, but a gap between the two bodies of law has emerged and will likely become more conspicuous.
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The Monopolization Offenses

We have extensive experience litigating and advising clients about claims that arise under Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2. Section 2 forbids monopolization, attempted monopolization, and conspiracy to monopolize. Broadly speaking, a defendant commits the offense of monopolization when it uses anticompetitive practices either to acquire or preserve a monopoly position in a properly defined relevant market.
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Exclusive Dealing and Tying Arrangements Used in the Sale or Lease of Commodities

We have extensive experience litigating and advising clients about claims made under Section 3 of the Clayton Act, which is codified at 15 U.S.C. § 14, and which forbids certain kinds of exclusive-dealing and tying arrangements: namely, those that meet the following two criteria: (1) the arrangement is used in a contract or transaction for the sale or lease of a commodity in interstate commerce; and (2) the arrangement substantially lessens competition in a properly defined relevant market…. 
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Unlawful Price Discrimination and Predatory Pricing in California Commerce

We have substantial experience advising clients about claims that arise under California’s Unfair Practices Act, which is codified at Cal. Bus. & Prof. Code § 17000 et seq. The California courts have not yet given a definitive clarification of the full meaning and reach of this law, which is cast in the language of classical antitrust, enumerates forbidden practices, and is openly directed against monopolists, would-be monopolists, and mere sharp competitors…. 
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Anticompetitive Mergers and Acquisitions

Section 7 of the Clayton Act (“Section 7”), which is codified at 15 U.S.C. § 18, forbids any merger or acquisition that is likely to lessen competition substantially in a properly defined relevant market. Actions under Section 7 are usually brought by federal authorities charged with public enforcement of federal antitrust law…. 
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We Try Cases and Conduct Appeals

We never appear in a civil action unless we are prepared to try it and conduct all necessary or appropriate appellate litigation. Our litigations are conducted by two highly experienced, first-rate trial and appellate lawyers — William Markham and Dorn Bishop. They are supported by our core team. In larger cases, we can assemble a larger team by calling upon colleagues who are well-known to us, and whose work-product is superb.

Mr. Markham tried many small commercial and civil matters early in his career, and he later tried substantial commercial and common-law claims in state and federal court. From this hands-on experience, he learned the fundamentals of trial procedure and the rules of evidence in a way that they cannot be learned without conducting at least several trials. To learn more about Mr. Markham’s experience trying cases, click here.

Mr. Bishop previously served as a federal prosecutor and in this capacity conducted more than twenty jury trials in criminal cases, winning all of them.

From our past trial experience, we learned years ago to treat every case as one that might go to trial and must therefore be litigated on this assumption from the outset. That method, we believe, is by far the best way to organize the litigation of any case.

From the start, each side’s lead attorney should wish to know what are the elements of each claim or defense that he means to prove, and what admissible evidence will he need to prove each of these elements and disprove the elements that the other side must prove. He should also begin at an early date to practice his closing argument to the judge or jury. That is because a closing argument must be limited to points supported by evidence admitted during trial. A trial attorney should therefore wish to know what will he be able to say about his client’s claims or defenses at the end of a trial of his present case.

Those concerns should inform every initiative that a litigant takes. From the earliest date possible, a litigant’s attorneys should make a determined effort to secure admissible evidence that proves each element of each claim that their client asserts. More than that, they must use this evidence to prove a compelling “case theme” or “theory of the case.” For us, that is the art of trying a case successfully.

We believe that our trial skills greatly improve our ability to organize and present complicated antitrust cases, even though most of them are either dismissed or settled before trial. We will not hesitate to try a worthy case to a jury, and our adversaries can usually discern our ability to do so from the manner in which we perform our work.

We Litigate Large Cases

We can capably litigate complex, large, and sprawling antitrust cases even when opposed by large teams of experienced attorneys fielded by elite and very large law firms. We have done so on past occasion and can readily do so on short notice: our core group can develop an underlying strategy and develop or oppose claims in any case, no matter how large, and on short notice we can enlist further help from other attorneys, paralegals, expert consultants, and e-discovery providers with whom we have collaborated on past occasion, and whose work we trust.

Our Past Competitor Suits

In recent years, Mr. Markham has served as lead attorney for the following companies in significant competitor suits: (1) a substantial maritime shipper in Southern California (lead appellate attorney in case that led to a partial reversal of the trial court’s judgment, followed by a confidential settlement); (2) a national provider of travel nurses (lead attorney in original proceedings and on appeal in a closely followed case that had national significance and resulted in two published decisions); (3) a consortium of private-equity lenders (lead attorney in case that resulted in a confidential settlement); (4) a publicly-held retailer of hardware supplies that operated ninety stores (lead attorney in case that resulted in a published decision and confidential settlement); (5) the largest privately-owned manufacturer of precast concrete products in North America (lead attorney in original proceedings and on appeal in case in which the lead defendant curtailed the specific practice that occasioned the lawsuit shortly after it was filed); (6) a distributor of medical devices (lead attorney in case that resulted in a confidential settlement); (7) a global manufacturer of pulse oximetry products (serving as antitrust adviser to its patent attorneys in bet-the-company patent and antitrust litigations against a global conglomerate that resulted in a confidential settlement); and (8) serving as antitrust advisor to the same company and its patent attorneys in case in which it sued a foreign manufacturer for patent infringement and then was sued by it for antitrust counterclaims; the case proceeded to the eve of trial and was then settled under a confidential agreement).

Our Antitrust Class-Action

On behalf of wronged consumers, Mr. Markham prepared the first private class action that challenged the litigation tactics and collusive settlement agreements that the world’s largest retailer of replaceable contact lenses made with a large number of rival sellers. According to this challenge, the rival sellers’ performance of the settlement agreements constituted bid-rigging for online ads and horizontal allocation of internet sales leads and advertising opportunities. Mr. Markham’s case was eventually consolidated with several other class-actions made along similar lines. In the consolidated cases, Mr. Markham collaborated with several leading antitrust attorneys and their law firms. These cases were successfully litigated and eventually settled under a series of agreements that were reviewed and authorized by the presiding court. The total amount of these settlements was $40 million.

Our Past Work in Criminal Antitrust
Matters

Mr. Markham obtained a complete exoneration for a manufacturer of polypropylene products that was initially deemed a “target” of a criminal antitrust investigation of alleged price-fixing among manufacturers of polypropylene products. The investigation was led by the Antitrust Division of the US Department of Justice as well as various US Attorney’s Offices.

Mr. Markham also negotiated an antitrust amnesty agreement for a shipping company, which thereby averted all liability in a market-allocation case that entailed onerous criminal penalties and enormous civil liability for the remaining companies.

He also represented an individual defendant who was investigated by federal authorities for his role in alleged criminal bid-rigging at foreclosure auctions in Northern California.

Our Antitrust Counseling

Mr. Markham has also provided antitrust counseling to various global corporations and other major companies, including the following: the world’s largest manufacturer of LED products (strategic counseling in various matters, as well as master contract negotiations with its largest customer); a global automobile manufacturer (counseling about multinational acquisitions and divestitures); a leading manufacturer of pulse oximetry products in the United States (antitrust adviser in strategic matters); a large, successful exporter/shipper of used and salvaged vehicles and its shipping company; and American manufacturer of advanced medical devices.

Our Recent Antitrust Appeals 

In the recent past, we served as lead attorneys in two antirust appeals that we filed in the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). In the first appeal, we obtained a partial reversal of the judgment given below. In the second, we raised an antitrust challenge of first impression that had national significance. Indeed, the Antitrust Division of the U.S. Department of Justice (the “Division”) intervened in the appeal to express its understanding of the controlling law, which exactly agreed with our own statement.

Below you can read a short description of each antitrust appeal, our appellate briefs, and the appellate decisions that decided each appeal. You can also see the Ninth Circuit’s videotaped hearings, at which Mr. Markham argued for the appellants. You might also wish to read our take on appellate hearings (“oral arguments”) and a short summary of our past appeals.

CURTIN MARITIME CORP. v. SANTA CATALINA ISLAND CO.

Ninth Circuit, Case No. 18-55338

WILLIAM MARKHAM P.C. OBTAINS APPELLATE REVERSAL

Curtin Maritime Corp. v. Santa Catalina Island Co. In the first appeal, Curtin Maritime Corp. v. Santa Catalina Island Co. (9th Cir., Case No. 18-55338), we obtained an appellate reversal that revived our client’s most important antitrust claim, which had been dismissed on the pleadings by a federal district court in Los Angeles.

This case turned on the meaning, purpose, and proper application of the doctrine of “antitrust injury,” which is a limiting doctrine meant to prevent opportunistic plaintiffs from reaping antitrust damages (treble damages) from conduct that is incidental to an antitrust violation, but not itself anticompetitive or the intended consequence of anticompetitive conduct.

The Ninth Circuit appellate panel largely agreed with our explanation of the doctrine and analysis of the case, as becomes clear during the hearing itself. But it also expressed its concern that it was constrained by one of its own prior decisions. In the end, it reversed the district court’s dismissal of one of our client’s claims, but not all three.

That outcome was a thrilling reversal of fortune for our client, whose entire case had been tossed. The Ninth Circuit thereafter remanded the case to the district court, where the parties settled their dispute under a confidential agreement.

In Curtin Maritime, we were opposed by the antitrust group of one of California’s largest, most prominent firms (O’Melveny & Myers), as well as a leading maritime lawyer in Southern California.

We inherited this case from the legendary Max Blecher, a gifted trial lawyer and principled, forceful advocate of classical antitrust principles, who mostly litigated antitrust claims, including several that became landmark cases in the antitrust canon. During the original proceedings below, he represented the plaintiff, Curtin Maritime, but passed away at age 84 shortly after the district court dismissed the case on the pleadings. Curtin then hired us to conduct the appeal.

AYA HEALTHCARE SERVICES, INC. V. AMN HEALTHCARE, INC.

Ninth Circuit, Case No. 20-55679

WILLIAM MARKHAM P.C. BRINGS SIGNIFICANT ANTITRUST APPEAL

Aya Healthcare Services, Inc. v. AMN Healthcare, Inc. In the second appeal, Aya Healthcare Services, Inc. v. AMN Healthcare, Inc. (9th Cir., Case No. 20-55679), we represented the plaintiffs at all stages of the litigation, including the appeal, by which we sought a reversal of the outcome below — a grant of summary judgment against our clients’ claims.

Our clients were a prominent, successful healthcare staffing company and its affiliate. On their behalf, we alleged that the largest healthcare staffing company in the country, along with its corporate affiliates, had restrained trade in regional labor and service markets across the country by obliging their employees, subcontractors, and customers to accept contracts that included highly restrictive covenants. Our antitrust challenge was that (1) these covenants reinforced one another and cumulatively imposed unreasonable restraints of trade in the affected markets; and (2) one of the covenants operated in practice as a naked no-poaching restraint that should be condemned as unlawful per se.

A federal district court in San Diego declined to dismiss the case on the pleadings and partly denied the defendants’  motion for summary judgment, but it nonetheless granted summary judgment sua sponte on a ground not argued by the defendants. We appealed from this judgment to the Ninth Circuit.

Our appeal attracted national attention and raised issues of first impression concerning employers’ use of no-poaching restraints. The Antitrust Division of the U.S. Department of Justice (the “Division”) intervened to explain its understanding of the controlling law, which was identical to our statement of the matter in our submissions to the federal district court and then the 9th Circuit.

In a published decision, the Ninth Circuit denied our appeal after drawing a careful distinction between this case and an analogous case that the Seventh Circuit Court of Appeals decided in the plaintiffs’ favor. Mr. Markham respectfully disagrees with this decision.

The lead attorney for the opposing side was a Washington-based attorney who is a co-chairman of the U.S. antitrust practice of very large global firm (DLA Piper).

Mr. Markham’s Public Appearances in National Media

Mr. Markham has appeared in various national and regional media to discuss newsworthy antitrust matters. He has been quoted by NBC, The Los Angeles Times, The Florida Times-Union, and Competition 360, a leading antitrust newspaper. Mr. Markham also appeared twice on Bloomberg TV in order to offer commentary about Apple’s jury trial in a prominent antitrust case. In the first show, he analyzed the trial and what went wrong for the plaintiffs, speaking after Mr. Tim Higgins. In the second show, he discussed the significance of the case for Apple, once again speaking after Mr. Higgins.

In addition, Mr. Markham has given lectures on antitrust law for other attorneys (MCLE classes) and written extensively about antitrust law. He also posts occasional comments and articles about antitrust matters in his blog, and other attorneys consult his works or our firm when seeking guidance on antitrust issues.

Mr. Markham Provides Antitrust Commentary on Bloomberg TV

 
 

MR. MARKHAM’S ARTICLES ON ANTITRUST LAW

AN OVERVIEW OF ANTITRUST LAW (By William Markham, © 2000)

“Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.”
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ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, © 2022)

“Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce.”
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HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (William Markham, © 2021)

“Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence….,”
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ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)

“Some critics of antitrust law treat it as mere governmental overreach and an unwelcome infringement upon the ordinary operations of our free markets. (….) That criticism betrays a fundamental misunderstanding of the very term ‘free markets,’ which refers to markets that are free of any undue restraint, whether public or private.”
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UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)

“In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.”
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WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)

“The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct ‘lines of commerce’ or ‘relevant markets.’ This alone is their proper purpose.

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MR. MARKHAM’S ARTICLES ON TRIAL PROCEDURE AND CONTRACT LAW

MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, 2011)

“I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial.”
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ANATOMY OF A LAWSUIT (By William Markham, © 2007)

“This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish.”
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AN OVERVIEW OF CONTRACT LAW (By William Markham, 2002)

“Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. (….) Our society depends upon free exchange in the marketplace at every level.
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