Below is a list of the antitrust cases that Mr. Markham has litigated during his career. Since 2005, he has been the lead attorney for plaintiffs in a succession of “competitor suits,” which are typically brought by smaller but substantial competitors against their dominant rivals. Several of these cases lasted several years and consumed much of Mr. Markham’s professional time. He therefore began to accept only a few cases at a time in 2005, so that he could litigate each one rather than manage a larger number that would be mostly litigated by other attorneys.
Mr. Markham also participated one time as class co-counsel in a substantial antitrust class-action. Much earlier in his career, when he was an associate in a global law firm, he helped more senior attorneys to litigate several antitrust cases and was eventually given his own antitrust case to manage during all pre-trial proceedings.
COMPETITOR SUITS
Curtin Maritime Corp. v. Santa Catalina Island Co. In this case, Mr. Markham was the lead attorney for a maritime shipper in a successful antitrust appeal against a rival shipper and the owner of the only commercial port that serves Santa Catalina Island (Curtin Maritime Corp. v. Santa Catalina Island Co., 9th Cir., 2018, Appeal No. 18-55338). By this appeal, the U.S. Court of Appeals for the Ninth Circuit reinstated his client’s principal antitrust claim and remanded the case to federal district court in Los Angeles. The case was subsequently settled on confidential terms.
Aya Healthcare Services, Inc. v. AMN Healthcare, Inc. In this case, Mr. Markham was the lead trial and appellate 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 attracted national attention and led to two published decisions by which the defendants prevailed on summary judgment. On appeal, the Antitrust Division of the U.S. Department of Justice intervened to urge the Ninth Circuit to apply classical principles of antitrust jurisprudence to employers’ no-poaching agreements. Its statement of the law exactly agreed with Mr. Markham’s statement of it in his own submissions to the federal district court and then in this appeal. This case led to two published decisions, which have since been cited by many other courts.
Orchard Supply Hardware LLC v. Home Depot USA, Inc. In this case, Mr. Markham was the lead attorney for a publicly-traded retailer of hardware supplies, which asserted antitrust claims and false advertising claims against the dominant national retailer and two of its suppliers. The case led to two published decisions by a federal district court in San Francisco. By these decisions, the smaller retailer’s claims largely survived the dominant retailer’s protracted challenge to their legal sufficiency. The case was thereafter settled by a confidential agreement. (Orchard Supply Hardware LLC v. Home Depot USA, Inc., N.D. Cal., 2012. Case No. 12-cv-6361).
SMRT LLC v. Resmed Corp. In this case, Mr. Markham was the lead attorney for a distributor of medical devices. On its behalf, he asserted antitrust claims under California’s Cartwright Act against two manufacturers and their favored distributor. The case was litigated in California Superior Court for San Diego County (SMRT LLC v. Resmed Corp., Cal. Sup. Ct., S.D. Cty., 2011. Case No. 37-2011-00087297). The plaintiff’s claims largely survived the defendants’ aggressive litigation of the pleadings, then settled on confidential terms shortly after discovery began.
Jensen Enterprises, Inc. v. Oldcastle Precast, Inc. In this case, which ran for longer than four years, Mr. Markham served as the lead trial and appellate attorney for the largest private manufacturer of precast concrete products in North America. On its behalf, he asserted antitrust claims in federal district court in San Francisco against the world’s largest manufacturer of these 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 plaintiff’s claims mostly survived the defendants’ motions to dismiss, and its surviving claims all withstood the defendants’ first set of motions for summary judgment. Shortly before trial, however, the district court granted summary judgment on defendants’ second set of motions for summary judgment. The district court’s grant of summary judgment was affirmed on appeal by the Ninth Circuit.
ANTITRUST CLASS-ACTION
Thompson v. 1-800 Contacts, Inc. In this case, Mr. Markham was co-counsel with several other attorneys in an antitrust class-action that challenged restraints on competitive advertising practiced by the world’s largest retailer of contact lenses and several of its smaller competitors. Mr. Markham first raised this challenge in a case entitled Stillings v. 1-800 Contacts (N.D. Cal., 2016, Case No. 3:16-cv-5400), which was later consolidated with several similar, subsequently filed cases in case entitled Thompson v. 1-800 Contacts, Inc. (D. Utah, 2016. Case No. 2:16-cv-01183). The consolidated cases were settled by a series of favorable, court-approved agreements that resulted in overall payments of $40 million to classes of plaintiffs harmed by the defendants’ anticompetitive practices.
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.
ANTITRUST LITIGATION AT COUDERT BROTHERS
After graduating from Harvard Law School in 1987, Mr. Markham became an associate litigator in the antitrust group of the San Francisco office of a law firm called Coudert Brothers. At the time, this firm was widely regarded as a leading, elite “international law firm,” but now it would be called a “global law firm,” except that it dissolved itself and ceased to exist in 2006.
While employed at this firm, Mr. Markham worked only on large cases in which the firm’s clients asserted either antitrust claims in independent cases or antitrust counterclaims in cases in which they had been sued for copyright infringement. He was given primary responsibility for managing one of the firm’s comparatively smaller antitrust cases during all pre-trial proceedings.
It was during this stage of Mr. Markham’s career that he learned the nuts-and-bolts of complex civil litigation and antitrust law.