Merril has represented plaintiffs and defendants in antitrust, intellectual property, securities, corporate, discrimination, class action, and other cases in courts across the country, and advised clients on antitrust, intellectual property and other issues. His experience includes significant False Claims Act cases, a successful challenge to the SEC's "broker-dealer rule," and an $85 million class action settlement involving telecommunications rates. He also maintains an insurance practice, in which he represents the interests of directors and officers liability insurers in scores of matters, including complex securities, takeover and intellectual property cases, and coverage litigation; the interests of general liability carriers in asbestos litigation; and the interests of a managed care errors and omissions insurer in connection with underlying RICO litigation against health insurers.
Prior to joining the firm, Merril was a Trial Attorney in the Civil Division of the United States Department of Justice. There, he represented federal agencies and employees in courts across the country, primarily in cases challenging the validity of agency action and regulations and the constitutionality of Acts of Congress. Among other experience, Merril was the lead counsel representing the United States Department of Education in the eight-month school desegregation trial in Kansas City, Missouri, the lead counsel representing the Veterans Administration in a two-month trial challenging the constitutionality of an Act of Congress, and one of the primary counsel responsible for negotiating an innovative Title VII class action employment settlement that reorganized the personnel practices at a major military base.
Representative Experience
Successfully represented the USA Track & Field Association in an antitrust challenge to its standards for competition.
Represented the Financial Planning Association in its successful challenge to the SEC's "broker-dealer" rule in the United States Court of Appeals for the District of Columbia Circuit.
Represented realtors in novel False Claims Act case that obtained $76.25 million in recoveries based upon allegations of price fixing for carbon fiber.
As co-counsel, resolved a 15-year asbestos coverage dispute involving scores of thousands of asbestos claims.
Obtained injunction to prevent former employees from stealing trade secrets from a large-scale electrical supply company.
Obtained an $87.5 million settlement, serving as plaintiffs' co-lead counsel on behalf of a group of telecommunication companies in litigation involving telephone rates.
Was part of a team that secured $200 million jury verdict finding 12,600 violations of the Federal False Claims Act claim.
Represented the primary director's and officers' liability insurer in connection with what was at the time the nation's largest health care bankruptcy.
Represented inventor of the accordion-folded car shade against damages under the Lanham Act.
Helped to craft the class action mechanisms used to settle $2 billion of asbestos liabilities.
Represented a DSL service provider in an antitrust action against a competing incumbent local exchange carrier for unlawfully maintaining monopoly power in various telecommunications markets.
Represented a DSL service provider in a service disruption case in trial court and United States Court of Appeals for the Ninth Circuit.
Publications
"Background of the Illinois Brick Decision," Appendix, ABA Section of Antitrust Law's Indirect Purchaser Litigation Handbook (August 8, 2007).
Reverse Payment Settlements, ANTITRUST Summer 2007 Issue (August 7, 2007).
"I Didn't Say Orphan Often: The Benefits of a Bright-Line Rule Banning Brand to Generic Payments in Hatch-Waxman Patent Settlements," ABA Antitrust Health Care Chronicle, Vol. 19, No. 2 (Summer 2005).
"Are False Positives Really So Negative? A Response to Kevin McDonald," ANTITRUST, Vol. 17 No. 3, at 83 (Summer 2003).
"The Essential Facilities Doctrine: Keeping the Word 'Epithet' from Becoming One," Ross, Dixon & Bell, LLP (March 21, 2003).
"In Re High Fructose Corn Syrup: A New Form of Chicago School Education," Findlaw.com (November 1, 2002).
"Can An Insurer and An Insured Settle an Insurance Policy?," 11 Mealey's Litigation Report at 15.
ABA's Antitrust and Telecommunications Practice Guide, Sherman Act Section 2 Chapter, Co-Author.
Presentations and Speaking Engagements
"The FTC v. Cephalon case: What does it mean for future brand-generic patent settlements?" ABA Section of Antitrust Law (June 23, 2008).
"A Dickensian View of Pharmaceutical Antitrust: Bleak House or Great Expectations?" Generic Drug Summit, Institute for International Research (June 19, 2008).
"Overturning the SEC 'Broker Dealer Rule' - What to Expect Going Forward," 2008 fi360 National Conference (May 8, 2008).
"Should We Allow Brand Companies to Pay Generics to End Patent Challenges: James J. Kirkpatrick Meet Shana Alexander," Law Seminars International, Seminar on Pharmaceutical Antitrust (April 24, 2008).
"February In-House Counsel Antitrust Update," ABA Section of Antitrust Law (March 3, 2008).
"The SEC's Regulation of Fee-Based Brokerage Accounts: A Case Study in Administrative Law," ABA Administrative Law Conference (October 25-26, 2007).
"A General Practitioner's Guide: What to do if Your Client has an Antitrust or Intellectual Property Issue," Ross, Dixon & Bell, LLP (April 24, 2007).
"Paying Off Generics to Prevent Competition with Brand Name Drugs: Should it be Prohibited?" Testimony before the Senate Judiciary Committee (January 17, 2007).
Law Seminars International, Seminar on International Cartels (September 8, 2006).
"In-House Counsel Antitrust Update," ABA Antitrust Section, Corporate Counseling Committee (June 28, 2006).
"Antitrust: The Business Case," Ross, Dixon & Bell, LLP (June 20, 2006).
ABA Antitrust Health Care Conference (May 12, 2006).
Telecommunications Program, ABA Antitrust Spring Meeting (April 1, 2005).
Other Distinctions
Selected for inclusion in Washington DC Super Lawyers (2012).
RDB and Its Co-Counsel Obtain Settlements Totaling $76.25 Million in False Claims Action (May 28, 2008)
Merril Hirsh Wins Compliance Reporter Lawyer of the Year Award, RDB Attorneys Recognized for Success in FPA Case (March 19, 2008)
Merril Hirsh Quoted in Registered Rep Article on SEC's RAND Report (February 1, 2008)
Twelve RDB Attorneys Named Finalists in Lawdragon 500 Leading Lawyers in America (September 14, 2007)
Merril Hirsh Honored at Financial Planning Association's National Conference (September 10, 2007)
Hirsh Quoted in Registered Rep Article on Annulment of SEC Broker-Dealer Rule (April 4, 2007)
DC Circuit Strikes Down SEC Broker-Dealer Rule (March 30, 2007)
Merril Hirsh Testifies Before the Senate Judiciary Committee on Paying Off Generics to Prevent Competition with Brand Name Drugs (January 17, 2007)
2007 Lawyer of the Year, Compliance Reporter ARC Award
2007 "Lawdragon 3000" Leading Lawyer
Merril Hirsh Quoted in Corporate Board Member Magazine Article (July 11, 2006)
InvestmentNews Article Discusses Financial Planning Association Case (June 5, 2006)
RDB Files Reply Brief on Behalf of The Financial Planning Association in its Challenge to the Broker-Dealer Rule (May 25, 2006)
Briefing in Lawsuit Challenging the SEC's Broker-Dealer Rule Nears an End (May 11, 2006)
FPA Files New Lawsuit Against SEC (April 28, 2005)
Work Experience
Partner, Troutman Sanders LLP, 2009-present
Partner, Ross, Dixon & Bell, LLP, 1994 - 2008
Associate, Ross, Dixon & Bell, LLP, 1989 - 1994
Trial Attorney, U.S. Department of Justice Civil Division, 1982 - 1989
Memberships
· Member, American Bar Association Antitrust Section Task Force on Brank-Generic Patent Settlement Legislation (2007-present)
· Member, American Bar Association Advisory Committee (2006-present)
· Member, American Bar Association, Antitrust Section and Litigation Section