Practice Areas & Industries: Sheppard, Mullin, Richter & Hampton LLP

 




Antitrust and Trade Regulation Return to Practice Areas & Industries

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Practice/Industry Group Overview

For decades, Sheppard Mullin has been a leader in the antitrust bar. Gordon Hampton, one of the firm's name partners, was a founder of the Antitrust Section of the American Bar Association. That tradition continues today with a dynamic Antitrust and Trade Regulation practice spanning every aspect of antitrust law. Our practice currently encompasses matters involving mergers and structural issues, criminal grand jury proceedings, international antitrust enforcement, pricing practices, product distribution, joint ventures, class actions based on federal and state antitrust and unfair competition laws, among many other areas. We represent clients in a wide variety of industries, including healthcare, pharmaceuticals, financial services, aerospace, energy, technology, publishing, distribution, courier and food services.

Sheppard Mullin is respected nationwide for its strong expertise in the antitrust field. The firm's Antitrust lawyers both write and speak extensively before various legal, industry and trade groups. Recent publications include a book summarizing California Antitrust and Unfair Competition law and analyses of the DOJ/FTC Competitor Collaboration and Health Care Guidelines. Our Antitrust attorneys include former Antitrust Division lawyers, Federal Trade Commission lawyers, national practice leaders -- including one of the leading antitrust lawyers in the United States (Chambers and Partners) and a California Antitrust Lawyer of the Year (State Bar of California) -- and a former Chair of the Antitrust & Unfair Competition Section of the California State Bar.

International Criminal Antitrust Litigation

Major recent international price fixing prosecutions, an unprecedented level of cooperation among prosecutors here and abroad and resulting multi-hundred million dollar fines and jail sentences have signaled a sharp increase in criminal antitrust enforcement and resulting civil cases. The effective defense of criminal antitrust matters—and parallel private civil litigation—is a particular Sheppard Mullin strength.

Criminal antitrust enforcement actions can be more serious than civil cases because of potentially large fines for corporations, jail sentences for executives and the consequences of criminal dispositions for the civil litigation that typically follows. Our first objective is to forestall criminal action by the enforcement agency or to obtain a determination from the government not to proceed with a criminal investigation that has already begun. We are fully prepared, however, to defend our clients through trial and appeal, if necessary.

Related enforcement activity in the European Union, Brazil, Canada, Japan, Korea and other countries often occurs in major cartel cases. For that reason, the defense of criminal antitrust litigation often requires knowledge of a complex array of laws, practices and procedures, both in the United States and abroad. With competition lawyers in Asia, Sheppard Mullin is highly experienced in coordinating the worldwide defense of such cases. This knowledge coupled with Sheppard Mullin's experience in defending national antitrust U.S. civil class actions permits a seamless global coordination of overall defense strategy.

Government Merger and Civil Conduct Investigations

Much of the enforcement of antitrust laws is done by government agencies, particularly the Federal Trade Commission and the Antitrust Division of the Department of Justice. In addition, the California State Attorney General and local prosecutors often use California's Cartwright Act and Unfair Competition Laws to investigate and bring enforcement actions.

Sheppard Mullin counsels clients involved in government civil investigations and enforcement activities, including merger transactions, joint ventures and various types of pricing and distribution restraints. Our understanding of and direct experience with merger enforcement allow us to steer clients successfully through what can often be a difficult and complicated process. We also routinely represent our clients before the Federal Trade Commission and the Department of Justice, where we maintain a positive reputation and solid working relationships with government representatives. Some of our attorneys have many years of experience practicing at enforcement agencies.

Private Civil Antitrust Litigation

Under both state and federal antitrust laws, private parties can bring antitrust claims seeking treble damages, injunctive relief and recovery of attorneys' fees. Such lawsuits may assert a variety of antitrust violations such as price fixing, price discrimination, distribution restraints, monopolization and the like. Sheppard Mullin typically represents defendants in such actions, although we sometimes prosecute such matters.

We currently represent various defendants in many of the most significant antitrust class actions in the country. These include actions relating to vitamins, wholesale electricity, Dynamic Random Access Memory ("DRAM") and cosmetics. In addition, we have recently defended—and prosecuted—monopolization and merger cases representing clients in industries ranging from sports to newspapers. Our attorneys have also successfully tried numerous major antitrust cases.

California Antitrust and Unfair Competition Law

Sheppard Mullin routinely represents clients in defending and prosecuting state claims under California's Cartwright Act, Unfair Practices Act and Unfair Competition Law. The firm has significant experience defending clients in such cases, including for instance, defending recent claims brought against energy producers and credit card associations. We have also defended horizontal price fixing actions, both private actions and those brought by state government enforcement agencies, as well as defended predatory pricing and other actions under California's Unfair Practices Act. The firm regularly provides advice to aid clients in complying with competition laws on pricing issues, such as discount, advertising and rebate programs.

While California antitrust law parallels federal antitrust law in many respects, there are important differences. We regularly publish a booklet on California Antitrust and Unfair Competition Law. Sometimes conduct which is permitted under federal law may not be allowed under state law, or vice versa. Sheppard Mullin lawyers maintain expertise in both areas, which allows our firm to provide effective advice in a cost efficient manner.

International Counseling

With the globalization of business and the economy, many antitrust issues arise with respect to the application of foreign antitrust laws or with respect to foreign companies doing business in the United States. Sheppard Mullin represents clients in connection with such proceedings, and we frequently advise companies based in Europe, Asia, Australia and Africa on the application of U.S. antitrust laws to their businesses in the United States and elsewhere.

In recent years, we have represented merging companies in pre-merger compliance negotiations with the relevant government authorities in the European Union, Brazil, Argentina, Australia and Iceland. We have advised foreign companies from Germany, France, Japan, the United Kingdom, Russia and Canada with respect to pre-merger notification and review in the United States, as well as making certain that their pricing and distribution practices comply with domestic antitrust laws. We also have advised such clients with regard to the antitrust laws of Canada and the United Kingdom. We have also represented foreign entities in investigations brought by U.S. agencies, and private antitrust lawsuits under both federal and state law. Our lawyers in China and the United States also have closely watched the developments regarding China's Anti-Monopoly Law and pre-merger notification rules.

Intellectual Property

Intellectual property transactions and litigation can raise antitrust and trade regulation concerns where the acquisition, sale or enforcement of intellectual property rights might affect market power or lead to a restraint of trade. Sheppard Mullin advises some of the most forward thinking and innovative clients in the country in connection with the antitrust and trade regulation issues that may have an impact on such transactions. We represent many clients in the high tech industry on antitrust matters with respect to product distribution and licensing restraints, pricing practices, mergers and acquisitions, joint ventures and other competitor collaborations.

In addition to the wide range of computer and software businesses we represent, we have assisted healthcare, transportation, music, publishing, defense and utility companies in resolving complex problems pertaining to antitrust challenges. We have defended our clients against alleged liability resulting from unlawful patent prosecution and the tying of IP assets; price maintenance and resale distribution problems; antitrust claims associated with the inappropriate use of copyrights, patents and trademarks; and the failure to meet the requirements of licensing agreements.

Healthcare

Since the adoption of the Department of Justice and Federal Trade Commission's Antitrust Enforcement Policy in Health Care in 1996, the application of the antitrust laws to physician groups, physician and hospital joint ventures, hospital joint ventures and joint purchasing arrangements among healthcare providers is determined by a set of principles derived from other aspects of antitrust law. Sheppard Mullin's Antitrust lawyers are highly experienced in the practical application of these Health Care Guidelines.

We advise physician groups on the spectrum of antitrust challenges, including how to structure their organizations so that they can effectively negotiate with major payors without running afoul of the antitrust laws. We have provided advice to medical supply companies on joint purchasing arrangements, including designing them in a manner that achieves the client's objective of reducing purchasing costs while still complying with the Health Care Guidelines. We represented a company in the largest HMO merger in history involving the Medicare market. This merger was subject to scrutiny by the Federal Trade Commission, and our attorneys were successful in advocating the agency to permit the deal to close without taking an enforcement action.

Perhaps the largest area of our Antitrust practice is litigation, encompassing both private parties and with the government. Our expertise includes the defense of clients against price fixing and/or monopolization claims, as well as medical staff privilege cases raising issues under the Health Care Quality Improvement Act.

Consumer Protection

Our attorneys have counseled and represented numerous firms and individuals in connection with consumer protection matters before the Federal Trade Commission, state attorneys general and private sector self-regulatory bodies. We have defended a myriad of companies and individuals that have been the subject of consumer protection investigations under Section 5 of the FTC Act. In that capacity, we have assisted our clients negotiate a broad range of remedies with the FTC, including cease and desist orders, corrective advertising, more complete disclosures and consumer redress, in addition to helping reduce the financial remedies and civil penalties demanded by the government for alleged violations of Commission orders. We also counsel clients concerning compliance with the FTC Act and various state consumer protection and deceptive practices acts.

Antitrust Counseling

Because the best way to solve problems is to prevent them in the first place, Sheppard Mullin specializes in formulating and implementing effective antitrust compliance programs. We offer a two hour compliance program to clients at no charge, as well as other more in-depth programs where appropriate. We advise clients about whether specific proposals or conduct are consistent with the antitrust laws. We can also "audit" a company's policies and procedures to be certain they comply with antitrust laws, as well as recommend solutions when and where they are needed. State laws, particularly those in California, often have unique interpretations that companies should know. Our antitrust compliance programs are company specific and cover both state and federal laws.


 
Group Presentations
  ABA 63rd Antitrust Spring Meeting, April 15, 2015
 
Past Seminar Materials
  Advanced Seminar on China Antitrust, April 2, 2015
 
 
Articles Authored by Lawyers at this office:

Revised “Fred Meyer Guides” Leave Treatment of Key Robinson-Patman Act Provisions Unchanged
Don T. Hibner, February 27, 2015
While hardly ever enforced in modern times by government enforcement agencies, and rarely the subject of antitrust treble damage actions, Sections 2(d) and (e) of the Robinson Patman Act (15 U.S.C. §§ 13(d) and (e)) have had a colorful heritage. In response to the Supreme Court’s...

Dole Defeats “All Natural Claims” for Sweet Victory
Robin A. Achen, February 25, 2015
On December 8, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted defendant Dole’s motion for summary judgment of the plaintiff’s false labeling claims in Brazil v. Dole Packaged Foods, LLC. The court granted summary...

Faulty Damages Model Leads to Partial Decertification
Robin A. Achen, February 25, 2015
On November 6, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted in part defendant Dole’s motion for decertification in Brazil v. Dole Packaged Foods, LLC. In May of 2014, the court had granted certification of classes under...

Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced
Malika Levarlet,Robert L. Magielnicki, February 25, 2015
On January 15, 2015, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product and will be effective thirty days...

FDA Issues Guidance for Mobile Medical Applications: What Will be Subject to FDA Oversight and Enforcement?
Carrie A. Ross, February 24, 2015
On February 09, 2015, the FDA issued final guidelines to outline its regulatory enforcement approach to mobile medical applications (or “apps”). The FDA is taking a risk-based approach, focusing its oversight on apps that (1) meet the definition of medical devices under section 201(h)...

In Highly-Anticipated Decision, Ninth Circuit Affirms That Hospital-Physician Group Merger in St. Luke’s Violated Section 7 And Casts Serious Doubt on Viability of Efficiencies Defense
Helen Cho Eckert,David R. Garcia, February 24, 2015
On February 10, 2015, the Ninth Circuit issued its highly-anticipated decision at the intersection of health care and antitrust, affirming the lower court’s finding that a hospital-physician group merger completed nearly three years ago violated Section 7 of the Clayton Act. St. Alphonsus...

FDA Issues Guidance for Low-Risk General Wellness Products
Andrew S. Kreider,Stephanie L. Zeppa, February 18, 2015
On January 20, 2015, the FDA issued draft guidelines[1] designed to give developers whose products and applications promote healthy lifestyles (so-called “general wellness products”) direction on when such products qualify as medical devices under Section 201(h) of the Food Drug &...

China and Australia Conclude Landmark Free Trade Agreement Negotiations
Neil Ray,Jiamu Sun, February 16, 2015
On November 17, 2014, China and Australia completed their negotiations for a China-Australia Free Trade Agreement (“ChAFTA”) by signing a Declaration of Intent which contained the essential elements of the free trade deal and commits both countries to draft the legal text of the...

Allegations That Designer Wedding Dress Line Constitutes A Relevant Product Market Found Implausible
Don T. Hibner, February 06, 2015
Allegations that a highly specialized designer line of wedding dresses lacks reasonable substitutes fail to support allegations of Sherman Act violations for price fixing and group boycott claims. House of Brides etc., v. Alfred Angelo, Inc., Case No. 1:11-cv-07834 (N.D. Ill., December 4, 2014).

New FDA Draft Guidance on REMS and Bioequivalence Studies: Does New Procedure Secure ANDA Applicants The Right to Obtain Samples?
Peter S. Reichertz,Carrie A. Ross, February 05, 2015
Applicants seeking approval of Abbreviated New Drug Applications (ANDAs) in most cases must perform bioequivalence studies comparing their proposed generic product to the innovator drug listed in the Orange Book, called the “Reference Listed Drug” or “RLD”. Issues have...

The Ninth Circuit Holds That Res Judicata Bars State Recovery of Restitution for Members of a CAFA-Compliant Class Action
Bruce A. Colbath, January 07, 2015
In California v. Intelligender, LLC[1], the Ninth Circuit ruled that final judgment in a CAFA-compliant class settlement barred the State of California from seeking restitution on behalf of members of the settlement class for losses caused by Intelligender’s allegedly false advertising of its...

Supplier Beware Before Terminating Dealers: California’s Equipment Dealers Act
Helen Cho Eckert,David R. Garcia, January 06, 2015
Developments in modern antitrust law have made it increasingly difficult for termination of vertical relationships between a supplier and a dealer to be actionable under the antitrust laws, particularly under a per se theory of liability. Suppliers contemplating termination of dealer agreements,...

Beginning to Close the POM Circle? - POM Wonderful and Drug Advertising: JHP Pharmaceuticals
Bruce A. Colbath, November 28, 2014
Earlier this year, in POM Wonderful LLC v. Coca-Cola Co. the Supreme Court examined the interaction between the Lanham Act’s prohibition against false advertising and the FDCA’s prohibition against food, drug and cosmetics labeling that is “false or misleading.” In POM...

DOJ Will Not Challenge Cyber Security Data Sharing Platform
Bruce A. Colbath, November 28, 2014
On October 2, 2014, the U.S. Department of Justice announced that a cyber intelligence data-sharing platform known as TruSTAR, developed by CyberPoint International, LLC, passed antitrust muster. The TruSTAR platform allows members to share threat and incident data along with cyber-attack...

Bundled Discounts Subject to Section 1/Clayton 3 Scrutiny In the Absence of Market Power and Substantial Foreclosure?
Bruce A. Colbath, August 28, 2014
Bundled discount programs have received significant antitrust scrutiny over the past decade, even though these marketing programs may benefit both consumers and competition. Typically, bundled discounts have been evaluated as either exclusive dealing or tying arrangements under Section 1 of the...

Second Circuit Clarifies the Use of Legal Presumptions of Consumer Confusion and Injury in Certain Lanham Act Cases
Bruce A. Colbath, August 27, 2014
On Tuesday, July 29, the United States Court of Appeals for the Second Circuit “clarified certain aspects of [its] false advertising jurisprudence” and held that, where literal falsity and deliberate deception have been proved in a market with only two players, it is appropriate to use...

Sham Hatch-Waxman Infringement Suits And FDA Citizen Petitions; A Potential For New Liability For Innovators?
Robert L. Magielnicki, August 19, 2014
Under what is commonly known as “Noerr-Pennington immunity,” persons exercising their First Amendment right to petition the government for redress are generally immune from antitrust liability, even though their actions may harm competition or competitors. The Supreme Court has...

SD3 v. Black & Decker (U.S.), Inc. - District Judge Axes Complaint Alleging Table Saw Safety Standards Conspiracy
Leo Caseria, August 06, 2014
The pen may be mightier than the sword, but not necessarily mightier than the table saw. On July 15, 2014, in SD3 v. Black & Decker (U.S.), Inc., Case No. 1:14-cv-191 (E.D. Va.), District Judge Claude M. Hilton dismissed antitrust claims by SD3 and Sawstop against several manufacturers of...

Two UPC Resellers Settle FTC Invitation to Collude Investigation
Bruce A. Colbath, August 06, 2014
On July 28, 2014, the Federal Trade Commission accepted, subject to final approval, settlements with InstantUPCCodes.com (“Instant”) and Nationwide Barcode (“Nationwide”), two of the leading barcode resellers, and their principals, Jacob Alifraghis and Philip Peretz, who...

Trending Information: The Connection Between Data Brokers and the Fashion Industry
Lindsay Colvin,Theodore C. Max, July 29, 2014
Consumers frequently reveal personal information about themselves through a variety of daily online and offline activities. For fashion designers and retailers, this consumer information represents a valuable tool to identify, target, and expand customer advertising and messaging. This...

International Safe Harbor Privacy Compliance: What You Need to Know
Calvin Berman,Theodore C. Max, July 16, 2014
Since early 2014, the Federal Trade Commission has charged at least fourteen U.S. businesses in varying industries, from fashion to telecommunications, for falsely claiming to participate in the US ¿ EU Safe Harbor privacy. Three of the companies were also charged with similar violations of...

New Updated FTC Care Labeling Rules: “Do’s and Don’ts”
Theodore C. Max,Gregg Re', July 16, 2014
The Federal Trade Commission (“FTC”) enforces federal labeling requirements that require manufacturers, importers, sellers and distributors of certain textile and wool clothing to accurately label their products. For example, FTC rules require that manufacturers indicate the country of...

Too Good To Be True: FTC’s Crackdown On L’Occitane’s Body Slimming Almond Extracts
Jordan Grushkin,Theodore C. Max, July 16, 2014
L’Occitane Inc’s advertisements for its topically-applied body sculpting almond extracts seemed straightforward: “Almond Shaping Delight 3 out of 4 women saw firmer, lifted skin. This luxuriously lightweight massage gel instantly melts into the skin to help visibly refine and...

Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop
Don T. Hibner,Thomas D. Nevins, July 07, 2014
In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they purchased eggs from the defendant egg producing cooperatives, and that the plaintiffs had required that defendants provide only eggs that complied with a...

Supreme Court Rules Compliance with FDA Labeling Guidelines Does Not Bar Lanham Act False Advertising Suits - POM Wonderful v. Coca-Cola Co.
Bruce Colbath,Gregg Re, July 02, 2014
In a highly anticipated decision, the Supreme Court on June 12 announced that compliance with food labeling guidelines promulgated by the Food and Drug Administration will not operate as a bar against false advertising claims brought under the Lanham Act. In its decision, the Court made clear that...

Beyond Truth, and Toward Repose: Price Increases Following “Merger to Monopoly” Do Not Rekindle Statute of Limitations
Don T. Hibner, June 30, 2014
In February, 2007, Lubrizol Corporation made a “merger to monopoly” acquisition of the assets of a competitor. The acquisition established a monopoly in the market for petroleum wax-based oxidates. After the acquisition, Lubrizol increased prices for oxidates in March, July and...

Department of Justice Opens Review of ASCAP and BMI Consent Decrees
Bruce Colbath,Gregg Re, June 30, 2014
The Antitrust Division of the Department of Justice this month announced that it has opened a review of the 73-year-old ASCAP and BMI Consent Decrees. In its press release, the DOJ noted that it is most interested in comments “on competitive concerns that arise from the joint licensing of...

Courts Still Searching for Sweet Spot in “Evaporated Cane Juice” Cases: Confusion Over Applicability of Primary Jurisdiction to ECJ Claims Continues
Robin A. Achen, June 11, 2014
May 2014 was an active month for evaporated cane juice (“ECJ”) litigation in the U.S. District Court for the Northern District of California. Six courts issued opinions that involved the application of the primary jurisdiction doctrine to ECJ claims. The primary jurisdiction doctrine...