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Winston & Strawn attorneys have extensive experience representing corporate and individual clients in criminal antitrust investigations. We have successfully handled these highly confidential investigations in both a pre- or post-indictment capacity. In addition, we have successfully assisted clients in procuring amnesty with the U.S. Department of Justice, Antitrust Division's Amnesty Program.
Representative Matters
J.B.D.L. Corp., et al. v. Wyeth-Ayerst Laboratories, Inc., et al.; CVS Meridian Inc. and Rite Aid Corp. v. Wyeth, 485 F.3d 880 (6th Cir. 2007)
Wyeth
Winston & Strawn represented Wyeth Pharmaceuticals and Wyeth in an antitrust class action brought by direct purchasers of Wyeth’s estrogen therapy product, Premarin®, one of the most prescribed medications in the world. The plaintiffs claimed that Wyeth violated Sections 1 and 2 of the Sherman Act by entering into restrictive rebate contracts with pharmacy benefit managers (PBMs) and other managed care organizations, allegedly leading to higher prices to direct purchasers. This case consolidated a class action and another lawsuit brought under Section 2 of the Sherman Act by two opt-outs, CVS Meridian, Inc. and Rite-Aid Corporation. In June 2005, the federal court in the Southern District of Ohio granted Wyeth’s motion for summary judgment, finding that Wyeth’s conduct did not violate antitrust laws. The court found that plaintiffs had failed to produce sufficient evidence to establish that they had actually been injured by the challenged conduct. The plaintiffs appealed this decision to the Sixth Circuit. In a decisive victory, a unanimous Sixth Circuit panel affirmed the summary judgment dismissal of the class action brought against Wyeth Pharmaceuticals and Wyeth.
Marsulex Corp. v. Trelleborg AB, et al.
Marsulex, Inc.
The firm represented Marsulex Corp. in its April 2007 arbitration hearing in New York in which our client claimed damages of $40 million arising out of its 1998 acquisition of assets from Swedish company Trelleborg AB. Immediately following the acquisition, our attorneys discovered certain documents that had not been disclosed during due diligence that raised significant antitrust issues regarding the operation of the business by Trelleborg, and our client was subsequently admitted to the Department of Justice Antitrust Amnesty program. Marsulex initially brought this arbitration in 2000, but the DOJ intervened and stayed the arbitral proceedings pending its criminal investigation into the sulfuric acid industry. When the government investigation concluded in 2006, the arbitral stay was lifted. The matter concluded earlier this year.
In re Automotive Refinishing Paint Antitrust Litigation, MDL No. 1426
PPG Industries, Inc.
Winston & Strawn was retained by PPG Industries as national counsel in numerous antitrust class actions around the country involving allegations of price-fixing in the automotive refinishing paint industry, including 68 cases that were consolidated in federal court in Philadelphia, as well as class actions filed in state courts in California, Maine, Tennessee, Vermont, and Massachusetts. The complaints generally alleged that PPG engaged in a price-fixing conspiracy with other manufacturers of refinishing paint, including The Sherwin-Williams Company, BASF Corporation, DuPont Performance Coatings, Inc., and Akzo Nobel Coatings Inc. The class plaintiffs sought hundreds of millions of dollars in damages. Winston vigorously defended the claims by undertaking a focused discovery strategy, which resulted in a settlement for only a small fraction of what plaintiffs were seeking.
Rochester Medical Corporation v. C.R. Bard, Inc. et al.
C.R. Bard, Inc. - Chicago
Winston & Strawn represented C.R. Bard, the largest-selling manufacturer of indwelling (Foley) catheters in the United States, in an antitrust lawsuit brought by Rochester Medical Corporation, a niche manufacturer of silicone Foley catheters. Tyco, along with Premier and Novation, the two largest hospital group purchasing organizations (GPOs) in the medical device industry, were co-defendants in this case. Rochester alleged that the defendants had conspired to exclude Rochester from the market for urological catheters, including the market for infection control catheters. Rochester claimed it had created an infection control Foley catheter that was superior to catheters offered by Bard and Tyco in reducing urinary tract infections. Rochester had not been awarded purchasing agreements with either Premier or Novation, while Bard and Tyco have contracts with most of the large GPOs in the country. Some of these contracts gave hospitals a price discount for agreeing to buy 80-90 percent of their required urological products in a given number from one of the manufacturers. Rochester claimed that these discounts effectively prevented hospitals from choosing to purchase products not offered under the GPO contract. Rochester asked for just over $210 million in damages, which, in this civil antitrust action, would have been trebled to more than $630 million. Prior to briefing for summary judgment, Bard settled with Rochester for a small fraction of what plaintiffs sought in damages.
Geneva Pharmaceutical Technology Corp. v. Barr Laboratories, Inc.
Barr Laboratories, Inc.
We defended Barr Laboratories against a multi-million dollar antitrust claim brought by two generic pharmaceutical competitors. The plaintiffs claimed that Barr's agreement with co-defendant Brantford Chemical, a supplier of active pharmaceutical ingredients, delayed plaintiffs from entering the market for warfarin sodium, a blood thinner often taken for atrial fibrillation and deep vein thrombosis. The parties settled on the eve of trial on terms favorable to our client.
In re High Pressure Laminates Antitrust Litigation
Illinois Tool Works Inc.
A Winston & Strawn trial team secured a major trial victory on behalf of Wilsonart International, a subsidiary of Illinois Tool Works Corporation. The trial occurred in the White Plains Division of the Southern District of New York. The matter was a class action concerning allegations that Wilsonart violated Section One of the Sherman Act by conspiring with its three largest competitors to raise the prices of High Pressure Laminate (HPL) in the United States. After trebling, the class was seeking more than $1.3 billion in damages. Wilsonart was the sole remaining defendant after two of its codefendants settled for $41 million and another had the matter discharged in bankruptcy. On May 24, 2006, after a two-month trial, the jury found Wilsonart did not participate in any conspiracy to fix the prices for HPL.
In re Sulphuric Acid Antitrust Litigation
Marsulex, Inc.
Winston’s antitrust team continues to represent Toronto-based Marsulex Corp. and ChemTrade Logistics in the Sulfuric Acid Antitrust Litigation. The plaintiffs in these cases allege that several producers of sulfuric acid have engaged in a conspiracy to restrict the output and supply of that product. Marsulex and ChemTrade originally were exonerated in any criminal proceedings as a result of obtaining amnesty from the Antitrust Division of the Department of Justice in 1998. After both parties were named as defendants in a civil case, our attorneys filed a motion for civil amnesty under a new federal statute. On July 7, 2005, the Northern District of Illinois granted our motion, invoking the new federal amnesty statute for the first time.
In re Linerboard Antitrust Litigation
Smurfit Stone Container Corporation
We represented Smurfit Stone Container in In re Linerboard Antitrust Litigation, an industry-wide price-fixing class action consolidated in the Eastern District of Pennsylvania. Many individual purchasers of linerboard opted out of the 2003 class-wide settlement and attempted to continue litigation with our client and other industry members. When the court issued a decision requiring the opt-outs to ratify their actions, hundreds of plaintiffs were unable to adequately verify their actions, resulting in the dismissal of hundreds of millions in claims. In 2005, our client reached favorable settlements in several pending actions.
U.S. v. Microsoft
Microsoft Corporation
Winston & Strawn attorneys were retained by Microsoft Corporation as co-lead counsel in connection with a series of highly publicized antitrust claims brought by various federal and state governmental entities. We defended the company in connection with the claims being pursued by the nine non-settling states. Our attorneys gave the opening statement for Microsoft, put CEO Bill Gates on the witness stand, and cross-examined some of the states’ witnesses before Judge Colleen Kollar-Kotelly, who ruled in Microsoft’s favor, thereby upholding the settlement reached by Microsoft and the U.S. Department of Justice.
U.S. v. Long Island Jewish Medical Center, et al.
North Shore-Long Island Jewish Health Sy
We represented North Shore Health System in the Antitrust Division’s challenge to North Shore’s merger with Long Island Jewish Medical Center that created the largest health care system in the northeastern United States. The DOJ claimed that the merger of the two Long Island-based systems, whose largest hospitals are only two miles apart, would create a monopoly in the market for “anchor hospitals” in the region. The court found for the defendants in all respects, rejecting the government’s market definition and theories of competitive harm, and determined that the merger was likely to return substantial benefits to the community.
U.S. v. General Electric
General Electric Company
We represented GE in a criminal case in U.S. District Court in Columbus, Ohio, in which the government alleged that GE had conspired with its biggest competitor to fix the price of industrial diamonds. After five weeks of testimony by the prosecution, the judge dismissed the case because the government failed to produce the evidence that would support a conviction. The GE victory was highlighted in a cover story in The American Lawyer.
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