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OVERVIEW

Antitrust and Competition Law When it counts

Barnes & Thornburg's Antitrust and Competition Law attorneys provide quality, cost-effective litigation and counseling services to clients on a regional, national and international basis. We have represented hundreds of entities, ranging from small local governments and non-profits to large international corporations, in virtually all aspects of antitrust and competition law, including compliance and litigation avoidance, complex litigation, criminal and civil enforcement actions brought by federal and state agencies, nationwide private class actions, multidistrict litigation and individual lawsuits.

We will deliver the services you need pursuant to a value-driven yet result-oriented approach. We have the resources necessary to handle virtually any engagement in any U.S. jurisdiction. We have successfully resolved cases for clients in actions alleging restraint of trade and monopolization (including Sections 1 and 2 of the Sherman Act); price discrimination; and violations of state antitrust laws and other competition-related statutes at every stage of the litigation or agency process.

Additionally, we have substantial experience in other aspects of antitrust law, including mergers and acquisitions (Hart Scott Rodino filings); development and implementation of antitrust compliance policies and personnel training programs; distribution, marketing and price counseling; trade association counseling; standards development; and intellectual property licensing, among other areas.

We have substantial experience in working with clients to evaluate potential antitrust and competition issues in everyday business decisions. We can help you analyze how these legal issues apply to important decisions relating to potential joint ventures, pricing, marketing, foreign trade issues, and more. We are committed to working with you as your partner and learning about your business so as to best understand your needs and to provide efficient, effective legal services.

Practice Leaders

Kendall Millard

Kendall Millard

Partner
Antitrust and Competition Law Co-Chair

Indianapolis

P 317-231-7461

F 317-231-7433

Paul Olszowka

Paul Olszowka

Partner
Antitrust and Competition Law Co-Chair

Chicago

P 312-214-5612

F 312-759-5646

EXPERIENCE
  • A Barnes & Thornburg attorney defended a major scrap metal dealer against predatory pricing claims brought in El Paso, Texas. The client prevailed after a one-week jury trial. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney defended a data aggregator in class actions alleging violations of federal privacy statutes in Texas and Missouri. Both courts granted motions to dismiss on behalf of the data aggregator. The Fifth and Sixth Circuits affirmed both dismissals. The Barnes & Thornburg attorney successfully argued the case on behalf of all defendants in the Sixth Circuit. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney defended two major companies in multibillion dollar class action suits alleging a conspiracy to fix prices in 17 states. The attorney served on the executive committee that coordinated the defense of all defendants in each case. After the defendants defeated class certification motions in five states, the plaintiffs agreed to a nominal settlement. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a government contractor in an antitrust case in the Southern District of California. Our client obtained a full dismissal after the Plaintiff alleged that the government contractor participated in a group boycott and bid rigging conspiracy which excluded plaintiff from winning lucrative federal contracts. The client asserted defenses of no antitrust injury, implausibility under Twombly, and a novel Rothery defense that the bidding scheme actually accomplished a more competitive market.
  • A Barnes & Thornburg attorney represented a large international exchange in antitrust regulatory compliance in connection with a complex cross-border merger. The client conducted extensive fact discovery and information sharing with the government related to the proposed deal. The merger was ultimately approved by the U.S. Department of Justice. (*This matter occurred prior to joining Barnes & Thornburg.)
  • A Barnes & Thornburg attorney represented a major tobacco manufacturer, which sued a retail chain of discount tobacco stores for trademark infringement and prevailed against Sherman Act and Robinson-Patman counterclaims alleging that the manufacturer conspired with other retailers to provide discounts to those retailers, but not to the defendant retailer, and engaged in price discrimination in violation of the Robinson-Patman Act. The manufacturer client obtained summary judgment prior to trial on the Section 1 claim and prevailed on the remaining claim after a six-week long trial in late 2004. The defendant appealed the decision and in August 2006, the Seventh Circuit unanimously affirmed the district court's grant of summary judgment on the Sherman Act claim and rejected the retail chain's challenges to certain of the trial court's evidentiary rulings and jury instructions on the Robinson-Patman claim. On February 20, 2007, the United States Supreme Court denied the defendant's petition for certiorari without comment or elaboration. R.J. Reynolds Tobacco Co. v. Premium Tobacco Stores, No. 99 C 1174, 2005 WL 293512 (N.D. Ill. Nov. 15, 2004), aff'd, 462 F.3d 690 (7th Cir. 2006), cert. denied, No. 06-848, 2007 U.S. LEXIS 2142 (Feb. 20, 2007).

    (This matter occurred prior to the attorney joining Barnes & Thornburg LLP.)
  • A Barnes & Thornburg attorney represents and counsels real estate brokerages and other settlement service providers regarding the Real Estate Settlement and Procedures Act (RESPA), disputes with the Department of Housing Development and the Consumer Finance Protection Bureau, compliance matters, internal investigations, antitrust, consumer protection, consumer fees and charges and copyright protection.
  • A Barnes & Thornburg attorney served as lead counsel in defense of an electrical product manufacturer in a multi-week arbitration brought by a former distributor alleging conspiracy in violation of the Sherman Act, price discrimination, violation of the Robinson¬Patman Act, wrongful termination of the distributorship, deceptive conduct in violation of Illinois and Tennessee Consumer Protection Statutes, and other common law tort claims. The claimant sought more than $10 million in damages, was awarded nothing, and was ordered to pay all costs of the arbitration.
  • A Barnes & Thornburg attorney successfully defended an individual accused of conspiring to monopolize the market for African big-game safaris. The plaintiff agreed to drop the claim after being cross-examined by the Barnes & Thornburg attorney. (*This matter occurred prior to joining Barnes & Thornburg.)
  • Barnes & Thornburg attorneys are national counsel for Flexible Foam Products, Inc., a leading producer of polyurethane foam products for bedding and other industries.

    In July 2010, the Department of Justice Antitrust Division, Canadian Bureau of Competition and EU Competition authorities executed search warrants on several manufacturers of polyurethane foam based on information provided by an amnesty applicant concerning allegations of price fixing.

    Direct and indirect purchasers of foam products thereafter filed purported class action lawsuits in California, North Carolina and Ohio, now consolidated and transferred to the Northern District of Ohio under the MDL proceedings. Parallel proceedings are pending in Ontario, British Columbia and Quebec, Canada. More than a dozen manufactures have been named as defendants to date.

    Barnes & Thornburg is defending Flexible Foam Products in the MDL proceedings, and attorney Kendall Millard has been appointed co-liaison counsel for all defendants. In re Polyurethane Foam Antitrust Litigation, MDL No. 2196 (W.D. Ohio 2010).
  • Barnes & Thornburg attorneys defended a major credit card issuer in a nationwide antitrust class action arising from the shift from magnetic strip to EMV chip technology in credit cards. Plaintiffs claimed our client conspired with credit card networks and other issuing banks to shift liability for certain fraudulent credit card charges from the issuing banks to merchants accepting Visa, MasterCard, American Express and Discover credit cards, the so-called October 2015 “liability shift.” Plaintiffs filed a class action complaint in the Northern District of California on behalf of merchants unable to accept EMV chip cards, seeking damages and injunctive relief under federal and state antitrust laws.

    The court denied plaintiffs’ request for a preliminary injunction, and our client, along with the credit card networks and the other issuing banks, filed motions to dismiss the complaint. After briefing and oral arguments on the motions, the court permitted plaintiffs to amend their complaint before ruling. Barnes & Thornburg then argued to plaintiffs’ counsel how our client’s facts would not be favorable to their case, and plaintiffs voluntarily dismissed our client from the amended complaint.
  • Barnes & Thornburg attorneys defended authorized pharmaceutical wholesaler H.D. Smith in a nationwide antitrust lawsuit alleging defendants used FDA and state pedigree rules to exclude secondary pharmaceutical wholesalers from competing with them in violation of Sections One and Two of the Sherman Act, and New York’s Donnelly Act. The Court granted the wholesaler defendants’ motion to dismiss, with prejudice, for failure to allege a plausible conspiracy under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and rejecting plaintiffs’ shared monopoly theory. The Second Circuit affirmed in a summary opinion in August 2010. RxUSA Wholesale, Inc. v. Alcon Laboratories, Inc., 2009 WL 3111728 (E.D.N.Y., Sept. 24, 2009); aff’d 2010 WL 3393737 (2nd Cir. Aug. 30, 2010).
  • Barnes & Thornburg attorneys represent defendant Knauf Insulation GmbH, a leading manufacturer of fiberglass insulation, in three related antitrust actions concerning allegations of price fixing and price differentials to a major customer. The direct purchaser plaintiffs, on behalf of a class of contractors who purchased residential fiberglass insulation, alleged that the five largest producers of fiberglass insulation engaged in price-fixing by agreeing with a large, common customer (Masco) to maintain a "price spread" between insulation sold to the customer and that sold to other contractors. Plaintiffs alleged damages in the action exceeding $750 million. After three manufacturers had already entered settlements in the direct purchaser case, Knauf negotiated a cost-of-litigation settlement that was less than half the settlement of any other defendant, and only 10% of one of the manufacturer's settlements. Masco settled on the eve of the trial in the summer of 2012.

    Two groups of indirect purchasers also filed suit. Barnes & Thornburg negotiated dismissal with prejudice on behalf of all defendants in one case in exchange for an agreement not to seek sanctions (Lummis). Motions to dismiss the second case are still pending in the Northern District of Georgia (Von Der Werth).

    Columbus Drywall & Insulation, Inc. et al v. Masco Corp., et. al., Case No. 1:04-cv-3066-JEC (N.D. Ga 2004) (Direct Purchaser Class Action); Von Der Werth v. Johns Manville Corporation, et al., Case No. 1:07-cv-2012-JEC (N.D. Ga 2007) (Indirect Purchaser Class Action); Lummis v. Johns Manville Corporation, 2:05-CV-298-FTM-29SPC, (M.D. Fla 2005) (Indirect Purchaser Class Action)
  • Barnes & Thornburg attorneys represented a Japanese automobile parts manufacturer and its U.S. and Canadian subsidiaries in a global investigation of possible bid-rigging and price-fixing in the sale of auto parts to automobile manufacturers. The U.S. Department of Justice (DOJ) Antitrust Division, the Japan Fair Trade Commission, European Commission and the Canadian Competition Bureau were all involved in this investigation. After conducting a thorough internal investigation of relevant employees in the United States and Japan, and cooperating with the DOJ for more than two years, the DOJ closed its investigation of our clients in April 2013. The DOJ has obtained more than $2.4 billion in criminal fines as part of its auto parts investigations to date, and the clients successfully avoided paying any fines.
  • Barnes & Thornburg attorneys represented a Japanese automobile parts manufacturer and its U.S. subsidiary in the U.S. Department of Justice (DOJ) Antitrust Division’s ongoing investigation of possible bid rigging and price fixing in the sale of auto parts to global automobile manufacturers. After conducting a thorough internal investigation of relevant employees in both the United States and Japan, and cooperating with the DOJ for more than a year, the DOJ closed its investigation of our clients in November 2014. The DOJ has obtained more than $2.4 billion in criminal fines as part of its auto parts investigations to date, and the clients successfully avoided paying any fines.
  • Barnes & Thornburg attorneys represented a large residential real estate brokerage firm in a certified class action seeking over $600 million in damages for alleged illegal price-fixing under the Sherman Act. Plaintiffs alleged that real estate brokers conspired to fix the price of broker commissions in violation of Section One of the Sherman Act. The District Court granted our client’s Motion for Summary Judgment dismissing Plaintiffs' claims with prejudice on the grounds that Plaintiffs had not come forward with evidence sufficient to go to a jury on the existence of a conspiracy or sufficient to rule out legal market behavior. The Sixth Circuit Court of Appeals affirmed.
  • Barnes & Thornburg attorneys represented Anheuser-Busch in a case that arose as a result of a temporary Indiana state regulation that permitted beer distributors to engage in "transshipping," a practice in which beer distributors were permitted to sell outside of the territory that had been designated for them by the alcohol brewing companies. After the regulation expired, the beer distributors filed suit against the Indiana Alcohol & Tobacco Commission and the various brewing companies. Barnes & Thornburg represented Anheuser-Busch's interests in the litigation. As a major brewing company, Anheuser-Busch's interests were aligned with the position of the Indiana Alcohol & Tobacco Commission because the temporary rule had prevented Anheuser-Busch from enforcing the territories it had negotiated with the beer distributors. Barnes & Thornburg assisted Anheuser-Busch in defending the expiration of the law from the distributors' challenge, and succeeded in obtaining judgment in favor of our Client. The beer distributors appealed to the Indiana Court of Appeals, but the appellate court affirmed the judgment of Marion Superior Court. Little Bev. Co. v. DePrez, 777 N.E.2d74 (Ind. App. 2002).
  • Barnes & Thornburg attorneys represented Champion in an unfair competition action against its competitor Parker-Hannifin Corp. and an affiliate of Parker. Employing the doctrine of the Sherman Act, Champion contended that Parker falsely marked its oil filter and made design changes to other components of the filtration system that prevented use of Champion’s lower-priced filter and thwarted competition from Champion and other suppliers in violation of California’s Unfair Competition Law. 2011 U.S. Dist. LEXIS 52853.
  • Barnes & Thornburg attorneys represented global computer manufacturer/software developer in a federal antitrust lawsuit filed in the Southern District of Indiana seeking a nationwide permanent injunction against the use of the general public licensing terms for free-to-use, open source operating system software alleging Violations of Section One of the Sherman Act. The Southern District of Indiana dismissed the case for failure to adequately allege an antitrust injury, and the Seventh Circuit affirmed the dismissal.
  • Barnes & Thornburg attorneys represented Marathon Petroleum Co. LLC and its subsidiary, Speedway SuperAmerica LLC, in obtaining dismissal in a class action brought before the U.S. District Court of the Southern District of Indiana. The class action was brought on behalf of more than 5,000 service station dealers who alleged violations of the federal antitrust statutes and multiple state laws. Plaintiffs alleged that Marathon illegally tied credit card processing fee services to the contracts that granted plaintiffs the right to operate a Marathon-branded service station, and that it conspired with banks to fix the cost of processing fees. The Court rejected both claims. The 7th Circuit affirmed in an opinion written by Judge Posner, holding that plaintiffs' tying claim failed because Marathon did not have market power in an adequately defined product market, and because there was no "tie" between two products. Judge Posner rejected plaintiff's conspiracy claim "for failure to plead a plausible theory of antitrust illegality under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Sheridan v. Marathon Petroleum Co., LLC, 2007 WL 290056 (S.D. Ind. 2007), aff’d 530 F.3d 590 (7th Cir. 2008).
  • Barnes & Thornburg attorneys represented Missoula Anesthesiology. P.C., in defending against a monopolization claim brought under Sherman Act Section Two brought by an excluded physician. The plaintiff-physician voluntarily dismissed his complaint and did not re-file after Barnes & Thornburg filed a motion to dismiss. Ayres v. Missoula Anesthesiology, P.C., Case No. 9:07-cv-00027-DWM (D.Mt. 2008).
  • Barnes & Thornburg attorneys represented Morgan and Clark County, Indiana, in two separate federal antitrust lawsuits seeking an injunction against the enforcement of county ordinances benefiting their respective county hospitals in violation of the Sherman Act Sections 1 and 2. After a bench trial in the Morgan County case, the court dismissed the antitrust claims but held that the ordinance exceeded the county's authority under state law. The Clark County case then settled.
  • Barnes & Thornburg attorneys represented National Laser Technology (NLT), a seller of used dental lasers and dental laser support services, in a nationwide antitrust suit against Biolase, the country's largest manufacturer of dental lasers. NLT alleged Biolase had monopoly power in the national market for the sale of hard tissue dental lasers and used that power to coerce dentists to purchase products from it rather than from NLT in violation of Sections 1 and 2 of the Sherman Act, the Lanham Act and the California Unfair Competition Law. Obtained an early favorable settlement for client. National Laser Technology, Inc. v. Biolase Technology, Inc., Case No. 1:08-cv-1123 (S.D. Ind. 2009).
  • Barnes & Thornburg attorneys represented Peg Perego, a manufacturer of premium quality strollers, high chairs and car seats, in three cases alleging that baby product manufacturers conspired with Babies ‘R’ Us to impose resale pricing policies on Internet retailers in violation of Section One of the Sherman Act. Two retailers brought the first case in 2005, followed by follow-on nationwide class actions brought by consumers who purchased the relevant products from Babies ‘R’ Us. After five years of motions to dismiss (including one granted with leave to amend after the Supreme Court's ruling in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007)), extensive discovery, and class certification, defendants reached an agreement in 2010 to globally settle the class actions. Peg Perego's contribution to the class settlement amounted to less than 9 percent of the claimed single-damages against it. All Defendants other than Peg Perego settled the retailer action shortly after the class settlement, but Peg Perego elected to take its case to summary judgment and, if necessary, trial on plaintiffs' claims of more than $12 million in treble damages. After Barnes & Thornburg attorneys completed oral argument on the summary judgment motion in September 2011, the plaintiffs agreed to settle the entire action and dismiss their claims with prejudice without any payment by Peg Perego.

    BabyAge.com v. Toys 'R' Us, Inc, et. al. 2:05-06792-AB (E.D. Pa 2005); McDonough v. Toys 'R' Us, Inc, et. al. 2:05-06792-AB (E.D. Pa 2006); Elliott et al. v. Toys 'R' Us, Inc., et. al. 2:09-cv-06151-AB (E.D. Pa 2009).
  • Barnes & Thornburg obtained not guilty verdicts for clients Tokai Kogyo Ltd., and its U.S. subsidiary, Green Tokai Co. Ltd., in a federal criminal jury trial in the U.S. District Court for the Southern District of Ohio in Cincinnati. Tokai and Green Tokai were indicted in June 2016 for allegedly conspiring to fix the prices of automotive body sealing products sold to Honda Motor Co. Ltd in the United States and faced potential fines in the hundreds of millions of dollars. After a month-long jury trial featuring testimony from several Japanese witnesses from Nishikawa Rubber and Honda, the jury returned its verdicts after less than four hours of deliberation.
  • Regularly counsel clients in the electrical, aerospace, powerboat, healthcare products and industrial hygiene industries on managing their distribution channels, including adding and terminating distributors and avoiding antitrust and unfair competition issues.
  • Represented Hoosier Racing Tire Corp., which obtained summary judgment in defending a nationwide antitrust action brought in the U.S. District Court for the Western District of Pennsylvania concerning exclusive dealing with sports sanctioning bodies.

    Plaintiff Specialty Tires of America (STA), a producer of racing tires, alleged that defendant Hoosier Racing Tire (Hoosier), a rival tire producer, violated the antitrust laws by entering exclusive agreements with organizations that sanction races on dirt oval tracks in the United States and Canada. The agreements at issue specified that the sanctioning body must require racers to use Hoosier-branded tires, and that Hoosier would pay the sanctioning body a specified amount of sponsorship or promotional money. STA alleged these exclusive agreements violated Sections 1 and 2 of the Sherman Act because Hoosier had a more than 70 percent share of sales in the alleged market for "dirt oval track tires," and precluded STA from competing for the sale of such tires to racers. STA also sued DIRT Motor Sports, one of the sanctioning bodies with a Hoosier-only tire rule.

    Hoosier filed a motion for summary judgment, arguing that STA could not maintain its case because did not suffer an "antitrust injury," as any loss of tire sales it suffered flowed from the competition for exclusive contracts, and injury resulting from the competitive process cannot be compensated by the antitrust laws. Hoosier also argued that, as a matter of law, a sports sanctioning body can decide whether to require its participants to use a particular manufacturer's products without violating the antitrust laws. Hoosier objected to STA's definition of the relevant market and Hoosier's share in that market, but assumed the allegations as true for purposes of the motion.

    The Court agreed with Hoosier and granted summary judgment, holding that “there is no antitrust injury to STA when it loses the competitive battle to be the exclusive supplier,’” and that any injury when it loses a bid is "the inevitable result of competition for exclusive contracts." The Court also held that where "a sanctioning body freely decided to adopt a single tire rule, and then freely selects a supplier, no antitrust violation is present as a matter of law -- either under Section 1 or Section 2 of the Sherman Act," regardless of market share, and that STA had not submitted any evidence that Hoosier used coercive measures to prevent STA from entering into its own exclusive single tire contracts.

    On appeal, the Third Circuit affirmed, in a precedential decision, noting that sports sanctioning bodies "deserve a bright-line rule to follow so they can avoid potential antitrust liability as well as time-consuming and expensive antitrust litigation," and holding that where an organization in good faith has "freely adopted their own equipment rules and then freely entered into exclusive contracts with the respective suppliers," the resulting agreement does not violate the antitrust laws, even if the supplier has a high market share and pays for the exclusivity.

    Race Tires of America, Inc. v. Hoosier Racing Tire Corp., et al., 2009 WL 2998138 (W.D. Pa, Sept. 15, 2009); aff’d 614 F.3d 57 (3d Cir. July 23, 2010); costs awarded 2011 WL1748620 (W.D. Pa, May 6, 2011).
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