Eric Grannon

Representative results for clients include:

In re Bystolic Antitrust Litigation: Lead counsel successfully arguing motion to dismiss reverse payment, "pay for delay" complaints by all plaintiffs (direct-purchaser, end-payor, and opt-out) against all defendants (innovator and generic) concerning seven settlements of pharmaceutical patent litigation. In re Bystolic Antitrust Litig., No. 20-5735, 2023 U.S. Dist. LEXIS 52269, __ F. Supp.3d __ (S.D.N.Y. Feb. 21, 2023) (dismissal with prejudice of amended complaints), appeal filed Mar. 20, 2023; 583 F. Supp.3d 455 (S.D.N.Y. 2022) (dismissal without prejudice).

Stoyas, New England Teamsters & Trucking Industry Pension Fund, and Automotive Industries Pension Trust Fund v. Toshiba Corporation:

• (i) Co-lead counsel successfully opposing the class-certification motion filed by the Robbins Geller firm that sought to certify a class of Exchange Act claimants alleging purchases of unsponsored ADRs. Stoyas v. Toshiba Corp., No. 15-4194, 2022 WL 220920 (C.D. Cal. Jan. 25, 2022); No. 22-80001, Plaintiffs' petition for interlocutory appeal under Rule 23(f) denied (9th Cir. April 21, 2022); and
• (ii) Co-lead counsel successfully moving to strike the proposed reply expert report of plaintiffs' class-certification economist under Rule 37 of the Federal Rules of Civil Procedure. Stoyas v. Toshiba Corp., No. 15-4194, 2022 WL 19406 (C.D. Cal. Jan. 3, 2022).

In re Namenda Direct Purchaser Antitrust Litigation: Successfully moved pursuant to Rule 42(b) of the Federal Rules of Civil Procedure to bifurcate trial into two phases, enabling the jury to separately consider plaintiffs' reverse payment and product-hopping claims (S.D.N.Y. June 4, 2019).

In re Zetia (Ezetimibe) Antitrust Litigation: Eric served as lead counsel for a pharmaceutical company defending against class-action antitrust claims. His role in this matter included:

• (i) Obtaining the voluntary dismissal of all of the complaints against his client, prior to any discovery and with no settlement payment (September 28, 2018); and
• (ii) winning a contested motion for centralization under 28 U.S.C. § 1407, before the Judicial Panel on Multidistrict Litigation, to the client's preferred venue in In re Zetia (Ezetimibe) Antitrust Litigation, MDL No. 2836 (J.P.M.L. June 8, 2018).

FTC v. Actavis: Eric served as lead trial counsel for two pharmaceutical companies defending against, formerly, class-action antitrust claims. His role in this matter included:

• (i) Successfully arguing the opposition to direct-purchaser, retailer plaintiffs' motion under Rule 42(a) of the Federal Rules of Civil Procedure to consolidate their claims for trial with those of the FTC; Eric's clients were the only defendants, out of three groups of defendants in the case, to oppose the retailers' motion (2018);
• (ii) successfully opposing direct-purchaser plaintiffs' motion for class certification, which appears to be only the second time that direct purchasers have been denied class certification in a reverse payment case in the approximately twenty years that such cases have been litigated (2018);
• (iii) successfully arguing a Daubert motion to exclude and limit the testimony of plaintiffs' proposed pharmaceutical manufacturing valuation expert (2018);
• (iv) obtaining the voluntary dismissal with prejudice of the FTC's complaint with zero damages, no liability, and no injunctive relief beyond that already agreed to previously by the client's corporate parent in a separate matter (2017);
• (v) obtaining the voluntary dismissal with prejudice of all indirect-purchaser actions with zero damages, no liability, and no injunctive relief (2016);
• (vi) defeating the FTC and private plaintiffs' motion to compel the production of common-interest privileged communications, establishing an important precedent for protecting the confidentiality of joint-defense antitrust advice for settling patent litigation, In re AndroGel Antitrust Litigation, No. 09-MD-2084, 2015 WL 9581828 (N.D. Ga. Dec. 30, 2015);
• (vii) serving as counsel of record in the US Supreme Court for two respondents opposing the FTC on the merits, and previously opposing the FTC's petition for a writ of certiorari, in FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013) (5-3 decision reversing and remanding FTC v. Watson Pharm., Inc., 677 F.3d 1298 (11th Cir. 2012));
• (viii) successfully arguing a motion for summary judgment against the sham-litigation claims of putative class-action plaintiffs in In re AndroGel Antitrust Litigation, 888 F. Supp. 2d 1336 (N.D. Ga. 2012);
• (ix) successfully arguing in the US Court of Appeals for the Eleventh Circuit against the FTC's appeal in FTC v. Watson Pharm., Inc., 677 F.3d 1298 (11th Cir. 2012);
• (x) successfully arguing a motion to dismiss against the FTC's "pay for delay" lawsuit, In re AndroGel Antitrust Litigation, 687 F. Supp. 2d 1371 (N.D. Ga. 2010);
• (xi) winning a contested motion for centralization under 28 U.S.C. § 1407, before the Judicial Panel on Multidistrict Litigation, to the clients' preferred venue in In re AndroGel Antitrust Litigation, MDL No. 2084 (J.P.M.L. 2009);
• (xii) winning a contested transfer motion under 28 U.S.C. § 1404 to transfer both the government and private antitrust actions to the original patent judge to defeat FTC and private-plaintiff forum shopping, FTC v. Watson Pharm., Inc., 611 F. Supp. 2d 1081 (C.D. Cal. 2009); and
• (xiii) defending clients and their executives in the underlying two-year FTC investigation, including at six investigational hearings.

Counseling Pharmaceutical Patent Settlements: Eric also has counseled more than forty pharmaceutical patent settlements that have avoided challenge by the FTC and class-action bar.

Other Class-action Litigation:

• Counsel for petitioner in Toshiba Corp. v. Automotive Indus. Pension Trust Fund, which challenges the Ninth Circuit's reversal of the district court's dismissal of a class-action suit premised on the extraterritorial application of the US securities laws based on unsponsored American Depositary Receipts (ADRs), Supreme Court docket No. 18-486, cert. denied June 24, 2019; currently serving as trial counsel in the remand litigation.
• Co-lead counsel for petitioners in the defense win in Stolt-Nielsen, S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010), which changed US law by making it more difficult for plaintiffs to assert class-action claims in arbitration. This victory won the Litigation Category that year in the Financial Times US Innovative Lawyers Report. Competition Law360 featured this win in naming White & Case one of the top five class-action defense firms in 2010.

Civil Antitrust:

• Co-lead counsel for respondents in Mississippi ex rel. Jim Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), which concerns the removability of state attorney general actions to federal court under the Class Action Fairness Act of 2005 (CAFA).
• Lead counsel for the Chamber of Commerce of the United States of America as amicus curiae in Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011), a class-arbitration case turning on the application of Stolt-Nielsen, S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010).
• Co-lead author of successful motion to dismiss a predatory pricing case in In re Parcel Tanker Shipping Servs. Antitrust Litig., 541 F. Supp. 2d 487 (D. Conn. 2008), which is one of the first decisions obtaining dismissal under the Supreme Court's decisions in Twombly and Weyerhaeuser.
• Part of the team defending respondents in a putative class-action arbitration involving claims of international price fixing and customer allocation in the shipping industry; co-lead author of successful petition to vacate class-arbitration award in Stolt-Nielsen, S.A. v. AnimalFeeds Int'l Corp., 435 F. Supp. 2d 382 (S.D.N.Y. 2006).
• Co-lead author of brief in opposition to certiorari in the then-leading case on settlement of pharmaceutical patent litigation: FTC v. Schering-Plough Corp. and Upsher-Smith Laboratories, Inc., Supreme Court docket No. 05-273, cert. denied June 26, 2006 (defeating the FTC's certiorari petition and garnering the amicus support of the United States in opposition to the FTC).
• Co-lead counsel successfully defending Malaysian producers of extruded rubber thread against claims of price fixing in Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., including: (i) verdict for defendants after a jury trial in federal district court; (ii) unanimous affirmance on appeal to Fourth Circuit, 299 F.3d 281 (4th Cir. 2002); and (iii) lead author of brief in opposition to certiorari, Supreme Court docket No. 02-649, cert. denied June 27, 2003 (garnering the amicus support of the United States). Dee-K v. Heveafil is the leading precedent on the extraterritorial application of the Sherman Act under the "substantial effects" test from the Supreme Court's decision in Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).

Criminal Antitrust:

• Lead counsel successfully resolving a DOJ antitrust grand jury investigation in the Southern District of New York of a US-based multinational company suspected of price-fixing and bid-rigging involving major metropolitan infrastructure projects in New York City; matter was resolved without an indictment, plea agreement, or parallel civil litigation.
• Lead counsel for a Taiwanese semiconductor manufacturer in both the DOJ's static random access memory (SRAM) antitrust grand jury investigation (which concluded in no indictment despite the cooperation of the amnesty applicant) and the parallel class-action litigations.
• Co-lead author of petition for a writ of certiorari in White & Case LLP v. United States, challenging Ninth Circuit's reversal of district court order quashing DOJ grand jury subpoenas that sought all discovery in parallel, follow-on class actions alleging a cartel in thin-film transistor, liquid crystal display panels (TFT-LCD), and lead counsel coordinating support of eight amici curiae for same, Supreme Court docket No. 10-1147, cert. denied June 27, 2011.
• Co-lead counsel defending a non-US executive in the DOJ's cartel investigation of the dynamic random access memory (DRAM) industry. Lead author of successful motion for a bill of particulars forcing the Antitrust Division to supplement its barebones, formulaic indictment with detailed factual allegations. United States v. Kim, No. 06-0692, (N.D. Cal. Mar. 1, 2007).
• Lead author of petition for a writ of certiorari in the Stolt-Nielsen, S.A. v. United States litigation to enforce an antitrust amnesty agreement against the Antitrust Division of the US Department of Justice, and lead counsel coordinating support of nine amici curiae for same, Supreme Court docket No. 06-97, cert. denied Oct. 30, 2006.
• Part of the team successfully defending against former co-conspirators' attempt to reverse the grant of leniency from the European Commission to Stolt-Nielsen, S.A.

Mergers:

• Lead counsel advising a third-party objector to a biopharmaceutical merger (2019)
• Co-lead merger counsel advising an innovator pharmaceutical company in successful FTC Hart-Scott-Rodino (HSR) clearance of the acquisition of another innovator pharmaceutical company (2018)
• Co-author of petition for a writ of certiorari in Anthem, Inc. v. United States et al., Supreme Court docket No. 16-1342 (filed May 5, 2017), seeking review of United States v. Anthem, Inc., No. 17-5024, 2017 U.S. App. LEXIS 7521 (D.C. Cir. Apr. 28, 2017) (Rogers and Millett, JJ., Kavanaugh, J., dissenting), which affirmed an injunction under Section 7 of the Clayton Act of the proposed merger between Anthem, Inc. and Cigna Corporation; petition voluntarily dismissed upon settlement with the DOJ.
• Lead antitrust counsel advising a leading US tobacco company on the formation of a joint venture for the development of intellectual property.
• Lead US antitrust counsel for an innovator pharmaceutical company in a cross-border acquisition and pharmaceutical product development agreement.
• Lead merger counsel obtaining early termination of the HSR waiting period for review of Iron Mountain Inc.'s acquisition of Archives One, Inc.; anticipated and resolved DOJ's market share concerns within two days.
• Lead counsel for regional wireless service provider as third-party witness concerning a multi-billion dollar telecommunications acquisition; worked with DOJ to achieve divestiture of significant asset of target as sought by client.
• Co-lead merger counsel obtaining early termination of the HSR waiting period for the acquisition of Kos Pharmaceuticals, Inc. by Abbott Laboratories.
• Part of the team litigating the first merger efficiencies defense under the then newly revised horizontal merger guidelines in FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997).

Antitrust Litigation against the Government: In addition to his wins against the FTC in AndroGel, Eric's experience includes several other headline victories against the federal antitrust agencies, including:

• US v. Stolt-Nielsen, 524 F. Supp. 2d 609 (E.D. Pa. 2007) (successfully enforcing amnesty agreement against DOJ's attempted revocation);
• FTC v. Schering-Plough, 402 F.3d 1056 (11th Cir. 2005) (defeating FTC's first "pay for delay" suit); and
• US v. Sungard Data Systems, 172 F. Supp. 2d 172 (D.D.C. 2001) (defeating DOJ's merger challenge).

Foreign Corrupt Practices Act (FCPA):

• Lead counsel managing a post-acquisition, anti-corruption review and audit pursuant to guidance under the DOJ's Corporate Enforcement Program for a multi-national information technology company that had acquired a multi-national software solutions company; leveraged the company's internal audit resources to conduct a cost-effective, risk-based assessment of the acquiree's operations and third-party relationships in six countries.
• Lead counsel advising a multi-national, direct-selling company on its anti-corruption compliance policy and training program for its operations throughout China and Malaysia.
• Lead counsel advising a Fortune 200 company on the due diligence, contractual, and operational compliance issues implicated in the creation of a long-term contract manufacturing relationship with a partner in China.
• Lead counsel representing a UK consulting firm on pre-acquisition due diligence and transaction structuring for an acquisition in Moscow, Russia; led interviews of target's personnel and on-the-ground investigation for same.
• Lead counsel advising board of directors of a Canadian company on FCPA consequences of listing on a US stock exchange; revised corporate compliance program as a result of the US listing.
• Lead counsel representing a Fortune 10 company by handling the FCPA and other compliance negotiations for the company's formation of a joint-venture, real-estate investment vehicle with the investment arm of a leading Middle Eastern government; designed compliance program and employee manual for the j.v. entity.
• Lead counsel representing a Fortune 100 company by conducting the due-diligence investigation and negotiations concerning the FCPA and Mexican-law implications of a proposed acquisition; handled the client's self-report to US enforcement authorities.
• Representing a Fortune 100 company by running more than a dozen compliance investigations on four continents for issues under the FCPA, and managing the investigation self-reports to US enforcement authorities; drafted compliance policies and procedures following conglomerate-wide risk assessment.
• Designing a corporate compliance manual for a multinational construction company for non-US anti-bribery laws enacted pursuant to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Foreign Sovereign Immunities Act (FSIA):

• Co-lead counsel defending various foreign sovereigns and their agencies and instrumentalities in motion and appellate practice in four different litigations under the FSIA and act-of-state doctrine.
• Lead author of petition for a writ of certiorari in one of the main precedents on attachment and execution under the FSIA: Ministry of Finance of the Republic of Indonesia v. Karaha Bodas Co., Supreme Court docket No. 05-1571, cert. denied Oct. 2, 2006.

General Representation: Eric serves as outside general counsel to the leading corporate advocacy association in the United States.