J. Mark Gidley

Cartels/Class Action Litigation and Pharmaceutical Antitrust

Mr. Gidley's significant antitrust litigation matters include:

• Trial counsel to the lead Forex trader for JP Morgan Chase in London and prior to that for Royal Bank of Scotland, Richard Usher, in the landmark Antitrust Division Section 1 criminal forex price-fixing trial.  US v. Usher.  After a three-week jury trial in the SDNY, on October 26, 2018, the  New York City jury acquitted our client Mr. Usher and two other defendants of allegations that the defendants had rigged the fixing of the euro-dollar currency pair via a multi-bank chatroom.  Previously the Antitrust Division had negotiated guilty pleas of banks in the forex case totaling to the three largest criminal fines in the Antitrust Division's history.  According to the Financial Times, “the loss is a serious setback for the US Department of Justice, which, alongside the UK Financial Conduct Authority, has extracted more than US$10bn in fines from settlements with banks over the foreign exchange scandal.”  According to MLex, “the [foreign exchange] verdict is a rare loss for Justice Department lawyers who in New York federal court overwhelmingly secure guilty verdicts against white – collar defendants.”   After the criminal trial, Richard Usher faced further US legal action when the Department of Treasury Office of Comptroller of the Currency (OCC) sought to civilly sanction Mr. Usher. Invoking the Sherman Act again and federal banking statutes, the OCC sough to ban Usher from trading for life and a substantial fine in its civil administrative proceeding. Mr. Gidley and his colleagues at White & Case won a rare victory at the OCC when the OCC dropped its case at the close of expert discovery, without even defending the case at the summary judgement stage. In August 2020, in the midst of the COVID-19 pandemic, succeeded in persuading the OCC to drop all Sherman Act antitrust charges against Usher. On June 11, 2021, won a second victory when the OCC dropped its allegation of collusion or coordination of forex currency spreads, dropping another key allegation that the OCC had made against Usher. After expert discovery, the OCC unilaterally dropped all charges against Mr. Usher on July 8, 2021, giving him a complete victory. This matter is shortlisted for “Most Important Court Case of the Year” at the 2021 Global Investigations Review (GIR) Awards. 
• Representation of Allergan/Warner Chilcott in a reversal of class certification by the First Circuit US Court of Appeals in the Asacol Antitrust Litigation.  The ruling bans the widespread use of aggregate proof and post-trial affidavits as a substitute for fact-finding by juries under the Seventh Amendment of the US Constitution and Rule 23.  The Asacol class action plaintiffs had challenged on Sherman Section 2 monopolization grounds Allergan's alleged "product hopping": the development of new DBP-free Asacol® – despite FDA's insistence that Allergan develop this phthalate-free version. The Asacol appeal itself was novel.  White & Case halted a Boston jury trial with hundreds of millions of dollars at stake only two days before opening arguments by obtaining a rare interlocutory appeal under Rule 23(f).  When the District Court refused to stop the trial, on January 25, 2018, the First Circuit granted an indefinite stay of the trial, allowing time for appeal.  23(f) petition grants are extremely rare – on the same standard as a grant of US Supreme Court certiorari, which have a less than 2% success rate.  The First Circuit held that the District Court's procedure for removing uninjured class members was not supported by US Supreme Court or First Circuit precedent and violated the Seventh Amendment.  On remand, the trial court denied leave to the plaintiffs to certify a narrower class, because such a motion would be futile.  The Asacol case has been influential among the circuit and district courts across the country, particularly on the issue of uninjured class members in consumer class actions.
• Representation of CertainTeed Gypsum, a leading US manufacturer of building products, to win summary judgement against Section 1 Sherman Act price-fixing allegations in the drywall industry.  The case challenged price increases in drywall during recovery from the Great Recession.  On February 18, 2016, the US District Court for the Eastern District of Pennsylvania granted summary judgment to only one moving defendant, our client CertainTeed Gypsum.  The claims totalled in the US$ billions.  Other indirect private damages claimants voluntarily dismissed their antitrust claims against CertainTeed without any settlement.

• Representation of Nexans SA in a victory in the DOJ Antitrust Division grand jury investigation in a novel multi-jurisdiction defense.  After a July 2015 trial in Australia against the plaintiff, the Australian Competition and Consumer Commission, in 2016 the Federal Court of Australia federal court dismissed all Australian antitrust claims against our client Nexans (Besanko, J.).  Australian Competition and Consumer Commission v. Prysmian Cavi E Sistemi, S.R.L. (No 12) [2016] FCA 822 (July 20, 2016). (Although not admitted in Australia, Mr. Gidley played a defense coordinating role for the client).  The July 2015 trial also had the effect of ending a 7-year DOJ Antitrust Division investigation.  The DOJ Antitrust Division closed its investigation, despite the cooperation of other parties in leniency programs and parallel investigations on five continents.  The case is significant as one of the rare instances of the Antitrust Division abandoning a criminal grand jury probe, despite an amnesty applicant, multiple MLAT applications, and parallel investigations on five continents.

  The battle to secure Nexans' freedom from the cartel investigations has led to unprecedented due process victories in antitrust cases around the globe by White & Case, including winning the first decision to recognize a right of privacy and a right against random searches-and-seizures against the European Commission Dawn Raids (with Mr. Gidley's colleague  in White & Case Brussels Mark Powell), overturning 30+ years of prior EC practice; winning the right to unmask secret, anonymous witnesses in Australian courts; and vindicating the sanctity of the corporate form against the ACCC cartel charges.

• Successfully defended Anthem in its merger and antitrust litigation involving Cigna.  Cigna had sought a US$1.85 billion break-fee in connection with the US$54 billion Anthem v. Cigna litigation.  The Anthem-Cigna litigation was one of the most-watched merger litigations of the past ten years.  The centerpiece of this historic trial was the antitrust defense efforts that Anthem made before the Antitrust Division and at trial in the DDC and on appeal to the DC Circuit.  With time of the essence, Anthem's efforts through White & Case included the fastest merger appeal in US history.  The antitrust trial in the district court revealed Cigna's efforts to end the merger agreement.  In ruling for Anthem, Delaware Vice Chancellor J. Travis Laster authored the longest opinion in that court's history.  Vice Chancellor Laster found that Anthem “chose a sound [antitrust] strategy and took all of the actions necessary and appropriate to pursue it.”  Cigna, he wrote, breached its obligation to try to consummate the deal, including by secretly hiring a PR firm and a law firm to "help[] Cigna to escape from the deal”:  “Rather than seeking to complete the Merger, Cigna sought to derail it.”  The Anthem v. Cigna case literally sets the standard for future antitrust defense efforts in all mergers in the U.S.A.  The Vice Chancellor's ruling in Anthem's favor on the break fee was affirmed by a unanimous decision of the Delaware Supreme Court.
• Successful defense of higher education application and technology platform, The Common App, against Section 2 monopolization claims brought by rival CollegeNET in the District of Oregon.
• Representation of Allergan in the settlement of antitrust and fraud charges brought by the New York Attorney General.  On November 25, 2015, the NY Attorney General abandoned its claims for monopolization damages and disgorgement, related to Allergan's announced policy of terminating the sale of an older patented drug in favor of a new patented drug (Namenda® – a drug used in the treatment of the symptoms of Alzheimer's).  The NY Attorney General had a billion-dollar damages case he was asserting, based on a claim that the client's public statements had led caregivers to switch away from the older (once-a-day) Namenda® to the newer, extended-release version, which allegedly had hobbled the entry of generics in 2015.  In an innovative move, we bargained for the settlement agreement to contain upfront a number of admissions of facts by the New York Attorney General discovered during the settlement process as to the lack of any consumer injury due to the injunction and that generics launched unimpeded to assist in our motion to dismiss private suits.  The New York Attorney General press release regarding the settlement echoed the lack of consumer injury due to the injunction.
• Lead counsel for Warner Chilcott/Actavis in defending against claims of monopolization based on alleged "product hopping" in connection with Doryx® brought by generic firm Mylan.  In September 2016, the US Court of Appeals for the Third Circuit dismissed claims against branded drug Doryx®, rejecting the claims of “product hopping”.  The Third Circuit also upheld the district court's summary judgment ruling on product market, finding a broad therapeutic class product market of oral tetracycline antibiotics.  The Third Circuit win upheld the April 16, 2015, the US District Court for the Eastern District of Pennsylvania (Diamond, J.) granted summary judgment against all of Mylan's claims, the first grant of summary judgment against antitrust "product hopping" claims.  Mr. Gidley was named "Litigator of the Week” by Global Competition Review in 2015 for his leading role in the district court victory.
• Trial counsel to Toshiba in its complete victory in a 2013 US civil jury trial concerning price-fixing allegations in the liquid crystal display (LCD) market (N.D. Cal.).  At trial, Toshiba faced price-fixing claims totaling US$2.3 billion brought by a large retailer plaintiff that previously had opted out of class proceedings against Toshiba and other LCD manufacturers. Following a six-week jury trial, the San Francisco jury unanimously returned a defense verdict for Toshiba in September 2013, finding that Toshiba did not participate in a LCD price-fixing conspiracy and therefore did not cause any damages to the plaintiff.  The Financial Times recognized this case in its 2014 Innovative Lawyers report, noting it challenged “the view that juries cannot handle complex damages calculations.”
• Trial counsel to Toshiba in its 2012 direct purchaser (DPP) class-action jury trial, in which the class plaintiffs alleged cartel activity in the thin-film transistor liquid crystal display (LCD) market.  Toshiba stood alone in taking the DPP civil class-action case to trial; all other defendants had settled for a total of approximately US$450 million.  The jury awarded the class plaintiffs no recoverable damages against the nearly US$2.7 billion in damages the class plaintiffs had sought based on charges of price fixing.  The Financial Times selected the Toshiba trial for inclusion in its 2012 Innovative Lawyers report. This high profile trial was covered extensively in the media, with articles noting the absence of recoverable damages - e.g., “Toshiba Fined US$87M for LCD Price Fixing; Won't Pay a Penny.” (PC World).
• Representation of international shipping company Stolt-Nielsen SA, in a crucial US Supreme Court victory denying class arbitration of private damages antitrust claims.  The US Supreme Court ruled that the Federal Arbitration Act (FAA) does not permit arbitrators to impose class-action arbitration on parties whose arbitration agreement is silent on the question of class arbitration, enforcing instead one-on-one arbitrations.  The win led to the end of the civil litigation.  The Stolt-Nielsen ruling is believed to have impacted an estimated 100 to 200 pending class arbitration proceedings then underway in the US, as well as future arbitrations where parties are seeking class treatment.  Stolt-Nielsen S.A. v. AnimalFeeds International Corp., No. 08-1198 (April 27, 2010).  The Stolt-Nielsen Supreme Court case was recognized by The Financial Times as one of the most innovative US litigation matters of 2010.
• Trial counsel in a landmark victory for Stolt-Nielsen SA, in its efforts to enforce its criminal Amnesty Agreement with the DOJ Antitrust Division.  On November 30, 2007, the federal district court in Philadelphia ruled, after a three-week criminal trial, that Stolt-Nielsen's amnesty agreement should be upheld and dismissed the indictment.  The court ruled the Division's actions to indict the company in violation of the amnesty agreement amounted to a breach of constitutional due process guarantees to the Company and its employees and executives.  This case, closely watched by the white collar and antitrust bars, has been the subject of extensive commentary.  With amnesty programs proliferating around the globe, the Stolt case is the first anywhere in the world where a court has enforced an antitrust amnesty promise against an antitrust agency.  United States v. Stolt-Nielsen S.A., 524 F. Supp. 2d 609 (E.D. Pa. 2007).  The court held that the government had violated the defendants' due process rights.  This case was named a leading defense victory for 2008 by the National Law Journal.  In a previous 2004 trial had led to the imposition of the first-ever injunction against criminal prosecution in the Antitrust Division's history, based on Stolt-Nielsen's novel lawsuit.
• Representation of Par Pharmaceuticals and Paddock Laboratories in connection with the FTC's challenge to the AndroGel® patent settlement.  Prevailed at the federal trial and circuit appellate courts and the case was one of two reverse payment patent settlement cases that the US Supreme Court heard during its 2012 Term.  The Supreme Court rejected the FTC's view that reverse payment settlements are presumptively illegal in FTC v. Actavis.
• Representation of Shionogi Inc. in the first ruling under the Federal Rule of Evidence 502(a) on the use of attorney opinions in sham litigation involving Orapred.  Shionogi, the patent holder, sought to reveal pre-complaint opinions of patent counsel in defending against allegations of "sham" patent litigation.  In December 2011, the court held that FRE 502 operated so that there was no broad subject matter partial waiver of privilege.  Shortly after receiving the Court's decision, Mylan dismissed its antitrust counterclaims.
• Trial counsel for Upsher-Smith Laboratories in a 40-day trial before an FTC Administrative Law Judge, resulting in a complete trial victory for the defense in 2002 against illegal agreement and monopolization charges.  This landmark case involved brand-generic patent settlements covering the drug K-Dur®.  Subsequently, the Eleventh Circuit also ruled in favor of the defendants.  Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005).  In 2006, the US Supreme Court declined the FTC's appeal.  The Supreme Court's denial of the FTC's petition for certiorari was the first such loss in many years for the FTC.  This case was named as one of the hot litigation victories by the National Law Journal.
• Trial counsel for Ian Norris, former CEO of Morgan Crucible, and the first executive ever extradited to the United States by the DOJ Antitrust Division.  In July 2010, the criminal trial was held in the US District Court for the Eastern District of Pennsylvania, and proceeded to a jury verdict with the jury unanimously acquitting Mr. Norris, a UK national, of all four substantive crimes of obstruction of justice (carrying 20-year maximum sentences each), involving charges of alleged antitrust grand jury witness tampering and document destruction.  The trial evidence demonstrated that no document destruction had occurred at Morgan Crucible.
• Representation of Stolt-Nielsen in a rare trial victory before the Korea Fair Trade Commission (KFTC) for overseas price fixing. The KFTC's action cleared Stolt-Nielsen without finding of any violation.  The case is believed to be the first price-fixing trial with live witness testimony before the full nine-member KFTC.
• Representation of overseas rubber thread manufacturers against damages stemming from an alleged global price-fixing cartel brought by domestic US purchasers.  Dee-K v. Heveafil, securing a jury verdict absolving our clients, Malaysian producers of rubber thread, of any violation of the Sherman Act Section 1 based on allegations of overseas price fixing, and successfully opposed class certification in this private damages suit.  The US Court of Appeals for the Fourth Circuit affirmed the trial court verdict in a landmark ruling that clarified the US Supreme Court's Hartford Fire test of “substantial effects" in the extraterritorial reach of the Sherman Act.  Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281 (4th Cir. 2002).
• Representation of Stolt-Nielsen SA and Stolt-Nielsen Transportation Group Ltd. in the first US federal court appellate decision in the Second Circuit compelling arbitration of claims based on alleged horizontal price fixing under the Sherman Act.  JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163 (2d Cir. 2004).
• Victory in the first successful Freedom of Information Act (FOIA) challenge to the Antitrust Division.  The DC Circuit decision resulted in the public release of 100 DOJ Antitrust Division amnesty agreements.

Mergers

Mr. Gidley has an active merger and joint venture practice, representing merging parties before the DOJ and the FTC, including numerous companies in connection with mergers, acquisitions and joint ventures in industries ranging from health-care, financial services, pharmaceuticals,  telecommunications, computer software, defense, retailing, and publishing to engineering, energy, chemicals, minerals, ocean shipping, and industrial and consumer goods.  Mr. Gidley's merger and joint venture experience includes representation of:

• Anthem in its efforts to acquire health insurer Cigna and its successful litigation to avoid a break fee of US$1.85 billion through trial and appellate litigation in US District Court for the District of Columbia and DC Circuit – which set up the defeat of the Cigna break fee claim in Delaware litigation.
• Anacor Pharmaceuticals Inc. in its US$5.2 billion acquisition by Pfizer. The deal was a cash tender offer, requiring antitrust review on a greatly shortened timeframe to completion, and within an industry facing increased regulatory scrutiny.
• Warner Chilcott plc in its sale to Actavis, Inc.  The deal, valued at approximately US$8.5 billion, created the third largest US specialty pharmaceutical company.
• Trial counsel for SunGard Data Systems in its successful trial defense of the acquisition and merger of the computer disaster recovery assets of Comdisco.  This high-tech merger litigation broke new ground in the intersection of US bankruptcy and merger law under Section 7 of the Clayton Act and was tried in record time.  From the filing of the complaint through the trial before the US District Court for the District of Columbia, until the decision on stay by the US Court of Appeals for the DC Circuit, only 19 business days elapsed.  This is believed to have been the first defeat of a government merger challenge in federal court in the District of Columbia in almost a decade.  United States v. SunGard Data Systems, Inc., 172 F. Supp. 2d 172 (D.D.C. 2001).
• Toyota Industries Corp. in its acquisition of US-based Cascade Corp. in a deal valued at US$760 million.  The acquisition created a global materials handling business for the lift-truck sector, and was completed following a US antitrust regulatory investigation of the vertical merger that was closed after a Second Request without the need for any relief.. The Toyota Industries acquisition was recognized by the Financial Times Innovative Lawyers report as one of the most innovative US transactions in 2013.
• Counsel to Federal Mogul in its 2014 acquisition of Affinia Group, Inc.'s chassis components business.
• Comex S.A. de C.V. in the acquisition of its US and Canadian assets by Sherwin-Williams.
• Grupo Bimbo in its acquisition of Sara Lee's US bread operations.
• Pilot Travel Centers LLC in its acquisition of Flying J Inc.'s travel plaza business before the US FTC.  The Pilot acquisition was voted one of the most innovative US matters of 2010 by the Financial Times.
• Iron Mountain Incorporated, the leading provider of records and information management services in the US, with respect to its acquisition of ArchivesOne, Inc.
• Houghton Mifflin Company, a US-based leading educational and trade press publisher in connection with its acquisition by Riverdeep Group plc, an Irish educational publisher in a US$5 billion combination.
• WebCT, Inc. before the DOJ Antitrust Division in its merger with rival Blackboard, Inc.
• Raytheon's US$9.5 billion acquisition of Hughes Electronics; Raytheon in its acquisition of Texas Instruments' defense electronics division; Raytheon in its acquisition of Chrysler Corp.'s Electrospace Systems Inc. and Airborne Systems Inc; Raytheon in the formation of the Standard Missile Company joint venture.
• Representation of the defendants in United States v. Agrimark, 156 F.R.D. 87 (D. Vt. 1994), a contested antitrust vertoca; merger consent decree matter against the DOJ Antitrust Division.  The district court ruled in favor of the defendants.  Agrimark overturned 60 years of prior law on antitrust consent decrees, which involved a consent decree and vertical integration issues arising from a merger.