Antitrust

Wilkinson Stekloff has quickly become the go-to firm for clients who want to litigate antitrust cases with an eye toward trial rather than settlement. We have had success in a number of high profile, bet-the-company antitrust cases, focusing on developing a strategy for winning at trial that often has delivered positive results for our clients before trial. We represent clients in civil and criminal matters, in courts and in agency proceedings.  Among our many representative matters, described further below, was an outright win at summary judgment that was selected as one of the “Impact Cases” of the year by Benchmark Litigation:

  • Kleen Products LLC et al. v. Packaging Corporation of America et al. (Judge Leinenweber, U.S. District Court for the Northern District of Illinois) Led by partners Beth Wilkinson and Rakesh Kilaru, Wilkinson Stekloff won summary judgment for Georgia-Pacific LLC (“GP”) in this antitrust class action involving claimed damages of over $10 billion. The win, which was affirmed unanimously on appeal, came just weeks after other defendants had agreed to pay over $350 million in settlement.

    Wilkinson Stekloff joined the team while the district court’s class certification ruling was on appeal to the Seventh Circuit. We recognized that GP had an important story to tell for itself: Among other things, in a case where Plaintiffs claimed Defendants had conspired to reduce production capacity, GP had not closed a single containerboard mill during the class period. Accordingly, GP focused its defense on telling its own story. We helped GP find and retain its own experts, developed an affirmative narrative specific to GP’s own unique facts, and filed independent Daubert and summary judgment briefs. In June 2017, Judge Leinenweber issued a ruling that imposed critical limits on the testimony of Plaintiffs’ experts. Just weeks later—and one day after preliminarily approving the other defendants’ settlement—the court granted summary judgment to GP, adopting our key argument: that GP’s pricing behavior during the class period was economically rational and that no reasonable jury could infer a conspiracy from the mere fact that GP communicated and met with its co-defendants. Benchmark Litigation named the summary judgment ruling one of its “National Impact Cases” of the year, and the American Lawyer gave the team a “Shout Out” for the win, highlighting the favorable result as “why you hire Beth Wilkinson.”

    On appeal, the Seventh Circuit unanimously affirmed the district court’s decision, agreeing there was not enough evidence of conspiracy to allow the case to proceed to trial. The opinion was authored by Chief Judge Wood (who had written the opinion affirming class certification), and joined by Judges Bauer and Rovner.

  • In re National Football League’s “Sunday Ticket” Antitrust Litigation (U.S. District Court for the Central District of California). Led by Beth Wilkinson, Brian Stekloff, and Rakesh Kilaru, Wilkinson Stekloff represents the National Football League, its 32 member teams, and NFL Enterprises in this putative class action lawsuit. Plaintiffs’ antitrust claims challenge the NFL’s multi-billion-dollar exclusive distributorship arrangement with DIRECTV for Sunday Ticket and, even more fundamentally, the business arrangements whereby the NFL teams collectively license the broadcast rights to NFL games. Wilkinson Stekloff and its co-counsel initially persuaded the court to dismiss all of Plaintiffs’ claims, with prejudice, because the challenged arrangement not only fails to violate the antitrust laws—but actually promotes consumer welfare by increasing the availability of live televised NFL games. The Ninth Circuit subsequently reversed that decision, and the case remains on appeal.
  • Altria E-Vapor Antitrust Litigation. Led by Beth Wilkinson, James Rosenthal, Rakesh Kilaru, and Moira Penza, Wilkinson Stekloff represents Altria in a series of antitrust proceedings arising out of Altria’s minority investment in JUUL Labs, Inc., a leading manufacturer of closed-system e-vapor devices.  Wilkinson Stekloff is serving as trial counsel for Altria in enforcement proceedings brought by and before the FTC, and as lead counsel for Altria in a series of putative class-action lawsuits brought by direct purchasers, indirect purchasers, and indirect resellers.
  • United States v. Glenmark Pharmaceuticals, Inc. (Judge R. Barclay Surrick, Eastern District of Pennsylvania). Led by Brian Stekloff, Kosta Stojilkovic, and Beth Wilkinson, we represent Glenmark in this criminal antitrust case.  The Department of Justice alleges that Glenmark entered into a price-fixing conspiracy with other generic manufacturers related to the anti-cholesterol medication, Pravastatin.
  • House et al. v. National Collegiate Athletic Association et al. and Oliver v. National Collegiate Athletic Association et al. (Judge Wilken, U.S. District Court for the Northern District of California).  Led by Rakesh Kilaru, Tamarra Matthews Johnson, Kieran Gostin, and Beth Wilkinson, we represent the NCAA in these putative class action lawsuits brought against the NCAA and its member Conferences on behalf of all Division I student-athletes.  Plaintiffs’ antitrust claims challenge the NCAA’s rules restricting student-athletes’ use of their names, images, and likenesses (“NIL”).
  • In re NCAA Grant-in-Aid Antitrust Litigation (Judge Wilken, U.S. District Court for the Northern District of California). Wilkinson Stekloff represents the NCAA in consolidated lawsuits involving claims by current and former college football and basketball student athletes challenging, under the Sherman Act, NCAA rules limiting the level of athletics-based financial aid and benefits that student athletes may receive. The Plaintiffs set out to fundamentally change college athletics in America by attacking their defining characteristic—that student athletes are amateurs—making this one of the most important cases in the NCAA’s history.

    Rakesh Kilaru led the NCAA’s briefing efforts at the summary judgment stage. Beth Wilkinson then led the NCAA’s defense in a three-week bench trial that took place in September 2018. The Court’s opinion reaffirmed the procompetitive value of the NCAA’s rules limiting pay for student-athletes while enjoining certain limitations on benefits that student-athletes may receive. An appeal is pending.

  • In re Namenda Direct Purchaser Antitrust Litigation (Judge McMahon, U.S. District Court for the Southern District of New York) and In re Loestrin 24 FE Antitrust Litigation (Judge Smith, U.S. District Court for the District of Rhode Island). Wilkinson Stekloff represented subsidiaries of Allergan plc in two certified class action antitrust lawsuits involving billions of dollars in claimed damages.  Both cases settled favorably right before trial for less than 5% of the claimed damages.

    First, partners Beth Wilkinson, Rakesh Kilaru, Kieran Gostin, and James Rosenthal, served as counsel for Forest Laboratories, Inc. in a certified class action that was set for trial. The case involved two antitrust claims related to the distribution of Namenda, a groundbreaking treatment for dementia in Alzheimer’s patients. Plaintiffs, a class of direct purchasers of branded and generic versions of Namenda, alleged that Forest made an anticompetitive “reverse payment” to settle a generic drug manufacturer’s challenge to Namenda. Plaintiffs also claimed that Forest acted unlawfully in trying to effectuate a “hard switch” between a twice-daily and once-daily version of Namenda. The case, which involved approximately $21 billion in trebled damages, settled on the eve of trial.

    Shortly thereafter, partner Moira Penza represented Warner Chilcott and Watson in a separate lawsuit involving allegations of anticompetitive conduct regarding Loestrin 24, a popular oral contraceptive.  Plaintiffs claimed approximately $8 billion in trebled damages.  The case settled days before Moira was slated to deliver the opening statement.

      In addition, before founding Wilkinson Stekloff, the firm’s partners handled other significant antitrust litigation, including the successful resolution of a federal class action against Major League Baseball following the elimination of a billion-dollar damages claim on Daubert grounds.