Antitrust

Wilkinson Walsh 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. Among our many successes, 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, Alex Walsh, and Rakesh Kilaru, Wilkinson Walsh 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 Walsh 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 NCAA Grant-in-Aid Antitrust Litigation (Judge Wilken, U.S. District Court for the Northern District of California). Wilkinson Walsh 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.

    Alex Walsh and 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). Wilkinson Walsh, led by partners Beth Wilkinson, Rakesh Kilaru, Kieran Gostin, and James Rosenthal, served as counsel for Forest Laboratories, Inc. in In re Namenda Direct Purchaser Antitrust Litigation, Case No. 1:15-cv-07488-CM (RWL), set for trial in October 2019 in the U.S. District Court for the Southern District of New York. The certified class action 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 for less than 5% of that amount.

  • In re National Football League’s “Sunday Ticket” Antitrust Litigation (U.S. District Court for the Central District of California). Led by Beth Wilkinson, Wilkinson Walsh 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 Walsh 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.

In addition, before founding Wilkinson Walsh, 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.