GCR 100 - 17th Edition

United States: Pennsylvania

10 January 2017

United States: Pennsylvania

Pennsylvania remains a favourite venue for antitrust class actions, thanks in part to a significant pharmaceutical industry presence that has made the area popular for reverse-payment settlement cases.

Elite

Founded by David Berger in 1970, BERGER & MONTAGUE is one of the oldest still-active antitrust class action firms in the United States. Berger’s son Daniel, also an antitrust partner in the firm, says his father was a pioneer in developing class action litigation. The firm’s one current defence-side client is very local: a defendant in a Sherman Act section 1 claim against the Kennett Square, Pennsylvania mushroom industry.

Berger & Montague is currently co-lead class counsel in Castro v Sanofi Pasteur, in which a certified class is accusing the world’s largest vaccine manufacturer of illegally bundling its products as a way to stifle competition. The firm is also co-lead counsel in the Dental Supply antitrust litigation, in which a New York federal district court recently denied the defendants’ motion to dismiss, finding that the plaintiffs had sufficiently alleged that the three largest dental supplies and equipment distributors in the US had violated Section 1 of the Sherman Act. Practice co-chair Merrill Davidoff co-leads representation of plaintiffs in the Platinum Fixing and Gold Fixing financial industry cases. The firm is also East Coast counsel for the first class action filed against an alleged cartel of electrical capacitor makers, and practice co-chair H Laddie Montague Jr leads the representation of direct purchasers seeking damages from an alleged drywall cartel, who so far have obtained US$67.5 million in settlements.

The pharmaceutical presence in the Philadelphia area has coincided with Berger & Montague’s, and the firm has been a leader in pay-for-delay cases such as K-Dur, where the district court denied defendants’ motion for summary judgment with regard to reverse payment allegations against defendants Schering-Plough/Merck and Upsher-Smith in February 2016. The firm is also co-lead counsel in Loestrin 24, in which the federal district court originally dismissed the plaintiffs’ first amended complaint – holding that a reverse payment must be in cash – but was reversed on appeal in February 2016.

George G Gordon, co-chair of DECHERT’s antitrust group, leads a team of three other partners, one counsel and four associates in Pennsylvania. The firm added partner Steven Bizar to its roster earlier this year from another Pennsylvania-based firm, Buchanan Ingersoll & Rooney.

Gordon, along with partner Christine Levin, represents Endo Pharmaceuticals against “pay-for-delay” class actions brought by direct and indirect purchasers of the company’s Opana pain-relief tablets. Partner Carolyn Hazard is on multi-office teams defending Dow Chemical against a billion-dollar damages claim for fixing the price of urethane, and Dean Foods against supermarkets that say it colluded in the milk market. Dechert recently secured a major victory for RW Sauder when a Eastern District of Pennsylvania federal judge denied class certification to a group of indirect purchasers of eggs. The plaintiffs allege that producers of shell eggs and egg products conspired to reduce the supply of eggs and egg products.

After helping US Airways become “the new American” in a merger initially challenged by the Department of Justice a couple of years ago, Dechert is now responding to a DOJ inquiry and fending off more than 100 lawsuits that claim the airline has conspired with rivals to limit increases in seat capacity. The firm is also acting as lead counsel to drywall manufacturer New NGC in a series of consolidated direct and indirect purchaser class action cases alleging that the company and rivals conspired to fix the price of gypsum wallboard.

A Philadelphia-based firm with a national reach, BALLARD SPAHR counts the pharmaceutical company GlaxoSmithKline as one of its long-time clients. The firm is currently defending the drugmaker from litigation brought by Wellbutrin XL buyers in the US District Court for the Eastern District of Pennsylvania. GSK originally hired partners Stephen Kastenberg, Leslie John, Edward Rogers and Jason Leckerman as local counsel but eventually had them replace the lead counsel.

The firm also litigates on the plaintiff’s side: it represented Symphony Health Solutions’ in its suit against IMS Health for allegedly abusing its monopoly power in the market for pharmaceutical data. The case ended with a confidential settlement agreement in November 2015. Eisai also retained the Ballard Spahr team to appeal a summary judgment against its claims that rival pharmaceutical company Sanofi engaged in anticompetitive conduct, but the US Court of Appeals for the Third Circuit affirmed summary judgment in favour of the Sanofi defendants in May 2016 and denied Eisai’s petition for rehearing.

While most of BUCHANAN INGERSOLL & ROONEY’s antitrust lawyers are in Pennsylvania, they represent clients anywhere. The firm’s competition practice is led by Wendelynne Newton works with three associates, three counsel and 10 other partners. Longtime partner Steven Bizar left the practice in February 2016 to join Dechert.

The firm is currently defending clients in the Processed Egg Products and Dental Supplies antitrust litigations, as well as the National Physique Committee in a suit alleging that the organisation and other defendants improperly monopolised the bodybuilding market. Buchanan Ingersoll is also co-counsel with Dechert and Robinson Bradshaw & Hinson to New NGC in the Domestic Drywall litigation. A federal judge in the Eastern District of Pennsylvania denied the firm’s summary judgment motions in February. Also this past year, the FTC issued Buchanan Ingersoll’s client Geisinger Health System six civil investigative demands in connection with its investigation of the merger of PinnacleHealth System and Hershey Medical Center. The firm negotiated with the commission to reduce the burden on Geisinger in terms of the scope of the requests and due dates, as well as guided the health system through the process of responding to the modified demands and worked with the FTC to provide declarations on the potential effects of the merger.

At FINE KAPLAN & BLACK, 12 of the 13 lawyers – including new partner Adam Pessin – work on antitrust for both plaintiffs and defendants. Their biggest recent accomplishment is spearheading the Urethane class action, in which the largest antitrust judgment of 2013 – US$400 million in pre-trebled damages against Dow Chemical – was upheld in 2014 on appeal. While the case was pending in the Supreme Court, Dow agreed to pay US$835 million, the largest settlement ever recorded in a price-fixing case from a single defendant. A case alleging that the eight largest steel manufacturers agreed to restrict output settled for hundreds of millions of dollars for the firm’s direct purchaser clients, who were certified as a class in September 2015. Similar to urethanes, this was not a follow-on to a government case, but was investigated by the firm itself.

Practice chair Roberta D Liebenberg and partner Paul Costa are part of the executive committee in the Capacitors class action, which alleges that manufacturers fixed prices of aluminum, tantalum and film capacitors. Liebenberg was also just appointed liaison counsel in the Generic Digoxin and Doxycycline antitrust litigation. In another follow-on action, partners Donald L Perelman, Gerald Dever and Matthew Duncan led Fine Kaplan’s efforts on behalf of the indirect purchasers of cathode ray tubes as that litigation headed toward trial, though it settled in March 2015 for over half a billion dollars. Liebenberg and Dever continue to represent individuals implicated in cartel investigations.

Steven Reed, formerly in-house counsel at drug maker Cephalon, leads MORGAN LEWIS & BOCKIUS’s competition practice in Pennsylvania. The firm represents Merck & Co in a putative class action alleging that the pharmaceutical company misrepresented the efficacy rate of its mumps inoculation in an effort to keep competitors from bringing their own versions of the vaccine to market. Reed and partner Brendan Fee, assisted by associate Dana Becker, are defending Dutch Shell in the North Sea Brent Crude Oil Futures antitrust litigation. Recently, Fee and Massachusetts partner Daniel Goldberg obtained a dismissal for BMW’s North American subsidiary from a case claiming the car company had a monopoly on aftermarket parts sales and forced customers to pay more for parts than necessary. The firm is also representing Comcast in a suit by two cable installation companies alleging that the mass media conglomerate violated antitrust laws by agreeing with other cable installation companies to divide the market.

Daniel Booker started REED SMITH’s sophisticated antitrust practice in Pennsylvania when he joined the firm in 1977 after a stint at the antitrust division. He attracted stalwarts of Pittsburgh industry such as US Steel, which remains a client. The company recently fought off a lawsuit alleging that it conspired with other steel manufacturers to reduce supply. The US Court of Appeals for the Ninth Circuit upheld summary judgment last year against Stanislaus Food Products Company’s claim of a market allocation scheme among tin manufacturers. The firm is also defending Davis Vision against Acuity Optical Laboratories’ allegations of unlawful tying, and is representing PNC Bank in a putative nationwide class action lawsuit. Merchants are suing four credit card networks and seven banks for allegedly conspiring to avoid liability for paying for fraudulent card purchases.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Berger & Montague

Merrill Davidoff

H Laddie Montague Jr

11 partners

2 of counsel

6 associates

Eric L Cramer

H Laddie Montague Jr

Daniel Berger

David F Sorensen

Plaintiffs’ firm

Dechert

George G Gordon

4 partners

1 counsel

4 associates

Steven E Bizar

George G Gordon

Ruthanne Gordon

Stephen A Stack Jr

Joseph A Tate

Microsoft, Dow Chemicals, Actelion Pharmaceuticals, Endo Pharmaceuticals, Dean Foods, Curtis Circulation, American Airlines, FMC, Commercial Metals, RW Sauder, New NGC

Highly recommended

Ballard Spahr

Leslie John

10 partners

2 counsel

5 associates

None

GlaxoSmithKline, SIGMA Corporation, EI du Pont de Nemours and Company, Comcast Corporation, Warner Chilcott, Eisai, Electric Utility Industry Sustainable Supply Chain Alliance

Buchanan Ingersoll & Rooney

Wendelynne Newton

11 partners

3 counsel

3 associates

None

AmerisourceBergen Corporation, AtlantiCare Health System, Benco Dental Supply Company, Geisinger Health System, Keurig Green Mountain, Kadlec Health System, NGC

Fine Kaplan & Black

Roberta D Liebenberg

7 partners

3 of counsel

2 associates

Matthew Duncan

Roberta D Liebenberg

Donald L Perelman

Plaintiffs' firm

Recommended

Cozen O’Connor

N/A

N/A

None

N/A

Kohn Swift & Graf

Joseph Kohn

N/A

None

N/A

Morgan Lewis & Bockius

Steven Reed

2 partners

1 associate

None

BMW of North America, Comcast Corporation, Comdata, Merck & Co, Mitsui E&P USA, Royal Dutch Shell, Sandvik AB, Teva Pharmaceuticals, Travelport LP, Uber Technologies

Reed Smith

Debra H Dermody

8 partners

5 associates

None

Highmark, NiSource, PNC Financial Services Group, US Steel Corporation, Dr Scholl’s, MSA Safety, Davis Vision, Healthcare Service Corporation

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