Antitrust and Competition Litigation
Our Antitrust & Competition Litigation practice includes all aspects of private civil litigation relating to antitrust and competition disputes, representing clients in both civil and criminal enforcement matters, and counseling businesses on a range of antitrust and competition matters integral to their operations, including compliance with applicable regulations. We offer a well-rounded perspective, with Antitrust & Competition Litigation team members in New York, Washington, D.C., and Europe. Members of our team are recognized by Chambers USA, The Legal 500, Who’s Who Competition and other major ranking publications for their excellence in antitrust.
We punch well above our weight in representing companies in some of the most complex and highest stakes cases. Our attorneys have decades of experience litigating civil antitrust and competition disputes in trial and appellate courts, including defending clients in class action suits against allegations of cartel behavior, litigating disputes among companies relating to allegations of monopolization and other exclusionary conduct, and defending clients in Federal Trade Commission (FTC) and Department of Justice (DOJ) civil enforcement actions. We also have experience representing plaintiffs in a variety of antitrust matters, as well as representing and advising non-party companies in FTC and DOJ investigations.
We regularly assist companies and executives in enforcement proceedings relating to allegations of criminal violations of antitrust and competition law. Our team includes an alumnus of the FTC and several former Assistant U.S. Attorneys. In cooperation with our Chambers and The Legal 500-ranked white collar defense team, our antitrust litigators have a superb record in achieving favorable results for clients facing government enforcement actions. Further, we have particular strength in helping companies navigate parallel government and civil actions, working with them to determine the most advantageous litigation strategy when facing multiple actions relating to the same conduct.
Several partners in our Antitrust & Competition Litigation practice have served in leadership roles within the ABA Antitrust Section for years, and our senior attorneys regularly lecture and write on issues of interest to the antitrust community.
Key Contacts
All Attorneys
Antitrust and Competition Litigation Representative Matters
- Represent a branded pharmaceutical company with regard to an allegation of a “pay for delay” antitrust violation in In Re Namenda Antitrust Litigation.
- Represent a tuna manufacturer with regard to an alleged cartel in shelf stable tuna products in In Re Packaged Seafood MDL.
- Represent a public streaming entertainment company in its capacity as a third party in various civil investigations and litigation brought by the FTC and certain U.S. state attorneys general in which the company’s interests are impacted by the actions of the largest Big Tech companies.
- Represent an innovative technology company in connection with DOJ antitrust litigation against Google.
- Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar
- Lawrence T. Gresser – Complex Commercial Litigation
- Melissa H. Maxman – Litigation, including White Collar and Antitrust
- Douglas J. Pepe – Complex Litigation, Law Firm Malpractice, Blockchain
- John Roberti – Antitrust & Competition Law, including Litigation
- Ronald F. Wick – Antitrust & Competition Litigation
This year’s Lawdragon guide highlights "the best litigators the U.S. has to offer" across various categories, following an extensive review of a record number of submissions. The guide focuses on lawyers who have made a significant impact, particularly in recent high-profile matters. The selection process includes in-depth analysis of major litigation and the attorneys consistently sought for key cases.
Each year, Super Lawyers identifies outstanding lawyers nationwide and regionally who have attained a high degree of peer recognition and professional achievement. Only 5 percent of lawyers are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars. This latest guide recognizes 100 percent of our D.C. partners and associates.
The C&G lawyers recognized as Washington, D.C. Super Lawyers are:
- Melissa H. Maxman – Antitrust Litigation
- John Roberti – Antitrust Litigation
- Ronald F. Wick – Antitrust Litigation
The C&G lawyers recognized as Washington, D.C. Rising Stars are:
- Derek Jackson – Business Litigation
- Alisa Lu – Business Litigation
Recognized Lawyers
• Mark S. Cohen – Commercial Litigation, including Real Estate, Antitrust, and White Collar
• Melissa H. Maxman – Litigation, including White Collar and Antitrust
• John Roberti – Antitrust & Competition Law, including Litigation
• Ronald F. Wick – Antitrust & Competition Litigation
Lawdragon is a legal media company providing news content and editorial features, including guides to the nation’s leading lawyers. This is Lawdragon’s second edition of the guide, assessing America’s top talent among those principally representing corporations and other organizations litigating claims involving antitrust, financial and securities litigation, intellectual property, commercial, M&A, cybersecurity and data privacy, and white collar and investigations.
The complaint alleges that CVS Caremark illegally used a loophole in Medicare regulations to exponentially increase certain fees and to force independent pharmacies to pay CVS Caremark to provide certain “performance-related” services on unreasonable terms.
The complaint also alleges CVS Caremark imposes terms that are so one-sided that no pharmacy would rationally enter into them. But because CVS Caremark is the country’s largest Pharmacy Benefits Manager (PBM) and controls access to Medicare Part D beneficiaries, CVS Caremark was able to force independent pharmacies to accept the unreasonable terms.
The complaint also alleges that CVS Caremark exercises its discretion in applying performance standards in bad faith to disadvantage pharmacies, and that certain terms of its contracts are unconscionable.
The complaint was filed in the Western District of Washington. Berger Montague LP will serve as Cohen & Gresser’s co-counsel, while Terrell Marshall Law Group PLLC is serving as local counsel.
Melissa Maxman serves as the Co-Chair of the Exemptions and Immunities Committee, which addresses judicially created immunities and serves as a resource for information on the scope of antitrust laws. She also serves as a Vice Chair for the Podcast Programming Committee, where she serves as a frequent host of the ABA’s Antitrust Law Section’s podcast, Our Curious Amalgam.
John Roberti is serving as the Technology Officer for the ABA’s Antitrust Law Section. As one of 15 Section officers, John serves on the Antitrust Section’s cabinet and is responsible for integrating technology solutions into the mission of the Section.
Ron Wick is Vice Chair of the Antitrust-Consumer Protection Law Daily Digest Committee, which publishes a daily compendium of antitrust and consumer protection news from around the world to keep the Section's membership apprised of development and analysis in their field.
About Cohen & Gresser: Cohen & Gresser is an international law firm with offices in New York, Paris, Washington, DC, and London. We have an outstanding record of success in high-stakes and high-profile litigation, investigations, and transactional work for our clients, including major financial institutions and companies across the world. Our attorneys have superb credentials, and are committed to providing the efficiency and personal service of a boutique law firm along with the quality and attention to detail that are the hallmarks of the best firms in the world. The firm has been recognized in a wide range of publications, including Chambers and The Legal 500.
The guide highlights C&G’s “elite group of practitioners” and use of advanced machine learning techniques and notes that the firm “handle[s] cases that are every bit as complex and challenging as big, national law firms.” Commentators noted that the firm “punches way above its weight” in litigation and investigation matters.
C&G Co-Founder Mark S Cohen is one of only two lawyers in the United States to be recognized as a “Leading Lawyer” in both Securities Litigation: Defense and Corporate Investigations and White-Collar Criminal Defense. Commentary from The Legal 500 recognizes Mark as a “top-tier advocate” who is “at the top of the profession” and “can litigate with the best of them.”
For the first time, C&G’s Antitrust practice has been recognized in Antitrust: Civil Litigation/Class Actions: Defense for its handling of class action cases concerning allegations of cartel behavior, monopolization, and other exclusionary conducts. The Legal 500 cites the leadership of Melissa H Maxman and the addition of “heavyweight” lawyer John Roberti as key reasons for the practice’s recognition.
C&G is again recognized in the Advice to Individuals and Advice to Corporates categories of the Corporate Investigations and White-Collar Criminal Defense section. The Legal 500 commentary notes that the practice is led by “partners with deep experience who obtain excellent results for clients” and is “well placed to handle transatlantic cases” with offices in New York, Paris, and London, and has “particular expertise in financial crime, antitrust enforcement, public corruption, and tax issues.”
The guide has also recognized C&G once again in the General Commercial Disputes category, praising the practice for showing the “discipline and focus necessary to win a case.” Testimonials from the guide highlight the team’s ability to “handle large and complex matters” with “experienced people, good judgment,” and “better use of technology.”
For the 10th consecutive year, C&G has been recognized in the Securities Litigation: Defense category for the firm’s “expertise in the financial services sector” and “recognized trial expertise” in cross-border and domestic securities litigation and enforcement proceedings. The Legal 500 emphasizes the team’s “strong practitioners” and “attentiveness to clients” in the 2022 guide.
Recognized Practices:
- Antitrust: Civil Litigation/Class Actions: Defense
- Corporate Investigations and White-Collar Criminal Defense: Advice to Individuals
- Corporate Investigations and White-Collar Criminal Defense: Advice to Corporates
- General Commercial Disputes
- Securities Litigation: Defense
Antitrust: Civil Litigation/Class Actions: Defense
- Melissa H Maxman
- John Roberti
- Ronald F Wick
- Jonathan S Abernethy
- Jason Brown
- Mark S Cohen
- S Gale Dick
- Jeffrey I Lang
- Melissa H Maxman
- Reggie Schafer
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
- Melissa H Maxman
- Daniel H Tabak
- Jonathan S Abernethy
- Mark S Cohen
- S Gale Dick
- Lawrence T Gresser
The Legal 500 analyzes the capabilities of law firms across the world. Its rankings “highlight the practice area teams who are providing the most cutting edge and innovative advice to corporate counsel.”
C&G’s Commercial Litigation practice is once again ranked in Litigation: General Commercial: Highly Regarded. The practice is recognized for being “regularly sought after by individuals and corporates for representation in securities class actions and derivative matters, as well as various shareholder and product litigation.” Clients note that the team is comprised of “litigators that you don’t want to mess with” and is one that “you can rely on.”
C&G’s White Collar Defense & Regulation practice is ranked in Chambers USA for the ninth consecutive year. The practice maintains its position as one of the “Elite” firms in Litigation: White-Collar Crime & Government Investigations. Chambers highlights the practice’s “talented pool of litigators with a wealth of government experience” and its “international presence” as key reasons for its continued ranking. Commentary from the guide notes that the practice is “a substantial player in the New York white-collar world” that has “burst onto the scene with strong former prosecutors” and “good results for their clients.”
Ranked Departments:
- Litigation: General Commercial: Highly Regarded
- Litigation: White-Collar Crime & Government Investigations: The Elite
District of Columbia
Antitrust: Litigation Specialists
New York
Litigation: General Commercial
Litigation: Securities Litigation: White-Collar Crime & Government Investigations
Super Lawyers ranks outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Only five percent of the lawyers in each state are selected as Super Lawyers, and only 2.5 percent are selected as Rising Stars.
Super Lawyers
Jonathan S Abernethy: Criminal Defense: White Collar
Kwaku Andoh: Mergers & Acquisitions
Elizabeth Bernhardt: Business Litigation
Thomas E Bezanson: Personal Injury – Products: Defense
Colin C Bridge: Criminal Defense: White Collar
Karen H Bromberg: Intellectual Property
Jason Brown: Criminal Defense: White Collar
Joanna K Chan: Securities Litigation
Mark S Cohen: Business Litigation
S Gale Dick: Business Litigation
Christian R Everdell: Criminal Defense: White Collar
Lawrence T Gresser: Business Litigation
Oliver S Haker: Business Litigation
Johannes Jonas: Mergers & Acquisitions
Nicholas J Kaiser: Real Estate
Jeffrey I. Lang: Business Litigation
Melissa H Maxman: Antitrust Litigation
Ellen Paltiel: General Litigation
Nathaniel P T Read: Business Litigation
Bonnie J Roe: Securities & Corporate Finance
Stephen M Sinaiko: Business Litigation
C Evan Stewart: Securities Litigation
Daniel H Tabak: Business Litigation
Scott D Thomson: Business Litigation
Alexandra Wald: Business Litigation
Ronald F Wick: Antitrust Litigation
Rising Stars
Luke Appling: Civil Litigation
Sharon L Barbour: Criminal Defense: White Collar
Drew S Dean: General Litigation
William Kalema: Business Litigation
Sri Kuehnlenz: Civil Litigation
Winnifred A Lewis: Securities Litigation
Marvin J Lowenthal: Criminal Defense: White Collar
Barbara K Luse: Criminal Defense: White Collar
Matthew V Povolny: Business Litigation
Benjamin Zhu: Criminal Defense: White Collar
Christian R Everdell has been promoted to partner, and Joanna K Chan, Erica Lai, and David F Lisner have been promoted to counsel.
"Congratulations and thanks to each of these exceptional attorneys for their commitment to excellence, integrity, and superb client service. We are very fortunate to have them," said Managing Partner, Lawrence T Gresser.
Melissa H Maxman was quoted in a Bloomberg article regarding Google’s internet dominance and the effects on internet searches, noting that “bringing plaintiff cases in the U.S. will be challenging, especially after the Federal Trade Commission closed its investigation of Google in 2013.”
The Capitol Forum Interview Series features a discussion with Melissa H Maxman, Managing Partner of C&G's Washington, D.C. office.
View the interview here.
Cohen & Gresser is pleased to announce the opening of its fourth office in Washington, D.C. The Washington office will be led by partner Melissa H Maxman, and will handle a range of commercial litigation and regulatory enforcement matters, with a focus on U.S. antitrust issues, criminal and civil litigation, and compliance and regulatory disputes in the federal agencies.
The case in Texas is brought by Ryan LLC, a tax services and software provider, and several business groups led by the U.S. Chamber of Commerce, which were permitted to intervene as plaintiffs after their separate challenge was stayed to allow Ryan’s lawsuit to proceed. The plaintiffs allege that the non-compete ban, announced by the FTC in April, exceeds the FTC’s statutory authority, and that any statutory authority the FTC might have to adopt the ban is an unconstitutional delegation of legislative power.
After initially issuing a preliminary injunction in July that enjoined enforcement of the rule only as to the specific plaintiffs in the suit, Judge Brown modified the scope of her ruling at the summary judgment stage to extend to all impacted parties nationwide. Judge Brown held that the rule exceeds the FTC’s statutory authority because Congress, through the FTC Act, granted the agency authority to enact only procedural rules concerning unfair methods of competition, and not substantive rules. Additionally, Judge Brown held that the rule is arbitrary and capricious given its breadth in applying to almost all non-compete clauses.
The rule would prohibit employers from entering into, attempting to enter into, enforcing, or attempting to enforce a non-compete clause, which is defined broadly under the rule. Existing non-compete clauses for senior executives (workers who earn more than $151,164 annually and are in policy-making positions) would be allowed to remain in force, and a handful of other exceptions would apply (including, for example, non-competes entered into pursuant to the bona fide sale of a business entity, or those involving a franchise in the context of a franchisor-franchisee relationship). However, after the rule takes effect, all new non-compete clauses that do not fall under these exceptions would be prohibited, including for senior executives.
Employers would not be required to formally rescind non-compete clauses that are rendered unenforceable by the rule, but they would be required to provide notice to workers (other than senior executives) who are bound by existing non-compete clauses that those clauses will not be enforced.
Other lawsuits challenging the rule remain pending. In ATS Tree Services, LLC v. FTC, Judge Kelley B. Hodge of the U.S. District Court for the Eastern District of Pennsylvania declined in July to grant the plaintiff’s requested preliminary injunction to stay enforcement of the rule, concluding that the plaintiff was unlikely to succeed on the merits. The case is scheduled to move forward with summary judgment briefing this fall, should the plaintiff elect to proceed with the case in light of Judge Brown’s ruling. More recently, a judge of the U.S. District Court for the Middle District of Florida granted a preliminary injunction in Properties of the Villages, Inc. v. FTC, although that order limited the effect of the injunction to the plaintiff in the case.
While the FTC has not yet formally responded to the Texas decision, an appeal seems likely. Particularly given the conflicting decisions in different courts, it is all but certain that the validity of the rule ultimately will be decided at the appellate level, and well after September 4. For the moment, however, businesses can put their preparations for compliance with the rule on hold while they await further developments in the appellate process.
- The consent decrees allow the private equity fund JAB Consumer Partners SCA SICAR's National Veterinary Associates to close two recent deals with some divestitures but also impose a series of strict prior notice requirements that are unprecedented in their breadth.
- The announcements come a month after the confirmation of a fifth commissioner that gave the Democrats a 3-2 majority on the FTC.
- As long as Democrats control the majority, private equity firms should be prepared for additional scrutiny and be cognizant of other competition issues that may impact them.
Melissa H Maxman and Ronald F Wick examine the impact of the Leegin Creative Leather Products Inc. v PSKS Inc. ruling a decade after the decision.
Listen to this episode to learn more about the components of the draft, including the Commission’s two-stage approach for analysing potential exclusionary abuses of dominance and the available defences, as well as the implications for the guidelines of the Google Shopping ECJ judgment that deals with self-preferencing as an abuse.
In the episode, the DOJ Antitrust Division’s Deputy Assistant Attorney Generals Andy Forman and Michael Kades speak with Melissa and co-host Anora Wang of Arnold & Porter about the background, guiding principles, and some specific language in the draft Guidelines.
In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy?
Melissa Maxman participated in the discussion, which addressed the intersection between ESG and the Sherman Act.
Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG.
In June 2021, the Supreme Court of the United States unanimously held that the National Collegiate Athletic Association ("NCAA") has violated the Sherman Act with its rules limiting the amount of education-related compensation colleges and universities can provide to student-athletes. However, the Court did not define what constitutes education-related compensation, and the NCAA still has the ability to define the outer boundaries of that term.
This webinar will consider NCAA v. Alston as it relates to the Sherman Act and the implications the Court's decision will have.
C&G’s Melissa H Maxman co-hosts this episode of the podcast “Our Curious Amalgam,” presented by the American Bar Association’s Antitrust Section, where she spoke with Bill Kovacic, Former Chair of the FTC and Director of the Competition Law Center at George Washington University, to discuss how the nearly decade-long debate about antitrust reform may play out in the new administration.
Erica Lai served as the moderator of a panel discussion titled “Promoting Women’s Professional Development And How Men Can Help – During the Challenges of the Pandemic and Beyond.” The panel was hosted by American Bar Association Antitrust Law Section’s Women.Connected committee.
Melissa H Maxman presented a CLE on "Preventing and Defending a Private Civil Class Action Price-Fixing Lawsuit: Best Practices for a New Decade" at a program hosted by Lawline. She outlined clear steps to ensure the best strategies to prevent and defend against different types of anticompetitive allegations.
Melissa H Maxman appeared on an episode of Our Curious Amalgam’s podcast series, titled “When is Doing Good Bad? Antitrust in Social Responsibility Agreements,” hosted by John Roberti, leader of the Antitrust Section of the American Bar Association.
Listen to the episode here.
Melissa H Maxman participated in a presentation, titled “The Incoherent Justification for Naked Restraints of Competition: What the Dental Self-Regulation Cases Tell Us about the Cavities in Antitrust Law” at the 19th Annual Loyola Antitrust Colloquium at the Loyola University Chicago School of Law.
Partner Melissa Maxman appeared on Legal Talk Network’s podcast series ‘On the Road’ on the ‘Antitrust Exemptions in Sports--& More!’ episode. She joined host Creighton Macy of Baker McKenzie, and panelists Sathya Gosselin of Hausfeld and Kim Scott of Miller Canfield, in a discussion about antitrust exemptions in sports, antitrust careers, and litigating sports cases.
Consumer Antitrust Institute in Chicago
ABA Antitrust Spring Meeting Panel, Washington, D.C.
International Association of Korean Lawyers, IAKL Seoul Conference Program, Washington, D.C.
Association of Transportation Law Professionals (“ATLP”) 87th Annual Meeting in New Orleans
Melissa Maxman was a panelist at this event.
Melissa was a primary commentator at this event.
Melissa was a panelist at this event.
Melissa was a speaker at this event.
Melissa was a speaker at this event.
Melissa was a speaker at this event.
Multiple presentations while at the U.S. Department of Justice, including to the U.S. Navy, officials and military in Guam, and agencies and governmental bodies in California, Nevada, and Alaska.
Key Contacts