In House Counsel Antitrust
Update
American Bar Association
Section of Antitrust Law
Corporate Counseling Committee
June 2, 2006
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DOJ/FTC New Kids on the Block
David Meyer, DOJ Deputy AG
Susan DeSanti, Leaves FTC to Antitrust
Modernization
Commission
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DOJ: Civil Enforcement
• Microsoft: 2 year Extension of Decree
• West Virginia Real Estate:
– Eliminate Rebate Prohibition
• WalMart Debit Card case
– Seek damages for U.S.
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DOJ Merger Enforcement
• U.S. v. ATT/SBC
• U.S. v. MCI/Verizon
– Argument on scope of Tunney Act
– Actel, Comptel can be Amici
• Approve Mittal Steel Merger
• ICN Conference
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DOJ Criminal Enforcement
• United States v. Benit
• Erate fraud scheme
– Fraud and conspiracy claims
• United States v. Nextira One
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Petition for Rehearing in StoltNielsen
•
Stolt-Nielsen, a South African shipping firm, sought protection under the
Antitrust Division’s corporate leniency program in exchange for cooperating
in a criminal investigation of Stolt-Nielsen and its co-conspirators
•
Under the Corporate Leniency Policy the government will not charge a firm if
it meets seven conditions
– 1) The applying firm is the first to report illegal activity
– 2) The government could not sustain a conviction at the time the firm comes
forward
– 3) The firm took prompt and effective action to terminate its role in the activity
being reported upon discovery of that activity
– 4) The firm cooperates candidly and completely
– 5) The firm confesses to illegal and anticompetitive conduct as a corporation
– 6) The firm makes restitution where possible
– 7) The government determines that leniency to this firm would not be unfair to
others
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Withdrawal of Immunity
• Under the agreement Stolt-Nielsen turned over lists that had been used
to apportion customers and other evidence of anticompetitive behavior
• The Government secured guilty pleas resulting in prison terms and
fines of $62 million against co-conspirators
• The Government investigation turned up evidence that Stolt-Nielsen
had participated in the conspiracy for several months after it was
discovered by the general counsel, in violation of the third requirement
• At the district court Stolt-Nielsen succeeded in arguing that the
Government could not unilaterally breach the agreement, but that
decision was overturned by the 3rd Circuit, citing the limited powers of
the district court to enjoin an indictment
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Petition for Rehearing
•
Stolt-Nielsen filed a petition for rehearing citing three concerns:
– 1) The decision overturning the district court conflicts with precedents establishing
that the Due Process Clause requires strict adherence to agreements with
defendants
– 2) The decision conflicts with precedents establishing that the federal courts may
enjoin prosecutions that conflict with constitutionally protected property rights
– 3) The separation of powers does not exempt prosecutors from the duty to abide by
binding agreements that they make with defendants
•
•
On May 16, the two-judge panel amended its original opinion, but did not
overturn it
On May 30, 3d circuit asks DOJ to reply
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SG Brief: Weyerhaeuser.
Is there predatory overbuying?
•
Ross-Simmons sued Weyerhaeuser for Section 2 violations, including predatory bidding
and overbuying
•
The district court, in its jury instruction, defined “overbuying” and “predatory bidding”
as defendant’s purchasing more of an input than needed or paying a higher price than
necessary to prevent plaintiff from getting the logs it needed at a fair price
•
The 9th Circuit upheld the district court’s decision, choosing to treat buy-side predatory
behavior differently than sell-side behavior such as predatory pricing
•
The court noted that predatory pricing cases have a high liability standard under Brooke
Group (that the predatory actor must operate at a loss and have a dangerous probability
of recouping that loss), but insisted that consumers do not benefit from predatory
buying, and thus the Brooke Group standard is unnecessary
•
Because the 9th Circuit found the higher standard of liability of Brooke Group
inapplicable, it sustained the district court
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Seeking Cert
• The Solicitor General, joined by the FTC and the Antitrust Division,
filed a brief in the Supreme Court seeking cert and urging reversal,
arguing:
– The concerns underlying the high standards for predatory pricing are
generally applicable to predatory bidding
– Plaintiffs in predatory buying cases should therefore need to prove
defendant suffered a loss, and had a dangerous probability of recouping
that loss
– Approving the district court’s definition allows a jury to base its
assessment on subjective factors such as “fairness” and “necessity”
– The result of this uncertainty is to chill procompetitive aggressive bidding
by companies seeking to ensure access to inputs
– Jury instructions that lack an objective standard threaten to chill
competition because it makes it very difficult to distinguish predation
from aggressive competition, and will dissuade competitors from
competing vigorously
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Interlocutory Appeal in So. Carolina
State Board of Dentistry v. FTC
• The FTC challenged a SC Board regulation preventing oral
hygienists from performing certain procedures in schools
without a dentist’s examination
• The Board countered that it was immune under the State Action
Antitrust Immunity doctrine
• After the FTC denied the protection, the Board brought an
interlocutory appeal, claiming the denial was a collateral order
that could be appealed
• The 4th Circuit disagreed, and dismissed for lack of jurisdiction
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Collateral Order Doctrine
• To be appealable under the Collateral Order Doctrine, an order must:
– 1) Conclusively determine the question
– 2) Resolve an important issue separate from the merits of the action
– 3) Be effectively unreviewable
• 4th Circuit application of the Test:
– 1) Denial of immunity determines the issue
– 2) Issue is NOT separate from the merits, because whether state sanctions
anticompetitive conduct is related to whether conduct is anticompetitive
– 3) It is NOT unreviewable because Parker immunity is not concerned
with avoiding the particular harm of TRIAL (compared to double
jeopardy, absolute immunity, qualified immunity, etc.)
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Circuit Split
• The 5th and 11th Circuits have previously gone the
other way on analyzing the final two prongs of the
collateral order doctrine
• The 3rd and 7th Circuits have stated the same in dicta
• The 6th Circuit held that denial of Parker immunity
was not appealable, and Judge Motz’s 4th Circuit panel
agreed in South Carolina State Board of Dentistry
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FTC Advocacy
• Comments to PTO on Continuation Practice
• Texas Legal Online Matching Service:
– Online dating is procompetitive
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FTC Merger Enforcement
• Evanston/Northwestern Argument
– The new math of efficiencies: “We learned to
raise prices”
– Is divestiture unprecedented or sound?
– How do we sing “unilateral effects” after
Peoplesoft bombed on Broadway?
– The enforcer’s fantasy: liability without
relevant market
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FTC Pharmaceutical Settlements
• Commission Leibowitz Speech
“they’re back”
–Recent trend of return of reverse
payments
• FTC Pharmaceutical Settlement Report
–First time since 1999 there are payments
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FTC v. DOJ: Patent Settlements
• FTC v. Schering
– Cert filed
– Amici
FTC
DOJ
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FTC v. DOJ: Schering
Solicitor General Brief
• Petition raises important issue
• Case is not a good vehicle for addressing the
questions
– FTC approach is wrong
– Need “ex ante” assessment of patent validity
• No Circuit Split
– Prior SG/FTC/DOJ brief in Cardizem/Hytrin
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It ain't over till it's over.
Yogi Berra
October 17, 2004
BASEBALL;
All Over but the Routing
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FTC Provides Senate Testimony on
Post-Katrina Gas Price Increases
• Following its investigation, the FTC found no instances of
illegal market manipulation, and 15 instances of “price gouging”
under Section 632 of the FTC’s appropriations legislation (but
all of them were excusable)
• The FTC Testified that:
– Regional and local market trends explained most of these
increases
– Gouging legislation may cause more problems for
consumers than it solves
– Market forces should determine the price of gasoline.
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Other Findings
• NO evidence that refiners manipulated prices
• NO evidence that refinery expansion over past 20 years was
coordinated to manipulate prices
• NO evidence that companies made pipeline rate or expansion decisions
to manipulate prices
• NO evidence that oil companies reduced inventory to manipulate
prices
• NO evidence that one firm or a small group could manipulate futures
prices by restricting access to New York Harbor
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Antitrust Modernization Commission
• Deliberation Hearings (May 8, 23)
– Criminal Remedies
– Civil Remedies (Gov’t)
• No change
• Civil Remedies (Private)
– Indirect Purchasers
– Joint and Several Liability
– Prejudgment Interest
– Attorneys Fees
– Treble Damages
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Antitrust Modernization Commission
• Federal Government Enforcement
• State Enforcement
• Robinson-Patman Repeal?
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Private Litigation
1. UFCW v. Sanofi-Aventis & Bristol-Myers
Squibb (Plavix)
2. Teva Pharmaceuticals v. Abbott Labs
(TriCor)
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Plavix Antitrust Case
• Direct and Indirect purchasers of Plavix (blood
thinner with $3 billion annual sales) sue
innovator-producer of drug (Bristol-Myers
Squibb) and potential generic competitor
(Apotex).
• Plaintiffs’ allege fraudulent procurement of
patent (Walker Process fraud) by BMS and
illegal settlement of patent dispute with Apotex.
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Hatch-Waxman Framework
• Generic firm may file Abbreviated New Drug Application
(“ANDA”) with FDA to market its drug without full newdrug approval process.
• Generic certifies that it will come to market after branded
patent expiration (¶ 3) or that patent is invalid/not infringed
(¶ 4).
• On ¶ 4 certifications, branded company may sue for
infringement. If it sues, generic cannot enter until…
– 30-months from date innovator notified of ANDA, or
– Final judicial determination of noninfringement/invalidity
• Subsequent generics cannot enter until 180 days after
marketing of first generic.
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Plavix: Alleged Anticompetitive
Conduct
• Apotex is first to file ¶ 4 ANDA for generic Plavix.
• BMS asserts one patent against Apotex. (Plaintiffs allege that
BMS knew it was invalid and obtained by fraud on PTO).
• After 3 years of patent litigation, parties settle.
– “Reverse payment” from BMS to Apotex.
– Apotex agrees not to enter until 2 months before patent
expiration.
– Apotex retains 180-day exclusivity  other generics
blocked from market.
– Apotex cannot enter even if FTC determines settlement is
anticompetitive.
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Plavix: Plaintiffs’ Theory of Harm
• Absent the fraudulent procurement of the patent in
question, Apotex and other generics could have
come to market in 1998 (13 years before
expiration).
• Absent BMS-Apotex agreement, Apotex and other
generics would have entered the market in 2006 (5
years before expiration).
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Plavix: WWPD?
What Would Posner Do?
• “Only if a patent settlement is a device for circumventing
antitrust law is it vulnerable to an antitrust suit. Suppose a seller
obtains a patent that it knows is almost certainly invalid (that is,
almost certain not to survive a judicial challenge), sues its
competitors, and settles the suit by licensing them to use its
patent in exchange for their agreeing not to sell the patented
product for less than the price specified in the license. In such a
case, the patent, the suit, and the settlement would be devicesmasks-for fixing prices, in violation of antitrust law.”
– Asahi Glass, 289 F. Supp. 2d at 991.
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Plavix: WWPD?
What Would Posner Do?
“But the private thoughts of a patentee, or of
the alleged infringer who settles with him,
about whether the patent is valid or whether
it has been infringed is not the issue in an
antitrust case.”
– Asahi Glass, 289 F. Supp. 2d at 992.
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Plavix: Effects Outside Scope of
Patent?
• Recent cases hold that settlements are legal
within scope of patent.
• BMS allowed Apotex to keep 180-day
exclusivity, prevented entry even if FTC
disallows settlement.
– Does this exceed the scope of BMS’s patent
right?
• Is this a sign of cases to come? Stay tuned.
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Teva Pharmaceuticals v. Abbott
Laboratories, 02-1512-KAJ (D.
Del) (TriCor)
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TriCor
District court denies 12(b)(6) motion to
dismiss claims that therapeutic switching
constituted unlawful monopolization in
market for fenofibrate (cholesterol drug)
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TriCor: Timeline of Events
•
•
•
•
1998 – Abbott receives FDA approval for TriCor capsule (cholesterol
medication).
1999 – Teva submits ANDA for TriCor capsules. Abbott sues.
Sept. 2001 – Abbott NDA for TriCor capsule approved.
March 2002 – Summary judgment for Teva on capsules (non-infringement)
and Teva capsule-ANDA approved.
– However, Teva had difficulty selling generic TriCor because it could not get generic
substitutions from Abbott
•
•
•
June/Sept. 2002 – Teva and Impax submit ANDAs for tablet TriCor. Abbott
sues.
Abbott submits NDA for new tablet formulation and receives FDA approval.
May 2005 – Summary judgment for Teva/Impax that they do not infringe
Abbott patents.
– Again, Teva/Impax are not substituted for TriCor and do not get significant sales.
•
2005 – Teva, Impax and direct purchasers bring suit for several antitrust
violations
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TriCor: Plaintiffs’ claims
• Section Two claims
– Conspiracy (Abbott and its partner, Fournier) to
monopolize fenofibrate market
– Overall scheme to monopolize
– Abuse of patents (fraudulent listing, sham
litigation, fraudulent prosecution)
• Section One claims
– Conspiracy to restrain trade
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TriCor: Abbott’s defenses
• Changes in TriCor were improvements to
product  per se legal under antitrust laws.
• Overall “scheme to monopolize” claim must
be dismissed if individual tactics do not
violate the antitrust laws.
• Plaintiffs did not allege that litigation to
enforce patents was a sham.
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TriCor: Microsoft standard adopted?
• Court notes risks of false positives for
monopolization claims based on innovation
and rejects defendants’ proposed rule of per se
immunity for innovations.
• Court chooses “middle road” of Microsoft
balancing test.
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TriCor: Microsoft balancing test
• “Once the plaintiff demonstrated [an] anticompetitive
effect, the burden shifted to Microsoft to present a
procompetitive justification for its conduct.”
• “If such a justification were offered, the plaintiff could
rebut it, or alternatively, establish antitrust liability by
demonstrating that ‘the anticompetitive harm of the
conduct outweighs the procompetitive benefit.’’
• “That balancing approach embodies the familiar ‘rule of
reason’ test first articulated by the Supreme Court in
Standard Oil Co. v. United States.” (Slip op. at 17-18).
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TriCor: Dismissal Denied
• Even if shift to tablets “improved” product, it could still harm
competition by foreclosing competitors, and that harm must be
weighed in the Microsoft analysis. (Slip Op. at 19).
• Even if conduct did not completely foreclose Teva/Impax from the
market, it could be illegal if it deprived them of the most efficient
channel of distribution – generic substitution. (Slip Op. at 20) (citing
United States v. Dentsply, 399 F.3d 181, 191 (3d Cir. 2005).
• Court upholds “scheme to monopolize” or “monopoly broth” theory of
liability on 12(b)(6). However, non-sham litigation cannot be stirred
into the broth. (Slip Op. at 29-31).
• Court finds sufficient allegations that litigation to enforce patents was
sham.
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TriCor: What does it mean?
• Therapeutic switching and fraudulent
listing/delisting by innovator firms are
likely to be hot topics in antitrust.
• Both generic firms and purchasers can sue.
• $ 50 billion of innovator drugs going off
patent in the next 4 years = promising future
for antitrust litigators.
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TriCor: Remaining Questions
• Can plaintiffs produce sufficient evidence
that exclusionary effect of innovations
outweighed benefits?
• Will this court and future courts adopt
Microsoft standard?
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The Benefits of Opting Out of
Class Action
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Opting Out of a Class Action
• Companies often receive notice that they are part of a
class action
• Opting out of these class actions can offer higher
recoveries with little additional risk
• Many companies remain in the class and accept the
settlement that results, and in doing so, they may be
leaving millions of dollars on the table
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Benefits of Opting Out
• Controlling the litigation has other benefits:
– Business interests
– Relationships with defendants
– Political interests
• Opt-out plaintiffs in cases such as the Vitamins Antitrust
Class Actions, the Methionine Antitrust Litigation,
Lysine Litigation, and others recovered four and five
times the class recovery
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The Vitamins Success Story
• In re Vitamins
– International Cartel pled guilty in the U.S.
– Class action settled for $1.05 billion before discovery
plus $225 million class counsel fees
– 75% of class opted out, reducing recovery by 75% (but
not class counsel fees)
– 3 years of litigation commenced with some confidential
settlements along the way
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Other Successes
• Quaker Oats opted out of two class actions
in the late 1990s and tripled the recovery it
would have had as a class member
• Tyson Food recovered five times what it
would have received in the Vitamins class
action
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Choosing Your Battles
• Companies should have a system to review class actions
and determine whether to opt-out
– Assign an individual to track class action notices and
deadlines
– Contact counsel quickly to learn the facts of the case
– Try to determine if class counsel is interested in a
quick settlement
• Risk can be minimized by using contingency
arrangements and other incentives with class counsel
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Whether to Opt-Out
• Issues to Consider
– Will opt-out alienate a key client or supplier?
Are there political reasons to not opt-out?
– What are the costs in time and money of opting
out? Will it disrupt the company?
– How big is your stake in the litigation?
– Can in-house counsel handle this, or should we
employ outside counsel?
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K. Craig Wildfang
K. Craig Wildfang is a partner in the firm’s Minneapolis office. He has
represented parties in many private civil antitrust actions in industries
ranging from insurance to agricultural commodities and has counseled
clients on a wide variety of antitrust and trade regulation issues from
mergers and joint ventures to marketing and sales programs.
From 1993 to 1996, Craig served as Special Counsel to the Assistant
Attorney General for Antitrust, United States Department of Justice in
Washington, D.C. In that position he was responsible for advising the
Assistant Attorney General on the Justice Department’s complex civil
antitrust litigation, as well as managing certain high-profile cases.
He represented large agribusiness clients who were plaintiffs in In re
Vitamins Antitrust Litigation, MDL 1285 (D.D.C.). The Vitamins litigation
arose out of a decade-long price-fixing cartel of the major international
vitamin manufacturers, and involved vigorously contested disputes
regarding jurisdiction, foreign discovery, conspiracy, and expert
issues. Clients included Land O’ Lakes, Inc., Hormel Foods
Corporation, CHS Co-Operatives, Gold’n Plump Poultry, and other large
vitamin purchasers.
He is currently representing merchants in litigation challenging Visa
and MasterCard interchange fees.
Craig can be reached at 612.349.8500 or kcwildfang@rkmc.com
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David A. Balto
David A. Balto is a partner in the firm’s Washington, D.C.
office. He has practiced antitrust law for over 20 years both in
the Antitrust Division of the Department of Justice, the Federal
Trade Commission and private practice.
David’s counseling includes antitrust and consumer
protection compliance, FDA regulation, strategic alliances,
distribution issues, mergers and joint ventures. David
represents a wide variety of health care, pharmaceutical,
medical device and financial services entities and frequently
represents parties in merger investigations before the FTC and
DOJ.
David has over 15 years experience in the Antitrust Division of
the Department of Justice and the Federal Trade Commission
(1998-2001). He was the Policy Director of the Bureau of
Competition of the Federal Trade Commission and attorney
advisor to Chairman Robert Pitofsky (1995-1997). In these
positions he was a senior advisor in all aspects of the FTC's
merger and non-merger enforcement program.
David can be reached at 202.736.2637 or dbalto@rkmc.com
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Kenneth A. Freeling
Kenneth A. Freeling is a partner in the firm’s Washington, D.C.
office. He has more than twenty years experience litigating
antitrust cases encompassing an array of industries including
chemicals, metals and mining, entertainment, financial
institutions, and pharmaceuticals. In the last year, Ken has
been lead trial counsel in two important healthcare related
antitrust matters involving closely watched monopolization
claims on behalf of a number of major health insurers. Ken
obtained both his undergraduate and law degrees at
Georgetown, where he was on the Editorial Board of Law and
Policy in International Business. He has had an active civil trial
practice since completing his federal clerkship for the Hon. R.
Dorsey Watkins (D. Md.).
Ken can be reached at 202.775.0725 or kafreeling@rkmc.com
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Sue Halverson
Sue Halverson is Of Counsel in the firm’s Minneapolis office. Prior to
joining the firm, Sue was Vice President of Litigation at Medtronic, Inc.
from 1994 to 2005; in private practice from 1986 to 1994; Minnesota
Assistant Attorney General, Director of Antitrust & Consumer from 1978
to 1986 and Regional Office Attorney with the Federal Trade
Commission from 1976 to 1978.
Sue is active in the area of Intellectual Property serving as Litigation
Committee Chair for the Intellectual Property Owners (2004) and the
U.S. District Court of Minnesota, Patent Rules Committee (2004-2005)
among others.
Sue can be reached at 612.349.8500 or shalverson@rkmc.com
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Bethany D. Krueger
Bethany D. Krueger is an associate in the firm’s Minneapolis office. Her
practice focuses on complex commercial litigation primarily including
antitrust and securities. She has represented clients in the prosecution
and defense of Sherman Act section 2 claims, as well as in defense of
antitrust class actions. Bethany has also represented institutional
investors, including mutual funds and hedge funds, in litigation
stemming from a high-yield bond offering. She also has limited practice
in patent litigation.
Bethany can be reached at 612.349.8500 or bdkrueger@rkmc.com
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Kevin M. Magnuson
Kevin M. Magnuson is an associate in the firm’s Minneapolis office,
practicing in the areas of US and EC antitrust law. He counsels clients
on a wide variety of antitrust and trade regulation issues, including
matters involving European and American competition agencies. Kevin
also has represented both plaintiffs and defendants in litigation
involving antitrust, covenants not to compete, distribution and dealer
law, and deceptive trade practices. He has litigated a number of federal
pro bono cases, including Jama v. INS, 03-674(2005) in the U.S.
Supreme Court.
Kevin is a former officer in the U. S. Army and has a masters degree in
philosophy from Katholieke Universiteit Leuven in Belgium. In addition
to a J.D. from the University of Minnesota, he also studied at Centre for
Advanced Legal Studies, Katholieke Universiteit Leuven and worked at
the European Commission, Directorate General for Competition.
Kevin can be reached at 612.349.8500 or kmmagnuson@rkmc.com
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Ryan W. Marth
Ryan W. Marth is an associate in the firm’s Minneapolis office. He
practices in the areas of Antitrust & Trade Litigation, Business Trial and
Litigation, and Mergers and Acquisitions. Ryan was a former judicial
law clerk to the Honorable Helen M. Meyer of the Minnesota Supreme
Court and studied International Political Economy at the University of
Oslo, as a Fulbright Scholar.
He was also a Law Clerk in the Merger Enforcement Division of the
Federal Trade Commission where he participated in investigations and
litigation of several retail, distribution and consumer product mergers.
Ryan can be reached at 612.349.8500 or rwmarth@rkmc.com
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