Kaye Scholer

Described most recently by Chambers USA: America’s Leading Lawyers for Business as a “much admired . . . experienced attorney with a strong, substantive practice” (2011), Mr. Morgenstern has in the past been recognized for his “renowned ... diverse practice” (2009) “with clients in a wide range of industries” (2010). Clients and peers have also noted his ability “to ‘bring about a compromise between parties in tricky stand-off situations,’” observing that “[t]his skill is a result of the ‘excellent strategies he plans after carefully and thoroughly considering the issues’” (2008). He has also been recognized as a leading antitrust practitioner by the Global Competition Review and PLC Which Lawyer.

Representative Matters

Antitrust

In re Electronic Books Antitrust Litigation, MDL No. 2293 (U.S. District Court, S.D.N.Y.). Defending publisher in purported antitrust class actions brought by purchasers who claim to have overpaid for electronic books as a result of an alleged conspiracy among Apple and major book publishers to fix prices in violation of Section 1 of the Sherman Act.

Clayworth, et al. v. Pfizer Inc, et al. (Superior Court of California, Alameda County). Obtained summary judgment dismissing on the merits an action by California retail pharmacies alleging a conspiracy among brand name prescription drug manufacturers to fix prices in violation of the Cartwright Act, California’s state antitrust law.

In Re Rail Freight Fuel Surcharge Antitrust Litigation (U.S. District Court., D.D.C.). Co-counsel defending major railroad in several nationwide class action antitrust law suits against major U.S. railroads alleging collusion to fix fuel surcharges on freight shipments in violation of the Sherman Act.

Novartis Acquisition of Corthera, Inc. Advised Novartis International AG in connection with competition and regulatory approval aspects of its acquisition of Corthera, Inc., a privately-held biopharmaceutical company engaged in the research and development of Relaxin, for US$120million, with Corthera’s shareholders being eligible for additional payments of up to US$500million contingent upon successful development and commercial milestones, and assisted the company in obtaining early termination of Federal Trade Commission review of the transaction.

Drug Mart Pharmacy Corp., et al. v. American Home Products Corp., et al. (U.S. District Court, E.D.N.Y.). Obtained summary judgment for client Pfizer Inc and its codefendants dismissing all damages claims by representative plaintiffs in price discrimination actions brought by several thousand independent pharmacies against a group of major brand name prescription drug manufacturers.

In re Pharmaceutical Industry Average Wholesale Price Litigation (U.S. District Court, D. Mass). Obtained voluntary dismissal of horizontal antitrust claims asserted in private third-party payor and Medicare beneficiary class actions against Together Rx LLC and its founding members, as well as all consumer fraud and Medicaid fraud claims against the firm’s client asserted by the same plaintiffs.

In re Stock Options Trading Antitrust Litigation (U.S. District Court, S.D.N.Y.). Defended market maker in multi-district class actions alleging agreements restricting multiple listing of options, in violation of the Sherman Act.

In re Compensation of Managerial, Professional and Technical Employees Antitrust Litigation (U.S. District Court, D.N.J.). Defended Union Oil Company of California and its parent in multi-district class actions in which plaintiffs allege that information-sharing in the oil and petrochemical industries retarded salary growth in violation of the Sherman Act. The plaintiffs’ two motions for class certification were denied in 2003 and 2006.

In re Magazine Antitrust Litigation (U.S. District Court, S.D.N.Y.). Obtained a favorable resolution on behalf of major publishers of consumer magazines in multi-district class actions, in which plaintiffs claimed that the publishers, along with their trade association, fixed the prices at which subscriptions were sold.

Novartis Pharmaceuticals Corp. v. SangStat Medical Corp. (U.S. District Court, D. Del.). Co-counsel for plaintiff in a patent infringement action concerning a formulation of cyclosporine, a drug used to prevent rejection of solid organ transplants. Settled with a license agreement and acknowledgment that the patent is valid and enforceable, as well as dismissal of all antitrust counterclaims.

Abbott Laboratories, et al. v. Durrett, et al. (Supreme Court of Alabama). Defended Novartis Pharmaceuticals Corporation in retail pharmacists’ class action against manufacturers of brand name prescription drugs alleging that the defendants conspired to deny discounts to the plaintiff class in violation of the Alabama antitrust laws. Led a team of Alabama and national defense counsel to obtain a ruling from the Supreme Court of Alabama that the Alabama antitrust laws did not apply to alleged interstate conspiracies, resulting in the dismissal of the complaint against all defendants.

Gifts Ahoy, Inc. v. Celebrity Cruise Lines, Inc. (U.S. District Court, S.D. Fla.). Obtained dismissal of an action brought by providers of gifts for delivery to cruise passengers, alleging monopolization and unlawful refusal to provide access to an essential facility.

Digital Equipment Corp. v. Lago Systems, Inc. (U.S. District Court, D. Mass.). Digital Equipment Corp. v. Micro Technology, Inc. (U.S. District Court, D. Colo.). Represented plaintiff in actions to enforce patents pertaining to a communications interconnect used with certain disk and tape controllers and related mass-storage devices, and in corresponding antitrust actions challenging Digital’s alleged use of its patents to preclude competition. Actions were ultimately resolved by agreements under which the defendants ceased the production and sale of infringing goods.

In re Harper & Row, Publishers, Inc. (Federal Trade Commission). Obtained dismissal of an administrative complaint charging the Respondent with price discrimination in violation of the Robinson-Patman Act.

International Arbitration and Alternative Dispute Resolution

Banestyrelsen, et al. v. France Telecom SA, et al. (International Chamber of Commerce, International Court of Arbitration). Obtained an award of approximately €60 million plus interest, attorneys’ fees and costs on behalf of a group of minority shareholders in a Danish telecommunications company, in an international arbitration proceeding against France Telecom and certain of its affiliates in connection with their breach of an agreement to buy certain of the minority’s interests.

Finansministeriet, et al. v. Wirefree Services Denmark A/S, et al. (International Chamber of Commerce, International Court of Arbitration). Represented Danish Finance Ministry and a consortium of investors in a Danish telecommunications company to enforce certain minority rights pursuant to corporate governance and shareholder agreements under Danish law. Obtained favorable resolution prior to hearing.

Mindscape, Ltd. v. Riverdeep Group, plc (International Centre for Dispute Resolution; U.S. District Court, D. Mass.; N.Y. Supreme Court, N.Y. County). Successfully defended Irish software manufacturer against efforts to obtain injunctive relief in two courts and obtained a favorable resolution through international mediation of dispute regarding international licensing agreement.

Fraud, RICO, Securities and Commercial Litigation

Novartis Pharmaceuticals Corporation v. State of Alabama (Supreme Court of Alabama). Led a team of national and Alabama counsel to obtain the reversal of $33 million jury verdict and judgment in a Medicaid fraud action brought by the State of Alabama against a major multi-national pharmaceutical manufacturer. The Alabama Supreme Court reversed, finding that the case should never have been put to the jury in light of the documentary record presented at trial, and ordered judgment entered on behalf of the defendant-appellant.

State of Alaska v. Alpharma, Inc., et al.; State of Idaho v. Aventis Pharmaceuticals Inc., et al.; State of Illinois v. Abbott Labs, Inc., et al.; Commonwealth of Kentucky v. Alpharma, Inc., et al.; State of Louisiana v. Abbott Labs, Inc., et al.; State of Mississippi v. Abbott Labs, Inc., et al.; State of Oklahoma v. Abbott Labs, Inc., et al.; State of Wisconsin v. Amgen, Inc., et al.; Defending pharmaceutical manufacturer in actions brought by or on behalf of state Medicaid agencies asserting that prescription drug manufacturers reported inaccurate pricing benchmarks, allegedly violating various of their individual state fraud, consumer protection and other laws.

SR International Business Insurance Co. Ltd. v. World Trade Center Properties LLC, et al. (U.S. Court of Appeals for the Second Circuit). Successfully defended property and casualty insurer, which provided property insurance on the World Trade Center complex, against a summary judgment motion and interlocutory appeal to the Second Circuit by the lessees, lenders and owners seeking a ruling that, as a matter of law, the attack and destruction of the complex on September 11, 2001 constituted two occurrences for insurance coverage purposes.

In re N2K, Inc. Securities Litigation (U.S. Court of Appeals for the Second Circuit). Obtained dismissal of a securities class action against N2K and its board of directors based on alleged material misrepresentations or omissions in connection with a secondary offering of N2K’s shares.

Insurance Alliances Group, Inc. v. The Mutual Life Insurance Company of New York (U.S. District Court, S.D.N.Y.). Obtained a jury verdict and judgment dismissing the plaintiff’s claims for more than $20 million in damages for alleged breach of Joint Marketing Agreement, breach of an alleged oral joint venture, fraud and intentional destruction of business, and awarding the defendant damages on its counterclaims.