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Saul P. Morgenstern

Saul P. Morgenstern
Partner, Litigation
Co-Chair, Antitrust Practice

saul.morgenstern@kayescholer.com

New York
T: +1 212 836 7210

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Saul Morgenstern, Co-Chair of the firm’s Antitrust practice, litigates complex disputes, class actions and multi-jurisdictional cases before US federal and state courts, international arbitral tribunals, the Federal Trade Commission and the US International Trade Commission, and represents clients in US Government, State and foreign investigations. He also advises companies with respect to the antitrust implications of mergers, acquisitions, joint ventures, trade association activities, distribution and pricing programs and other aspects of competitor and customer relations. Saul has represented clients across a broad spectrum of industries, including the chemical, computer hardware and software, energy, entertainment, insurance, financial, leisure, luxury consumer goods, pharmaceutical, publishing, real estate, telecommunications and toy industries.

Saul has repeatedly been recognized in Chambers USA: America’s Leading Lawyers for Business, which most recently quoted clients who describe him as “a ‘wonderful antitrust advocate’ and a ‘great strategist and technician’” (2014). Previously Chambers recognized him for his “‘excellent legal expertise and pragmatic counseling style’” (2013), as “business-focused in his advice, which is really appreciated and he helps guide us through all the gray areas” (2012), as a “much admired . . . experienced attorney with a strong, substantive practice” (2011), as offering expertise “with clients in a wide range of industries, including pharmaceutical, publishing, semi-conductor and retail” (2009) and for 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).

Recently, Saul was named in the Competition and Antitrust (2014) Expert Guide by Legal Media Group. He was recognized as a “Life Science Star” in Euromoney’s LMG Life Sciences Guide for 2013 and 2012, is recognized by US News & World Report Best Lawyers and PLC Which Lawyer, and was noted as a leading antitrust practitioner by Global Competition Review in 2013, 2012 and 2009. He is ranked in Best Lawyers in America (2005-2014) for the area of antitrust law.

Representative Matters

Antitrust

The Bookhouse of Stuyvesant Plaza, et al. v. Amazon.com et al. Successfully defended Penguin Random House LLC in class action complaint brought in the US District Court for the Southern District of New York by retail booksellers, alleging that Amazon.com and major publishers of electronic books conspired to prevent retail booksellers from selling electronic books by agreeing to use digital rights management software proprietary to Amazon, which prevents Kindle owners from purchasing electronic books from sources other than Amazon. On a motion to dismiss, obtained dismissal with prejudice of all claims against defendant publishers.

In Re Skelaxin (Metaxalone) Antitrust Litigation, MDL No. 2343, and related cases. Defending brand name pharmaceutical manufacturer in several federal and state class actions alleging that the manufacturer conspired with a potential generic entrant to delay or block generic entry in violation of Section 1 of the Sherman Act and certain state antitrust, unfair trade practices and related laws. Recently defeated motions for class certification by plaintiffs seeking to represent classes of Indirect Purchasers for Resale (e.g., pharmacies) and End Payor Indirect Purchasers (e.g., health insurers, pharmacy benefit managers, consumers).

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

In re Electronic Books Antitrust Litigation. Representation of Random House, Inc. in connection with US Department of Justice investigation into the adoption of “agency” as a means of distributing electronic books (which culminated in actions filed in the US District Court for the Southern District of New York by the DOJ against Apple, Inc. and five publishers other than Random House); and defense of Random House in originally-filed consumer class actions (Random House dropped from the cases upon filing of a consolidated class action complaint).

Novartis Acquisition of Fougera Holdings, Inc. Advised Novartis AG with respect to the competition law issues associated with its July 2012 $1.5 billion acquisition of a competing dermatologics company, Fougera Holdings, Inc., and represented the company before the Federal Trade Commission to obtain clearance for the acquisition.

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. Summary judgment was affirmed by the California Court of Appeal and, on November 28, 2012, the California Supreme Court denied plaintiffs’ Petition for Leave to Appeal. On June 3, 2013, the United States Supreme Court denied plaintiffs’ Petition for a Writ of Certiorari.

Novartis Acquisition of Corthera, Inc. Advised Novartis International AG in connection with competition and regulatory approval aspects of its February 2010 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. (US 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 (US 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 (US 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 (US 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 (US 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.

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; US 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. (US 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.

Morgenstern, Saul P

Practice Areas

Education

Hofstra University School of Law, JD, 1981; with Distinction

Boston University, BS, 1974

Bar Admission(s)

New York

United States Supreme Court

United States Courts of Appeals for the Second, Third, Sixth, Seventh, Eleventh, DC and Federal Circuits

United States District Courts for the Southern, Eastern, Northern and Western Districts of New York, the Northern District of California and the Northern District of Illinois

Membership(s)

American Bar Association
Section of Antitrust
Editorial Board, Antitrust Law Developments 2009 Update
Price Discrimination Committee, Vice Chair (2006-2009)
Trade Associations Committee, Vice Chair (2002-2005)
Section of Intellectual Property
Section of Litigation New York State Bar Association
Antitrust Law Section (Chair, 2007; Executive Committee, 2001-present)
Special Committee on Sarbanes-Oxley Issues (2005-2006) Association of the Bar of the City of New York
Committee on Lawyers' Quality of Life (1997-2000)
Committee on Federal Legislation (1991-1993)
Committee on Professional Responsibility (1988-1991) Federal Bar Council (Second Circuit)
Public Service Committee (2002-present) International Trademark Association
The Trademark Reporter Editorial Board (1994-2000)
Publications Committee (1992-1994)

Board Memberships

Martin Luther King, Jr. High School Community Advisory Board (Chairman 1998-2003)
National Center on Addiction and Substance Abuse at Columbia University Institutional Review Board (1999-2002)

 
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