Saul Morgenstern, Chair of the firm’s Antitrust practice, has represented clients across a broad spectrum of industries in complex disputes, class actions and multi-jurisdictional litigation before US federal and state courts, international arbitral tribunals, and in US Government, State and foreign investigations. He also advises US and global 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 repeatedly been recognized in Chambers USA: America’s Leading Lawyers for Business, which most recently quoted clients who describe him as “extremely knowledgeable and experienced,” “superb” and as having the “ability to analyze problems and then explain them in as much or as little detail and complexity as is needed to address his audience” (2015). He recently received Euromoney’s LMG Life Sciences 2015 Antitrust Litigator of the Year Award, was named a National Law Journal M&A and Antitrust Trailblazer in 2015, and has been recognized multiple times as a leading antitrust practitioner by Global Competition Review and a “Life Science Star” in Euromoney’s LMG Life Sciences Guide.
Saul speaks and writes regularly on antitrust and compliance issues facing US and multi-national businesses, and most recently Co-Chaired the Practising Law Institute’s two day program “Antitrust Law Institute 2015: Developments and Hot Topics”, held in New York City on May 6 and 7, 2015.
- Abbey House Media, Inc. d/b/a BooksOnBoard v. Apple, Inc.; Diesel Ebooks, LLC v. Apple, Inc.; DNAML PTY, Limited v. Apple, Inc. (US District Court, SDNY). Defending Penguin Group in actions brought by defunct electronic book resellers claiming to have been forced out of business as a result of an alleged conspiracy among Apple, Inc. and five major publishers to shift the sale of electronic books to an “agency model” distribution methodology. All three cases were dismissed on the defendants’ motions for summary judgment, and two of the plaintiffs – Abbey House Media and Diesel Books LLC, are appealing from those judgments.
- United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund, et al. v. Novartis Pharmaceuticals Corporation, et al. (US District Court, D. Mass.). Defending brand name pharmaceutical manufacturer against third party payor health plans claims that it brought so-called “sham” litigation to enforce patents in an effort to impede generic competition.
- The Bookhouse of Stuyvesant Plaza, et al. v. Amazon.com et al. (US District Court, SDNY). 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 (US District Court, ED Tenn.), and related cases. 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 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. Defending remaining “opt-out” plaintiffs cases.
- In Re Rail Freight Fuel Surcharge Antitrust Litigation (US District Court., DDC). 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, EDNY). 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, SDNY). 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, DNJ). 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, SDNY). 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
- 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 conducted in Brussels by the International Chamber of Commerce, International Court of Arbitration against a major European telecommunications and internet services provider and certain of its affiliates in connection with their breach of an agreement to buy certain of the minority’s interests.
- 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, in an international arbitration proceeding conducted by the International Chamber of Commerce, International Court of Arbitration. 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.
In The Market
- Morgenstern & Antitrust Practice Profiled in GCR's “New York’s Competition Bar” April 21, 2016 • Media Mentions
- Chambers Global 2016 Recognizes Kaye Scholer Lawyers March 2016 • Recognitions
- Benchmark Litigation 2016 Honors Kaye Scholer with Antitrust and Product Liability Awards February 16, 2016 • Recognitions