Antitrust and Competition

HRO’s Antitrust and Competition Group is comprised of 25 talented attorneys with broad experience representing clients in civil antitrust suits, federal and state antitrust and unfair competition investigations and proceedings, and responses to H-S-R requests, as well providing counseling to clients with ongoing antitrust and competition compliance needs and to clients contemplating or implementing mergers, acquisitions, joint ventures, or industry-wide technical standards. With ten offices in the U.S. and Europe, the Antitrust and Competition Group is able to serve clients on a global basis.
HRO’s antitrust and competition litigation practice is premised on the view that the ability and willingness to take cases to trial maximizes not only the chances of a good trial outcome but also the chances of obtaining a favorable and cost-effective pre-trial settlement where appropriate. This emphasis on trying cases rather than simply “litigating” them fosters (and is supported by) a practice of using cross-office teams of complementary practitioners to create the strongest possible representation for each particular client and dispute. In the modern world, talent, expertise, and devotion to client service are more important than the location of one’s desk. Implementing this philosophy, members of HRO’s Antitrust and Competition group have successfully concluded litigation or agency proceedings for numerous companies, including for example Visa U.S.A., StorageTek, Sun Microsystems, Wells Fargo, Business Wire, Panasonic Wireless/NTT Docomo, and USAA Insurance Company.
Representative Engagements Include:
  • Visa U.S.A. Inc. v. First Data Corp. (N.D. Cal.). Mr. Stolebarger was co-lead counsel working with a team of lawyers from HRO and Larry Popofsky and Steve Bomse of Heller Ehrman prosecuting Visa’s trademark and breach of contract claims and defending First Data’s Sherman Act Section One and Section Two counterclaims. The matter settled on favorable terms.
  • In re Publication Paper Antitrust Litigation (MDL). Mr. Markham represented Canada’s largest producer of directory and other papers in this matter involving dozens of federal and state class actions, and investigations by a federal grand jury and European antitrust authorities. He obtained a complete dismissal of all charges against his client.
  • Golden Bridge Technology v. Nokia (E.D. Tex., reported at 416 F. Supp. 2d 525). Mr. Markham was lead counsel for NTT Docomo and Panasonic Wireless in this challenge to the standard-setting process for third generation wireless technology. He obtained an early dismissal of all claims.
  • Reyn’s Pasta v. Visa U.S.A. Inc., et al., (including Wells Fargo Bank, N.A.)(N.D. Cal. and 9th Circuit, reported at 442 F.3d 741). Mr. Stolebarger was co-lead counsel for Wells Fargo Bank defending against Section One and Section Two claims related to the setting of certain payment card-related fees. He obtained a dismissal with prejudice, which was affirmed by the Ninth Circuit.
  • KN TransColorado (Kinder Morgan) v. Questar Corp., (Garfield Cty. Colorado). Mr. Stolebarger and Mr. Haley were co-lead counsel for Questar and related entities in a complex matter involving (among other issues) allegations of improper agreements not to compete among joint venturers. After a court trial, the judge dismissed all claims against Questar and awarded Questar more than $100 million on its counterclaim (the second largest judgment in Colorado history).
  • Bourns, Inc. v. Raychem Corp. (C.D. Cal. and 9th Circuit, reported at 331 F.3d 704). Mr. Mooney had a leading role defending Raychem (now Tyco Electronics) against allegations that Raychem had illegally monopolized the market for chemical resettable fuses by defrauding the patent office. Raychem prevailed on all claims against it, and was awarded nearly $20 million on its counterclaims.
  • Storage Technology Corporation v. Custom Hardware Engineering, United States District Court of the District of Massachusetts. Ms. Musgrave represented StorageTek in the defense of antitrust tying and monopolization claims . Following a four week trial, the case settled after the close of StorageTek’s evidence.
  • Tapered Insulation Systems v. Schuller International (John Mansville). Ms. Musgrave obtained a summary judgment on antitrust, fraud, negligent misrepresentation, breach of contract and Deceptive Trade Practices Act claims I the tapered roofing industry; summary judgment was affirmed by the Texas Court of Appeals in December 1998.
  • Smalley & Co. v. Emerson & Cuming, Inc. 808 F. Supp. 1503, 13 F. 3d 366 (10th Cir. 1993). Ms. Musgrave obtained a summary judgment on an antitrust monopolization claim in the manufacture of electroconductive adhesives for the NASA space shuttle program.
  • Anesthesia Advantage v. The Metz Group. (912 F.2d 397, 10th Cir. 1990). Ms. Musgrave obtained a ruling from the 10th Circuit of Appeals clarifying the interstate commerce requirements for an antitrust claim.
  • Cant Strip of America v. Schuller International (Johns Mansville) (Dist. of Arizona). Ms. Musgrave obtained summary judgment on an antitrust monopolization claim in the tapered roofing industry similar to that alleged in the Tapered Insulation litigation.
  • Love v. Basque Cartel, 873 F. Supp. 563 (D. Wyo. 1995), aff’d 95 F.3d 1161 (1996). Mr. Litt represented successful bidders in a Wyoming cattle ranch auction who were accused of big rigging in violation of Section One of the Sherman Act. HRO obtained summary judgment on behalf of its clients from the U.S. District Court for the District of Wyoming, which decision was upheld on appeal to the Tenth Circuit.
  • Artie’s Toys, Inc. v. Stevinson Toyota West, Inc. (D. Colo.). Mr. Litt represented the plaintiff automotive parts and repair company in its suit against the metro-Denver Toyota dealers on claims of group boycott and collective refusal to deal. Based on the strength of the pre-filing factual investigation, the case was settled favorably prior to any defendant answering the complaint.
  • Jerald M. Barnett v. Ralston Resorts, Inc. (D. Colo.). Mr. Litt represented the former owner of Keystone Resort in an antitrust case brought against it by a ski rental company claiming that restrictive covenants in the company’s lease regarding business activities violated Section Two of the Sherman Act. Based on the strength of Mr. Litt’s motions to dismiss both the Complaint and the Amended Complaint, the plaintiff dismissed the action and recovered no money.
HRO has also developed a specialty in guiding clients through Hart-Scott- Rodino (“H-S-R”) filings and responding to associated information and document requests. The firm has represented clients in responding to H-S-R Second Requests in two of the largest mergers and asset sales involving Colorado companies:
  • AT&T Broadband – Comcast Merger. In 2002, Mr. Litt represented AT&T Broadband in its $72B merger with Comcast Communications. HRO was retained to handle all document request and interrogatory response work for AT&T Broadband in connection with the H-S-R filings as to the merger. HRO’s work included responding to Item 4(c) in the H-S-R filing, a Second Request issued by the Department of Justice, a tag-along document request issued by the FCC, multiple document requests issued by State Attorneys General, and a simultaneous CID issued the DOJ with respect to a proposed merger in a related industry.
  • Adelphia Communications – Comcast – Time Warner Asset Sale. In 2005, Mr. Litt represented Adelphia Communications in its $17.6B asset sale to Comcast Communications and Time Warner. HRO was retained to handle all document request and interrogatory response work for Adelphia in connection with the H-S-R filings as to the merger. HRO’s work included responding to Item 4(c) in the H-S-R filing, a Second Request issued by the Federal Trade Commission, a tag-along document request issued by the FCC, and multiple document requests issued by State Attorneys General. 
HRO’s counseling practice is premised on the view that a corporate understanding of antitrust and competition principles combined with a sound antitrust compliance plan is essential to reducing or eliminating the risk of potentially crippling litigation. The practice includes presentations tailored to the audience (e.g., business managers or in-house counsel), to the particular industry, and to the particular business needs of each individual client. HRO’s counseling practice covers all facets of federal and state antitrust and competition law, including issues relating to pricing, marketing and advertising, intellectual property, licensing, joint ventures and strategic alliances, and mergers and acquisitions. Members of HRO’s Antitrust and Competition Group have counseled both domestic companies (including for example Visa U.S.A.; Affymetrix; BusinessWire; and) and foreign companies seeking advice on U.S. law (including a major Japanese electronics company and a major Canadian publishing company).
HRO’s antitrust and competition practice group is co-chaired by Jesse Markham in San Francisco and Bobbee Musgrave in Denver. Mr. Markham has more than 25 years experience counseling clients and litigating antitrust and competition disputes. He served as the Deputy Attorney General (Antitrust) for both California and Massachusetts and has chaired the antitrust practice groups at Orrick Herrington & Sutcliffe and Morrison & Foerster. He is a former Chair of the California State Bar Antitrust Law Section and has been identified as a top antitrust lawyer by such publications as Chambers USA, 2006 PLC Which Lawyer? Yearbook, Best Lawyers in America, and US Lawyer. Mr. Markham has taught antitrust law courses as adjunct professor at the University of San Francisco Law School since 1992. Representative recent clients have included include All Nippon Airways, Duraflame, USAA Insurance Company, Affymetrix, JPMorgan Chase, and Panasonic Wireless, and NTT Docomo. 
Ms. Musgrave has more than 25 years of experience trying antitrust cases in federal and state courts including Colorado, Massachusetts, and Arizona. She has also successfully argued two antitrust cases before the 10th Circuit Court of Appeals. She is a former Chair of the Antitrust subsection of the Colorado Bar Association Business Law Section, and is a frequent speaker on antitrust issues. She has also been recognized as a Super Lawyer in Colorado in the area of antitrust in 2006 and 2007. Representative recent clients include CH2M Hill, Ricoh, Sun Microsystems and Qwest Communications.