J. Mark Gidley chairs the White & Case Global Antitrust/Competition practice, which has been named Competition Group of the Year, for the past three years by Law360. His practice focuses on mergers, acquisitions, and cartel cases, frequently with a transnational focus. In December 2014, Mr. Gidley was named one of the inaugural Litigation Trailblazers by The National Law Journal.
Mr. Gidley served as the Acting Assistant Attorney General for the US Department of Justice (DOJ) Antitrust Division in 1992 – 1993 with responsibility for all civil, criminal and merger matters of the Division. Prior to that, he served as Deputy Assistant Attorney General for Regulated Industries in the Antitrust Division from 1991 – 1992, responsible for civil, criminal, and merger matters in the telecommunications, energy, computers, intellectual property, and banking and finance industries. From 1990 to 1991, Mr. Gidley served as Associate Deputy Attorney General under then Deputy Attorney William P. Barr, during the first Bush Administration. During his tenure at the Antitrust Division, he worked on a number of merger and acquisition investigations, including Bank of America's acquisition of Security Pacific National Bank. He brought the successful lawsuit under Section 1 of the Sherman Act against the major US domestic air carriers for alleged price fixing and cartel behavior (the Airline Tariff Publishing Co.). Mr. Gidley also supervised the government grand jury investigation of the Treasury bond auction market, which resulted in a $28 million asset forfeiture action against Salomon Brothers — at that time the largest antitrust penalty ever in the Division's history for cartel activity.
Mr. Gidley represents parties before the US competition agencies — the FTC and the Antitrust Division — as well as parties in criminal grand jury and civil investigations of pricing conduct, and other potential antitrust violations. His work often features investigations of transnational firms in grand jury investigations, parallel class action suits, and civil investigations of pricing and other competitive practices. Mr. Gidley represents antitrust defendants in multi-forum cases that involve parallel, simultaneous government investigations and multiple civil actions. His cases have often involved investigations by competition agencies outside the United States such as the European Commission, national European authorities and competition agencies in Canada, Korea, Australia, New Zealand and Japan. In criminal cartel investigations, Mr. Gidley has represented corporate clients and individuals in a variety of industries, including auto parts, air cargo, ocean shipping, graphite electrodes, DRM, and LCD. He has significant experience in trying criminal and civil antitrust price-fixing cases and merger cases.
Mr. Gidley's significant litigation matters include:
- Trial counsel to Toshiba in its complete victory in a Summer 2013 US civil jury trial concerning price-fixing allegations in the liquid crystal display (LCD) market (N.D. Cal.). At trial, Toshiba faced price-fixing claims totaling US$2.3 billion brought by a large retailer plaintiff that previously had opted out of class proceedings against Toshiba and other LCD manufacturers. Following a six-week jury trial, the jury in San Francisco unanimously returned a complete defense verdict for Toshiba in September 2013, finding that Toshiba did not participate in a LCD price-fixing conspiracy and therefore did not cause any damages to the plaintiff. The Financial Times recognized this case in its 2014 Innovative Lawyers report, noting it challenged “the view that juries cannot handle complex damages calculations.”
- Trial counsel to Toshiba in its Summer 2012 with direct purchaser class-action jury trial, in which the class plaintiffs alleged cartel activity in the thin-film transistor liquid crystal display (LCD) market. Toshiba stood alone in taking the DPP civil class-action case to trial; all other defendants had settled. Settlements of other defendants totaled approximately US$450 million. Successfully defended Toshiba at trial, obtaining a jury verdict in July 2012 that awarded the class plaintiffs no recoverable damages against nearly US$2.7 billion in damages the class plaintiffs had claimed. The Financial Times selected the Toshiba trial for inclusion in its 2012 Innovative Lawyers report. This high profile trial was covered extensively in the media, with articles noting the absence of recoverable damages (e.g., "Toshiba Fined $87M for LCD Price Fixing; Won’t Pay a Penny." (PCWorld))
- Representation of international shipping company Stolt-Nielsen SA, in a crucial US Supreme Court victory denying class arbitration of antitrust claims. On April 27, 2010, the US Supreme Court ruled that the Federal Arbitration Act (FAA) does not permit arbitrators to impose class-action arbitration on parties whose arbitration agreement is silent on the question of class arbitration. The Stolt-Nielsen ruling is believed to have impacted an estimated 100 to 200 pending class arbitration proceedings then underway in the United States, as well as future arbitrations where parties are considering seeking class treatment. Stolt-Nielsen S.A. v. AnimalFeeds International Corp., No. 08-1198 (April 27, 2010). The Stolt-Nielsen Supreme Court case was recognized by The Financial Times as one of the most innovative US litigation matters of 2010.
- Trial counsel in a landmark victory for our client, Stolt-Nielsen SA, in its efforts to enforce its criminal Amnesty Agreement with the DOJ Antitrust Division. On November 30, 2007, the federal district court in Philadelphia ruled, after a three-week criminal trial, that Stolt-Nielsen's amnesty agreement should be upheld and dismissed the indictment. The court ruled the Division’s actions to indict the company amounted to a breach of constitutional due process guarantees. This case, closely watched by the white collar and antitrust bars, has been the subject of extensive commentary. With amnesty programs proliferating around the globe, the Stolt case is the first anywhere in the world where a court has enforced an antitrust amnesty promise against an antitrust agency. United States v. Stolt-Nielsen S.A., 524 F. Supp. 2d 609 (E.D. Pa. 2007). This case was named a leading defense victory for 2008 by the National Law Journal.
- Representation of Par Pharmaceuticals and Paddock Laboratories in connection with the FTC's challenge to the AndroGel® patent settlement. Prevailed at the federal trial and circuit appellate courts, and the case was one of two reverse payment patent settlement cases that the US Supreme Court heard during its 2012 Term. The Supreme Court rejected the FTC's view that reverse payment settlements are presumptively illegal.
- Representation of Shionogi Inc. in the first ruling under the Federal Rule of Evidence 502(a) on the use of attorney opinions in sham litigation. Shionogi, the patent holder, sought to reveal pre-complaint opinions of patent counsel in defending against allegations of "sham" patent litigation. In December 2011, in a decision authored by US District Judge Michael Baylson, the court held that FRE 502 operated so that there was no broad subject matter partial waiver of privilege. Shortly after receiving the Court’s oral decision, Mylan dismissed its antitrust counterclaims.
- Representation of Upsher-Smith Laboratories in a landmark victory in a case involving pharmaceutical-branded generic patent settlements against a challenge by the FTC concerning K-Dur®. Trial counsel in a 40-day trial before an FTC Administrative Law Judge, resulting in a complete trial victory in 2002. Subsequently, the Eleventh Circuit ruled in favor of the defendants. Schering-Plough Corp. v. FTC, 402 F.3d 1056 (11th Cir. 2005). In 2006, the US Supreme Court declined the FTC's appeal. The Supreme Court's denial of the FTC's petition for certiorari was the first such loss in many years for the FTC. This case was named as one of the hot litigation victories in 2006 by the National Law Journal. The parallel private damages K-Dur® cases are pending before the US Supreme Court.
- Trial counsel for Ian Norris, former CEO of Morgan Crucible, and the first executive ever extradited to the United States by the DOJ Antitrust Division. In July 2010, the criminal trial was held in the US District Court for the Eastern District of Pennsylvania, and proceeded to a jury verdict with the jury unanimously acquitting Mr. Norris, a UK national, of all four substantive crimes of obstruction of justice (carrying 20-year maximum sentences each), involving charges of alleged grand jury witness tampering and document destruction.
- Trial counsel for SunGard Data Systems in its successful trial defense of the acquisition and merger of the computer disaster recovery assets of Comdisco. This high-tech litigation broke new ground in the intersection of US bankruptcy and merger law under Section 7 of the Clayton Act and was tried in record time. From the filing of the complaint through the trial before the US District Court for the District of Columbia, until the decision on stay by the US Court of Appeals for the DC Circuit, only 19 business days elapsed. This is believed to have been the first defeat of a government merger challenge in federal court in the District of Columbia in almost a decade. United States v. SunGard Data Systems, Inc., 172 F. Supp. 2d 172 (D.D.C. 2001).
- Representation of Stolt-Nielsen in a trial victory before the Korea Fair Trade Commission (KFTC) for overseas price fixing. The KFTC's action cleared Stolt-Nielsen without a finding of any violation. The case is believed to be the first price-fixing trial with live witness testimony before the full nine-member KFTC.
- Representation of overseas rubber thread manufacturers against damages stemming from an alleged global price-fixing cartel. In Dee-K v. Heveafil, we successfully secured a landmark jury verdict absolving our clients, Malaysian producers of rubber thread, of any violation of the Sherman Act Section 1 based on allegations of overseas price fixing, and successfully opposed class certification in this private damages suit in this action. The US Court of Appeals for the Fourth Circuit affirmed the trial court verdict in a landmark ruling that clarified the US Supreme Court's Hartford Fire test of "substantial effects" in the extraterritorial reach of the Sherman Act. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281 (4th Cir. 2002).
- Representation of Stolt-Nielsen SA and Stolt-Nielsen Transportation Group Ltd. in the first US federal court appellate decision in the Second Circuit compelling arbitration of claims based on alleged horizontal price fixing under the Sherman Act. JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163 (2d Cir. 2004).
- Representation of the defendants in United States v. Agrimark, 156 F.R.D. 87 (D. Vt. 1994), a contested antitrust merger consent decree matter against the DOJ Antitrust Division. The district court ruled in favor of the defendants. The decision overturned 60 years of prior law on antitrust consent decrees, which involved a consent decree and vertical integration issues arising from a merger.
- Freedom of Information Act (FOIA) challenge to the Antitrust Division before the DC Circuit; the decision resulted in the public release of 100 DOJ Antitrust Division amnesty agreements and is the first reported FOIA case involving the Division.
Mr. Gidley has an active merger and joint venture practice, representing merging parties before the DOJ and the FTC, including numerous companies in connection with mergers, acquisitions and joint ventures in industries ranging from health-care, telecommunications, computer software, defense, retailing and publishing to engineering, energy, chemicals, minerals and industrial and consumer goods. In addition to the litigated merger cases above, Mr. Gidley's merger and joint venture experience includes representation of:
- Warner Chilcott plc in its 2013 sale to Actavis, Inc. The deal, valued at approximately US$8.5 billion, creates the third largest US specialty pharmaceutical company.
- Toyota Industries Corp. in its 2013 acquisition of US-based Cascade Corp. in a deal valued at US$760 million. The acquisition creates a global materials handling business for the lift-truck sector, and was completed following an US antitrust regulatory investigation that was closed without impact on the transaction. The Toyota Industries acquisition was recognized by the Financial Times Innovative Lawyers report as one of the most innovative US transactions in 2013.
- Comex S.A. de C.V. in the acquisition of its US and Canadian assets by Sherwin-Williams in September 2013.
- Grupo Bimbo in its acquisition of Sara Lee’s US bread operations.
- Pilot Travel Centers LLC in its acquisition of Flying J Inc.'s travel plaza business before the US FTC. The Pilot acquisition was voted one of the most innovative US matters of 2010 by the Financial Times.
- Iron Mountain Incorporated, the leading provider of records and information management services in the US, with respect to its acquisition of ArchivesOne, Inc.
- Houghton Mifflin Company, a US-based leading educational and trade press publisher in connection with its acquisition by Riverdeep Group plc, an Irish educational publisher in a US$5 billion combination.
- WebCT, Inc. before the DOJ Antitrust Division in its merger with rival Blackboard, Inc.
- Raytheon's US$9.5 billion acquisition of Hughes Electronics.
Mr. Gidley has experience in transnational transactions that span multiple and often conflicting antitrust regimes. He is co-editor of the Worldwide Merger Notification Requirements
, a comprehensive compendium of global merger filing regimes in more than 217 jurisdictions, based on the firm’s global merger clearance experience.
Mr. Gidley was selected and served on the ABA Antitrust Section’s Blue Ribbon Panel for Civil Jury Instructions in 2014.
Mr. Gidley is a leading antitrust lawyer and has recently been featured in Legal 500 US
, Chambers USA
, Best Lawyers in America
, Asialaw Leading Lawyers
, Super Lawyers
, Who's Who Legal
. Mr. Gidley was also chosen in a survey of in-house counsel and antitrust practitioners as the leading US competition lawyer under 45, and one of the top ten in the world by Global Competition Review
's "45 Under 45" survey of leading antitrust lawyers.
Bars and Courts
New York State Bar
District of Columbia Bar
US District Courts for the Southern and Eastern Districts of New York and the District of Columbia
US Courts of Appeals for the D.C. Circuit and the First, Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits
US Supreme Court
JD, Columbia Law School, 1986
Harlan Fiske Stone Scholar, Notes & Comments Editor, Columbia Law Review
Lawrence S. Greenbaum Prize for Best Oral Argument in Moot Court, Columbia Law School, 1986
BS Economics, BGS Communication Studies, University of Kansas, with highest distinction, 1983
Professional Associations and Memberships
American Bar Association, Antitrust Section
Bar Association of the City of New York
Awards and Recognition
The National Law Journal’s 2014 Litigation Trailblazers & Pioneers
Law360's 2013 MVP of Top Competition Lawyers
Chambers USA, Antitrust
Who's Who Legal
The Best Lawyers in America
Asialaw Leading Lawyers
Global Competition Review's "45 Under 45"
Edmund G. Randolph Award, presented by the Attorney General for outstanding service to the US Department of Justice, 1993
U.S. National Debate Champion, 1983
Worldwide Merger Notification Requirements, 2011, 3rd Ed., Wolters Kluwer Publishers (with George L. Paul)
"Enforcing the Promise of Amnesty in the Courts," The International Comparative Legal Guide to: Cartels & Leniency 2011, Global Legal Group (2011) (with Lucius B. Lau)
"Japan: Cartel Regulation; The Asia Pacific Antitrust Review 2004," Global Competition Review, April 2004 (with Jiro Tamura and George L. Paul)
"The Rise in Enforcement of US Criminal Antitrust Law," Finnish Competition Law Yearbook 2003, 239-45 (2004)
"Worldwide Merger-Control Laws Turn a Corner...But Watch Out – You Might Still Be Run Over," The Mergers & Acquisitions Advisor, April 2003 (with George L. Paul)
Recent Speaking Engagements and Interviews
"Defending International Cartels Without Leniency," ABA Antitrust Section Spring Meeting, April 12, 2013 (Washington, DC)
"The Importance of 'Substantial Effect' under Hartford Fire," Great Lakes Antitrust Institute, November 2, 2012 (Columbus, OH)
"Merging Businesses Face Tough Scrutiny from Regulators," PBS' Nightly Business Report, September 4, 2012
"Antitrust Guilty Pleas, Without Guilt," Langdon Hall Northwind Institute, February 23, 2011 (Cambridge, Ontario, Canada)
"Cutting-Edge US Antitrust Developments Impacting Technology Transactions," International Bar Association "The Global Commercialisation of Knowledge-Based Industries—Legal Tools for Funding and Structuring Export-Driven Technology Companies" Conference, February 10, 2011 (Miami)
"Practical Issues for Class Certification, Assigning Liability and Assessing Damages," Global Competition Review's Antitrust Law Leaders' Forum 2011, February 4, 2011
BNA Pharmaceutical Law Reporter