J. Mark Gidley chairs the White & Case Global Antitrust/Competition practice. His practice focuses on mergers, acquisitions, and cartel cases, often with a transnational focus.
Mr. Gidley was the Acting Assistant Attorney General for the US Department of Justice (DOJ) Antitrust Division in 1992 – 1993 with responsibility for all civil and criminal 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 telecommunications, energy, computers, intellectual property, and banking and finance. 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. 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. 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 connection 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 civil class-action case to trial; all other defendants had settled, with the settlement amounts totaling approximately US$450M for the direct purchaser class. We 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 deemed White & Case's representation of Toshiba as noteworthy for inclusion in their 2012 Innovative Lawyers Special Report. This high profile trial was covered extensively in the media, with articles noting the relatively insignificant damages awarded (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 may have impacted the 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 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. 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, this 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 hot defense victory for 2008 by the National Law Journal.
- Representation of Par Pharmaceuticals and Paddock Laboratories in a motion to dismiss the FTC's challenge to the AndroGel® patent settlement. On February 23, 2010, the US District Court for the Northern District of Georgia granted Par/Paddock's motion to dismiss the case, in which the FTC had alleged, inter alia, that a final patent settlement agreement among Solvay Pharmaceuticals and Watson Pharmaceuticals, and a separate consent decree settlement among Solvay and Par Pharmaceuticals and Paddock Laboratories violated the US antitrust laws. This case is the first federal court loss for the FTC on a motion to dismiss in a reverse payments case. In re Androgel Antitrust Litigation (No. II), N.D. Ga., 1:09-cv-00955-TWT, 2/22/10. On April 25, 2012, the US Court of Appeals for the Eleventh Circuit affirmed the dismissal of the FTC's complaint. The FTC AndroGel® case is now pending before the US Supreme Court, with oral argument scheduled for March 25, 2013.
- 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 Daylson, the court held that FRE 502 operated so as to permit only a 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 decision not to take an appeal requested by the FTC is believed to be the first time in recent memory 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 trial commenced in the United States in the US District Court for the Eastern District of Pennsylvania, and proceeded to a jury verdict with the jury unanimously acquitting Mr. Norris of all four substantive crimes of obstruction of justice (carrying 20-year maximum sentences each), involving charges alleging 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), after receiving notification that the KFTC ceased deliberations in an investigation of cartel activity in the parcel tanker industry. The KFTC's action cleared the Stolt-Nielsen case from its docket without a finding of any violation. The case is believed to be the first trial with live witness testimony before the nine-member KFTC.
- Representation of overseas manufacturers of rubber thread against charges of private losses 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. We also 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 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 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.
- Representation of Stolt-Nielsen in its 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. Mr. Gidley's recent merger matters have also included US DOJ Antitrust Division and FTC investigations into acquisitions that had previously closed, due to the acquisition being below the Hart-Scott-Rodino merger filing thresholds. Mr. Gidley's merger and joint venture experience includes representation of:
- 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.
- Luvata/Eco Spa, two leading heating and air conditioning parts suppliers.
- 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.
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.
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/BGS, 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
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
Worldwide Merger Notification Requirements, 2011, 3rd Ed. (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
"The Importance of 'Substantial Effect' under Hartford Fire," Great Lakes Antitrust Institute, November 2, 2012 (Columbus, OH)
"Merging Businesses Face Tough Scrutiny from Regulators," 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