Martin M. Toto concentrates in US antitrust law and complex commercial litigation. He has served as trial counsel and successfully defended clients in several recent price-fixing jury trials. He also defends companies and individuals in criminal antitrust investigations and has substantial experience in the antitrust aspects of mergers and acquisitions and the Hart-Scott-Rodino merger review process. He counsels clients on a wide variety of antitrust issues and implements compliance and training programs. His practice focuses on representation of multinational corporations—often based abroad. He has worked on obtaining antitrust clearance for numerous mergers, acquisitions and joint ventures and has defended clients before the US Department of Justice and Federal Trade Commission.
Mr. Toto also has advised companies on virtually all aspects of antitrust law, including those relating to compliance, intellectual property, vertical restraints, monopolization, concerted activity and price fixing, trade association activity, resale price maintenance and price discrimination.
Recent matters handled by Mr. Toto include:
- Successful defense of Toshiba worldwide in criminal and civil cases and government investigations involving allegations of price-fixing of LCD panels. In the US criminal case, Toshiba and all of its employees were fully exonerated. In the most recent jury trial alleging damages of over $2 billion, the jury found no liability against Toshiba after a six-week trial. An earlier civil trial alleging class-wide damages of nearly US$3 billion resulted in a jury verdict finding no recoverable damages against Toshiba. The case was named the 2012 "Litigation of the Year" by Global Competition Review, and was recognized by the Financial Times in its US Innovative Lawyers 2012 special report.
- Complete victory for Experian (one of the three national credit bureaus) in a civil case brought by FICO, challenging VantageScore, a joint venture of the three credit bureaus, which has introduced a new credit risk score into the market dominated by the FICO score—the antitrust and false advertising claims were dismissed on summary judgment and the remaining trademark claims were tried to a jury which issued a favorable verdict for defendants on all claims and counterclaims.
- Successful defense of Stolt-Nielsen, including dismissal of criminal indictment against the company after a four-week evidentiary hearing in an unprecedented case brought against the company after it had obtained amnesty from the Department of Justice and provided critical, incriminating evidence against its co-conspirators.
- Successful representation of Toshiba in acquiring a hard disk drive business from Western Digital in a complex divestiture resulting from two parallel HDD industry mergers. This matter was one of only five shortlisted by Global Competition Review for 2012 "Merger Control Matter of the Year — Asia-Pacific, Middle East & Africa."
- Defense of several companies in criminal price fixing investigations.
- Merger trial and investigation related to the proposed acquisition by UPM-Kymmene of MACtac, which was challenged by the Department of Justice.
- The FTC's investigation of a joint venture in lubricants between Exxon and Shell.
- The acquisition by the Finnish company, Metso Corporation, of one of its principal competitors, Svedala, in which a novel consent decree was negotiated with the FTC.
- The sale of the dairy businesses of Wessanen N.V. to National Dairy Holdings, investigated by the Department of Justice, which helped create the nation's second-largest dairy company.
- The acquisition by the Swiss-Swedish engineering company, ABB, of Elsag Bailey Process Automation N.V., which was reviewed by the FTC and European Commission.
- The FTC's investigation of the proposed merger of Staples and Office Depot and the FTC's court challenge of the transaction.
Bars and Courts
New York State Bar, 1995
New Jersey State Bar, 1995
US District Court for the Southern District of New York
US District Court for the Eastern District of New York
US District Court for the District of New Jersey
JD, New York University School of Law, Journal Editor, Annual Survey of American Law, 1994
BS, (Hons.), Lehigh University, 1991
Professional Associations and Memberships
American Bar Association, Member, Antitrust Section
Awards and Recognition
Contributing author to Getting the Deal Through: Cartel Regulation (2012, 2013 and 2014 editions)
Contributing author to International Antitrust Cooperation Handbook (published by the American Bar Association, 2004)
"Federal Trade Commission Revises Rules on Acquisitions of Foreign Assets and Voting Securities," The Antitrust Counselor, Issue No. 95, November 15, 2002
"US Antitrust Issues in Software, Licensing and Distribution," Computer und Recht International, June 2002 (co-authored with David Bender)