Eileen M. Cole is a partner in White & Case's global antitrust litigation practice, which is ranked by Chambers in Band 1 for cartel matters and has won Competition Group of the Year from Law360 seven times. Eileen’s practice focuses on complex antitrust matters, including global cartel investigations and pharmaceutical antitrust cases.
Eileen represents pharmaceutical clients in complex civil antitrust class action litigations at the cutting edge of antitrust and intellectual property. Such actions involve the complexities of the FDA approval process, orange book listings, petitioning, FDA Guidance, labeling, and reporting, state substitution laws, pharmaceutical pricing, formularies, and rebates. Eileen has successfully challenged monopolization claims alleging "reverse payment" and "product hopping" schemes at the motion to dismiss, class certification, and summary judgment stages. Her work has involved claims brought by competitors as well as class allegations brought by direct and indirect purchasers.
Eileen also regularly represents corporate and individual clients in criminal and civil investigations before the FTC and the United States Department of Justice Antitrust Division as well as other competition agencies globally. She advises clients in all aspects of grand jury investigations, criminal trials and sentencing, parallel class action suits, and civil investigations of pricing conduct, and other potential antitrust violations. Her work often includes coordination globally of parallel investigations by competition agencies, including the European Commission and competition agencies in Canada, Mexico, Korea, Australia, New Zealand, Brazil and Japan. In addition to defending companies under investigation, including through trial, Eileen has also assisted companies in seeking amnesty and leniency in the U.S. and abroad.
Eileen's approach is to gain command early on of the complex fact scenarios at the heart of each antitrust case and prepare for trial from the outset. Eileen regularly represents her clients in federal court, including in multi-district class actions. She is experienced in trying criminal and civil antitrust cases, involving claims of price-fixing and monopolization, as well as mergers. Eileen’s extensive knowledge and experience in e-discovery assists her clients in navigating ever-increasing discovery demands, new and evolving technologies, and privacy challenges for both domestic and foreign clients, while ensuring that the evidence necessary to win is at their fingertips.
Eileen works with corporate clients and individuals in a variety of industries, including pharmaceuticals, auto parts, finance, air cargo, ocean shipping, glass, graphite electrodes, insurance, and information technology.
In addition to litigation and defense, Eileen advises clients on corporate governance and compliance. She has conducted internal corporate compliance investigations and works with clients to develop and implement corporate compliance plans.
Eileen also works on behalf of the Firm's pro bono clients, including cases involving immigration, asylum and landlord tenant disputes. In 2020, Capital Area Immigrants' Rights named White & Case Adult Detainee Champion of the Year based on her team’s work on behalf of their client.
Eileen is a member of the New York Bar Association and the Bar Association of the District of Columbia. Eileen is an active member of White & Case's Women's Initiative. She is a member of the American Bar Association and active in the Intellectual Property and Antitrust Sections. She serves on the Intellectual Property Committee on the Intersection of Intellectual Property and Antitrust.
- Represented Warner Chilcott against claims of monopolization based on alleged "product hopping" in connection with Doryx® brought by generic firm Mylan as well as direct purchaser and indirect purchaser classes. Ultimately, the US Court of Appeals for the Third Circuit affirmed the dismissal of Mylan’s claims, upholding the district court’s summary judgment ruling. The district court’s decision marked the first-ever victory for a defendant on a full evidentiary record in a so-called pharmaceutical "product hopping" litigation.
- Represented Forrest/Allergan in alleged "product hopping" claims brought by the New York Attorney General in relation to Namenda® – a drug used in the treatment of the symptoms of Alzheimer's.
- Represented Warner Chilcott and Allergan in In re Asacol Antitrust Litigation concerning antitrust challenge to patent settlement agreement and alleged "product hopping."
- Represented Warner Chilcott and Watson in In re Loestrin Antitrust Litigation concerning antitrust challenges to patent settlement agreements, as well as claims of fraud on the PTO and alleged "product hopping."
Global Cartel Investigations & Litigation:
- Representation of a Maruyasu, a Japanese automotive parts manufacturer, before the US Department of Justice Antitrust Division and in US civil class-actions alleging price-fixing and market allocation for automotive parts.
- Representation of individual subject in US Department of Justice Antitrust Division’s investigation of alleged price-fixing and market allocation for automotive parts. The DOJ did not charge client.
- Represented Nexans SA in investigation of alleged cartel activity in Power Cables globally, including by the DOJ Antitrust Division and European Commission. The DOJ Antitrust Division closed its grand jury investigation without charging Nexans SA.
- Represented Ian Norris, former CEO of Morgan Crucible, and the first executive ever extradited to the United States by the DOJ Antitrust Division in a criminal obstruction of justice trial.
- Represented Ian Norris, former CEO of UK-headquartered company Morgan Crucible, extradited to the United States, in criminal jury trial in the Eastern District of Pennsylvania.
- Representation of an airline company owned by a foreign government before the US Department of Justice and foreign competition authorities and in US civil class-action proceedings related to fuel surcharges.
- Representation of Stolt-Nielsen S.A. before the US Department of Justice and foreign competition authorities and in US civil class-actions, individual actions, and arbitrations related to alleged price-fixing and market allocation for parcel tanker shipping services. Successfully dismissed the Indictment following a bench trial regarding the enforceability of the company’s amnesty agreement with the US Department of Justice’s Antitrust Division.
- Represented a major Asian manufacturing company in connection with global criminal and administrative proceedings related to alleged cartel activity, including global coordination of amnesty and leniency applications to the US Department of Justice Antitrust Division and global competition authorities.
US antitrust merger case
Represented a foreign paper manufacturer in a preliminary injunction hearing brought by the US Department of Justice under US antitrust laws, which sought to block the client's acquisition of a US company.
Multibillion-dollar bank fraud allegations
Represented an international financial institution and a European defeasance entity in civil and criminal proceedings relating to multibillion-dollar bank fraud allegations.
Medicare and Medicaid fraud
Represented a corporation in a criminal investigation into Medicare and Medicaid fraud, Eileen successfully achieved a civil settlement.
Multimillion-dollar commercial arbitrations
Represented a major telecommunications company in multimillion-dollar commercial arbitrations.
"Does the Innovation End Justify the Exclusionary Means?", ABA Antitrust in Healthcare Virtual Conference, February 2021 (panelist)
ABA Criminal & Cartel Practices Update, Panelist, ABA Section of Antitrust, August 2017
Legal 500, Recommended for Cartels, 2018