J. Mark Gidley
J. Mark Gidley chairs the White & Case Global Antitrust/Competition practice, which is the only such practice to have been named Competition Group of the Year for seven years by Law360. In 2019, Mark was named "Competition MVP" by Law360 for the second time.
Mr. Gidley is among the most experienced lawyers in the US in trying criminal and civil antitrust cases, whether involving claims of price-fixing, monopolization, or arising from a merger. His US trial victories include: wins over the US DOJ in Foreign Exchange case (criminal) US v Usher, Stolt I and Stolt II (criminal cartel/amnesty agreement), Ian Norris (criminal cartel/obstruction), and Sungard (merger) and AgriMark (merger); and trial victory over the FTC in FTC v. Schering-Plough (the first reverse payment trial in the US); trial victories over class actions and opt-out litigants (Toshiba LCD $2.7 billion direct purchaser class action; Toshiba LCD $2.4 billion Best Buy trial, Heveafil). His cases have shaped modern antitrust law in mergers, cartels, monopolization, and pharma antitrust. Mr. Gidley's trial and appellate experience informs his approach to evidence gathering, dispositive motions, and counseling clients.
His experience in transnational mergers spanning multiple and often conflicting antitrust regimes includes being co-editor of the Worldwide Merger Notification Requirements, a comprehensive compendium of global merger filing regimes in more than 210 jurisdictions, which is based on the firm's global merger clearance experience.
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, specializing in antitrust and violent crime issues. 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 and worked on the development of the seminal DOJ-FTC 1992 Horizontal Merger Guidelines. Mr. Gidley participated in CFIUS merger review deliberations, representing the Justice Department. He brought the successful and influential 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 directed the Division’s investigation of price fixing in the US Treasury bond auction market, which resulted in a US$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 was selected and served on the ABA Antitrust Section's Blue Ribbon Panel for Civil Jury Instructions in Antitrust Trials in 2014-15. He is also a member of The Fellows of the American Bar Foundation, a prestigious global honorary society limited to one percent of lawyers licensed to practice in each jurisdiction.
Mr. Gidley is recognized across geographies and industries as a preeminent antitrust lawyer. He was named 2017 Antitrust Litigator of the Year by LMG Life Sciences, 2016 Life Sciences MVP by Law360, 2015 Trial Ace in Antitrust by Law360, 2014 US Litigation Trailblazer by The National Law Journal (inaugural class), and 2013 Competition MVP by Law360. The Financial Times recognized his work as innovative in 2015 for winning the Doryx® product hopping case on summary judgment.
Chambers USA notes that "Mark Gidley has an excellent reputation for cartel defense matters. He is renowned for his ingenuity, with one client noting: 'If there is a more creative thinker in the world of competition, I haven't met them.' Interviewees also admire his determined attitude, observing that he 'will never stop fighting and does a good job of getting it done for his clients.'" (Chambers USA, 2016). Legal 500 writes that "practice head Mark Gidley sets 'the gold standard' in terms of expertise, responsiveness and value. 'Alone or with a team, there is no finer strategist or counselor in Washington DC; he makes you feel like his only client.'" (Legal 500, 2013). "Mark Gidley has constructed a team that is both whip-smart and composed of born-and-bred contrarians who believe cases are worth fighting, especially if a prosecutor has chosen to stand on shaky legal ground." (Global Competition Review, 2015).
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 parallel investigations by competition agencies outside the US such as the European Commission, national European authorities, and competition agencies in Canada, Mexico, Korea, Australia, New Zealand, Taiwan, Brazil and Japan. In addition to his US trial work, he has worked on evidentiary hearings or trials in the EC, Korea, and Australia. His cartel cases have established fundamental due process rights for companies and individuals. In criminal cartel investigations, Mr. Gidley has represented corporate clients and individuals in a variety of industries, including pharmaceuticals, auto parts, foreign exchange, oil and gas leasing, air cargo, defense contracting and procurement, ocean shipping, freight forwarding, beverages, graphite electrodes, education, DRAM and LCD.
Cartels/Class Action Litigation and Pharmaceutical Antitrust
Trial counsel to the lead Forex trader for JP Morgan Chase and Royal Bank of Scotland, Richard Usher, in a landmark Antitrust Division Section 1 criminal price-fixing Sherman Act trial in New York City in US v. Usher. On October 26, 2018, a New York City jury acquitted our client and two other defendants of allegations that the defendants had rigged the fixing of the euro-dollar currency pair. Previously the Antitrust Division had negotiated guilty pleas totalling to the largest criminal fines in the Antitrust Division’s history. According to the Financial Times, "the loss is a serious setback for the US Department of Justice, which, alongside the UK Financial Conduct Authority, has extracted more than $10bn in fines from settlements with banks over the foreign exchange scandal." According to MLex, "the verdict is a rare loss for Justice Department lawyers who in New York federal court overwhelmingly secure guilty verdicts against white – collar defendants."
Representation of Allergan/Warner Chilcott in a reversal of class certification by the First Circuit US Court of Appeals in the Asacol Antitrust Litigation. The ruling bans the widespread use of aggregate proof and post-trial affidavits as a substitute for fact-finding by juries under the Seventh Amendment of the US Constitution and Rule 23. Asacol plaintiffs had challenged on monopolization grounds Allergan's alleged "product hopping": the development of new DBP-free Asacol® – despite FDA's insistence that Allergan develop this phthalate-free version. The appeal itself was novel. White & Case halted a Boston jury trial with hundreds of millions of dollars at stake only two days before opening arguments by obtaining a rare interlocutory appeal under Rule 23(f). When the District Court refused to stop the trial, on January 25, 2018, the First Circuit granted an indefinite stay of the trial, allowing time for appeal. 23(f) petition grants are extremely rare – on the same standard as a grant of US Supreme Court certiorari, which have a less than 2% success rate. The First Circuit held that the District Court's procedure for removing uninjured class members was not supported by US Supreme Court or First Circuit precedent and violated the Seventh Amendment. On remand, the trial court denied leave to the plaintiffs to certify a narrower class, because such a motion would be futile.
Representation of CertainTeed Gypsum, a leading US manufacturer of building products, to win summary judgement against Section 1 Sherman Act price-fixing allegations in the drywall industry. The case challenged price increases during recovery from the Great Recession. On February 18, 2016, the US District Court for the Eastern District of Pennsylvania granted summary judgment to only one moving defendant, our client CertainTeed Gypsum. The claims total in the US$ billions. Other indirect private damages claimants voluntarily dismissed their antitrust claims against CertainTeed without any settlement.
Representation of Nexans SA in a victory in the DOJ Antitrust Division grand jury investigation. The DOJ Antitrust Division closed its investigation in 2015, despite the cooperation of other parties and parallel investigations on five continents. After a July 2015 trial in Australia, in 2016 the Australian federal court dismissed all Australian antitrust claims against our client Nexans. (Although not admitted in Australia, Mr. Gidley played a coordinating role). The July 2015 trial also had the follow-on effect of ending a 7-year DOJ Antitrust Division investigation. The case is significant as one of the rare instances of the Antitrust Division abandoning a criminal grand jury probe, despite an amnesty applicant, MLAT applications, and parallel investigations on five continents.
The battle to secure Nexans' freedom from the investigation has led to unprecedented due process victories in antitrust cases around the globe by White & Case, including winning the first decision to recognize a right of privacy and a right against random searches-and-seizures against the European Commission Dawn Raids (with White & Case's Brussels office), overturning 30+ years of prior practice; winning the right to unmask secret, anonymous witnesses in Australian courts; vindicating the sanctity of the corporate form despite the Australian Competition & Consumer Commission's best attempts otherwise; and a rare cartel trial win against the ACCC in Australia.
Successful defense of higher education application and technology platform, The Common App, against monopolization claims brought by rival CollegeNET in the District of Oregon.
Representation of Allergan in the settlement of antitrust and fraud charges brought by the New York Attorney General. On November 25, 2015, the NY Attorney General abandoned its claims for monopolization damages and disgorgement, related to Allergan's announced policy of terminating the sale of an older patented drug in favor of a new patented drug (Namenda® – a drug used in the treatment of the symptoms of Alzheimer's). The NY Attorney General had a billion-dollar damages case he was asserting, based on a claim that the client's public statements had led caregivers to switch away from the older (once-a-day) Namenda® to the newer, extended-release version, which allegedly had hobbled the entry of generics in 2015. In an innovative move, we bargained for the settlement agreement to contain upfront a number of admissions of facts by the New York Attorney General discovered during the settlement process as to the lack of any consumer injury due to the injunction and that generics launched unimpeded to assist in our motion to dismiss private suits. The New York Attorney General press release regarding the settlement echoed the lack of consumer injury due to the injunction.
Lead counsel for Warner Chilcott/Actavis in defending against claims of monopolization based on alleged "product hopping" in connection with Doryx® brought by generic firm Mylan. In September 2016, the US Court of Appeals for the Third Circuit dismissed claims against branded drug Doryx®, rejecting the claims of "product hopping". The Third Circuit also upheld the district court’s summary judgment ruling on product market, finding a broad therapeutic class product market of oral tetracycline antibiotics. The Third Circuit win upholds the April 16, 2015, the US District Court for the Eastern District of Pennsylvania (Diamond, J.) granted summary judgment against all of Mylan's claims, the first grant of summary judgment against antitrust "product hopping" claims. Mr. Gidley was named "Litigator of the Week" by Global Competition Review in 2015 for his leading role in the district court victory.
Trial counsel to Toshiba in its complete victory in a 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 San Francisco jury unanimously returned a 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 2012 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 for a total of approximately US$450 million. The jury awarded the class plaintiffs no recoverable damages against the nearly US$2.7 billion in damages the class plaintiffs had sought based on charges of price fixing. 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." (PC World).
Representation of international shipping company Stolt-Nielsen SA, in a crucial US Supreme Court victory denying class arbitration of private damages antitrust claims. 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 US, as well as future arbitrations where parties are 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 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 in violation of the amnesty agreement amounted to a breach of constitutional due process guarantees to the Company and its employees and executives. 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. A previous 2004 trial had led to the imposition of the first injunction against criminal prosecution in the Antitrust Division's history.
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 involving Orapred. Shionogi, the patent holder, sought to reveal pre-complaint opinions of patent counsel in defending against allegations of "sham" patent litigation. In December 2011, 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 decision, Mylan dismissed its antitrust counterclaims.
Trial counsel for Upsher-Smith Laboratories in a 40-day trial before an FTC Administrative Law Judge, resulting in a complete trial victory in 2002. This landmark case involved brand-generic patent settlements covering the drug K-Dur®. Subsequently, the Eleventh Circuit also 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 by the National Law Journal.
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 antitrust grand jury witness tampering and document destruction. The trial evidence demonstrated that no document destruction had occurred.
Representation of Stolt-Nielsen in a rare 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. Dee-K v. Heveafil, securing a 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. 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).
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.
Merger and joint venture:
Anthem in its efforts to acquire health insurer Cigna.
Anacor Pharmaceuticals Inc. in its US$5.2 billion acquisition by Pfizer. The deal was a cash tender offer, requiring antitrust review on a greatly shortened timeframe to completion, and within an industry facing increased regulatory scrutiny.
Warner Chilcott plc in its sale to Actavis, Inc. The deal, valued at approximately US$8.5 billion, created the third largest US specialty pharmaceutical company.
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 merger 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).
Toyota Industries Corp. in its 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.
Representation of Anthem in its attempted acquisition of Cigna, tried in 2016-2017 in the DDC, and resulting in the fastest completed merger appeal in US history at the D.C. Circuit (2017) United States v. Anthem.
Counsel to Federal Mogul in its 2014 acquisition of Affinia Group, Inc.'s chassis components business.
Comex S.A. de C.V. in the acquisition of its US and Canadian assets by Sherwin-Williams.
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.
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. Agrimark overturned 60 years of prior law on antitrust consent decrees, which involved a consent decree and vertical integration issues arising from a merger.
"Digital Economy and Competition Law: Digital Platform Regulations in Japan and the United States," White & Case Competition/Antitrust Seminar, October 17, 2019 (Tokyo)
"Energy Focus: Antitrust in a Low Price, High Cooperation Environment," Antitrust TX, September 24, 2019 (Houston, TX)
"The Intersection of Big Data, Privacy and Competition," Concurrences 7th Annual Bill Kovacic Antitrust Salon, George Washington University Law School, September 9, 2019 (Washington, DC)
"Innovation: a double-edged sword?," GCR Live Pharmaceuticals Inaugural Conference, February 28, 2019 (Washington, DC)
"EU-US Antitrust Enforcement: The Atlantic Dialogue," Program organized by Concurrences Review, February 26, 2018 (Brussels, Belgium)
"Pharmaceutical pricing and public policy", May 25, 2017: GCR Live IP & Antitrust California Conference, Stanford, CA
"The Emergence of Due Process Following the Growth of International Antitrust Enforcement", October 23, 2015: New York University School of Law and Concurrences Conference, New York, NY
"Pharmaceutical Innovation", October 8, 2015: ABA Antitrust and Intellectual Property Conference, Stanford University School of Law, Palo Alto, CA
"Obama Administration Antitrust Policy: A Report Card", January 29, 2015: The Heritage Foundation, Washington, DC
"Defending International Cartels Without Leniency", April 12, 2013: ABA Antitrust Section Spring Meeting, Washington, DC
"The Importance of 'Substantial Effect' under Hartford Fire", November 2, 2012: Great Lakes Antitrust Institute, Columbus, OH
"Merging Businesses Face Tough Scrutiny from Regulators", September 4, 2012: PBS' Nightly Business Report
"Antitrust Guilty Pleas, Without Guilt", February 23, 2011: Langdon Hall Northwind Institute, Cambridge, Ontario, Canada
"Cutting-Edge US Antitrust Developments Impacting Technology Transactions", February 10, 2011: International Bar Association "The Global Commercialisation of Knowledge-Based Industries—Legal Tools for Funding and Structuring Export-Driven Technology Companies" Conference, Miami
"Practical Issues for Class Certification, Assigning Liability and Assessing Damages", February 4, 2011: Global Competition Review's Antitrust Law Leaders' Forum 2011
"What Headlines Missed About 'Cartel' Traders' Trial 1 Year Ago," LAW360, Nov. 12, 2019
"FX Fraud Decision Tests Limits of Right-to-Control Theory," LAW360, Nov. 6, 2019
The Emergence of Due Process Following the Growth of International Antitrust Enforcement, Concurrences, Antitrust in Developing and Emerging Countries Conference Papers (2d ed. 2016), (with Maxwell J. Kalmann)
Worldwide Merger Notification Requirements, 3rd Ed., Wolters Kluwer Publishers, 2011, (co-author with George Paul)
Enforcing the Promise of Amnesty in the Courts, The International Comparative Legal Guide to: Cartels & Leniency 2011, Global Legal Group, (co-author with Lucius Lau)
Japan: Cartel Regulation; The Asia Pacific Antitrust Review 2004, Global Competition Review, April 2004, (co-author with Jiro Tamura and George Paul)
The Rise in Enforcement of US Criminal Antitrust Law, Finnish Competition Law Yearbook 2003, pp. 239 – 45
Worldwide Merger-Control Laws Turn a Corner…But Watch Out – You Might Still Be Run Over, The Mergers & Acquisitions Advisor, April 2003, (co-author with George Paul)
Law360 MVP – Competition (2019, 2013), Life Sciences (2016)
J. Mark Gidley was named a "Litigator of the Week" by Global Competition Review for securing reversal of class certification in the Asacol® product-hopping litigation.
Member of The Fellows of the American Bar Foundation
2017 Antitrust Litigator of the Year, LMG Life Sciences
2015 Trial Aces, Law360
"Commended" Lawyer, Financial Times North America Innovative Lawyers 2015
2014 Litigation Trailblazers & Pioneers, The National Law Journal
Chambers USA, Antitrust
Who's Who Legal
The Best Lawyers in America
Asialaw Leading Lawyers
45 Under 45, Global Competition Review
Edmund G. Randolph Award, 1993
presented by the Attorney General William Barr for outstanding service to the US Department of Justice
U.S. National Debate Champion, 1983