Martin M. Toto
Martin M. Toto has over 25 years of experience representing clients in antitrust and complex commercial litigation matters. He has served as trial counsel and successfully defended clients in several multibillion dollar price-fixing jury trials. He is lead counsel for major pharmaceutical companies in cases alleging anticompetitive "reverse payments" and "product hopping," at the intersection of antitrust and IP law. He has also successfully defended companies and individuals in criminal antitrust investigations and has gained approval for numerous mergers and acquisitions investigated by the Federal Trade Commission and Department of Justice. He has substantial experience counseling companies in the Hart-Scott-Rodino pre-merger review process, and in the implementation of antitrust compliance and training programs.
His practice focuses on representation of multinational corporations. He has advised companies on virtually all aspects of antitrust law, including those relating to compliance, intellectual property (including antitrust allegations against pharmaceutical companies related to patent rights), vertical restraints, monopolization, mergers and acquisitions, concerted activity and price fixing, trade association activity, resale price maintenance and price discrimination.
Lead counsel for defendant Samsung Bioepis in antitrust litigation relating to the blockbuster drug Humira. Led biosimilar defendants in briefing and personally argued appeal to the Seventh Circuit after the District Court dismissed all claims against defendants. The case is one of the first to apply the Supreme Court's Actavis framework to the newly emerging biologic/biosimilar industry, and stands to create leading precedent. (Currently awaiting judgment from the Seventh Circuit.)
Lead Counsel for AbbVie (and predecessor companies Allergan and Forest Laboratories) in ongoing class action litigation relating to Alzheimer's drug Namenda. In the most recent developments, Martin led the team that successfully removed all "hard switch" allegations and all claims by consumers from the case, substantially reducing defendants' damages exposure. In the same set of cases, Martin is lead trial counsel for co-defendant Merz Pharmaceuticals, which was dismissed from the direct purchaser action without any payment to plaintiffs. (Trial in the indirect action is expected in 2022.)
Successfully obtained a COVID-related US Department of Justice "business review" on behalf of the National Pork Producers Council, a trade group representing the nation's 60,000 hog farmers. The positive review was gained under the DOJ's expedited COVID procedures and DOJ's positive opinion allowed the hog producing industry to manage the crisis in the meat industries created by the pandemic.
Victories for Toshiba against allegations of price-fixing LCD panels. Martin successfully defended Toshiba worldwide in the US criminal and civil cases, and other worldwide investigations. In the US criminal case, Toshiba and all of its employees were fully exonerated. In the most recent jury trial alleging damages of over US$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.
Lead attorney gaining antitrust clearance in the US of Metso Corporation's combination with Finnish rival Outotec. Expedited clearance was obtained with no "second request" investigation, despite the fact that the deal combined two businesses that the US authorities forced Metso to separate in a prior enforcement action.
Serving as trial counsel for health insurer Anthem in its proposed $50 billion acquisition of Cigna. The litigation led to an important dissenting opinion in the Circuit Court for the District of Columbia, recognizing the importance of the efficiencies defense in merger cases. Ultimately, Anthem was vindicated by a Delaware court and relieved of its obligation to pay a break-up fee based on Cigna’s actions in opposition to the merger.
Successful opposition to class certification on behalf of Toshiba in the Lithium Ion Batteries Antitrust Litigation. The Court refused to certify direct and indirect classes, a rare occurrence in price-fixing cases.
Successful defense of Toshiba acquisition: Martin successfully represented Toshiba in acquiring a hard disk drive business from Western Digital in a complex divestiture resulting from two parallel 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.
Victory for Experian against antitrust, trademark and false advertising claims: Martin helped secure a 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, in precedent setting case involving DOJ's amnesty program: Martin successfully defended Stolt-Nielsen, including by helping to secure the dismissal of a criminal indictment against the company in a four-week trial. This unprecedented case was brought against the company after it had obtained amnesty from the Department of Justice and provided critical, incriminating evidence against its co-conspirators.
Provided antitrust counselling in the creation of the Infineum joint venture with Exxon Chemical and Shell Chemical.
The successful 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 successful acquisition by the Swiss-Swedish engineering company, ABB, of Elsag Bailey Process Automation, which was reviewed by the FTC and European Commission.
Contributing author to Getting the Deal Through: Cartel Regulation (2012-2016 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)
Leading Lawyer, Chambers USA, 2015