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 multi-billion dollar price-fixing jury trials. He is lead counsel for major pharmaceutical companies in "reverse payment" and "product hopping" cases, alleging antitrust violations based on the assertion of IP rights. He has also successfully defended companies and individuals in criminal antitrust cases, and has gained approval for numerous mergers and acquisitions investigated by the Federal Trade Commission and Department of Justice. He has been trial counsel defending mergers in several challenges brought by the FTC/DOJ in federal court seeking to enjoin the transactions. 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.
He routinely advises companies on virtually all aspects of antitrust law, including those relating to monopolization, mergers and acquisitions, concerted activity and price fixing, vertical restraints, intellectual property, trade association activity, compliance, resale price maintenance and price discrimination.
Recent matters handled by Mr. Toto include:
Unanimous victory for defendant Samsung Bioepis in Seventh Circuit appeal of antitrust case relating to the blockbuster drug Humira. Led biosimilar defendants in briefing, and personally argued appeal after the District Court dismissed all claims against defendants. This ground-breaking case rejected the application of Actavis to global settlements of biologic/biosimilar patent litigation, holding that the multiple early-entry settlements are legal "traditional" settlements that could not be characterized as "pay for delay."
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 counsel for co-defendant Merz Pharmaceuticals, which was dismissed from the direct purchaser action without any payment to plaintiffs.
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, including as trial counsel in two jury trials. 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.
Lead attorney gaining antitrust clearance in the US of Metso Corporation's combination with Finnish rival Outotec. Expedited clearance was obtained, despite the fact that the deal combined two businesses that the US authorities forced Metso to separate in a prior enforcement action.
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.
Lead counsel in 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.
Counsel for Experian against antitrust, trademark and false advertising claims: Martin helped secure a complete victory for credit bureau Experian in a civil case brought by FICO, challenging VantageScore, a joint venture of the three credit bureaus, which 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.
Trial counsel for global shipping company 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.
Counsel to Exxon Chemical in the creation of the Infineum joint venture between Exxon Chemical and Shell Chemical.
Counsel to Metso Corporation in the successful acquisition of one of its principal competitors, Svedala, in which a novel consent decree was negotiated with the FTC.
Counsel to ABB in its acquisition of Elsag Bailey Process Automation, which was cleared by the FTC and European Commission.
Contributing author to New York’s Sweeping New Antitrust Bill, Monopoly Matters (Fall 2021)
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, 2022