Michael Gallagher

Partner, New York


Michael J. Gallagher focuses on antitrust, class action and other complex commercial litigation, with an emphasis on the pharmaceutical industry.


Michael's litigation and advisory practice focuses on complex commercial litigation, particularly antitrust, false claims act, RICO and class actions.

Michael's experience representing clients in substantial cases spans a wide range of industries, from pharmaceuticals to infant nutrition to oil & gas. His practice has a significant focus on the pharmaceutical industry, where he has represented and counseled pharmaceutical clients for more than 20 years on critical pricing, marketing and distribution issues, including product hopping, reverse payment / pay-for-delay, average wholesale price, managed care contracting, co-payment assistance programs, false claims act, and price discrimination matters.

Michael's pharmaceutical industry experience began with the In re Brand Name Prescription Drugs Litigation, where he scored a directed verdict for his client at the trial of class plaintiffs' antitrust conspiracy claims. His recent successes include appellate victories for a generic drug manufacturer in consumer protection, false claims act and fraud litigation brought by state Attorneys General over published AWPs, and a summary judgment dismissal of long-running Robinson-Patman Act claims brought by retail pharmacies, alleging industry-wide price discrimination by brand name pharmaceutical manufacturers.

Michael litigates jury and non-jury cases before federal and state trial and appellate courts throughout the United States, and he has represented clients in government investigations, arbitration and administrative proceedings.

Bars and Courts
New York State Bar
US District Court for the Eastern District of New York
US District Court for the Southern District of New York
US District Court for the Western District of New York
US District Court for the District of New Jersey
US Court of Appeals for the Second Circuit
US Court of Appeals for the Ninth Circuit
US Court of Appeals for the Eleventh Circuit
St. John's University School of Law
University of Virginia, McIntire School of Commerce



Brand name pharmaceutical manufacturer / Sherman Act, ongoing
Michael is currently defending a preliminary injunction action brought by the Attorney General of the State of New York alleging that product innovation (so-called "product hopping") excludes generic competition and constitutes monopolization and unfair competition under federal antitrust law and New York's Donnelly Act.

Brand name pharmaceutical manufacturer / Sherman Act, ongoing
Michael is representing a brand name pharmaceutical manufacturer against putative class action, opt-out and competitor claims of allegedly exclusionary "product hopping," and successfully opposed the end payors plaintiffs' initial motion for class certification.

Brand name pharmaceutical manufacturer/ Robinson-Patman Act, 2013
Michael secured dismissal of Robinson-Patman Act and RICO claims brought by a putative class of end payors, concerning a brand name pharmaceutical manufacturer's assistance program for reducing privately insured patients' co-pay obligations when filling a prescription.

Brand name pharmaceutical manufacturer / Robinson-Patman Act, 2012
Michael secured summary judgment dismissal of Robinson-Patman Act claims brought by retail pharmacies challenging industry-wide pricing practices used by brand name pharmaceutical manufacturers in dealing with managed care payors.

National oil company / Sherman Act, 2011
Michael worked on behalf of a national oil company and secured dismissal of all complaints in In re Refined Petroleum Products Antitrust Litigation, a series of nationwide class actions challenging the activities of OPEC and its members under the US antitrust laws.

Generic pharmaceutical manufacturer / Sherman Act, 2006
Michael prosecuted restraint of trade and monopolization claims on behalf of a generic pharmaceutical manufacturer arising from a competitor's exclusive supply agreement governing the raw material for generic warfarin sodium, a blood thinner. Michael secured reversal by the Second Circuit of the summary judgment dismissal of his client's antitrust claims.

Commercial litigation:

Generic pharmaceutical manufacturer, ongoing
Michael represents a generic pharmaceutical manufacturer in a number of state Attorneys General and federal qui tam suits alleging false claims act, common law fraud, RICO and consumer protection claims based on alleged misreporting of AWPs.

Magazine publisher, 2004
Michael pursued insurance coverage claims on behalf of a magazine publisher alleging its insurance carrier and claims processor failed to adjudicate and pay claims accurately.

Speaking Engagements

"Recent Antitrust Developments: June, July, and August 2013", September 13, 2013: ABA Section of Antitrust Law, Health Care and Pharmaceuticals Committee

"Global Antitrust/Competition and Compliance Law Seminar: Japan, the EU, the US, India and China", September 13, 2012: Japan Machinery Center for Trade and Investment

"Global Antitrust Seminar: How to Win the Game, Cartel Enforcement and Unfair Trade Practices: Japan, the EU, the US, and China", September 11, 2012: White & Case Tokyo Special Invitation Seminar


Recent Activity on the Brand-Generic Drug Patent Settlement Front, Antitrust, Volume 18, No. 2, Spring 2004, (co-author, with Robert Milne)