Michael Gallagher

Partner, New York

Biography

Michael is an accomplished trial and appellate litigator and trusted antitrust advisor with more than 25 years’ experience helping clients navigate their most important challenges.

Overview

Michael's experience representing clients in complex litigation spans a wide range of industries, from life sciences and health insurance to infant nutrition, crop protection, and oil & gas. His practice has a significant focus on the pharmaceutical industry, where he has represented and counseled clients on critical pricing, reimbursement, marketing, and distribution issues, including product hopping, reverse payment / pay-for-delay, managed care contracting, co-payment assistance programs, false claims act, RICO, and price discrimination.

Michael's pharmaceutical industry experience began with the In re Brand Name Prescription Drugs Litigation, where he was a member of the trial team that scored a directed verdict for his client on class plaintiffs' antitrust conspiracy claims. More recent successes include appellate reversal of indirect purchaser class certification in a pharmaceutical product hopping case, summary judgment dismissal of product hopping allegations against a brand name pharmaceutical manufacturers, two appellate wins rendering judgment for his clients on fraud-based claims brought by state Attorneys General, dismissal of RICO and tortious interference with contract claims regarding a pharmaceutical manufacturer co-pay assistance program, and summary judgment dismissal of Robinson-Patman Act pricing claims brought by thousands of retail pharmacies.

Michael is a member of the White & Case Global Antitrust Practice, which was named as Competition Group of the Year by Law360 seven times. Michael litigates jury and non-jury cases before federal and state trial and appellate courts throughout the United States. He has represented clients in government investigations, arbitration, and administrative proceedings.

Bars and Courts
New York State Bar
New Jersey 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
Education
JD
St. John's University School of Law
BS
University of Virginia, McIntire School of Commerce
Languages
English

Experience

Antitrust litigation

Representing a biosimilar manufacturer in the first ever monopoly maintenance antitrust challenge to a reference biologic manufacturer's exclusionary practices.

Represented brand name pharmaceutical manufacturer in class action litigation alleging Walker Process and reverse-payment antitrust claims in connection with oral contraceptive product, securing denial of consumer class certification and dismissal of most state law claims.

Represented brand name pharmaceutical manufacturer in class action litigation alleging product hopping antitrust claims in connection with ulcerative colitis medication, securing reversal on appeal of indirect purchaser class certification. 

Secured summary judgment dismissal of competitor's product hopping claims against brand name manufacturer of prescription antibiotic used to treat acne.

Represented national health insurer in Department of Justice challenge to $49 billion merger, resulting in fastest completed merger appeal in history at D.C Circuit. 

Represented brand name drug manufacturer in preliminary injunction action brought by the Attorney General of the State of New York alleging product hopping in connection with medicine used to treat dementia associated with Alzheimer's.

Secured dismissal of Robinson-Patman Act and RICO claims brought by a putative indirect purchaser class of end payers concerning a brand name pharmaceutical manufacturer's assistance program for reducing commercially insured patients' co-pay obligations when filling a prescription.

Secured summary judgment dismissal of Robinson-Patman Act claims brought by thousands of retail pharmacies challenging industry-wide pricing practices used by brand name pharmaceutical manufacturers in dealing with managed care payers.

Represented 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.

Prosecuted restraint of trade and monopolization claims on behalf of a generic pharmaceutical manufacturer arising from a competitor's efforts to lock up the supply of the active pharmaceutical ingredient for generic warfarin sodium, a blood thinner. After the firm joined the case on appeal, Michael secured reversal by the Second Circuit of the summary judgment dismissal of his client's antitrust claims.

Obtained dismissal of monopolization claims against cruise line regarding practice of charging third party vendors a fee to deliver gift packages to cruise passengers.

Represented leading infant nutrition company against competitor's monopolization claims alleging predatory pricing of infant cereal. 

Represented major seed company in a putative class action alleging a price fixing conspiracy among the leading producers of genetically modified seeds.

Commercial litigation

Obtained pleadings dismissal of putative indirect purchaser class action brought by commercial health plans alleging state law consumer protection, unfair trade practices, and misrepresentation challenges to generic pharmaceutical manufacturer's list price practices. 

Represented generic pharmaceutical manufacturer at trial and on appeal in three state Attorneys General suits alleging false claims act, common law fraud, and/or consumer protection claims based on alleged misreporting of list prices, securing wins on appeal in Kentucky and Alabama and a trial verdict dismissing false claims act claims in Mississippi that was upheld on appeal.

Represented generic pharmaceutical manufacturer in more than a dozen state Attorneys General and federal qui tam suits challenging pharmaceutical manufacturers' practices for reporting list prices.

Obtained summary judgment win for defendant generic pharmaceutical manufacturer on pivotal claims in complex business tort and wrongful termination action involving long-term license and manufacturing agreement.

Speaking Engagements

"Recent Antitrust Developments: March – April 2015," ABA Section of Antitrust Law, Health Care and Pharmaceuticals Committee, May 12, 2015

"Whistleblowers – Who They Are, What Motivates Them and How Best to Respond to Minimize Legal Exposure," Continuing Legal Education Seminar Series, March 26, 2014

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

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

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

Publications

"Emerging Issues and Compliance Challenges for Firms Facing Pricing Restrictions under Anti-Price Gouging Laws During the COVID-19 Pandemic," Monopoly Matters, ABA Section of Antitrust Law, June 2020 (co-author)

"Americas Antitrust Review 2020, United States: Pharmaceutical Antitrust," Global Competition Review, September 2019 (co-author)

"Pharmaceutical Antirust in The Antitrust Review of the Americas 2019," Global Competition Review, September 2018 (co-author)

"United States: Pharmaceutical Antitrust chapter in Antitrust Review of the Americas 2018," Global Competition Review, September 2017 (co-author)

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

"Recent Developments in Patent Settlement Litigation," Antitrust Report 39, Fall 2003 (co-author)

"Statutory Rights and Pre-dispute Agreements to Arbitrate in Contracts of Employment," 66 St. John's Law Review 1097, 1993