Noah A. Brumfield
Noah is a partner in our Global Competition Practice Group, which is ranked as among the "Global Elite" for antitrust. He represents clients before US courts, the US Department of Justice, Federal Trade Commission, and the various states’ Attorney General offices.
Antitrust plaintiffs and enforcers are invoking the antitrust laws in increasingly novel ways in private litigation and government investigations. Noah provides creative and nimble strategies that are specific to his client’s business objectives, whether they are in high-stakes litigation or planning a transformative deal. He is singularly focused on understanding each client to provide practical, business-oriented solutions.
Noah draws on his 20 years of experience with complex antitrust issues under US federal and state competition law, with a focus on how the antitrust laws intersect with intellectual property. He has successfully defended and asserted antitrust claims in merger and non-merger investigations before the enforcement agencies, and in federal district court.
Noah is an adjunct professor for antitrust at UC Berkeley School of Law, teaching "Antitrust and Innovation" (Spring 2020). He is a prolific author and speaker on a range of competition topics, and contributes to American Bar Association (ABA) publications and commentary.
Litigation & Government Conduct Investigations
Noah's experience includes representation of both defendants and plaintiffs at trials involving complex claims under federal and state competition laws, and in investigations by government agencies. Representative antitrust litigation matters include:
- Defending CrowdStrike against antitrust claim arising from cybersecurity industry standard-setting in the Northern District of California, and defending parallel investigation by the DOJ Antitrust Division.
- Representing leading fabless semiconductor company in complaint under investigation by the FTC.
- Cleared leading semiconductor manufacturer of antitrust allegations in multi-jurisdictional investigation involving US federal and state enforcers, and also the European Commission and NDRC.
- Hytera Communications: Representing leading radio manufacturer in antitrust monopolization claims against Motorola Solutions in the Northern District of Illinois.
- Lucasfilm: Defended against DOJ investigation into no-poach agreements with others in industry.
- Allergan: Defending against monopolization claims for alleged anticompetitive innovation in civil class action in the District of Massachusetts.
- Warner Chilcott: Defeated, on summary judgment, a novel "product hopping" claim raised in a monopolization suit by a competing pharmaceutical company.
- Foxconn: Defeated a competitor monopolization claim on behalf of a leading electronics manufacture in the Central District of California, in a claim involving USB standards–setting.
- Shionogi: Successfully represented Shionogi in defeating Sherman Act "sham exception" counterclaims to a patent infringement suit in a first-of-its kind ruling under FRE502.
- Ellie Mae: Defended leading loan origination platform software provider in defeating request of Injunctive Relief in a federal antitrust suit alleging a refusal to deal, monopoly leveraging, essential facility and other claims against Ellie Mae.
- Scientific Games: Defeat of antitrust Handgards claims challenging patent licenses in Pollard Banknote Ltd. Partnership v. Scientific Games International.
- Autonomy: Noah successfully asserted a sham litigation unfair competition claims against a patent troll to offensively counter patent litigation brought in the Eastern District of Virginia.
- Stolt-Nielsen: Representation of Stolt-Nielsen in the landmark dismissal of a criminal indictment, enforcing an amnesty agreement revoked by the Department of Justice.
- Comcast: Jury trial and dismissal of antitrust claims in Marco Island Cable v. Comcast Cablevision of the South.
M&A and Industry Collaborations
Noah has significant experience successfully representing clients in transformational combinations and collaborations, including US and international merger control. Representative deals include:
- Advised on the Cryptocurrency Open Patent Alliance formation.
- Successfully defended leading collaboration and messaging software provider against DOJ Antitrust Division investigation into client’s asset acquisition and licensing agreement with its leading rival.
- Represented Anthem in its bid to acquire Cigna, against the US DOJ's high-profile antitrust challenge to the merger.
- Grupo Bimbo: Noah has represented Grupo Bimbo in numerous deals investigated by the DOJ, including its US$1.6 billion acquisition of Canada Bread, and its US$949 million acquisition of Sara Lee Corp.'s North American bakery business, a transaction that was named a 2011 "M&A Deal of the Year" by The Deal Magazine.
- Comex: Noah represented Comex in the sale of its US and Canadian architectural paint and coatings business to Sherwin-Williams.
- Mexichem: Noah advised Mexichem SAB de CV, a major Mexican chemical producer, in numerous deals, including its US$630 million acquisition of Dura-Line, its acquisition of PolyOne's specialty PVC resin business, and of the AlphaGary Plastic compounding business.
- Hess: Noah represented Hess Corporation, a leading global independent energy company, in the US$850 million sale of terminals along the US East Coast and St. Lucia.
- Fisher Communications: Noah successfully represented Fisher Communications in its sale to Sinclair Broadcasting of 23 TV and radio stations in the Western US.
- Pilot Travel Centers: Noah successfully represented Pilot Travel Centers on its acquisition of Flying J, creating the largest travel plaza operator in the US.
Noah routinely provides competition-related counseling to clients across a range of industries. Often, the counseling implicates antitrust issues unique to IP-based activities and sector-regulation and cross-border transactions. His experience includes:
- Advising on IP licensing agreements, standard setting, patent pools, R&D and other technology joint ventures.
- Advice on joint conduct in connection with trade association, joint ventures, information sharing, and other collaborations.
- Advising on pricing and distribution issues, including Robinson-Patman Act and resale price issues.
- Crafting patent settlements subject to notification and FTC review under the Hatch-Waxman Act.
- Advising on agreements and conduct involving the airline, gaming, pharmaceutical and medical device, and cable television industries.
- Advising on issues arising from international trade disputes, including settlements involving potential import restrictions.
- Advising on interlocking director issues and the use of Section 8 of the Clayton Act in corporate proxy fights.
Noah has also clerked with the Federal Trade Commission and the Office of the US Trade Representative
"Antitrust and innovation: US scrutiny of tech ripples across industries," December 3, 2019, Lexology webinar
"Antitrust in Asia: ASEAN, China, Hong Kong... ", May 18, 2018: Antitrust in Asia Conference, Hong Kong
"Intervention and Remedies in Global Mergers," February 4, 2017: Miami, Florida, Moderator
"Emerging antitrust issues in high tech" May 25, 2018: GCR Live 2nd Annual IP and Antitrust, Berkeley
"Intervention and Remedies in Global Mergers," February 4, 2017: Miami, Florida, Moderator
"Leniency, Transparency and Procedural Rules in Competition Law Enforcement in Asia," April 25, 2016: Singapore, Panelist
"US Competition Enforcement and Airline Industry Considerations," April 28, 2016: International Aviation Competition Seminar, Beijing, Speaker
"U.S. Antitrust Trends in Merger Control," February 9, 2016: AFRA, Paris, France, Speaker
"Panel II – The United States Department of Justice," January 26, 2016: The Heritage Foundation, Washington, DC
"US Antitrust for 2015 and Beyond," May 6 and 8, 2015: Spring Symposium for Taiwan Technology Companies, Taipei and Hsinchu, Taiwan, Speaker
"Competition and Innovation: Antitrust Challenges to Product Lifecycle Decisions," March 5, 2015: Association of Corporate Counsel, San Francisco, Speaker
"Troubles Abroad," April 10, 2014: 3rd Annual Institute for Advanced Corporate Counsel (iACC), San Francisco, CA, Presenter
"US Competition Law, Current Developments," November 14, 2013: Taiwan Fair Trade Commission Competition Policy Information and Research Center, Taipei, Taiwan, Speaker
"International Antitrust: Cartel and M&A Developments in the US, Europe and China," 2012 Symposium on International Legal Strategies for Taiwan Technology Companies: A Focus on Intellectual Property and Antitrust Issues, June 13, 2012, Hsinchu, Taiwan and June 15, 2012, Taipei, Taiwan, Presenter
"Recent Developments in US Criminal Antitrust Matters, Including the Prosecution of Asian Companies and Executives in Cartel Cases", June 3, 2010, Hsinchu, Taiwan and June 4, 2010, Taipei, Taiwan: 2010 Symposium on International Intellectual Property Strategies for Taiwanese High-Tech Companies, Presenter
"Antitrust Claims in Patent Litigation," May 05 and 06, 2010: Association of Corporate Counsel, Palo Alto and San Francisco, CA, Speaker, with Bijal V. Vakil
"Don't Squeeze Me So Hard!: Abuse and Joint Abuse of Dominance," February 3, 2010: Competition Law & Policy Forum, Toronto, Panelist
"Dawn Raids & Cartel Investigations," February 24, 2009: Anti-Monopoly & Competition Law Forum, Hong Kong, Panelist
"Antitrust and National Security—The 5G Race", The Daily Journal, June 30, 2020 (with Jack Klaren)
"FTC v. Qualcomm", The Daily Journal, Feb. 13, 2020
"Third Circuit: Pharmaceutical cases", Global Competition Review's US Courts Annual Review, July 6, 2020 (with J. Mark Gidley, Alyson Cox Yates, Kevin Adam and Mark Levy)
"Emerging Issues and Compliance Challenges for Firms Facing Pricing Restrictions Under Anti-Price Gouging Laws During the COVID-19 Pandemic", ABA Antitrust Law Section Unilateral Conduct Committee Newsletter: Monopoly Matters, Vol. 18, No. 1, Spring 2020 (with Michael J. Gallagher, Allain Andry and Regina Loureiro)
Editorial Board Member, ANTITRUST LAW DEVELOPMENTS, 2017 UPDATE 2018
Insight: Rare Court Decision Clarifies U.S. Merger Control Rules for Vertical Deals, Bloomberg Law, August 14, 2018
One Hundred Years of Practice Before the Federal Trade Commission from A Lawyers' Perspective, Kosei Torihiki, 2014, (with Andrew Mann, Seiji Niwa, and Takako Onoki)
Blocked Shipping Alliance Reveals Modest Improvement in Chinese Antitrust Review Transparency, Washington Legal Foundation, Legal Backgrounder, August 2014, (with Yi Ying)
A Look at 1st M&A Deals Under China’s New Review Process, Law360, 08 August 2014, (with Alex Zhang, Yi Ying and Lucy Xu)
Contributor, Joint Comments of the ABA Sections of Antitrust Law and International Law on the Canadian Competition Bureau's Draft Enforcement Guidelines For Price Maintenance, June 2014
"Do Your Suppliers Use Unauthorized IP?," White & Case, July 2013 (with Toshio Dokei, et al.)
Navigating the Ethical Rules of the Road in Litigation Class Actions: A Virtual Panel Discussion, Compliance and Ethics Spotlight, March 2013
Revised Horizontal Merger Guidelines, One Year In, The Deal Magazine, April 2012, (with Anna Kertesz)
Antitrust Scrutiny of IP Licensing in Competitor Collaborations, IT, Internet and Outsourcing Bulletin, April 2010, (with Kenneth Maikish)
Antitrust Enforcement and Intellectual Property In the Obama Administration, Corporate Counseling Report, Summer 2009
The Future of the FTC, Law360, March 2009
FTC v. Whole Foods, Worldwide Merger Notification Requirements, 2009
Joint Comments of the ABA Sections of Antitrust Law and International Law on the United Kingdom's Draft, Guidelines on Application of Divestiture Remedies in Merger Inquiries, August 2008, Contributor
Joint Comments of the ABA Sections of Antitrust Law and International Law on the European Commission's Draft, Guidelines on the Assessment of Non-Horizontal Mergers, May 2007, Contributor
"Antitrust and International Commerce" Chapter, Antitrust Law Developments, 6th edition, Spring 2007, Contributor
"Thailand," Getting the Deal Through – Merger Control 2007 (with K. Laohaganniyom)
"United States v. Dairy Farmers of America, Revisiting Presumptions of Illegality Under Section 7," The Threshold, Spring 2006
"Thailand Overview", The Asia Pacific Antitrust & Trade Review 2005 (with K. Laohaganniyom)
"Leveraging Windows: Who Gets to Benefit from the Distribution Advantage Conferred by Microsoft's Monopoly," ICARUS
"Antitrust Law in China," White & Case, March 2005
"Gemstar/TV Guide: Risks of Pre-Merger Coordination of Activities," Corporate Counseling Report, Winter 2004
"Microsoft and its Relevance to a Single Firm's Product Innovation," Corporate Counseling Report, Summer 2001
Selected for inclusion in the 2013 and 2014 editions of Washington DC Super Lawyers for Antitrust
Rising Star 2012: Competition, Law360
Top Washington Lawyer: Young Gun 2008, Washington Business Journal