Monopolization and vertical restraints


Bates White is a leader in the analysis of conduct related to allegations of monopolization, monopoly maintenance, and other restraints of trade. Our experts assess competitive effects, identify efficiencies, define relevant markets, and measure market power in some of the most prominent and challenging Sherman Act Section 1 and Section 2 disputes. We advise clients on a wide range of business practices including allegations of bundling, aftermarkets abuse, predation, patent misuse, loyalty rebates, exclusionary practices, raising rivals’ costs, and refusals to deal. A number of our clients are party to high-stakes antitrust disputes in many countries, including cases requiring coordination across multiple jurisdictions.

Selected experience

  • ZF Meritor v. Eaton. Testified at trial on behalf of the plaintiffs in this monopolization case involving certain heavy-duty truck components. Submitted testimony defining the relevant antitrust market, assessing whether a market participant had monopoly power, and evaluating the harm to competition from certain contracts and the performance of those contracts; also submitted testimony estimating damages. Jury verdict on liability in favor of client, upheld on appeal (ZF Meritor v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012), cert denied, 133 S.Ct. 2025 (2013)). Prior to the damages phase of trial, the parties agreed to a $500 million settlement.

  • United States v. American Express. Bates White Partner Doug Bernheim recently offered
    trial testimony on behalf of American Express in a case brought by the United States
    and several states (EDNY 10-CV-04496). The allegations relate to terms in contracts
    between American Express and merchants. In a second related case, brought
    by several direct action merchants (EDNY 11-MD-02221), Dr. Bernheim provided
    deposition testimony.
  • Monsanto v. Dupont. Served as lead consulting expert in the matter. Provided liability and damages analysis for DuPont in its litigation against Monsanto regarding alleged antitrust and intellectual property violations. Monsanto originally sued DuPont and its Pioneer subsidiary for infringing Monsanto’s Roundup Ready soybean patent. DuPont countersued, accusing Monsanto of antitrust violations and of fraudulently obtaining the patent. The parties agreed to dismiss antitrust and patent lawsuits filed against each other as part of a broader licensing agreement reached between the two agricultural biotechnology giants.
  • American Airlines v. Sabre. Provided support for expert testimony on damages on behalf of American Airlines in a suit filed in Texas state court. The suit alleged anticompetitive conduct by Sabre in markets for airline ticket booking services. After one week of a trial scheduled for two months, American and Sabre settled their disputes and renewed their existing distribution agreement for multiple years. American will receive a monetary settlement and will continue to pursue its direct connect initiative.
  • Kolon v. DuPont. On behalf of DuPont, provided economic analysis and expert testimony in a monopolization case related to sales of para-aramid fiber (e.g., Kevlar) in the United States. Kolon, a para-aramid supplier, alleged that the use of certain supply agreements between DuPont and some of its customers was illegal exclusionary conduct under Section 2 of the Sherman Act. Expert testimony showed that DuPont was not a monopolist in para-aramid fiber and that the supply agreements at issue were not detrimental to competition. DuPont was granted summary judgment, and Kolon Industries’ antitrust claims were dismissed with prejudice. For more information, read the press release.
  • AMD v. Intel. Served as the lead expert on behalf of AMD in the landmark microprocessor antitrust case. Advised on overall case strategy and performed economic analysis to assess liability and damages resulting from illegal conduct alleged in the United States, Japan, and Europe. AMD and Intel agreed to a settlement, under the terms of which Intel agreed to pay $1.25 billion and refrain from certain business practices that AMD had alleged to be anticompetitive. For more information, read the press release.
  • Sheridan Healthcorp v. AvMed. Provided economic analysis and testimony on alleged monopolization of the market for certain physician services following a series of mergers, affiliations, and exclusive arrangements. Analyses addressed issues of relevant antitrust markets, market power, and effects on competition.
  • United States and State of Texas v. United Regional Health Care System. Retained as testifying expert on behalf of DOJ to analyze the competitive effects of United Regional’s exclusionary contracts with health insurers. DOJ reached a settlement with United Regional that prohibits the hospital from entering into contracts that improperly inhibit commercial health insurers from contracting with United Regional’s competitors.