Antitrust & Competition

After steering Alaska Airlines through the regulatory review process for its acquisition of Hawaiian Airlines, O’Melveny now represents Alaska Airlines in Yoshimoto v. Alaska Airlines, Inc., a private antitrust action challenging the airline’s acquisition of Hawaiian Airlines following completion of the transaction. The lawsuit alleges that the acquisition violates the antitrust laws by substantially lessening competition in Hawaii-related air travel markets. Building on its role in securing state and federal regulatory clearance for the transaction without conditions, O'Melveny successfully developed and executed the litigation strategy that resulted in the dismissal of all claims with prejudice at the district court level.

After a two-week jury trial in Waco, Texas, O’Melveny held the line for client Align Technology, defeating antitrust claims that had sought US$1.5 billion in trebled damages. The long-running case began when Align, manufacturer of the Invisalign clear aligners worn by millions worldwide, sued competitor ClearCorrect for patent infringement. ClearCorrect countered with antitrust claims, alleging that Align kept it and other aligner companies from competing in the market. O’Melveny mounted a compelling defense, arguing that ClearCorrect’s narrow market of “doctor-directed clear aligners” (of which it asserted Align had about 85-90%) was not the proper market. After just a few hours of deliberation, the jury agreed, rejecting ClearCorrect’s monopolization claims and awarding it nothing.

Secured a win for what was previously US Airways in a closely watched re-trial of a landmark monopolization and rule-of-reason two-sided market case brought against travel-booking company Sabre Corp. After winning at trial in December 2016 on a Sherman Act Section 1 claim, the verdict was reversed on appeal based on the Supreme Court’s intervening 2018 decision in Ohio v. American Express. O’Melveny re-tried the case in 2022 and won again, this time on the Section 2 claim.

As lead trial counsel for the parties in the DOJ’s challenge to the $85.4 billion merger—the first vertical merger challenge tried to verdict in the US in decades—we helped secure a “sweeping victory” for the defense.

Representing Irving Azoff and Azoff Entertainment in connection with high-profile antitrust litigation against Live Nation Entertainment, challenging alleged anticompetitive conduct in the live entertainment industry. The matter involves claims concerning competition in the markets for live music promotion, artist representation, venue access, and related entertainment services. O’Melveny is leading the litigation strategy on behalf of Azoff, pursuing claims that raise substantive issues regarding market power, exclusive dealing, and competitive practices in one of the nation’s most closely scrutinized industries.

Representing one the largest US multifamily residential property management firms in the In re RealPage, Inc. Rental Software Antitrust Litigation, an MDL class action brought by different sets of multi-family property and student-housing property class plaintiffs. Plaintiffs allege a conspiracy involving over 40 property owners and managers to inflate apartment rents using shared data through a common revenue management software vendor. In December 2023, in a significant win where O’Melveny argued defendants’ joint motion to dismiss, the court dismissed the nationwide student-housing case in its entirety, with prejudice, holding that the student plaintiffs had failed to plead any viable antitrust claim. We represent BH in the MDL class action in the Middle District of Tennessee (where several state attorneys general have sought to intervene) and in two aggressively pursued actions by the Arizona and Kentucky state attorneys general.

Secured a win for the company and individual developers in the first federal antitrust complaint in the cryptocurrency field. The court dismissed the entire case with prejudice, a significant victory that made new law on the application of the Sherman Act to the cryptocurrency industry and other emerging markets.

After securing a complete defense verdict in a tying case brought by a competitor, O’Melveny successfully defended Bard in a follow-on customer class action alleging that Bard’s product integration helped it monopolize the market for a type of catheter. We persuaded the District of Utah to deny certification, expunging hundreds of millions of dollars in potential liability.

Won a sweeping victory in an antitrust monopolization case alleging that an Endo subsidiary had prevented a competitor from entering the market for an emergency blood-pressure boosting drug by purportedly entering into certain exclusive supplier agreements. After the Third Circuit vacated and remanded the first summary judgment ruling, in October 2021 the district court granted a second summary judgment in our client’s favor, decisively ending the long-running dispute.

Secured an acquittal for the former Chief Executive Officer of Pilgrim’s Pride Corporation, the second largest US chicken producer, in a criminal antitrust case filed in the District of Colorado. The case made history as the first antitrust criminal case to be tried three times, the final time resulting in a full acquittal after a four-week jury trial and just one day of deliberations. Global Competition Review recognized the case as the 2023 “Antitrust Behavioral Matter of the Year.”

Achieved a major win for NYU and other leading universities in Hansen et al. v. Northwestern University et al., defeating claims that 40 universities conspired to inflate tuition by coordinating on financial-aid policies. Plaintiffs alleged violations of Section 1 of the Sherman Act—claims that could have upended decades of financial-aid practices. O’Melveny crafted and argued a motion to dismiss that convinced the judge to find the plaintiffs’ allegations “conclusory” and unsupported by facts or a plausible relevant market. The court agreed that plaintiffs failed to allege any unlawful agreement, resulting in complete dismissal of the case.

Represented Novartis in a cutting-edge antitrust Walker Process case in the Northern District of New York. Regeneron alleged that Novartis and co-defendant Vetter Pharma International GmbH sought to block or delay the launch of a Regeneron drug that competes with a Novartis product. Following our successful transfer of the case to the N.D.N.Y., the district court dismissed Regeneron’s antitrust claims with prejudice in February 2022.

Defended the company in In re Humira (Adalimumab) Antitrust Litigation (N.D. Ill.), the first “reverse-payment” litigation involving biologics and biosimilars. Purchasers of Humira, the world’s most successful drug, alleged that pharmaceutical manufacturers violated Sections 1 and 2 of the Sherman Act by preventing the launch of lower-priced “biosimilar” competitors. The district court granted in full defendants’ motion to dismiss, holding that the plaintiffs failed to plausibly allege an unlawful “reverse payment” or antitrust injury (unanimously affirmed by the Seventh Circuit in August 2022).

Defeated a consumer class action alleging that Samsung and other companies had agreed to restrict their output of dynamic random access memory (DRAM) chips—a vital component of phones, computers, and other electronics—in an attempt to raise prices on downstream purchasers of the products. We led the defendants’ briefing through multiple rounds of motions to dismiss, which the judge granted. In March 2022, the Ninth Circuit unanimously rejected the indirect-purchase plaintiffs’ appeal, affirming dismissal of their complaint; this led the direct-purchaser plaintiffs to voluntarily dismiss their separate appeal.

Played a key role in resolving a federal court challenge brought by a coalition of 12 state attorneys general, led by California, seeking to block Paramount Skydance’s $110 billion acquisition of Warner Bros. Discovery — one of the largest media mergers in history. The lawsuit, filed in the Northern District of California, sought to block the transaction under Section 7 of the Clayton Act, alleging competitive harm across multiple segments of the entertainment industry, including theatrical film distribution and basic cable programming. Our simultaneous representation of Warner Bros. Discovery in the litigation defense and of Paramount in the settlement negotiations with the state attorneys general was instrumental in bringing the litigation to a successful close, clearing the final obstacle to one of the most significant transactions in the history of the entertainment industry.