Mark C. Hansen

June 12, 2024 – Kellogg Hansen partner John Thorne and associate Derek Reinbold recently authored the U.S. chapter for Global Competition Review’s inaugural Data & Antitrust Guide. The chapter details how U.S. antitrust enforcers and courts view uses and abuses of data. It begins by discussing data’s role in monopolization cases such as the high-profile actions against Google, Facebook, and Amazon. It next addresses how enforcers treat mergers in which the merging parties maintain competitively valuable – or competitively sensitive – data. It then turns to issues of collusion, particularly how enforcers view new technologies such as artificial intelligence in cases involving information exchanges or alleged price-fixing. The chapter concludes with a discussion of how data privacy has emerged as a new metric of market power, an element of competitive harm, and potential procompetitive justification for otherwise anticompetitive conduct. Read the full article here: United States: High-profile cases shed light on antitrust enforcement against data abuse - Global Competition Review ..

May 1, 2024— Twenty-three Kellogg Hansen attorneys qualified for recognition on the 2023 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Twelve Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The complete list of 2023 Honor Roll members hail from 166 firms, solo practices, federal and local government agencies, corporations, associations, and public interest organizations, accounting for least 392,750 hours of pro bono service across all types of practice. It can be found here. Chief Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals and Chief Judge Anita Josey-Herring of the Superior Court of the District of Columbia stated: “Thank you for answering – and in many cases exceeding – the call to service embodied by Rule 6.1. We know that your actions stem not only from a commitment to your ethical obligations, but also from your principled belief in equal access to justice. We are pleased to recognize your dedication by including your name on this year’s Capital Pro Bono Honor Roll.”  Kellogg Hansen 2023 Capital Pro Bono Honor Roll Rachel T. Anderson* Scott K. Attaway* Justin B. Berg* Geoffrey Block* Mary Charlotte Y. Carroll* Tiberius T. Davis Abigail E. DeHart* Hannah D.C. DePalo D. Chanslor Gallenstein Nataliia Gillespie Jordan R. Gonzalez Minsuk Han* Mark P. Hirschboek Derek T. Ho* Geoffrey M. Klineberg* Ariela M. Migdal Matthew D. Reade* Catherine M. Redlingshafer Derek C. Reinbold* Caroline A. Schechinger Andrew Skaras Alex P. Treiger* Daren G. Zhang* * denotes High Honor Roll ..

April 30, 2024—  This month, Kellogg Hansen partner Steve Benz presented at the American Bar Association’s 72nd Antitrust Spring Meeting in Washington, DC.Along with Ian Simmons, partner & co-chair of the Antitrust Practice Group at O’Melveny & Myers LLP, Tara L. Reinhart, partner at Skadden Arps Slate Meagher & Flom LLP, Sharon K. Robertson, partner at Cohen Milstein Sellers & Toll PLLC, and Kalpana Srinivasan, managing partner at Susman Godfrey LLP, the group’s gave a discussion titled, “Trying a Section 2 Case: Best Practices.”Understanding exclusionary conduct, a critical element in monopolization claims, poses conceptual challenges as the law adapts to technological advances and changes in the marketplace. A raft of enforcement, competitor, and consumer actions are pending against Amazon; Apple; Google; and Meta. These platforms are alleged to have monopolized complementary markets, often by tying the platforms to the use of their own products and services. Over the next decade, courts will continue to develop Section 2 digital platform jurisprudence. The discussion encompassed both the conceptual underpinnings of monopolization doctrine and practical strategies for developing and trying monopolization cases, highlighting the dynamic and complex nature of Sherman Act Section 2 litigation. ..

February 1, 2024— Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. is pleased to announce that Joshua Hafenbrack and Thomas W. Traxler, Jr. have rejoined the firm as partners, and Alejandra Ávila has rejoined the firm as of counsel. Joshua Hafenbrack represents plaintiffs and defendants in complex civil litigation and antitrust cases. Before rejoining Kellogg Hansen as a partner in January 2024, Josh was Senior Litigation Counsel for the U.S. Department of Justice’s Antitrust Division. In that role, he served as a member of the litigation and trial team in the United States vs. Google search monopolization case. United States v. Google, 1:20-cv-03010 (D.D.C.). He examined and cross-examined key expert and fact witnesses and argued evidentiary and other motions. While at the DOJ, Josh also helped lead merger and conduct antitrust investigations in a variety of industries, including the sports and media industries. Before joining the DOJ’s Antitrust Division, Josh was an associate at Kellogg Hansen, where he focused on complex commercial and antitrust litigation. Josh helped build and litigate the antitrust conspiracy case against the two leading providers of auto dealer software management systems. In re Dealer Mgmt. Sys. Antitrust Litig., MDL No. 2817 (N.D. Ill). Josh clerked for the Judge M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit. He earned his J.D. from Georgetown University Law Center, where he graduated summa cum laude and was awarded the George P. Mickum III Prize for the highest first-year GPA. Before law school, Josh was a newspaper journalist, covering politics and public affairs in Florida and West Virginia. Thomas “Tommy” Traxler’s practice focuses on complex civil litigation and white-collar criminal defense. He represents plaintiffs and defendants in a broad array of subject matters, including antitrust, class action, securities, financial, and general commercial litigation. As a former federal prosecutor for nearly seven years, he brings substantial experience in leading teams in high-stakes litigation and jury trials. Before rejoining Kellogg Hansen in December 2023 as a partner, Tommy served as an Assistant United States Attorney in the National Security and International Crime Unit in the Eastern District of Virginia. In that capacity, Tommy led teams in investigating and prosecuting violations of federal criminal law, focusing primarily on national security and extraterritorial offenses. He handled cases through the life cycle of litigation, from charging through appeal and post conviction litigation. Among other responsibilities, he first-chaired jury trials, argued substantive motions in federal district court, examined witnesses in grand jury proceedings, and argued before the U.S. Court of Appeals for the Fourth Circuit. As a federal prosecutor, Tommy frequently handled high-profile, sensitive cases that received national and international attention. He was one of the lead prosecutors in charging Julian Assange, the founder and leader of WikiLeaks, for conduct related to one of the largest leaks of classified information in American history. He handled highly publicized civil-contempt proceedings related to Chelsea Manning’s refusal to testify before the grand jury. Tommy also led the team that secured the conviction of former Special Forces officer Peter Debbins for participating in a 14-year espionage conspiracy with Russian intelligence agents. Tommy likewise played a significant role on the team that brought the first-ever indictment under the federal War Crimes Act against four Russian-affiliated soldiers for alleged war crimes committed against a U.S. national in Ukraine. Before becoming a federal prosecutor, Tommy was an associate at Kellogg Hansen, where his practice centered on complex civil litigation.  He began his career as a law clerk to the Honorable Diane S. Sykes on the U.S. Court of Appeals for the Seventh Circuit and the Honorable Henry F. Floyd on the U.S. Court of Appeals for the Fourth Circuit and the U.S. District Court for the District of South Carolina.  Tommy graduated first in his class from the University of South Carolina School of Law, where he served as Editor in Chief of the South Carolina Law Review. Alejandra Ávila represents both plaintiffs and defendants in complex civil litigation at the trial and appellate levels.  Her practice includes presenting oral arguments in federal and state courts, drafting merits and amicus briefs, and representing clients in depositions, discovery, trial, and administrative proceedings. Alejandra also maintains an active pro bono practice at the firm, and has provided pro bono representation to indigent criminal defendants, individuals facing eviction, asylum seekers, and domestic abuse survivors. Alejandra rejoined the firm as of counsel in January 2024 following her clerkship with Justice Sonia Sotomayor on the United States Supreme Court.  Previously, Alejandra was an associate at Kellogg Hansen, where her practice focused on appellate and complex commercial litigation.  Before joining the firm, Alejandra was a civil rights attorney at the Mexican American Legal Defense and Educational Fund.  In that role, she successfully represented individuals and organizations in a variety of civil rights cases and litigated issues of first impression in a wide range of matters, including voting rights and education law.  Alejandra began her career as a law clerk to the Honorable Chief Judge Mary H. Murguia of the U.S. Court of Appeals for the Ninth Circuit and the Honorable Micaela Alvarez of the U.S. District Court for the Southern District of Texas.  She is a member of the Edward Coke Appellate Inn of Court, and was presented with the Rising Star Award by the Hispanic Bar Association of the District of Columbia in 2021. Kellogg Hansen is a preeminent trial and appellate litigation firm founded on the idea that talent, creativity, and hard work achieve the best results for clients.  Formed in the spring of 1993 by law school classmates Michael Kellogg, Peter Huber, and Mark Hansen, our firm has grown over the past 30 years – with each year proving that our founding principle holds true.  Today, Kellogg Hansen has more than 90 attorneys, including 42 partners, and boasts an extensive record of success for our clients.  ..

January 31, 2024— In a landmark resolution reached just before closing arguments in a jury trial in the Eastern District of Texas, Dexon Computer has dismissed antitrust allegations against Cisco Systems as part of a comprehensive settlement agreement. Dexon will also pay Cisco to resolve Cisco’s counterfeit-trafficking claims pending in the Northern District of California. Dexon, an unauthorized reseller of Cisco products, also agreed to stop selling unauthorized Cisco products, revamp its business model, and apply to join Cisco\'s authorized reseller program. These steps are intended to uphold customer confidence and ensure the delivery of trusted and verified Cisco products. Cisco sued Dexon in the Northern District of California in July 2020, alleging that Dexon trafficked in counterfeit “Cisco” equipment. Dexon brought counterclaims, including under the antitrust laws, but the court dismissed them. Dexon then brought similar antitrust claims in the Eastern District of Texas in April 2022. A jury trial in the latter case began on January 22, 2024, and the presentation of evidence concluded at the end of that week. The parties were scheduled to deliver closing arguments the following Monday, but on Saturday Dexon moved to dismiss its own claims with prejudice. Cisco Systems is represented by attorneys from Kellogg Hansen: Aaron M. Panner, Andrew E. Goldsmith, Leslie V. Pope, Alex A. Parkinson, Ryan M. Folio, Caroline A. Schechinger, Geoffrey J.H Block, D. Chanslor Gallenstein, Jonathan I. Liebman, and Hilary M. Weaver. Kellogg Hansen is grateful for the critical contributions by its co-counsel in Texas, Deron R. Dacus of The Dacus Firm PC and Jennifer H. Doan and Mariah Leigh Hornok of Haltom & Doan, and its co-counsel in both cases, Richard J. Nelson, Louis P. Feuchtbaum, Zachary Alinder, and Lyndsey Heaton of Sideman & Bancroft LLP. The overall litigation effort was led by Cisco’s in-house team, including Sarita Venkat, Karen Lu, Gil Ohana, Michael Blaisdell, and Jon Schwartz. See also: Order of Dismissal (January 29, 2024) ..

January 1, 2024— Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. is pleased to announce that Kevin D. Horvitz, Grace W. Knofczynski, Daniel S. Severson, and Lillian V. Smith have been promoted as partners in the firm. Kevin D. Horvitz represents clients in complex litigation at trial and appellate levels and has particular experience litigating cases involving antitrust claims, telecommunications, contract disputes, and mass torts.  He has argued on behalf of clients in federal and state courts nationwide, including in the United States Court of Appeals for the D.C. Circuit.  Before joining the firm in 2017, Kevin served as a law clerk to Judge Gerald B. Tjoflat on the U.S. Court of Appeals for the Eleventh Circuit. He graduated magna cum laude from Duke University School of Law with a J.D. and LL.M. in Law and Entrepreneurship, where he was on the Editorial Board of Duke Law Journal, and a member of the Order of the Coif. He earned his undergraduate degree in Corporate Strategy and Entrepreneurship from Vanderbilt University. Grace W. Knofczynski represents both plaintiffs and defendants in complex civil litigation at the trial and appellate levels and in administrative proceedings.  Before joining the firm in 2017, Grace served as a law clerk to Judge A. Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit.  She graduated summa cum laude from the University of Pennsylvania Law School, where she was a member of the Order of the Coif and received the Peter McCall Prize for the highest GPA for the three-year J.D. course.  She also served as an editor of the University of Pennsylvania Law Review and participated in the Supreme Court Clinic.  Grace graduated magna cum laude from the University of Tulsa with degrees in biochemistry and philosophy.  Daniel S. Severson litigates complex civil cases in state and federal trial and appellate courts throughout the country.  He has represented clients in a dozen certiorari and merits stage appeals at the U.S. Supreme Court and argued cases before two federal courts of appeals.  Daniel successfully reinstated civil rights claims as court-appointed pro bono counsel in Shaw v. Foreman, 59 F.4th 121 (4th Cir. 2023).  Before joining the firm in 2017, he served as a law clerk to Judge Allyson Kay Duncan on the U.S. Court of Appeals for the Fourth Circuit.  Daniel graduated cum laude from Harvard Law School, where he was Editor-in-Chief of the Harvard International Law Journal and received the Myer Dana and Etta Dana Scholarship and the Dwight D. Eisenhower Scholarship.  Daniel also holds a Master in Public Policy from Harvard University and was awarded Harvard University’s Presidential Public Service Fellowship for work at the U.S. Department of Defense.  He has served as a foreign affairs analyst at the U.S. Department of State and a Fulbright Scholar in Taiwan.  Daniel graduated from Bard College with degrees in political studies and French horn performance. Lillian V. Smith represents both plaintiffs and defendants in complex civil litigation and has substantial experience trying high-stakes matters for clients in both federal and state courts.  Before joining the firm in 2017, Lillian served as a law clerk to Judge Roger L. Gregory on the U.S. Court of Appeals for the Fourth Circuit.  She graduated summa cum laude from Brooklyn Law School, where she was a Carswell Merit Scholar, an Edward V. Sparer Public Interest Fellow, and Editor-in-Chief of the Brooklyn Law Review.  Lillian earned her undergraduate degree with High Distinction from the University of Virginia. Kellogg Hansen is a preeminent trial and appellate litigation firm founded on the idea that talent, creativity, and hard work achieve the best results for clients.  Formed in the spring of 1993 by law school classmates Michael Kellogg, Peter Huber, and Mark Hansen, our firm has grown over the past 30 years – with each year proving that our founding principle holds true.  Today, Kellogg Hansen has more than 90 attorneys, including 41 partners, and boasts an extensive record of success for our clients.   ..

April 27, 2023— A D.C. Circuit panel refused to revive a case from brought on by 46 States, the District of Columbia, and Guam which accused Facebook parent company Meta Platforms of monopolizing social networking through “buying or burying” would-be competitors. The States’ Complaint alleged that Facebook adopted policies that prevented competing social platforms from accessing Facebook\'s suite of software tools called \"Facebook Platform.\" The Complaint claimed that these policies resulted in a sudden loss of functionality for competing apps, leaving them \"broken or buggy,\" but Facebook removed these policies in 2018. The Complaint was filed in December 2020 by both the States and the Federal Trade Commission. As such, the panel affirmed the States waited too long by filing a case targeting acquisitions that occurred several years before. Meta has been integrating the services and changing its own products in accordance with the deals and acquisitions. This is a significant refusal-to-deal case and an authoritative opinion from the D.C. Circuit in regard to laches and state sovereigns. It is also an important case in looking to the future of tech, as the panel stated in the Opinion, “the industry [,] . . . even on the States’ allegations, has had rapid growth and innovation with no end in sight.”  Meta Platforms is represented by attorneys from Kellogg Hansen: Aaron Panner, Mark Hansen, Leslie Pope, and Alex Parkinson. Read the full article here. ..

March 30, 2023— A U.S. judge has dismissed a lawsuit against Meta Platforms Inc, formerly known as Facebook, which alleged that its social media business drove a photo software startup, Phhhoto Inc, out of business in violation of federal antitrust law. The lawsuit, filed by Phhhoto Inc in 2021, claimed that Meta\'s Facebook aimed to \"crush\" the photo-sharing application, asserting itself as an \"innovative nascent competitor.\" Phhhoto accused Meta of degrading the quality of its content and app performance and misleading consumers by utilizing its control over critical infrastructure. U.S. District Judge Kiyo Matsumoto in Brooklyn, New York, dismissed the lawsuit, stating that Phhhoto failed to bring its claims within the relevant statute of limitations. Matsumoto emphasized that despite Phhhoto\'s extensive complaint, it did not provide sufficient facts to cure the untimeliness of its federal claims. The court also declined Phhhoto\'s request to refine its case and file another complaint. Meta spokesperson termed the lawsuit as \"meritless\" in a statement. Facebook denied engaging in any anticompetitive behavior. The dismissal of the lawsuit marks a legal victory for Meta Platforms Inc in its ongoing battle against antitrust allegations. While Phhhoto\'s claims were dismissed on procedural grounds, the broader debate around competition in the tech industry continues to evolve, with regulatory scrutiny intensifying on major players like Meta. For Meta: Aaron Panner of Kellogg Hansen Todd Figel & Frederick Read the full article here. ..

March 14, 2023— Join Kellogg Hansen partner Michael Guzman for a complimentary panel, “Mass Torts and Litigation Funding, hosted by the Litigation Finance Journal. This 1-hour audio-only event will be held on Thursday, March 23rd at 2pm ET. A diverse panel of industry leaders will cover issues including: How claims are originated, marketed, financed and underwritten; Plaintiff and defense-side strategies and tactics; The impact of ABS regulation; And, answer questions from the audience. ..

Settlement agreement includes injunctive relief that will ensure Sutter competes on price and quality. San Francisco, Calif. | August 27, 2021— Today the Superior Court of California County of San Francisco approved the settlement resolving the antitrust class action that alleged that the Sutter Health hospital system leveraged its market power to engage in anticompetitive conduct, insulate itself from competition, and charge inflated prices. The case settled in 2019 when Kellogg Hansen partner Daniel Bird was minutes from giving the opening statement.  It has been heralded as a landmark case in the effort to take on inflated healthcare prices.  In reporting on the settlement, The New York Times described the lawsuit as \"a fresh legal attack on health systems accused of using their size to thwart competition\" that has been \"highly anticipated by both hospitals and health insurers.\" (The New York Times, \"Sutter Health to Pay $575 Million to Settle Antitrust Lawsuit,\" December 20, 2019.)  “This settlement shows employers and unions have the ability to level the playing field and stop the anticompetitive practices of dominant hospital systems that are driving up the cost of healthcare and lowering wages for millions of employees across the country,” Mr. Bird said following final approval of the settlement.  “We are incredibly proud of the results and thankful to the Court for its role in ensuring a fair and just process in this monumental case.” Kellogg Hansen was joined in the case by counsel from the California Attorney General’s Office, as well as co-counsel Pillsbury & Coleman, LLP; Farella Braun + Martel LLP; Cohen Milstein Sellers & Toll PLLC; and McCracken, Stemerman & Holsberry, LLP. Background on the Settlement The settlement agreement requires Sutter to pay $575 million to class members and to implement specific changes to its practices for at least ten years under the supervision of a court-appointed monitor.  The settlement agreement has eight key features regarding Sutter’s conduct: Prevents Sutter from unreasonably restricting the ability of insurers to create narrow or tiered networks or otherwise to incentivize patients to choose non-Sutter providers.  Prevents Sutter from using “must have” providers to require insurers to include unwanted Sutter providers in their networks, and from conditioning the participation of “must have” providers “on the tier in which the Insurer places them.”  Limits Sutter’s out-of-network rates for out-of-network trauma care, for out-of-network emergency-room care, for charges for Sutter physicians providing emergency-room non-trauma care, and for certain other charges.   Allows insurers to provide self-insured payers with pricing terms and claims data, and allows enrollees to have access to pricing, quality, and/or cost information concerning Sutter providers.  Preserves Sutter’s ability to engage in discounting and generally allows Sutter to offer lower prices for bundles of providers as long as a standalone price is also offered separately for those providers subject to certain exceptions. At the same time, it also provides procedural safeguards to ensure that Sutter’s use of bundled pricing does not prevent health plans from excluding certain Sutter providers from their networks. Limits Sutter’s conduct with respect to insurers’ ability to offer Centers of Excellence.  Those limitations preserve health plans’ ability to exclude Sutter providers from Centers of Excellence programs and to remove Sutter providers that fail to meet pre-disclosed criteria.  Prevents Sutter from enforcing “provisions in prior, existing, or future contracts with Insurers that violate or are inconsistent with the terms of [the settlement] or promulgate in future contracts terms that violate or are inconsistent with the terms of [the settlement].”  Installs a court-appointed monitor, who will ensure compliance with the settlement.  Case Caption:  UFCW & Employers Benefit Trust v. Sutter Health, No. CGC 14-538451 (Cal. Super. Ct.). ..