Last September, we discussed the U.S. Court of Appeals for the Second Circuit’s opinion in In re Vitamin C Antitrust Litigation vacating a $147 million judgment against Chinese vitamin C manufacturers based on the doctrine of international comity. That case stemmed from allegations that the defendants illegally fixed the price and output levels of vitamin C that they exported to the United States. In reversing the district court’s decision to deny the defendants’ motion to dismiss, the Second Circuit held that the district court should have deferred to the Chinese government’s explanation that Chinese law compelled the defendants to coordinate the price and output of vitamin C.
Richard S. Goldstein, a Partner in Orrick’s Litigation Division, is based in the Firm's New York office.
"Highly regarded" by clients and peers alike, according to Legal 500, Rick represents some of the world’s leading companies in federal and state antitrust litigation and investigations, complex commercial litigation, and securities litigation.
Having spent part of his career in-house at Merck & Co., Inc., and as deputy general counsel of DoubleClick Inc., Rick has deep experience as a litigator from the perspective of both inside and outside counsel.
Rick has worked on several of the most prominent antitrust cases in recent years, including representation of a major software company in its successful defense against claims that it misused its IP to gain an illegal monopoly, representation of one of the largest vitamin manufacturers in China in multi-district class action concerning an alleged vitamin C industry cartel (the first antitrust case ever brought against Chinese defendants in a U.S. court), and representation of a global pharmaceutical company in nationwide litigation challenging industry pricing practices.
Rick’s commercial and securities litigation experience includes regular representation of a well-known investment bank in deal-related litigation; representation of a hedge fund in an international arbitration that resulted in a $50 million award for his client; securing dismissal of all claims against a Big Four auditor in securities litigation; defending board members of a land-holding corporation against shareholder claims of breach of fiduciary duty; and defending trustees of a coal company trust in a dispute concerning 27,000 acres of coal rights.
The New York State Bar Association designated Rick a 2014 Empire State Counsel for his pro bono representation of a domestic violence victim in immigration proceedings.
Rick's representative Litigation Engagements
- Represent Microsoft Corporation in federal litigation against world's largest smartphone manufacturer concerning cross-licensing agreement.
- Represent Aland (Jiangsu) Nutraceutical Co., one of the largest vitamin manufacturers in China, in its defense of claims that it fixed the price of vitamin C exported to the United States. This complex multi-district litigation is the first antitrust case brought against Chinese companies in a U.S. court.
- Lead counsel for major pharmaceutical company in state Attorney General antitrust investigation. Investigation resulted in finding of no wrongdoing.
- Defense of Microsoft Corporation in federal antitrust litigation brought by a foreign marketer of operating system “sharing” software, alleging that Microsoft misused its IP to monopolize certain markets. Dismissal affirmed by U.S. Court of Appeals for the Second Circuit.
- Defense of Merck Sharp & Dohme Corp. in nationwide, multi-defendant litigation concerning the use of published Average Wholesale Price (AWP) in Medicaid pharmacy reimbursement formulas.
- Obtained $50 million award for a hedge fund Amaprop Limited in a New York seated ICDR arbitration against a large, publicly traded Indian company.
- Defended of Merck Sharp & Dohme Corp. against allegations of monopolizing the market for an oncology drug in violation of the federal antitrust laws. Dismissal motion granted.
- Lead counsel for a premier investment bank in several litigation matters relating to corporate deals in the technology, health care, entertainment and sports industries.
- Lead counsel for pharmacy benefit manager Medco Health Solutions, Inc., now part of Express Scripts Inc., in federal and state litigation alleging violation of a California statute concerning pharmacy dispensing fee studies. State court litigation dismissed; federal litigation pending.
- Lead counsel for Merck & Co., Inc., in its successful defense of allegations by a secondary pharmaceutical wholesaler that major drug manufacturers and primary wholesalers conspired to refuse to sell to the plaintiff. Dismissal affirmed by the U.S. Court of Appeals for the Second Circuit.
- Defended Ernst & Young Cayman Islands in securities litigation stemming from the collapse of a hedge fund that traded mortgage-backed securities. Summary judgment motion granted.
- Counsel for trustees of a coal trust defending breach of contract and fraud allegations concerning the sale of coal rights to one of the world’s largest energy companies.
- Represented Forest Electric Corp. (a unit of Emcor), the largest electrical contractor in New York City, in federal antitrust litigation brought by contractors not affiliated with a certain labor union.
- Represented Banca Intesa S.p.A. in putative class action litigation alleging that several banks illegally fixed currency conversion fees. Dismissal affirmed by U.S. Court of Appeals for the Second Circuit.
- Represented Visa U.S.A. Inc. in federal and state antitrust litigation brought by consumers and large national retailers challenging certain of Visa’s by-laws and business practices.
Rick's representative Counseling Experience
- Designed regulatory compliance programs for Merck & Co., Inc., and DoubleClick Inc.
- Provided legal risk analysis of competitive intelligence gathering program for a technology company.
- Counseled hedge fund on several strategic investment initiatives.
- Advised periodicals industry trade association directors on antitrust and distribution issues.
- Created outside counsel billing and retention policy for global pharmaceutical company.
- Counseled Auxilium Pharmaceuticals on new product launch and distribution strategy.
- Taught senior management seminars on the legal implications of marketing strategies.
Posts by: Richard Goldstein
In June 2016, China’s State Council issued its Opinions of the State Council on Establishing a Fair Competition Review System During the Development of Market-oriented Review System (“Opinions”). The fair competition review system (“FCRS”) that the Opinions contemplate is designed to protect against the potential abuse of administrative power by Chinese government agencies that could result in anti-competitive effects. In other words, the FCRS is supposed to constrain government activities from unduly influencing market competition, consistent with the prohibition that China’s Anti-Monopoly Law places on such conduct.
The Seventh Circuit’s decision in Motorola Mobility v. AU Optronics–which blocked a U.S. parent’s Sherman Act claim based on its foreign subsidiary’s purchases of a price-fixed product–continues to reverberate throughout federal district courts. A district court in the Sixth Circuit recently followed Motorola Mobility to dismiss a U.S. company’s price-fixing claims based on its foreign subsidiary’s purchases of allegedly price-fixed components that were incorporated abroad into finished goods that the subsidiary then shipped to the United States. In re Refrigerant Compressors Antitrust Litigation, No. 2:09-md-02042, 2016 WL 6138600 (E.D. Mich. Oct. 21, 2016). The district court’s decision demonstrates that, post-Motorola Mobility, defendants have strong arguments in some circuits under the Foreign Trade Antitrust Improvements Act (“FTAIA”) and Illinois Brick to defeat a U.S. parent’s price-fixing claims based on purchases by its overseas subsidiary, especially where that subsidiary is not wholly-owned.
On September 20, 2016, the U.S. Court of Appeals for the Second Circuit issued an opinion in In re Vitamin C Antitrust Litigation, reversing the district court’s eight year-old decision not to grant a motion to dismiss the case, based on international comity. The Second Circuit vacated the $147 million judgment against the two defendants that took the case to trial in 2013, and remanded with instructions to dismiss the complaint with prejudice. The court did not opine on the defendants’ other grounds for dismissal – the foreign sovereign compulsion, act of state, and political question doctrines. In re Vitamin C Antitrust Litig., No. 13-4791 (2d Cir. Sept. 20, 2016).
In 2005, the plaintiffs brought several class action complaints against the major Chinese vitamin C manufacturers, alleging that the manufacturers illegally fixed the price and output levels of vitamin C that they exported to the United States. The cases, which were consolidated in the Eastern District of New York, marked the first time that Chinese companies had been sued in a U.S. court for violation of the Sherman Act.
A court in the Central District of California recently applied the Act of State doctrine to dismiss a complaint against two private companies that are minority owners of a third company, also a defendant, which is majority-owned by the Mexican government. U.S. District Judge Dolly M. Gee held that the relief the plaintiffs sought would require the court to deem the official acts of a foreign sovereign invalid, and that the private entities had standing to invoke the doctrine. Sea Breeze Salt, Inc. et al. v. Mitsubishi Corp. et al., CV 16-2345-DMG, ECF No. 45 (Aug. 18, 2016).
Members of Orrick’s Life Sciences practice with experience addressing pharmaceutical industry antitrust and IP issues recently published an article analyzing the recent decision of the U.S. Court of Appeals for the Federal Circuit in In re Loestrin, No. 14-2071 (1st Cir. Feb. 22, 2016). In that decision—only the second appellate decision applying the Supreme Court’s seminal 2013 decision in FTC v. Actavis , the First Circuit addresses a few of the antitrust issues surrounding so-called “reverse-payment” settlements of patent infringement litigation between branded and generic drug manufacturers. To read the published article, please click here.
On June 17, 2015, the U.S. District Court for the Eastern District of Pennsylvania approved a consent order (the “Consent Order”) between the Federal Trade Commission and defendants Cephalon, Inc. and its parent, Teva Pharmaceutical Industries Ltd., resolved long-running antitrust litigation stemming from four “reverse payment” settlements of Hatch-Waxman patent infringement cases involving the branded drug Provigil®. Pursuant to its settlement with the FTC (the “Consent Order”), Cephalon agreed to disgorge $1.2 billion and to limit the terms of any future settlements of Hatch-Waxman cases. The FTC and its Staff have celebrated and promoted the terms of the settlement as setting a new standard for resolving reverse-payment cases. But their enthusiasm may be more wishful thinking than reality, and their speculation that the agreement may exert force on market behavior does not appear to be supported by a fair assessment of the state of the law. First, the restrictions on Cephalon’s ability to enter into settlements of Hatch-Waxman cases exceed anything a court has ever required, and conflict with settlement terms apparently approved in the U.S. Supreme Court’s seminal reverse-payment decision, Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013). Second, the FTC’s use of disgorgement as a remedy remains controversial and Cephalon, despite initial opposition, might have voluntarily embraced that remedy as part of a strategy to achieve a global resolution of remaining private litigation. We write to put the Consent Order in perspective, so that industry participants can better assess its meaning.
In late May, the U.S. Court of Appeals for the Second Circuit issued the first appellate decision addressing the pharmaceutical industry practice called by some “product hopping”—a two-step process in which a drug approaching the end of its patent term is withdrawn or made less desirable to customers so that patients will switch to a successor product with more exclusivity remaining. In this way, drug manufacturers may seek to protect sales from generic competition. “Product hopping” cases are often analyzed under the antitrust rules developed to assess claims of “predatory innovation” or related conduct, as exemplified by well-known cases involving Microsoft and Kodak. In this article, just published in Law360, lawyers from Orrick’s Intellectual Property and Antitrust groups weigh in on the Second Circuit’s decision, focusing on aspects of the analysis that may not be applicable in different cases and contexts.