On April 27, 2016, Invibio—a supplier of polyetheretherketone (“PEEK”) used in medical implants—agreed to settle charges asserted by the Federal Trade Commission (“FTC”) that its exclusive supply contracts with medical device manufacturers, including some of the world’s largest, violated Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. This consent decree may signal a renewed interest at the agency to scrutinize exclusive contract arrangements. The decree also serves as a reminder that, while exclusive contracts are not per se unlawful, companies that have market power and use exclusive contracts face risks under the antitrust and consumer protection laws.
Antony (Tony) Kim is a partner in Orrick's internationally recognized Cyber, Privacy & Data Innovation practice, which pursues "an aggressive yet practical approach" to data protection and innovation that "meets the needs of both in-house counsel and tech-savvy business clients."
When faced with a cyber crisis, companies call on Tony to help navigate critical legal, risk and reputational landmines. Tony has helped clients respond to hundreds of cyberattacks and data breaches. He has directed forensic investigations, cross-border notifications, and regulatory and private enforcement matters, in connection with incidents involving personal data of employees and customers, including PCI/payment card data, as well as proprietary data and corporate trade secrets, on behalf of private and public companies as well as governmental entities.
Tony has also defended over fifty clients in regulatory investigations and enforcement actions by the Federal Trade Commission (FTC) and State Attorneys General. These matters have involved (i) cyberattacks and data breach incidents, (ii) privacy implications of innovative data use-cases, and (iii) consumer protection issues relating to online and offline sales & marketing and advertising practices -- particularly in the retail e-commerce and fintech/consumer finance industries. Tony draws insights from his regulatory practice to inform his counseling work, where he regularly advises Legal, InfoSec/IT, Product/Marketing, and C-Suite/Board stakeholders on a host of governance, compliance, and risk mitigation strategies.
The National Law Journal named Tony to its 2014 list of D.C. Rising Stars, a 40-under-40 group of "game changing" private, government and public interest attorneys. Based on surveys of senior in-house counsel, Tony was awarded the Client Choice Award by the International Law Office (ILO)/Lexology in 2015, and was named an Acritas Star Lawyer in 2016 and 2017. He is recognized in multiple legal directories, including Chambers-U.S.A., The Legal 500-USA, Benchmark Litigation, Super Lawyers-D.C. Rising Stars, and The Cybersecurity Docket -- which has named Tony to its "Incident Response 30" list of the top IR professionals in the U.S. In 2016, Law360 named Orrick's Cyber, Privacy & Data Innovation practice "Practice Group of the Year" in the data privacy category. In 2019, Chambers USA ranked Orrick's practice in Band 1, and named Orrick the Privacy/Data Security Law Firm of the Year.
Tony serves on the firm's Executive Management Committee.
Posts by: Antony P. Kim
For the first time in its 101-year history, the Federal Trade Commission yesterday issued a policy statement outlining the extent of its authority to police “unfair methods of competition” on a “standalone” basis under Section 5 of the Federal Trade Commission Act. In a terse Statement of Enforcement Principles, the Commission laid out a framework for its Section 5 jurisprudence that was predictably tethered to the familiar antitrust “rule of reason” analysis but also sets forth a potentially expansive approach to enforcement. Indeed, the Commission’s approach could encompass novel enforcement theories premised on acts or practices that “contravene the spirit of the antitrust laws” as well as those incipient acts that, if allowed to mature or complete, “could violate the Sherman or Clayton Act.” Commissioner Ohlhausen’s lone dissent recognizes these potentially disconcerting developments for private industry. READ MORE