Howard Ullman

Of Counsel

San Francisco


Read full biography at www.orrick.com
Howard Ullman focuses his practice on competition and antitrust law, trade regulation, unfair competition, and class action and complex litigation issues.

Howard has extensive experience advising on and litigating Section 1 and Section 2 issues, distribution law and distribution system issues, competitor collaborations, joint ventures, pricing issues, non-price restraints and dealer termination issues.

Howard routinely addresses and counsels on the antitrust/intellectual property interface. He regularly counsels companies on competition issues, including Robinson-Patman Act (price discrimination) issues and market concentration issues. He has worked on a number of Cal. Bus. and Prof. Code Section 17200 (unfair competition) litigations. He has also worked on a number of antitrust-healthcare related matters, including mergers and acquisitions.

Currently, Howard represents Delta Dental of California and other Delta Dental entities in several litigations, including the In re Delta Dental Antitrust Litigation, a multi-district litigation brought by a putative nationwide class of providers challenging the structure of the Delta Dental system throughout the United States.

Howard represents Nanya Technology Corporation and Nanya Technology Corporation USA in the national DRAM antitrust price-fixing cases, one of the largest price-fixing cases in recent years. Other price-fixing experience includes representation of a defendant in the DRAM antitrust price-fixing litigation and a large purchaser in connection with the SRAM antitrust price-fixing litigation, and representation of companies in alleged school milk and paint pigment cartels.

Howard has worked on antitrust cases in the life insurance industry and for Microsoft in connection with intellectual property issues. He defended a supplier of industrial equipment (commercial scales) and a major grocery store chain in connection with claims of below-cost pricing in the retail gasoline industry. He also defended a Section 2 case for a pool products manufacturer that resolved favorably.

Clients Howard has previously advised on antitrust matters include PG&E Corporation, Equifax, Dow AgroSciences, Boiron, Fujifilm, Fortress Investment Group and One Technologies, among others. 

Howard also has experience in the defense of Proposition 65 cases alleging consumer exposures to cadmium, lead, mercury and benzo(a)pyrene. He also has briefed and argued numerous appeals in state courts and in the Ninth Circuit. In 2004, he briefed and successfully argued a case of first impression in the Washington Supreme Court concerning the enforceability of arbitration provisions. 

He formerly served as an adjunct instructor of law at the University of Cincinnati College of Law and has spoken on the topics of antitrust and intellectual property at the University of California Hastings College of Law and at the Santa Clara University Law School.

Howard frequently writes on antitrust issues and often is quoted or interviewed in national media. He also has conducted a number of antitrust law webinars and has frequently spoken before the American Bar Association, the California Bar Association, the Ohio Bar Association and the Cincinnati Bar Association.

Posts by: Howard Ullman

Does California’s Ban on Non-Competes Apply to Business Agreements? The California Supreme Court May Weigh In Shortly.

The Ninth Circuit recently certified a question to the California Supreme Court regarding the scope of California Business & Professions Code Section 16600.  As TSW readers are likely aware, Section 16600 states that “[e]very contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.”  Pursuant to this statute, California courts have struck down a number of restrictive covenants in contracts with employees in California, including non-compete provisions, customer non-solicit provisions, and certain employee non-solicit provisions.  The Ninth Circuit now wants to know whether the statute should apply to an agreement between two businesses.  The Supreme Court’s answer may have significant effects on business agreements and collaborations in or involving California. READ MORE

RICO Killer: DTSA Non-Retroactivity Wipes Out Racketeering Claim Based on Trade Secret Theft

On May 11, 2016, the U.S. Defend Trade Secrets Act (DTSA) created a federal remedy for trade secret misappropriation and added trade secret theft as an act that can form a predicate for Racketeering Influenced and Corrupt Organizations Act (RICO) violations.  Since the DTSA’s enactment, a number of courts have held that the DTSA does not apply retroactively to misappropriation occurring prior to enactment unless there is continuing use (i.e., an act constituting misappropriation after the DTSA’s enactment despite the acquisition occurring pre-enactment).  Recently, a court in the Northern District of California found the same to be true for RICO claims predicated upon misappropriation occurring prior to the DTSA’s enactment.  In Eli Attia v. Google, the court dismissed with prejudice plaintiff’s fifth amended complaint alleging RICO violations based on criminal trade secret theft and misappropriation that occurred in 2011 and 2012. READ MORE

In Hawaii, “Aloha” May Mean Both Hello and Goodbye, But When Employees Leave, Who Owns the Customer Relationships?

As we’ve observed over the years, when addressing trade secrets claims based on customer lists, courts have landed all over the place. These cases involve difficult questions such as when an employee develops relationships on behalf of Company A but then leaves for Company B, who “owns” those relationships?

A recent federal district court decision from the District of Hawaii, WHIC LLC dba Aloha Toxicology v. Nextgen Labs, Inc., offers an example of how the severity of the alleged misconduct may enable the employer to prevail, even if it can make only a marginal showing on the existence of a trade secret. On September 17, 2018, the court granted the plaintiff drug testing company’s request for a preliminary injunction, requiring, among other things, its competitor to stop servicing certain former clients of the plaintiff. READ MORE

OPEN SECRETS: Can Business Methods Based on Blockchain Technology Constitute Trade Secrets?

Several months ago, we reported on the potential to protect trade secrets by encrypting information using blockchain technology.  Then, earlier this month, we reported on an order out of the Southern District of California involving “CryptoKitties,” a decentralized application (or “DApp”) built on the Ethereum blockchain (using the ERC721 protocol) that allows users to securely buy, sell, trade, and breed genetically unique virtual cats.

While the potential to protect trade secrets using blockchain technology is clear, the reasoning in the CryptoKitties order raises questions regarding whether blockchain technology could constitute a trade secret in and of itself or when combined with other concepts or business methods pursuant to Federal and California law.

READ MORE

Seedy Business: Chinese Scientist Sentenced to Ten Years for Stealing Proprietary Rice Seeds

In 2013, U.S. Customs and Border Protection agents caught researchers attempting to smuggle a $75 million trade secret from the United States to China.  Unlike the trade secrets we usually discuss, the trade secrets in tow were rice seeds.  But not just any rice seeds:  these valuable seeds were genetically modified to create proteins used to treat gastrointestinal disease, antibiotic-associated diarrhea, hepatic disease, osteoporosis and inflammatory bowel disease.  READ MORE