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What Now? Unpacking the FTC Non-compete Ban

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The Federal Trade Commission (FTC) just unveiled its final rule, banning non-competes agreements with nearly all U.S. workers. The FTC’s new rule will have far-reaching implications for businesses, should it survive the anticipated legal challenges. 

The Federal Trade Commission (FTC) just unveiled its final rule, banning non-competes agreements with nearly all U.S. workers. The FTC’s new rule will have far-reaching implications for businesses, should it survive the anticipated legal challenges. Whether the final rule will withstand such challenges remains to be seen. In the meantime, companies are left to consider their practices and strategies for preventing unfair competition in light of FTC’s non-compete ban and the growing trend of federal and state lawmakers and regulators seeking to limit the use of non-competes and other restrictions on worker mobility.Join us as we unpack the FTC’s non-compete ban and provide practical steps companies can consider taking now to navigate this rule and the broader trend against non-competes. Topics to be discussed include:<ul><li>Companies and workers covered by the FTC’s final rule;</li><li>Scope of the ban for new and existing non-competes;</li><li>Possible exemptions from the ban, including sale of business non-competes;</li><li>Potential consequences for not complying with the final rule;</li><li>Anticipated legal challenges;</li><li>How the final rule fits into the broader trend against non-competes; and</li><li>Practical strategies for businesses to navigate these trends.</li></ul>We will host two webinars on this topic. Please register for one of the options below. A recording of the webinar will be made available to registrants after the event. <a href="https://www.veracast.com/webcasts/mofo/mcle-programs/whatnowuseu.cfm" target="_blank">Register</a> for Thursday, May 2 @ 9 a.m. (PST)/12 p.m. (EST)/5 p.m. (BST)/6 p.m. <a href="https://www.veracast.com/webcasts/mofo/mcle-programs/whatnowusasia.cfm" target="_blank">Register</a> for Thursday, May 2/Friday, May 3 @ 6 p.m. (PST)/9 p.m. (EST)/9 a.m. (CST)/10 a.m. (JST)<hr>

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases. Eric also represents boards of directors and companies in #MeToo and other sensitive internal investigations and disputes with executives, whistleblower, wrongful termination, discrimination and harassment, and other employment litigation.Eric also advises companies in employment law compliance and transactional matters, including restrictive covenants and other personnel policies and procedures, and employment aspects of mergers and acquisitions throughout the United States and globally.Eric’s recent board of directors and executive dispute matters include: defending a publicly traded UK company in the defense of a wrongful termination suit by the former CEO of its U.S. subsidiary; representing a TSX-traded Canadian company in wrongful termination and other claims alleged by two terminated C-suite executives; represented a publicly traded Japanese investment firm in separation of a C-suite executive; represented a publicly traded Japanese healthcare company in the separation of the CEO and 20+ other U.S. executives, including defense of several wrongful termination and discrimination claims; and represented a publicly traded Fortune 200 technology company in investigation of discrimination and harassment claims against a C-suite executive, who subsequently resigned without incident. Regarding trade secrets and employee mobility issues, Eric represented Uber in its diligence investigation as part of its acquisition of Ottomotto, the autonomous vehicle startup founded by former Google engineers. He then helped lead Uber’s defense of the subsequent patent infringement and trade secrets misappropriation suit, which settled several days into trial in February 2018. In addition to technology companies, Eric has handled similar matters for companies across many industries, including, but not limited to, Williams Sonoma v. Restoration Hardware, International Lease Finance Co. v. Air Lease Corporation, Melaleuca, Inc. v. Shaklee Corporation, and New Century Mortgage v. Encore Credit.Most recently, Eric was recognized by Chambers USA for Labor & Employment, again by Best Lawyers as a leading lawyer in employment law, again by the Daily Journal as one of California’s Top Labor and Employment Lawyers and Top Trade Secrets Lawyers, again by Benchmark Litigation as a Labor and Employment Star, and again named to Law360’s 2023 EA Discrimination Editorial Advisory Board. Eric was elected as a Fellow of the College of Labor and Employment Lawyers in 2021.Eric is committed to advancing diversity, equity, and inclusion at the firm and development of the legal profession generally. Eric has served on the firm’s Diversity Strategy Committee since its inception and is a past co-chair. Eric is a former hiring partner for the Palo Alto office and past member of the firmwide Pro Bono and Litigation Evaluations Committees. Eric serves on the Points Committee for the firm. Eric serves as a partner sponsor for multiple affinity groups at the firm and as a formal and informal mentor to associates around the firm. Eric is a leader in the American Bar Association’s (ABA’s) Labor and Employment (LEL) Section and LEL’s Employment Rights and Responsibilities (ERR) Committee. Eric is serving his second term on the governing Council (Board of Directors) for the LEL Section. Eric serves as co-chair of ERR’s Covenants Not to Compete and Trade Secrets Subcommittee. Eric is a past co-chair of the ABA LEL Annual Meeting Committee, the LEL Section Annual CLE Conference, and ERR’s Alternative Dispute Resolution, Employment At-Will and Collateral Torts, and Worker Dislocation Subcommittees. He also has served on the Planning Committee for the National Employment Law Council’s Annual Conference.For nearly 15 years, Eric has served as a mediator for the Northern District of California’s Alternative Dispute Resolution Program, handling employment discrimination and harassment, wrongful termination, trade secrets and employee mobility, and other employment-related and disability matters.Additionally, Eric is a thought leader in various employment law areas and recognized authority in trade secrets and employee mobility. He serves on the Board of Review for leading BNA treatises Trade Secrets: A State-by-State Survey; Covenants Not to Compete; Employee Duty of Loyalty; and Tortious Interference in the Employment Context. He is author of “Protecting Investment in IP and People” in Today’s General Counsel; “SCOTUS Poised to Resolve Circuit Split on SOX Federal Whistleblower Standard and Other Statutes” in the Daily Journal; “Workplace Bias and Gender Pay Equity in the Silicon Valley” in LJN Employment Law Strategist; “Trade Secrets and the Activision Case: Lessons for Employers and Employees” in the IP Litigator; “Protect Your Investments: Recent Developments in California Law Regarding Non-competition Agreements and Other Restrictive Covenants” in NVCA Today; “Microinequities: Can Bad Behavior Be Actionable?” in National Law Journal; “The When, Who and How of Workplace Investigations” in The Practical Litigator; and “California Raises Bar for Employers Again: Gender Pay Bias Claims Set to Take Off with New Gender Pay Equity and Anti‑Discrimination Law” in Bloomberg BNA Daily Labor Report.Eric is active in community endeavors. He founded and is a former president of the Board of Directors of Hapa Issues Forum, Inc., a nonprofit community organization that addresses issues relating to persons of partial Asian descent. Eric is a past president of the Board of Directors of the Japanese Cultural and Community Center of Northern California. He also is a member of the INROADS Alumni Association, The National Black Lawyers Top 100, the 100 Black Men of the Bay Area, Inc., and he has served as a mentor for students in the Level Playing Field Institute’s IDEAL Scholars Program.A representative sampling of Eric’s key matters is further below.<h4 dir="ltr">Trade Secrets and Employee Mobility Litigation</h4><ul dir="ltr"><li>Defending leading multi-cloud security and application management company in federal court lawsuit by competitor alleging trade secrets misappropriation, various employment-related contract and tort claims, and copyright and trademark violations based on alleged conduct in Russia and California.</li><li>Represented industry-leading enterprise data cloud company in multiple trade secrets and employee mobility lawsuits against former employees and competitor, including obtaining TRO on behalf of client enforcing restrictive covenants against Georgia employee and successfully opposing motions to dismiss and motions to stay in various actions.</li><li>Represented leading shared electric vehicle company in federal court lawsuit alleging against its former head of supply engineering and his new employer trade secrets misappropriation and related claims involving the downloading of thousands of our client’s files upon resignation.</li><li>Represented Springshot in federal court lawsuit to invalidate non-competition agreement that the former employer, Georgia-based INFORM Software, of its newly hired Chief Commercial Officer, sought to enforce to bar the CCO from working for Springshot. </li><li>Represented veterinary orthopedics client in federal court lawsuit against the founder of an acquired company over the enforcement of restrictive covenants, resulting in entry of a permanent injunction enforcing our client’s non-compete agreement against the founder.</li><li>Represented leading cloud computing and virtualization technology company in breach of duty and breach of contract lawsuit against departed executive.</li><li>Represented Fortune 50 corporation in trade secret and employee- and customer-raiding lawsuit against former co-founder and top executives who launched a competing business that achieved a nearly $1 billion IPO.</li><li>Represented international virtualization software company in trade secret misappropriation and employee- and customer-raiding lawsuit against several former executives.</li><li>Represented North American provider of IT solutions and services in series of lawsuits across the United States to combat alleged employee- and customer-raiding activities by competitor.</li><li>Defended investment bank in lawsuit involving enforceability of departing executive’s post-termination non‑competition agreement.</li><li>Represented pharmaceutical company in trade secret misappropriation lawsuit against former finance employee.</li><li>Represented international video game maker in trade secret misappropriation lawsuits against former executives and new competing business.</li><li>Defended national mortgage company in trade secret misappropriation and employee- and customer-raiding lawsuit filed by competitor.</li><li dir="ltr">Defended North American home furnishings retail chain in trade secret misappropriation and employee‑raiding lawsuit filed by competitor.</li></ul><h4 dir="ltr">Board of Directors, Investigations, and Whistleblower and other Employment Dispute Matters</h4><ul><li>Represented board of directors of NASDAQ-traded technology company in negotiation of CEO employment agreement.</li><li>Represented board of directors of publicly traded energy company in negotiation of separation agreement with CEO in context of proxy fight with activist investor.</li><li>Represented Fortune 500 semiconductor company in negotiation of separation agreement of incumbent CEO and employment agreement with new CEO.</li><li>Represented Japanese exchange listed healthcare company in the separation of its CEO and 20+ other U.S. executives, including defense of several wrongful termination and discrimination claims.</li><li>Represented Japanese exchange listed investment firm in separation of a C-suite executive.</li><li>Representing Canadian exchange listed company in wrongful termination and other claims alleged by two terminated C-suite executives.</li><li>Defending U.K. exchange listed company in the defense of federal court wrongful termination suit filed by the former CEO of its U.S. subsidiary.</li><li>Represented publicly traded Fortune 200 technology company in investigation of discrimination and harassment claims against C-suite executive, who subsequently resigned without incident.</li><li>Obtained complete defense award on behalf of technology company in suit filed by former co-founder alleging that the company failed to repurchase upon termination restricted stock valued at more than $5 million.</li><li>Defended pre-IPO biotech company in wrongful termination suit by former co-founder and CEO terminated by board of directors.</li><li>Advised board of directors of leading IT infrastructure company in termination of CEO and CFO of U.S. subsidiary after misconduct investigation and represented board of directors in follow-on wrongful termination claims by CEO and CFO.</li><li>Investigated claims by in-house lawyer that public technology company executives engaged in sexual harassment and national origin discrimination and represented company in successful pre-litigation resolution of claims.</li><li>Investigated and advised board of directors of pre-IPO biotech company on #MeToo allegations regarding top executives.</li><li>Represented publicly traded pharmaceutical industry company in investigation and resolution of whistleblower claims by CFO.</li><li>Obtained complete dismissal in favor of publicly traded gig economy company of discrimination and wrongful termination claims by alleged whistleblower engineer.</li><li>Obtained complete walkaway voluntary dismissal of sexual harassment and discrimination claims by former accounting employee against venture capital and property management company after years of litigation.</li><li>Represented publicly traded technology company in investigation and resolution of alleged revenue and expense reimbursement irregularities involving top sales executive.</li><li>Defended venture capital fund in pregnancy discrimination and restrictive covenant lawsuit by former partner.</li><li>Defended leading corporate social responsibility company in whistleblower and employment discrimination suit filed by former finance executive.</li><li>Defended international laser and fiber-optics company in suit alleging fraud regarding stock options.</li><li>Defended international video game maker in whistleblower and employment discrimination suit filed by former executive.</li><li>Represented top human resources executive officer in discrimination and retaliation lawsuit premised on alleged toxic workplace culture.</li></ul><h4 dir="ltr">Representative Non-Litigation and Transactional Matters</h4><ul><li>Represented founder of private technology company in negotiation of employment agreement with board of directors.</li><li>Represented CEO in negotiation of executive employment agreement with publicly traded biotech company.</li><li>Represented former Managing Partner in separation from iconic Silicon Valley venture capital firm.</li><li>Represented pre-IPO company CEO/Founder in investigation and defense of potential securities fraud claims.</li><li>Represented minority-shareholder executives in negotiation of employment agreements with foreign buyer of company.</li><li>Revised nationwide restrictive covenant agreements for publicly traded technology company.</li><li>Advised leading venture capital fund on restrictive covenants strategy for fund managers.</li><li>Advised leading technology investment fund in worldwide reduction in force.</li><li>Advised leading digital operations management company in worldwide reduction in force.</li><li>Represented clients in employment aspects of buy-side and sell-side M&A transactions across the world with deal sizes ranging from several billion to millions of dollars.</li></ul><h4 dir="ltr">Wage-and-Hour Class and Representative Actions</h4><ul><li>Defended construction company in purported class action for failure to comply with California wage laws.</li><li>Defended international technology company in collective action alleging failure to accurately pay wages to technicians across the United States.</li><li>Defended national restaurant chain in class action regarding alleged failure to comply with California uniform and other wage laws for 10,000 employees.</li><li>Defended international engineering and construction company in class action regarding alleged failure to comply with California overtime laws.</li><li>Defended landscaping company in class action regarding alleged failure to comply with California meal- and rest-period laws.</li><li>Defended individual directors of bankrupt technology company in suit by former employees for unpaid wages.</li></ul>

Eric Tate

Co-Chair, Global Employment and Labor Practice

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as:<ul><li>OFCCP compliance</li><li>Creating and implementing affirmative action plans</li><li>Defending OFCCP audits and onsite investigations</li><li>Conducting mock pay equity audits</li><li>Drafting and developing business ethics policies and programs</li><li>Complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act</li></ul>He is also well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation.Andrew routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters. Andrew regularly advises clients on:<ul><li>EEO and diversity</li><li>Wage-and-hour</li><li>High-stakes employee terminations</li><li>Executive disputes</li><li>Reductions in force</li><li>Leaves of absence</li><li>Accommodations</li><li>Pay equity</li><li>Employee selection processes</li><li>Employment testing</li><li>Contingent workers </li><li>Policy development and application</li></ul>In addition, Andrew advises on a wide range of employment transactional matters, such as drafting and negotiating executive employment agreements and separations, overseeing internal investigations and audits of employment issues, and conducting employment diligence on mergers, acquisitions, and other corporate transactions.He has significant experience advising technology and other companies on protecting against the loss of trade secrets, proprietary information, and current and prospective clients. Andrew also represents employers in matters involving union avoidance, negotiating and drafting collective bargaining agreements, handling union grievances, and avoiding and defending unfair labor practice charges.<h4>Federal Contractor Experience</h4><ul><li>Defended numerous OFCCP audits, including closing audits with a finding of no violations against a major accounting firm, a language learning software provider, and a technology consulting company</li><li>Obtained complete dismissal of a significant OFCCP complaint against a large aerospace and space transport company</li><li>Performed mock SCA audits for various contractors</li><li>Led labor and employment diligence for $1 billion acquisition of international security firm</li><li>Developed and overhauled numerous affirmative action plans and EEO training programs</li><li>Analyzed subcontractor status for numerous companies to determine OFCCP coverage, including for a large semiconductor manufacturer</li><li>Conducted E-Verify and I-9 audit for a national dispute consulting contractor</li><li>Performed “single entity” analysis for one of the largest mutual life insurance companies</li><li>Conducted pay equity audits for contractors, including for a software and consulting company</li><li>Obtained DOL approval under the SCA for self-funded fringe benefit program of an aviation and space contractor</li><li>Advised a multinational package delivery company on establishing program to conduct denied party screening under lists maintained by OFAC and BIS while minimizing risk of discrimination claims and compliance with background check laws</li><li>Advised a global coffee and coffeehouse chain on establishing hiring processes to avoid discrimination claims while complying with ITAR/EAR</li><li>Developed business ethics policies and programs for a large pharmaceutical manufacturer</li></ul><h4>Other Representative Experience</h4><ul><li>Defended education association against claims by former employers of two executives alleging breach of restrictive covenants and theft of trade secrets and confidential information</li><li>Obtained preliminary injunction enforcing a noncompetition agreement and other restrictive covenants against a former senior sales executive of a technology firm</li><li>Led internal investigation of sexual harassment claims against COO of a public real estate firm</li><li>Advised a global food manufacturer in avoiding litigation while terminating employee threatening whistleblower claims based on employer’s confidential information</li><li>Defended former senior executives of a global manufacturer of performance fabrics against allegations of misappropriation of trade secrets and breach of noncompetition agreements</li><li>Advised an entrepreneur in creating startup while minimizing risk of his former employer pursuing enforcement of restrictive covenants </li><li>Assisted a property management firm in navigating internal investigation of whistleblower claims related to alleged fraud, ethics violations, and sexual harassment by senior executive</li><li>Won motion for reconsideration convincing court to grant summary judgment in gender discrimination and retaliation case against a large DC employer </li><li>Obtained terminating sanctions and attorneys’ fees and costs for discovery violations in a discrimination suit against a large utility provider </li><li>Obtained favorable arbitration decision for a software company in claims by former executive alleging breach of his employment agreement</li><li>Advised a company board in navigating termination of CEO and successfully defended CEO’s breach of contract and wage claims</li><li>Defended numerous EEOC charges, including against a national event planner, a multinational professional services company, and an operator of research and development centers for the government</li><li>Defended and settled over 30 unfair labor practice charges against a national call center operator</li><li>Negotiated new collective bargaining agreements with four separate unions in bankruptcy of an international maritime shipping company</li><li>Awarded pro bono achievement award for defending a non profit in litigation and several administrative audits before the EEOC and state agencies related to a former employee’s whistleblower and discrimination claims, including defending multiple onsite investigations</li><li>Oversaw validation of pre-employment tests for a national food service distributor</li></ul>Prior to joining MoFo, Andrew was a human resources manager for an Inc. 500 company, ranked as one of the fastest-growing private companies in the United States.Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.<h4>Rankings</h4><ul><li>Recommended for Government Contracts – Legal 500 US 2019 </li></ul>

Andrew Turnbull

Alex Okuliar is Co-Chair of Morrison Foerster’s Global Antitrust Law Practice Group. He is the former Deputy Assistant Attorney General for Civil Antitrust Enforcement at the U.S. Department of Justice and a former advisor at the Federal Trade Commission. His practice includes litigation, merger reviews, and government investigations.“The ‘excellent’ Alex Okuliar has a broad practice taking in merger clearance, conduct investigations and antitrust litigation. He is particularly noted for his work on behalf of media and technology companies.” – Chambers USA, DC AntitrustAlex represents clients in lawsuits in federal and state courts around the United States. He has helped clients succeed in a wide range of cases, including class actions and private party disputes alleging price fixing, monopolization, group boycotts, market allocation, and tying.He also regularly represents clients in merger and conduct investigations by the U.S. Department of Justice, the Federal Trade Commission, state Attorneys General, and foreign agencies, including the European Commission and the UK Competition and Markets Authority. He has guided clients through the complex global merger clearance process and litigated agency merger challenges through trial.Alex has a history of notable agency leadership experience. He was appointed the Deputy Assistant Attorney General for Civil Enforcement in the DOJ Antitrust Division in 2020 and in that role oversaw more than 150 career staff, dozens of complex merger investigations, and an industry-wide review of online platforms. He was also one of the principal architects and leaders of the agency’s landmark search monopolization case against Google (U.S. v. Google). Earlier in his career, Alex served as an attorney advisor to former FTC Commissioner Ohlhausen and a trial attorney in the DOJ Antitrust Division. Prior to his service as Deputy AAG, Alex was a partner at another international law firm.Alex is a thought leader and a frequent writer and speaker. He currently serves as the co-chair of the ABA Antitrust Law Section’s Joint Conduct Committee, and is the former chair of the Section’s Intellectual Property Committee and co-chair of the 2023 Antitrust Fall Forum on Artificial Intelligence. He is also a member of the Corporations, Securities & Antitrust Executive Committee of The Federalist Society for Law and Public Policy Studies. Alex serves on Morrison Foerster’s AI Steering Committee and Life Sciences Steering Committee.Alex has also edited or contributed to leading antitrust treatises and handbooks, including Antitrust Law Developments (7th edition), the Premerger Notification Practice Manual (3rd and 4th editions), and the Intellectual Property and Antitrust Handbook (2nd edition).Before law school, Alex co-founded and sold an online technology company.<h4>Representative Experience</h4><h5>Merger Review and Litigation</h5>Alex has worked on nearly a thousand deals across many industry sectors over his roughly 25-year career. He has handled dozens of second requests and litigated merger cases through trial. Clients appreciate the range and depth of experience he can offer them. As one client noted in The Legal 500 U.S. Antitrust: Merger Control guide, “Alex Okuliar brings a deep knowledge of the law and economics of antitrust, and the ability to frame that knowledge within the unique circumstances of the digital economy.”His notable public representations include:<ul><li>Microsoft in many deals, including its $7.5 billion acquisition of GitHub, an AI-powered developer platform.</li><li>Unity Software Inc. in multiple transactions, including its all-stock $4.4 billion acquisition of ironSource and the concurrent $1 billion PIPE investment in the company by Silver Lake and Sequoia, and in response to the related $13.6 billion unsolicited acquisition proposal from AppLovin Corporation.</li><li>Hispanic Broadcasting Company in its $3 billion sale to Univision, which closed with a settlement after a year-long DOJ Second Request investigation.</li><li>AVG Technologies in its $1.3 billion sale to Avast Software, maker of antivirus and security software.</li><li>ShowingTime, a leading proptech company, in its $500 million sale to Zillow, which cleared successfully without conditions after a Second Request investigation by the FTC.</li><li>Propel Media in federal court to defend against the FTC’s challenge to its proposed acquisition by IQVIA.</li><li>Enterprise Products Partners in multiple deals, including its $13 billion acquisition of GulfTerra, which closed with limited divestitures after an FTC Second Request investigation.</li><li>Nova Chemicals in its joint venture to build a $1.7 billion ethylene cracker and a polyethylene plant in Texas with Borealis and Total.</li><li>Meade Pipeline Co. in the $1.37 billion sale of its natural gas pipeline system to NextEra Energy Partners.</li><li>Sugar Foods Corporation in its sale to Pritzker Private Capital.</li><li>Infineon Technologies AG in the sale of its HiRel DC-DC converter business to Micross Components, Inc.</li><li>Cisco in multiple matters, including its $600 million acquisition of SD-WAN provider, Viptela.</li><li>Kindred Biosciences in its approximately $450 million sale to Elanco Animal Health.</li><li>Otsuka Pharmaceuticals in its roughly $250 million acquisition of ADHD-drug developer, Neurovance.</li></ul>While serving at the DOJ and FTC, Alex investigated or oversaw the review of hundreds of transactions, including the $180 billion merger of United Technologies and Raytheon, NASDAQ’s proposed $11 billion acquisition of NYSE Euronext, Deutsche Boerse’s proposed $10 billion acquisition of NYSE Euronext, Waste Management’s $4.6 billion acquisition of Advanced Disposal Services, Liberty Latin America’s $1.95 billion purchase of AT&T Puerto Rico, Google’s $2 billion acquisition of Fitbit, Google’s $700 million acquisition of ITA Software, Reading Health System’s proposed acquisition of Surgical Institute of Reading, and Universal Health Service’s acquisition of Ascend Health Corporation, among many others.<h5>Antitrust Conduct Litigation</h5>Alex has represented clients in some of the most significant antitrust cases of the last twenty years, including government enforcement, class actions and private party disputes, and has represented both plaintiffs and defendants. As The Legal 500 U.S. Antitrust: Civil Litigation/Class Actions Defense guide noted, “Alex Okuliar litigates cutting-edge antitrust topics such as platform competition and data collection as well as media cases.” His thought leadership on class action issues has also been cited by courts (See In re GPU Antitrust Litigation, 253 F.R.D. 478, 492–3 (2008)).His current representations include:<ul class="li-text-orange"><li class="li-text-orange">Avadel, a leading biopharmaceutical company, in Jazz Pharmaceuticals v. Avadel CNS Pharmaceuticals (D. Del.), an antitrust counterclaim alleging monopolization and other unlawful conduct by Jazz Pharmaceuticals. Avadel alleges that Jazz improperly listed a distribution system patent in the FDA’s Orange Book to extend its monopoly power over certain narcolepsy drugs. The New York Times coverage of the case can be found on the <a href="https://www.nytimes.com/2023/02/28/business/jazz-narcolepsy-avadel-patents.html" target="_blank">The New York Times</a> website. The FTC also filed an <a href="https://www.ftc.gov/news-events/news/press-releases/2022/11/ftc-amicus-brief-challenges-abuse-fda-orange-book-listing-procedures-block-drug-competition" target="_blank">amicus brief</a> explaining to the Court the harm to competition from such listings.</li><li class="li-text-orange">Icon, a real estate development company, in Icon v. Southwest Regional Council of Carpenters, et al. (C.D. Cal.), a federal antitrust lawsuit against two unions and other co-conspirators. Icon alleges the unions are attempting to monopolize certain labor markets, among other unlawful conduct, by submitting sham environmental petitions to slow or block new real estate developments and then offering to abandon those petitions in exchange for hiring of union labor. See the press coverage in <a href="https://www.bloomberglaw.com/bloomberglawnews/antitrust/XEJFH0U8000000?bna_news_filter=antitrust#jcite" target="_blank">Bloomberg</a>.</li><li class="li-text-orange">Provi, an e-commerce platform, in Tiz (d/b/a Provi) v. Southern Glazer’s and Republic National Distribution Co. (N.D. Ill.), an antitrust claim alleging monopolization, tying, and group boycott, among other conduct, by the nation’s largest alcohol distributors to eliminate new and innovative online marketplace competition from Provi. See coverage of the case by <a href="https://www.politico.com/news/2022/03/29/alcohol-ordering-antitrust-suit-00021383" target="_self">Politico</a>.</li><li>A large national consumer products company (E.D. Pa) in its defense against a monopolization case alleging deceptive conduct before a standard-setting organization and patent holdup related to an alleged standard essential technology patent.</li><li>A national financial institution in its defense against state law claims of unfair competition in connection with a business transaction.</li></ul>Some of his other clients include:<ul><li>Asiana Airlines in In re Korean Air Lines Co. Antitrust Litigation (C.D. Cal.) against an MDL class action alleging price-fixing of passenger air fares. He prevailed on motion to dismiss claims of indirect purchasers of passenger air fares, which was upheld in relevant part on appeal, and the remainder of the case settled. See In re Korean Air Lines Co. Antitrust Litigation, 567 F. Supp. 2d 1213 (C.D. Cal. 2008), aff’d in part, vacated in part, 642 F.3d 685 (9th Cir. 2011).</li><li>Asiana Airlines in In re Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y), an MDL class action alleging price-fixing of cargo shipping fees. The case was ultimately settled.</li><li>Capital One in In re Payment Card Interchange Fee and Merchant Discount Litigation (E.D.N.Y.), where he defended the client against alleged price-fixing claims related to credit card interchange fees. This matter ultimately settled.</li><li>Capital One in American Express v. Visa, et al. (S.D.N.Y.), where he defended the client against group boycott claims alleging that certain exclusive bylaws for the Visa and Mastercard credit card networks represented an agreement to boycott American Express. The case settled after years of litigation.</li><li>Honeywell in Wright v. Honeywell (Vt.), McKinnon v. Honeywell (Me.), Fagan v. Honeywell (Mass.), and Roos v. Honeywell (Cal.), where he defended the client against class actions in several state courts alleging monopolization of certain home thermostats. Certain cases were dismissed after briefing and oral argument and others were ultimately settled.</li><li>The United States in United States v. Google (search) (D.D.C.), in its landmark monopolization case against a leading online search engine. He served as the senior Antitrust Division official overseeing the DOJ staff team to develop and prosecute the lawsuit.</li><li>A leading online professional networking site in its defense against unfair competition claims based on allegations that the site had blocked a competing site from scraping its data to develop another service.</li><li>A leading medical imaging technology company in an antitrust counterclaim related to a patent infringement action.</li><li>An online media streaming company in an antitrust counterclaim against the major national television broadcasters related to a copyright infringement lawsuit.</li></ul><h5>Government Investigations & Policy Advocacy</h5>Alex also handles investigations, compliance counseling, and policy advocacy for governmental entities. As one client noted in The Legal 500 U.S. Antitrust: Cartels guide, “Alex Okuliar brings a calm and thoughtful approach to the matters he advises on. He has good judgment and delivers advice in a user-friendly format. He stays current on emerging issues in antitrust law and provides a helpful perspective on areas of risk and how to best address those areas.” Some of his matters include representing:<ul><li>An AI company in an FTC investigation of a technology platform.</li><li>A technology company in its defense against an FTC investigation into an alleged order violation.</li><li>A major chemical company as a leniency applicant in a DOJ criminal price-fixing investigation.</li><li>An airline in various DOJ criminal cargo and passenger airfare antitrust investigations.</li><li>A technology company in a DOJ investigation of an alleged no-poach agreement relating to employee hiring.</li><li>A major energy company as a third-party complainant and witness in an FTC investigation leading to litigation against the merging companies.</li><li>An energy company in an internal investigation of trading activity related to allegations of price fixing.</li><li>A major hospital system in a state AG price-fixing and market allocation investigation.</li><li>A ticket reseller in a state AG consumer protection investigation.</li><li>Clients advocating to government agencies on issues relating to technology platforms, mergers, and issues involving antitrust and intellectual property.</li></ul>

Alexander Okuliar

Co-chair Global Antitrust Law Practice Group

<div class="videoWrapper"><iframe class="sticky-video" allowfullscreen="1" allow="autoplay; encrypted-media" frameborder="0" src="https://www.youtube-nocookie.com/embed/Q0TTyb7UVt4?rel=0" title="Lisa M. Phelan" title="iframe"></iframe></div>Lisa Phelan, former Chief of the National Criminal Enforcement and Washington Criminal I Sections of the Antitrust Division of the U.S. Department of Justice (DOJ), is a partner and co-chair of Morrison Foerster’s Global Antitrust Law Practice Group and a member of the Investigations + White Collar Group. With more than 25 years of service at the DOJ as one of the leading authorities in criminal antitrust matters, Lisa draws upon her unmatched criminal investigations, litigation, and enforcement experience to guide clients through sensitive issues pertaining to domestic and international cartel actions and white-collar investigations and to rapidly assess and address their risk and total exposure to potential claims of unlawful collusion.Clients turn to Lisa for her knowledge and understanding when subpoenaed or when enforcement agencies execute a search warrant or stage a dawn raid. Few have the breadth of her experience to counsel and represent clients through each step of a cartel investigation, leniency application, plea negotiation, or criminal jury trial. Additionally, Lisa is an expert in the components of effective compliance programs and is an asset to clients in preventing antitrust problems before they arise. She has worked on complex antitrust matters across numerous major industries, including financial services, technology, aviation, automotive, shipping, paper, petroleum, chemicals, and pharmaceuticals, among others.As Chief of the National Criminal Enforcement and Washington Criminal I Sections of the Antitrust Division, Lisa supervised and coordinated all investigative and litigation work on international and national criminal cartel cases. Lisa regularly coordinated investigations and prosecutions with cartel enforcement agencies worldwide, including in the European Union, Japan, Mexico, Korea, the United Kingdom, Australia, New Zealand, Chile, and Brazil, among others. Additionally, she often interfaced with other law enforcement units when investigations raised non-antitrust issues.Before Lisa was appointed Chief of National Criminal Enforcement, she served as a senior criminal litigator in the Antitrust Division, leading investigations and trials of multinational corporations and their executives for price-fixing and related crimes. Lisa prosecuted more than 300 federal criminal cases and led and oversaw dozens of jury trials throughout her tenure at the DOJ.Lisa has received numerous accolades throughout her career, including the Presidential Rank Award, awarded by President Obama in 2015, the Attorney General’s Distinguished Service Award, awarded by Attorney General Eric Holder in 2014; and, on multiple occasions, the Assistant Attorney General’s Outstanding Service Award, while serving as a lead trial attorney and a senior official at the DOJ.Law enforcement agencies and competition partners consult Lisa on best practices and policies in cartel enforcement and leniency programs. She has been frequently acknowledged for her insight and dexterity in the fields in which she practices. Recognitions include:<ul><li>“[Lisa’s] ability to distill information and come to solutions is amazing. We are lucky to be represented by her.” –Chambers USA, 2022 (Client Testimonial)</li><li>“[Lisa] is very knowledgeable on DOJ practices and policies.” –Chambers USA, 2022 (Client Testimonial)</li><li>“[Lisa] is excellent and gives well thought-out and practical advice.” –Chambers USA, 2021 (Client Testimonial)</li><li>“Lisa Phelan has three decades of experience as a DOJ attorney, including serving as Chief of the National Criminal Enforcement section of the Antitrust Division. She is prominent in the market and well-placed to advise clients on criminal cartel proceedings. Sources describe her as a 'fantastic lawyer,’ who ‘knows everything.’” –Chambers USA, 2020</li></ul>Lisa frequently speaks at American Bar Association (ABA), International Competition Network, International Bar Association, and various prominent white-collar crime conferences. She has been an active participant in ABA programs and activities for nearly three decades. Currently, she serves as co-chair of the Antitrust Section’s International Cartel Task Force, which regularly meets with competition agency heads from around the globe to provide thought leadership and to advise on competition law changes and practices, including leniency program criteria. She is also a leader on the Antitrust Section’s Influencer Task Force. Additionally, Lisa proposed and worked to establish the ABA Antitrust Section’s Women.Connected Committee.Lisa has long championed the advancement of women within the legal profession and in the Antitrust Bar in particular. Recognized by MLex as a “trailblazer” for women in antitrust, in recent years, she founded the “Women in Cartel” group, which has expanded its membership nationally and internationally. More than once, she has been named one of Global Competition Review’s Top “Women in Antitrust.” In addition, Lisa serves on the firm’s Women’s Strategy Committee, working closely with firm leaders to ensure that the advancement of women is a constant strategic priority. Lisa is a member of the Women’s White Collar Defense Association.Lisa received her J.D. magna cum laude from American University, Washington College of Law, where she served on the International Law Journal. She received her B.A. summa cum laude, also from American University. Lisa is an adjunct Professor at AU law school, teaching a seminar on Criminal Antitrust.<h4>Representative Experience</h4><ul><li>Represent a European executive indicted in the U.S. on a criminal Sherman Act charge of bid rigging on government contracts.</li><li>Represent a major national healthcare company investigated by DOJ’s Antitrust Division on allegations of criminal agreements not to hire or solicit employees from another major national healthcare company. Obtained a non-prosecution agreement from DOJ for the company and all of its executives.</li><li>Represent a large national health staffing company in multiple grand jury investigations around the U.S. for various alleged Sherman Act criminal violations. Obtained non-prosecution commitment from DOJ for the company and its executives in all matters.</li><li>Represent a major Japanese component parts maker subject to a grand jury investigation by DOJ. Obtained a non-prosecution decision for the company and its executives.</li><li>Represent a large national media company in meetings with DOJ regarding possible anticompetitive conduct.</li><li>Represent a major prescription services company under investigation by the FTC for possible monopolization and abuse of dominance violations.</li><li>Represent an oil and gas industry company under grand jury investigation by the Antitrust Division and obtained a non-prosecution decision from DOJ.</li><li>Represent numerous CEOs and high-level executives in numerous criminal antitrust grand jury investigations.</li></ul>

Lisa M. Phelan

David Shaw is a partner in Morrison Foerster’s Global Antitrust Law Practice group, where he draws upon his extensive experience across merger clearance litigation, cartel representations, counseling, and State Attorney General antitrust enforcement to guide clients through government-facing antitrust matters.Most recently, David was the Deputy Chief of Staff and Counsel to the Assistant Attorney General in the Antitrust Division of the Department of Justice (DOJ). In this role, he advised and assisted the head of the Antitrust Division on law and policy related to the Division and managed relationships with state attorneys general across all Division matters, including directly handling relationships in the highest stakes and most sensitive matters facing the Division.Additionally, David held a leadership role with respect to conduct and merger reviews related to leading online platforms and held particular responsibility for Telecommunications and Broadband; Transportation, Energy, and Agriculture; Competition Policy and Advocacy; and International Sections of the Antitrust Division.David also served as a Trial Attorney in the Technology and Financial Services Section of the Antitrust Division, where he handled all aspects of the merger review process, from reviewing HSR filings to preliminary investigations, Second Request investigations, and merger challenges. In this role, he served on the trial teams for some of the most high-profile antitrust lawsuits in the technology and energy sectors.Before his government service at the DOJ, David was an associate at another leading international firm. David is also active in the bar and currently serves as co-chair of the Exemptions and Immunities Committee of the ABA Antitrust Law Section.David earned his B.A., magna cum laude with Highest Honors in government, from Patrick Henry College, and his J.D. from Georgetown University Law Center, where he served as Articles Editor for the Georgetown Law Journal.

David Shaw

Partner

Antitrust Law

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