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MoFo Perspectives: MoFo Competition: Key Risks Government Contractors are Facing Under DOJ's Heightened Procurement Scrutiny (Part 1)

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In the first episode of this two-part MoFo Perspectives podcast, Morrison Foerster Global Antitrust attorneys Bonnie Lau and Joseph Charles Folio speak with Kev

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MoFo Perspectives: MoFo Competition: Key Risks Government Contractors are Facing Under DOJ's Heightened Procurement Scrutiny (Part 1)

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Bonnie Lau helps clients navigate internal and government antitrust investigations, enforcement proceedings, and class action litigation. Clients commend Bonnie as “absolutely outstanding; a practical, responsive and adept adviser” and “a fantastic lawyer, detail-oriented and able to handle complex matters with ease and good humor.” (Chambers USA, 2022.)Bonnie is the co-head of Morrison Foerster’s San Francisco litigation department. A dynamic trial lawyer, Bonnie has significant experience defending class actions, multidistrict litigations, and enforcement actions, and deftly handles international competition investigations and enforcement issues. She advises clients across a range of industries that face government scrutiny or allegations of anticompetitive conduct, including technology, manufacturing, media, telecommunications, healthcare, and financial services.Bonnie has tried several bench and jury trials to verdict, and recently served as lead trial counsel in an antitrust class action jury trial with over a billion dollars of exposure. She has represented companies in antitrust and related complex litigation involving claims of price-fixing, wage-fixing, no-poach conduct, output suppression, monopolization, refusal to deal, predatory pricing, and group boycott, and prosecuted antitrust counterclaims in patent infringement and IP matters. Bonnie has also represented clients in various complex litigation and alternative dispute resolution matters involving unfair competition, RICO, TCPA, and intellectual property claims.Bonnie has received numerous accolades for her legal work. She was most recently named as one of the “Top 100 Lawyers in California” and a “Top Antitrust Lawyer” by the Daily Journal in 2022, as well as an “Up and Coming” attorney for Antitrust – California by Chambers USA in 2022. She won the “Antitrust/Competition Lawyer of the Year” award at the Euromoney America’s Women in Business Law Awards in 2021.Bonnie devotes herself to promoting diversity and inclusion in the legal community, currently serving as co-chair of the Women’s Leadership Network for the National Asian Pacific American Bar Association, co-chair of the board of the ABA Antitrust Section’s Women Connected, and former chair of the Leadership Council for Legal Diversity Alumni. For her contributions, Bonnie was named to the National Association of Women Lawyers’ (NAWL) Rising List for 2022 and selected by Chambers Diversity and Inclusion as a 2022 finalist for “Lawyer of the Year.”<h4>Representative Matters</h4><ul><li>Defending a Japanese technology and manufacturing client in a consolidated class action litigation alleging federal and state antitrust and consumer protection claims and related Department of Justice Antitrust Division price-fixing conspiracy investigation and criminal proceedings. Managing parallel international class actions and coordinating defense of foreign regulatory antitrust investigations.</li><li>Defending the largest broadcast television station operator in the United States in a putative class action alleging price-fixing of television advertising in multiple markets nationwide.</li><li>Defending steel manufacturer and fabricator in monopolization, predatory pricing, unfair competition, and tortious interference federal and state claims.</li><li>Representing technology startup company in monopolization, refusal to deal, tortious interference, and unfair competition federal and state counterclaims.</li><li>Representing a major healthcare company in a criminal investigation.</li><li>Represented SoftBank and Sprint in federal civil litigation proceedings in California in connection with Sprint’s merger with T-Mobile.</li><li>Represented SoftBank and ARM in FTC proceedings in connection with Nvidia’s potential acquisition.</li><li>Won an en banc Eleventh Circuit decision affirming dismissal with prejudice of federal antitrust claims in a multidistrict litigation comprised of 24 individual and putative class action cases across the country that allege antitrust, RICO, and/or steering violations against over a hundred major automobile insurance carriers.</li><li>Won an appeal, defeated three separate attempts to certify a class, excluded expert methodology, and won complete summary judgment of individual claims in antitrust and unfair competition class action against a major automobile insurer, alleging a conspiracy to charge anticompetitive premiums to policyholders.</li><li>Prosecuted an antitrust counterclaim in a patent infringement lawsuit by a non-practicing entity. Following the trial of the patent infringement claims, and a post-judgment remittitur of the award, won complete victory in the Federal Circuit, which reversed the jury’s finding of infringement and vacated the award of damages.</li><li>Prosecuted a Walker Process antitrust counterclaim in a patent and intellectual property infringement lawsuit.</li></ul>

Bonnie Lau

Partner

Joseph Folio is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law, Crisis Management, and Privacy + Data Security Groups, with more than a dozen years of experience leading complex government investigations and high-profile litigation.Joe has extensive experience in cartel investigations, congressional investigations, and complex civil litigation. Having served in all three branches of the federal government, and with his experience in both criminal and civil litigation, Joe is able to leverage his insider knowledge across a variety of enforcement perspectives to guide clients through difficult cases. He is also a member of our global ESG + Sustainability steering committee.As a prosecutor in the Antitrust Division of the U.S. Department of Justice (DOJ), he investigated companies and individuals involved in domestic and international antitrust cartels. Among them, he oversaw all aspects of the investigation into generic pharmaceuticals as the case’s chief of staff, including the handling of the parallel multidistrict litigation case brought by several state attorneys general and private plaintiffs. He also prosecuted and investigated cases in the international freight forwarding industry and cases involving bid rigging in state infrastructure projects.Prior to joining Morrison Foerster, Joe served as Chief Counsel for the Committee on Homeland Security & Governmental Affairs, the chief oversight committee of the U.S. Senate. In this position, he oversaw a variety of investigations, including the coordination of investigations with other Senate and House committees with overlapping jurisdictions. He also advised the committee on all policy issues falling within its broad jurisdiction, including cybersecurity, border security, domestic terrorism, election security, supply chain security (including 5G policy), and reforming the National Emergencies Act. Joe advised committee members on oversight of the Cybersecurity and Infrastructure Security Agency (CISA) within the Department of Homeland Security, legislation providing CISA with administrative subpoena authority, the creation of the National Cyber Director, and oversight of government and private efforts to protect against and respond to cyber breaches and ransomware attacks.While at the Federal Programs Branch of the DOJ’s Civil Division, Joe handled complex, high-profile litigation, focusing largely on national security matters, and his clients included the FBI; the Departments of Defense, Homeland Security, and State; and several members of the U.S. Intelligence Community. He also represented the Export-Import Bank against multiple administrative and constitutional challenges. Due to the cutting-edge nature of this litigation, he has experience navigating the inter-agency process when cases raise novel legal or policy issues that must be resolved at the highest levels.Joe received his B.A., magna cum laude, in philosophy and government from Georgetown University; M.A. with honors in national security studies from Georgetown University; and J.D., cum laude, from the George Mason University School of Law. After graduating from law school, Joe clerked for the Honorable Richard L. Voorhees in the U.S. District Court for the Western District of North Carolina.<h4>Representative Matters</h4>Antitrust<ul><li>Representing a major U.S. healthcare company in a criminal antitrust investigation of alleged “no-poach” conduct.</li><li>Representing a senior executive of an international company in a U.S. criminal cartel investigation.</li><li>Representing Nexstar Media Group in a putative class action alleging that certain media companies conspired to fix the prices of local television advertising.</li></ul>Congressional Investigations<ul><li>Representing Andy Karsner, a member of ExxonMobil’s board of directors, in response to a high-profile House Oversight and Reform Committee investigation regarding the role of the fossil fuel industry in addressing climate change, including preparing him to testify before the committee.</li><li>Representing a former government official who testified before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol.</li><li>Representing a Fortune 100 company responding to inquiries from committees and members regarding its policies and practices.</li></ul>

Joseph Folio III

Kevin is former Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. Kevin has broad experience in numerous facets of government contracts matters including agency procurements, subcontracting, teaming and joint venture relationships, contract performance issues, intellectual property, compliance matters, due diligence for mergers and acquisitions, and procurement fraud matters. He represents clients in the preparation and litigation of contract adjustment claims and terminations for both government contracts and construction projects. Over the course of his 35-year career, Kevin has handled more than 300 bid protest cases, representing both protesters and contract awardees before the U.S. Government Accountability Office, the U.S. Court of Federal Claims, federal district courts, and state protest forums.Kevin is active in the Public Contract Law Section of the American Bar Association, where he has served as a Co-Chair of the Contract Claims and Disputes Resolution Committee and the Bid Protest Committee, and a Vice-Chair of the Acquisition Reform and Emerging Issues Committee, as well as a member of the Section’s Council and its Interim Membership Director. He also served on the Board of Governors of the U.S. Court of Federal Claims Bar Association.Kevin has been recognized by Chambers & Partners USA and Legal 500 US as one of the leading lawyers nationwide in the area of Government Contracts and has been named a “Top Washington Lawyer” in Government Contracts Law by Washingtonian magazine. Since 2010, Chambers & Partners USA has placed Kevin on the short list of National Tier One Government Contracts lawyers and, since 2020, Chambers has included him in its Bid Protest Spotlight table. He was named to the BTI Consulting Group’s “Client Service All-Stars 2016” list, a registry of 354 of the legal profession’s client service elite.Kevin received his J.D. from the University of Virginia School of Law in 1988 and his B.A. from the University of Virginia in 1984. He is admitted to practice in the District of Columbia and the state of Georgia, and before the United States Supreme Court, the United States Courts of Appeals for the Federal Circuit and the Fourth Circuit, and the United States Court of Federal Claims.

Kevin P. Mullen

Antitrust Law

Government Contracts + Public Procurement