Litigation and Antitrust
Joseph Ostoyich is co-chair of the firm’s Litigation Department in Washington, D.C. He has more than two decades of experience representing some of the world’s leading companies in price fixing, monopolization and the full gamut of antitrust litigation in U.S. courts and in investigations and merger reviews by the Department of Justice, the Federal Trade Commission, the European Commission and government authorities around the world. He has represented clients in bet-the-company competitor and class action lawsuits, including more than a dozen different class action clusters in the paper, chemical, foundry, energy, transportation and agricultural commodities industries.
Mr. Ostoyich recently obtained a defense verdict as lead trial counsel in an eight week bench trial against the Federal Trade Commission on charges that his client conspired to fix prices directly and through an industry association. The Commission’s decision to dismiss six of its own counts marked the first time in two decades that the Commission ruled against its own claims. This win earned Mr. Ostoyich and the trial team recognition as “Legal Lions” in Law360’s Weekly Verdict: Legal Lions & Lambs (February 14, 2014).
Additional recent litigation wins include obtaining a zero dollar judgment on behalf of a client facing a multibillion dollar monopolization suit brought by its main rival and winning summary judgment in a price fixing case charging his client with participating in a decade-long conspiracy to fix natural gas prices. In both cases, his cross examination of the opposing experts led the courts to exclude their testimony.
Mr. Ostoyich is recognized as a leading antitrust lawyer in Chambers USA, rated “Preeminent” by Martindale-Hubbell, and has been named a D.C. Super Lawyer for Antitrust. The Legal 500 stated that Mr. Ostoyich “provides clients with a considerable pedigree in relation to a range of federal and state private antitrust litigation.”
He is a member of the Antitrust Council of the U.S. Chamber of Commerce and frequently speaks at industry conferences and client retreats about antitrust law developments. He has written and edited several dozen articles and analyses of the antitrust laws and, most recently, co-authored a chapter on the law and economics of antitrust damages in a leading treatise.
- In the Matter of Respondent McWane, Inc. Lead trial counsel for Respondent in successful two-month “Part 3” trial against the Federal Trade Commission alleging price fixing and monopolization. The Commission dismissed six of its seven counts and the remaining count is on appeal.
- City of Moundridge, KS v. Exxon Mobil Corporation. As lead counsel for ExxonMobil, Mr. Ostoyich won summary judgment in a case charging the company and several competitors with conspiring to fix the price of natural gas. The district court found the testimony of plaintiffs’ expert to be entitled to “no weight” because it was “wholly unsupported and speculative” and the D.C. Circuit affirmed.
- ZF Meritor LLC and Meritor Transmission v. Eaton Corporation. Represented Eaton and obtained a final judgment of zero dollar damages and an order excluding the opposing damages expert as “insufficient and unreliable” in a monopolization case claiming several billion dollars in damages.
- Advanced Micro Devices, Inc. v. Intel Corporation. Represented Intel in monopolization cases filed by its rival, AMD, in U.S. federal court and in Japan, and in competition investigations in Europe, South Korea and before the U.S. Federal Trade Commission.
- In re Ductile Iron Pipe Fittings Antitrust Litigation. Representing McWane, Inc. in price fixing and monopolization class actions brought by direct and indirect purchasers.
- In re Cast Iron Soil Pipe and Fittings Antitrust Litigation. Representing McWane, Inc. in direct and indirect purchaser price fixing class actions.
- In re Methyl Methacrylate Antitrust Litigation. Represented Imperial Chemical Industries plc (now AkzoNobel) in a series of price fixing class actions brought by direct and indirect purchasers. Mr. Ostoyich led an aggressive defense of the class allegations through fact and expert discovery, which resulted in a nuisance value settlement with the direct purchasers and a voluntary dismissal by the indirect purchasers.
- In Foundry Resins Antitrust Litigation. Mr. Ostoyich led an aggressive defense of the class issues on behalf of Ashland in a series of price fixing cases which caused the plaintiffs to withdraw key claims and enter into a nuisance value settlement.
- In re Publication Papers Antitrust Litigation. Represented MeadWestvaco Corporation in defense of numerous price-fixing class actions brought by direct and indirect purchasers of coated paper. An aggressive challenge to the plaintiffs’ allegations that MeadWestvaco was involved caused plaintiffs to voluntarily dismiss their cases.
Publications, Speeches and Presentations
- “So We Agree It’s Price Fixing, But . . . ,” Law360 Competition Law (August 18, 2014). Co-Authored with Will Lavery.
- “Looks Like Price Fixing Among Plaintiffs’ Firms,” Law360 Competition Law (May 28, 2014). Co-authored with Will Lavery.
- “7th Circuit Decision Confirms Foreign Trade Antitrust Improvements Act Requires ‘Direct’ U.S. Effects,” Baker Botts Client Alert (April 3, 2014).
- “Antitrust Damages,” Calculating and Providing Damages, New York: Law Journal Press (updating Spring 2014). Co-authored with Dr. John Johnson.
- “Competitor Collaboration in the United States,” Practical Law (2012-2014), with Charles Malaise.
- “The Antitrust Paradox,” Georgetown University 5th Annual Global Antitrust Enforcement Symposium (September 2011). Co-authored with Jasmine Rosner.
- “Bad Intent: Questions About Corporate Intent in the Antitrust Context,” CompLaw360 (September 2010). Co-authored with Staci Schweizer.
- “Private Enforcement,” Global Competition Review: The Antitrust Review of the Americas 2011 (September 2010). Co-authored with Timothy S. Longman.
- “More of the Same: Continued Growth In Private Antitrust Litigation And Continued Cut-Backs By The U.S. Supreme Court,” Global Competition Review: Antitrust Review of the Americas 2009 (September 2008). Co-authored with Parker Normann, David T. Emanuelson.
- “Trends in Dominant Firm Litigation: Convergence Towards What?” Global Competition Review: Antitrust Review of the Americas 2008 (September 2007): 52. Co-authored with Eric S. Berman.
- “Private Antitrust Trends In The U.S.: Growth Abroad But Cut-Backs At Home,” Global Competition Review: Antitrust Review of the Americas 2007 (October 2006). Co-authored with Stacy L. Turner.
- “Transatlantic Crossings: Tag-Along Class Actions Following Foreign Antitrust Investigations,” Mealey’s Antitrust Reporter (June 2006). Coauthored with Chad Murchison.
- “The Increasing Risks of U.S. Litigation for Global Companies,” Global Competition Review: Antitrust Review of the Americas 2006 (October 2005). Co-authored with Arturo DeCastro.
Recent and Upcoming Speeches
- “Litigating Against The Government and the European Commission,” Concurrences Symposium on Global Antitrust Hot Topics: EU, US, and Global Perspective (Brussels September 25, 2014).
- “Antitrust Compliance Update: Lessons Learned From Recent Cases,” ABA Antitrust Section’s Ethics and Compliance Committee (September 8, 2014).
- “Competition Litigation Around the World, Chapter One: The United States,” ABA Antitrust Section’s International Committee and the Civil Practice and Procedure Committee (May 29, 2014).
- “Information Exchange Update: Steely Nurses and Iron Pipes,” ABA Spring Antitrust Meeting, Washington, D.C. (April 10, 2013).
- “Revisiting Compliance Programs,” GCR 2nd Annual Antitrust Law Leaders Forum, Miami, Florida (February 8, 2013).
- “Developments In U.S. and E.U. Private Antitrust Litigation,” Georgetown University 5th Annual Antitrust Enforcement Symposium, Washington, D.C. (September 22, 2011).
- “Settlement of Foreign Antitrust Claims in U.S. Class Actions.” Global Competition Review Antitrust Litigation 2010 Conference, London (October 12, 2010).
- “The Life Cycle of IP Through an Antitrust Litigation Lens.” Stanford Antitrust and IP Forum (April 13, 2010).
- “Intellectual Property through an Antitrust Lens: An Analytical Framework.” American Chemical Society’s Division of Chemistry & Law, New Orleans (March 8, 2008).
- “Antitrust Developments in Litigation, Mergers, and Cartels—A Transatlantic Perspective.” 18th Annual General Counsel’s Conference, New York (June 12, 2006).
- “Antitrust Issues and Strategies for Advising US-EU Clients.” Strafford Communications (March 2, 2006).