In other significant antitrust matters, David helped Amgen Inc. defeat a motion filed by a subsidiary of Johnson & Johnson to enjoin its bundled contract for oncology drugs following a week-long bench trial. He then led a team of lawyers from several McDermott offices in four antitrust class actions pending in federal courts across the United States alleging that hospitals engaged in wage-fixing conspiracies. In one of these cases, David devised and implemented a strategy to exclude the testimony of the plaintiffs’ expert witness at the class certification stage. The resulting decision, first in the Seventh Circuit to apply the principles of the landmark In re Hydrogen Peroxide Antitrust Litigation decision, denied class certification outright on the ground that the expert’s opinions were so unreliable that they were “essentially inadmissible.” In the second, David twice defeated class certification on the issues of antitrust injury-in-fact and damages. In the third, the district court excluded the testimony of the plaintiff’s economist, whom David deposed, and denied class certification. And in a fourth, David argued and won summary judgment on the plaintiffs’ per se antitrust claim.

Helping clients avoid charges in government antitrust investigations has yielded some of David’s biggest victories. David has successfully closed five investigations by the Antitrust Division of the US Department of Justice.

David is also a frequent writer and speaker in the areas of antitrust law and class action procedure.

Beyond his antitrust work, David has defended clients in class actions and multidistrict proceedings involving industries including pharmaceuticals, consumer products, insurance, managed care and telecommunications. He has obtained dismissals of class actions and defeated motions for class certification. David helped defeat certification of a putative class of insureds in a federal multidistrict class action in Miami that asserted RICO, ERISA, and state law claims against six of the nation’s largest managed-care organizations. David also represented a leading cellular telephone service provider in a series of class actions consolidated in federal court in Baltimore alleging that cellular telephones emit unsafe levels of radio frequency radiation. He also achieved the outright dismissal of two automobile insurance class action lawsuits, which the South Carolina Supreme Court affirmed.

David has tried cases in both Illinois and Indiana courts. Also experienced in alternative dispute resolution, he has tried two commercial contract disputes before panels of the American Arbitration Association.

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• In re Dairy Farmers of America Cheese Antitrust Litigation (N.D. Ill.) – Achieved outright dismissal of all federal and state antitrust claims on behalf of the nation’s largest dairy cooperative in indirect purchaser class actions alleging monopolization and conspiracy in the market for cheese and dairy products
• In re Sulfuric Acid Antitrust Litigation (N.D. Ill.) – Using an unorthodox motion under Federal Rule of Civil Procedure 16 on the eve of trial, obtained dismissal of nationwide class action under Section 1 of the Sherman Act against subsidiaries of Koch Industries, Inc. in a nationwide class action alleging a conspiracy to fix sulfuric acid prices in the United States by restricting supply; the dismissal was affirmed on appeal by the U.S. Court of Appeals for the Seventh Circuit
• Generation Orange, Inc. v. Radio Flyer Inc. and Target Corporation (C.D. Cal.) – In a case at the intersection of antitrust law and e-commerce, obtained dismissal of internet distributor’s federal and state price discrimination claims against the manufacturer of the iconic “little red wagon” and a national retailer of its products
• Reed v. Advocate Health System, et al. (N.D. Ill.) – Defeated class certification on behalf of the Chicago metropolitan area’s second largest health system in putative class action brought by registered nurses alleging that hospitals conspired to depress their compensation in violation of Section 1 of the Sherman Act
• Fleischman v. Albany Medical Center, et al. (N.D.N.Y.) – Twice defeated class certification on the issues of antitrust impact and damages on behalf of Albany’s largest hospital in a class action on behalf of registered nurses alleging that Albany-area hospitals conspired to depress their compensation in violation of Section 1 of the Sherman Act and obtained dismissal, without oral argument, of interlocutory appeal of second class certification decision under Federal Rule of Civil Procedure 23(f)
• Maderazo v. Baptist Health Systems, et al. (W.D. Tex.) – Defeated class certification on behalf of subsidiary of Tenet Healthcare Corporation in putative class action brought by registered nurses alleging that hospitals in the San Antonio metropolitan area conspired to depress their compensation in violation of Section 1 of the Sherman Act
• Cason-Merenda v. Detroit Medical Center, et al. (E.D. Mich.) – Argued and obtained summary judgment on per se Sherman Act Section 1 claim brought by registered nurses alleging that hospitals in the Detroit metropolitan area conspired to depress their compensation
• Ortho Biotech Products, L.P. v. Amgen Inc. (D.N.J.) – Defended the world’s largest biotechnology company in a week-long preliminary injunction hearing against allegations that its bundled contract for oncology drugs constituted an illegal tying arrangement in violation of Section 2 of the Sherman Act

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US Court of Appeals for the Seventh Circuit
US District Court for the Northern District of Illinois
US District Court for the Northern District of Indiana
US District Court for the Southern District of Indiana

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