Litigation

David Gersch is an experienced trial and appellate lawyer. He is consistently distinguished as one of the top commercial lawyers in Washington, DC by Chambers USA Leading Lawyers for Business, which praises him as "a guy whose second home is in the court room" (2008), for his "incredibly good judgment on large complex matters" (2006), “his focus on serving the needs of the client” (2011) and for his "'deep substantive knowledge' of many areas of the law including antitrust and products liability" (2007).

Mr. Gersch's practice covers most areas in which businesses litigate including antitrust, commercial disputes, consumer class actions, mass tort, discrimination, and pension actions. Mr. Gersch has tried cases for the American Red Cross, Visa, Wyeth, and Xerox. He has argued appeals in the United States Court of Appeals for the District of Columbia, 4th, 8th, and 11th Circuits and in the Supreme Courts of Virginia and South Carolina.

Mr. Gersch started Arnold & Porter's Trial Skills Program in which firm lawyers represent defendants in the Superior Court of the District of Columbia pro bono in conjunction with an experienced criminal defense attorney.

Mr. Gersch graduated cum laude from New York University Law School in 1982 where he was a member of the Order of the Coif. He graduated from Oberlin College in 1978.

Litigation Representative Matters

Antitrust

• Defense of GlaxoSmithKline in sham litigation suit arising out of an unsuccessful patent infringement action brought by GSK against generic manufacturers of Wellbutrin SR. In Re Wellbutrin SR/Zyban Antitrust Litig. No. 2:04-cv-5898 (E.D. Pa.)
• Defense of Nucor Corporation against charges that it conspired with other manufacturers to constrain steel production. Standard Iron Works v. Arcelor Mittal, et al., No. 08-cv-5214 (N.D. Ill.)
• Defense of Visa in cases brought by American Express and Discover asserting injury from loyalty rules of Visa and MasterCard enjoined in a prior Department of Justice action. American Express Travel Related Services Company, Inc. v. Visa U.S.A. Inc.; Discover Financial Services, Inc. v. Visa U.S.A. Inc., No. 04-07844 (S.D.N.Y.)
• Representation of Inova Hospital in connection with planned merger with Prince William County Hospital. In re Inova Health System Foundation, FTC Docket No. 9326 (2008)
• Defense of Visa in cases brought by merchants challenging the setting of interchange payments to banks issuing credit cards. In Re Payment Card Interchange Fee And Merchant Discount Antitrust Litigation, MDL Docket No. 1720 (E.D.N.Y.)
• Won summary judgment on antitrust claims challenging alleged vertical restraints and monopolization. Bepco v. Allied-Signal, Inc., 106 F. Supp. 2d 814 (M.D. N.C. 2000)

Commercial Disputes

• Trial of challenge to Visa fees to be paid if banks switch their debit business. United States v. Visa U.S.A. Inc., No. 98-7076
• Successful trial of commercial dispute over contract to sell Lansdowne, affirmed on appeal. Lansdowne Development L.L.C. v. Xerox Realty Corp., 514 S.E.2d 157 (Va. 1999)
• Obtained summary judgment in contractual dispute, affirmed on appeal. Water's Edge Development LLC v. Bunn, 201 F.3d 439, 1999 WL 1008976 (4th Cir. 1999)
  

Consumer Class Action

• Won reversal of certification of a 24 state class on a writ of mandamus in a suit alleging that GEICO failed to compensate insureds for body frame damage. Bloodworth v. Government Employees Insurance Company, 2007 WL 1966022, (Tenn.Ct.App., June 29, 2007)
• Won denial of class certification in nationwide consumer class action against GEICO alleging improper claims paying practices. Snell v. GEICO Corp., 2001 WL 1085237 (Md. Cir. Ct. Aug. 14, 2001)
• Defeated consumer protection act claim. Exeter v. GEICO General Insurance Co., 109 Wash. App. 1035, 2001 WL 1530948 (2001)

Mass Tort/Products Liability

• Defense of toxic tort putative class action alleging chromium contamination.  Smith v. Honeywell International, Inc., No. 2:10-cv-3345 (D. N.J.)
• Successfully tried diet drug cases. Clepper v. Wyeth, Pa. Ct. Common Pleas, No. 002456 (7/04). See NLJ 8/9/04 at 5
• Tried transfusion AIDS case to defense verdict, affirmed on appeal. Doe v. American Ass'n. of Blood Banks, 79 F.3d 1151, 1996 WL 106644 (8th Cir. 1996)
• Tried transfusion AIDS case to defense verdict. See Doe v. American National Red Cross, C.A., No. 2:92-1061 (S.D. W. Va. 1994), 848 F. Supp. 1228 (SD W.Va. 1994)
• Won appeal on grounds that statute of limitations runs from date of HIV infection; not discovery Smith v. Paslode, 7 F. 3d 116 (8th Cir. 1993)
• Won dismissal of toxic case alleging radiation contamination from phosphate mining. Rhilinger v. U.S. Steel, et al., G01-1276 (Fla. Cir. Ct.) and Aumann v. U.S. Steel, et al., GC-G-98-2035 (Fla. Cir. Ct.)

Discrimination

• Defeat of class certification in case challenging GEICO's consideration of occupation and education level. Amos et al. v. GEICO Corporation et al., No. 06-CV-1281 , 2008 WL 442537 (D. Minn. Sept. 24, 2008)

Pension

• Successful defense of settlement terminating TWA's pension plan. Allied Pilots Ass'n v. PBGC, 334 F.3d 93 (D.C. Cir. 2003)
• Representation of Union President and pension plan trustee in Labor Department enforcement action and private class action lawsuit. In Re Masters Mates & Pilots, 85 Civ. 9545 (S.D.N.Y.)
• Suit to compel airlines to fund pension plan's valuation of airline securities. IAM Stock Ownership Investment Trust Fund v. Eastern Airlines, Inc., 639 F. Supp. 1027 (D. Del. 1986)