Antitrust/Competition

Jonathan Gleklen's antitrust practice focuses on antitrust issues affecting clients in high technology and network industries, including government merger review and investigations of alleged anticompetitive conduct, civil litigation, and counseling.  He regularly represents clients before the Antitrust Division of the Department of Justice, the Federal Trade Commission, and state attorneys general and has been ranked as a leading antitrust lawyer by publications including Chambers USA, PLC's Competition Law Handbook, Super Lawyers, and the International Who's Who of Competition Lawyers and Economists. 

Mr. Gleklen is a member of the governing Council of the American Bar Association's Section of Antitrust Law and frequently speaks and writes on antitrust subjects. He served as the Editorial Chair of Antitrust Law Developments (7th ed. 2012), the leading two volume antitrust treatise, and previously served on the editorial board of Antitrust Law Developments (6th ed. 2007) and as the Editorial Chair of the 2003 Annual Review of Antitrust Law Developments, an annual supplement to the fifth edition of the treatise. Mr. Gleklen also served for almost a decade on the editorial board of the Antitrust Law Journal, serving as Editorial Chair in 2008 and 2009.

At the invitation of the Department of Justice and Federal Trade Commission, Mr. Gleklen serves as a Non-Governmental Advisor to the International Competition Network (ICN),  an organization of more than 100 competition agencies from around the world that works to address antitrust enforcement and policy issues.

Antitrust/Competition Representative Matters

Representative Transactions

• General Electric in its joint venture with Microsoft to create Caradigm, which combined certain of the parents' health care information technology assets to develop and market an open healthcare intelligence platform and related clinical applications.
• General Electric in connection with its US$3.2 billion acquisition of Converteam, a leading provider of power conversion equipment including motors, generators, and power electronics. The transaction closed after a second request and a consent decree in which GE agreed to a post-closing divestiture of Converteam's Electric Machinery subsidiary, which accounted for about 3 percent of Converteam's sales.
• Intel in connection with the company's purchase of security software firm, McAfee, for US$7.68 billion. The transaction was cleared without a second request in the US and with Phase I commitments in the European Union.
• GrafTech International, a leading manufacturer of graphite electrodes, in connection with its $700 million acquisition of C/G Electrodes and Seadrift Coke (which manufactures a key raw material used to produce graphite electrodes). The acquisition of C/G closed after a second request without any remedy, and GrafTech was permitted to close its acquisition of Seadrift after agreeing to a consent decree that addressed DOJ's concerns about GrafTech gaining access to its competitors' confidential information.
• Visa in its $2 billion acquisition of Cybersource, a leading provider of merchant payment solutions for Internet commerce.
• Celgene in its US$2.9 billion acquisition of Pharmion. Although Celgene and Pharmion were two of three firms with FDA approval for drugs targeting a certain blood cancer, the FTC cleared the transaction without a second request after being convinced that the parties' drugs were not in fact close competitors.
• Visa USA in connection with Visa's global reorganization that combined Visa entities worldwide (other than Europe) to create the new Visa Inc.
• Co-counsel to Monsanto in its US$1.5 billion acquisition of cotton seed company Delta and Pine Land Company.
• NBC Universal in its joint venture with News Corporation and Disney to create the Hulu joint venture, an Internet site for television, film, and other video content.
• Adobe in its US$3.4 billion acquisition of Macromedia, a leading developer of software used by creative professionals and web developers. Transaction permitted to close without divestitures after second request.
• SAP AG as a third-party witness in the Department of Justice's (DOJ) challenge to the Oracle/PeopleSoft merger.
• Pfizer in its US$60 billion acquisition of Pharmacia. The Federal Trade Commission's (FTC) investigation was resolved by divestitures in nine areas of product overlap.

Representative Litigation

• PharmaRx v. General Electric. As lead counsel to GE, obtained dismissal under Rule 12 of a putative class action challenging alleged exclusive dealing agreement between GE and one of its distributors of radiopharmaceuticals.
• American Express v. Visa, Discover v. Visa, and In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation. Counsel to Visa in § 1 and § 2 litigation brought by competitors and merchants.
• Medical Supply Chain v. General Electric. As lead counsel to GE, obtained dismissal of claims alleging foreclosure of an online healthcare marketplace. Defended dismissal on appeal and obtained reversal of district judge's refusal to award sanctions.
• CCS v. Xerox. Lead counsel to Xerox in a § 2 case challenging Xerox's refusal to sell unpatented parts to a copier service competitor.
• Independent Service Organizations Antitrust Litigation. As counsel to Xerox, obtained summary judgment on monopolization claims and defended judgment on appeal in precedent-setting case on refusals to sell or license intellectual property. Obtained judgment of more than US$1 million plus attorney's fees on Xerox's copyright infringement counterclaims.
• DuPont v. Monsanto. As counsel to Monsanto, defended a § 1 and § 2 challenge to Monsanto's distribution programs for herbicides, seeds, and traits.

Government Investigations

• State medical board in a nonpublic FTC investigation of alleged exclusionary conduct. The investigation was closed without action.
• Technology company in a nonpublic FTC investigation of standard-setting conduct. The investigation was closed without action.
• Visa in connection with a two-year investigation by the Department of Justice and a multi-state attorney general group of Visa's rules governing merchant acceptance of its cards. Case was resolved by a consent decree that permits merchants to discount for competing credit cards but did not address Visa's rule prohibiting U.S. merchants from surcharging consumers.
• Counsel to Intel in connection with the resolution of its litigation with the Federal Trade Commission.
• Visa in a Department of Justice civil antitrust investigation into Visa's agreements with banks that issue debit cards. The investigation was closed without any action by the government.
• Visa in investigation by the Department of Justice and the Attorneys General of the District of Columbia, New York and Ohio into PIN debit. After Visa announced a rule change regarding the routing of so-called "PINless debit" transactions, the DOJ and the Attorneys General informed Visa that the rule change addressed the concerns that led to the investigations. The investigations were closed without any action by the DOJ or the Attorneys General.
• Auto parts maker in a Federal Trade Commission investigation of an agreement not to compete related to a joint venture. The investigation was closed without action.
• Other nonpublic DOJ and FTC investigations in industries including agriculture, entertainment, financial services, real estate, semiconductors, telecommunications, and travel.

Counseling & Other

• The Associated Press in connection with a successful request for a business review letter from the Department of Justice relating to the AP's creation of a News Registry to facilitate the tracking and licensing of news content online.
• Digital Entertainment Content Ecosystem, a coalition of technology, consumer electronics, retail, and media companies that has created the Ultraviolet standard for the distribution of digital media.
• Pro bono counsel to the Fair Labor Association in connection with potential antitrust issues that may arise in connection with efforts that it coordinates to eliminate sweatshop conditions in the apparel and footwear industry.
• Other clients in connection with pricing, distribution, intellectual property licensing, and pharmaceutical patent settlement issues.