Saul Morgenstern represents clients across a broad spectrum of industries in complex antitrust and other commercial disputes, class actions and multijurisdictional litigation before US federal and state courts, international arbitral tribunals, and in US government, state and foreign investigations. He also advises US and global companies with respect to the antitrust implications of mergers, acquisitions, joint ventures, trade association activities, distribution and pricing programs and other aspects of competitor and customer relations.

Mr. Morgenstern speaks and writes regularly on antitrust and compliance issues facing US and multi-national businesses, and most recently Co-Chaired the Practising Law Institute's two-day program "Antitrust Law Institute 2017: Developments and Hot Topics" held in New York City on April 17-18, 2016.

Experience

  • Generic pharmaceuticals manufacturer in defense of wholesaler (direct purchaser) and third party payor (indirect purchaser) class actions in a consolidated multi-district litigation, in which plaintiffs allege that the company conspired with several other generic drug makers to increase prices of a number of different generic drugs, creams, lotions and ointments. (US District Court, E.D. Pa).
  • Brand name pharmaceutical manufacturer against third party payor health plans claims that it brought so-called "sham" litigation to enforce patents in an effort to impede generic competition. Motion to dismiss granted. United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund, et al. v. Novartis Pharmaceuticals Corporation, et al. (US District Court, D. Mass.).
  • Pfizer and Warner-Lambert against claims brought by the State of Louisiana that Pfizer and Warner-Lambert delayed the introduction of generic versions of Neurontin® by bringing alleged "sham" litigation to enforce patents, causing the State Medicaid Agency to overpay for branded Neurontin®, allegedly in violation of Louisiana anti-monopoly and other laws. While defendants' motion to dismiss was pending, the State agreed to dismiss its claims in exchange for a donation to certain State agencies of an overdose rescue medicine. State of Louisiana v. Pfizer Inc. and Warner-Lambert Company, LLC (19th Judicial Dist. Ct., Parish of East Baton Rouge).
  • Penguin Group in actions brought by defunct electronic book resellers claiming to have been forced out of business as a result of an alleged conspiracy among Apple, Inc. and five major publishers to shift the sale of electronic books to an "agency model" distribution methodology. All three cases were dismissed on the defendants' motions for summary judgment. On appeal by two of the plaintiffs (the third elected not to appeal), Abbey House Media and Diesel Books LLC, the Second Circuit Court of Appeals affirmed per curiam the dismissals. In early August 2017, both appellants stipulated to not pursue any further appeals. Abbey House Media, Inc. d/b/a BooksOnBoard v. Apple, Inc.; Diesel Ebooks, LLC v. Apple, Inc.; DNAML PTY, Limited v. Apple, Inc.
  • Brand name pharmaceutical manufacturer in successful defense of an action by a patient alleging that the company committed fraud on the patent office in obtaining a patent on its product, failed to satisfy the enablement requirement of the patent laws (as evidenced by the fact that plaintiff suffered side effects from the generic) and violated the antitrust laws in a merger that, he alleged allowed it to raise the price of the product he was prescribed. Rejected plaintiffs' claims on standing, statute of limitations and pleading grounds, notwithstanding giving the plaintiffs the benefit of every possible inference in their favor. On our motion, the court dismissed all claims against the company with prejudice and remanded remaining state law claims against co-defendant health insurance carrier to state court. Farag v. Health Care Service Corporation, et ano. (US District Court, N.D. Ill.)
  • Penguin Random House LLC in successful defense of a class action complaint brought in the US District Court for the Southern District of New York by retail booksellers, alleging that Amazon.com and major publishers of electronic books conspired to prevent retail booksellers from selling electronic books by agreeing to use digital rights management software proprietary to Amazon, which prevents Kindle owners from purchasing electronic books from sources other than Amazon. On a motion to dismiss, obtained dismissal with prejudice of all claims against defendant publishers. The Bookhouse of Stuyvesant Plaza, et al. v. Amazon.com et al. (US District Court, SDNY).
  • King Pharmaceuticals LLC in multidistrict litigation in which plaintiffs allege that King conspired with a potential generic entrant to delay or block generic entry in violation of Section 1 of the Sherman Act and certain state antitrust, unfair trade practices and related laws. Defeated motions for class certification by plaintiffs seeking to represent classes of Indirect Purchasers for Resale (e.g., pharmacies) and End Payor Indirect Purchasers (e.g., health insurers, pharmacy benefit managers, consumers), and successfully resolved remaining "opt-out" plaintiffs cases. In re Skelaxin (Metaxalone) Antitrust Litigation (US District Court, E.D. Tenn.)
  • Major railroad, serving as co-counsel, in several nationwide class action antitrust law suits against major US railroads alleging collusion to fix fuel surcharges on freight shipments in violation of the Sherman Act. In re Rail Freight Fuel Surcharge Antitrust Litigation (US District Court, DDC).
  • Random House, Inc. in connection with US Department of Justice investigation into the adoption of "agency" as a means of distributing electronic books (which culminated in actions filed in the US District Court for the Southern District of New York by the DOJ against Apple, Inc. and five publishers other than Random House); and defense of Random House in originally-filed consumer class actions (Random House dropped from the cases upon filing of a consolidated class action complaint). In re Electronic Books Antitrust Litigation (US District Court, SDNY).
  • Novartis AG with respect to the competition law issues associated with its July 2012 $1.5 billion acquisition of a competing dermatologics company, Fougera Holdings, Inc., and represented the company before the Federal Trade Commission to obtain clearance for the acquisition. Novartis Acquisition of Fougera Holdings, Inc.
  • Brand name prescription drug manufacturer in obtaining summary judgment on behalf of it and its codefendants, dismissing on the merits an action by California retail pharmacies alleging a conspiracy to fix prices in violation of the Cartwright Act, California's state antitrust law. Summary judgment was affirmed by the California Court of Appeal and, on November 28, 2012, the California Supreme Court denied plaintiffs' Petition for Leave to Appeal. On June 3, 2013, the United States Supreme Court denied plaintiffs' Petition for a Writ of Certiorari. Clayworth, et al. v. Pfizer Inc, et al. (Superior Court of California, Alameda County).
  • Novartis AG in connection with competition and regulatory approval aspects of its February 2010 acquisition of Corthera, Inc., a privately-held biopharmaceutical company engaged in the research and development of Relaxin, for $120 million, with Corthera's shareholders being eligible for additional payments of up to $500million contingent upon successful development and commercial milestones, and assisted the company in obtaining early termination of Federal Trade Commission review of the transaction. Novartis Acquisition of Corthera, Inc.
  • Pfizer Inc. and its codefendants in obtaining summary judgment, dismissing all damages claims by representative plaintiffs in price discrimination actions brought by several thousand independent pharmacies against a group of major brand name prescription drug manufacturers. Drug Mart Pharmacy Corp., et al. v. American Home Products Corp., et al. (US District Court, EDNY).
  • Together Rx LLC and its founding members, in obtaining voluntary dismissal of horizontal antitrust claims asserted in private third-party payor and Medicare beneficiary class actions as well as all consumer fraud and Medicaid fraud claims against the firm's client asserted by the same plaintiffs. In re Pharmaceutical Industry Average Wholesale Price Litigation (US District Court, D. Mass).
  • Market maker in multi-district class actions alleging agreements restricting multiple listing of options, in violation of the Sherman Act. In re Stock Options Trading Antitrust Litigation (US District Court, SDNY).
  • Union Oil Company of California and its parent in multi-district class actions in which plaintiffs allege that information-sharing in the oil and petrochemical industries retarded salary growth in violation of the Sherman Act. The plaintiffs' two motions for class certification were denied in 2003 and 2006. In re Compensation of Managerial, Professional and Technical Employees Antitrust Litigation (US District Court, DNJ).
  • Major publishers of consumer magazines in successfully obtaining a favorable resolution in multi-district class actions, in which plaintiffs claimed that the publishers, along with their trade association, fixed the prices at which subscriptions were sold. In re Magazine Antitrust Litigation (US District Court, SDNY).

Perspectives

FTC Administrative Law Judge Rejects Agency's First Post-Actavis Enforcement Action Under Rule of Reason
Advisory
Commentary: "Applying the Rule of Reason in the Post-Actavis World"
Columbia Business Law Review, Vol. 2018, Issue 1
The Actavis Antitrust Riddle: The Evidence and Economics of "Reverse Payments"
Panelist, Boston Patent Law Association, Boston, MA
Applying the Rule of Reason Post-Actavis
Commenter, First Annual New York State Bar Association Taft Antitrust Lecture, New York, NY
Cartels and Other Horizontal Relationships
Antitrust Institute 2017: Developments & Hot Topics, Practising Law Institute, New York, NY
More

Recognition

Chambers Global
Competition/Antitrust (USA) (2016-2018)
Chambers USA
Antitrust (New York) (2012-2018)
Antitrust (Nationwide) (2015-2018)
Law360
MVP: Competition (2017)
More

Credentials

Education
  • JD, Hofstra University School of Law, 1981, with distinction
  • BS, Boston University, 1974
Admissions
  • New York
  • Supreme Court of the United States
  • US Court of Appeals for the Second Circuit
  • US Court of Appeals for the Third Circuit
  • US Court of Appeals for the Seventh Circuit
  • US District Courts for the Southern, Eastern, and Western Districts of New York
  • US District Court, Northern District of New York
  • US District Court, Southern District of California
  • US District Court, Southern District of Illinois
Activities
  • Fellow, American Bar Foundation
  • Section of Antitrust—Editorial Board, Antitrust Law Developments (2009—); Price Discrimination Committee, Vice Chair (2006–2009); Trade Associations Committee, Vice Chair (2002–2005), Section of Intellectual Property. Section of Litigation. American Bar Association
  • Antitrust Law Section (Chair, 2007; Executive Committee, 2001–present); Special Committee on Sarbanes-Oxley Issues (2005–2006), New York State Bar Association
  • Committee on Lawyers' Quality of Life, (1997–2000); Committee on Federal Legislation (1991–1993); Committee on Professional Responsibility (1988–1991), Association of the Bar of the City of New York
  • Public Service Committee (2002–2007), Federal Bar Council (Second Circuit)
  • The Trademark Reporter Editorial Board (1994–2000), Publications Committee (1992–1994), International Trademark Association
  • Board Member (Chairman 1998–2003), Martin Luther King, Jr. High School Community Advisory Board
  • Board Member (1999–2002), National Center on Addiction and Substance Abuse at Columbia University Institutional Review Board
Overview

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