Morrison Foerster is an international law firm with lawyers practicing throughout the United States, Asia, and Europe. Click to discover more.

mofo_share_image.jpg

Morrison Foerster

common-default.jpeg

Terms / Notices

Cookies

Privacy Policy

Attorney Advertising

Secure Login

Alumni

  Facebook

MoFo Facebook

  Linkedin

MoFo LinkedIN

Twitter

MoFo Twitter

YouTube

MoFo Youtube

Morrison Foerster - Footer

Antitrust Suit Leaves Big Distributors Sweating

You have not solved the recaptcha challenge yet or session expired, try again.

Email Disclaimer

Disclaimer

Unsolicited e-mails and information sent to Morrison Foerster will not be considered confidential, may be disclosed to others pursuant to our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a>, may not receive a response, and do not create an attorney-client relationship with Morrison Foerster. If you are not already a client of Morrison Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.

Feedback

mofo-logo-2022.svg

People

Capabilities

Resources

About

Culture

Offices

Careers

Stay Connected

David Cross spoke to Wine Searcher about an antitrust lawsuit against America’s biggest two wine and spirit distributors, which could be a landmark action with far-reaching effects.



About Morrison Foerster

people-default-header-desktop.jpg

people-default-header-mobile.jpg

Default Meta Data

David Cross spoke to Wine Searcher about an antitrust lawsuit against America’s biggest two wine and spirit distributors, which could be a landmark action with far-reaching effects.Provi, a new company that organizes business-to-business wine and spirits orders, alleged in a lawsuit filed in federal district court in Illinois that Southern Glazer’s Wine & Spirits and Republic National Distributing Company (RNDC) conspired to eliminate Provi as competition by notifying retailers and restaurants that they would no longer accept orders using the Provi system.David, who represents Provi, said that, in addition to damages, Provi seeks an injunction from the court that would order Southern Glazer’s and RNDC to accept orders from its system again.Read the <a target="_blank" href="https://www.wine-searcher.com/m/2022/04/antitrust-suit-leaves-big-distributors-sweating">full article</a>.

Antitrust Suit Leaves Big Distributors Sweating

Sign Up

David Cross is a partner and chair of the Antitrust Litigation practice in the firm’s Global Antitrust Law Group. He is a trial lawyer with extensive experience in antitrust and complex business litigation, including intellectual property and general commercial matters. He represents domestic and foreign companies as plaintiffs and defendants in federal and state proceedings as well as international and domestic arbitration. David has represented some of the world’s leading companies, including CSX Transportation, DuPont, Etsy, John Deere, Oracle, Sumitomo Electric, Teradata, and Uber.David brings a winning combination of creativity and passionate advocacy to every matter, moving cases to successful conclusions expeditiously and cost-effectively. In a recent trial defending capacitors manufacturer Matsuo Electric against price-fixing claims, class plaintiffs—who were seeking approximately $1.3 billion in damages—settled with Matsuo for only $5 million in the midst of trial, immediately before David was to cross-examine their lead expert. In another recent trial for a leading property management software provider, Entrata, the defendant agreed to a highly favorable settlement between empaneling a jury and delivering opening statements—the settlement included ending the anticompetitive conduct directed at Entrata. David’s zealous pursuit of his clients’ interests includes obtaining millions of dollars in sanctions from opposing parties for litigation misconduct, such as a <a href="https://www.law360.com/articles/1193643" target="_blank">$2 million sanction </a>for Entrata and an <a href="https://www.law360.com/articles/314355/kolon-sanctioned-in-dupont-body-armor-antitrust-suit" target="_blank">adverse inference instruction to the jury plus monetary sanctions</a> for DuPont. David represents clients in all aspects of antitrust and competition-related matters, including government investigations relating to monopolization or alleged price fixing, and nationwide bet-the-company class actions seeking tens of billions of dollars in damages. Clients frequently turn to him for counseling regarding compliance with domestic and international competition laws, including issues involving multisided markets, network effects, pricing algorithms, digital markets, and online marketplaces.In addition to a robust defense practice, David has established a destination practice for businesses confronting anticompetitive attacks from entrenched, dominant competitors. In addition to his successful representation of Entrata, he currently is lead trial counsel for B2B online alcohol marketplace provider Provi asserting <a href="https://www.politico.com/news/2022/03/29/alcohol-ordering-antitrust-suit-00021383" target="_blank">antitrust and unfair competition claims</a> against two major alcohol distributors that have dominated the industry for decades and are prohibiting buyers from using Provi to buy their alcohol products. He is also lead trial counsel for Teradata on antitrust claims against the dominant provider of enterprise resource planning software (ERP), which has tied its struggling enterprise data warehouse software to its leading ERP software to force customers to buy both. And David represents Cedar AI in a matter involving antitrust claims against a major provider of certain competing software used by railroads, which has foreclosed competition through exclusive, long-term contracts and other anticompetitive measures. David represents clients across a broad range of industries, including software, transportation, electronics, genetic testing, data analytics and storage, automotive parts, online services, property management, synthetic fiber, computer products, home appliances, and other consumer products.David maintains a robust pro bono practice focusing on civil rights. He currently leads a team that obtained a <a href="https://www.ajc.com/news/state--regional-govt--politics/judge-denies-paper-ballots-georgia-this-year-but-requires-them-2020/k3OcClTXuJ058FRfHWBQfO/" target="_blank">statewide injunction on behalf of Georgia voters</a> in 2019 to prevent the continued use of an antiquated election system that had been hacked multiple times. David <a href="https://www.youtube.com/watch?reload=9&v=iSkMmqwsHKE" target="_blank">obtained critical admissions from the defendants’ election security expert</a> that confirmed the unreliability of the outdated election system. That injunction helped enable the <a href="https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-1a2ea5e8df69614f4e09b47fea581a09" target="_blank">critical hand-count of ballots cast</a> in the November 2020 Presidential election in Georgia. That case is ongoing due to Georgia’s adoption of <a href="https://www.gpbnews.org/post/lawsuit-seeks-stop-georgia-implementing-new-ballot-marking-devices" target="_blank">a new unreliable election system</a>. The team recently uncovered a <a href="https://www.washingtonpost.com/investigations/2022/09/06/coffee-county-georgia-breach-logan/" target="_blank">breach of Georgia’s current election system</a> by individuals spreading misinformation about the system and the 2020 election results, which led to the <a href="https://www.washingtonpost.com/investigations/2022/09/23/coffee-county-georgia-election-machines/" target="_blank">replacement of certain voting equipment</a>.David clerked for the Honorable Michael B. Mukasey, former Chief Judge of the Southern District of New York and U.S. Attorney General. He previously served as Judge Mukasey’s teaching assistant for trial advocacy at Columbia Law School, both during and after law school.<h4> Representative Experience</h4><ul><li>UDR. Lead counsel for UDR, a publicly traded real estate investment trust that invests in apartments. The litigation involves dozens of class action lawsuits filed around the country asserting price-fixing claims against UDR and many other property management companies involving the use of pricing software offered by a third party, which also is a defendant in the litigation.</li><li>Provi. Lead counsel for Provi, provider of a major B2B alcohol marketplace for commercial retailers to order alcohol products from distributors. Provi asserts antitrust, unfair competition, and tort claims against two dominant alcohol distributors.</li><li>DNA Genotek. Lead counsel for DNA Genotek against antitrust counterclaims filed by the defendant in response to patent infringement claims that DNA Genotek had asserted relating to genetic collection devices for COVID-19 testing and other applications. </li><li>Matsuo Electric. Co-lead counsel for Matsuo Electric in defense of multidistrict litigation involving price-fixing claims by a nationwide class of nearly 1,800 direct purchasers of capacitors seeking approximately $1.3 billion in damages. After a mistrial in spring 2020 due to the pandemic, trial began anew in November 2021. Matsuo settled during trial for only $5 million. Matsuo is headed back to trial against certain opt-out plaintiffs in May 2023.</li><li>Teradata. Lead counsel for Teradata on antitrust claims against the dominant provider of enterprise resource planning software, which competes with Teradata for enterprise data warehouse software customers.</li><li>Cedar AI. Representing Cedar AI in a matter involving antitrust counterclaims against the dominant provider of certain software for shortline railroads.</li><li>Nexstar. Defending Nexstar against nationwide class-action antitrust claims alleging a conspiracy to fix prices for television spot ads in certain markets.</li><li>Entrata. Lead counsel for Entrata, a leading provider of software solutions for large institutional property owners and managers, pursuing monopolization (refusal to deal), tort, and contract claims against Yardi Systems. After jury selection, he obtained a favorable settlement that enabled customers to once again use Entrata’s leading software solutions with Yardi’s backend software system.</li><li>Sumitomo Electric. Lead counsel for Sumitomo Electric in defense of price-fixing claims by Ford Motor Company as part of multidistrict class actions that resulted from the U.S. Department of Justice’s largest ever criminal investigation involving allegations of price fixing for certain auto parts. He obtained a favorable settlement that maintained a valuable relationship with a major customer, one of the largest automotive makers in the world.</li><li>DuPont. Lead counsel for DuPont as a counterclaim defendant in a case alleging monopolization involving para-aramid (fiber) products. The case also involved DuPont’s affirmative claims for trade secret theft regarding its leading Kevlar® products. The court granted summary judgment for the client on all counterclaims on the eve of trial, and a jury returned a verdict of over $900 million for the client on the trade secret claims. The Fourth Circuit upheld summary judgment on appeal.</li><li>CSX. Defended CSX Transportation in a multidistrict class-action litigation alleging conspiracy to fix fuel surcharge prices. He obtained a denial of class certification after a week-long evidentiary hearing, including examination of defendants’ experts.</li><li>John Deere. Represented Deere & Company in connection with the U.S. Department of Justice’s court challenge to the proposed acquisition of Precision Planting LLC, a subsidiary of Monsanto, which decided not to pursue the sale shortly before trial.</li><li>Hyatt. Defended Hyatt Hotels in a multidistrict class-action litigation alleging conspiracy to fix hotel room rates. The court dismissed all claims against the client.</li><li>Uber. Defended Uber against class claims alleging unfair business practices regarding a competitor.</li><li>Daybreak Foods. Defended one of the largest egg producers in the United States in a multidistrict class action and related state litigation alleging conspiracy to fix egg prices.</li><li>General Electric. Represented plaintiff General Electric to recover damages resulting from conspiracy to fix prices of household appliance components.</li><li>Top-ranked university and professor. Special discovery counsel to a top-ranked university and professor in a dispute with a pharmaceutical company over control of a promising prostate cancer treatment drug. The client prevailed at trial.</li><li>Fortune 500 company. Special discovery counsel to a Fortune 500 company involving civil fraud claims. At trial, the jury returned a verdict for the client on all claims.</li><li>Oracle. Represented Oracle and other large commercial purchasers of dynamic random access memory (DRAM) as opt-outs in multidistrict class-action litigation to recover damages resulting from a price-fixing cartel including certain DRAM suppliers. The litigation obtained favorable settlements before the trial.</li><li>Enron Creditors Recovery Corporation. Represented Enron Creditors Recovery Corporation (ECRC) in bankruptcy litigation against two international financial institutions arising from the collapse of Enron Corporation in 2001. The litigation settled on the eve of trial, with settlements for ECRC valued at nearly $6 billion.</li><li>Kodak. Represented the Fortune 500 imaging company in a patent infringement action involving a process for virtual proofing of digital print jobs. The case settled on confidential terms.</li><li>International biotechnology company. Counseled a large international biotechnology company on a dispute pertaining to the licensing of proprietary human genome data and technology. The case settled on confidential terms after trial began.</li><li>Disc-drive maker. Represented leading disc-drive maker in patent infringement action as a respondent before the U.S. International Trade Commission (ITC) and as a defendant in a parallel action in federal district court. The cases settled on confidential terms on the eve of trial.</li><li>International licensing companies. Represented international licensing companies as complainants in a patent infringement action before the ITC regarding color televisions and display monitors. The case settled on confidential terms after the trial.</li><li>Fortune 100 communications company. Represented a Fortune 100 communications company in a software licensing dispute. The case settled on confidential terms on the eve of trial.</li></ul>

David D. Cross

Partner

Antitrust Law