Howard M. Ullman

Orrick, Herrington & Sutcliffe (San Francisco)
Lawyer (Of Counsel)

Howard Ullman, of counsel in the San Francisco office, is a member of the Litigation Group. He focuses his practice on antitrust, trade regulation and unfair competition issues. He has extensive experience advising on distribution law and distribution system issues (including pricing issues, non-price restraints and dealer termination issues). He routinely addresses and counsels on the antitrust / intellectual property interface. Mr. Ullman represents Nanya Technology Corporation and Nanya Technology Corporation USA in the national DRAM antitrust price-fixing cases. He has also worked on antitrust cases for PG&E Corporation, Equifax, One Technologies, and a number of other companies. He regularly counsels companies on competition issues, including Robinson-Patman Act issues and market concentration issues. He has worked on a number of Cal. Bus. and Prof. Code Section 17200 (unfair competition) litigations. He has also worked on a number of antitrust-healthcare related matters.

Distinctions

Articles

3924 Bulletin

Howard M. Ullman The US Court of Appeals for the Sixth Circuit considers that activity in connection with a joint venture that is plausibly procompetitive is not subject to per se analysis or condemnation (The Medical Center at Elizabeth Place / Atrium Health System)

380

Plausible Pro-competitive Justifications Remove Joint Venture Restraints from the Per Se Rule* In The Medical Center at Elizabeth Place, LLC v. Atrium Health System, Case No. 17-3863 (6th Cir. Apr. 25, 2019), the Sixth Circuit held that activity in connection with a joint venture that is (...)

Howard M. Ullman A US District Court dismisses a federal antitrust claim brought against automobile manufacturer by a franchise car dealer for failing to prove facts concerning an alleged tying between the rental agreement and the volume of cars sold (Matthew Enterprise / Chrysler Group)

124

Northern District of California Addresses Functional Discounts, Price Discrimination Claims* In Mathew Enterprise, Inc. v. Chrysler Group, LLC, 2014 U.S. Dist. LEXIS 95522 (N.D. Cal. July 11, 2014) (Freeman, J.), the court dismissed certain Robinson-Patman Act price discrimination claims and (...)

Howard M. Ullman A US District Court receives a complaint on an allegation of anticompetitive agreements to exclude the plaintiff from the market for ownership of professional basketball franchises (Donald Sterling / NBA)

198

Basketball, Surreptitious Recordings, and Antitrust* Donald Sterling — yes, that Donald Sterling — filed an antitrust lawsuit a few days ago against the National Basketball Association. You can download a copy here: Sterling Antitrust Complaint. It’s not clear if the complaint has now been (...)

Howard M. Ullman A US District Court receives letter from former employee and plaintiff in the trial asking the judge to reject the settlement negotiated by his own lawyers (High-Tech Employee Antitrust Litigation)

74

A Rare Challenge to a Class Action Settlement . . . From a Named Plaintiff* One of the named class plaintiffs in the high-tech employee antitrust case has filed an objection to the proposed class settlement. The plaintiff, Mr. Michael Devine, analogized the approximately $300 million (...)

Howard M. Ullman The US Supreme Court grants petition in a case concerning alleged exclusion of non-dentists from offering tooth-whitening services (North Carolina Board of Dental Examiners)

382

U.S. Supreme Court to Decide When Professional Licensing Bodies Have Antitrust Immunity* The state action immunity doctrine shields private actors from antitrust liability if their activities are actively supervised by a state. But arms of the state itself generally don’t have to satisfy the (...)

Howard M. Ullman A US District Court largely rejects a motion to dismiss an antitrust price-fixing complaint, though it holds that a recognized exception against indirect purchaser suits has not been adequately pled (Lithium Battery)

75

Lithium Ion Batteries Court Addresses Illinois Brick Exception, Finds Standing for Certain Indirect Purchasers of Component Products* In In re: Lithium Ion Batteries Antitrust Litigation, 2014 U.S. Dist. LEXIS 7516 (N.D. Cal. Jan. 21, 2014) (Gonzalez Rogers, J.), the Northern District of (...)

Howard M. Ullman The US District Court for the Northern District of California finds evidence that the merging parties expected the transaction to have anticompetitive effects (Bazaarvoice / PowerReviews)

123

Another Example of Why You Should Follow the “New York Times” Rule — the Bazaarvoice Decision* Have you heard of the New York Times rule? The rule is: don’t write something down in a business communication unless you’re comfortable with its text appearing in the New York Times. If everyone followed (...)

Howard M. Ullman The US District Court for the Northern District of California denies the motions to dismiss the plaintiff’s amended complaint against the "anti-troll" group organizing a boycott of android related patents (Cascades Computer Innovation / RPX)

141

“Anti-Patent Troll” Fails to Secure Dismissal of Amended Antitrust Complaint* Back in January, I covered the case of Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), where Judge Yvonne Gonzalez Rogers dismissed – with leave to amend – Cascades’ (...)

Howard M. Ullman The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse in relation to flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)

206

Trademark Misuse Is ^Almost^ Never an Antitrust Injury* Trademarks are commonly thought to convey no market power. In RJ Machine Co. v. Canada Pipeline Accessories Co., Case No. 1:13-cv-00579-SS (W.D. Tex. Nov. 22, 2013) (Sparks, J.), the court dismissed antitrust claims predicated upon (...)

Howard M. Ullman The U.S. District Court for the Northern District of California certifies a class of student athletes seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)

157

Injunctive Relief, but not Damages Class, Certified in NCAA Student-Athlete Litigation* In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 U.S. Dist. LEXIS 160739 (N.D. Cal. Nov. 8, 2013) (Wilken, J.)., the Court certified a class of current and former (...)

Howard M. Ullman The U.S. District Court of Northern California draws a sharp line between two types of sham litigation claims and dismisses the monopolization counterclaims with leave to amend (Surface Supplied/Kirby Morgan Dive)

104

A Useful Reminder About Sham Litigation as Exclusionary Conduct* In Surface Supplied, Inc. v. Kirby Morgan Dive Systems, Inc., 2013 U.S. Dist. LEXIS 143478 (N.D. Cal. Oct. 3, 2013) (Chesney, J.), the Court dismissed attempted monopolization and monopolization counterclaims with leave to amend. (...)

Howard M. Ullman The US District Court for the Northern District of California dismisses plaintiff’s antitrust claims and ascertains that allegations of harm to competition caused by multiple defendants can’t be aggregated (Orchard Supply Hardware/Home Depot, METCo & Makita)

155

Allegations of Harm to Competition Caused by Multiple Defendants Can’t be Aggregated* Earlier this year, I covered the case of Orchard Supply Hardware LLC v. Home Depot USA, Inc. . On September 19, 2013, the court (the Northern District of California) issued its decision on defendants’ motion (...)

Howard M. Ullman The U.S. Court of Appeals for the Ninth Circuit affirms the district court’s denial of class certification and the dismissal of complaint with prejudice (Sommers / Apple)

245

If Your Allegations Don’t Establish a Price Effect, You May Lack Antitrust Standing* In Somers v. Apple, Inc., Case No. 11-16896 (9th Cir. Sept. 3, 2013), the Ninth Circuit affirmed the district court’s dismissal of a putative class action against Apple, Inc., alleging antitrust violations in (...)

Howard M. Ullman The US District Court of Northern California rejects the defendants’ motion to dismiss challenging antitrust claims arising out of an exclusive license deal (Patrick Dang / San Francisco Forty Niners)

229

Single-Brand Market Claims Are Not Dead* Modern antitrust law’s focus on inter-brand competition has made it much more difficult to plead and prove single-brand market claims. The law’s concern with inter-brand competition is so strong that some observers have all but written off such claims as (...)

Howard M. Ullman The US District Court, 9th Circuit refuses to dismiss the plaintiffs’ below-cost pricing claims raised under Unfair Practices Act in respect of clinical laboratory testing services (Rheumatology Diagnostic Laboratory / Aetna)

81

Is the California Unfair Practices Act a Free Pass on Motions to Dismiss?* Probably not, but UPA claims can be tough to defeat at the motion to dismiss stage. Witness Rheumatology Diagnostics Laboratory, Inc. v. Aetna, Inc., 2013 U.S. Dist. LEXIS 151128 (N.D. Cal. Oct. 18, 2013) (Orrick, J.), (...)

Howard M. Ullman The US District Court for the Northern District of California dismisses with leave to amend antitrust claims against high-tech producers employing the android operating system (Cascades Computer Innovation / RPX)

115

Can An “Anti-Patent Troll” Be a Monopsonist or a Section 1 Conspirator?* A recent interesting case suggests that “anti-patent trolls” may in theory face antitrust liability. In Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), Judge Yvonne (...)

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