Joshua Lipton

Joshua Lipton is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP.  He practices in the firm's Litigation Department and is a member of the firm's Antitrust and Trade Regulation Practice Group.  He has practiced principally in the antitrust field, on matters including litigation in state and federal courts, merger and acquisition investigations, and antitrust investigations by federal and state agencies and the European Commission.  He has represented clients in a variety of industries, including pharmaceuticals, semiconductors and other high technology, defense, petroleum, health care, automobiles, professional sports, and airlines, among others.

Mr. Lipton is listed in Chambers USA’s America’s Leading Lawyers for Business as a leading antitrust specialist.

The 2009 edition of Legal 500’s US Legal 500 Guide states:  “‘Practical in his advice and attentive to costs,’ say clients, Washington DC-based partner Joshua Lipton has a flourishing reputation as a persuasive antitrust advocate before both state and federal courts.”

Mr. Lipton’s representative litigation matters include:

• Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).  Authored the briefs to the Supreme Court on behalf of Leegin in this landmark case in which the Supreme Court overturned the century-old per se rule against resale price maintenance.
• Aventis Pharma S.A. v. Amphastar Pharms., Inc. (C.D. Cal. 2009).  Represented Aventis in securing dismissal of antitrust counterclaims brought by Amphastar, a generic drug manufacturer, following an unsuccessful patent enforcement action by Aventis.  Amphastar alleged that Aventis engaged in anticompetitive conduct by obtaining patents through fraud, commencing sham patent infringement litigation, and filing a frivolous citizen petition with the FDA.  The court found that Amphastar’s allegations regarding Aventis’s citizen petition to the FDA were barred by Aventis’s Noerr-Pennington immunity, and that Amphastar’s remaining allegations were insufficient to state a claim because Amphastar’s lack of FDA approval barred any finding of causation and antitrust injury.
• In re New Motor Vehicles Canadian Export Antitrust Litigation, MDL No. 1352 (D. Me. 2009).  Represented Nissan North America in defending class action antitrust litigation relating to an alleged conspiracy to limit the flow of gray market motor vehicles from Canada to the United States.  In 2008, the Court of Appeals for the First Circuit reversed and vacated the district court’s order certifying a damages class of more than 13 million car purchasers and an injunctive class of more than a hundred million American consumers.  The court then ordered outright dismissal of the plaintiffs’ claim for injunctive relief for alleged violations of Section 1 of the Sherman Act.  Following that order, the defendants moved for summary judgment on the issue of impact from the alleged conspiracy.  Applying the framework established by the First Circuit, the district court granted summary judgment in July 2009, concluding that the plaintiffs had failed to establish any injury-in-fact from the alleged restraint of trade.
• In re Ditropan XL Antitrust Litigation, MDL No. 1761 (N.D. Cal. 2007).  Represented Johnson & Johnson subsidiary, Alza Corporation, in defending class action antitrust (monopolization) claims brought by direct and indirect purchasers relating to the branded pharmaceutical product Ditropan XL®.  The lawsuits were brought in the aftermath of Alza’s unsuccessful efforts to enforce patent rights against manufacturers of generic versions of Ditropan XL.  The plaintiffs alleged that Alza obtained its patent by fraud on the Patent Office and engaged in sham patent litigation to delay FDA approval of the proposed generic drugs.  The claims of the direct purchasers were dismissed with prejudice and, after two years of litigation, the indirect purchasers voluntarily dismissed their claims with prejudice.
• Atlantic Coast Airlines v. Mesa Air Group, 295 F. Supp. 2d 75 (D.D.C. 2003).  Represented Atlantic Coast Airlines, which was attempting to fight off a hostile takeover attempt by Mesa Air Group.  Shortly after Atlantic Coast announced its plans to launch a new airline, to be known as Independence Air, which would compete directly with United Airlines, Mesa made an unsolicited merger offer and announced a consent solicitation to replace Atlantic Coast’s board of directors and devote Atlantic Coast’s resources to serving as a United Express carrier pursuant to a memorandum of understanding Mesa had negotiated with United Airlines.  Atlantic Coast filed antitrust claims against Mesa, claiming that Mesa and United had conspired in violation of Section 1 of the Sherman Act to prevent the entry of Independence Air.  The District Court granted a preliminary injunction that prevented Mesa from proceeding with its takeover attempt.  This was the first time in over a quarter century that a hostile takeover was enjoined in a private lawsuit on antitrust grounds.

Mr. Lipton’s representative merger and acquisition matters include:

• Represented Watson Wyatt before the DOJ in connection with its merger with Towers Perrin.  After substantive presentations by the parties, the DOJ granted early termination of the HSR waiting period in August 2009.
• Represented Intel Corporation in securing antitrust clearance for the formation of Numonyx, a joint venture comprised of the NOR flash memory businesses of Intel and ST Microelectronics.  The Department of Justice initiated a second request investigation, but cleared the transaction in October 2007 following a "quick look" review of the transaction.
• Represented Enterprise Rent-A-Car in obtaining FTC approval of its 2007 acquisition of Vanguard Car Rental.
• Represented Sony Music Corporation in obtaining FTC approval of its 2004 merger with BMG.
• Represented Northrop Grumman Corporation in obtaining DOJ approval of its 2002 acquisition of TRW.
• Represented Exxon Corporation in obtaining FTC approval of its 1999 merger with Mobil Corporation.

Mr. Lipton is active in the Section of Antitrust Law of the American Bar Association.  He is currently a vice chair of the Section’s Trial Practice Committee.  Mr. Lipton was the Assistant Editor of the ABA Antitrust Section’s Model Jury Instructions in Civil Antitrust Cases (2005 ed.), and he has contributed to a number of antitrust journals and treatises.

Mr. Lipton received his law degree, magna cum laude, from the University of Michigan School of Law in 1998, where he graduated first in his class and was a member of the Michigan Law Review.  He earned a Bachelor of Arts degree, cum laude, from Amherst College in 1994.

Mr. Lipton is admitted to practice in the District of Columbia.