ProfessionalsKenneth A. Gallo
Chair of the Washington, D.C. office and a partner in the litigation department, Ken Gallo has substantial trial experience in antitrust, patent and major commercial disputes. He has tried cases involving the banking and payments industries, computer hardware and software products, medical and telecommunications equipment, commercial real estate and biotechnology products.
Ken regularly represents clients in private and government antitrust matters, including claims related to alleged monopolization, tying, mergers and acquisitions, cartels and the interplay between the antitrust and intellectual property laws. He has been recognized as one of America’s top antitrust, patent and commercial litigators by various publications including Chambers USA, Benchmark/Institutional Investor, Best Lawyers in America, The Legal 500, The National Law Journal and Financial Times, who named Ken one of the “Top 10 Agents for Change.” Ken was selected to “The International Who’s Who of Competition Lawyers & Economists 2013” by the Global Competition Review.
Some of his representative antitrust matters include:
- Farelogix, Inc. – Ken successfully led the trial team that won a verdict on behalf of Farelogix and Sandler Capital Partners V, LP in a closely watched antitrust merger trial in which the U.S. Department of Justice sought to block Farelogix’s acquisition by Sabre Corporation. The DOJ argued that the merger between Farelogix, an information technology company that connects travel agencies directly with airlines and travel services, and Sabre, a leading global travel distribution intermediary between ticket agents and airlines and travel services, would eliminate competition for booking services in the online and traditional travel agency markets, harming airlines and travelers. After a two-week bench trial in the District of Delaware, U.S. District Judge Leonard Stark rejected the DOJ’s request for a permanent injunction and entered judgment in favor of the defendants.
- Bumble Bee Seafoods – Ken was retained by Bumble Bee Seafoods in the defense of a price fixing class action and opt-out litigation in the $1.7 billion packaged tuna market.
- Mastercard Incorporated – Ken has represented Mastercard for twenty years in a series of government and private antitrust actions. He is lead counsel for Mastercard in the so-called “Interchange” multidistrict litigation brought by putative classes of U.S. merchants, as well as in related individual actions brought by nearly 100 of the largest merchants in the U.S., challenging payment card “interchange” fees and certain rules governing merchants’ acceptance of payment cards. He is currently representing the company in three related antitrust class actions brought on behalf of independent ATM operators and two groups of ATM consumers challenging ATM access fee non-discrimination rules. He also represents the company in defense of an antitrust class action brought on behalf of U.S. merchants alleging that major payments networks, together with card-issuing banks, conspired to shift fraud costs for certain card transactions from the issuing banks onto merchants in connection with the roll-out of EMV-chip cards in the U.S. Ken has further defended the company in civil investigations and lawsuits brought by the United States; in private suits brought by competitors under the Sherman Act; against class action merchant complaints of alleged tying of credit and debit products; and against claims brought by classes of indirect purchasers in more than 20 states.
- Sharp Corporation – Ken was lead advisor to Sharp Electronics Corporation and Sharp Electronics Manufacturing Company of America, Inc. in a major antitrust class action litigation in which Sharp was a plaintiff. The plaintiffs alleged that manufacturers of cathode ray tubes conspired to fix prices and exchanged competitive business information, harming competition in violation of Section 1 of the Sherman Act. The alleged conduct occurred over a 12-year period and affected billions of dollars of cathode ray sales in the U.S. We successfully reached successive, favorable settlements with the Hitachi, LG, Panasonic, Philips, Samsung SDI, Technologies Displays Americas, Thomson and Toshiba defendants. Ken also obtained summary judgment on behalf of Sharp dismissing a $3 billion damage claim brought by Motorola for alleged price fixing of LCDs, and represented Sharp in a DOJ investigation of LCD pricing and LCD class action opt out cases brought by AT&T, Best Buy, and Dell.
- News Corporation – Ken leads the representation of News America Marketing (NAM), a News Corp subsidiary, in the dismissal of antitrust claims brought by competitor Valassis Communications, Inc. Valassis alleged that NAM violated a consent order—resolving an earlier lawsuit between the parties—through unlawful bundling and tying. The claims were referred to a panel of antitrust expert special masters who, after a hearing and consideration of briefing and expert reports, found that Valassis had failed to establish a prima facie case of unlawful bundling and tying and recommended dismissal of the claims; and in a separate lawsuit brought by Valassis pending in the Southern District of New York. Valassis claims that NAM monopolized an alleged market for third-party in-store promotions by engaging in a variety of alleged exclusionary practices. Valassis seeks monetary damages and injunctive relief.
- Citigroup Inc. – Ken is defending Citigroup Inc. and certain affiliates in an ongoing multidistrict putative class action filed in November 2015, alleging that Citi and various other banks conspired to reduce potential competition in interest rate swap trading and to raise prices for purchasers of the swaps. The consolidated action includes a putative class of purchasers of the interest rate swaps and individual plaintiffs who allegedly attempted to launch a competitive form of interest rate swap trading.
- Morgan Stanley – Ken represents Morgan Stanley in a class action alleging that primary dealers in the auction market for debt instruments issued by the U.S. Treasury conspired to rig the auctions and manipulate the pricing of Treasury bills, notes, bonds and derivative products. Forty-five separate complaints have been filed so far. We have been selected by the 22 defendants (each of whom is separately represented by a major law firm) to serve on the defense steering committee and liaise with the plaintiffs and the court, and we are the architects of the motion to dismiss that is currently being drafted.
- Cartel Matters – Ken regularly represents U.S., Japanese and European companies in DOJ and state AG antitrust investigations. He has, for example, represented a major European bank in an investigation related to alleged bid rigging on municipal bonds; a major financial institution in the foreign exchange investigation; a U.S. corporation in the transportation industry; a Japanese manufacturer of high technology glass products; and a European carbon manufacturer. Ken has served as global coordinating counsel for clients facing investigations by competition authorities in the U.S., Canada, Mexico, Japan, Korea, Brazil, the UK and the EU.
- AIG - Ken successfully defended AIG against RICO and antitrust class action claims related to alleged bid-rigging of insurance contracts in all lines of commercial insurance.
- A major Japanese bank – Ken currently is defending a major Japanese bank in a putative class action involving antitrust and Commodity Exchange Act claims relating to alleged manipulation of foreign exchange rates.
Some of Ken’s representative intellectual property matters include:
- SAP AG – Ken is defending German-based multinational software company SAP in an action brought by a business analytics provider alleging that SAP misappropriated trade secrets, infringed copyrights, and engaged in antitrust violations related to its flagship product, HANA.
- Genentech Patent Litigation – Ken has represented Genentech against GlaxoSmithKline, Eli Lilly, Bristol Myers Squibb, and Human Genome Sciences on patent infringement claims related to the Cabilly patents regarding recombinant DNA antibodies. Ken also successfully represented Genentech in a federal jury trial in Philadelphia against a $1 billion claim for misappropriation of intellectual property and fraud related to the development of Lucentis, a leading treatment for age-related macular degeneration and in an IPR challenge brought by Bioeq, which is developing a biosimilar version of Lucentis. He represented Genentech in patent infringement litigation against Regeneron involving anti-VEGF treatments for eye disease and cancer. Ken previously assisted in a jury trial representation of Genentech against patent infringement claims related to oncology care products Herceptin and Rituxan. He also represents the company in a patent infringement challenge brought by Baxalta seeking to prevent Genentech from bringing the hemophilia A drug treatment emicizumab to market in the U.S., recently defeating Baxalta’s request for a preliminary injunction. He is further advising Genentech in its litigation strategy concerning its anti-PD-L1 monoclonal antibody Tecentriq™, recently approved for use in certain advanced bladder and lung cancers.
- Nichia Corporation – Ken represents Nichia Corporation in numerous disputes concerning the company’s core patents covering bright-white light-emitting diode (LED) technology. Ken was retained to replace previous counsel in a Federal Circuit appeal following a jury trial. He also represents Nichia in the enforcement of its patent rights to white LEDs and backlights and liquid crystal displays, including litigations nationwide against VIZIO, TCL Corporation, Mary Elle Fashions and Lowe’s Companies Inc.
- Telecommunications Patent Litigation – Ken successfully represented a major European electronics company in a jury trial on patent, copyright and trade secret claims related to telecommunications hardware and software products.
- Automotive Technology Patent Litigation – Ken successfully defended more than 15 automotive manufacturers and their suppliers in district court and the Federal Circuit against patent infringement claims related to side impact air bag sensors.
- BASF Corporation – Ken successfully represented BASF on patent infringement claims against generic competitors related to a leading chemical pesticide. He also represented BASF against DuPont on patent infringement claims related to genetically modified corn. He successfully defended BASF against patent infringement claims by Chevron Phillips related to block co-polymers. Also, he represented BASF in successful litigation against Honeywell to enjoin the disclosure of trade secrets.
- Siemens Corporation – Ken successfully represented Siemens as a plaintiff in a patent jury trial in the Northern District of Georgia related to telecommunications equipment. He also represented Siemens in an ITC patent trial related to LED products. The matter settled before trial.
- New Venture Gear/Patent Litigation – Ken represented an automotive industry joint venture against patent infringement claims related to on-demand four-wheel drive systems.
Ken is a former member of the Firm’s Management Committee.