But who was quickest out of the gate to tout the shared victory? It wasn't one of those cases where one firm did all the work. The six firms all submitted separate briefs. Their lawyers all had a piece of the oral argument before the U.S. Court of Appeals for the Second Circuit. Now, they all own the summary judgment win after the unanimous panel rejected allegations by Anderson News. The now-defunct magazine wholesaler unsuccessfully alleged that defendants including American Media Inc.; Time Inc. and Bauer Publishing conspired to boycott the company and drive it out of business. The surprise winner for swiftest PR response? Cravath, Swaine & Moore, which is not a firm I think of as being especially quick to toot its own horn. But Cravath had an announcement out about the win before noon: “Cravath Represents Time Inc. in Appellate Victory Affirming Dismissal of $1 Billion Anderson Antitrust Suit.” The Cravath team was led by Rowan Wilson, who retired from the firm last year to become an associate judge of the New York Court of Appeals, and partners Anthony Ryan and Thomas Rafferty. An hour and a half later, an email from Dechert landed in my in-box—“Dechert Obtains Second Circuit Affirmance of Summary Judgment for Curtis Circulation Company in Antitrust Conspiracy Case.” Partner George Gordon led the team. It's the firm's second big antitrust win this summer—partner Steven Bizar led a team defeating a suit alleging an antitrust conspiracy to raise the price of eggs. But Pillsbury Winthrop Shaw Pittman, which represented American Media (publisher of the National Enquirer, Us and Star, among other titles), and Troutman Sanders, which represented Bauer (whose magazines include Woman's World and Soaps in Depth) didn't put out announcements about the win. The same with McElroy, Deutsch, Mulvaney & Carpenter for Kable Distribution Services, Inc. and Rosenberg & Estis for Rodale, Inc. Firm reps from Pillsbury and Troutman said they'd get back to me as soon as they had approval to comment—which didn't happen by c.o.b. on Monday. Of course, the ability to brag about a win is largely dependent on getting the client's OK. (Woe to the firm, for example, that ever talks about its work for Apple.) But it's also dependent on the lawyers making it a priority. And in a case like this, where there are at least six potential attorneys from six different firms to call for comment, the publicity edge goes to those who make themselves easily available. Anderson, which was represented by lawyers including Michael Kellogg of Kellogg, Huber, Hansen, Todd, Evans & Figel and Marc Kasowitz of Kasowitz, Benson & Torres, filed suit in 2009 in Manhattan federal court. The company served as a middleman between publishers and retailers like supermarkets, delivering magazines, setting up displays, and picking up unsold copies when they were no longer current. Faced with declining profits, Anderson in early 2009 announced that it would begin charging publishers a delivery surcharge of $0.07 per magazine. As leverage, the company obtained commitments from Wal-Mart and Kroger—the two biggest magazine retailers—to refuse to accept magazine shipments from any other wholesalers during the short negotiation period. The publishers—facing their own economic woes in 2009—were unwilling to accept the surcharge, and promptly moved their business to other wholesalers. Soon after, Anderson entered bankruptcy and brought this lawsuit, alleging that the publishers staged an unlawful group boycott in violation of the Sherman Act, as well as claiming tortious interference with business relationships and contracts, plus civil conspiracy. Trial court Judge Paul Crotty in the Southern District of New York was distinctly unsympathetic. He dismissed the complaint, writing that it was “implausible that magazine publishers would conspire to deny retailers access to their own products,” and that Anderson's “own ill-conceived and badly executed plan led to its downfall.” (A tiny aside: Many years ago, before I became a journalist, I was the receptionist at a small beer company with a lot of legal issues, and Paul Crotty was our outside counsel. For the longest time, I thought his name was Paul Karate—which I still think would be an awesome name for a litigator or judge.) The Second Circuit remanded the case once to allow Anderson to file a second amended complaint, but in the end, the company still came up short. “What Anderson offers as evidence of the conspiracy could just as easily be characterized as evidence of competition,” wrote Judge Susan Carney for the panel. “Without more, such an ambiguous record is insufficient to withstand the scrutiny required by the Supreme Court in Matsushita, particularly when, as here, the alleged conspiracy makes little economic sense.” See also Second Circuit Sides With Magazines Over Wholesaler in Antitrust Case |

Lateral Watch

Former federal prosecutor Brooke Cucinella is slated to join Simpson Thacher & Bartlett as a litigation partner in September. A senior member of the Securities and Commodities Fraud Task Force at the U.S. Attorney's Office for the Southern District of New York, Cucinella last year successfully prosecuted sports gambler William “Billy” Walters for insider trading. “It was really the lineup of litigators” and Simpson partners with senior government experience that convinced her to join the firm, she told The New York Law Journal. For more, see SDNY Securities Fraud Prosecutor to Join Simpson Thacher

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Jones Day has added first chair IP litigator Michael Hendershot from Paul Hastings as a partner in its Silicon Valley office. Hendershot has represented clients in a range of industries, including mobile devices, computer hardware, software, voice activation, semiconductor technology, e-commerce, digital broadcasting and wireless networking, chemical manufacturing processes, medical implants, photonics, and health care. "Mike comes to Jones Day as an accomplished IP trial lawyer who has delivered tremendous results in the most important patent courts in the United States," Anthony M. Insogna , who leads Jones Day's IP practice, said in a news release. "His experience with California's leading technology companies as well as with some the world's true innovators will be synergistic with our existing team." |

What I'm Reading

Feds Want Orrick Out in Jawbone Trade Secrets Case Federal prosecutors are seeking to disqualify Orrick, Herrington & Sutcliffe and partner Randy Luskey because of potential conflicts of interest stemming from Luskey's previous representation of co-defendants in the case. Midwest Lawyers Stuck With Midwest Rates, Federal Judge Tells Arent Fox Arent Fox sought an hourly rate of $826 for Mark “Thor” Hearne II, while the likely St. Louis market rate would be more like $504 per hour. Cisco, Arista Settle IP, Antitrust Disputes With Arista Paying $400M Cisco has been represented throughout the litigation by firms including Quinn Emanuel Urquhart & Sullivan; Kirkland & Ellis; and Desmarais, while Arista has tapped Keker Van Nest & Peters, Tensegrity Law Group; Latham & Watkins and others. Is it 'Palate' or 'Palette'? Cleaning Up the Supreme Court's Messes The high court has taken a small step toward transparency when it comes to revising opinions after they are handed down—a practice that until 2015 was shrouded in secrecy. Appeals Court Allows Paralegal to Sue Houston Lawyer Over BP Oil Spill Case Work The paralegal said he entered into an oral contract with lawyer Robert A. McAllister and his law firm in 2010 for a fee-sharing agreement in which Luong would be paid a percentage for bringing in clients and working on their files. AT&T Case 'Will Shape the Future,' DOJ Tells DC Circuit in Opening Brief “This appeal arises from the first vertical merger case the United States has needed to litigate to judgment in four decades.” (“Need” being loosely defined.)