Wesley R. Powell

Publications

• “After Loss at Trial, FTC Cures Victory for Hypothetical Monopolist Test on Appeal in Healthcare Merger Challenge,” The Antitrust Counselor (October 2016)
• “Supreme Court Extends ‘Rigorous Analysis’ Standard for Class Actions to Damages Claims in Comcast Corp. v. Behrend,” WFG Client Memorandum (April 10, 2013)
• “US Anti-Trust Laws: Reach Expanded?” CNBC-India television interview (aired August 10, 2012) and published on MoneyControl.com (August 13, 2012) 
• “Following Wal-Mart v. Dukes, District Court in Ninth Circuit Requires ‘Rigorous Analysis’ in Antitrust Class Certification Decisions,” 9 THE ANTITRUST PRAC. 11 (2012)
• "The Roberts Court on Antitrust," The Corporate Counselor, Volume 22, Number 6 (November 2007, co-author)
• "Antitrust Disputes Nixed: SEC Governs IPO Underwritings," New York Law Journal (August 23, 2007, co-author)
• "Considering Credit Suisse," The Daily Deal (July 9, 2007, co-author)
• "Abbott Laboratories v. Teva Pharmaceuticals USA, Inc.,” Sherman Section One Newsletter (American Bar Association, Section of Antitrust Law) (Winter 2007, co-author)
• "Settlement Class Certification: Application of a More Flexible Certification Standard Since Amchem," 4 The Antitrust Prac. 6 (July 2006, co-author)
• "Update on Patent Settlement Cases," Sherman Act Section One Newsletter (American Bar Association, Section of Antitrust Law) (Spring 2006, author)
• "Be Careful What You Waive: Giving Up Attorney-Client and Work-Product Privileged Material To Investigators Could Affect Private Litigation Later," Daily Journal Securities Law Update (April 28, 2004 co-author)
• "Publication of Non-Profit Media Watch-Dog Group Deemed Commercial Speech," Libel Defense Resource Center Libel Letter (August 2001, co-author)
• "Publishing Without Borders: Internet Jurisdictional Issues," Practicing Law Institute (May 2001, co-author)
• "Defining Commercial Speech: The Search for Clarity in a Clash of Values," Libel Defense Resource Center Bulletin (April 2001, co-author)
• “Libel Defense Resource Center 50-State Survey” (Media, Privacy and Related Law), Second Circuit Chapter (2001-2002, co-author)

Speaking Engagements

• Moderator, “Competition and Privacy in Digital Markets,” (American Bar Association, January 31, 2020)
• Chair, New York State Bar Association Antitrust Section Symposium, January 25, 2018
• Panelist, “May Developments Update,” (American Bar Association, Antitrust Section, Committee on Corporate Counseling, June 9, 2016)
• Moderator and Panelist, “Hot Topics in Antitrust 2016.” (Lawline.com, February 17, 2016)
• Panelist, “US v. AmEx: Reflections and Remedies.” (New York State Bar Association, July 16, 2015)
• Speaker, “Competition Law – Global Litigation Issues.” (New York State Bar Association International Section, European Conference, March 13, 2015)
• Moderator and Speaker, “Antitrust Developments in 2014:  The Year in Review.” (New York State Bar Association Antitrust Section Annual Meeting, January 29, 2015)
• Panelist, “Rule of Reason:  Innovative Application?” (New York State Bar Association Antitrust Section, Horizontal Restraints Committee, October 8, 2014)
• Program Chair, “Managing Antitrust Risk in the U.S. and Abroad:  Compliance, Investigations, Litigation and IP” (Lawline.com, September 30, 2014)
• Moderator and Panelist, “Antitrust Compliance Best Practices and Related Ethical Issues” (Lawline.com, September 30, 2014)
• Panelist, “Back To The Future: Revisiting Class Certification in In re: Visa Check/MasterMoney Antitrust Litigation Under The Standards Enunciated in In re: Initial Public Offering Securities Litigation” (NYSBA, Antitrust Section, Annual Meeting, January 2012)
• “Defending (and not defending) the Defense of Marriage Act” (May 24, 2011, sponsored by LeGaL and New York County Lawyers’ Association)
• Co-chair, Panel on “International Cartel Enforcement in the Digital Age: Collection and Use of Evidence Beyond Borders” (NYSBA, Antitrust Section, Annual Meeting, January 2011)

Antitrust Litigation and Merger Advocacy

• Lead counsel for defendant in In Re SSA Bonds Antitrust Litigation, pending in the United States District Court for the Southern District of New York and related government inquiries
• Lead counsel for Silver Lake Management in governmental inquiries and class action litigation related to joint bidding for leveraged buy-outs
• Represented MasterCard in price-fixing and related class-action and out-out claims and related state and federal regulatory proceedings (see In Re Swipe Fee Litigation, American Lawyer “Big Suits” column, 10/2012)
• Represented MasterCard in In re Visa Check/MasterMoney Antitrust Litigation
• Represented MasterCard in governance, boycott and tying investigations brought by the Department of Justice
• Represented Kaseya in obtaining antitrust regulatory clearance of acquisition of Datto
• Represented Insight Partners and Payfactors in obtaining antitrust regulatory clearance of combination of Payfactors and Payscale
• Represented CMA CGM in obtaining antitrust regulatory clearance of its acquisition of Fenix Marine Services
• Represented Resideo in obtaining antitrust regulatory clearance of its acquisition of First Alert
• Represented Atlas Holdings and Lakeside Book Company in obtaining antitrust regulatory clearance of their acquisition of Phoenix Color
• Represented Alleghany Corporation in obtaining antitrust regulatory clearance of its proposed sale of Berkshire Hathaway
• Represented Akorn Pharmaceuticals in obtaining antitrust regulatory clearance of sale of its consumer health business to Prestige Consumer Healthcare
• Represented Franklin Templeton in obtaining antitrust regulatory clearance of its acquisition of Legg Mason
• Represented ITE Management in obtaining antitrust regulatory clearance of its sale of American Railcar Industries to Greenbrier Companies
• Represent FFL Partners and Icynene-Lapolla in obtaining regulatory clearance of the sale of Icynene-Lapolla to Huntsman Corporation
• Represented Health Equity in obtaining antitrust regulatory clearance of its acquisition of WageWorks
• Represented CRF Health, Inc. in obtaining antitrust regulatory clearance of its acquisition by Genstar Capital
• Represented Centerbridge in obtaining antitrust regulatory clearance of its acquisition of majority stake in Davis Vision
• Represented Interpublic Group in obtaining antitrust regulatory clearance of its acquisition of Acxiom Marketing Solutions
• Represented W&W/AFCO Steel Corporation in obtaining antitrust regulatory clearance of its acquisition of Hirschfeld Industries
• Represented Warburg Pincus LLC, and its portfolio company, A Place for Mom, in obtaining antitrust regulatory clearance of the acquisition of A Place for Mom by Silver Lake and General Atlantic 
• Represented The Pantry, Inc. in obtaining antitrust regulatory clearance of its acquisition by Alimentation Couche-Tard, Inc.
• Represented The Men’s Wearhouse in obtaining antitrust regulatory clearance of acquisition of Jos. A. Bank
• Represented Thales, S.A. in obtaining antitrust regulatory clearance of acquisition of Live TV subsidiary of Jet Blue
• Represented major broker-dealer in antitrust challenge to alleged trading practices on the New York Stock Exchange
• Represented defense contractor against exclusive dealing and related antitrust claims brought by competitor
• Represented seed manufacturer in Genetically Modified Seeds Antitrust Litigation, which resulted in denial of class action status to a group of farmers alleging price fixing in the genetically modified seeds industry

Other Complex Disputes

• Lead counsel to Silver Lake Management in federal and state court litigation and related governmental inquires related to Solarwinds cybersecurity event
• Represented Teachers Insurance & Annuity Association in dispute over construction of earn-out provision in stock purchase agreement, pending in Delaware Court of Chancery
• Represented various corporate and individual clients in Title VII and other employment litigation and related internal investigations
• Represented publicly traded investment management company in connection with regulatory investigations concerning alleged market timing in mutual funds and related multidistrict civil litigation
• Represented investment management firm in action challenging suitability of the firm's investments for a pension fund
• Represented a former senior executive of a mutual fund distribution company in action by the Securities and Exchange Commission concerning alleged mutual fund market timing
• Represented major financial institution as first lien secured creditor in adversary proceeding in U.S. Bankruptcy Court to enjoin termination of debtor’s most critical contract; obtained permanent injunction and declaratory relief
• Represented various media organizations in First Amendment litigation

Pro Bono Litigation

• Obtained jury verdict in favor of transgender Deputy Sheriff in Houston County, Georgia in federal court challenge to the County’s maintenance of blanket exclusion medical treatment gender dysphoria from employee health plan (Co-counsel with Transgender Legal Defense and Education Fund).
• Representing transgender college professor in federal court challenge to University of Arizona’s maintenance of blanket exclusion medical treatment for gender dysphoria from employee health plan (Co-counsel with ACLU) 
• Represented putative class of New York Medicaid recipients in challenging New York Department of Health’s blanket ban on Medicaid coverage of certain dental treatments (Co-counsel with The Legal Aid Society)
• Representing putative class of current and former residents of New York City Housing Authority developments challenging NYCHA’s failure to supply adequate heat and hot water to residents during the Winter of 2017-2018 (Co-counsel with The Legal Aid Society)
• Achieved complete victory for class of transgender New York Medicaid recipients in challenging New York Department of Health’s blanket ban on Medicaid coverage for medical treatment for Gender Dysphoria (Co-counsel with The Legal Aid Society)
• Represented group of ministers and rabbis in successful First Amendment challenge to Florida statute restricting the provision of advice to women considering abortion; obtained preliminary and permanent injunctions (Co-counsel with ACLU)
• Counsel to amicus curiae before United States Supreme Court in the following matters:
  • Little Sisters of the Poor Saints Peter and Paul Home v. Commonwealth of PA, et al (Brief of Professors of Criminal Law, Former State Attorneys General, and Former United States Department of Justice Officials in Support of Respondents)
  • June Medical Services LLC , et al v. Gee (Brief of Organizations and Individuals Dedicated to The Fight for Reproductive Justice in Support of Petitioners)
  • Gloucester County School Board v. G.G. (Brief of National PTA, GLSEN And Other Education Organizations As Amicus Curiae Supporting Respondent)
  • Obergefell v. Hodges (Brief of Ninety-Two Plaintiffs in Marriage Cases In Alabama, Alaska, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, and Texas As Amicus Curiae In Support Of Petitioners)
  • Zubik v. Burwell (Brief Of Former State Attorneys General, Former United States Department Of Justice Officials And Professors Of Criminal Law As Amicus Curiae In Support Of Respondents)
  • Whole Woman’s Health v. Cole (Brief Of Twelve Organizations Dedicated To The Fight For Reproductive Justice As Amicus Curiae Supporting Petitioners)
• Counsel to amicus curiae National PTA, GLSEN and other education organizations in support of transgender high school students seeking equal access to restrooms and other school facilities, before Courts of Appeals in the following actions:
  • Adams v. School Board of St. Johns County (18-13592) (11th Cir.)
  • Doe v. Boyertown Area School District (17-3113) (3d Cir.) 
  • Board of Education of Highland School v. Doe (16-4117 (6th Cir.)
  • Parents for Privacy v. U.S. Dept. of Education (18-35708) (9th Cir.)
  • G.G. v. Gloucester County School Board (15-2056) (4th Cir.)