Mark L. Kovner
Professional Profile
Mr. Kovner is a senior member of Kirkland's Competition and Antitrust Group and an Adjunct Professor at Georgetown University Law Center in Washington, D.C.
Mr. Kovner has over 20 years successfully representing clients in significant government antitrust investigations, managing complex antitrust and unfair competition litigation in federal and state courts, and securing U.S. and international merger and acquisition clearances.
Mr. Kovner is recognized as a "National Antitrust Star" by Benchmark Litigation (2010) and as a leading antitrust practitioner by: Chambers USA: America's Leading Lawyers for Business (2010); The International Who's Who of Competition Lawyers and Economists (2010); The International Who's Who of Business Lawyers (2010); Guide to the World's Leading Competition and Antitrust Lawyers (Legal Media Group, 2010); PLC Competition Handbook (2009), and Washington, D.C. Super Lawyers (Law & Politics 2007). Mr. Kovner was profiled as GCR's 2004 "40 under 40" survey as one of the leading antitrust lawyers worldwide under 40 years old.
Kirkland's antitrust practice was named busiest in the country by CompetitionLaw360 (2008) and is "Highly Recommended" by Benchmark Litigation and The Global Competition Review (GCR) 100.
Representative Matters
Danaher Corporation, in its planned 2010 $1.1 billion worldwide transactions with MDS Inc. and Life Technologies Corporation.
Ventyx Inc., in U.S. and international antitrust clearances for its 2010 sale to ABB Group.
Avis Budget Group in its 2010 possible transaction with Dollar Thrifty Automotive Group.
Vestar/Birds Eye Foods, in its 2009/2010 sale to Blackstone/Pinnacle Foods, enhancing Pinnacle's leadership in iconic frozen food brands.
Raytheon Company, in its 2009 acquisition of BBN Technologies.
A major pharmeceutical company in ongoing FRC antitrust investigation.
Cisco Systems, in monopolization counterclaims in intellectual property litigation against Rembrandt Technologies relating to DOCSIS-compliant cable modems (D. Del. 2009).
Colgate-Palmolive Company, in winning full dismissal in 2008 of a purported class action alleging that Colgate, Sara Lee, Henkel, and other consumer products companies fixed prices on well-known brands of oral, personal, and home care products (N.D. Ill. 2008).
Metavante, in its 2009 $2.9 billion transaction with Fidelity National to create one of the country's largest core processing and payment service providers to banks and financial institutions.
NRG Energy, in rejecting Exelon's $6 billion, 2009 hostile takeover bid to create the country's largest power company.
Barr Pharmeceuticals, in its 2008 $7.5 billion merger with Teva Pharmaceuticals to create the world's largest generic drug company.
Constellation Energy, in its multi billion dollar, 2009 proposed transactions with Mid-American (Berkshire Hathaway) and France's EDF.
Welsh Carson/Mobile Storage Group, in its 2008 sale to Mobile Mini to create the country's largest provider of portable storage units.
Apax Partners, in its 2008 $1.4 billion going-private acquisition of The TriZetto Group, Inc.
Third Wave Technologies, in its 2008 sale to Hologic to create the leading supplier of medical tests for cervical cancer and other diseases.
Barr Pharmaceuticals, in a federal antitrust litigation brought by the FTC, 35 states, and class action plaintiffs on agreements with Warner Chilcott relating to the oral contraceptive drug product Ovcon (D.D.C. 2006).
Blue Ridge Paper Products, in its 2007 merger with its principal competitor, Evergreen Paper Products, creating a company with the dominant share of gable top (milk and juice) carton sales and related paperboard production in the United States.
SC Johnson & Son, in its 2004 $735 million acquisition of Bayer AG's consumer insecticides and repellents businesses, combining the no. 1 and no. 2 brands worldwide and requiring substantive antitrust clearance efforts in more than 17 different countries.
Community Healthcare Systems (CHS), in its 2007 $6.8 billion acquisition of Triad to create the largest publicly-held hospital company in the United States.
Barr Pharmaceuticals, in successfully closing a 2008 FTC investigation of a patent litigation settlement between Barr, a generics manufacturer, and the brand name drug maker relating to the drug product ProVigil/modafinil; the FTC sued the brand name drug company but not Barr.
Briggs & Stratton, in a bundled rebate/exclusive dealing monopolization litigation with Kohler Company (W.D. Wisc. 2005). The case settled favorably for the client in 2006 after summary judgment briefing.
Honeywell International, in a federal monopolization case brought by Ineos, a large customer (D. Del. 2006). The case settled favorably for client after extensive discovery.
Dade Behring, in its 2007, $6 billion acquisition by Siemens AG that combined the two worldwide leaders in clinical diagnostic products and services;
Barr Pharmaceuticals, in its complex 2006 $2.5 billion acquisition of Pliva, the largest company in Croatia. Barr faced a aggressive competing bidder (Actavis) in its tender offer to acquire Pliva, and there were a number of competitive overlaps between the two companies. Barr won the bidding effort, and after extensive discussions with the FTC, the FTC Commissioners cleared the deal unanimously with minimal divestitures. With the $2.5 billion acquisition of Pliva, Barr Pharmaceuticals became the third largest generic drug company in the world.
Paxar Corp., in obtaining HSR clearance in 2007 for its $1.34 billion acquisition by Avery Dennison to create the largest seller of apparel tags and labels in the U.S.
Fluent, Inc., in its acquisition by Ansys in 2006 to create the largest provider of computation fluid dynamics (CFD) software and services in the U.S.
Constellation Energy, in itsproposed 2006 $25 billion merger with Florida Power & Light that would have created the country's largest energy firm; obtained HSR clearance without a Second Request.
Infineon Technologies, in an antitrust counterclaim against Rambus for monopolizing the DRAM technology market, in Rambus, Inc. v. Infineon Tech. (E.D. Va. 2004).
Beech-Nut Nutrition Corp., in a predatory pricing litigation brought against Gerber baby foods; secured a Ninth Circuit victory and very favorable settlement. Beech-Nut Nutrition Corp. v. Gerber Products Co ., 2003 WL 21317277(9th Cir. 2003).
Barr Laboratories, in its 2006 acquisition of Organon's Mircette oral contraceptive, combining this brand and only available generic version of the product.
PayPal, in eBay's $1.5 billion, 2002 merger with PayPal, combining the dominant on-line auction service with the largest competing on-line payment provider.
Concord EFS, in First Data's $7 billion acquisition of the client, combining two of the largest electronic payment processors in the country (U.S. v. First Data Corporation and Concord EFS, 2003 WL 23194271 (D.D.C. 2003)).
Terra Industries, in its purchase of Mississippi Chemical's nitrogen fertilizer business, creating the largest seller of UAN fertilizer in the U.S.
Milnot Holdings, in successfully opposing an FTC preliminary injunction action against "3 to 2" merger of baby food firms in five day evidentiary hearing, in FTC v. H.J. Heinz Co. and Milnot Holdings Corporation, 164 F.Supp.2d 659 (D.D.C.), reversed 246 F.3d 708 (D.C. Cir. 2001).
Broder, in its acquisition (through Bain Capital) of Alpha, its largest competitor in imprintable apparel wholesaling, creating a company three times larger than the next largest player.
Barr Pharmaceuticals, in its 2006 acquisition of Shire's Adderall IRâ ADHD product, combining this brand and the highest-selling generic version of the product.
Cambridge/SecurityLink, in ADT's $1 billion acquisition of the client, combining the two largest U.S. providers of electronic security installation and related services to businesses and homes.
Haarmann & Riemer (world's largest citric acid manufacturer), in ADM-related criminal and civil price-fixing cases; successfully argued motion to dismiss world-wide citric acid price fixing class action. Galavan Supplements, Ltd. v. ADM, 1997 WL 732498 (N.D. Cal. 1997). Won motion to dismiss class action brought by indirect purchasers of citric acid on personal jurisdiction grounds. Holder v. Haarmann & Riemer Corp., No. 99CA0883 (D.C. Sup. Ct. 1989), aff'd 779 A2d 264, 2001-2 Trade Cases ¶ 73,471 (D.C. 2001).
Office Depot, in five day preliminary injunction hearing in FTC v. Staples, Inc. and Office Depot, Inc., 970 F. Supp. 1066 (D.D.C. 1997).
Anchor Foods, in McCain Foods' $500 million acquisition of the client, combining the two largest producers of frozen appetizers to the foodservice/restaurant channel.
Barr Laboratories, in its$500 million acquisition of Duramed Pharmaceuticals, combining two leaders in the generic oral contraceptives and hormone replacement therapies segments.
Barr Pharmaceuticals, in its acquisition of Wyeth's Aygestinâ product line, supplementing Barr's woman's hormone replacement therapy product line.
Sara Lee, in its $2.8 billion tender offer for Earthgrains Company, combining two of the largest suppliers of fresh bagels to U.S. supermarkets.
Allied Van Lines, in North American Van Lines' $450 million acquisition of the client, creating the nation's largest provider of long distance moving.
Motorola, in its $11 billion acquisition of General Instrument, with overlaps in cable boxes and various broadband technologies.
Sara Lee's PYA Monarch food distribution business in Ahold's $1.5 billion purchase of that business, combining two of the largest food distributors in the country.
Norse Dairy Systems, in Interbake's acquisition of the client, combining the only two significant manufacturers of ice cream cone equipment.
S.C. Johnson & Son, in its $1.1 billion acquisition of the assets of DowBrands, including the Ziploc®, Saran Wrap®, and Fantastik® brands, and limited divestitures to Reckitt & Colman.
S.C. Johnson & Son, in its $1.2 billion acquisition of The Drackett Company, including the Windex® and Vanish® brands, and limited divestitures to The Dial Corp and Sara Lee Corporation.
Hershey Foods, in its acquisition of Heath®, Jolly Rancher®., Whoppers®, Milk Duds®, and other major candy brands from Leaf.
Kendro Laboratory Products, in its $320 million purchase by Revco Technologies, combining two leading manufacturers of laboratory and life science equipment.
PiRod Holdings, in its $280 million purchase by Rohn Industries, its principal competitor in cellular and Radio/TV tower manufacturing.
NL Industries, in its $900 million sale of its Baroid subsidiary to Dresser Industries, combining two of the world's three largest oil field service companies.
Sara Lee (Hanes brand), in its purchase of J.E. Morgan, its major thermal underwear competitor.
Terra Industries, in its sale of a large agricultural distribution business to Cenex/Land'O Lakes, a significant competitor.
Amoco Corporation, in its sale of its petroleum additives business to Ethyl Corporation, a significant competitor.
Buckeye Cellulose, in its acquisition of its principal competitor, Alpha Cellulose.
Rubatex, in its acquisition of the Ensolite Division of Uniroyal Technologies, combining the two leading major manufacturers of PVC foam rubber products.
Miles Inc., in its sale of its Marschall dairy additives business to Rhone-Poulenc, a significant competitor.
Weyerhaeuser, in its purchase of Diamond Hardwoods.
Memberships & Affiliations
American Bar Association-Member, Antitrust and Litigation Sections
District of Columbia Bar AssociationOther Distinctions
Steering Committee, D.C. Bar Antitrust and Consumer Law Section (elected by peers for 1999-2001 and 2001-2003 terms).
Special Pharmaceuticals Task Force, ABA Antitrust Section (2001-2002). Received ABA award for contributions to same.
Publications
Editorial Chair, ABA Antitrust Section handbook (monograph) Antitrust Issues in the Pharmaceutical Industry Antitrust Handbook(2009).
Editor, Market Definition chapter, ABA Antitrust Law Developments (Sixth Edition 2007).
Follow-on Private Antitrust Litigation, Competition & Antitrust Guide 2005 (A Corporate Finance Magazine Supplement, May 2005), with Avery Gardiner.
Applying the Noerr Doctrine to Pharmaceutical Patent Litigation Settlements, Antitrust Law Journal, Vol. 71, No. 2 (January 2004).
Monopolies Take a Hit: Be Careful with Smaller Competitors Or They May Come Back to Haunt You, Marketing Management Magazine (September/October 2003).
Merger and Acquisition Antitrust Fundamentals, A Practical Guide, Antitrust Counseling and Litigation Techniques (Matthew Bender) Chapter 18 (1998 and 2002).
Mergers & Acquisitions, Understanding the Antitrust Issues, ABA Section of Antitrust Law Treatise (2000) (author, chapters on Market Definition and Remedies).
Defending A Subject Or Target Of An Antitrust Grand Jury Investigation, Antitrust Counseling and Litigation Techniques (Matthew Bender) Chapter 55 (1998) (co-author).
Why Sellers Should Be Concerned About Antitrust, 30 Mergers & Acquisitions 4, at 24 (January/February 1996) (co-author).
A Definite Strategic Risk, in Corporate Finance Guide to Merger Control Regulation 1995 (a Supplement to Corporate Finance October 1995), Euromoney Publications Plc. (co-author).
Judicial Review and Congressional Tenure: An Observation, 66 Texas Law Review 967 (1987) (co-author).
Seminars
Commenter, NPR's Marketplace, May 11, 2009 "DOJ Wants Monopolists to Play Nicer."
Speaker, Local Government Antitrust Enforcement – What Is It; Does It Provide an Important Public Benefit? (DC Bar Program, May 21, 2008).
Speaker, Life After Tamoxifen; 10 Questions On My Mind; Generic Pharmaceuticals Association (GPHA) annual meeting, Washington D.C. (September 2007).
Speaker, Generic Pharmaceuticals: An Antitrust Update, featured speaker, Generic Pharmaceuticals Association (GPHA) annual meeting, Washington D.C. (September 2006).
Speaker, Hot Topics -- Second Request Reform, ABA Antitrust Section Spring Meeting, Washington D.C. (March 2006).
Speaker, The Antitrust Risks of Pharmaceutical Patent Settlements: Recent Developments. ABA Antitrust Section Brown Bag Lunch, Washington D.C. (March 5, 2004).
Speaker, US Antitrust Law - Pharmaceutical Industry Recent Developments, Hawksmere Conference (London) on International Pharmaceutical Law (September 23 - 24, 2002).
Patent Litigation Settlements and the Leahy Bill, American Bar Association, Antitrust Section Brown Bag Lunch, January 23, 2002.
Patent Litigation: Antitrust Hot Topics, Kirkland & Ellis New York "PILLS" Seminar, January, 2002.
Non-Merger Vertical Restraints: Recent Enforcement Lessons, D.C. Bar, Antitrust, Consumer Affairs and Trade Regulation Section Recent Developments program, June 28, 1999.
Merger/Acquisition Antitrust Fundamentals, American Management Association Seminars, variously 1993-1998.
Life After Tamoxifen; 10 Questions On My Mind; featured speaker, General Pharmaceuticals Association (GPHA) annual meeting, Washington D.C. (September 2007).
Generic Pharmaceuticals: An Antitrust Update, featured speaker, General Pharmaceuticals Association (GPHA) annual meeting, Washington D.C. (September 2006).
The Antitrust Risks of Pharmaceutical Patent Settlements: Recent Developments. Panelist at ABA Antitrust Section Brown Bag Lunch, Washington D.C. (March 5, 2004).
US Antitrust Law - Pharmaceutical Industry Recent Developments, Hawksmere Conference (London) on International Pharmaceutical Law, September 23 -24, 2002.
Patent Litigation Settlements and the Leahy Bill, American Bar Association, Antitrust Section Brown Bag Lunch, January 23, 2002.
Patent Litigation: Antitrust Hot Topics, Kirkland & Ellis New York "PILLS" Seminar, January, 2002.
Non-Merger Vertical Restraints: Recent Enforcement Lessons, D.C. Bar, Antitrust, Consumer Affairs and Trade Regulation Section Recent Developments program, June 28, 1999.
Merger/Acquisition Antitrust Fundamentals, American Management Association Seminars, variously 1993-1998.
