Richard H. Cunningham
Overview
Richard H. Cunningham’s practice focuses on antitrust and consumer protection law. Rich has extensive experience securing clearance for deals from the Federal Trade Commission (FTC) and Department of Justice (DOJ), navigating FTC and DOJ investigations, and representing clients in government, competitor, and class action litigation involving antitrust and/or consumer protection claims.
Rich began his legal career at the FTC, serving as a Staff Attorney and then as Senior Trial Counsel in the Bureau of Competition. At the FTC, Rich was a senior member of multiple litigation/trial teams, including in FTC v. OSF Healthcare System, FTC v. ProMedica, FTC v. LabCorp, and FTC v. Inova Health System, and the landmark FTC v. Whole Foods merger enforcement case. Rich also led high-profile FTC investigations that resulted in consent decrees/settlements, including DaVita/Gambro, Thermo Electron/Fisher Scientific, and Agilent/Varian. Rich received several awards during his tenure at the FTC, including the Director’s Award in 2008 and 2010 for exceptional contributions to the Bureau of Competition and the Stephen Nye Award in 2007 for outstanding performance by a junior attorney.
Experience
Representative Matters
Deal Clearance
Represented AT&T in the landmark litigation against DOJ to defend the acquisition of Time Warner and the full-phase DOJ review of the acquisition of DirecTV*
Obtained unconditional antitrust clearance of joint venture transaction creating the nation’s largest operator of ambulatory surgery centers (“ASC”s) valued at more than $2 billion*
Represented LivaNova and Hologic to secure antitrust clearance for transactions involving medical devices and equipment*
Advised leading ski resort operator and home services company regarding the antitrust risks and clearance strategies associated with potential M&A opportunities*
Represented Tenet Healthcare in the full-phase FTC HSR investigation of a $135M hospital acquisition that resulted in clearance without conditions*
FTC and DOJ Antitrust and Consumer Protection Investigations
Represented Facebook in multiple FTC investigations, including the groundbreaking 2019 privacy-related settlement
Represented multiple Fortune 100 technology companies in FTC consumer protection investigations involving e-commerce, subscription services and/or privacy issues
Represented an innovative semiconductor company in FTC anticompetitive practices investigation
Represented leading real estate industry participant to respond to an expansive FTC advertising practices CID
Represented global weight loss provider in multiple FTC investigations*
Represented digital media company in full-phase FTC investigation relating to COPPA compliance that resulted in closure without conditions*
Litigation Matters
Represented Allergan in multiple competitor and multi-district class action federal antitrust litigations involving sham litigation, “product switching”, Walker Process, and Sherman Act Section 1 and 2 claims
Represented LendingClub to defend FTC action alleging violations of Section 5 of the FTC Act and the Gramm-Leach-Bliley Act
Represented Johns Manville to defend alleged federal antitrust and state tortious interference claims
Served as senior member of litigation and trial team that obtained complete dismissal for Sanofi-Aventis of novel federal False Claims Act case involving the prescription drug Lovenox that sought purported damages and fines in excess of $5 billion after a week-long trial; the Ninth Circuit recently affirmed the dismissal and the trial cost awarded reimbursement of attorney’s fees and costs to Sanofi-Aventis*
Served as lead counsel for Ingram Micro to defend a series of lawsuits brought by competitors; obtained complete dismissal of all antitrust allegations and settled remaining state law claims on favorable terms*
Represented AT&T to defend DOJ antitrust conspiracy allegations*
Client Counseling
Counseled leading gig economy participant regarding advertising substantiation issues, including earnings claims
Counseled digital marketing firm to comply with DOJ consent order
Counseled leading outdoor equipment and apparel company regarding advertising and antitrust compliance
Counseled prominent direct marketing company regarding earnings claims and advertising compliance
Developed and delivered comprehensive antitrust compliance program for publicly traded infrastructure company*
Counseled Fortune 500 telecommunications company to update consumer rewards program in compliance with Section 5 of the FTC Act and other regulations*
Counseled leading pharmaceutical manufacturer to settle multi-billion dollar patent and antitrust litigation in a manner that avoided “pay-for-delay” issues*
Delivered antitrust compliance training to Front Range oil and gas company*
*Prior to joining Kirkland
Prior Experience
More
Thought Leadership
Publications
“Seventh Circuit Sets Up Potential Supreme Court Review of FTC Monetary Relief Authority,” Antitrust (forthcoming, Fall 2019)
“Next Stop, Supreme Court?: Seventh Circuit Goes Its Own Way on FTC’s Authority to Obtain Monetary Relief,” Washington Legal Foundation Legal Pulse Blog (September 3, 2019)
“Taking Stock of FTC Cybersecurity Enforcement after the Equifax Settlement,” Washington Legal Foundation Legal Pulse Blog (August 7, 2019)
“Updated Vertical Merger Guidelines May Be on the Horizon,” Washington Legal Foundation Legal Pulse Blog (April 24, 2019)
“Third Circuit Limits the FTC’s Authority to Challenge Ceased Conduct,” Washington Legal Foundation Legal Pulse Blog (March 20, 2019)
“Ninth Circuit Judges Call for En Banc Review of the Federal Trade Commission’s Authority to Obtain Monetary Relief,” Washington Legal Foundation Legal Pulse Blog (January 15, 2019)
“Lessons from FTC’s Loss in, and Subsequent Abandonment of, DirecTV Advertising Case,” Washington Legal Foundation Legal Pulse Blog (October 23, 2018)
“The Eleventh Circuit Limits the FTC’s Authority to Challenge Practices as ‘Unfair’” Washington Legal Foundation Legal Pulse Blog (June 21, 2018)
“Are Disgorgement’s Days Numbered? Kokesh v. SEC May Foreshadow Curtailment of the FTC’s Authority to Obtain Monetary Relief,” Antitrust (Spring 2018)
“Tronox/Cristal Merger Fight Highlights the FTC/DOJ Divide in U.S. Merger Control Proceedings,” Washington Legal Foundation Legal Pulse Blog (April 9, 2018)
“Influencer Marketing Remains in FTC’s Crosshairs,” Washington Legal Foundation Legal Pulse Blog (January 10, 2018)
“FTC Pharma Workshop Focuses on Supply Chain Issues and ‘Gamesmanship’ of FDA Regulation,” Washington Legal Foundation Legal Pulse Blog (December 15, 2017)
“FTC’s Action against ‘Repetitive’ Filing of Citizen Petitions Reflects Expanding Pharma-Sector Enforcement Program,” Washington Legal Foundation Legal Pulse Blog (October 16, 2017)
“FTC Takes a Commendable First Step Toward Reducing the Burden of Consumer-Protection Investigations,” Washington Legal Foundation Legal Pulse Blog (August 14, 2017)
“Will “Kokesh v. SEC” Put a Kink in the Federal Trade Commission’s Disgorgement Hose?” Washington Legal Foundation Legal Pulse Blog (July 10, 2017)
“FTC Targets Native Advertising,” Law Week Colorado (May 30, 2016)
“Expanded Enforcement of Federal False Claims Act, RICO, and Antitrust Law Changes the Legal Landscape for Healthcare Providers,” The Colorado Lawyer (December 2015)
“Making Sense of a Morass: An Overview of the Different Standards U.S. Government Agencies and Other Entities Are Developing to Regulate Cybersecurity,” Privacy and Security Law Report (November 23, 2015)
“FTC Antitrust Statement Offers Little Clarity,” Los Angeles Daily Journal (August 20, 2015)
“The Federal Trade Commission’s Enforcement of Data Security Standards,” The Colorado Lawyer (June 2015)
“Effective Defenses of Hospital Mergers in Concentrated Markets,” Antitrust (Spring 2013)
Recognition
Euromoney “Best in Antitrust/Competition” among Americas Rising Stars
Law Week Colorado “Barrister’s Best: Best Antitrust Lawyer” for 2018
Denver Business Journal “40 under 40” business leader for 2018
Super Lawyers “Rising Star” in Colorado in 2017 and 2018 for antitrust litigation
Credentials
Admissions & Qualifications
- Admitted only in Colorado and practice is supervised by principals of the firm.
Education
- Georgetown University Law CenterJ.D.magna cum laude2004
- The University of North Carolina at Chapel HillB.S.with Highest Honors2001
Selected Professional Activities
Editor, Von Kalinowski, Antitrust Laws and Trade Regulation: Desk Edition (Lexis-Nexis) (2013–2019)
Regular Contributor, The Washington Legal Foundation’s Legal Pulse blog (2017–present)
Vice Chair, Civil Practice and Procedure Committee of the ABA Antitrust Section (2016–2019)
Board Member, Colorado Humanities, Non-profit dedicated to improving literacy and the study of humanities in Colorado (2015–2018)
Adjunct Professor, Denver University Sturm College of Law, Denver, CO, (co-taught upper-level antitrust and competition law course from 2013–2015)
Chair/Moderator, “Joint Ventures – Keeping Competitor Collaborations Compliant,” ABA Antitrust Spring Meeting, Washington, D.C. (2017)
Moderator, “Effectively Using Data and Econometrics in Consumer Protection Matters,” ABA Antitrust Section Panel Discussion, Denver, CO (2017)
Program Moderator and Panelist, “Advertising Law 2016,” Colorado Bar Association, Denver, CO (2016)
Panelist, “Cross-Market Provider Mergers,” ABA Antitrust in Healthcare Conference, Washington, D.C. (2016)
Panelist, “Litigation Strategies for Mergers,” Global Competition Review Live, 5th Annual Antitrust Leaders Forum, Miami, FL (2016)
Panelist, “The Steris-Synergy Case: A Post Mortem,” ABA Antitrust Section Panel Discussion, Washington, D.C. (2015)
Instructor, CLE, “New Threats from Old Statutes – Expanded and Reinvigorated Enforcement of the RICO and the Federal Antitrust Laws Against Health Care Providers,” Colorado Bar Association, Denver, CO (2015)
Panelist, “Protecting the Castle: Defending Against Data Security and Privacy Risks,” Association of Corporate Counsel, In-House Counsel Forum, Denver, CO (2015)
Panelist, “Emerging Standards and Legal Development in Cybersecurity,” American Intellectual Property Law Association 2014 Trade Secret Law Summit, Santa Clara, CA (2014)
Guest Lecturer, University of Pennsylvania Wharton School of Business, Philadelphia, PA (2013); Georgetown Univ. McDonough School of Business, Washington, D.C. (2012)