Richard H. Cunningham, P.C.
Overview
Richard Cunningham is an antitrust and consumer protection partner in the Washington, D.C., office of Kirkland & Ellis LLP.
Rich has extensive experience securing clearance for deals from the Federal Trade Commission (FTC) and Department of Justice (DOJ). Rich began his legal career at the FTC, serving as a Staff Attorney and then as Senior Trial Counsel in the Bureau of Competition from 2004–2013. At the FTC, Rich was a senior member of multiple trial teams in merger cases, 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 merger investigations that resulted in consent decrees/settlements, including DaVita/Gambro, Thermo Electron/Fisher Scientific and Agilent/Varian. In private practice, Rich has handled dozens of complex merger investigations and played a key courtroom role in multiple litigations, including UHG/Change Healthcare, a DOJ merger challenge that involved novel vertical, horizontal, and innovation theories of harm, and successfully “litigating the fix.”
Rich also regularly represents clients in non-merger FTC, DOJ, and state attorney general antitrust investigations and private antitrust litigation, including in the technology, health care, life sciences, telecom, industrial products, and oil and gas industries. Many of Rich’s antitrust investigation matters are non-public because the regulator elected not to proceed—the best possible client outcome. Rich’s work in private antitrust litigation includes playing a lead or senior role in matters resolved favorably for his clients pre-trial via motions practice or nuisance-value settlements, or, as needed, at trial.
Rich’s consumer protection practice focuses on FTC matters and related counseling. Rich has led the defense of FTC investigations focused on advertising compliance, privacy, data security, marketing practices, and compliance with existing FTC orders, among other issues. Rich’s litigation experience in this space includes defending LendingClub against a ground-breaking multi-count FTC action seeking nearly $2 billion, and settling the matter on the eve of trial for a small fraction of the Commission’s demand. Rich also handled the FTC’s first-ever matter involving the Health Breach Notification Rule (HBNR) in 2023. Rich’s FTC consumer protection experience spans the technology, healthcare and life sciences, crypto, AI, e-commerce, consumer products, ed tech, and industrial products sectors.
In addition to handling FTC and DOJ inquiries and litigations, Rich actively counsels many companies on issues relating to antitrust and consumer protection law, including antitrust risk and risk allocation during deal negotiations and advising companies current subject to existing judicial, DOJ, and FTC orders. Multiple Fortune 500 companies rely on Rich to serve as their ongoing, “liaison” counsel to the FTC in a variety of contexts.