Richard H. Cunningham, P.C.

Partner Litigation

Washington, D.C. +1 202 389 3119

Richard H. Cunningham, P.C.

Overview

Rich’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 litigating 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 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.

Deal Clearance and FTC and DOJ Conduct Matters

  • Served as senior trial team member representing UnitedHealth Group (“UHG”) in DOJ enforcement action seeking to block UHG’s $13 billion 2022 acquisition of Change Healthcare in D.D.C. — achieved complete win at trial with regard to both horizontal and vertical theories of harm, including successfully “litigating the fix”
  • Represented AT&T in the landmark 2018 litigation against DOJ to defend the acquisition of Time Warner and the full-phase DOJ review of the acquisition of DirecTV*
  • Represented leading Big Box national retailer in full-phase review of potential acquisition of national rival
  • 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 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 $135 million hospital acquisition that resulted in clearance without conditions* and in 2020 Clayton Act merger challenge in W.D. Tenn.
  • Represented an innovative semiconductor company in FTC anticompetitive practices investigation

FTC Consumer Protection Investigations and Litigation Matters

  • Represented LendingClub to defend FTC action (filed in 2018) in N.D. Cal. alleging violations of Section 5 of the FTC Act and the Gramm-Leach-Bliley Act (the “GLBA”), achieved dismissal of the GLBA claim at summary judgment and settled the remaining allegations for less than 2% of the FTC’s litigation demand
  • Represented Facebook in multiple FTC investigations, including the groundbreaking 2019 privacy-related settlement
  • Represented a leading digital financial services marketplace in FTC investigation favorably resolved in 2022
  • Represented a leading instant buyer (or “iBuyer”) of residential real estate in sweeping FTC investigation
  • Represented multiple Fortune 20 technology companies in FTC consumer protection investigations involving e-commerce, subscription services and/or privacy issues
  • Represented leading educational technology provider to respond to privacy focused government inquiry that resulted in unconditional closure
  • Represented multiple educational software providers in FTC investigations evaluating the company’s security, privacy, and COPPA compliance practices
  • Represented global weight loss provider in multiple FTC investigations in 2014–2018*
  • Represented digital healthcare marketplace operator in cutting-edge FTC privacy and data sharing investigation
  • Represented digital media company in full-phase FTC investigation relating to COPPA compliance that resulted in closure without conditions*

Private-Party Antitrust Litigation Matters

  • Represented Allergan in multiple competitor and multidistrict class action federal antitrust litigations involving sham litigation, “product switching”, Walker Process, and Sherman Act Section 1 and 2 claims
  • 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 / antitrust 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 affirmed the dismissal and the trial cost awarded reimbursement of attorney’s fees and costs to Sanofi-Aventis in 2021*
  • 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*

Antitrust and Consumer Protection 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 rent-to-own retailer on antitrust and consumer protection compliance issues
  • Advised prominent autonomous vehicle company regarding advertising compliance issues
  • Counseled leading outdoor equipment and apparel company regarding advertising and antitrust compliance
  • Counseled multiple prominent direct marketing companies 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*
  • Assisted numerous public company and private equity acquirers with due diligence of FTC and DOJ investigations of potential targets

*Prior to joining Kirkland

Partner, Gibson, Dunn & Crutcher LLP

More

Thought Leadership

Publications

“SEC Constitutionality Ruling May Embolden FTC Targets,” Law360 (June 8, 2022)

“A Watershed Moment? What Comes Next for the FTC in the Wake of AMG,” Antitrust (August 9, 2021)

“The Other Tech-Focused Initiative: The FTC’s Expanding Consumer Protection Efforts Targeting E-Commerce,” Antitrust (August 13, 2020)

“Seventh Circuit Sets Up Potential Supreme Court Review of FTC Monetary Relief Authority,” Antitrust (December 12, 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)

Speaking Engagements

Panelist, “Recipes for Challenging Your Competitor’s Advertising,” ABA Antitrust Spring Meeting, Washington, D.C. (2022) 

“The New ‘Private’: Protecting Your Company’s Information in a Fully Remote World,” TechGC Virtual Private Dinner (2021)

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 California, Berkeley School of Law, CA (2021); University of Pennsylvania Wharton School of Business, Philadelphia, PA (2013); Georgetown Univ. McDonough School of Business, Washington, D.C. (2012)

Recognition

The Best Lawyers in America for Antitrust Law (2023)

Global Competition Review 100 “Outstanding” in Washington, D.C. for 2022

The Legal 500 United States for Antitrust: Cartel (2020); Antitrust: Civil Litigation/Class Actions: Defense (2020–2021); Antitrust: Merger Control (2020); Corporate Investigations and White-Collar Criminal Defense (2020); General Commercial Disputes (2020)

5280 "Top Lawyer" for 2020

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

FTC Director’s Award (2010 and 2008) and Stephen Nye Award (2007)

Memberships & Affiliations

Vice Chair, Advertising Disputes and Litigation Committee of the ABA Antitrust Section (2020–present)

Law360 Competition Editorial Advisory Board (2020–present)

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)

Credentials

Admissions & Qualifications

  • 2020District of Columbia
  • 2010Colorado

Courts

  • United States District Court for the District of Columbia
  • United States Court of Appeals for the District of Columbia Circuit

Education

  • Georgetown University Law CenterJ.D.magna cum laude2004
  • University of North Carolina at Chapel HillB.S.with Highest Honors2001