Richard H. Cunningham, P.C.

Partner Litigation

Washington, D.C. +1 202 389 3119

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.

Deal Clearance and FTC and DOJ Antitrust Matters

  • Represented leading multi-national healthcare company in responding to expansive antitrust conduct investigation
  • Represented UnitedHealth Group (UHG) to secure unconditional clearance for two acquisitions after full-phase investigations by FTC and DOJ (2022–23)
  • Served as senior trial team member representing UHG in 2022 DOJ enforcement action seeking to block the $13 billion 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;" DOJ abandoned appeal in 2023
  • Represented specialty pharma company Slayback in its 2023 sale to Azurity; achieved antitrust clearance during initial waiting period by proactively resolving potential issues
  • Represented leading Big Box national retailer in full-phase review of potential acquisition of national rival
  • 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*
  • Obtained unconditional antitrust clearance for 2015 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*
  • Represented AT&T to defend 2017 DOJ antitrust conspiracy allegations, matter settled favorably while motion to dismiss was pending*
  • Advised leading ski resort operator regarding the antitrust risks and clearance strategies associated with potential M&A opportunities*
  • Represented Tenet Healthcare in 2014 full-phase FTC HSR investigation of a $135 million hospital acquisition that resulted in clearance without conditions,* in 2020 and 2023 Clayton Act merger challenges in W.D. Tenn. and N.D. Cal., and in the sale of multiple hospitals totaling more than $2 billion in value
  • Represented an innovative semiconductor company in FTC anticompetitive practices investigation*

FTC Consumer Protection Matters

  • Represented Rite Aid to resolve multiple FTC inquiries relating to both compliance with an existing FTC order and de novo allegations with no monetary payment in 2024
  • Represented consumer rental company to secure complete closure of an expansive FTC investigation in 2023
  • Represented crypto platform Celsius to successfully resolve FTC investigation in a manner that did not involve a monetary payment or interfere with ongoing restructuring proceedings in 2023
  • Represented digital healthcare marketplace operator in the FTC’s first-ever Health Breach Notification Rule (HBNR) matter; resolved on favorable terms in 2023
  • 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 on very favorable terms
  • Represented a leading digital financial services marketplace in FTC investigation favorably resolved in 2022
  • Represented leading instant buyer (or “iBuyer”) of residential real estate in FTC investigation resolved favorably in 2022
  • 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 involving biometric tools that resulted in unconditional closure in 2022
  • Represented Meta/Facebook in multiple FTC investigations, including the groundbreaking 2019 privacy-related settlement
  • Represented educational software provider in FTC investigations evaluating the company’s security, privacy, and COPPA compliance practices
  • Represented multiple multi-level marketing organizations in FTC inquiries and related counseling
  • Represented multi-national digital media platform to defend sweeping FTC investigation relating to data security, privacy, and e-commerce issues; secured unconditional closure*
  • Represented global weight loss provider in multiple FTC investigations in 2014–2018*
  • 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*
  • Represented 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*

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
  • Counseled national air travel and hospitality companies regarding transaction and JV-related antitrust issues*
  • 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

“Merger Remedy Divestitures: the Agencies Zig and the Courts Zag,” Antitrust (September 16, 2023) – Winner, 2024 Antitrust Writing Awards: Business Articles, Mergers (Concurrences)

“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

Moderator, “The Rise, Fall, and Fallout of the FTC’s Monetary Remedies Authority,” ABA Trust & Trade Podcast (2023)

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, Kellogg School of Management, IL (2023); University of California, Berkeley School of Law, CA (2021); University of Pennsylvania Wharton School of Business, Philadelphia, PA (2013); Georgetown University McDonough School of Business, Washington, D.C. (2012)

Recognition

Lawdragon “500 Leading Litigators in America” (2024)

Chambers USA “Up and Coming” for Antitrust (2023)

Best Lawyers® for Antitrust Law (2024)

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

The Legal 500 United States for Advertising and Marketing: Litigation (2022–2023); Antitrust: Civil Litigation/Class Actions: Defense (2020–2021); Antitrust: Cartel (2020); Antitrust: Merger Control (2020); Corporate Investigations and White-Collar Criminal Defense (2020); General Commercial Disputes (2020)

5280 "Top Lawyer" for Antitrust (2020)

Euromoney “Best in Antitrust/Competition” among Americas Rising Stars

Law Week Colorado “Barrister’s Best: Best Antitrust Lawyer” (2018)

Denver Business Journal “40 under 40” business leader (2018)  

Super Lawyers “Rising Star” in Colorado for antitrust litigation (2017–2018)

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 (2020–2021)

Editor, Von Kalinowski, Antitrust Laws and Trade Regulation: Desk Edition (Lexis-Nexis) (2013–2019)

Regular Contributor, The Washington Legal Foundation’s Legal Pulse blog (2017–2021)

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