David Kesselman, founding partner of Kesselman Brantly Stockinger LLP, was recently quoted in the Law360 article, “Microsoft Case Looms Over DOJ’s Google Antitrust Action.”
The article examines the landmark antitrust lawsuit the DOJ brought against Google and how a similar case against Microsoft 20 years ago could impact the court’s decision in the Google matter.
According to David Kesselman, Microsoft argued that its operating system and browser were part of a single platform programmed to work together, leading the court to have concerns over these technical contentions when analyzing the tying claims against Microsoft. “It was all new and innovative and it wasn’t clear how consumer demand worked in those circumstances,” Kesselman said.
In the case against Google, the DOJ is employing a more traditional approach about a big company weaponizing contracts to keep the competition out. “And that’s been happening since 1890,” Kesselman said. “The underlying conduct should be pretty familiar to most antitrust practitioners.”
He went on to say that it doesn’t seem like the DOJ would push to break up Google based on the conduct alleged in the complaint, but would rather accept some form of an agreement from Google to terminate the problematic contract terms.
“The primary focus seems to be that they want these contract provisions to be modified or set aside to allow some of the rivals who have not been able to break through, to break through,” Kesselman said.
The full Law360 article can be found here (subscription required).
- Federal Circuit Rules in Favor of KBS Client in Complex Antitrust Dispute – The United States Court of Appeals for the Federal Circuit affirmed dismissal of plaintiff Power Analytics’ lawsuit, which alleged violations of Sherman Act Section 1 and Section 2 based on allegedly exclusive agreements between defendant ETAP (KBS’s client), and defendants OSI and Schneider, respectively. The case centered on software used to design and monitor electrical power grids, including software certified for use with nuclear power plants. Trevor V. Stockinger argued before the Federal Circuit. Power Analytics asserted on appeal that the District Court applied the wrong legal theory and erred in finding it failed to adequately allege cognizable Sherman Act claims. ETAP responded that Power Analytics waived an argument under its new legal theory; substantively, it argued the District Court properly held, among other things, that the Complaint failed to adequately allege exclusive dealing arrangements and that, even had the allegations of agreement been sufficient, the agreements were part of the competitive process so that any harm to Power Analytics arose out of competition, not anticompetitive acts. The Federal Circuit agreed, finding waiver as to the Section 1 claim and affirming on the merits as to the Section 2 claim. KBS co-counselled this case with Klarquist Sparkman, LLP, who handled the parallel patent infringement claims. Dismissal of those claims was earlier affirmed by the Federal Circuit. The opinion can be found here.
- KBS Team Achieves Temporary Stay of Preliminary Injunction For Global Disaster Relief Non-Profit July, 13, 2020 – United States Court of Appeals for the Second Circuit issued a Temporary Stay Order stopping a District Court Judge’s preliminary injunction Order against Team Rubicon Global, Ltd. (“TRG”) which is represented by KBS. See attached Second Circuit Court of Appeals Temporary Stay Order for details. TRG, is an international disaster relief non-profit involved in a federal trademark dispute against Team Rubicon, Inc. (“TR-USA”). The Temporary Stay Order at the Court of Appeals was critical for KBS’s client TRG. The District Court Judge’s preliminary injunction Order against TRG prevented TRG from performing international disaster relief operations with its sublicensees, including but not limited to, current relief work directed towards the Covid-19 pandemic. The Court of Appeals’ Temporary Stay Order has temporarily suspended the District Court’s preliminary injunction which irreparably harmed TRG and TRG’s charitable operations.
- David Kesselman named by LA and SF Daily Journal as a Top Antitrust Lawyer in California for 2020. June 2020 Los Angeles, CA – In recognition of his talents and success, KBS founding partner David Kesselman has been recognized by the LA and SF Daily Journal as one of the top antitrust lawyers in the State of California. He was included among a group of highly elite lawyers. To read the article click here.
- KBS Defeats Summary Judgment in Antitrust Battle Over Mobile Dial Code Market
January 2020 – David Kesselman and Trevor Stockinger, along with co-counsel Julie Greathouse and Christine Dillard of PPGMR Law, representing plaintiff Sumotext Corp., successfully defeated a motion for summary judgment in a federal antitrust case involving the leasing and servicing of mobile dial codes (often referred to as mobile StarStar numbers). Sumotext contends that defendants Virtual Hold Technology, LLC, StarSteve LLC, VHT StarStar LLC, and Zoove Corp., embarked upon an anticompetitive scheme to restrain trade and monopolize the markets for leasing and servicing of mobile dial codes – in violation of Sections 1 and 2 of the Sherman Act. After extensive briefing and oral argument, the district court issued a written order denying in full defendants’ motion for summary judgment on December 20, 2019. The case is Sumotext Corp. v. Zoove, Inc., et al., Case No. 5:16-cv-01370-BLF-NMCx (N.D. Cal.). To read the Court’s order click here.
- David Kesselman named among Top 100 Southern California Super Lawyers in 2020
January 2020 Los Angeles, CA – In recognition of his talents and success, KBS founding partner David Kesselman has been recognized as one of the top 100 Super Layers in Southern California. He was included among this highly elite group of lawyers for his expertise in Antitrust Law.
- Amy Brantly, David Kesselman, Trevor Stockinger named Super Lawyers in 2020
January 2020 Los Angeles, CA – In recognition of their talents and success, KBS partners Amy Brantly, David Kesselman, and Trevor Stockinger again have been named Super Lawyers in Southern California. The firm founding partners, whose practices include all types of complex business litigation, were recognized for their expertise in Antitrust Law by this Thomson Reuters rating services.
- Majed Dakak named a Rising Star Super Lawyer in 2020
January 2020 Los Angeles, CA – In recognition of his talent and success, KBS partner Majed Dakak again has been named a Rising Star Super Lawyer in Southern California by this Thomson Reuters rating service. Mr. Dakak, a firm founding partner, whose practice includes all types of complex business litigation, was named a Rising Star Super Lawyer in the Antitrust Law practice area.
- KBS Obtains Class Action Settlement of 1.215 Million
December 2019 – Majed Dakak, Esq., representing the Plaintiff and putative class members, successfully obtained Final Approval of Class Action Settlement in the amount of $1.215 million against Defendant DHL Express (USA), Inc. The Order approving final settlement was entered on December 10, 2019 by Los Angeles Superior Court Judge Carolyn B. Kuhl. To view the Order click here.
- KBS Files Amicus Brief for Law Professor in FTC v. Qualcomm Appeal
November 2019 – Manhattan Beach, CA – Supporting the Federal Trade Commission in its district court victory over Qualcomm, KBS attorneys David Kesselman, Amy Brantly recently filed an amicus brief in the Ninth Circuit on behalf of University of Utah law professor Jorge L. Contreras. The amicus brief asks the Ninth Circuit to affirm the district court’s findings that Qualcomm engaged in anticompetitive practices in the chip market. The amicus brief is available here. And a recent Law360 article on the filing can be found here.
- Majed Dakak Obtains Judgment in the Amount of $3,366,131.20 in his Client’s Favor
October 2019 – Majed Dakak, of Kesselman Brantly Stockinger LLP, recently obtained an arbitration award in his client’s favor in the amount of $3,272,005. The arbitration award was confirmed by the San Francisco Superior Court. Shortly thereafter, the San Francisco Superior Court entered judgment in the amount of $3,366,131.20 adding pre-judgment interest to the three-member panel’s arbitration award. Mr. Dakak represented one of the two partners involved this joint venture dispute. The joint venture produced giclee prints, frames, furniture, and canvas in both the retail and hospitality industries.
- David Kesselman’s Article on Supreme Court Decision Appears on Front Page of Los Angeles and San Francisco Daily Journal
May 2019 – In what some have characterized as a bit of a surprise ruling, the U.S. Supreme Court this month sided with consumers in holding that they have standing to pursue a proposed antitrust class action against Apple for monopolization. In Apple Inc. v. Pepper, et al., 2019 DJDAR 3951 (May 13, 2019), the court ruled 5-4 that the consumer plaintiffs were not barred by the “indirect purchaser rule” that generally limits standing in federal antitrust cases to direct purchaser plaintiffs only.
- Majed Dakak named a Rising Star Super Lawyer in 2019
January 2019 Los Angeles, CA – In recognition of his talent and success, KBS partner Majed Dakak again has been named a Rising Star Super Lawyer in Southern California by this Thomson Reuters rating service. Mr. Dakak, a firm founding partner, whose practice includes all types of complex business litigation, was named a Rising Star Super Lawyer in the Antitrust Law practice area.
- Amy Brantly, David Kesselman, Trevor Stockinger named Super Lawyers in 2019
January 2019 Los Angeles, CA – In recognition of their talents and success, KBS partners Amy Brantly, David Kesselman, and Trevor Stockinger again have been named Super Lawyers in Southern California. The firm founding partners, whose practices include all types of complex business litigation, were recognized for their expertise in Antitrust Law by this Thomson Reuters rating services.
- KBS Wins At The Hawaii Supreme Court
November 2018 – Amy Brantly, representing the Bankruptcy Estate of Aloha Sports, Inc. (“Aloha Sports”), successfully argued to the Hawaii Supreme Court that summary judgment should not have been granted on Aloha Sport’s Hawaiian state law antitrust claim against the National Collegiate Athletic Association (“NCAA”). The opinion clarified the proof necessary for a plaintiff to succeed on an antitrust claim under Hawaii law. In a unanimous, 39-page, published opinion, the Supreme Court held that the lower courts erroneously required Aloha Sports to prove that the NCAA – while engaging in an unfair method of competition resulting in injury to Aloha Sports – actually harmed competition. The Hawaii Supreme Court also reaffirmed that a plaintiff may generally describe the relevant market without resort to expert testimony. A copy of the opinion can be found at http://www.courts.state.hi.us/wp-content/uploads/2018/11/SCWC-15-0000663.pdf. The Supreme Court remanded the case to the circuit court for trial. Amy Brantly and David Kesselman, along with local counsel Fritz Rohlfing, are expected to represent Aloha Sports in the trial.
- Ninth Circuit Affirms Dismissal of TCPA Claim for Earth Fare
October 2018 – Amy Brantly and David Kesselman won an appeal decided in favor of KBS client Earth Fare, Inc. Plaintiff Jalen Epps appealed the district court’s dismissal of a Telephone Consumer Protection Act (“TCPA”) case against organic grocery store chain Earth Fare. The Ninth Circuit affirmed the dismissal holding that plaintiff did not reasonably revoke consent to receive text messages from Earth Fare. The case is Jalen Epps v. Earth Fare, Inc., Case No. 17-55413 (9th Cir.).
- David Kesselman, Amy Brantly and Trevor Stockinger were again chosen as Southern California Super Lawyer in Antitrust for 2018.
- KBS Defeats Motion to Dismiss Antitrust Claims in Battle Over Mobile Dial Code Market
April 2018 – David Kesselman and Trevor Stockinger, with co-counsel Julie Greathouse of PPGMR Law, have successfully defeated motions to dismiss federal antitrust claims. KBS represents plaintiff Sumotext Corporation against defendants Zoove Corporation, Virtual Hold Technology, LLC, and StarSteve LLC. The case involves the market for mobile dial codes (often referred to as mobile Star Star numbers). Sumotext alleges that StarSteve and VHT embarked upon an anticompetitive scheme to control and monopolize the national registry for mobile dial code numbers, controlled by Zoove. Sumotext alleges that defendants engaged in, among other things, an illegal boycott and an unlawful refusal to deal. After extensive briefing and oral argument, the district court rejected defendants’ motion to dismiss and held that Sumotext had properly alleged facts to support claims under both Sections 1 and 2 of the Sherman Act. The case is Sumotext Corporation v. Zoove, Inc., et al., Case No. 5:16-cv-01370-BLF-NMCx (N.D. Cal.).
- The civility and decency of a legal titan: Maxwell M. Blecher
March 20, 2018 – At a time when our society’s civility and decency are being threatened every day, I feel compelled to write about the passing of a true legend in the legal profession who embodied civility and decency in everything that he did. Last October, we unexpectedly lost a giant of the antitrust bar: Maxwell M. Blecher. A truly gifted lawyer for more than 60 years, Max was a throw-back to another era. In his view, the practice of law was a profession in which your word was your bond and a handshake meant more than any document drafted by the ablest of counsel. The highlights of Max’s remarkable career are worth recounting…
- SEASONED REAL ESTATE AND BUSINESS LITIGATOR S.V. STUART JOHNSON JOINS KESSELMAN BRANTLY STOCKINGER LLP
January 17, 2018 – Manhattan Beach, Calif. – Kesselman Brantly Stockinger LLP (KBS), an antitrust and business litigation firm, announces the addition of S.V. Stuart Johnson, as Partner and Head of the Commercial Real Estate and Partnership Matters Practice Group. Associate Ryan Davis and Legal Assistant Brittney Igor also join the firm with Johnson. KBS represents companies and individuals in complex business disputes, including antitrust and unfair competition litigation, competition counseling and trademark and copyright litigation…
- KBS Prevails at Court of Appeal on Anti-SLAPP Ruling for Physician
November 2017 – David Kesselman and Kara McDonald, with co-counsel Steven Schear, successfully secured complete reversal of a trial court’s anti-SLAPP ruling on a physician whistleblower claim. KBS client and neurosurgeon, Dr. Kofi Kessey, filed suit against Los Robles Regional Medical Center, and its parent corporation, alleging unlawful retaliation for raising concerns about patient safety at the hospital. The California Court of Appeal ruled that the trial court erred in finding that the conduct at issue arose out of protected activity, and therefore the trial court should not have applied the anti-SLAPP statute. The case is Kofi Kessey, M.D. v. Los Robles Regional Medical Center, et al., Case No. B270156, in the Court of Appeal of the State of California, Second Appellate District.
- Partner Amy Brantly Is Elected to the Chancery Club
June 2017 – Founded in 1925, the Chancery Club of Los Angeles is composed of distinguished lawyers who are active in professional, civic, and philanthropic organizations. Its members have held positions of honor and responsibility in important legal, judicial, academic, governmental and civic organizations. Membership in the Chancery Club is by invitation only and many of the current members are former federal and state judges. The induction for all new members was held at the California Club on June 8, 2017.
- KBS Successfully Defeats Antitrust, Tortious Interference, Theft of Trade Secret and Related Claims on Motion to Dismiss
May 2017 – Trevor Stockinger and David Kesselman, on behalf of their client Operation Technology Inc. (“Etap”), secured dismissal of Plaintiff Power Analytics Corp.’s antitrust claims brought under section 1 of the Sherman Act, Section 2 of the Sherman Act, and Section 3 of the Clayton Act, as well as related claims for violation of the Lanham Act, trade theft, and tortious interference with contract. This suit alleged anticompetitive exclusive dealing agreements and monopolization in the market for software used to design and monitor nuclear power plants and high-reliability data centers. Among other things, Hon. John A. Kronstadt dismissed the Section 1 and 2 claims without prejudice for failure to plausibly allege, among other things, the existence of an exclusive dealing agreement, a relevant market, foreclosure from that market, and antitrust injury. The Section 3 claim was dismissed with prejudice on grounds that Section 3 applies only to tangible goods and not software. The case is Power Analytics Corp. v. Operation Technology, Inc., et al., Case No. 8:16-CV-1955-JAK-FFM (C.D. Cal.).
- KBS Wins Writ Relief On Antitrust Claim
March 2017 – David Kesselman and Amy Brantly successfully obtained writ relief for a defendant law firm on a plaintiff’s Cartwright Act claim. After the Superior Court overruled a demurrer to the Cartwright Act claim, the Court of Appeal granted writ relief holding that the complaint failed to include allegations that are essential to a Cartwright Act claim, including the relevant market, market power within the relevant market, and harm to competition.
- KBS Successfully Defeats Motion for Preliminary Injunction In Battle Over Africa
February 2017 – David Kesselman, Amy Brantly and Kara McDonald, on behalf of their client ZA Central Registry, NPC (“ZACR”), succeeded in again defeating Plaintiff DotAfricaConnect Trust’s (“plaintiff DCA”) second motion for preliminary injunction in Los Angeles Superior Court. This case arises out of a dispute over the award of the generic top level domain name .Africa. ZACR prevailed in the competition for .Africa but plaintiff DCA filed suit and sought to prevent ICANN (represented by Jones Day) from delegating .Africa to ZACR. The Court again denied plaintiff DCA’s request. Earlier, KBS succeeded in obtaining a dismissal of the claims against ZACR who is now an intervenor in the case. The case is DotConnectAfrica Trust v. Internet Corporation for Assigned Names and Numbers, et al., Case No. BC607494 (L.A. Superior Court).
- Guillermo Mata v. Fletcher Jones of Chicago, Ltd., et al. (N.D. Ill.)
Amy Brantly and David Kesselman represented Defendant Kaarya, LLC d/b/a myKaarma in this putative class action brought under the Telephone Consumer Protection Act (TCPA). The case settled after myKaarma filed its motion to dismiss and before significant discovery commenced.
- Epps v. Earth Fare, Inc. (9th Cir.)
Amy Brantly and David Kesselman represented Defendant Earth fare in TCPA litigation brought in federal court in the Central District of California. KBS won on a motion to dismiss the case with prejudice and represented Earth Fare in plaintiff’s appeal to the Ninth Circuit. The Ninth Circuit affirmed the dismissal holding that plaintiff did not reasonably revoke consent to receive text messages from Earth Fare.
- KBS Defeats TCPA Claim for Earth Fare
February 2017 – David Kesselman and Amy Brantly won dismissal of a Telecommunications Consumer Protection Act (“TCPA”) case filed by Jalen Epps against grocery store chain Earth Fare, in the Central District of California. Judge James Otero dismissed the case without leave to amend holding that plaintiff did not successfully revoke consent to receive text messages and that even if she did, plaintiff failed to plausibly allege that Earth Fare’s messages were sent using an automatic telephone dialing system. The case is Jalen Epps v. Earth Fare, Inc., Case No. 2:16-cv-08221-SJO-SSx (C.D. Cal.).
- David Kesselman, Amy Brantly and Trevor Stockinger named Super Lawyers in 2017
March 2017 Los Angeles, CA – In recognition of their talents and success, KBS partners David Kesselman, Amy Brantly and Trevor Stockinger have been named Super Lawyers in Southern California, and Ms. Brantly also received the distinction of being named a Top Woman Attorney in Southern California by this Thomson Reuters rating services. Mr. Kesselman and Mr. Stockinger were named Super Lawyers in the Antitrust practice area and Ms. Brantly in the Business Litigation practice area.
- Amy Brantly named President-Elect of Women Lawyers Association of Los Angeles for 2016-2017
September 2016 Los Angeles, CA – KBS partner Amy Brantly has the honor of serving as the President-Elect of Women Lawyers Association of Los Angeles in 2016-2017. WLALA is the leading bar organization for women attorneys in Southern California and works to support the promotion and retention of women attorneys and judges in Los Angeles. WLALA provides support and resources to local practitioners on an array of legal issues, puts on important continuing education programs and seminars throughout the year, and works with several pro bono organizations to provide services to women in need. Ms. Brantly previously served as First Vice President of WLALA.
- David Kesselman named Chair of LACBA Antitrust and Unfair Business Practices Section for 2016-2017
July 2016 Los Angeles, CA – KBS partner David Kesselman has the honor of serving as the Chair of the Los Angeles County Bar Association’s Antitrust and Unfair Business Practices Section for 2016-2017. The Section provides support and resources to local practitioners on all types of antitrust and unfair competition issues, and puts on a number of important continuing education programs and seminars throughout the year. Mr. Kesselman previously served as Vice Chair of the section.
- Majed Dakak named a Rising Star Super Lawyer in 2016
June 2016 Los Angeles, CA – In recognition of his talent and success, KBS partner Majed Dakak has been named a Rising Star Super Lawyer in Southern California by this Thomson Reuters rating service. Mr. Dakak, whose practice includes all types of complex business litigation, was named a Rising Star Super Lawyer in the Antitrust practice area.
- David Kesselman and Amy Brantly named Super Lawyers in 2016
February 2016 Los Angeles, CA – In recognition of their talents and success, KBS partners David Kesselman and Amy Brantly have been named Super Lawyers in Southern California, and Ms. Brantly also received the distinction of being named a Top Woman Attorney in Southern California by this Thomson Reuters rating services. Mr. Kesselman was named Super Lawyer in the Antitrust practice area and Ms. Brantly in the Business Litigation practice area.
- Big law experience, small firm perspective
March 18, 2016 The Daily Journal chronicles KBS’s successful year.
- KBS Partners David Kesselman and Amy Brantly Named Super Lawyers February 23, 2015 Los Angeles, CA – In recognition of their talents and success, KBS partners David Kesselman and Amy Brantly have been named Super Lawyers in Southern California, and Ms. Brantly also received the distinction of being named a Top Woman Attorney…
- California Cipro Case Puts Pay-For-Delay Deals Under Scrutiny
February 11, 2015 David Kesselman quoted as an expert on the status of the California Supreme Court case concerning pay-for-delay settlements.
- Ordered recusal of immigration judge boggles the mind
December 10, 2014 KBS partner Majed Dakak co-authors op-ed concerning U.S. Immigration Judge Ashley Tabaddor being ordered to indefinitely recuse herself.
- Trevor Stockinger Discusses New Antitrust Boutique
October 22, 2014 Over the past two years, David Kesselman, Amy Brantly and Trevor Stockinger collaborated to expand the antitrust group at Goldberg, Lowenstein & Weatherwax. It functioned as a firm-within-a-firm, so establishing their own practice seemed the next logical step: Kesselman, Brantly…