JOHN W. TREECE has been a partner since joining Sidley Austin LLP in 1988. His practice focuses on antitrust, patent, the intersection between antitrust and patent law, and general commercial litigation. He is a graduate of Harvard University (B.A., magna cum laude, 1975) and Columbia University School of Law (J.D.,1978).
Mr. Treece is a Global Coordinator of the firm’s Antitrust and Competition Practice and the head of the Litigation - Commercial, Competition, and Securities Group in the Chicago office. Mr. Treece is featured as a Life Sciences Star in the inaugural edition of LMG Life Sciences 2012 for his outstanding Antitrust work. He has been recognized as one of the leading antitrust lawyers in the country in such publications as Chambers USA (2004-2012); The Legal 500 US; PLC: Which Lawyer? (highest rating for competition and antitrust); and The International Who’s Who Legal. Client and peer comments include, “a responsive, dedicated and business-oriented professional” (Chambers 2011); “very strong technically and extremely responsive …” (Legal 500 2009); “A greater writer, a practical litigator and someone creative enough not to have to always go by the book” (Chambers USA 2007) and “clever and strategic … he’s great with detail and an excellent writer” (Chambers USA 2006).
Mr. Treece’s successful jury trial for Johnson & Johnson, described below, was selected as one of the top defense verdicts in 2006 by the National Law Journal. He frequently speaks publicly on antitrust issues, for example at Cornerstone Research’s seminar on “Legal and Economic Issues in Pharmaceutical and Biotechnology Markets” (2012); the American Antitrust Institute’s 5th Annual Conference on the Future of Private Antitrust Enforcement (2011); Global Competition Review’s Antitrust Leadership Forum (2011); Analysis Group’s seminar on “Proving Common Impact in Antitrust Class Actions” (2010); the ABA Antitrust Section’s course on Litigating an Antitrust Case (2009); Intellectual Property Owner’s Annual Conference (2008); the American Conference Institute’s 3rd Annual Forum on Pharmaceutical Antitrust (2007); and the American Corporate Counsel Association (2006). He was a panelist at one of the five Joint FTC-DOJ Workshops involved in the review of the draft Horizontal Merger Guidelines in 2009 and a presenter at the ABA Antitrust Section’s 1999 spring meeting as counsel in a mock jury trial.
Monopolization Case Experience
Mr. Treece has handled several noteworthy monopolization cases. In 2006, he won a 6-week jury trial for Johnson & Johnson, in a case brought by a smaller competitor alleging monopolization through price bundling and monopoly leveraging. That result, believed to be the only defense jury verdict in a price bundling case, set the stage for the successful resolution of similar cases brought by two other competitors, including the settlement of a $5.2 billion claim for $11 million, as well as a putative customer class action. He has also represented J&J in a monopolization/tying case involving stents.
He has handled several significant monopolization cases in the pharmaceutical industry. In 2011, he obtained a dismissal of a complaint alleging that AstraZeneca delayed generic entry through “sham patent litigation” involving Prilosec OTC® , and the same year, represented the company in a case making similar “sham patent litigation”/”generic delay” allegations with respect to Toprol-XL, a $1.5 billion product. In 2010, he won a dismissal of a complaint for AstraZeneca in a so-called “product switching” or “product life cycle” case involving Prilosec® and Nexium®. He currently represents Astellas Pharmaceuticals in a case alleging that the company delayed the entry of generic versions of a leading immunosuppressant drug with a “sham citizen petition” and in a case alleging monopolization through patent tying. He also represented GlaxoSmithKline in the well-known Asahi Glass case, in which Judge Posner dismissed an antitrust challenge to the settlement of pharmaceutical patent litigation.
He has consulted frequently with pharmaceutical companies concerning acquisitions, as well as the antitrust implications of patent settlements and licensing arrangements.
Outside of the pharmaceutical and medical device industries, Mr. Treece represented Microsoft in a monopolization and patent case brought by an audio-video delivery software company, as well as Kimberly-Clark (as both plaintiff and defendant) in “patent antitrust” cases in the disposable diaper industry. He currently represents Simon Property Group in a monopolization case involving high-end shopping centers.
Price-Fixing and Other Sherman Act Section 1 Litigation Experience
Mr. Treece has almost 30 years’ experience in class action price-fixing litigation. He coordinated the successful defense of G. D. Searle & Co. in In re Brand Name Prescription Drugs Antitrust Litigation, a series of cases including a price-fixing class action in which plaintiffs sought $1.1 billion in damages from Searle alone. Although all but four defendants settled, Searle proceeded to trial and after 10 weeks, the court directed a verdict for the defense. (He also represented Searle in more than a dozen state analogue cases.) He represented Kimberly-Clark Corporation in In re Commercial Tissue Paper Antitrust Litigation, another multi-district price fixing class action that was settled in 2000 for less than the plaintiffs’ attorneys’ fees; Together Rx (a consortium of pharmaceutical companies) in connection with price-fixing claims made in the Average Wholesale Price Litigation (the putative class dismissed the claim in 2005 after a year of discovery); a Japanese industrial products producers in a case alleging an international cartel that was settled for far less than the cost of defense; and the only defendant to win summary judgment in In re Cement and Concrete Antitrust Litigation in the early 1980s.
He currently represents AT&T Mobility LLC in two Section 1 cases, one alleging price-fixing of text messaging services and one concerning the provision of common short codes. In addition, he represents SSAB Swedish Steel in a case alleging collusive restrictions of output by all major U.S. steel mills; he also represents the company in a case alleging a group boycott of a steel distributor in Texas.
Price Discrimination Litigation Experience
Mr. Treece’s experience with price discrimination cases include representing G. D. Searle in Robinson-Patman cases brought by almost 4,000 retail pharmacies as part of In re Brand Name Prescription Drugs Antitrust Litigation, as well as Brother International in a multi-faceted antitrust case that included price discrimination allegations. He frequently consults with pharmaceutical companies on Robinson-Patman issues and often provides general in-house antitrust training to clients in a variety of industries, including consumer products, electronics, insurance, telecommunications, and pharmaceuticals.
Patent Litigation Experience
Mr. Treece also has substantial experience in patent litigation (and the intersection between patent and antitrust law). From 2003-2007, he represented GlaxoSmithKline in a Hatch-Waxman Act challenge to its patents covering Avandia®, a $2 billion per year drug for the treatment of Type II diabetes. He has also represented Kimberly-Clark, AT&T, A.C. Nielsen, AM International, and R. R. Donnelley in patent infringement cases. In 2000-2001, he represented GlaxoSmithKline and its licensor Loyola University, in a patent ownership dispute with a German biotech company, which resulted in an order directing the German company to transfer to Loyola worldwide patents and patent applications relating to GSK’s vaccine for cervical cancer.
Other Significant and Early Litigation Experience
Mr. Treece has worked on various types of commercial litigation, including business tort, employment discrimination, and breach of contract cases. Most recently, he has represented AstraZaneca in consumer fraud litigation in which plaintiffs allege that the company falsely marketed Nexium® as superior to Prilosec®; in 2008, he successfully argued in opposition to plaintiffs’ class certification motion Weiss v. AstraZaneca. Earlier, he represented Pharmacia Corp. (now part of Pfizer Inc.) in Great Lakes Chemical v. Pharmacia, a fraud and breach of contract case arising from the spin-off of a specialties chemical company, and GlaxoSmithKline in a tortious interference case brought by a generic drug company.
Mr. Treece began his career as a general commercial litigator at a smaller law firm. While there, he co-chaired a four-week break of contract/fraud trial concerning computer software, coordinated 15 separate cases resulting in a multimillion dollar property tax refund; tried numerous workman’s compensation cases in an administrative agency; tried two employment discrimination cases to juries and a retaliatory discharge case to the bench; and represented plaintiff utilities in fuel contract cases settling for $125 and $75 million. During this time, he worked on several antitrust matters, including all of the briefing on what was then the leading Seventh Circuit labor exemption antitrust case and representing the plaintiff in the first case to consider the antitrust implications of a PPO. In addition, he spent about a third of his time working on utility regulatory matters, including innumerable administrative hearings, ranging from full-blown rate cases to meter tampering cases.