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OVERVIEW

Kendall Millard
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7461

F 317-231-7433

OVERVIEW

Kendall Millard
Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P 317-231-7461

F 317-231-7433

Co-chair of the Antitrust and Competition Law practice, Kendall Millard focuses on the resolution of complex antitrust, class action and other high-stakes commercial litigation. He represents multinational corporations, including Japanese companies and their U.S. subsidiaries, in criminal antitrust investigations and large commercial disputes in federal and state courts and arbitration nationwide.

OVERVIEW

Kendall Millard Partner

Indianapolis

11 South Meridian Street
Indianapolis, IN 46204-3535

P : 317-231-7461

Co-chair of the Antitrust and Competition Law practice, Kendall Millard focuses on the resolution of complex antitrust, class action and other high-stakes commercial litigation. He represents multinational corporations, including Japanese companies and their U.S. subsidiaries, in criminal antitrust investigations and large commercial disputes in federal and state courts and arbitration nationwide.

In the white collar arena, Kendall defends clients facing large national and international criminal antitrust investigations by the U.S. Department of Justice (DOJ), the Canadian Competition Bureau (CCB), the Japan Fair Trade Commission (JFTC), the Korean Fair Trade Commission (KFTC), and the Competition Commission of Singapore (CCS). He represents many American and Japanese companies in the DOJ’s criminal antitrust investigations in the auto parts, electronic components and other industries. He also assists clients in developing rigorous antitrust, Foreign Corrupt Practices Act (FCPA) and anti-bribery compliance programs and legal unilateral minimum advertised pricing (MAP) policies, and frequently presents antitrust compliance trainings for clients and trade associations in the U.S. and Japan.

As a civil litigator, Kendall defends clients against allegations of price fixing, bid-rigging, customer allocation, resale price maintenance, exclusive contracts, tying, bundling, boycotts, monopolization and attempted monopolization brought under Sections 1 and 2 of the Sherman Act, California’s Cartwright Act, New York’s Donnelly Act, and other state competition laws. Kendall was appointed and served as co-liaison counsel for all defendants in the In re Polyurethane Foam Antitrust Litigation, multidistrict litigation (MDL) in the Northern District of Ohio from 2010 to 2015.

On the corporate side, Kendall advises parties and third parties concerning potential antitrust issues with proposed mergers, acquisitions and joint ventures, including in Hart-Scott-Rodino (HSR) filings before the Federal Trade Commission (FTC) and the DOJ. This includes conducting market definition and competitive impact analyses and responding to Civil Investigative Demands (CIDs) and subpoenas for documents and testimony issued to industry participants.

Kendall has published articles and contributed to ABA publications on current antitrust developments, including co-authoring the U.S. section of the ICLG International Comparative Legal Guide to Cartels and Leniency.

Clients appreciate Kendall’s extraordinary attention to their needs. He remains involved in supporting not only each client’s commercial objectives, but also in getting to know them personally. Kendall thrives under the complexity of antitrust law and other substantive legal disciplines. Kendall’s sensitivity to the major financial and other life-altering consequences that can occur in such cases drives him to educate clients before a crisis happens, as well as to aggressively defend their freedom and bottom line both in and out of court.

Kendall has represented clients on antitrust matters in a wide range of industries, including:

  • Engines, shock absorbers, sealings, resistors, latches and dozens of other component parts for automobiles, RVs, motorcycles and aircraft in the automotive, aerospace, cell phone and high-tech industries
  • Hard and soft tissue dental lasers, hospital beds, therapy and moveable medical equipment, hospital mergers, pharmaceutical distribution services, and anesthesiology services in the medical device and healthcare industries
  • Strollers, car seats, high chairs, foam mattresses and vacuum cleaners in the baby and durable consumer products industries
  • Cigarettes, kitty litter, pet food, packaged ice, bakery and other perishable food and retail products in the grocery and supermarket industry
  • Ready mix concrete, aggregates, polyurethane foam, zinc oxide, exterior insulation finishing systems (EIFS), and fiberglass insulation in the construction and manufacturing industries
  • Racing tires and sanctioned racing events in the sports and racing industries and gas station franchises and truck stops in the oil and gas industry
  • Software licenses and navigation systems in the computer industry and credit card issuance and data protection services in the banking industry

Notably, Kendall has also tried cases and won appeals for indigent pro bono clients seeking asylum in the U.S. to avoid persecution in their home country on account of the client’s political or religious beliefs or social group status.

Prior to joining Barnes & Thornburg, Kendall was an attorney at Arnold & Porter LLP in Washington, D.C., and at the Legal Aid Society of the District of Columbia. Prior to law school, Kendall studied and taught for three years in Japan; he is well-versed in Japanese culture and how it differs from the American point of view. He speaks conversational Japanese and taught English as a second language at IUPUI.

Honors

Indiana Super Lawyers, 2017-2019

Indiana Bar Foundation Pro Bono Publico Award, 2012

Barnes & Thornburg Joseph A. Maley Pro Bono Award, 2011

Professional and Community Involvement

Member, American Bar Association Antitrust Section

Former adjunct professor, Indiana University Robert H. McKinney School of Law, antitrust law

Member, former board member and former World Community Service Committee chair, Rotary Club of Indianapolis

Board member and general counsel, Timmy Global Health

Board member, Power of One

Graduate, Stanley K. Lacy (SKL) Executive Leadership Series

Member, Lacy Leadership Association

Former instructor, English as a second language, IUPUI

Member, St. Luke’s United Methodist Church

EXPERIENCE
  • Barnes & Thornburg obtained not guilty verdicts for clients Tokai Kogyo Ltd., and its U.S. subsidiary, Green Tokai Co. Ltd., in a federal criminal jury trial in the U.S. District Court for the Southern District of Ohio in Cincinnati. Tokai and Green Tokai were indicted in June 2016 for allegedly conspiring to fix the prices of automotive body sealing products sold to Honda Motor Co. Ltd in the United States and faced potential fines in the hundreds of millions of dollars. After a month-long jury trial featuring testimony from several Japanese witnesses from Nishikawa Rubber and Honda, the jury returned its verdicts after less than four hours of deliberation.
  • Barnes & Thornburg attorneys represented a Japanese automobile parts manufacturer and its U.S. and Canadian subsidiaries in a global investigation of possible bid-rigging and price-fixing in the sale of auto parts to automobile manufacturers. The U.S. Department of Justice (DOJ) Antitrust Division, the Japan Fair Trade Commission, European Commission and the Canadian Competition Bureau were all involved in this investigation. After conducting a thorough internal investigation of relevant employees in the United States and Japan, and cooperating with the DOJ for more than two years, the DOJ closed its investigation of our clients in April 2013. The DOJ has obtained more than $2.4 billion in criminal fines as part of its auto parts investigations to date, and the clients successfully avoided paying any fines.
  • Barnes & Thornburg attorneys represented a Japanese automobile parts manufacturer and its U.S. subsidiary in the U.S. Department of Justice (DOJ) Antitrust Division’s ongoing investigation of possible bid rigging and price fixing in the sale of auto parts to global automobile manufacturers. After conducting a thorough internal investigation of relevant employees in both the United States and Japan, and cooperating with the DOJ for more than a year, the DOJ closed its investigation of our clients in November 2014. The DOJ has obtained more than $2.4 billion in criminal fines as part of its auto parts investigations to date, and the clients successfully avoided paying any fines.
  • Barnes & Thornburg attorneys defended a major credit card issuer in a nationwide antitrust class action arising from the shift from magnetic strip to EMV chip technology in credit cards. Plaintiffs claimed our client conspired with credit card networks and other issuing banks to shift liability for certain fraudulent credit card charges from the issuing banks to merchants accepting Visa, MasterCard, American Express and Discover credit cards, the so-called October 2015 “liability shift.” Plaintiffs filed a class action complaint in the Northern District of California on behalf of merchants unable to accept EMV chip cards, seeking damages and injunctive relief under federal and state antitrust laws.

    The court denied plaintiffs’ request for a preliminary injunction, and our client, along with the credit card networks and the other issuing banks, filed motions to dismiss the complaint. After briefing and oral arguments on the motions, the court permitted plaintiffs to amend their complaint before ruling. Barnes & Thornburg then argued to plaintiffs’ counsel how our client’s facts would not be favorable to their case, and plaintiffs voluntarily dismissed our client from the amended complaint.
  • Barnes & Thornburg attorneys represented Peg Perego, a manufacturer of premium quality strollers, high chairs and car seats, in three cases alleging that baby product manufacturers conspired with Babies ‘R’ Us to impose resale pricing policies on Internet retailers in violation of Section One of the Sherman Act. Two retailers brought the first case in 2005, followed by follow-on nationwide class actions brought by consumers who purchased the relevant products from Babies ‘R’ Us. After five years of motions to dismiss (including one granted with leave to amend after the Supreme Court's ruling in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007)), extensive discovery, and class certification, defendants reached an agreement in 2010 to globally settle the class actions. Peg Perego's contribution to the class settlement amounted to less than 9 percent of the claimed single-damages against it. All Defendants other than Peg Perego settled the retailer action shortly after the class settlement, but Peg Perego elected to take its case to summary judgment and, if necessary, trial on plaintiffs' claims of more than $12 million in treble damages. After Barnes & Thornburg attorneys completed oral argument on the summary judgment motion in September 2011, the plaintiffs agreed to settle the entire action and dismiss their claims with prejudice without any payment by Peg Perego.

    BabyAge.com v. Toys 'R' Us, Inc, et. al. 2:05-06792-AB (E.D. Pa 2005); McDonough v. Toys 'R' Us, Inc, et. al. 2:05-06792-AB (E.D. Pa 2006); Elliott et al. v. Toys 'R' Us, Inc., et. al. 2:09-cv-06151-AB (E.D. Pa 2009).
  • Barnes & Thornburg attorneys defended authorized pharmaceutical wholesaler H.D. Smith in a nationwide antitrust lawsuit alleging defendants used FDA and state pedigree rules to exclude secondary pharmaceutical wholesalers from competing with them in violation of Sections One and Two of the Sherman Act, and New York’s Donnelly Act. The Court granted the wholesaler defendants’ motion to dismiss, with prejudice, for failure to allege a plausible conspiracy under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), and rejecting plaintiffs’ shared monopoly theory. The Second Circuit affirmed in a summary opinion in August 2010. RxUSA Wholesale, Inc. v. Alcon Laboratories, Inc., 2009 WL 3111728 (E.D.N.Y., Sept. 24, 2009); aff’d 2010 WL 3393737 (2nd Cir. Aug. 30, 2010).
  • Barnes & Thornburg attorneys represent defendant Knauf Insulation GmbH, a leading manufacturer of fiberglass insulation, in three related antitrust actions concerning allegations of price fixing and price differentials to a major customer. The direct purchaser plaintiffs, on behalf of a class of contractors who purchased residential fiberglass insulation, alleged that the five largest producers of fiberglass insulation engaged in price-fixing by agreeing with a large, common customer (Masco) to maintain a "price spread" between insulation sold to the customer and that sold to other contractors. Plaintiffs alleged damages in the action exceeding $750 million. After three manufacturers had already entered settlements in the direct purchaser case, Knauf negotiated a cost-of-litigation settlement that was less than half the settlement of any other defendant, and only 10% of one of the manufacturer's settlements. Masco settled on the eve of the trial in the summer of 2012.

    Two groups of indirect purchasers also filed suit. Barnes & Thornburg negotiated dismissal with prejudice on behalf of all defendants in one case in exchange for an agreement not to seek sanctions (Lummis). Motions to dismiss the second case are still pending in the Northern District of Georgia (Von Der Werth).

    Columbus Drywall & Insulation, Inc. et al v. Masco Corp., et. al., Case No. 1:04-cv-3066-JEC (N.D. Ga 2004) (Direct Purchaser Class Action); Von Der Werth v. Johns Manville Corporation, et al., Case No. 1:07-cv-2012-JEC (N.D. Ga 2007) (Indirect Purchaser Class Action); Lummis v. Johns Manville Corporation, 2:05-CV-298-FTM-29SPC, (M.D. Fla 2005) (Indirect Purchaser Class Action)
  • Barnes & Thornburg attorneys represented global computer manufacturer/software developer in a federal antitrust lawsuit filed in the Southern District of Indiana seeking a nationwide permanent injunction against the use of the general public licensing terms for free-to-use, open source operating system software alleging Violations of Section One of the Sherman Act. The Southern District of Indiana dismissed the case for failure to adequately allege an antitrust injury, and the Seventh Circuit affirmed the dismissal.
  • Barnes & Thornburg attorneys represented major pharmaceutical company in a case involving a fraudulent scheme by defendants, a coterie of women in New York, to purchase client's products at a large discount for a purported "promotional program." The phony promotional program was sold to Client as a plan to distribute its diabetes care products through independent pharmacies. Once client agreed to sell the products to defendant for the program, defendant secretly diverted the products to wholesalers and pocketed the discount. When Client brought suit to enjoin the scheme, defendant produced fabricated documents to prove that the Client knew the products would be diverted from the beginning. The court granted Client's motion for a TRO and the case settled. The individual defendants were later prosecuted criminally.
  • Barnes & Thornburg attorneys represented Marathon Petroleum Co. LLC and its subsidiary, Speedway SuperAmerica LLC, in obtaining dismissal in a class action brought before the U.S. District Court of the Southern District of Indiana. The class action was brought on behalf of more than 5,000 service station dealers who alleged violations of the federal antitrust statutes and multiple state laws. Plaintiffs alleged that Marathon illegally tied credit card processing fee services to the contracts that granted plaintiffs the right to operate a Marathon-branded service station, and that it conspired with banks to fix the cost of processing fees. The Court rejected both claims. The 7th Circuit affirmed in an opinion written by Judge Posner, holding that plaintiffs' tying claim failed because Marathon did not have market power in an adequately defined product market, and because there was no "tie" between two products. Judge Posner rejected plaintiff's conspiracy claim "for failure to plead a plausible theory of antitrust illegality under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Sheridan v. Marathon Petroleum Co., LLC, 2007 WL 290056 (S.D. Ind. 2007), aff’d 530 F.3d 590 (7th Cir. 2008).
  • Barnes & Thornburg attorneys represented Missoula Anesthesiology. P.C., in defending against a monopolization claim brought under Sherman Act Section Two brought by an excluded physician. The plaintiff-physician voluntarily dismissed his complaint and did not re-file after Barnes & Thornburg filed a motion to dismiss. Ayres v. Missoula Anesthesiology, P.C., Case No. 9:07-cv-00027-DWM (D.Mt. 2008).
  • Barnes & Thornburg attorneys represented Morgan and Clark County, Indiana, in two separate federal antitrust lawsuits seeking an injunction against the enforcement of county ordinances benefiting their respective county hospitals in violation of the Sherman Act Sections 1 and 2. After a bench trial in the Morgan County case, the court dismissed the antitrust claims but held that the ordinance exceeded the county's authority under state law. The Clark County case then settled.
  • Barnes & Thornburg attorneys represented National Laser Technology (NLT), a seller of used dental lasers and dental laser support services, in a nationwide antitrust suit against Biolase, the country's largest manufacturer of dental lasers. NLT alleged Biolase had monopoly power in the national market for the sale of hard tissue dental lasers and used that power to coerce dentists to purchase products from it rather than from NLT in violation of Sections 1 and 2 of the Sherman Act, the Lanham Act and the California Unfair Competition Law. Obtained an early favorable settlement for client. National Laser Technology, Inc. v. Biolase Technology, Inc., Case No. 1:08-cv-1123 (S.D. Ind. 2009).
  • Represented Hoosier Racing Tire Corp., which obtained summary judgment in defending a nationwide antitrust action brought in the U.S. District Court for the Western District of Pennsylvania concerning exclusive dealing with sports sanctioning bodies.

    Plaintiff Specialty Tires of America (STA), a producer of racing tires, alleged that defendant Hoosier Racing Tire (Hoosier), a rival tire producer, violated the antitrust laws by entering exclusive agreements with organizations that sanction races on dirt oval tracks in the United States and Canada. The agreements at issue specified that the sanctioning body must require racers to use Hoosier-branded tires, and that Hoosier would pay the sanctioning body a specified amount of sponsorship or promotional money. STA alleged these exclusive agreements violated Sections 1 and 2 of the Sherman Act because Hoosier had a more than 70 percent share of sales in the alleged market for "dirt oval track tires," and precluded STA from competing for the sale of such tires to racers. STA also sued DIRT Motor Sports, one of the sanctioning bodies with a Hoosier-only tire rule.

    Hoosier filed a motion for summary judgment, arguing that STA could not maintain its case because did not suffer an "antitrust injury," as any loss of tire sales it suffered flowed from the competition for exclusive contracts, and injury resulting from the competitive process cannot be compensated by the antitrust laws. Hoosier also argued that, as a matter of law, a sports sanctioning body can decide whether to require its participants to use a particular manufacturer's products without violating the antitrust laws. Hoosier objected to STA's definition of the relevant market and Hoosier's share in that market, but assumed the allegations as true for purposes of the motion.

    The Court agreed with Hoosier and granted summary judgment, holding that “there is no antitrust injury to STA when it loses the competitive battle to be the exclusive supplier,’” and that any injury when it loses a bid is "the inevitable result of competition for exclusive contracts." The Court also held that where "a sanctioning body freely decided to adopt a single tire rule, and then freely selects a supplier, no antitrust violation is present as a matter of law -- either under Section 1 or Section 2 of the Sherman Act," regardless of market share, and that STA had not submitted any evidence that Hoosier used coercive measures to prevent STA from entering into its own exclusive single tire contracts.

    On appeal, the Third Circuit affirmed, in a precedential decision, noting that sports sanctioning bodies "deserve a bright-line rule to follow so they can avoid potential antitrust liability as well as time-consuming and expensive antitrust litigation," and holding that where an organization in good faith has "freely adopted their own equipment rules and then freely entered into exclusive contracts with the respective suppliers," the resulting agreement does not violate the antitrust laws, even if the supplier has a high market share and pays for the exclusivity.

    Race Tires of America, Inc. v. Hoosier Racing Tire Corp., et al., 2009 WL 2998138 (W.D. Pa, Sept. 15, 2009); aff’d 614 F.3d 57 (3d Cir. July 23, 2010); costs awarded 2011 WL1748620 (W.D. Pa, May 6, 2011).
  • The United States Court of Appeals for the 7th Circuit affirmed a decision dismissing claims that several U.S. and U.K. companies conspired to defraud two Mexican Banks.

    Banco del Atlantico, S.A., a Mexican bank, filed a lawsuit in Texas in 1996 alleging that several companies in the U.S. and the U.K. had conspired to defraud it of more than $12 million in loan proceeds. HSBC Mexico, S.A. joined as an additional Plaintiff in 2004. The Banks also asserted claims under the Racketeer Influenced and Corrupt Organizations Act (RICO).

    In 2003, the Texas Court transferred the case to the Southern District of Indiana. In 2005, the Indiana Court granted defendants’ motion to dismiss the Banks’ RICO claims. In 2007, the Indiana Court dismissed all of the Bank’s claims as a sanction for the Banks’ failure to prepare their witnesses and comply with the rules of discovery. The 7th Circuit agreed with the Indiana Court and affirmed the dismissal of all claims against the Defendants. 7th Circuit’s opinion is published at Banco del Atlantico, et al. v. Woods Industries, Inc., et al., 519 F.3d 350 (7th Cir. 2008).

    Barnes & Thornburg LLP and Schiff Hardin LLP represented Defendant Woods Industries, Inc. in the Banco del Atlantico litigation, which included depositions in the United States, the United Kingdom, Hong Kong, and Mexico. "This was a tremendous team effort," said Jeff Barron, a partner at Barnes & Thornburg LLP who represented Woods in the litigation since 1999.

    Banco Del Atlantico, S.A. v. Woods Indus., No. 07-2238 (7th Cir. 2008).
  • Todd Vare represented National Programming Service LLC (NPS) before the 11th Circuit Court of Appeals in a case in which the plaintiff alleged the defendants were in violation of the nationwide, permanent injunction mandated by the Satellite Home Viewer Act (SHVA) of 1988. Jeff Barron and Kendall Millard assisted in the strategy development and briefing.

    The case (CBS v. EchoStar) dates back to the late 1990s when EchoStar began providing satellite television programming to subscribers under the DISH NETWORK brand. Claiming copyright infringement, various television networks (including CBS, ABC, Fox and NBC) and their network affiliates sued EchoStar in Florida federal court in 1998, claiming the company was improperly providing distant network programming to served - as opposed to unserved - households. Eventually, an injunction was entered in 2006 that prevented EchoStar from providing distant network programming under the SHVA's statutory license.

    NPS approached EchoStar in 2006 to inquire about leasing its satellite equipment. A deal was reached, which enabled NPS to use EchoStar's satellite transponder to retransmit distant network programming to unserved households that signed up with NPS. The networks then accused NPS of violating the previously entered injunction against EchoStar. In a unanimous opinion issued on July 7, the 11th Circuit Court of Appeals upheld Indianapolis-based NPS's right to continue leasing satellite equipment from EchoStar to retransmit the signal under the SHVA. CBS Broadcasting Inc. v. Echostar Commc'ns, No. 07-10020 (11th Cir., filed Jan 3, 2007).
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