Richard H. Cunningham is Of Counsel in Gibson, Dunn & Crutcher’s Denver, Colorado office. Mr. Cunningham’s practice focuses on a wide range of antitrust and consumer protection matters, including government investigations, client counseling, and litigation. He is a member of the firm’s Antitrust and Competition and Privacy, Cybersecurity, and Consumer Protection practice groups.
Prior to joining Gibson Dunn, Mr. Cunningham served as Senior Trial Counsel in the Federal Trade Commission’s Bureau of Competition. At the FTC, Mr. Cunningham was a senior member of several litigation/trial teams, including in FTC v. OSF Healthcare System, FTC v. ProMedica, FTC v. LabCorp, and FTC v. Inova Health System, and was a member of the trial team in the landmark FTC v. Whole Foods merger enforcement case. Mr. Cunningham also lead several high-profile FTC investigations that resulted in consent decrees/settlements, including DaVita/Gambro, Thermo Electron/Fisher Scientific, and Agilent/Varian. Mr. Cunningham received several awards during his tenure at the FTC, including the Director’s Award in 2008 and 2010 for exceptional contributions to the Bureau of Competition.
Mr. Cunningham regularly assists clients navigating FTC and Department of Justice investigations involving complex antitrust and consumer protection issues, including matters implicating the FTC Act, COPPA, the Sherman Act, the Clayton Act, the Robinson-Patman Act, and the Hart-Scott-Rodino (HSR) merger review process.
Mr. Cunningham is also an experienced litigator and trial attorney. In additional to appearing in court on behalf of his clients and the FTC, Mr. Cunningham served on an 8-month detail assignment as a Special Assistant U.S. Attorney in the U.S. Attorney’s Office for the District of Columbia during 2008 and 2009 where he tried more than a dozen criminal cases as first-chair trial counsel.
Mr. Cunningham has extensive experience with a wide variety of industries, including hospital and physician services, medical devices, pharmaceuticals, internet advertising, mobile applications, laboratory equipment, vehicle rental, retail products, oil and gas, telecom, construction products, retail services, education services, and defense contracting.
Mr. Cunningham earned a J.D., magna cum laude, from Georgetown University Law Center, where he served as Executive Notes Editor of the Law and Policy in International Business Journal, and a B.S., highest honors, in Business Administration from the University of North Carolina at Chapel Hill. He is a member of the Colorado and Virginia Bars.
Mr. Cunningham frequently speaks on antitrust and consumer protection topics and co-teaches an antitrust and competition law course at the Denver University School of Law.
Editor, Von Kalinowski, Antitrust Laws and Trade Regulation: Desk Edition (Lexis-Nexis) (2013-present)
Adjunct Professor, Denver University Sturm College of Law, Denver, CO (2013-present)
Board Member, Colorado Humanities, Non-profit dedicated to improving literacy and the study of humanities in Colorado (2015-present)
Presenter, “The New Frontier in Consumer Protection Law Enforcement – Holding Companies Responsible When Thieves Steal Consumers’ Information,” Colorado Bar Association Antitrust and Consumer Protection Subcommittee Quarterly Meeting, 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)
Presenter, “Federal and State AG Antitrust Enforcement Update,” Association of Corporate Counsel, In-House Counsel Forum, Denver, CO (2014)
Guest Lecturer, University of Pennsylvania Wharton School of Business, Philadelphia, PA (2013); Georgetown Univ. McDonough School of Business, Washington, DC (2012)
Lecturer, “Experts – Offense and Defense,” presentation to FTC & Department of Justice Antitrust Division staffs (2012)
Panelist, ABA Healthcare Section Brown Bag Discussion, “Lessons Learned from LabCorp” (2011)
Represented Sanofi-Aventis in federal False Claims Act litigation involving prescription drug Lovenox and generic counterparts
Represented Tenet Healthcare before the FTC in full-phase HSR investigation of $135M hospital acquisition that resulted in clearance without conditions
Represented leading technology company in FTC investigation of potential consumer protection violations
Represented public company in FTC investigation for potential violations of an FTC consent decree
Represented public company in FTC investigation of potentially deceptive advertising and marketing claims
Represented leading digital media company in full-phase FTC investigation relating to COPPA that resulted in closure without conditions
Developed and delivered antitrust compliance program for publicly traded infrastructure company
Senior Trial Counsel & Staff Attorney, Bureau of Competition, Federal Trade Commission, Denver, CO & Washington, DC (2004-2013)
Special Assistant United States Attorney, United States Attorney’s Office for the District of Columbia, Washington, DC (2008-2009)
"Defenses of Hospital Mergers in Concentrated Markets", co-authored with Jeffrey H. Perry, Antitrust, Vol. 27, No. 2, Spring 2013.
“What’s Pull-Thru Doing in My Relevant Product Market? Proper (and Improper) Market Definition in FTC v. LabCorp”, with Jonathan Klarfeld, Antitrust Health Care Chronicle,Vol. 25/No. 1 (Oct. 2011).