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.
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 multiple 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 led 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 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.
Mr. Cunningham frequently speaks on antitrust and consumer protection topics and has co-taught an antitrust and competition law course as an Adjunct Professor at the Denver University Sturm College of Law.
- Senior member of litigation and trial team that obtained dismissal of novel federal False Claims Act case involving the prescription drug Lovenox that sought purported damages and fines in excess of $5 billion
- Representing Allergan in federal antitrust litigation involving sham litigation and "product switching" claims
- Representing leading technology distributor to defend antitrust conspiracy claim in federal district court in Colorado
- Represented Tenet Healthcare before the FTC in full-phase HSR investigation of $135M hospital acquisition that resulted in clearance without conditions
- Obtained unconditional clearance of transaction creating the nation's largest operator of ambulatory surgery centers ("ASC"s) valued at more than $2 billion
- Represented leading technology company in FTC investigation of potential consumer protection violations that resulted in a very favorable settlement
- Counseled leading telecommunications company to update consumer rewards program in compliance with Section 5 of the FTC Act and other regulations
- Assisted digital marketing firm's compliance with Department of Justice consent order
- Represented public company in nonpublic FTC investigation for potential violations of an FTC consent decree
- Represented public company in nonpublic 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)
- "Expanded Enforcement of Federal False Claims Act, RICO, and Antitrust Law Changes the Legal Landscape for Healthcare Providers," co-authored with John Partridge, The Colorado Lawyer, Vol. 44, No. 13, 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," co-authored with Ryan Bergsieker and Reid Rector, Bloomberg BNA Privacy and Security Law Report, 14 PVLR 2120, November 23, 2015.
- "FTC Antitrust Statement Offers Little Clarity," co-authored with Daniel G. Swanson, Daily Journal, August 20, 2015.
- "The Federal Trade Commission's Enforcement of Data Security Standards," co-authored with Ryan Bergsieker and Lindsey Young, The Colorado Lawyer, Vol. 44, No. 39, June 2015.
- "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).
Selected Professional Activities
- Vice Chair, Civil Practice and Procedure Committee of the ABA Antitrust Section (2016-present)
- Editor, Von Kalinowski, Antitrust Laws and Trade Regulation: Desk Edition (Lexis-Nexis) (2013-present)
- Board Member, Colorado Humanities, Non-profit dedicated to improving literacy and the study of humanities in Colorado (2015-present)
- Adjunct Professor, Denver University Sturm College of Law, Denver, CO (2013-2015)
- Panelist, "Cross-Market Provider Mergers," ABA Antitrust in Healthcare Conference, Washington, DC (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, DC (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)
- 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)