Richard H. Cunningham is a partner in Gibson, Dunn & Crutcher’s Denver, Colorado office. Mr. Cunningham’s practice focuses on 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 and the Stephen Nye Award for outstanding performance by a junior attorney in 2007.
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.
Mr. Cunningham earned a J.D., magna cum laude, from Georgetown University Law Center and a B.S., highest honors, in Business Administration from the University of North Carolina at Chapel Hill.
Mr. Cunningham frequently writes and speaks on antitrust and consumer protection topics and served as an Adjunct Professor at the Denver University Sturm College of Law from 2013-2015. Mr. Cunningham was named to the 2017 Colorado “Rising Stars” list for antitrust litigation by Super Lawyers and was listed by the Denver Business Journal as among the “40 under 40” business leaders in the Front Range for 2018.
- 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 after a week-long trial; the Ninth Circuit recently affirmed the dismissal
- Representing Allergan in multiple competitor and multi-district class action federal antitrust litigations involving sham litigation, “product switching”, Walker Process, and Sherman Act Section 1 and 2 claims
- Representing LendingClub to defend FTC action alleging violations of Section 5 of the FTC Act and the Gramm-Leach-Bliley Act
- Represented Ingram Micro, a leading technology distributor, to defend a series of lawsuits brought by competitors; obtained complete dismissal of all antitrust allegations and settled remaining state law claims on favorable terms
- Counseling digital marketing firm to comply with Department of Justice consent order
- 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 joint venture transaction creating the nation’s largest operator of ambulatory surgery centers (“ASC”s) valued at more than $2 billion
- Represented 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
- Obtained closure without conditions of extensive FTC advertising practices and order compliance investigation for public company
- Represented Fortune 50 company in nonpublic FTC investigation of potential Fair Credit Reporting Act violations; obtained unconditional closure
- Represented 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)
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, (co-taught upper-level antitrust and competition law course) (2013-2015)
- Frequent Contributor, The Washington Legal Foundation’s Legal Pulse blog (2017-present)
- Chair/Moderator, “Joint Ventures – Keeping Competitor Collaborations Compliant,” ABA Antitrust Spring Meeting, Washington, DC (2017)
- Moderator, “Effectively Using Data and Econometrics in Consumer Protection Matters,” ABA Antitrust Section Panel Discussion, Denver, CO (2017)
- Program Moderator and Panelist, “Advertising Law 2016,” Colorado Bar Association, Denver, CO (2016)
- 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)
- Guest Lecturer, University of Pennsylvania Wharton School of Business, Philadelphia, PA (2013); Georgetown Univ. McDonough School of Business, Washington, DC (2012)