Daniel G. Swanson is a partner in Gibson, Dunn & Crutcher LLP, with offices in Los Angeles and Brussels. Mr. Swanson has been a trial and appellate litigator for over 30 years, and has Co-Chaired Gibson Dunn’s highly-regarded Antitrust and Competition Practice Group since 1996. His practice focuses on U.S., U.K., EU and international antitrust and competition law, including trial and appellate litigation, class actions, criminal investigations and cartel defense, merger review and government civil investigations, regulatory and competition policy matters, and antitrust counseling.
Mr. Swanson is a member of the California and Brussels Bars, and is a solicitor of England and Wales and of the Republic of Ireland. He graduated magna cum laude from Harvard Law School in 1984 and holds a Ph.D. in economics from Harvard University, where he was a Harvard Teaching Fellow. He is admitted to practice before the United States Supreme Court, the Federal Circuit and the Second, Third, Fourth, Fifth, Sixth, Ninth and Tenth Circuits. He is also qualified to appear before the Courts of the European Union.
Chambers USA has reported that “Daniel Swanson has a vast amount of antitrust expertise covering everything from merger investigations to civil and criminal litigation” and has described him as “a highly regarded trial lawyer with a wealth of experience” and as “a ‘tough opponent’ in civil and criminal litigation, alleged cartel matters and IP-related issues.” Who’s Who Legal comments that “Daniel Swanson is a leading competition litigator whose ‘economics PhD is part of what makes him an outstanding attorney,’” and who “scores very highly for his ‘tenacious and persuasive’ litigation practice across a wide range of competition matters.” The Legal 500 places him in a small group of Leading Lawyers for U.S. antitrust and class action litigation. The Institutional Investor’s Benchmark Litigation Guide ranks Mr. Swanson as an Antitrust “Litigation Star,” and he has twice been named Best Lawyers’ Antitrust Law “Lawyer of the Year” for Los Angeles, most recently in 2016.
Mr. Swanson frequently represents clients in connection with antitrust grand jury investigations, and with regard to amnesty, leniency and immunity applications in the United States and the European Union, U.K., Canada, Japan, Australia, and Latin America, including more than 25 international cartel investigations during the last 15 years. Mr. Swanson has served as a Non-Governmental Advisor (NGA) to the Cartels Working Group of the International Competition Network (ICN) and has participated in Annual ICN Meetings in Cape Town, South Africa, Sydney, Australia and Singapore. In 2010, he was invited as part of a joint IBA-ABA delegation to advise the Competition Commission of India on “best practices” in cartel enforcement.
Mr. Swanson’s litigation practice has encompassed virtually every aspect of antitrust and competition law. He has litigated claims of alleged price fixing, monopolization and market dominance, predation, leveraging, bundling, standard setting, tying, exclusive dealing, group boycotts, refusals to deal, and price discrimination, among others, and has handled scores of class action lawsuits (e.g., In re Electronic Books Antitrust Litigation, In re Air Cargo Shipping Services Antitrust Litigation, In re Interest Rate Swaps Antitrust Litigation, In re Rubber Chemicals Antitrust Litigation, In re Monochloroacetic Acid Antitrust Litigation, In re Fresh and Process Potatoes Antitrust Litigation, In re Hydrogen Peroxide Antitrust Litigation, In re Polyurethane Foam Antitrust Litigation; In re Automotive Refinishing Paint Litigation, In re Airline Ticket Commission Antitrust Litigation).
Mr. Swanson also counsels clients on mergers, acquisitions and joint ventures, and handles merger-clearance matters before the FTC, DOJ, CMA and European Commission, and represents clients in merger‑related civil litigation.
As a fully-qualified EU member state practitioner, as well as a U.S. lawyer, Mr. Swanson is regularly called upon to handle international antitrust and competition matters for U.S., U.K., European, Canadian, Asian and Latin American clients. He is Vice Chair of the Antitrust Committee of the International Bar Association, and served on the Editorial Board of the IBA’s publication Competition Law International from 2007-2012. He previously served as Co-Chair of the ABA Antitrust Section’s International Committee (2002-06) and as Editor-in-Chief of the Antitrust Section’s First Supplement to Competition Laws Outside the United States (2005). He teaches antitrust law at the LSIW Program of the Executive School of Management, Technology and Law of the University of St. Gallen, Switzerland. He is a member of the Competition Section of the Law Society of England and Wales. He has served in the past as a member of Gibson Dunn’s International Management Committee.
Mr. Swanson regularly handles antitrust and competition matters involving patents, copyrights and other intellectual property rights and was asked to testify about standard setting in the 2002 DOJ-FTC Joint Hearings regarding Competition and Intellectual Property Law and Policy. He is the author (with Prof. William J. Baumol) of Reasonable and Nondiscriminatory (RAND) Royalties, Standards Selection, and Control of Market Power, 73 Antitrust L.J. 1 (2005) and The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, 70 Antitrust L.J. 661 (2003), on which the U.S. Supreme Court relied in Illinois Tool Works v. Independent Ink, 547 U.S. 28 (2006). Mr. Swanson has also served as a Non-Governmental Advisor (NGA) to the ICN Unilateral Conduct Working Group in its work focused on monopolization and dominance law.
Mr. Swanson has broad litigation and counseling experience in a wide variety of communications, media and entertainment fields. He has frequently represented motion picture industry clients in antitrust litigation, government investigations, M&A transactions, and counseling matters. Mr. Swanson also regularly advises and litigates on behalf of cable television industry clients. He has also handled antitrust matters involving online commerce, the music industry, broadcast television, telecommunications, social media, game publishing, radio broadcasting, newspaper publishing, e-book retailing, art auctions and advertising.
Mr. Swanson is a regular speaker on antitrust and competition topics, has appeared on CNN’s Moneyline as an antitrust expert and is often quoted on antitrust matters in legal publications. He has contributed to leading antitrust journals and treatises (including Antitrust and Trade Regulation, Antitrust Law Developments, Competition Laws Outside the United States, The Antitrust Adviser, and the Antitrust Law Journal) and is a member of the Board of Editors of the LexisNexis Antitrust Report. He is also a member of the American Economic Association.
In addition to his antitrust work, Mr. Swanson has acted for clients in a wide variety of non-competition-related commercial matters and business disputes, involving areas such as contracting, franchising, licensing, advertising and insurance.
Mr. Swanson’s major representations include the following:
- Lead antitrust counsel (post-trial) for Swisher in Trendsettah USA v. Swisher International (C.D. Cal. 2016), overturning $44.4 million antitrust jury verdict and winning judgment in Swisher’s favor on Section 2 monopolization and attempt claims;
- Lead counsel for Nasdaq in a bench trial before the Chief Administrative Law Judge of the Securities and Exchange Commission in In the Matter of the Application of Securities Industry and Financial Markets Association (Initial Decision 2016), resulting in the rejection of all challenges to the pricing of Nasdaq’s depth-of-book market data;
- Lead counsel for UBS in the European Commission’s Credit Default Swap (CDS) investigation, in which the Commission in December 2015—subsequent to the presentation of UBS’s defense during a 6-day Oral Hearing—dropped its Statement of Objections and withdrew allegations that UBS and other banks infringed Article 101 TFEU by conspiring to prevent CDS exchange trading;
- Lead counsel for Time Warner Cable in Fischer v. Time Warner Cable, 234 Cal. App. 4th 784 (2015), obtaining dismissal, affirmed on appeal, of a class action complaint seeking over $6 billion in restitution for alleged unfair competition alleging that Time Warner Cable denied subscribers the opportunity to opt out of new Los Angeles Dodgers and Los Angeles Lakers sports channels;
- Lead counsel for AkzoNobel subsidiary International Paint in MYD Marine Distributor, Inc. v. International Paint Ltd. (Florida 2014), obtaining summary judgment, subsequently affirmed on appeal, and a multi-million-dollar award of attorney’s fees to be paid by plaintiffs in an antitrust case brought by terminated distributors of yacht paint for an alleged vertical price-fixing conspiracy;
- Lead counsel for Riverside Seat Company, Woodbridge Foam Fabricating, Inc. and SW Foam LLC in United States v. Riverside Seat Company (E.D.N.Y. 2014), resolving criminal charges and obtaining a substantial downward sentencing departure for cooperation in polyurethane foam price fixing investigation;
- Lead counsel for Cox Communications in Brantley v. NBC Universal, 675 F.3d 1192 (9th Cir. 2012), obtaining dismissal of antitrust claims brought by a putative class of over 90 million cable and satellite television subscribers challenging vertical distribution agreements requiring the bundled sale of television programming;
- Lead counsel for Occidental Petroleum Corporation in Massbaum v. SCS Energy (C.D. Cal. 2012), obtaining voluntary dismissal with prejudice after moving to dismiss all antitrust and fraud claims purportedly arising out of defendants’ alleged “monopoly” of “Big Coal” industry;
- Lead counsel for Dole Food in In re Fresh and Process Potatoes Antitrust Litigation (D. Idaho 2011), winning dismissal of an antitrust nationwide class action asserting direct and vicarious liability for alleged conspiracy to restrict the supply and raise the price of potatoes;
- Lead counsel for DreamWorks in DOJ “employee hiring practices” antitrust investigation, obtaining a no-charge disposition;
- Lead counsel for Flexsys N.V. in numerous cases including Korea Kumho Petrochemical Co. v. Flexsys 2010 Trade Cas. ¶76,930 (CCH) (9th Cir. 2010), obtaining the dismissal, affirmed on appeal, of an antitrust case brought by a competitor alleging a group boycott and “sham” patent litigation; and a series of “indirect purchaser” price-fixing class action lawsuits (brought by the Milberg Weiss and Lerach class action firms) in over 20 states, obtaining denial of class certification of an alleged class of millions of California consumers and dismissals of 16 other cases prior to class certification;
- Lead counsel for Sony Pictures Entertainment Inc. in RealNetworks v. DVD Copy Control Ass’n and Universal City Studios Productions LLLP v. RealNetworks (N.D. Cal 2010), obtaining dismissal of “group boycott” antitrust claims challenging licensing arrangements protecting DVDs from unlawful copying;
- Lead counsel for AkzoNobel in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2009), obtaining advantageous settlement of price fixing claims and highly favorable appellate decision imposing exacting requirements for certifying price fixing class actions;
- Lead counsel for Pfizer in RxUSA Wholesale v. Alcon Laboratories, 2010-1 Trade Cas. ¶77,083 (CCH) (E.D.N.Y. 2009) in which Pfizer’s motion on behalf of more than a dozen major drug manufacturers was granted resulting in the dismissal of Section 1 and 2 refusal-to-deal claims by plaintiff secondary wholesaler;
- Lead antitrust counsel for Vivendi in connection with Vivendi’s agreement with GE to sell its 20 percent stake in NBC Universal for $5.8 billion;
- Lead counsel for Martinair Holland N.V. (a subsidiary of KLM) in United States v. Martinair (D.D.C. 2008), resolving criminal charges and obtaining a substantial downward sentencing departure for cooperation in air cargo price fixing investigation;
- Lead appellate counsel for McDonald’s in Abbouds’ McDonald’s LLC v. McDonald’s Corporation, 2006-2 Trade Cas. ¶75,324 (CCH) (9th Cir. 2006), winning affirmance of summary judgment dismissal of “bid rigging” claims under Section 1 of the Sherman Act;
- Lead counsel for Cox Communications in connection with DOJ and FTC review of the 2006 acquisition of CableAmerica Corporation;
- Lead counsel for the Motion Picture Association of America, the Recording Industry Association, the National Football League, the Business Software Alliance, the Independent Film & Television Alliance and other intellectual property holders as amicus curiae in the Supreme Court in Illinois Tool Works v. Independent Ink, 547 U.S. 28 (2006), successfully arguing that antitrust market power should not be presumed from ownership of a patent or copyright;
- Lead counsel for AkzoNobel in Latino Quimica-Amtex S.A. v. Akzo Nobel Chemicals B.V., 2005-2 Trade Cas. (CCH) ¶74,974 (S.D.N.Y. 2005) (appeal dismissed with prejudice), obtaining dismissal of extraterritorial price-fixing claims brought by foreign plaintiffs for lack of subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act (FTAIA);
- Lead counsel for AkzoNobel in In re Automotive Refinishing Paint Litigation and a related DOJ grand jury investigation into the pricing of automotive refinishing paints, resulting in a favorable civil settlement and the closure of the DOJ investigation without charges;
- Lead counsel for Jostens in Pocino v. Jostens, obtaining the dismissal (affirmed on appeal) of a California state court consumer class action asserting unfair competition and false advertising claims in connection with the on-line sale of insignia merchandise;
- Lead appellate counsel for Jostens in Epicenter Recognition, Inc. v. Jostens, Inc., 2003-2 Trade Cas. ¶74,270 (CCH) (9th Cir. 2003), obtaining a complete reversal of a judgment of monopolization in violation of Section 2 of the Sherman Act;
- Lead counsel for AkzoNobel in Coatings Resource v. Akzo Nobel, 2003-1 Trade Cas. (CCH) ¶73,983 (9th Cir. 2003), obtaining summary judgment (affirmed on appeal) in an alleged predatory pricing case;
- Co-counsel for American Airlines in United States v. AMR Corp., 140 F. Supp. 2d 1141 (D. Kan. 2001), aff’d, 335 F.3d 1109 (10th Cir. 2003), in which American obtained summary judgment in an alleged monopolization and predatory pricing case brought by the U.S. Department of Justice;
- Co-counsel for Toyota at trial and lead counsel on appeal of an antitrust and tort case over Lexus distribution and export policies culminating in a jury verdict for Toyota and a landmark decision of the California Supreme Court modernizing the state’s law of tortious interference, Della Penna v. Toyota, 11 Cal. 4th 376 (1995);
- Lead counsel for National Cable Advertising in Thompson Everett v. National Cable Advertising, 57 F.3d 1317 (4th Cir. 1995), obtaining summary judgment on Section 1 and Section 2 exclusive dealing claims;
- Co-counsel representing a major utility at trial and in summary judgment and appellate proceedings, all resolved successfully: Vernon v. Southern California Edison, 955 F.2d 1361 (9th Cir. 1992); Anaheim v. Southern California Edison, 955 F.2d 1373 (9th Cir. 1992); Anaheim v. FERC, 941 F.2d 1239 (D.C. Cir. 1991).