Ken O’Rourke is based in O’Melveny’s Los Angeles and Washington, DC offices. He is also qualified as a solicitor in England and Wales. Ken handles complex, multi-forum litigation and government investigations, including those spanning international borders. He has litigated numerous high-stakes, high-profile antitrust disputes, “bet-the-company” cases, global antitrust/IP investigations, price-fixing class actions and other cartel-related lawsuits. He also defends blue-chip companies against litigation challenges to their pending mergers. Ken chairs the Antitrust Litigation Forum and formerly chaired the California State Bar antitrust section.
DESCRIBE YOUR CAREER TO DATE.
I have litigated and tried antitrust, patent, trade secret, financial, criminal and other cases over three decades. My prime focus is on complex, multi-venue litigation and investigations, primarily antitrust-related.
I’ve been fortunate to help clients in high-stakes, high-profile domestic and international disputes. Examples include AT&T, TimeWarner and US Airways (American Airlines) in defending against litigation brought by the US Department of Justice seeking to block their mergers; defending one of the world’s largest semiconductor manufacturers in a decade-long international standard-setting, antitrust and patent war initiated by Rambus Inc in US and international agencies and in US courts; representing leading companies embroiled in international price-fixing investigations and litigation; as well acting for as other clients involved in challenging legal disputes in the US and abroad.
Additionally, a few years ago I served as interim chief legal officer of a 22,000-employee healthcare insurer, counselling the board and executive team while overseeing the company’s legal affairs and legal division of more than 100 professionals in five states. It was a great experience.
WHAT MOTIVATED YOU TO PURSUE A CAREER IN THE FIELD OF COMPETITION LAW?
I started as a litigator in a broad-based practice: we would litigate almost any case in any industry involving any issue. I also tried criminal cases. For instance, I served as a special prosecutor and tried a criminal defendant on a manslaughter charge to a California jury. As the profession evolved toward specialisation, my focus narrowed to antitrust and antitrust/IP disputes while still handling a mix of business litigation and other types of cases.
Antitrust is often thought of as a highly specialised field. Yet, it is broad-based in its own right: it involves domestic and global investigations; civil litigation and trials; class actions and collective proceedings; cartels; monopolisation and abuse of dominance; mergers; investigations by the DOJ, the FTC and international agencies; an intersection with IP and with economics, among other subjects; and antitrust disputes arise in virtually every sector. I enjoy the variety and working with clients and true professionals who practise in these areas.
WHAT ASPECT OF YOUR PRACTICE DO YOU ENJOY THE MOST?
Working with a bright and enthused team of firm lawyers, client representatives, co-counsel, and our experts and consultants to dig deep into the facts and law, craft strategies for success, solve knotty problems, simplify complex concepts for presentation and, at times, overcome long odds to achieve outcomes that the team can rightly take pride in for what it accomplished for the client. I also enjoy seeing mid-level and younger lawyers contribute to formulating the plan and helping to carry it out. When things go well, they get to share in the victory with our client.
YOU RECENTLY MOVED FROM O’MELVENY’S LOS ANGELES OFFICE TO ITS WASHINGTON, DC OFFICE. WHAT BENEFITS DO YOU EXPECT THIS TO BRING TO YOUR PRACTICE?
As antitrust investigations and litigation increasingly have become national and international in scope, adding an East Coast presence to both my long-time West Coast practice and my UK qualification as a solicitor better serves clients’ needs in almost any antitrust dispute in most any venue. That is the mission.
WHAT DO YOU THINK DISTINGUISHES THE ANTITRUST COMMUNITY FROM THAT OF OTHER PRACTICE AREAS?
The many highly professional, talented and focused practitioners on both the plaintiff and defence sides and in the government antitrust agencies. We are in a profession, not just doing a job. We battle like ancient Athenians and Spartans, yet at the end of the day (or end of the case) we can often enjoy one another’s company, conversation and collegiality. Then in the next dispute we battle again.
HOW HAS YOUR TIME SPENT SERVING AS CHIEF LEGAL OFFICER OF A MAJOR US HEALTHCARE COMPANY ENHANCED YOUR CURRENT PRACTICE?
I have an increased and better-informed appreciation for in-house counsel’s views on investigations and litigation – as well as what they expect from outside counsel.
First, their perspective on an investigation or litigation is much broader than an outside litigator’s narrower focus on the expected course and outcome of the case at hand and how to improve the end result. For instance, in-house counsel will want to understand how the case may be perceived by the board, the executives and employees, by customers, regulators, the public, and other constituents.
Many in-house lawyers are more in tune with what the lasting lessons are since they know their personnel, business and industry so well. Is there a need to improve a business practice or shore-up the company’s compliance efforts? Is there a strategic precedent that needs to be set – or avoided?
In-house lawyers are also invaluable in working with the business and PR teams to understand how the litigation or investigation will affect the company and its performance, and when the press or a competitor tries to seize on the company’s predicament and mischaracterises it. For in-house lawyers, the journey through the litigation or investigation is often nearly as important as the ultimate outcome.
Second, it was invaluable to not only see but be a part of the practicalities of board governance and management decision-making on important business initiatives and legal priorities, and experience a work environment and structure different from a law firm’s flatter hierarchy.
Third, having a front row seat within the US healthcare industry, an industry that accounts for nearly 20 per cent of the US GDP, was a terrific learning experience.
Finally for now (but far from last), an outside lawyer cannot be reminded enough of the obvious fact that we are in a service profession – a client-service profession. We need to know our clients’ businesses better. Strive to do this. In-house lawyers appreciate it.
Also, while client demands may at times seem unreasonable, there is very often an internal decision with a lot at stake in getting it right. And I do not mean just the company’s pecuniary interest in resolving a dispute for a reasonable sum. Rather, senior management may want to make a tactical decision on short notice and it is quite possible the reputation of the in-house lawyer is at stake if the decision turns out poorly or someone higher up perceives the in-house lawyer was not fully prepared. No wonder our clients sometimes need information at all hours of the day and night and on short-notice; they may feel their internal standing is riding on the outcome of what they say next.
WHAT IS YOUR PROUDEST ANTITRUST ACHIEVEMENT TO DATE?
Litigators are proud of their wins, as am I, particularly underdog wins for pro bono and paying clients alike. Yet, my proudest antitrust achievement is conceiving and then starting the Antitrust Litigation Forum with an outstanding steering committee of top-notch litigators from across the US. The Forum is a discussion group for leading plaintiff and defence antitrust litigators and in-house counsel who oversee antitrust cases. We meet annually to discuss legal developments, exchange ideas, share practice experiences, and benchmark our knowledge and litigation approaches against the best. We do so in a collegial environment that enhances candid conversation and civility among antitrust litigators.
We are all part of a profession, not just doing a job. The Forum reinforces this important tenet. 2019 will mark the Forum’s 10th year, and with it a new generation of litigator-participants or, better-described, antitrust professionals, will converse with their colleagues in this unique setting.
WHAT ADVICE WOULD YOU GIVE TO SOMEONE LOOKING TO PURSUE A CAREER IN THE FIELD OF COMPETITION LAW?
Do it. That is, if you enjoy a breadth of experiences (investigations, litigation, trials, counselling, regulatory guidance) in a challenging, multi-disciplined field (criminal, civil litigation, class actions, antitrust/IP, mergers, economics) often involving high-profile matters (at times, bet-the-company cases) for domestic and international clients in many sectors while practising with and against leading professionals with whom you are likely to develop long-term collegial relationships. And did I also say it’s fun? Because it is.
Kenneth O’Rourke is “a really excellent antitrust litigator” extol peers who add they “would thoroughly support his inclusion”.
Ken O’Rourke is a competition lawyer and complex disputes litigator. He represents established and emerging companies in multi-forum civil litigation and government investigations in the US and at times spanning international borders. His experience runs the gamut from antitrust class actions, to international and domestic cartels, monopolisation, intellectual property lawsuits involving antitrust issues (such as defending reverse payment pharmaceutical cases), as well as handling high-stakes business, technical and financial litigation.
Ken also represents blue-chip companies whose proposed mergers are challenged in court. For instance, he litigated for AT&T and TimeWarner against the US Department of Justice’s lawsuit seeking to block their merger; he litigated for US Airways in its acquisition of American Airlines against the Department of Justice’s lawsuit trying to block that combination, and he litigated for Alaska Airlines in its purchase of Virgin America against a private litigation challenge.
He also defends leading companies in antitrust cases involving standard essential patents, including the defence of one of the world’s top semiconductor makers against Rambus Inc’s decade-long worldwide litigation campaign to enforce patents on industry-standard computer memory products. Ken has tried both civil and criminal cases, including jury and judge trials in federal and state courts.
Drawing upon his 30 years of litigation experience at O’Melveny and his leadership in the profession, Ken served as interim chief legal officer of one of the US's largest health insurers, chaired the California State Bar antitrust and unfair competition law section, currently chairs the Antitrust Litigation Forum, and is a continuing member of the ABA antitrust section's leadership.
Ken is ranked by Chambers USA, quoting commentators saying he is “very smart, experienced and well known in the cartel community” and “a very talented litigator, the whole nine yards”. He has a presence on both US coasts as a California and Washington DC lawyer, as well as being qualified as a solicitor in England & Wales. GCR’s affiliate Who’s Who Legal named Ken a “2019 competition thought leader”. In 2016, Who’s Who Legal named Ken “one of California’s foremost litigators”.