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Kevin J. Orsini is a partner in Cravath’s Litigation Department. Mr. Orsini focuses on complex antitrust litigation, mergers and acquisitions litigation, securities litigation and other commercial disputes. Mr. Orsini’s clients have included Alcoa, American Express, Black Entertainment Television, Barnes & Noble, Crown Castle International, Goldman Sachs, HCA Inc., IBM, JPMorgan Chase & Co., Mylan, Occidental Petroleum Corporation, Novartis, Viacom and Xerox.
Mr. Orsini’s recent representations include:
• Representing American Express (“AmEx”) in a lawsuit in the U.S. District Court for the Eastern District of New York brought by the Department of Justice and 17 state attorneys general alleging that AmEx’s nondiscrimination provisions in its merchant agreements violate the antitrust laws. This case—one of the largest and most significant cases arising under Section 1 of the Sherman Act that the Government brought to trial in over a decade—culminated in a nearly two-month bench trial in July-August 2014.
• Representing AmEx in a series of putative class actions and individual lawsuits brought by large supermarket and pharmacy chains in the U.S. District Court for the Eastern District of New York alleging that AmEx imposed rules that limited merchants from steering their customers to other payment methods in violation of Sections 1 and 2 of the Sherman Act. Mr. Orsini also represents AmEx in related merchant arbitrations.
• Representing AmEx in a putative class action originally filed in the U.S. District Court for the Southern District of New York brought on behalf of all U.S. merchants that accept AmEx cards alleging that AmEx tied acceptance of certain of its card products to acceptance of other AmEx card products in violation of Section 1 of the Sherman Act.
• Representing AmEx in a series of putative class actions in the U.S. District Court for the Eastern District of New York brought by individual holders of MasterCard, VISA and Discover credit cards, alleging that AmEx’s “anti-steering” provisions in its merchant acceptance agreements artificially inflated the cost of products and services sold by merchants who accept AmEx credit cards, in violation of Section 1 of the Sherman Act.
• Represented AmEx in a putative class action alleging unlawful tying in the U.S. District Court for the Eastern District of New York in violation of the Sherman Act. The case was dismissed after the U.S. Supreme Court ruled in 2013 that the company’s arbitration provisions in its merchant agreements, which contained a class action waiver, were valid and enforceable.
• Represented Viacom International and Black Entertainment Television in an antitrust lawsuit brought by Cablevision in the U.S. District Court for the Southern District of New York alleging that Viacom engaged in illegal tying and block-booking by coercing Cablevision into agreeing to distribute certain of Viacom’s allegedly less popular cable channels along with other of its more popular, “commercially critical” networks, including Nickelodeon, Comedy Central, BET and MTV.
Securities and Other Commercial Litigation
• Represented Mylan N.V. in a lawsuit filed in the U.S. District Court for the Southern District of New York challenging Mylan’s proposal to acquire Perrigo Company plc for approximately $27 billion. Perrigo sought injunctive relief for alleged violations of Section 14(e) of the Securities Exchange Act of 1934 concerning disclosures in Mylan’s offering materials and other public statements made in connection with the tender offer. Perrigo’s motion for a preliminary injunction was denied in October 2015.
• Represented AmEx and certain of its directors in a shareholder derivative suit in New York State Supreme Court alleging breach of fiduciary duties in connection with the antitrust violations asserted in the DOJ’s enforcement action against AmEx. The court granted defendants’ motion to dismiss the complaint with prejudice.
• Secured on behalf of JPMorgan Chase & Co. the dismissal of a securities fraud lawsuit concerning collateralized debt obligations in the U.S. District Court for the Northern District of Texas. Mr. Orsini currently represents JPMorgan Chase in Tennessee state court in another lawsuit concerning collateral debt obligation.
• Represented Barnes & Noble in a challenge to a poison pill adopted by the company. Following expedited discovery and other pretrial proceedings, a four-day trial was held before the Court of Chancery for the State of Delaware in July 2010. In August 2010, the court ruled in favor of the Barnes & Noble, rejecting each of the plaintiffs’ claims and upholding the company’s poison pill. That decision was affirmed by the Delaware Supreme Court in March 2011. Mr. Orsini also represented Barnes & Noble in a shareholder derivative litigation in the Delaware Court of Chancery alleging breaches of fiduciary duties in connection with the company’s acquisition of Barnes & Noble College Booksellers.
• Represented Barnes & Noble in a series of cases in New York courts that were dismissed prior to the commencement of discovery. In 2012, he won the dismissal of a shareholder derivative litigation and putative class action in the U.S. District Court for the Southern District of New York alleging breaches of fiduciary duties and violations of the Securities and Exchange Act of 1934. He also represented Barnes & Noble and certain individual defendants in securing the dismissals of a shareholder derivative lawsuit in New York State Supreme Court concerning the company’s internal controls and financial reporting and a related securities class action in the Southern District of New York.
• Represented Goldman Sachs against multibillion-dollar claims asserted in the Lyondell bankruptcy proceedings.
• Represented Xerox in complex securities class action litigation alleging that Xerox had engaged in fraudulent accounting practices that materially inflated its stock price.
• Represented the Special Committee of Delphi Financial Group in a consolidated shareholder class action lawsuit in the Delaware Court of Chancery challenging Delphi’s $2.7 billion buyout by Tokio Marine Holdings, Inc.
Mr. Orsini joined Cravath in 2003 and became a partner in 2011.
Mr. Orsini was named one of seven outstanding competition lawyers under 40 in the nation by Law360 in 2016. He was also named a Rising Star by New York Law Journal in 2015 and a New York Rising Star by Super Lawyers in 2013 and 2014 for business litigation. Mr. Orsini has been recognized by Benchmark Litigation for his litigation work (2016) and by The Legal 500 United States for his work in securities litigation (2011) and M&A litigation (2012-2014).
Mr. Orsini received a B.A. summa cum laude from George Washington University in 2000, where he was elected to Phi Beta Kappa, and a J.D. cum laude from New York University School of Law in 2003.
United States: Antitrust
Civil litigation/class actions
Within: Civil litigation/class actions
Cravath, Swaine & Moore LLP ‘combines a quick and thorough grasp of clients’ issues with the ability to communicate simply, clearly and completely’. The team is particularly active in financial services litigation and American Express is a key client in this regard. Evan Chesler, Peter Barbur and Kevin Orsini advised the credit card company in a number of disputes, including its appeal of a district court judgment in a case brought by the DOJ and 17 state attorneys general alleging that the merchant acceptance rules imposed by American Express violated the Sherman Act. The pharmaceutical sector is another regular source of work, and Chesler, Rowan Wilson* and David Marriott represented Mylan in its long-running set of lawsuits alleging pay-for-delay agreements with Cephalon relating to the Provigil drug. Qualcomm and Thai Airways are also recent clients. All the lawyers named above are based in the firm’s New York office. *Since publication, Rowan Wilson has been confirmed as an Associate Judge of the New York State Court of Appeals.