Martin M. Toto

Recent matters handled by Mr. Toto include:

Complete dismissal of complaint brought against credit reporting company Experian, alleging antitrust violations in contracting to sell credit scores. After first dismissing the complaint without prejudice, in November 2024 the District Court for the Northern District of Illinois dismissed all claims asserted in an amended complaint against Experian, with prejudice, ending the case.

Victory at summary judgment for Mesabi Metallics, who is building an iron ore mining project in Northern Minnesota. Mesabi alleges that the incumbent producer of iron ore in the Great Lakes region, Cleveland Cliffs, was a monopolist who used its power to prevent the construction of Mesabi's mining project and squelched nascent competition. In ruling on cross motions for summary judgment, the Bankruptcy Court for the District of Delaware denied Cliffs' motion for summary judgment, meaning the case will go to trial where Cliffs faces a multibillion-dollar damages claim. Moreover, the court granted Mesabi's motion for partial summary judgment, holding that Cliffs was a monopolist for iron ore pellets in the Great Lakes market.

Victory for major pharmaceutical company in case alleging reverse payments, "product hopping" and misuse of patent rights. Working with economic experts, Martin developed a theory that despite persistently high market shares, his client did not have monopoly power because it had to (and did) continually innovate to stay ahead of the competition. The jury credited Martin's theory in finding the defendant did not have market power, leading to a no-liability verdict.

Successfully representing Toshiba Corp. in a $15.2 billion go-private transaction led by Japanese Industrial Partners, believed to be the largest private equity transaction ever in Japan. Martin obtained expedited US merger clearance for the sale.

Unanimous victory for defendant Samsung Bioepis in Seventh Circuit appeal of antitrust case relating to the blockbuster drug Humira. Led biosimilar defendants in briefing, and personally argued appeal after the District Court dismissed all claims against defendants. This ground-breaking case rejected the application of Actavis to global settlements of biologic/biosimilar patent litigation, holding that the multiple early-entry settlements are legal "traditional" settlements that could not be characterized as "pay for delay."

Lead Counsel for AbbVie (and predecessor companies Allergan and Forest Laboratories) in ongoing class action litigation relating to Alzheimer's drug Namenda. In the most recent developments, Martin led the team that successfully removed all "hard switch" allegations and all claims by consumers from the case, substantially reducing defendants' damages exposure. In the same set of cases, Martin is lead counsel for co-defendant Merz Pharmaceuticals, which was dismissed from the direct purchaser action without any payment to plaintiffs.

Successfully obtained a COVID-related US Department of Justice "business review" on behalf of the National Pork Producers Council, a trade group representing the nation's 60,000 hog farmers. The positive review was gained under the DOJ's expedited COVID procedures and DOJ's positive opinion allowed the hog producing industry to manage the crisis in the meat industries created by the pandemic.

Victories for Toshiba against allegations of price-fixing LCD panels. Martin successfully defended Toshiba worldwide in the US criminal and civil cases, and other worldwide investigations, including as trial counsel in two jury trials. In the US criminal case, Toshiba and all of its employees were fully exonerated. In the most recent jury trial alleging damages of over US$2 billion, the jury found no liability against Toshiba after a six-week trial. An earlier civil trial alleging class-wide damages of nearly US$3 billion resulted in a jury verdict finding no recoverable damages against Toshiba.

Lead attorney gaining antitrust clearance in the US of Metso Corporation's combination with Finnish rival Outotec. Expedited clearance was obtained, despite the fact that the deal combined two businesses that the US authorities forced Metso to separate in a prior enforcement action.

Trial counsel for health insurer Anthem in its proposed $50 billion acquisition of Cigna. The litigation led to an important dissenting opinion in the Circuit Court for the District of Columbia, recognizing the importance of the efficiencies defense in merger cases. Ultimately, Anthem was vindicated by a Delaware court and relieved of its obligation to pay a break-up fee based on Cigna's actions in opposition to the merger.

Successful opposition to class certification on behalf of Toshiba in the Lithium Ion Batteries Antitrust Litigation. The Court refused to certify direct and indirect classes, a rare occurrence in price-fixing cases.

Lead counsel in successful defense of Toshiba acquisition: Martin successfully represented Toshiba in acquiring a hard disk drive business from Western Digital in a complex divestiture resulting from two parallel industry mergers. This matter was one of only five shortlisted by Global Competition Review for 2012 Merger Control Matter of the Year — Asia-Pacific, Middle East & Africa.

Counsel for Experian against antitrust, trademark and false advertising claims: Martin helped secure a complete victory for credit bureau Experian in a civil case brought by FICO, challenging VantageScore, a joint venture of the three credit bureaus, which introduced a new credit risk score into the market dominated by the FICO score. The antitrust and false advertising claims were dismissed on summary judgment and the remaining trademark claims were tried to a jury, which issued a favorable verdict for defendants on all claims and counterclaims.

Trial counsel for global shipping company Stolt-Nielsen in precedent setting case involving DOJ's amnesty program: Martin successfully defended Stolt-Nielsen, including by helping to secure the dismissal of a criminal indictment against the company in a four-week trial. This unprecedented case was brought against the company after it had obtained amnesty from the Department of Justice and provided critical, incriminating evidence against its co-conspirators.

Counsel to Exxon Chemical in the creation of the Infineum joint venture between Exxon Chemical and Shell Chemical.

Counsel to Metso Corporation in the successful acquisition of one of its principal competitors, Svedala, in which a novel consent decree was negotiated with the FTC.
Counsel to ABB in its acquisition of Elsag Bailey Process Automation, which was cleared by the FTC and European Commission.