Los Angeles:
400 South Hope Street
Los Angeles, CA 90071
Phone+1-213-430-7281
Fax+1-213-430-6407

 

Kenneth R. O'Rourke

Partner


Ken O’Rourke leads O’Melveny’s Los Angeles Litigation Practice where he litigates and tries cases as a member of the firm's Antitrust & Competition group and the Intellectual Property & Technology group. Nationally, O’Melveny’s Litigation Department has won or been recognized as the winner, a finalist or honorable mention recipient of the American Lawyer’s “Litigation Department of the Year” contest every year it has been held, from 2002-2014.

Ken represents established and emerging companies in complex, multi-forum civil litigation in federal and state courts, including:

  • Antitrust cases—such as class actions, monopolization, international cartels, government investigations, unfair competition, and reverse-payment settlements;
  • Intellectual property lawsuits involving antitrust issues—such as patent misuse, Walker Process claims, and patents enforced on industry standards; and
  • Complex business, technical and financial controversies and litigation.

He represents leading companies accused of participating in international price-fixing cartels, litigated such cases as the U.S. Department of Justice’s lawsuits seeking to block US Airways' merger with American Airlines and AT&T’s and T-Mobile’s planned merger, and defended against Rambus Inc.’s worldwide litigation campaign to enforce patents on industry standard computer memory products, the most recent ruling of which was a $250 million sanctions award against Rambus and in favor of SK hynix for document spoliation.  In 2013, Ken served as special prosecutor trying a criminal vehicle manslaughter case to a California jury. 

Ken is Chair of the California State Bar Antitrust & Unfair Competition Law Section, and a member of the ABA Antitrust Section's International Cartel Task Force (2013-14).  Ken is ranked by Chambers USA, with the 2012 edition quoting commentators who stated “he’s a spectacular lawyer,” and the 2011 edition noting that “he wins particular acclaim for his cartel work.” Ken is also recognized in the 2013 edition of “Who’s Who Legal - The International Who’s Who of Competition Lawyers.”

Illustrative Professional Experience

Antitrust / Class Actions

Price fixing

  • Lead counsel defending against numerous direct and indirect purchaser class actions alleging illegal price fixing and/or coordinated supply restraints under federal and state antitrust and unfair competition laws
  • Lead counsel defending against lawsuits filed by dozens of State Attorneys General on behalf of state and local governments and state citizens (parens patriae) asserting federal and state law claims as direct and indirect purchasers of allegedly price fixed products
  • Lead counsel defending against large direct action antitrust lawsuits brought by settlement class “opt outs” who purchased billions of dollars of allegedly price fixed or supply restrained products
  • Trial team member for SK Hynix in defending against a US$12 billion antitrust claim brought by Rambus Inc.; November 2011 jury verdict for defense on all claims. Victory recognized by the Daily Journal as a Top Defense Verdict of 2011.
  • Briefed, argued for defense group and twice won dismissal of indirect purchasers’ California Cartwright Act and 13 other state law antitrust claims on the basis of lack of antitrust standing. In re Dynamic Random Access Memory Antitrust Litigation, 516 F. Supp. 2d 1072 (N.D. Cal. 2007) (DRAM I); 536 F. Supp. 2d 1129 (N.D. Cal. 2008) (DRAM II)

Monopolization / Unfair Competition

  • Trial counsel for California electronics firm in federal court jury trials asserting Walker Process / patent misuse and attempted monopolization claims against a dominant international electronics component manufacturer
  • Counsel for semiconductor manufacturer pursuing monopolization and unfair competition claims in federal court against a semiconductor technology licensing firm charged with abusing a computer industry standard setting process, with related proceedings in the International Trade Commission, Federal Trade Commission, and the European Commission
  • Counsel for a technology company accused in a series of class actions of violating California state unfair competition laws in connection with the company’s traffic light photo enforcement services provided to multiple cities; trial court judgment in favor of our client affirmed by the California Supreme Court
  • Counsel for an international Big 6 accounting firm charged with RICO and unfair competition in class actions brought by putative classes of all depositors worldwide of a failed international financial institution; federal court’s dismissal of plaintiffs’ claims upheld on appeal

Intellectual Property

  • Lead trial counsel in federal court jury trial in which O’Melveny’s client, the inventor of a computer-controlled artificial respirator, obtained a multimillion-dollar trial court award against a medical device manufacturer for patent infringement and willful patent infringement
  • Lead counsel representing a leading consumer electronics firm in disputes over DVD copyright protection technology, the Digital Millennium Copyright Act and Internet law. Also represented the company as lead counsel in multiple business disputes in state and federal courts and in connection with foreign adversarial proceedings
  • Lead counsel for an aircraft cargo systems manufacturer in successfully pursuing patent infringement claims against an aircraft parts supplier
  • Trial counsel in trade secret and contract case for a developer of interactive television programming guides and computer software, in which O’Melveny’s client obtained a multimillion-dollar arbitration award
  • Counsel for a leading computer manufacturer defending against business and technology claims brought by a start-up microprocessor developer for alleged breach of fiduciary duty, breach of contract, and misrepresentation
  • Counsel in various cases for a large computer/technology OEM defending against patent infringement claims relating to encryption technology for personal computers and to disk drive technologies
  • Trial counsel for a leading manufacturer of MOSFETs and other semiconductors in a federal court bench trial in connection with a complex patent licensing action

Other

  • Lead trial counsel representing an insurance company prevailing in a series of state and federal court proceedings and five-week arbitration involving the ownership and lease of a Los Angeles high-rise office building
  • Lead trial counsel in multiple jury and bench trials serving as Deputy City Prosecutor prosecuting criminal defendants

Professional Activities

Admitted to Practice, U.S. Supreme Court; U.S. Court of Appeals, Ninth and Federal Circuits; U.S. District Court, Central, Northern, Southern, and Eastern Districts of California
Chair, The Antitrust Litigation Forum (www.AntitrustLitigationForum.com)
Chair (2013-14), and Vice Chair (2012-13) - Executive Committee of the California State Bar Antitrust & Unfair Competition Law Section;
Co-Chair (former), Trade Secrets Subcommittee of the American Bar Association (ABA) Litigation Section’s Intellectual Property Committee
Member, ABA Antitrust & Intellectual Property Law Sections; Los Angeles County Bar Association; Irish American Bar Association
Irish Legal 100
Co-Author (selected publications, 2009-2013):

International Cartel Litigation

  • “Preserving Legal Privileges in the U.S., California, and the EU,” Antitrust Report (December 2012)
  • “Reflections on Cartel Enforcement,” ABA Antitrust Magazine - 25th Anniversary Edition (December 2012)
  • “Updating Upjohn and Akzo: Practical Suggestions for Preserving Privileges in the U.S., California and Europe,” 2012 ABA International Cartel Workshop (January 2012)
  • “The Impact of Wal-Mart v. Dukes on Antitrust Class Action Defense,” ABA Antitrust Business Torts & Civil RICO Committee (August 2011)
  • “The FTAIA In State Court - A Defense Perspective,” Competition Law 360 (February 24, 2010)
  • “Indirect Purchaser Standing in Federal Courts: Take 2,” Competition Law 360 (October 12, 2009)
  • “Preserving Legal Privileges in the U.S., California and the EU,” Antitrust Report, by Matthew Bender and Lexis/Nexis (forthcoming 2013)

Intellectual Property Rights Intersecting Antitrust Law

  • “Intellectual Property and Antitrust: Getting the Deal Through,” Global Competition Review, USA Chapter (2012, 2013, 2014)
  • “Promoting Competition and Standards: The D.C. Divide,” ABA Antitrust Section's Fall Forum (October 2010)
  • “California Intellectual Property Law Developments,” California Litigation Review (October 2010, October 2009)
  • Ashcroft v. Iqbal: The Sleeper 2009 Supreme Court Decision For Patent Litigators?,” Intellectual Property & Technology Law Journal, Vol. 21, No. 12 (December 2009)

Agricultural Antitrust Litigation

  • “The Capper-Volstead Act Exemption and Supply Restraints in Agricultural Antitrust Actions,” Competition: The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, Vol. 19, No. 2, pp. 69 et seq. (Fall 2010)

Guest Lecturer, “International Cartel Enforcement: Recent Trends & Practical Effects,” Loyola Law School, International Antitrust Course (March 2010, March 2011)
Speaker (selected engagements and panels, 2009-2012):

Cartels, Price Fixing and International Antitrust Litigation

  • Discussion Co-Leader, “Antitrust Litigation Trials,” 2012 Antitrust Litigation Forum (Napa Valley, December 2012)
  • Moderator, “‘Big Stakes’ Antitrust Trials,” 22nd Annual Golden State Antitrust and Unfair Competition Law Institute (San Francisco, October 2012)
  • Moderator, “Defense 9, Plaintiff 3: Winning Over the Jurors in the $12 Billion Rambus Antitrust Trial,” Association of Business Trial Lawyers (ABTL) (Orange County, CA, April 2012)
  • Panel Leader and Panelist, “Internal Investigations,” 2012 ABA International Cartel Workshop (Vancouver, B.C., February 2012)
  • Moderator and Panelist, “Winning Strategies in U.S. Jury Trials,” In-House Counsel Forum (Seoul, Korea, January 2012)
  • Panelist, “Current Trends in State and Federal Antitrust Civil Enforcement,” ABA Antitrust Section's Fall Forum (Washington DC, November 2010)
  • Panelist, “The Potential Impact of Dukes v. Walmart on Class Certification in Antitrust and UCL Cases in the Ninth Circuit,” California State Bar Antitrust & Unfair Competition Section Brown Bag Seminar (Los Angeles, July 2010)
  • Speaker, “Antitrust Laws & Lessons from Standard Setting Organizations,” International Seminar on Anti-Monopoly Issues in the Industry of New and High Technology, China’s Ministry of Industry & Information Technology (MIIT) (Beijing, PRC, June 2010)
  • Panelist, “When Parallel Paths Collide: The Intersection of Criminal Antitrust Enforcement and Civil Litigation - Trends, Tactics and Tensions,” Los Angeles County Bar Association, Antitrust Section (Los Angeles, April 2010)
  • Panelist, “Dealing with the Rising Tide of Criminal Enforcement,” Antitrust 2010: New Administrations, New Cases & New Economic Realities in Global Markets, Cornerstone Research Conference (Los Angeles, March 2010)
  • Discussion Leader, “Cross-Border Certification of Antitrust Class Actions in the U.S. and Canada,” Canada - U.S. Cross-Border Litigation Forum, Cambridge International Forums (Toronto, Canada, March 2010)
  • Panelist, “International Antitrust Litigation: Civil & Criminal Developments,” 19th Annual Golden State Antitrust & Unfair Competition Law Institute, California State Bar, Antitrust & Unfair Competition Law Section (San Francisco, October 2009)

Agricultural Antitrust Litigation

  • Panelist, “The Capper-Volstead Exemptions in an Era of Supply Management and Vertical Integration,” American Bar Association Antitrust State Enforcement, Agriculture & Food, Exemptions & Immunities Committees (September 2012)
  • Discussion Co-Leader, “The Capper-Volstead Act Exemption and Supply Restraints in Agricultural Antitrust Actions,” New York State Bar Antitrust Section Executive Committee (New York, February 2011)

Complex Civil Litigation

  • Panelist, “Resolving Antitrust Disputes: Arbitration, Mediation, and Settlement,” CLE International Antitrust Law Conference (upcoming, San Francisco, February 2013)
  • Panelist/Moderator, “Settling, Mediating and Arbitrating Complex Cases,” Los Angeles County Bar Ass'n (Los Angeles, May 2012)
  • Panel Leader, “Cultural Complexities in Cross Border Cases,” California State Bar Convention (Long Beach, September 2011)
  • Panelist, “Ethics and Confidential Communications: Akzo Nobel and its Global Ramifications,” ABA International Section's Spring Meeting (Washington DC, April 2011)
  • Panelist, “Settlement Issues in Complex Antitrust & Unfair Competition Class Actions,” 20th Annual Golden State Antitrust & Unfair Competition Law Institute, California State Bar (San Francisco, October 2010)

Recognitions, Chambers USA - 2013, 2012, 2011 (Antitrust); Southern California Super Lawyers - 2014, 2013, 2012 (Antitrust); Who’s Who Legal - The International Who’s Who of Competition Lawyers - 2013, 2012 (Antitrust)


Loyola Law School, Los Angeles, J.D., 1985:  St. Thomas More Law Honor Society; Editor-in-Chief, Loyola International and Comparative Law Journal

University of California, Los Angeles, B.A., 1982


California

“Intellectual Property and Antitrust," Getting the Deal Through, USA Chapter 2014 (Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Intellectual Property & Antitrust 2014, (published in December 2013; contributing editor: Susan M Hutton of Stikeman Elliott LLP). For further information please visit www.GettingTheDealThrough.com)

U.S. Supreme Court Weighs Reverse-Payment Patent Settlements: Antitrust “Rule of Reason” Applies (Antitrust and Competition)

Foreign Conduct and U.S. Antitrust Laws (Antitrust and Competition)

“Intellectual Property and Antitrust," Getting the Deal Through, USA Chapter 2013 (Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Intellectual Property & Antitrust 2013, (published in November 2012; contributing editor: Susan M Hutton of Stikeman Elliott LLP). For further information please visit www.GettingTheDealThrough.com)

“Intellectual Property and Antitrust," Getting the Deal Through, USA Chapter 2012 (Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through –Intellectual Property & Antitrust 2012, published in December 2011; contributing editor: Susan M Hutton, Stikeman Elliott LLP. For further information please visit www.GettingTheDealThrough.com)

Federal Circuit Decision in Rambus v. Hynix: A Lesson on Document Preservation (Intellectual Property and Technology)

The Capper - Volstead Act Exemption and Supply Restraints in Agricultural Antitrust Actions (Competition - Antitrust and Unfair Competition Law Section of the California State Bar, November 2010)

Intellectual Property Law (California Litigation Review, October 2010)

The FTAIA In State Court - A Defense Perspective (Competition Law 360, February 24, 2010) 

Ashcroft v. Iqbal:  The Sleeper 2009 Supreme Court Decision For Patent Litigators? (Intellectual Property & Technology Law Journal, December 2009) 

Intellectual Property Law (California Litigation Review, July 2008)

Indirect Purchaser Standing in Federal Courts:  Take 2 (Competition Law 360, October 12, 2009)