Rachel S. Brass

Brass is co-chair of Gibson Dunn's antitrust practice, where her work spans domestic and international antitrust law, class action litigation and appellate advocacy.

She is defending client McDonald's Corp. and McDonald's USA LLC in the first and most prominent no-poach antitrust case in the franchise sector. The case involves class allegations that the fast food retailer and its franchisees unlawfully agreed not to solicit, recruit or hire each other's employees in violation of state and federal antitrust laws. Deslandes v. McDonald's USA LLC, 17-CV04857 (N.D. Ill., filed June 28, 2017).

"We're working toward the class certification stage," Brass said.

She was lead antitrust defense counsel in a first-of-its-kind price fixing trial brought by both direct and indirect purchasers of ramen noodles made by Korean firms. After a five-week trial, she and her colleagues persuaded a San Francisco federal jury to reject the plaintiffs' claims and their request for $415 million in damages.

She argued critical pretrial motions for client Ottogi Corp. Ltd. and its U.S. subsidiary and was the architect of the defense strategy. In re: Korean Ramen Antitrust Litigation, 13-CV04115 (N.D. Cal., filed Sept. 5, 2013).

"It's rare for an antitrust case to go to trial at all, but especially rare to have two different classes involved," she said. "Ramen is a huge deal in Korea. It's a staple and so important that the government controls prices. Our argument in part was that it's hard to have price-fixing collusion when government regulators are in charge."

Another lawyer on the defense team praised Brass' cross-examination of one of the plaintiffs' experts as "withering."

Brass said there was no great a-ha moment but rather a death-by-a-thousand-cuts approach. "I cross-examined him for four hours and slowly and methodically let the jury see who he was and the disconnect between the assumptions and opinions he offered and the critical evidence he ignored."

With a second plaintiffs' expert, Brass elicited an admission that there was only a one in 10 million chance that both he and the first expert were both right.

"The plaintiffs claimed a double-digit overcharge for ramen, but we showed that the price either stayed the same or rose at most by one penny," she said.

The jury deliberated only a couple of hours before returning a defense verdict.

Brass teaches advanced antitrust law at UC Berkeley School of Law. She said one of her opposing counsel in the ramen case is also on the faculty.

"It's a tribute to the antitrust bar that we remain cordial after fighting the good fight in court," she said. "I don't want my students to have only a defense-side perspective."

-- John Roemer