Michael Tubach

Michael Tubach, a partner at O’Melveny & Myers LLP, has first-chaired more than 40 trials and 20 appeals to his credit, particularly in the realm of criminal antitrust matters and Department of Justice investigations.

One of his significant cases was representing the former chief executive officer of the second-largest U.S. chicken producer in United States v. Penn et al., a series of three criminal antitrust trials. The case, which involved allegations of a seven-year conspiracy to fix prices and rig bids of broiler chicken products, received national media attention. Despite two previous juries deadlocking in 2021 and 2022, Tubach led the defense to a decisive acquittal in the third trial in July 2022.

“The Jayson Penn case is an important reminder that the Antitrust Division cannot simply bully its way into the results it wants,” Tubach said. “When faced with courageous defendants with access to sufficient resources, the antitrust division is going to have to make its cases the old-fashioned way — with actual evidence and witnesses.”

Tubach also represented Leoni AG in a class-action lawsuit regarding alleged price-fixing in the supply of automotive electrical distribution systems.

Despite the magnitude of the commerce at stake, the case was settled for less than $3 million. Tubach’s adept handling of this case contributed to the dismissal of claims by the State of Mississippi and a final dismissal of the last action by the State of Indiana through a nominal settlement.

Tubach’s approach to legal strategy is notable for his use of algorithmic review tools to manage large volumes of documents and his ability to maintain cohesion within large defense teams.

“In the area of criminal antitrust enforcement, the overcharging and blind pursuit of convictions needs to change. This strategy of ‘indict and good things will happen’ has resulted in the DOJ losing virtually every criminal Section 1 Sherman Act charge it has brought in the last three years,” Tubach said. “With a recent change in the criminal enforcement leadership in the DOJ Antitrust Division, we are starting to see signs of a return to the moorings that have supported criminal antitrust enforcement for decades — thorough investigations, interactions with defense counsel and closing investigations when warranted by a dispassionate assessment of the facts.”

Tubach has served as the managing partner of O’Melveny’s San Francisco office, chair of the firmwide pro bono committee and president of the Bar Association of San Francisco. He is also involved in various professional organizations, including serving on the International cartel task force of the ABA’s Antitrust Section and being a faculty member on antitrust issues at the Judicial Institute.