David C. Kiernan

David C. Kiernan is partner-in-charge of the Northern California region at Jones Day.

His recent work includes representing the American Bankers Association in a case involving the Committee on Uniform Securities Identification Procedures (CUSIP). Dinosaur Financial Group LLC et al. v. CUSIP Global Services et al. (S.D.N.Y., filed March 4, 2022).

The matter addresses allegations that the defendants conspired to monopolize the market for CUSIPs, which are essential for stock trades and financial transactions. The case raises significant legal issues regarding market definition, copyright rights, Noerr-Pennington immunity and the role of standard-setting organizations.

“The court granted defendants’ motion to dismiss the plaintiffs’ Section 1, copyright and breach of contract claims, allowing the plaintiffs only to pursue their Section 2 and state law claims,” Kiernan said. “This case raises important issues regarding the right of companies to license and restrict access and use to their work.”

Another case he led involved Laboratory Corporation of America Holdings against the California Department of Public Health.

This matter focused on defending pregnant women’s rights to choose their medical provider for cfDNA prenatal screening. Kiernan’s success in obtaining a permanent injunction against CDPH’s regulations, which would have limited women’s access to cfDNA screening to state-contracted laboratories, underscores the importance of legal intervention in protecting individual health care choices and privacy.

“Obtaining dismissal at the pleading stage is always a bit challenging because defendants are stuck with the allegations as alleged in the complaint,” he said. “The court has to accept them as true, and defendants cannot explain or cite to any other facts.”

In terms of current trends in antitrust law, Kiernan said it’s an exciting time to be a lawyer.

“It’s an exciting time to be an antitrust lawyer. The DOJ and FTC enforcement and investigations continue to rise and State Attorneys General have been much more active,” he said. “The DOJ continues to focus on labor competition, pursuing claims against no-hire and no-poach agreements as well as information sharing. And both the DOJ and FTC have increased their focus on information sharing among competitors. It is yet to be seen the impact, if any, of the agencies’ decision to withdraw the safe harbor for information sharing.”

The withdrawal of the safe harbor for information sharing, rising attention to Big Tech, concerns over algorithmic pricing and the uncertain regulatory landscape for ESG initiatives are other key areas Kiernan identifies as important in current antitrust law.