David W. Kesselman

A co-managing partner at Kesselman Brantly Stockinger LLP, David W. Kesselman’s experience as an antitrust litigator spanning more than two decades has entailed representing both plaintiffs and defendants in high-stakes antitrust litigation.

One of his major roles includes serving as lead counsel for the International Longshore and Warehouse Union Local 13 in a federal antitrust case involving an alleged conspiracy to restrain trade at the Port of Los Angeles. The matter was dismissed in the union’s favor in both the district court and the Ninth Circuit. Harbor Performance Enhancement v. City of L.A. Harbor Department, et al., WL 1239055 (9th Cir. Apr. 27, 2022).

“This case is important because it adds to the important body of antitrust law addressing the Noerr-Pennington doctrine — and specifically where the line should be drawn between lawful petitioning activity and an unlawful boycott,” Kesselman said.

Kesselman also played a pivotal role in the Epic Games, Inc. v. Apple, Inc. case by drafting and filing an amicus brief on behalf of leading Unfair Competition Law Practitioners and Scholars. The brief supported the district court’s ruling that Apple violated California’s Unfair Competition Law, which the Ninth Circuit affirmed.

“The Ninth Circuit’s ultimate decision to affirm the district court’s UCL ruling is hugely important — it provides strong authority for the view that a company can violate the UCL even if there is a failure of proof for a Sherman Act violation,” Kesselman said.

In addressing current trends in antitrust law, Kesselman said that the present is a critical moment for the development of antitrust law in the U.S. He emphasized the critical moment in its development, particularly with respect to challenges to monopolization by large technology platforms. He notes the tension between recent Supreme Court case law limiting the scope of Section 2 of the Sherman Act and the public support for reinvigorating antitrust laws.

“The key question is whether the courts will find ways to distinguish those Supreme Court decisions or if Congress will need to step in with legislation to effectively reverse the line of cases (which mostly began during the Regan era) limiting the scope of antitrust enforcement,” Kesselman said. “There seems to be a groundswell of public support for reinvigorating the antitrust laws. And so, this is an exciting time. I fully expect that we will be busy working on Section 2 competitor cases — our firm’s ‘bread and butter’ — for the foreseeable future.”

Beyond his legal practice and academic contributions, Kesselman is actively involved in the legal community. He serves as an advisor to the California Lawyers Association’s Antitrust and Unfair Competition Law section and is a past chair of the LA County Bar’s Antitrust and Unfair Business Practices section. Additionally, he is a member of the Chancery Club of Los Angeles.

Kesselman is also an adjunct professor of antitrust law at Loyola Law School and an editor of a leading treatise on antitrust and unfair competition law in California. His knowledge and insights into antitrust matters have made him a sought-after commentator by various media outlets, including the Daily Journal, Law360, Reuters, NPR and The New York Times.