Mark S. Popofsky
Mark S. Popofsky, a veteran of the landmark Microsoft trial, heads Ropes & Gray’s antitrust practice. A first-chair trial lawyer, Mark litigates antitrust, intellectual property and other complex business litigation matters. Mark’s litigation practice includes jury trials, class actions (including cartel cases), arbitrations and appeals throughout the federal and states courts.
Mark regularly counsels Fortune 500 companies on the full-range of antitrust matters across numerous industries, including high technology, telecommunications, medical device, pharmaceuticals, aerospace, manufacturing, health care and consumer products. With deep and recognized experience in the intersection of intellectual property and antitrust, Mark advises leading Internet, semiconductor, hardware, software and telecommunications clients on business practices, competitor collaborations and distribution arrangements. He also represents parties in civil and criminal antitrust investigations and transactions before the U.S. Department of Justice and the Federal Trade Commission.
Mark served in the late 1990s as Senior Counsel to Assistant Attorney General Joel Klein in the U.S. Department of Justice’s Antitrust Division, where he played a key role in United States v. Microsoft Corp. Mark previously served in the Division’s Appellate Section, where he argued the landmark victory in United States v. Nippon Paper – which established the extraterritorial application of U.S. antitrust law in cartel cases – and as a Special Assistant U.S. Attorney in Alexandria, Virginia (the “Rocket Docket”), where he tried numerous jury cases to verdict. Following government service, Mark in 1999 was named the youngest partner in the history of a renowned international law firm and served as Chair of its Technology and Competition Group.
Recently, Mark has served as litigation counsel for Google in United States v. Google, the Government’s monopolization suit, and achieved a landmark victory for Biogen in the California Supreme Court in Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130 (2020), a case at the intersection of antitrust, non-compete, and tortious interference law. This a victory garnered Mark LMG Life Science’s Antitrust Litigator of the Year award, as well as recognition in 2021 for Impact Case of the Year US Non-IP Litigation. Mark also has represented major telecommunications firms in transactions before the U.S. Department of Justice and in government litigation. In cases raising antitrust counterclaims in intellectual property disputes, Mark has achieved notable motion to dismiss wins.
Mark is an Adjunct Professor of Advanced Antitrust Law and Economics at the Harvard Law School and the Georgetown University Law Center; he taught Advanced Antitrust law since 2000. He writes and speaks frequently on antitrust law and policy and has been interviewed by The Wall Street Journal, Bloomberg, Global Competition Review and Law360. His Article on the Sherman Act’s Criminal Extraterritoriality won the 2012 Burton Award for Legal Achievement. Mark is a long-time leader in the ABA Section of Antitrust law. Mark also serves as a member of the BNA Antitrust Advisory Board.
Mark is sought for his antitrust experience by The Wall Street Journal, The Washington Post, The Los Angeles Times, NBC News, and BBC America.
- Google. Litigation Counsel for Google in the United States v. Google (D.D.C.) monopolization suit.
- Major pharmaceutical manufacturer. Lead attorney for Biogen in Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130 (2020), the landmark California Supreme Court decision establishing the contours of California non-compete, antitrust, and tortious interference law following two successful motions to dismiss, ultimately affirmed by the U.S. Court of Appeal for the Ninth Circuit. In recognition of Mark’s role in this landmark case, among other matters, he was named 2020 LMG Life Sciences Antitrust Litigator of the Year and the firm was awarded Impact Case of the Year US Non-IP Litigation at the 2021 awards.
- Major medical device manufacturer. Lead attorney in securing dismissal of three attempted antitrust counterclaims alleging tying, refusals to deal, and other acts of asserted monopolization in trade secret/copyright litigation (N.D. Cal.).
- Major hospital system. Represents major hospital system in DOJ investigation of alleged anti-steering restrictions.
- Major technology manufacturer. Represents major technology manufacturer in EC investigation of non-solicitation agreement.
- Charter Communications. Represented Charter Communications in connection with the United States v. AT&T/Time Warner litigation and other transactions.
- Cablevision. Lead litigation counsel for Cablevision in asserting claims against Viacom for illegally tying programming networks (S.D.N.Y). Also lead litigation counsel for Cablevision in putative class action alleging monopolization and related claims involving cable set-top boxes (D.N.J.).
- Google. Counsel to Google in connection with patent practices, in government antitrust investigations, and in securing clearance from the Antitrust Division of Google’s $2.35 billion sale of Motorola Home to Arris.
- Questcor Pharmaceuticals. Lead litigation counsel for Questcor in defending monopolization suit brought by putative competitor (C.D. Cal.).
- Hitachi-LG Data Storage. Co-lead litigation counsel for Korean-Japanese joint venture in defending putative civil class actions and related cases alleging price-fixing in the optical disk drive industry (N.D. Cal.).
- Taitsu Corporation. Co-lead litigation counsel for Japanese components manufacturer and its U.S. subsidiary in defending putative class actions in the capacitors industry brought by direct and indirect purchasers (N.D. Cal.).
- Illinois Tool Works. Co-lead litigation counsel in securing dismissal of antitrust claims alleging a conspiracy to manipulate standards setting to exclude a rival (D. Mass).
- Leading Academic Institutions. Lead antitrust counsel in matters relating to athletics programs, government investigations, and joint ventures with sister institutions.
- Auto Parts. Counsel to Japanese auto parts supplier in defending against price-fixing claims brought by customers.
- Lead antitrust counsel in successfully defending hospital against monopolization claims (N.D. Cal.).
- Lead antitrust litigation counsel for major pharmaceutical company in successfully sustaining monopolization claims against rival in patent/antitrust litigation; also litigated eBay issues in remedy phase of patent trial (D. Mass.).
- Lead antitrust counsel for Korean ATM manufacturer in asserting unfair competition claims against rival (N.D. Cal.).
- Secured favorable plaintiff-side settlement of trade secret litigation in optical networking industry.
- Secured clearance from the Antitrust Division of leading aerospace manufacturer’s acquisition of rival’s wheel and brakes business.
- Mark S. Popofsky, “A Comment on Kaplow's the Meaning of Vertical Agreement and the Structure of Competition Law,” Antitrust Law Journal Online, Vol. 80, No. 3 (January 2017)
- Mark S. Popofsky, “Section 2 and the Rule of Reason: Report from the Front,” Antitrust Chronicle (Winter 2016)
- Mark S. Popofsky, “Antitrust and the Roberts Court,” Antitrust Magazine (Summer 2014) (with Doug Hallward-Driemeier)
- Mark S. Popofsky, “Combatting PAE abuses with the current antitrust arsenal,” InsideCounsel (February 21, 2014) (with Jane Goldstein)
- Mark S. Popofsky, “Antitrust Attacks on Patent Assertion Entities,” 79 Antitrust Law Journal 445 (2014) (with Michael Laufert)
- Mark S. Popofsky, “Patent Assertion Entities and Antitrust: Operating Company Patent Transfers,” The Antitrust Source (April 2013) (with Michael Laufert)
- Mark S. Popofsky, “The Anticorruption and Antitrust Interface,” Competition Policy International (February 2012) (with Stephen Braga and Christopher Conniff)
- Mark S. Popofsky, “The Sherman Act’s Criminal Extraterritoriality,” Competition Policy International (August 2011) (with Anthony Biagioli) (winner of 2012 Burton Award for Legal Achievement)
- Mark S. Popofsky, “Restraining Liberty Before A Verdict Is In Sight,”Global Competition Review (May 2011) (with Jason Brown and Anthony Biagioli)
- Mark S. Popofsky, “ACOs and Antitrust Enforcement,”Competition Policy International (2011) (with Jane Willis and Daniel Bachner)
- Mark S. Popofsky, “The Section 2 Debate: Should Lenity Play a Role?” 7 Rutgers Bus. L.J. 1 (2010)
- Mark S. Popofsky, “Section 2, Safe Harbors, and the Rule of Reason,” 15 George Mason Law Review 1265 (2008)
- Mark S. Popofsky, “Extraterritoriality in U.S. Antitrust Jurisprudence,” in 3 American Bar Association Issues in Competition Law and Policy 2417 (2008)
- Mark S. Popofsky, “The U.S. DOJ Section 2 Report: Notable Skirmish in a Holy War,”Global Competition Policy (October 2008)
- Mark S. Popofsky, “Defining Exclusionary Conduct: Section 2, The Rule of Reason, and the Unifying Principle Underlying Antitrust Rules,” 73 Antitrust Law Journal 435 (2006)
- Mark S. Popofsky, “Charting Antitrust’s New Frontier,” 9 George Mason Law Review 656 (2001)
Illustrative Presentations and Speeches
- “The Antitrust/Intellectual Property Interface,” Antitrust Judicial Law & Economics Institute for Judges (Berkeley, 2018)
- “The Antitrust/Intellectual Property Interface,” Antitrust Judicial Law & Economics Institute for Judges (Chicago, 2017)
- “Antitrust/IP Guidelines Worldwide,” ABA Section of Antitrust Law, Spring Meeting (Washington, D.C. April 2016)
- “Good vs. Bad Extraterritorially: What is the Desirable Level of Government Enforcement?,” 3rd Annual Joint Conference – Concurrences Review & GW Law (Washington, DC, September 28, 2015)
- “Patent Assertion Entity and Antitrust,” ABA Antitrust Intellectual Property Conference (Palo Alto, 2015)
- “Intellectual Ventures: How Are Targets Responding?,” Ropes & Gray IP Master Class Financial Services Roundtable (New York, 2015)
- “U.S. Extraterritoriality Post-Motorola,” Knowledge Group Seminars (Washington DC, 2015)
- “U.S. Antitrust Update: FRAND, Counterclaims, and Patent Trolls,” Hsinchu Enterprise Management Association (Hsinchu Taiwan, 2014)
- “Intersection of Civil and Criminal Cartel Cases,” Ropes & Gray Seminar Series (Tokyo, 2014)
- “Should Antitrust Tame Patent Trolls,” ABA Antitrust Spring Meeting (March 28, 2014)
- “The Abuse of Dominance Principles in Canada,” teleseminar sponsored by the Canada Bar Association and the American Bar Association (March 7, 2014)
- “Antitrust and Patent Assertion Entities,” ABA Section of Antitrust law Teleconference (Washington DC, 2013)
- “Antitrust Provisions in IP Deal Documents,” ABA Section of Intellectual Property Law Teleconference (Mountain View, 2013)
- Testimony on the application of the antitrust laws to Patent Assertion Entities before the Federal Trade Commission and U.S. Department of Justice for Workshop on Patent Assertion Entity Activity (Washington DC, 2012)
- “Patent Remedies and Competition,” Annual Georgetown Law/Stanford Law School Patent Law Conference (Washington DC, 2012)
- “How Companies can use Antitrust to Fight Patent Aggression,” Seminar on Essential Elements in Litigating Technology Cases (Seoul, 2012)
- “Anti-Cartel Enforcement,” ABA International White Collar Crime Conference (London, 2012)
- “Antitrust and Life Sciences M&A,” Ropes & Gray Seminar Series (Tokyo, 2012)
- “Refusals to Deal Since Aspen,” ABA Antitrust Spring Meeting (Washington DC, 2012)
- “The FCPA/Antitrust Interface,” Ropes & Gray Seminar Series (Washington DC, 2012)
- “Behavioral Remedies,” ABA Antitrust Section Fall Forum (Washington DC, 2011)
- “Patent Wars and Antitrust Counterattacks,” Association of Corporate Counsel (Palo Alto and San Francisco, 2011)
- “Reverse Payments and Antitrust: The New Paradigm,” 6th Annual ACI Pharmaceutical In-House Antitrust Conference (New York, 2011)
- “Developments in Cartel Cases,” Taiwan Electrical and Electronic Manufacturers’ Association (Taipei, 2011)
- “Class Certification in International Cartel Cases,” ABA Antitrust Section Teleseminar (Washington DC, 2011)
- “Recent Trends in Competition Law Enforcement and the Regulation of Cartel and IP Rights Abuse,” Seoul National University (Seoul, 2010)
- “Intellectual Property and Antitrust,” Japanese Institute of International Business Law (Tokyo, 2010)
- “Developments at the Antitrust/Intellectual Property Crossroads,” Osaka Bar Association (Osaka, 2010)
- “Innovation and the Long-Run Challenge for Antitrust,” ABA Antitrust and Innovation Symposium (Palo Alto, 2010)
- “Product Design and Bundling: Evolving Monopolization Standards in the U.S. Courts,” Deutsch-Amerikanische Juristen-Vereinigung (Frankfurt, 2010)
- Testimony on Direct Evidence in Merger Analysis before the Federal Trade Commission and U.S. Department of Justice for Workshop on the Horizontal Merger Guidelines Review Project (Washington DC, 2009)
- “Competitor Collaborations, Dominant Firms, and Evolving Markets,” ABA Antitrust Spring Meeting (Washington DC, 2009)
- “Section 2 and the Rule of Reason,” George Mason Annual Antitrust Symposium (Washington DC, 2007)
- “Predatory Pricing: Strategic Theory and Legal Policy,” NTCA Legal Conference (New York, 2006)
- Testimony on Tying before the Federal Trade Commission and U.S. Department of Justice for hearings on "Section 2 of the Sherman Act: Single Firm Conduct as Related to Competition” (Washington DC, 2006)
- “A Practical Approach to Antitrust Compliance Problems Confronting Corporate Counsel,” ALI-ABA Legal Ethics Teleseminar Series (Washington DC, 2006)
- “Efficient Integration or Illegal Monopolization? Package Licensing, Economic Bundling, and the Antitrust Principles Applicable to the Business Strategies of Leading Firms,” New York State Bar Association Antitrust Section Annual Meeting (New York, 2006)
- “Dagher and Illinois Tool Works: The Supreme Court Steps In,” ABA Antitrust Spring Meeting (Washington DC, 2006)
- “The New Standard-Setting Environment for Standard-Setting: Dispatches from the Front Lines,” ABA Antitrust Spring Meeting (Washington, DC, 2005)
Illustrative Media Appearances
- “Comment: Obscure Illinois hospital case raises red flag with DOJ over short-term contracts, competition,” MLex Market Insight (February 2018)
- “Justice Department Targets Foreign Documents in Antitrust Probe,”Compliance Week (May 2011)
- “AT&T Deal is Key Test for Obama Regulators,”The Wall Street Journal (March 2011)
- “Under the Microscope: PE Firms Face New Antitrust Scrutiny,”Private Equity Analyst (June 2010)
- “United deal could face turbulence,”Chicago Tribune (May 2010)
- “United, Continental May Win Support by Ceding Flights,”Bloomberg (April 2010)
- “Federal Circuit Opens Door to Patent Defence,”Global Competition Review (April 2009)
- “DOJ Study on monopoly may be put to test in Yahoo-Google case,”National Law Journal (September 2008)
- “Owner of Small Coffee Shop Takes on Java Titan Starbucks,”USA Today (December 2006)
- “Club Deals: Collusion or Illusion?”The Deal (November 2006)
- “FTC v. Rambus,”Intellectual Property Lawcast (November 2006)
- “Airlines Accused of Collusion,”BBC America Evening News (June 2006)
- “Illinois Tool Works,”IP Law 360 (March 2006)
- “Intel Colonizes with Chipsets,”Cnet.com news (August 2004)
- “The Slippery Scope of Antitrust Law,”Washington Post (June 2002)
- “US Probes Whether Big Banks Stifled Rival in Currency Trading,”The Wall Street Journal (May 2002)
- “Microsoft Antitrust Accord Would Place Few Restrictions on Entering New Markets,”The Wall Street Journal (November 2001)
- “Microsoft Asks High Court to Intervene,”Los Angeles Times (August 2001)
- JD, magna cum laude, Harvard Law School, 1993; Executive Editor, Harvard Law Review
- AB, magna cum laude and Highest Honors in History and Economics, Brown University, 1990; Phi Beta Kappa
Admissions / Qualifications
- California, 1994
- District of Columbia, 1997
- Supreme Court of the United States, 1998
- U.S. Court of Appeals for the Federal Circuit, 2008
- U.S. Court of Appeals for the First Circuit, 1997
- U.S. Court of Appeals for the Second Circuit, 2007
- U.S. Court of Appeals for the Fourth Circuit, 1996
- U.S. Court of Appeals for the Seventh Circuit, 2000
- U.S. Court of Appeals for the Ninth Circuit, 2005
- U.S. Court of Appeals for the District of Columbia Circuit, 1995
- U.S. District Court for the District of Columbia, 2002
- U.S. District Court for the Eastern District of California, 2017
- U.S. District Court for the Northern District of California, 2010
- U.S. District Court for the Eastern District of Michigan, 2014
- LMG Life Sciences Antitrust Litigator of the Year (2020)
- Chambers USA: America's Leading Lawyers for Business (2005 - 2021)
- Chambers Global (2018 - 2021)
- The Best Lawyers in America, Antitrust Law in District of Columbia, United States (2006 - 2022)
- Benchmark Litigation (2017 - 2020)
- Legal 500 US (2015 - 2020)
- Who’s Who Legal: Competition Thought Leader (2020)
- Who’s Who Legal: Competition Global Leader (2015 - 2019)
- Who's Who in America (2008 - 2014)
- Who's Who Legal (2008 - 2015)
- GCR100 (2018)
- Washington, D.C. Super Lawyers (2007 - 2020)
- Top 100: Washington, D.C. Super Lawyers Top List (2014)
- Asia Pacific Legal 500: Antitrust & Competition Law – International Firms & Joint Ventures Japan (2014)
- The International Who's Who of Competition Lawyers & Economists (2008 - 2015)
- The International Who's Who of Business Lawyers (2012 - 2013)
- LMG Life Sciences: “Life Sciences Star,” (2012 - 2016)
- Washingtonian’s Top Antitrust Lawyers (2009 - 2014)
- PLC Which Lawyer (2009 - 2012)
- Lawdragon 3000 (2010 - 2011)
- Clients note that Mark is “practical, smart and articulate, and has gotten us excellent results.” They also note that he is “extremely knowledgeable about anti-trust issues” and that he is “very well-organized,” and when managing cases, “you never worry about unexpected developments.”
- According to the 2017 edition of Benchmark Litigation: the “incredibly responsive” Mark Popofsky and his team “do great work. It is an excellent team. They analyze issues carefully and rigorously; their research is always complete; they lay out decision points clearly, and they write great briefs.”
- According to the 2016 edition of Chambers USA: Mark is “an extremely strong and analytical antitrust lawyer” and a “consummate litigator who tackles complex cases involving antitrust and IP elements for clients across an array of industries.”
- According to the 2013 edition of Chambers USA: “The ‘super-smart’ Mark Popofsky garners praise from peers and clients alike, with one interviewee noting that he balances his intellect with ‘practical real-world touches.’”
- According to the 2012 edition of Chambers USA: Mark is “an incredibly bright lawyer – he has that raw know-how and intellect, but is able to translate that, and marry it to his strength with the agencies.”
- According to the 2010 edition of Chambers USA: Sources note that Mark is “extremely responsive to clients’ needs and is available whenever we need him, however odd the hour might be.”
- According to the 2009 edition of Chambers USA: Mark “is tenacious.”
- According to the 2007 edition of Chambers USA: “His peers think the world of him.”
- According to the 2005 edition of Chambers USA: Mark is “commercially pragmatic.