Jason C. McKenney Partner
Jason C. McKenney practices primarily in the firm’s Litigation and FDA and Health Care groups. Jason’s background is in complex litigation that runs the gamut from antitrust and competition disputes, class actions, securities fraud, breach of contract, breach of fiduciary duty, corporate governance, fraud, deceptive trade practices, and claims under the RICO Act, to intellectual property matters involving patents, trademarks, and copyrights. Throughout his career, Jason has advocated for his clients’ interests both inside and outside the courtroom, and on both sides of the docket, including high-stakes litigation and investigations for Fortune 500 companies, large international firms, as well as regional and mid-size companies in a diverse range of industries such as pharmaceuticals and medical devices, health care, technology, finance, accounting, energy, retail, consumer products, industrial engineering and manufacturing, and media and advertising, among others.
Jason has substantial expertise in health care law and FDA regulation of pharmaceutical and medical device manufacturers, having advised and litigated cases on behalf of some of the leading innovative drug and device companies, hospitals, and other industry participants. Specifically, Jason has handled complex litigation with claims relating to unfair drug pricing, the False Claims Act, compliance with FDA and health care laws and regulations, product lifecycle strategies, and the federal antitrust laws. Jason is also well versed in the constantly evolving legal landscape confronted by industry, including:
- The Anti-Kickback laws
- The Stark Act
- The False Claims Act
- Mergers and acquisitions of actual or potential rivals
- The Sherman Act and other competition issues
- The FDA regime for drug and device approval and marketing
- The operation of private and government run insurance programs
- The operation of drug purchasing,payment, and distribution systems
Jason has published a number of articles concerning competition and compliance issues in the health care sector, including in the ABA magazine Antitrust, as well as a recent post on the firm’s online blog concerning the impact and unintended consequences of proposed changes to Medicare’s payment methods.
Jason prides himself on his dedication and attention to detail to his client’s matters, while also pursuing aggressive strategies and creative thinking to obtain a decisive victory early in the litigation or to lay the groundwork for eventual success, in a cost-efficient manner.
Before joining Mayer, Jason worked in Gibson Dunn & Crutcher’s Dallas office, primarily in the firm’s antitrust, FDA and health care, securities, intellectual property, and class actions groups. In law school, Jason served as a judicial intern to the Honorable Jennifer Walker Elrod of the United States Court of Appeals for the Fifth Circuit.
- University of Houston Law Center, J.D., summa cum laude and Order of the Coif
- University of Cape Town, South Africa, Graduate School of Historical Studies
- Wesleyan University, B.A., with honors
- State Bar of Texas
- U.S. District Court for the Northern and Eastern Districts of Texas
- U.S. Circuit Court of Appeals for the Federal Circuit
Jason has litigated the following representative matters:
- Counsel for leading international pharmaceutical company in obtaining complete victory at trial in a False Claims Act suit alleging that the company defrauded government payment programs by misleading the patent issuing an invalid patent for its blockbuster anti-coagulant drug. Potential damages and penalties exceeded over $1 billion dollars.
- Counsel for large domestic pharmaceutical and device manufacturer in ongoing federal multidistrict antitrust litigation based in New York asserting claims of anti-competitive conduct to delay market entry of generic versions of the company’s blockbuster dry-eye disease drug, with multi-billion damages claims asserted. Achieved advantageous settlements for a portion of the MDL plaintiffs prior to determination of class certification
- Counsel for prominent Second Amendment and civil rights group in lawsuits brought against its former public relations firm in Dallas federal court and Virginia state court, with damages over $100 million dollars and involving issues of financial fraud, fraudulent deployment and reporting of performance metrics for digital media assets, racketeering activities, breach of fiduciary duty and contract, and Lanham and Copyright Act claims for trademark and copyright infringement, and false endorsement.
- Counsel for local and family-controlled media company and its board of directors in connection with corporate takeover litigation filed in Dallas state court, alleging breach of fiduciary duties in connection with the sale of the company. Case resolved with highly advantageous class action settlement after plaintiff abandoned pursuit of preliminary injunction due to effective defensive discovery strategy on an expedited basis.
- Counsel for large apparel and home furnishings retailer in federal securities investigation, shareholder derivative claims, and securities fraud matters in the United States District Court for the Eastern District of Texas.
- Counsel for large domestic pharmaceutical and device manufacturer in action brought in New Jersey federal court alleging unlawful pricing and rebating activities for Medicare Part D, which allegedly injured rival drug manufacturer with competing eye drop product over $100 million dollars. Successfully obtained dismissal of complaint upon a motion to dismiss.
- Counsel for large domestic pharmaceutical in antitrust claims brought in Delaware federal court by competitor and purchasers involving allegations of unlawful product life cycle management, product marketing and non-compliance with health care anti-fraud laws, sham litigation, and fraud on the patent office. Obtained advantageous settlement with both sets of plaintiffs early in proceedings.
- Counsel to regional residential construction company with claims against land developer and financier for racketeering activities under RICO and other business torts, with damages in excess $100 million dollars.
- Counsel to privately held cosmetics manufacturer sued under California’s Unfair Competition Law for supposedly misleading customers about the company’s animal testing practices. Plaintiff, represented by Michael Avenatti, unilaterally dropped suit after investigation revealed class representative and class counsel had inappropriate, personal relationship and had offered testimony that amounted to fraud on the court.
- Counsel for prominent U.S. food and beverage companies in litigation in Dallas federal court alleging breach of licensing agreement, fraud, and tortious interference over failed launch of new energy drink product. Drastically reduced damages demand from in excess of $100 million dollars through strategic motion practice and aggressive discovery tactics.
- Counsel for telecommunications firm in $60+ billion-dollar merger with media company challenged by Department of Justice in Washington, DC. Served on expert economist team and prevailed at trial after court found testimony of government’s economist unreliable.
- Counsel for Big 3 accounting firm in multidistrict litigation in New York involving federal securities fraud class actions based on alleged accounting and financial improprieties. Secured highly favorable settlement after prevailing twice on class certification.
- Counsel for large agricultural producer in federal multidistrict litigation in Philadelphia and parallel state court proceedings in Kansas City involving competing claims of antitrust violations, extortion, fraud, and conspiracy related to the development of animal welfare standards.
- Counsel for Fortune 500 global manufacturing and engineering firm in litigations involving antitrust, false advertising, unfair competition, and patent infringement claims brought by principal competitor, implicating issues of improper standard setting conduct and so-called “patent hold-up.” Obtained transfer of case from Los Angeles to client’s corporate HQ in Minneapolis and secured highly favorable settlement on the eve of summary judgment.
- Counsel for U.S. telecommunications firm in litigation against Huawei relating to deployment/operation of 4G wireless network, involving claims for patent infringement, trade secret misappropriation, and antitrust/unfair competition under various state laws. Responsible for counterclaims based on Huawei’s assertion of infringement claims for patents it improperly failed to disclose as essential to the 4G network to the relevant standard setting body, plus patent and antitrust damages/remedies issues.
- Counsel for world-leading technology and chemicals company in a series of patent infringement and interference proceedings brought in San Francisco and Wisconsin federal court and appeals to the Federal Circuit. Succeeded in invalidating sham patents of dominant firm that improperly claimed client’s pre-existing technology and products relating to genetically modified enzymes used in ethanol production. Efforts resulted in favorable global settlement.
- Counsel for successful petitioners seeking asylum based on political persecution.
- Member, American Bar Association, Antitrust and Health Law Divisions
- Author of publications on developments in antitrust, class action, securities, and electronic discovery law, including “Antitrust Scrutiny of Pharmaceutical “Product Hopping,” Antitrust Magazine (ABA Fall 2013), with M. Sean Royall and Ashley Johnson.