Mr. Barbur won dismissal for American Express (“AmEx”) of a civil lawsuit filed in the U.S. District Court for the Eastern District of New York by the U.S. Department of Justice and 17 state attorneys general alleging that AmEx’s nondiscrimination provisions in its merchant agreements violate the antitrust laws. This case—one of the largest and most significant cases arising under Section 1 of the Sherman Act that the Government has brought to trial in over a decade—culminated in a nearly two‑month bench trial in July‑August 2014. In September 2016, the Second Circuit Court of Appeals reversed the district court’s determination in February 2015 that AmEx’s merchant acceptance rules violated federal antitrust law and remanded the case “with instructions to enter judgment in favor of Amex.” MasterCard and VISA, AmEx’s co‑defendants in this case, had settled with the Government in 2010. He also represented AmEx and certain of its directors and officers in a shareholder derivative lawsuit arising from the DOJ’s enforcement action; defendants’ motion to dismiss the complaint was granted with prejudice.
Mr. Barbur also represents AmEx in a series of putative class actions and individual lawsuits brought by large supermarket and pharmacy chains alleging that AmEx’s “anti‑steering” rules violate Sections 1 and 2 of the Sherman Act and in a putative class action brought on behalf of all U.S. merchants alleging that AmEx improperly tied acceptance of certain of its card products to acceptance of other AmEx card products. Mr. Barbur represented AmEx in another putative class action alleging unlawful tying that was dismissed after the U.S. Supreme Court ruled in 2013 that the company’s arbitration provisions in its merchant agreements, which contained a class action waiver, were valid and enforceable.
Mr. Barbur represented Viacom International and Black Entertainment Television in a lawsuit brought by Cablevision in the U.S. District Court for the Southern District of New York, alleging that Viacom’s 2012 licensing agreement with Cablevision constituted illegal tying and block‑booking in violation of the Sherman Act and New York’s Donnelly Act.
In addition to his antitrust work, Mr. Barbur is representing IBM in a DOJ FCPA investigation relating to IBM’s operations in Poland, Argentina, Bangladesh and Ukraine. He represented IBM in an investigation by the SEC relating to IBM’s operations in China and Korea, which settled.
Mr. Barbur has represented Time Warner in a number of matters, including in connection with government investigations and private securities litigation concerning financial reporting and disclosure issues arising out of Time Warner’s merger with America Online in 2000.
Mr. Barbur also represented a special committee appointed by the Eli Lilly Board of Directors to respond to shareholder derivative demands and lawsuits relating to the marketing of Zyprexa.
From 2013 through 2016, Mr. Barbur was named a “National Star” in antitrust litigation and a “Local Litigation Star” in the New York area by Benchmark Litigation. He was also recognized as a leader in antitrust litigation by The Best Lawyers in America (2015‑2017). Mr. Barbur has been recognized for his antitrust and patent work by The Legal 500 United States and was selected by Lawdragon from 2012 through 2016 as one of 500 Leading Lawyers in America. Mr. Barbur is a member of the Board of Trustees of the Aperture Foundation and a member of the Photography Council at the Museum of Modern Art.
Mr. Barbur received his B.A., magna cum laude, from Dartmouth College in 1983, where he was elected to Phi Beta Kappa, and his J.D., cum laude, from New York University School of Law in 1987, where he was Articles Editor of the Law Review, a Root‑Tilden Scholar, and elected to the Order of the Coif. Following his graduation, Mr. Barbur served as a law clerk to Hon. Hugh H. Bownes of the U.S. Court of Appeals for the First Circuit. He joined Cravath as a litigation associate in 1988 and became a partner in 1994.
Mr. Barbur may be reached by phone at +1‑212‑474‑1058 or by email at [email protected]more » « less