Wayne A. Mack
- Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103-4196
Phone: +1 215 979 1152
Fax: +1 215 689 3595
Wayne A. Mack is co-head of the Commercial, Securities and Antitrust division of Duane Morris' Trial Practice Group. The Commercial, Securities and Antitrust Litigation Division is the largest division in Duane Morris' Trial Practice Group with more than 125 attorneys. Mr. Mack is also a member of the firm's governing Partners Board and chair of the firm's Professional Standards Committee that is responsible for the process whereby associates are admitted to the firm's partnership.
Mr. Mack regularly counsels and represents public and private businesses and their owners, officers and directors in negotiations, mediation and litigation involving commercial law matters. His practice includes the following areas:
- Antitrust and Competition. Mr. Mack provides advice to manufacturers, suppliers, distributors, hospitals, healthcare providers and other service providers regarding the antitrust aspects of product distribution and pricing, resale price maintenance plans, promotional programs and rebates, differential pricing, as well as joint ventures, competitor collaboration, and other types of transactions. He also represents clients in federal court and before government agencies, including the Federal Trade Commission, on issues involving trade regulation, predatory and discriminatory pricing, price-fixing, monopolization and unfair competition claims. He is identified as one of the leading antitrust lawyers in Pennsylvania in Chambers USA: America's Leading Lawyers for Business. The Guide states that clients were impressed by his "presence in the courtroom" and his "thorough due diligence and his opinions" on antitrust law. Mr. Mack also has consistently recognized as a Pennsylvania Super Lawyer in the antitrust field and in 2008 was named as one of the top 10 outstanding healthcare antitrust lawyers in the United States.
- Financial Institutions. Mr. Mack regularly represents banks, financial institutions and their officers, directors and other professionals, in class action and other litigation related to loan agreements and other types of financial transactions, including litigation arising out of bank failures. He has handled numerous cases involving claims against financial institutions and other entities under state consumer fraud statutes.
- Trademark Protection and Anti-Counterfeiting. Mr. Mack assists brand owners in working cooperatively to implement trademark protection and anti-counterfeiting programs. He is counsel to the U.S. Golf Manufacturers Anti-Counterfeiting Working Group, which consists of the world's leading golf manufacturers. He supervises that group's efforts to investigate and prosecute those involved with distributing counterfeit products in China in the online marketplace.
- Franchising and Distribution. Mr. Mack regularly represents manufacturers, suppliers, franchisors, franchisees, franchise system cooperatives and franchise associations in a wide range of industries. He has negotiated system franchise agreements and other contracts and litigated and negotiated settlements of major antitrust and class action disputes affecting franchise systems. He provides counsel to manufacturers and suppliers regarding distribution arrangements, dealer termination and the formation and restructuring of distribution arrangements. He has been involved in some of the most important franchise and dealership cases in the country, including class action cases involving franchise advertising funds and the pricing of products sold to franchisees. He has also represented manufacturers, suppliers, franchisees and dealers in cases involving co-branding, dual distribution, termination and encroachment. He has appeared on national television discussing franchising issues and cases that he has handled have been the subject of articles in The National Law Journal, Wall Street Journal, USAToday, The Washington Post, Business Week, Financial Times, Barron's, Franchise Times and The American Lawyer.
- Class Actions. Mr. Mack has represented clients in numerous class action lawsuits alleging a wide range of legal theories — including violations of consumer protection statutes, securities fraud, antitrust, RICO and tort claims — in state and federal courts for clients in many industries. He has handled all phases of class action litigation, including pre-certification hearing discovery, class certification motions and hearings, interlocutory appeals of certification rulings, summary judgment practice, class action trials and also negotiated favorable settlements and obtained court approval of class settlements.
- Securities Litigation. Mr. Mack has represented public companies and their officers and directors in obtaining court orders dismissing securities claims on the pleadings as well as summary judgment orders in cases involving allegations that misrepresentations and omissions were made in connection with public and private securities offerings
- Contracts. Mr. Mack counsels businesses and their owners in drafting and negotiating asset and stock purchase and distribution and sales agreements and regarding the Uniform Commercial Code. He also represents clients in negotiating, litigating and resolving contractual disputes. He has handled cases involving agreements with non-compete, non-disclosure, exclusive dealing, appraisal rights and earn-out provisions. He has also represented shareholders and partners in disputes over the management and valuation of closely-held corporations and partnerships. He has obtained multi-million dollar verdicts and settlements for clients in contract disputes and also defended clients facing breach of contract claims.
- Constitutional Law. Mr. Mack advises media and other clients regarding defamation and libel claims. He has represented clients before the United States Supreme Court and the Pennsylvania Supreme Court in cases involving the First Amendment right to free speech. He also counsels clients regarding other constitutional issues, including the export, commerce and takings clauses.
- Prukala v. NBT Bank NA — Represented financial institution in obtaining voluntary dismissal with prejudice of putative class action case filed under Fair Credit Reporting Act.
- Berthelson v. NBT Bank NA — Representing financial institution in putative class action involving alleged failure to provide appropriate notice for repossession of automobiles under U.C.C.
- NEFS v. U.S. Bank N.A. — Represented financial institution in obtaining dismissal of claims for breach of the duty of good faith and seeking indirect damages in connection with bank's decision to exit the student loan business.
- Tepper v. Temple Inland, Inc. et al. — Represented liquidation trustee in litigation arising out of spin-off and subsequent failure of Guaranty Financial Group, Inc. Negotiated settlement for trustee which included payment of $80 million and right to receive in excess of $275 million in tax refunds.
- Adelphia Recovery Trust Litig.—Represented international bank client against multibillion-dollar claim for aiding and abetting fraud in connection with co-borrowing loan facilities.
- In re Automotive Parts Antitrust Litigation — Represent nation's largest network of heavy and medium duty truck dealerships in several antitrust class actions in large MDL proceeding involving claims for alleged price-fixing of vehicle parts.
- In re Vehicle Carrier Services Antitrust Litigation —Represent truck and equipment dealers in antitrust class action arising out of alleged price fixing of ocean vehicle carrier services.
- In re Ductile Iron Pipe Fittings ("DIPF") Direct Purchaser Antitrust Litigation. Represent waterworks distributors in connection with price-fixing and exclusionary conduct claims against suppliers/manufacturers of pipe fittings.
- Cumberland Truck Equipment Co., et al. v. Detroit Diesel Corp.—Negotiated multimillion-dollar settlement in favor of class of truck dealers in antitrust class action arising out of termination of dealerships.
- Mariana v. Fisher—Obtained dismissal of antitrust claims against state officials relating to settlement of tobacco litigation.
- In re Plastic Additives Antitrust Litigation—Counsel to manufacturer in antitrust class action involving pricing of plastic additives.
- Mathews v. Lancaster General Hospital, et al.—Represented defendant hospital in antitrust action arising out of peer-review proceeding. Summary judgment granted in favor of client.
- Huhta v. Children's Hospital of Philadelphia, et al.—Represented defendant hospital in antitrust action arising out of decision by hospital to restrict privileges of physician. Summary judgment granted in favor of client.
- In re Maine Health Alliance—Represented large regional hospital network in negotiating consent decree in connection with Federal Trade Commission investigation into alleged price fixing.
- Chester County Hospital v. Independence Blue Cross, et al.—Represented hospital in antitrust case involving claim that defendant insurer violated section 2 of the Sherman Act.
- Angelico v. Lehigh Valley Hospital, Inc., et al.—Lead trial counsel for defendant hospital in antitrust action brought by a cardiothoracic surgeon who alleged a group of hospitals had conspired to restrict his privileges. Jury returned a verdict in favor of client after a seven-week trial.
- AFA Service Corporation — Represented Arby's Franchise Association in negotiating revision of terms of franchise agreement.
- Treasure Isles v. YUM! Brands—Represent multi-unit franchisee in case involving claims that franchisor failed to properly disclose information regarding co-branding of A&W and Long John Silver's restaurants.
- In re Long John Silver's, Inc.—Represented Official Committee of Franchisees and franchisee association in renegotiating franchise agreement in connection with the bankruptcy of their franchisor.
- Trans American Brokerage v. Mrs. Smith's Bakeries—Obtained $11.2 million award as lead counsel for international distributor in arbitration proceeding in case involving claims for breach of a distribution contract.
- Broussard, et al. v. Meineke Discount Muffler Shops, Inc., et al.—Lead trial counsel in franchise class-action litigation involving claims of improper handling of advertising fund, resulting in a $390 million jury verdict in favor of clients. Case settled on confidential terms following appeal.
- AAMCO Transmissions, Inc. v. Marino, et al.—Represented group of franchisees in litigation involving claims of inadequate training. Case settled on confidential terms.
- Duarte v. GNC—Represented franchisees in class-action litigation involving claims of breach of contract arising from the pricing and discounting of products that the franchisor required franchisees to purchase.Negotiated $4.2 million class wide settlement for franchises.
- Dunhill Temporary Systems Irving v. Dunhill Staffing Systems—Represented franchisee in an action for fraud and breach of contract arising from overcharges by the franchisor's captive workers' compensation insurance company.
- Carvel Corp. v. Baker, et al.—Represented group of franchisees in litigation involving claims that sale of Carvel products in supermarkets violated the duty of good faith. Settled cases for $2.3 million.
- Johnson v. Aegon USA, WMAS, et al.—Represented defendant brokerage firm in class-action securities fraud case arising out of sale of variable annuities. All claims against client dismissed by court.
- In re Goodyear Tire & Rubber Co. Securities Litig.—Represented public company in securities fraud class action. Summary judgment granted in favor of client.
- In re Bexar County Health Facilities Development Corp.—Represented national law firm in suit alleging that it violated securities law in connection with the preparation of offering statements for a bond offering.
- Fox v. State University of New York—Represented students in First Amendment case brought before the U.S. Supreme Court involving a university regulation restricting commercial speech.
- Provided advice regarding constitutionality of proposed city ordinance requiring English alphabet on business signs in Monterey Park, California for which the firm received the Pro Bono Service Award from Asian Americans Advancing Justice.
Financial Institutions and Banking
Antitrust Class Actions
Franchise and Dealership
Areas of Practice
- Complex Commercial Litigation
- Class Actions
- Securities Law
- Trade Regulation
- Supreme Court of the United States
- U.S. District Court for the Eastern District of Pennsylvania
- U.S. Court of Appeals for the Third Circuit
- U.S. Court of Appeals for the Fourth Circuit
- Supreme Court of Pennsylvania
- University of Pennsylvania Law School, J.D., 1986
- Order of the Coif
- Moot Court Board
- Temple University, B.S., magna cum laude, 1983
- Duane Morris LLP
- Partner, 1995-present
-- Co-head, Commercial, Securities and Antitrust Division
-- Co-chair, Antitrust Practice Group
--- Chair, Professional Standards Committee
-- Member of Partners Board
- Associate, 1986-1995
- Pennsylvania Bar Association
- Civil Litigation Section
- Philadelphia Bar Association
- American Health Lawyers Association
- American Bar Association
- Antitrust Law Section
- Business Law Section
-- Business and Corporate Litigation Committee
- Forum Committee on Franchising
Honors and Awards
- Listed in Chambers USA: America's Leading Business Lawyers, 2003-2012 editions
- Listed in Super Lawyers Corporate Counsel Edition, Antitrust Litigation, 2009 and 2010
- Named Pennsylvania Super Lawyer by Philadelphia magazine, 2004, 2006-2014
- Recognized as one of ten "Outstanding Healthcare Antitrust Lawyers" by Nightingale's Healthcare News, 2008
- Chairman's Award for Distinguished Service and Achievement presented by the American Association of Franchisees & Dealers, 1997
- AV® Preeminent™ Peer Review Rated by Martindale-Hubbell
- Quoted in "The Successful Litigator's Settlement Playbook," Law360, September 19, 2014
- "Faux Woods," Sports Illustrated, September 5, 2011
- "Pushing Back Against Counterfeit Goods," Executive Counsel, August/September 2011
- Contributor, Indirect Purchaser Lawsuits, A State-by-State Survey, ABA (2010)
- Co-author, "When Does the Payment of Low Reimbursement Rates or Other Conduct by an Insurer Violate the Antitrust Laws? ," Duane Morris Alert, December 6, 2010
- Co-author, "Supreme Court Allows Arbitrators to Determine Validity of Arbitration Agreements, Strengthening Enforcement," Duane Morris Alert, June 24, 2010
- Co-author, "More Aggressive Antitrust Enforcement Ahead," Duane Morris Alert, May 13, 2009
- Co-author, "Duane Morris Wins Major Appeal for Truck Dealer," Duane Morris Alert, July 25, 2008
- Co-author, "Antitrust Tying and Franchises: Does the Kodak Rationale Apply to Franchise Relationships?" Pennsylvania Law Weekly, February 23, 1998
- Co-author, "Franchisors: Will They Set Price Ceiling?" The National Law Journal, February 16, 1998
- Co-author, "Facts are Stubborn (and Dangerous) Things: A Closer Look at Broussard v. Meineke Discount Muffler Shops, Inc.," American Bar Association's Franchise Law Journal, Winter 1998
- "Franchising After Meineke," Leader's Franchising Business & Law Alert, September 1997
- "Reducing the Risk of Antitrust Violation," Physician News Digest, May, 1995
Selected Speaking Engagements
- "Collaborating With Your Competitors to Combat Counterfeiting," International Anti-Counterfeiting Coalition Fall Conference, Denver, CO, October 2015
- Co-presenter, "Early Case Assessment", October 30, 2014
- "What Your Lawyers Wish You Knew About Litigation," Legal Marketing Professionals Association, October 2012
- "Rogue Websites — How to Fight Them," Webinar, Sporting Goods Manufacturer's Association, January 19, 2012
- "Recent Supreme Court Decisions Impacting Corporate Liability Issues," Association of Corporate Counsel, Delaware Valley Chapter, April 2009
- "Fundamentals of Antitrust Law," Pennsylvania Bar Institute, 2004
- Moderated panel on "The Retail Front: Keeping It Safe and Planning For Incidents," U.S. Chamber of Commerce conference "Future of Food: Food Safety and Supply into the 21st Century," Washington, D.C., November 15, 1999
- "Unfair Trade Practices Acts and State Antitrust Laws: Treble Damage Recoveries Under State Law," ABA Section of Antitrust Law, Atlanta, GA, August 10, 1999
- "Antitrust Class Actions: The Remedy of Choice for Resolving Systemwide Disputes Among Franchisees and Dealers," ABA Section of Antitrust Law's Annual Spring Meeting, Washington, D.C., April 15, 1999
- "State Unfair Trade and Consumer Protection Laws," American Bar Association Antitrust Law Section Spring Meeting, Washington, D.C., April 1, 1998
- "Consumer Class Actions Under State Consumer Protection Laws," Advanced Consumer Protection Law: Mastering the Challenge, American Bar Association's Section of Antitrust Law, Scottsdale, Arizona, February 27, 1998
- Keynote Speaker, Annual Meeting of the American Association of Franchisees & Dealers, Chicago, Illinois, June 25-27, 1997
- "State Unfair Practices Acts and other Business Torts," Pricing and Marketing Arrangements for Distribution and Franchising: Legal Issues and Problem Solving Under the Antitrust Laws, co-sponsored by the American Bar Association Antitrust Law Section and the Corporate Counsel Center of Northwestern University School of Law, May 1995
- Panel Member, "Hospitals at the Crossroads," Pennsylvania Association of Hospital Auxiliaries, May, 1995
- "Antitrust Risks Arising Out of Negotiation With Third Party Payers," Dauphin County Medical Society, November, 1993