Heather M. Burke

Outside of her trial work, Heather represents clients in connection with investigations before governmental regulatory bodies, including the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC), and counsels clients on antitrust regulatory hurdles in their mergers and acquisitions. Her extensive experience in negotiating with regulatory agencies ensures that clients are well-positioned to avoid costly legal challenges while achieving their business objectives. 

Heather is deeply experienced in the health care, pharmaceutical, insurance, and technology sectors.

Recognition & Service

Client feedback elicited by The Legal 500 includes: “Heather Burke is fantastic. She is incredibly thorough and knowledgeable. Always available and always giving excellent measured advice.”

Heather is dedicated to collaborating with clients and colleagues. She invests the time to foster community and works to make those around her successful. Heather co-chairs the NextGen Committee for ChIPs (Chiefs in Intellectual Property), a 501(c)(3) organization with more than 3,000 members, which advances and connects women in technology, law and policy.

Antitrust & Competition Cases

• Defended a biopharma company in a bet-the-company class action lawsuit relating to its HIV product portfolio, where the plaintiffs alleged that innovative joint ventures, lawful settlements with generics and the procompetitive development of life-saving products amounted to $14 billion in damages. Heather vigorously defended the company’s history of innovative collaboration and competition in HIV medicines, secured summary judgment on behalf of the client for the plaintiffs’ product-hopping claims and joint venture / collaboration claims (eliminating over $10 billion in damages), and set the stage for a jury finding of no liability on the “pay-for-delay” claims.
• Secured a jury verdict in favor of one of the “Big Three” credit-reporting agencies in an action in the District of Minnesota brought by a leading provider of consumer credit-risk scoring services against all of the Big Three, alleging trademark infringement and unfair competition in the sale of credit-scoring services. The jury also found in the client’s favor on its counterclaim that the plaintiff committed fraud on the U.S. Patent and Trademark Office in procuring registration of the trademark in the suit.
• As one of the lead trial counsels in the largest merger in the health insurance industry, where the Department of Justice alleged violations of Section 7 of the Clayton Act, Heather managed more than 100 depositions in four weeks, coordinated all discovery and pre-trial work with the DOJ, led team efforts on defending against the government’s novel claims of monopsony, and conducted direct and cross-examinations of trial witnesses. Heather also co-led the team’s expedited appeals to the D.C. Circuit and the U.S. Supreme Court. 
• Successfully defended a Japanese electronics company in multiple civil cases involving violations of Section 1 of the Sherman Act through price-fixing of LCD panels. In the first six-week trial in the Northern District of California against direct purchasers, the jury found no recoverable damages against the client after the plaintiffs alleged class-wide damages of nearly $3 billion. In the second six-week trial against an electronics retailer where the plaintiff alleged damages of more than $2 billion, the jury unanimously found no liability against the client.
• Successfully defended a higher education technology platform against Section 2 monopolization claims brought in the District of Oregon by a rival. Heather was brought in to defend after the client’s rival successfully appealed a prior ruling to the Ninth Circuit. Following a new motion to transfer and new motion to dismiss, which argued no proof of conspiracy, no monopoly power and rapid entry in the market, the case was settled on favorable terms.
• Successfully defended a pharmaceutical company against claims of monopolization based on alleged “product-hopping” in connection with the sale of its branded tetracycline-class antimicrobial drug. The Third Circuit upheld summary judgment and dismissed claims against the branded drug, rejecting the claims of product-hopping.

Commercial Litigation & Class Actions

• As one of the lead trial counsels and after a two-week bench trial in the Delaware Court of Chancery, Heather secured victory for a Blue Cross Blue Shield insurer in its case against another leading health insurer for breach of their merger agreement, which relieved the client from paying the $1.85 billion reverse-termination fee.
• Successfully defeated class certification on behalf of a top battery producer in In re Lithium Ion Batteries Antitrust Litigation. The court refused to certify direct and indirect classes, a rare occurrence in price-fixing cases.
• Defended a pharmaceutical company in two class actions concerning the sale of its drug used in the treatment of the symptoms of Alzheimer’s.
• Successfully defended a leading pharmaceutical company in preliminary injunction proceedings challenging FDA approval of a complex drug.
• Defended a technology company against allegations of trade secret and copyright violations. 
• Defended an equipment and services provider for utility industries in a construction litigation regarding the refurbishment of hydro turbines in Michigan. 

Competition Counseling

Over the course of her career, Heather has provided strategic legal counsel to her clients, helping them navigate the complexities of competition law and ensuring compliance with regulations designed to promote fair market practices. Heather works closely with clients to assess the competitive effects of business practices and transactions, offering actionable advice on how to minimize legal risk while remaining competitive in the marketplace. 

Heather regularly provides critical counsel on antitrust risks associated with clients working with their competitors either through joint ventures and collaborations, or by participating in trade associations and standard-setting organizations. Whether advising on structure, competitive effects or regulatory approvals, Heather is committed to helping businesses leverage the benefits of those collaborations while mitigating antitrust exposure.

Pricing Strategies

In addition to her work on traditional antitrust issues such as horizontal and vertical agreements, monopolization, and merger control, Heather has significant experience in advising clients on the antitrust implications of their pricing strategies, including practices and policies that may raise concerns under antitrust law, such as price discrimination, predatory pricing, resale price maintenance and tying. She helps clients structure their pricing practices to avoid anticompetitive behavior, to ensure that their business decisions are both compliant and competitive.

Antitrust Compliance Programs

Heather is also particularly adept at advising clients on how to design and implement effective internal antitrust compliance programs. She works closely with organizations to ensure their practices are aligned with the regulatory requirements of both federal agencies, such as the DOJ and the FTC, and state authorities. Her hands-on approach helps businesses minimize the risk of antitrust violations while fostering a culture of compliance throughout the organization.

Civil Investigative Demands (CIDs)

Should any anticompetitive conduct ever come to the attention of government regulators, Heather provides guidance to clients on how to best respond to civil investigative demands issued by the DOJ and state attorneys general (AGs) when a client is either the target of or a third-party to an investigation. She works with clients to prepare thorough, strategic responses to CIDs, protecting clients’ interests while still cooperating with investigators.

Personal Interests

In her free time, Heather enjoys spending time with her ten-year old son, her partner and their five pets. Prior to having a child and pets, Heather enjoyed things like reading, crafting, hiking and quiet time. She looks forward to enjoying those things again in eight years.