Kay Lynn Brumbaugh
Kay Lynn, Chair of the firm's Antitrust Practice Group, represents clients in the areas of antitrust litigation and counseling, class actions, and other complex commercial and business litigation matters. She also represents clients in connection with investigations by the Federal Trade Commission, the Department of Justice Antitrust Division and various states’ attorneys general. Her antitrust representation encompasses assisting clients in obtaining antitrust clearance from federal and state authorities in connection with merger and acquisition transactions. Kay Lynn has provided representation for clients in many industries including energy, food and beverage, franchising and distribution, direct sales, consumer products, manufacturing, health care, insurance, internet and e-commerce, transportation and telecommunications.
Kay Lynn is a member of the leadership of the American Bar Association Antitrust Section, serving as Co-Chair of the Books and Treatises Committee. Kay Lynn was selected by Benchmark Litigation as one of the top 250 women in litigation in the country (2012-2016) and was profiled as a leading antitrust lawyer in Texas in Chambers USA, America's Leading Lawyers for Business (2007-2016). She has also been recognized as one of The Best Lawyers in America for Antitrust Law (2010-2017).
Representative Antitrust Litigation & Government Investigations
- Co-lead counsel for Enterprise Products Partners L.P. in post-closing investigation by the Federal Trade Commission of Enterprise’s $6 billion merger with Oiltanking Partners. Investigation closed with no action taken.
- Represented American Trailer Works in the Department of Justice review of its acquisition by Bain Capital Private Equity and subsequent merger with Big Tex Trailers. Investigation closed with no action taken.
- Represented ArcLight Energy Partners in the Federal Trade Commission’s investigation of ArcLight’s acquisition of the Gulf Oil business from Cumberland Farms. Reached negotiated consent decree.
- Represented SMH Theatres, Inc. (StarPlex Cinemas) in the Department of Justice investigation of its sale to AMC Entertainment Holdings. Reached negotiated consent decree.
- Represented Regency Energy Partners LP in merger investigation by the Federal Trade Commission of Regency's $1.3 billion acquisition of the midstream business of Eagle Rock Energy Partners. Investigation closed with no action taken.
- Represented a defendant in In re Online Travel Company (OTC) Hotel Booking Antitrust Litigation, a series of consolidated putative class actions in the travel industry. Motion to dismiss granted.
- Defended Hilcorp Alaska LLC in investigations by the Federal Trade Commission and the State of Alaska in connection with the acquisition of Marathon Oil's assets in the Cook Inlet of Alaska. FTC investigation closed with no action taken; State of Alaska investigation resolved with negotiated consent decree.
- Currently representing a dairy processor defendant in In re Southeastern Milk Antitrust Litigation, a series of coordinated putative class actions alleging conspiracies to reduce prices paid to dairy farmers for raw milk and to raise prices charged to purchasers of processed milk.
- Represented individual executive in Packaged Ice industry investigation by the Antitrust Division of the Department of Justice. Investigation was closed in 2010 with no action taken.
- Represented a key third party witness resulting in FTC successfully prevailing in its Section 5 horizontal price-fixing claims against respondents and obtaining a consent order prohibiting, among other things, collective negotiations with payors. [In the Matter of North Texas Specialty Physicians, FTC Docket No. 9312 (2005)]
- Defeated class certification in price-fixing conspiracy case; order denying class certification affirmed by the Fifth Circuit Court of Appeals. Briefed and argued case at Fifth Circuit. [Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 100 Fed. Appx. 296 (5th Cir. 2004)].
- Dismissal and summary judgment affirmed by the Fifth Circuit Court of Appeals in case alleging exclusive dealing, monopolization and state law tort claims. Primary responsibility for handling case at district court level; briefed and argued case at Fifth Circuit. [Apani Southwest, Inc. v. Coca-Cola Enterprises Inc., 300 F.3d 620 (5th Cir. 2002)].
- Defended Dallas physician organization in price-fixing investigation by the Federal Trade Commission. Case successfully resolved with consent decree and no fines or damages paid by client. [In the Matter of System Health Providers, Inc. and Genesis Physicians Group, Inc., FTC File No. 011 0196, FTC Docket No. C-4064 (2002)].
Recent Antitrust Representation in M&A Transactions
Kay Lynn has recently advised clients on HSR and antitrust matters in connection with the following merger & acquisition transactions:
- E&P clients in multiple acquisitions and divestitures of oil and natural gas assets.
- Solid waste company in its acquisition of competitor in Florida.
- Midstream MLP in its $1.5 billion contribution of interests in gas gathering company.
- Leading prepaid card provider in its acquisition of corporate incentives and promotions company.
- Chemical company in its $175 million acquisition of PVC pipe business
- Solid waste company in its sale to infrastructure investment fund.
- Drone manufacturer in its sale to large defense manufacturer. Transaction recognized as the Aerospace and Defense "Deal of the Year-2012."
- LNG company in its sale of over $1 billion in non-corporate interests to leading investment firm.
- Independent oil refiner in connection with its $7 billion merger of equals with another leading refiner.
- Large Canadian midstream company in its $3.1 billion merger with Canadian pipeline operator. Deal was awarded the 2012 Energy Industry Award by Canadian Dealmakers.
- Finnish refining and marketing company in its sale of iso-octane assets to Canadian midstream company.
- Large midstream joint venture in its $1.925 billion acquisition of the membership interests of a natural gas liquids storage, processing and transportation business.
- Metal service center company in its $415 million acquisition by the industry leader.
- Global engineering, construction and services company in its $280 million acquisition of an engineering, procurement and construction services firm.
Kay Lynn also provides ongoing antitrust counseling and compliance training for firm clients on a wide variety of issues, including pricing, joint ventures, exclusive dealing arrangements, bidding and contract issues.
Additional Representative Matters
- Member of defense team that obtained jury verdict in the trial of horizontal price fixing claims brought by a class with more than 52,000 class members [Tucker v. Interstate Brands Corporation, District Court, Johnson County, Texas, 1998].
- Member of team defending DFW International Airport Board in antitrust lawsuit involving the repeal of the Wright Amendment. Obtained motion to dismiss in client’s favor. [Love Terminal Partners, L.P. v. The City of Dallas, 527 F. Supp. 2d 538 (N.D. Tex. 2008)].
- Defended soft drink distributor in antitrust trial and on appeal in which competitors alleged state antitrust claims relating to promotional and advertising agreements. Won case on appeal before the Texas Supreme Court in October 2006. [Coca-Cola Co. v. Harmar Bottling Co., 111 S.W.3d 287 (Tex. 2006)].
- Arbitration hearing defense in 2006 for major automobile manufacturer in a commercial lease and property condition dispute. Plaintiff sought termination of long-term lease and millions in damages. Arbitration panel denied termination request and awarded no monetary damages.
- Represented major health insurer in investigation by the Federal Trade Commission related to alleged price fixing by a physician organization.
- Represented direct marketing company in investigation by Minnesota Attorney General. No action taken against client.
- Represented national hotel and real estate franchisors in multiple breach of contract and trademark lawsuits against franchisees. Obtained injunctions and/or favorable settlements.
- Advised a well servicing company in its $180 million acquisition of a group of companies providing complementary services.
- Advised a major drilling company in the $510 million sale of its land drilling business.
- Represented a refiner in the sale of its Tulsa refinery to another refiner.
- Advised a large independent refiner in its $1.2 billion acquisition of another refiner.
- Represented a natural gas storage company in its $750 million sale to another natural gas storage company.
- Represented a midstream natural gas services provider in its acquisition of interests in a natural gas pipeline.
- Higher HSR Reporting Thresholds Effective February 27, 2017 (January 26, 2017)
- State and Local Governments Grapple with Challenges of New Limits on Antitrust State Action Immunity (December 1, 2016)
- FTC and DOJ Release Guidance on How Antitrust Law Applies to Employee Hiring and Compensation (October 26, 2016)
- FTC Releases Report on Patent Assertion Entities, Calls for Reforms to Reduce Nuisance Patent Lawsuits (October 11, 2016)
- Higher HSR Reporting Thresholds Effective February 25, 2016 (January 26, 2016)
- ABA Forum on Franchising, Kay Lynn co-authored the Antitrust Law chapter of Fundamentals of Franchising, Fourth Edition (2015)
- Higher HSR Reporting Thresholds Effective February 20, 2015 (January 22, 2015)
- HSR Basics for Transactional Lawyers, State Bar of Texas Corporate Counsel Section Newsletter (Summer 2014)
- Antitrust Basics for Transactional Lawyers, (pdf) Headnotes, a Publication of the Dallas Bar Association (June 2014)
- Higher HSR Reporting Threshold Requirements Effective February 24, 2014 (January 24, 2014)
- Higher HSR Threshold Requirements Effective February 11, 2013 (January 11, 2013)
- Four Practical Tips for Protecting the Attorney-Client Privilege, Straightline (May 2012)
- ABA Section of Antitrust Law, Kay Lynn co-authored the Energy Markets chapter of Market Definition in Antitrust Theory and Case Studies (2012)
- Higher HSR Threshold Requirements Effective February 27, 2012 (January 27, 2012)
- Warning to Executives: Reinvestment of Dividends in your 401(k) and Vesting of Stock Awards May Trigger HSR Filing Requirements (January 24, 2012)
- Revised HSR Form Adds Significant Reporting Requirements (July 26, 2011)
- 2011 Hart-Scott-Rodino Threshold Requirements (February 21, 2011)
- Public Statements about Pricing Changes May Create Antitrust Litigation Risk (October 20, 2010)
- "Retrospective Review of Petroleum Industry Mergers" (with Jerry Beane), Competition Law360 (November 17, 2008).
- ABA Section of Antitrust Law, Antitrust Law Developments 6th Ed. (2007). Kay Lynn co-authored the Natural Gas section of the Regulated Industries chapter.
- ABA Section of Antitrust Law, Antitrust Compliance: Perspectives and Resources for Corporate Counselors (2005). Kay Lynn co-authored an essay.
- Inside the Minds: The Art & Science of Antitrust Law: Leading Lawyers on Competition, Litigation and Globalization (Aspatore, Inc. Oct. 2003). Kay Lynn authored a chapter.
- “HSR Exemptions: Running Out of Gas?” presented to ABA Section of Antitrust Law, 2017 Spring Meeting (March 31, 2017)
- Andrews Kurth Kenyon CLE | Antitrust Trends in the Technology Industry (January 26, 2017)
- "Fundamentals 201: Antitrust Essentials for Franchise Lawyers," co-presented at the American Bar Association, Forum on Franchising (October 2012)
- "Recent Developments in Resale Price Maintenance," co-presented at the Dallas Bar Association Antitrust and Trade Regulation Section (May 2009)
- "What You Need to Know About Antitrust to Keep Your Company Out of Trouble," presented at Andrews Kurth's Executive Women's Retreat (October 2008)
- "Controlling Franchisee Pricing after Leegin," co-presented at the American Bar Association, Forum on Franchising and presented at the Dallas Bar Association Franchise & Distribution Section (October 2008)
- “Re-Thinking Litigation-Related Boilerplate Provisions: Do They Avoid or Encourage Litigation?” presented to the Andrews Kurth Business Transactions Section (September 2007)
- "Antitrust Issues in Franchising," Fundamentals of Franchising, American Bar Association, Forum on Franchising in conjunction with the Dallas Bar Association (March 2007)
- "A Texas Antitrust Case from Trial through Appeal to the Texas Supreme Court" (co-presenter), Speech to the Texas State Bar Antitrust & Business Litigation Section at the State Bar of Texas Annual Meeting (June 2005)
- Lawyer of the Year in Antitrust Litigation, Dallas/Fort Worth, Best Lawyers (2017)
- Recognized in Who’s Who Legal (2016)
- Profiled in Benchmark Litigation's "Top 250 Women in Litigation" (2012-2016)
- Recognized as a "Local Litigation Star" in Texas by Benchmark Litigation (2012-2017)
- Featured in Global Competition Review's "GCR 100" (2014-2017)
- Recognized in "Who's Who in Energy" in the field of Energy Antitrust in a joint publication of the Dallas Business Journal, the Houston Business Journal and the Pittsburgh Business Times (November 11, 2011)
- The Best Lawyers in America, Antitrust Law (2010-2017)
- The Best Lawyers in America, Antitrust Litigation (2014-2017)
- The Best Lawyers in America, Commercial Litigation (2016-2017)
- Profiled as one of the leading Antitrust (2007-2016) lawyers in Texas, Chambers & Partners USA: America's Leading Business Lawyers
- Texas Super Lawyer, Texas Monthly (2003-2016)
- Top 15 Business Defense Lawyers in Dallas, Dallas Business Journal (2009)
- Best Lawyers Under 40 in Dallas, D Magazine (2002-2004)
- Carthage High School Distinguished Alumni Hall of Fame (2012)
- Antitrust Counseling
- Antitrust Litigation
- Class Action Litigation
- Commercial Litigation
- Litigation and Dispute Resolution
- JD, 1992, University of Virginia School of Law
- Judicial Clerkship with the Honorable Sam B. Hall, Jr., US District Judge for the Eastern District of Texas, Marshall and Texarkana Divisions (1992-1993)
- BBA, 1989, with high honors, The University of Texas
- Texas 1992
- District of Columbia 2013
- US Court of Appeals for the Fifth and Sixth Circuits
- US District Court for the Northern District of Texas
- US District Court for the Southern District of Texas
- US District Court for the Eastern District of Texas
- US District Court for the District of Colorado
- Dallas Bar Association, Antitrust Section (Chair, 2010; Vice-Chair, 2009; Council Member, 2007-2010)
- State Bar of Texas, Antitrust and Business Litigation Section (Council Member, 2002-2005)
- American Bar Association, Antitrust Section
- Co-Chair, Books & Treatises Committee (2014-present)
- The Partnership of Community Partners of Dallas
- Board of Directors member (2012-2014)
- Genesis Women's Alliance
- Board of Directors member (2011)
- Friends of WRR, the City of Dallas-owned classical music radio station
- Board of Directors member (2007-2013) and Board Secretary (2009)
- Junior Associates of the Dallas Museum of Art and Associates Forum of the Dallas Museum of Art
- An Affair of the Art, Underwriting Co-Chair (2006-2007) and Underwriting Committee (2005-2006)
- MENTTIUM mentee (2005-2006)
- United Way of Metropolitan Dallas, Tocqueville Society and Women's Leadership Council
- Advocacy Committee Member (2014-2016)
- 11/7/2016Andrews Kurth Kenyon Litigation Practice Recognized as Highly Recommended by 2017 Benchmark Litigation
- 9/6/201639 Andrews Kurth Lawyers Named in Texas Super Lawyers 2016
- 8/15/201653 Andrews Kurth Lawyers Named Best Lawyers in America 2017
- 5/27/2016Andrews Kurth Receives High Marks from 2016 Chambers & Partners USA Guide
- 11/9/2015Andrews Kurth Litigation Practice Recognized as Highly Recommended by 2016 Benchmark Litigation