Tom Gilbertsen is a trial and appellate attorney solving competition (antitrust, unfair trade, intellectual property) and consumer protection (privacy, false advertising, and deceptive practices) challenges for leading financial institutions and consumer product companies in state and federal courts across the country.  Tom also represents clients pursuing internal investigations, and vigorously defends clients responding to enforcement actions by the Federal Trade Commission, United States Department of Justice, International Trade Commission, and various state attorneys general.

Tom’s recent matters present cutting-edge issues under FIRREA, the Sherman Act, state and federal privacy statutes, civil RICO, Electronics Fund Transfer Act, Fair Debt Collection Practices Act, state D&O liability statutes, as well as state consumer protection and trade secret laws, whistleblower statutes, and the law governing professional responsibility.

Tom works with clients in a range of businesses including community and national banking, payment systems, advertising and web analytics, consumer goods and services, telemarketing, advertising/publishing, agribusiness, and private equity.  Many of Tom’s recent matters also arose in the context of intra-corporate disputes, restructuring, and financially-distressed entities.

Prior to joining Pierce Atwood, Tom was a litigation partner at Howrey LLP and Venable LLP, both in Washington, DC.

 

    Honors & Distinctions

    • Washington DC "Super Lawyer" for Class Actions and Mass Torts (2013-present)
    • Benjamin R. Civiletti Pro Bono Lawyer of the Year (2014)
    • Legal 500, Marketing & Advertising (2011 edition)

    Professional Activities

    American Bar Association: Antitrust Section (Consumer Protection, Privacy, Private Advertising, and Litigation Committees); Business Law Section

    District of Columbia Court of Appeals Board on Professional Responsibility (hearing committee)

    Civic Activities

    Tom has successfully prosecuted a number of pro bono class actions on behalf of homeless and disadvantaged citizens pursuing institutional reform and vindicating constitutional rights. Tom also regularly represents students and their parents seeking free appropriate public education under the federal Individuals with Disabilities Education Act. 

    Tom is active in Cornell Law School Alumni Association activities and is a past member of its Board of Directors.

    Practice Areas

    Representative Experience

    • Represented trade association defending MDL class action claims of conspiracy to restrict output of plasma protein derivative therapies.  (N.D. Ill.)
    • Represented leading defense contractor in confidential DOD/DOJ Antitrust Division investigation – investigation closed with no further action.
    • Represented leading international tire manufacturer in trial and favorable settlement of antitrust and related intellectual property and Lanham Act claims challenging restraints of trade in the domestic truck tire retreading market.  (S.D. Iowa)
    • Represented outpatient imaging facility challenging integrated health care system's exclusive dealing and alleged group boycott.  (D. Md., 4th Circuit)

    Representative Experience

    Intellectual Property, Lanham Act, Trademark, and False Advertising:

    • Defeated Federal Trade Commission contempt proceeding challenging vitamin and dietary supplement marketer’s efficacy and ingredient claims, upheld on appeal.  (S.D. Fla., 5th Circuit)
    • Defeated competitor's TRO and preliminary injunction motion seeking to disrupt leading restaurant chain’s new product launch by alleging violations of federal and state trademark and anti-dilution statutes.  (E.D. Mo.)
    • Successful resolution of Lanham Act claims challenging competitors' labeling of alcohol beverage products.  (S.D.N.Y.)
    • Trial verdict and judgment upheld on appeal in Lanham Act grey marketing claims against unauthorized remanufacture and distribution of client's products.  (W.D. Tex.)
    • Successful resolution of Lanham Act false advertising claims in the domestic truck tire market.  (S.D. Iowa)

     

    Representative Experience

    Consumer Protection Enforcement Proceedings and Class Actions:

    • Dismissal with prejudice of putative class action challenging leading trade association’s website data collection and use practices.  (D. D.C.) 
    • Dismissal with prejudice for national bank of class action alleging unlawful data pass, breach of privacy policy and RICO violations in connection with telemarketing, sale and administration of insurance products.  Upheld on appeal.  (S.D. Tex., 5th Circuit)
    • Successful resolution of DOJ Consumer Division FIRREA complaint challenging community bank’s relationship with certain third party payment processor and related online merchants.  (E.D.N.C.) 
    • Defeated certification in putative class action challenging magazine publisher's subscription renewal and cancellation policies.  Upheld on appeal in landmark ruling limiting standing of former customers to sue for injunctive relief.  (D.N.J., 3rd Circuit)
    • Dismissal of putative class action alleging client violated Telephone Consumer Protection Act by using auto-dialer to contact defaulted student loan borrowers.  (S.D. Cal.)
    • Summary judgment for defendant call center in putative class action asserting multistate privacy claims. Summary judgment upheld in part on appeal, subsequent certification of FDCPA class reversed by Ninth Circuit.  (S.D. Cal., 9th Circuit)
    • Represented wireless carrier in landmark putative class action case establishing that private litigants suing under the District of Columbia Consumer Protection Procedures Act must plead injury-in-fact standing.  (D.C.)
    • Defeated class certification in multistate consumer protection litigation challenging sporting goods retailer's pricing policies and advertisements.  (W.D. Ky.)
    • Defended invasion of privacy claims asserted by putative class of Internet service subscribers who participated in on-line behavioral advertising program.  (N.D. Cal.)
    • Consolidated over 30 cases challenging wireless carriers' FCC program cost recovery fee; All Writs Act injunction enjoining several competing state cases and nationwide class settlement approved by MDL court.  Upheld on appeal.  (W.D. Mo., 8th Circuit)
    • Denial of class certification in action challenging an internet service provider's rebate fulfillment practices.  Upheld on appeal.  (Fla.)  
    • Dismissal of putative class action challenging internet service provider's pricing advertisements and practices.  Upheld on appeal.  (Cal.Sup.Ct., Cal.App.).

    Intra-Corporate Disputes:

    • Summary judgment upheld on appeal for former directors of North Carolina community bank defending FDIC receivership claims after seizure and closure of bank in 2009. (E.D.N.C., Fourth Circuit)  Successful resolution of FDIC receivership claims against former officers of South Carolina and Florida community banks closed during financial crisis of 2008-10.
    • Trial verdict on behalf of financial advisory pursuing restructuring fee under terms of engagement letter and services rendered in Chapter 11 of Chicago hotel.  (N.D. Ill. Bkr.)
    • Obtained TRO, preliminary injunction, final injunctive relief and money damages against former officer threatening to disclose client’s confidential information.  (Md.)

    Representative Experience

    Patent Infringement:

    • Successful prosecution of declaratory judgment and breach of patent license claims in connection with electron field emission display patents; enjoined attempted termination of patent license relating to carbon nanotube cathodes.  (N.D. Ill. and W.D. Tex.)
    • Successful inequitable conduct defense against patent claims challenging client's flat-panel display manufacturing process.  (E.D.Va.)
    • Favorably resolved claims asserting fiber optic method patents against a foreign infringer under Section 337 of the ITC Act.  (ITC)
    • Prosecuted alleged infringement of signal processing patents applicable to digital satellite television broadcast services under Section 337.  (ITC)