Denise Plunkett is a trial lawyer with more than 25 years of experience handling an impressive array of high-profile antitrust cases and other high-stakes commercial disputes. Denise has served as lead trial counsel in well over a dozen jury trials of varying types. She has successfully represented MasterCard in some of its most significant antitrust cases, including challenges to its currency conversion and chargeback practices, and recently won a federal jury trial concerning the termination of a Mastercard membership. Her diverse litigation and counseling practice includes trials and appearances in numerous federal and state courts, international and AAA arbitrations, advocacy before the FTC Bureau of Competition, and appellate and other post-judgment representations.
Denise has significant experience and longstanding relationships with leading companies in the payments, financial services, and pharmaceutical industries. She is a trusted advisor to her clients, aggressively representing them in litigation, providing antitrust and regulatory guidance, and helping them to navigate issues related to legal and conduct risk.
Denise Co-Chairs the New York State Bar Association’s Heath Care and Pharmaceuticals Committee and previously served as Co-Chair of the Unilateral Conduct Committee. She is also a member of the New York City Bar Antitrust Committee. She is recognized for her antitrust work by The Legal 500, and regularly speaks and writes in a wide variety of areas, including antitrust developments, litigation practice, gender diversity in the profession, and ethics.
Professional Activities
- Co-Chair, New York State Bar Association Antitrust Section’s Unilateral Conduct Committee (2019-present)
- Member, New York City Bar Antitrust Committee (2014-present)
Experience
Payments
- International Cards Co. v. Mastercard International Incorporated (S.D.N.Y. 2017) (2d 2018). Successfully represented Mastercard in jury trial of claims and counterclaims arising out of Mastercard’s termination of plaintiff’s Mastercard membership. Successfully defended Second Circuit appeal of judgment in favor of Mastercard. Plaintiff sought over $90 million in damages.
- In re Currency Conversion Fee Antitrust Litigation, 265 F. Supp. 2d 385 (S.D.N.Y. 2003); In re Currency Conversion Fee Antitrust Litigation, 361 F. Supp. 2d 237 (S.D.N.Y. 2005). Obtained Rule 12(b)(6) dismissal of Truth-in-Lending Act claim against payment card network; also obtained district court decision enforcing arbitration provisions in cardholder agreements as to payment card network on grounds of equitable estoppel.
- Schwartz v. Visa Int’l Service Assoc., et al., 2005 WL 237015 (Cal. App. 1 Dist.) (Sept. 28, 2005). Represented MasterCard in six month bench trial under California’s Unfair Competition Law (§ 17200) concerning payment card currency conversion practices. Prevailed on appeal.
- Paycom Billing Services, Inc. v. MasterCard International, Inc., 467 F.3d 283 (2d Cir. October 27, 2006). Successfully moved to dismiss antitrust claims relating to payment card “chargebacks;” Second Circuit affirmed district court decision dismissing the case.
- PSW, Inc. v. Visa USA, Inc., No. C.A. 04-347T, 2006 WL 519670 (D.R.I. Feb. 28, 2006). Obtained Rule 12(b)(6) dismissal of antitrust claims relating to, inter alia, chargeback rules and policies.
- Garner v. Capitol One Bank and MasterCard International, Inc., No. CV-01-BU-0712-S (N.D. Ala. 2001). Obtained Rule 12(b)(6) dismissal of Truth-in-Lending Act and civil conspiracy claims against payment card network relating to alleged unsolicited issuance of cards.
Chemicals
- In re Liquid Aluminum Sulfate Antitrust Litig. (D.N.J). Representing multiple municipalities and water utilities as plaintiffs in actions claiming that defendants engaged in anticompetitive conduct, including price fixing and bid rigging, in connection with the sale of water treatment chemicals.
Pharmaceuticals
- Eisai v. sanofi-aventis US LLC, et al., 821 F. 3d 394 (3d Cir. 2016). Represented on appeal plaintiff Eisai Inc. in pharmaceutical antitrust case challenging alleged monopolistic conduct in the sale of anticoagulant after District Court granted summary judgment against its claims.
- Sucampo Pharmaceuticals, Inc. v. Takeda (ICC 2012). Co-lead counsel for U.S. pharmaceutical company and related entities in an International Chamber of Commerce arbitration involving claims for, inter alia, breach of contract based on licensee’s alleged failures to use “best efforts” in commercializing claimants’ FDA-approved product.
Financial Services
- Zandman v. Citibank, N.A., et al. (S.D.N.Y. 2018). Obtained counterclaim judgment, including attorney’s fees award, in AAA arbitration after prevailing on motion to compel arbitration in Fair Credit Billing Act case.
- Castle Placement v. Freedom Mortgage, et al. (New York Supreme 2018). Defeated breach of contract and common law claims against mortgage business in “finder’s fee” dispute following acquisition.
- Van Deventer, et al. v. CS SCF Management, Ltd., et al. (New York Supreme 2010). Represented Credit Suisse entities in a case asserting claims and counterclaims arising out of the termination of investment funds and related agreements. Led negotiation of favorable post-trial settlement.
- Steele v. WMC Mortgage (N.D. Cal. 2008). Successfully moved for order requiring joinder of third-party mortgage brokers in Equal Credit Opportunity Act and Fair Housing Act putative class action against mortgage lenders alleging discriminatory pricing policies.
- Klutho v. GE Money Bank (E.D. Mo. 2006). Successfully moved to dismiss claim that a prescreened offer for an open-end line was not a “firm offer of credit” under the Fair Credit Reporting Act.
- Successfully defended dozens of consumer class and individual actions asserting claims under the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and Fair Credit Billing Act against major payment card issuers and third-party debt collection agencies.
* Includes matters handled prior to joining Axinn
Honors
- The Legal 500, Antitrust - Civil Litigation/Class Actions: Defense (2022 – 2023); Civil Litigation/Class Action: Plaintiff (2020)
- Super Lawyers, Top Women Attorneys (2021– 2022)
Thought Leadership
- US Competition Law Issues for FinTechs, Financier Worldwide, June 2022
- Section 2 of the Sherman Act, Antitrust Advisor
- The Federal Antitrust Laws, Corporate Legal Developments, 2020
- N.Y. Decision May Hinder Early Class Action Settlements, Legal Alert, January 18, 2018
- California Federal Court Rules ‘No Surcharge’ Law Unconstitutional, Legal Alert, April 6, 2015
- N.Y. DFS Becomes First State Regulator to Bring Dodd-Frank UDAAP Action, Legal Alert, April 24, 2014
- Federal Court Upholds Auto Lease Early Termination Formula, Consumer Financial Services Law Report, November 21, 2002
Events
- The Rising Right to Repair Movement: Magnuson-Moss and More
- ACI 7th Annual Women Leaders in Financial Services Law Summit
- CompLaw Competition Law in the Financial Services Sector Conference
- “Deposition Fundamentals,” Practicing Law Institute, Taking and Defending Depositions, New York, NY (Annual Seminar, 2009 - 2020)
- “Winning the Rare Section 2 Trial,” New York State Bar Association Antitrust Section Meeting, Unilateral Conduct Committee (January 2020)
- Webinar: “New Enforcement Actions by the Old Sheriff in Town: Recent Developments at the Federal Trade Commission” (December 2018)
- “Hot Topics in NY Antitrust: Class Certification and Fraud-Based Antitrust Investigations,” New York City Bar’s Antitrust & Trade Regulation Committee (April 2018)
- Webinar: “Effective Strategies for Dealing With Debt Settlement Companies” (October 2017)
- “Common Ethical Issues Faced By In-House Counsel,” Ballard Spahr Antitrust CLE (October 2017)
- American Bar Association's 61st Annual Section of Antitrust Law Spring Meeting (February 2013)
- “Fair Lending: Managing and Defending Against Claims of Discriminatory Lending and Assessing the Status of ‘Disparate Impact’ in Lending Litigation and Enforcement,” (Sept. 2012)
- “Certain Defenses in Recent Mortgage Lending Cases,” Law Seminars International: Subprime Lending Crisis Conference, New York, NY (March 2008)
- “Arbitration Agreements and Class Actions,” West Legalworks Class Actions Conference, New York, NY (November 2006)
- “Payment Card Litigation Update,” 20th Annual Payment Card Institute, Arlington, VA (May 2006)
- “Consumer Protection Litigation Update,” WG&M Consumer Financial Services High Stakes Symposium, New York, NY (May 2007); San Francisco, CA (September 2006); Dallas, TX (May 2006); New York, NY (2005)
- “Arbitration Agreements and Unconscionability Defenses,” Thomson LegalWorks Class Action Conference, New York, NY (December 2005)
Education
- JD, cum laude – Boston University School of Law (1994)
- BA – University of Maryland (1991)
Admissions
- New York
- Massachusetts
- US District Courts Southern and Eastern Districts of New York
- US District Court District of Massachusetts
- US Court of Appeals for the First Circuit
- US Court of Appeals for the Second Circuit
- US Court of Appeals for the Third Circuit