Kerry C. Klein

Practice

Kerry Klein has twenty-five years of experience representing clients in complex litigation in federal and state courts, and before regulatory bodies such as the California Public Utilities Commission (CPUC) and the Federal Energy Regulatory Commission (FERC). Kerry joined the firm in 2020 after spending fourteen years at Pacific Gas and Electric Company (PG&E), first as Senior Counsel for twelve years, then as Director of Regulatory Strategy for Gas Operations. Kerry also has extensive experience in civil and criminal antitrust and competition law, specializing in monopolization and dominant firm conduct matters, civil price-fixing claims, and criminal investigations into alleged no-poach agreements and bid-rigging.  Kerry has also handled a wide variety of other business disputes, including contractual disputes, fraud, unfair competition, RICO, and general commercial litigation.

Kerry began her career at Heller Ehrman LLP, where she practiced for seven years as an associate in the Antitrust and Trade Regulation practice group. At Heller Ehrman, Kerry served on the Hiring Committee.

Kerry serves on the Standing Committee of the California Lawyers Association’s Antitrust and Unfair Competition Law Section, and has edited numerous articles for the Competition Journal.  She previously served as a contributing author of the ABA Model Jury Instructions in Civil Antitrust Cases for claims of predatory pricing.

Representative Engagements

Litigation Experience and Representative Engagements

Since joining the firm, Kerry has represented clients in a wide range of civil and criminal antitrust engagements, as well as other business litigation cases. Representative engagements include:

• In re Diisocyanates Antitrust Litig.: Represented foreign and domestic defendants in case alleging a price-fixing conspiracy.
• Morning Star Packing Co. v. Los Gatos Tomato Prods.: Represented defendant tomato processor in successful appeal of order granting summary judgment in suit by competitor alleging Sherman Act and RICO claims.
• Antitrust Counseling: Counseled numerous clients on compliance with federal and state antitrust and unfair competition laws; provided antitrust training to companies.
• Criminal Engagements: Represented individuals in criminal antitrust investigations concerning alleged “no-poach” agreements and bid- rigging.
• Forman v. Covington et al.: Represented plaintiff in San Francisco Superior Court case alleging fraudulent transfer, interference with contract, and RICO claims.
• t’Bear v. Forman: Represented defendant and counter-claimant in federal court case alleging breach of fiduciary duties and breach of contract. Received order for attorneys’ fees from Northern District of California, which was affirmed on appeal to the Ninth Circuit.

At Heller Ehrman, Kerry represented clients in numerous antitrust matters involving claims of monopolization and tying. Representative engagements include:

• In re VisaCheck/MasterMoney Antitrust Litig.: Member of the trial team representing Visa U.S.A. Inc. in one of the largest antitrust class actions in history alleging tying and monopolization claims under the Sherman Act.
• Briggs & Stratton Corp. v. Kohler Co.: Represented Kohler in antitrust counterclaims in patent infringement case concerning internal combustion engines.
• Visa U.S.A. Inc. v. First Data Corp. et al: Represented Visa in pursuing antitrust counterclaims against payment card processor under Sections 1 and 2 of the Sherman Act.
• Conroy v. 3M Company: Represented 3M in a putative antitrust class action alleging claims under Sherman Act, Clayton Act and Cartwright Act.
• BP West Coast Products v. Visa U.S.A. Inc.: Represented defendant in antitrust case alleging monopolization and attempted monopolization in the payment card market.

Kerry represented PG&E in many high stakes rate cases at the CPUC and the FERC, often as lead counsel. She also gained extensive experience guiding the company through rulemakings and investigations (particularly with respect to penalties and remedies). For several years, Kerry served as the PG&E representative on the American Gas Association’s FERC Regulatory Committee. Representative engagements include:

• Gas Transmission and Storage Rate Case: Lead counsel in proceedings at the CPUC concerning rates and terms of service for gas transmission and storage, representing the company at hearings and ex parte meetings with CPUC commissioners and staff, examining witnesses, working with economic experts, leading a team of six attorneys drafting post-trial briefs, and negotiating multi-party settlements.
• Electric Transmission Rate Case: Lead attorney in annual proceedings at the FERC to establish electric transmission rates, resolved through multi-party settlements.
• PG&E v. United States: Litigated breach of contract case in federal court against the Western Area Power Administration concerning service under a PG&E tariff, resolved by settlement after cross-motions for summary judgment.
• Western Area Power Admin. et al. v. Federal Energy Regulatory Commission: Wrote appellate brief and argued appeal before the United States Court of Appeals for the D.C. Circuit on review of a FERC order concerning a PG&E tariff. 525 F.3d 40 (D.C. Cir. 2008)
• Order Instituting Investigation in Connection with San Bruno Explosion and Fire: Counseled PG&E on potential remedies, fines and penalties arising from three CPUC investigations in the wake of the San Bruno accident. Tracked and reported status of compliance with over 100 remedies ordered as a result of the investigations.
• Pipeline Safety Rulemaking: Counsel for company in CPUC rulemaking to adopt safety and reliability regulations for California gas pipelines; represented PG&E in hearings on resulting Pipeline Safety Enhancement Plan, a multi-year effort to enhance the safety of PG&E’s pipelines.
• Environmental Permitting: Represented PG&E in obtaining permit for 11-mile gas transmission pipeline in Sacramento, including meeting with representatives of the Bureau of Land Management and U.S. Fish and Wildlife Service, and drafting comments on Environmental Impact Report.
• Regulatory Counseling: Formulated company policy and drafted comments in response to proposed regulations promulgated by the FERC, the CPUC, and the Pipeline and Hazardous Materials Safety Administration. Counseled Gas and Electric Operations business partners on compliance with regulations.

Antitrust Experience and Representative Engagements

At Heller Ehrman, Kerry represented clients in numerous antitrust matters involving claims of monopolization and tying. Representative engagements include:

• In re VisaCheck/Mastermoney Antitrust Litig.: Member of the trial team representing Visa U.S.A. Inc. in one of the largest antitrust class actions in history alleging tying and monopolization claims under the Sherman Act.
• Briggs & Stratton Corp. v. Kohler Co.: Represented Kohler in antitrust counterclaims in patent infringement case concerning internal combustion engines.
• Visa U.S.A. Inc. v. First Data Corp. et al: Represented Visa in pursuing antitrust counterclaims against payment card processor under Sections 1 and 2 of the Sherman Act.
• Conroy v. 3M Company: Represented 3M in a putative antitrust class action alleging claims under Sherman Act, Clayton Act and Cartwright Act.
• BP West Coast Products v. Visa U.S.A. Inc.: Represented defendant in antitrust case alleging monopolization and attempted monopolization in the payment card market.

Regulatory Experience and Representative Engagements

Since joining the firm, Kerry has continued to represent regulated entities before the CPUC. Representative engagements include:

• Transportation Network Company (“TNC”) Rulemaking: Represent TNC concerning various aspects of CPUC proceeding governing ridesharing.
• Clean Miles Standard: Represent regulated entity in proceedings at the California Air Resources Board and CPUC to implement the California Clean Miles Standard Program.
• Ratemaking Proceedings: Represent utility in CPUC application to recover funding for replacement of Gas Advanced Metering Infrastructure.
• Regulatory Compliance: Counseled clients on compliance with regulatory requirements.

While at PG&E, Kerry represented the company in many high stakes rate cases at the CPUC and the FERC, often as lead counsel. She also gained extensive experience guiding the company through rulemakings and investigations (particularly with respect to penalties and remedies). For several years, Kerry served as the PG&E representative on the American Gas Association’s FERC Regulatory Committee. Representative engagements include:

• Gas Transmission and Storage Rate Case: Lead counsel in proceedings at the CPUC concerning rates and terms of service for gas transmission and storage, representing the company at hearings and ex parte meetings with CPUC commissioners and staff, examining witnesses, working with economic experts, leading a team of six attorneys drafting post-trial briefs, and negotiating multi-party settlements.
• Electric Transmission Rate Case: Lead attorney in annual proceedings at the FERC to establish electric transmission rates, resolved through multi-party settlements.
  PG&E v. United States: Litigated breach of contract case in federal court against the Western Area Power Administration concerning service under a PG&E tariff, resolved by settlement after cross-motions for summary judgment.
• Western Area Power Admin. et al. v. Federal Energy Regulatory Commission: Wrote appellate brief and argued appeal before the United States Court of Appeals for the D.C. Circuit on review of a FERC order concerning a PG&E tariff. 525 F.3d 40 (D.C. Cir. 2008)
• Order Instituting Investigation in Connection with San Bruno Explosion and Fire: Counseled PG&E on potential remedies, fines and penalties arising from three CPUC investigations in the wake of the San Bruno accident. Tracked and reported status of compliance with over 100 remedies ordered as a result of the investigations.
• Pipeline Safety Rulemaking: Counsel for company in CPUC rulemaking to adopt safety and reliability regulations for California gas pipelines; represented PG&E in hearings on resulting Pipeline Safety Enhancement Plan, a multi-year effort to enhance the safety of PG&E’s pipelines.
• Environmental Permitting: Represented PG&E in obtaining permit for 11-mile gas transmission pipeline in Sacramento, including meeting with representatives of the Bureau of Land Management and U.S. Fish and Wildlife Service, and drafting comments on Environmental Impact Report.
• Regulatory Counseling: Formulated company policy and drafted comments in response to proposed regulations promulgated by the FERC, the CPUC, and the Pipeline and Hazardous Materials Safety Administration. Counseled Gas and Electric Operations business partners on compliance with regulations.