Practice Area: Antitrust - Civil
We have more than three decades of experience in counseling clients
regarding compliance with the federal antitrust laws. Because of the
rapidly changing nature of the antitrust laws, it is imperative that
a company - especially one that manufactures and distributes
products - obtain reliable advice regarding compliance with the
antitrust laws. We consider it our obligation (and our privilege) to
become intimately familiar with each client's business and consider
ourselves to be on-call antitrust experts for our clients.
Certainly it is imperative that a company seek immediate legal
advice regarding possible criminal activities such as price fixing,
bid rigging and customer and territorial allocation, but it is also
vital that a company consult with experienced antitrust counsel
about conduct that may not fall within the hardcore horizontal
activity that the government pursues criminally.
Many companies do not realize that seemingly-commonplace decisions
made on a daily basis could have antitrust implications: how to deal
with the distribution network, whether to set up a competing
distributor or terminate an existing one, whether to join a trade
association of competitors and whether to set resale prices. We urge
our existing clients to seek our counsel prior to making any such
decision in order to proceed with full knowledge of any potential
legal exposure and minimize the risk of adverse consequences from
any affected parties, which could include company dealers and
distributors, competitors and customers. And depending on the
conduct involved, the Federal Trade Commission has also been known
to come knocking on the door should a company misstep.
We have experience in counseling clients regarding non-price
vertical restraints that are permissible under the antitrust laws
and that can be procompetitive and thus immune from civil damages
actions. We are also familiar with the Robinson-Patman anti-price
discrimination act. Although Robinson-Patman has fallen into
disfavor with government enforcers (FTC and USDOJ), it is still good
law that remains available to a competitor, dealer, distributor or
aggrieved customer to bring a civil action for treble damages and
attorney's fees.
We are also familiar with the latest antitrust developments in the
area formerly known as resale price maintenance; we can help clients
that wish to set resale prices for their distributors avoid criminal
exposure and civil liability.
In those unfortunate situations where a client has failed to seek
antitrust counseling ahead of time, we can also assist in making
efforts to resolve the dispute if an action has not yet been filed
or, if one has, to defend against civil antitrust cases brought by
private parties or the government (USDOJ or the FTC). We view the
trial of an antitrust case the same as we view practically any other
trial: while we know the underlying law, we must become experts in
the client's business and the market in which it operates in order
to mount a winning defense.
In the civil antitrust litigation arena, we feel that we have unique
qualifications: we are experienced trial lawyers and we have a
significant amount of knowledge, experience and skill in antitrust
law. While we know many excellent trial lawyers, only a handful have
some antitrust expertise. While we know many excellent antitrust
lawyers, only a small number have significant trial experience.
In the interest of full and candid disclosure, we should comment
regarding our ability to represent clients in large scale litigation
matters that involve great quantities of electronic mail or other
kinds of data. We are simply unable on our own to handle the demands
of such a case, mainly because of the federal electronic discovery
rules that were instituted within the past several years. These
procedural rules direct a party to gather, review and produce
electronic documents - by and large emails and their attachments -
usually within a somewhat short period of time.
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