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.

Based upon the anticipated amount of electronic discovery in a case, we can employ several methods to comply with the electronic discovery rules. First, depending upon the anticipated quantity of the electronic document pool, we can hire contract attorneys to perform those tasks with our direct supervision. Alternatively, we can associate as co-counsel with a larger firm that cannot offer the level of antitrust expertise that we can offer, but that can provide the support necessary to handle the mass of electronic discovery. (In fact, some large firms have e-discovery groups that are brought into a case for that limited purpose.) Electronic discovery is a significant factor and a large budget item in practically every civil case now filed in the United States. So we raise this issue at this early stage in order to ensure that all prospective clients are informed regarding the discovery demands in today’s federal civil cases and to present alternatives to assure these demands are met in a cost effective way.