Preparing a Case

In assessing a potential antitrust case, the first thing I want to identify is the conduct. There are some types of conduct that simply cannot be justified for example, price fixing. If the client has engaged in that conduct, or has arguably engaged in that conduct, you want to find out the facts. If they did engage in that conduct, I think the best thing to do would be to encourage them to try to obtain an appropriate settlement, and, failing that, to litigate the case. In these situations, litigation only happens when the litigated judgment is the most appropriate settlement because the other side cannot be objective about its case in the settlement process. When the conduct can be justified, however, you have to find out what the reasons for the conduct were, and make sure that the conduct is actually justified by those business reasons, and then start to show the world that those justifications are real and substantial, and outweigh any anticompetitive effects of the conduct that is in question.

You would most likely have to have witnesses who would be able to show that they took this conduct for the following business reasons, and that the business reasons are legitimate and not after-the-fact rationalizations. There may be situations in which you can find someone else engaged in this conduct, whether it is a competitor or someone facing a similar problem, and this company has taken similar actions and thinks the conduct is reasonable, and it would be helpful to have their testimony saying this is how this problem ought to be handled. In almost every case, you want to bring in an economic expert who will look at the conduct from the perspective of economic theory. Remember that most of antitrust law is dependent on economic theory. The expert would explain to the jury how this is the only reasonable way or at least a very reasonable way to proceed when the client is faced with these business problems or has these business needs. And, of course, you would also need probably an economist or perhaps an accountant who can deal with issues on damages, in case you lose on your justification.

My preference is to select the experts early, but experts can be an expensive component of the cost of litigating , and clients are sometimes resistant. Consequently, the first job is essentially to convince your client, if he or she needs convincing, to hire an expert fairly early in the game so that you understand all the issues that the expert may have after all, those issues may also be issues that the other side has identified and deal with them to make the best case possible for justifying the conduct. Once you have thought personally about the justifications and your defenses in light of the evidence and talked with your expert about what he or she sees as the issues, then you need to go out and develop the facts and probe your witnesses, usually with your client, to see whether their business justifications are consistent with what the economist and you see as the justification. If so, you want to do all that you can to ensure that the witnesses sing that song loudly and consistently with other witnesses. You obviously cannot ask any witness to lie, but you do want to try to make the story as consistent as possible, while adhering to the truth at all times.