Client Misconceptions

Some clients seem to conceive of antitrust as a set of defined rules, which can be set out in detail and evaluated, like FDA or tax regulations. Unlike those areas of law, there simply are rarely categories, rules or cases in antitrust that can govern specific situations. Rather, antitrust is a mode of analysis, relying heavily on economics. In antitrust law, unlike other areas of the law, you cannot easily or readily rely on prior case law to determine the outcome of your case in your market situation. Past cases simply provide an illustration of the way antitrust law principles were applied to that market situation, to that set of facts. That gives great creative scope for antitrust lawyers , but also creates massive uncertainty for clients.

It helps greatly in simplifying both analysis and recommendations to understand that antitrust is, at its core , simply following the price. That is what I tell all of the clients and junior lawyers. It is the way to analyze the competitive effects of any proposed transaction on claims in litigation. You could have the most restrictive distribution or licensing agreement, or questionable proposed merger imaginable, but if there is no effect on price, it will not have any adverse antitrust consequence.