Trying an Antitrust Case


What I find most interesting are antitrust issues that arise when a single firm seeks to implement a strategy that arguably has some exclusionary effects on others. In my opinion, that is the most difficult area of the law and calls for the most sophisticated analysis and advocacy . Throughout the years , I have defended many monopolization cases, which are very challenging. The question is whether an unreasonable restraint on trade occurred. The battle comes down to competing positions over the reasonableness of the conduct. Was there market power? Was it reasonable? Was there a less restrictive alternative? Trying a monopolization case requires the greatest breadth of knowledge and analysis in the antitrust area. Again, the starkest contrast is to price fixing cases, which are essentially disputes over whether it happened or not. If it did, it is illegal. Those cases can be very challenging, but they do not offer the same kind of intellectual challenge as a complicated monopolization case.

To build a case, first you have to understand the client's perspective on the conduct, which means diving into their world. You have to immerse yourself in different industries all the time. For example, right now I am working in the biotech industry, the polyester industry, and the movie distribution industry. They have very little in common. To know an industry from your client's perspective, you have to dig deep. You have to understand what drives the client, what the main components of the competition are, the role of technology, and the role of customer relations. Unless you master all that information, you cannot ever really understand the conduct that you are defending.

Second, you need to understand why this conduct occurred. You can understand that if you have done your homework about the industry. Once you have a good idea of the context and what happened, from experience you start to understand the steps that you have to take to defend the client's actions. Sometimes the defense is rather technical. If you think the case will go to trial, you will need to have witnesses able to articulate your key points. You will bring in economists and work with them so that they will frame the issues in ways that support your arguments.

One of the great challenges in antitrust is the jury trial. You have to deal with jurors who are going to be overwhelmed by the unfamiliarity of the subject matter. In addition, they come in with biases, most of which are bad for the defendant. They will hear the case presented in a limited period of time and in a theatrical style where they do not get to ask the questions that are bugging them. There are such severe limitations on reaching them and educating them that trial can be a bit of a crapshoot. That makes the decision whether to go to trial, risking treble damages, a difficult one.

You will not help your client make that decision by saying that you do not know what will happen at trial. You have to do more than that. I tend to try to do jury research before the trial and I involve the client in that so they can see how jury proxies react to the themes of their case. Often, the client will have a strong-willed CEO who is convinced that a jury will find that what they did was okay. It is sometimes very useful to put that person in front of the mock jury and let them see for themselves that others may not react quite the same way. That process can be quite illuminating. On the other hand, I think it is important not to simply try to talk the client out of doing a trial. Oftentimes, a trial may be the right thing for the client because the settlement demands are just too much or long- term strategic interests are at stake.

Clients vary in the manner in which they make the decision to try or settle . For some, it is a hunch. You discuss the issues with them, and they call it. Others want elaborate analytical methods to help them with these decisions. I will assist the client in making the decision in whatever manner they choose, and I will simply try to put the results into their language.

At trial, the most important thing to do is to simplify, simplify, simplify. The art of taking an antitrust case to trial is figuring out how to simplify the issues while still communicating the equities of your case. When presenting before a jury, you have to come up with simple ways of explaining things and analogies that jurors can relate to from their own experiences. With jury research, we try out different scenes to see if they resonate with lay people or not. If they do, we use them. If not, we discard those approaches and try new ones. We often use graphics to convey simple messages that are capable of being remembered . In the factual picture, we have to try to overcome the fact that perhaps one of the clients people just did something that was sleazy or overbearing. It is critical to anticipate how you are going to deal with that. And, of course, you have to use all of the technical rules of evidence to keep unfavorable evidence out.

In defending an antitrust case you always try two cases at the same time: the technical case and the jury case. That is because it is tough for the defense at trial. The plaintiffs case typically resonates with jurors much more than the defense case. Accordingly, many defense trial victories are actually motions to set aside an adverse jury verdict. That means the defense must put on a technical case that is aimed at the judge and provides the basis for a motion to win as a matter of law at the same time it is trying a more general fairness case to the jury. You cant overlook either objective.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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