Risk: Making Sense of It for Clients

The best service an antitrust lawyer can provide is to give the client alternative solutions that are practical from a business standpoint. The easiest thing to say is, You can't do that because it will create an antitrust issue. There is always going to be an antitrust risk. The conservative approach of just saying no is very tempting, because then you never have to go out on a limb as an antitrust lawyer. You will never be criticized, because nothing will ever happen. However, an antitrust lawyer who does that is not serving the client very well. When we are training our junior lawyers, we try to show them that the real service we provide is coming up with alternatives to risky transactions that still get our client as much as possible of what it wants. The best antitrust lawyers know the antitrust laws well enough, and know the industry and its structural environment and dynamics well enough, that they can present creative alternatives for clients.

By being involved at the front end of a project, we can suggest alternative structures and approaches, which might fare better in terms of any review or challenge. Obviously, it is much more difficult to help the client if we are brought in at a later stage. We tell our clients that antitrust considerations are as important as business and financial considerations when planning a deal. If the client incorporates the antitrust considerations into its business analysis, then responses will be readily available to competition questions if the transaction is challenged.