Antitrust Counseling Strategies and Methodologies

The scope of an antitrust practice in the U.S. can be very broad from active counseling to long trial work in the courts. In the first instance, we are antitrust advisors and act to use and interpret antitrust law and economics in a very positive way with clients. We strive to have them understand what it is, how it affects their business decisions and how they can make plans and strategies consistent with it. Antitrust compliance programs, proactive antitrust education and antitrust audits are effective in helping clients understand antitrust, making it second nature in their business decision making and avoiding litigation. Clients need to understand that antitrust litigation is extraordinarily expensive (primarily because of the complexity of the factual arguments and the cost of producing and examining what could be tens or hundreds of thousands of documents for any given case), and an essential role for the antitrust counselor is directing the client in developing systems and practices that will evaluate antitrust risk and to avoid or reduce the likelihood of antitrust litigation, all without harming the robustness of the business itself.

We as antitrust lawyer do our very best to be creative, to think outside the box and offer solutions that meet the client needs with as little antitrust risk as possible. We seek advice from or cooperate with enforcement agencies when we need to, and work through problems aggressively so that the company does not face unnecessary antitrust risks that go to the heart of its business. Unfortunately, antitrust litigation too often does put much at risk for corporations often their very method of doing business is challenged so the premier challenge for antitrust lawyers is to develop business solutions for problems that accomplish the companys business objectives consistent with the antitrust laws.

The strategies change with each transaction and in each industry; every situation demands a unique set of solutions. Antitrust law as applied remains extremely fact intense and advice can change instantly with any change in facts. Service industries versus manufacturing industries or traditional industries versus new, emerging industries each market has its own competitive dynamic which directly impacts antitrust strategies and advice. As antitrust lawyers, our first responsibility is to learn the business thoroughly so we can customize our approach. An attorney who wants to practice antitrust law should be prepared to learn the clients business inside and out. That rule applies to every business, every market and every industry. Depth of knowledge and a range of experience with a clients business is critical to an effective assessment of an antitrust problem.