Litigation and Government Investigations

Government cases usually start with an investigation. Private litigation may start with warning letters or often the preemptive filing of a lawsuit. Antitrust investigations and lawsuits can continue for five, ten or fifteen years. The discovery process is quite lengthy and burdensome. Because often a business practice is at stake, a case may involve the production of almost every document generated regarding the business sales, pricing, marketing, financial statements, manufacturing records, licenses, distribution agreements, supply arrangements, business plans over a period of several years . It is expensive and takes a time to gather documents, negotiate scope of documents to be produced, review documents and focus on the crux of the case. Discovery can be very disruptive to the company and the costs involved can be staggering. Antitrust litigation is not lightly invited nor lightly embarked upon.

Settlement processes in antitrust cases, which sometimes involve different skill sets than litigation, are also more complex than the settlement of more straightforward commercial cases. Settlements that may require changes in business practices, sales of a division, etc., offering of coupons or rights and the evaluation of alternatives takes time. In cases initiated by the government, the government may stay involved as a monitor for some time, even after the case has been seemingly settled.

It is also important to assess antitrust risk early in litigation and to continue assessing it, constantly making judgments for the client about litigation strategies for dealing with antitrust exposure. Some cases are systemic a case that challenges the basic way a company does business. Others are conduct driven say, a conspiracy case to fix prices or allocate territories with competitors . Were the acts committed or not. Often, antitrust litigation will touch other aspects of the business. A company may need to defend itself in some particular way because the implications of the antitrust challenge go beyond the immediate litigation.

When cases begin with a government investigation, the antitrust lawyers works very hard to address the governments concerns. This process often includes providing detailed explanations to the government about business practices, perhaps a white paper getting deeply into facts and documents. Generally , for the client the commencement of a government antitrust investigation will also trigger an internal investigation for the client.

Antitrust litigation recognizes that there generally is more than just money involved; many antitrust cases result in injunctions and fundamental changes in business practices. Antitrust cases are about how your client conducts its business. The theory of the defense case will rely quite heavily on what is reasonable. The theory of the prosecution will depend on showing the business practices at issue and how they hurt purchasers and consumers. At bottom, were the challenged practices good for customers and consistent with consumer welfare. Antitrust litigation starts with everyones theory and then builds the facts that develop the case. Certainly, if the challenged conduct is alleged conduct that the client does not believe occurred, a defense is built upon an intense investigation of past conduct.

Because of its complexity, as law and facts, the first and foremost rule for antitrust litigation is simplify, simplify, simplify. The case, whether for the prosecution or the defense, has to be understandable and believable, whether it goes to a jury or to a judge. Themes are essential. Making 200 points even though there will be 200 points to be made can run counter to this rule. Judgments and assessments in litigation about what arguments and facts are most important, and how they can be made understandable, requires risk taking. Key is to focus on what risks to take that are more likely to assure a win, and for the defense to win before the case goes to a judge or jury. Defendants will assess many avenues that might terminate a case early. We examine whether these are the proper antitrust plaintiffs. We look at jurisdictional issues. We look at whether there could be antitrust injury or antitrust standing deficiencies. Because it is an antitrust case and because it is large litigation and expensive, we tend to examine virtually every procedural issue to determine whether and when the case can be won and how to minimize the expense and disruption to the clients business. A keen sense of judgment is vital in antitrust litigation particularly in helping the client to assess the merits realistically and in evaluating the cost benefit of each litigation decision.