The Role of the Antitrust Lawyer

I am a general antitrust lawyer and I do the full range of things that antitrust lawyers do, including litigation, counseling and dealing with government investigations of both conduct and, specifically , mergers and acquisitions. I can come in contact with a client under many different circumstances. If a firm is sued and it needs a lawyer to defend it, its personnel may call me. If a firms personnel believe that it is being harmed in an anticompetitive way in the marketplace , either as a customer or a competitor, they may talk to me and determine whether it makes sense for them to sue or to complain to the government. If a firm becomes a subject of a government investigation, its personnel may call me. Clients who are involved in mergers or acquisitions between competitors or, under some circumstances, between buyers and sellers, may call me to see if I think there is going to be an antitrust issue and if they need to prepare for questions from the government about whether their merger is anticompetitive. Finally, clients will call and just say, I want to do X. Is X a problem under the antitrust laws? Do I need to change what I want to do?

One of my jobs is to inform clients of the antitrust risks from particular conduct. That usually involves providing a judgment, not an objective, certain answer. The antitrust laws, of course are very technical and you can usually find support in the case law for many propositions, including sometimes contradictory propositions . It is also true that antitrust problems are usually fairly complex factually. The answer will frequently depend not on some simple legal rules but on an analysis of a particular market and what you think is going to happen in that market. What a good antitrust counselor needs to be able to do is synthesize the facts and the law and not be afraid to make a judgment despite the presence of uncertainty.

One principle I emphasize to clients is that they need to look at the antitrust issues relating to a course of conduct sooner rather than later. Sometimes antitrust issues become an afterthought after a plan is already launched. In that event, it can be difficult to take all the steps to plan properly and minimize the antitrust risks. Antitrust matters are often fairly large and fairly complicated, and in that sense they become chess games , and you need to think pretty hard about what is going to happen several moves down the road.

A related challenge in the antitrust area is being able to balance the need for information with the clients expectations in terms of time and costs. There are pitfalls in both directions. Its always great to get more information, but when the client wants an answer, one thing you need to do is decide how much expense it wants to incur for that answer and then try to accommodate it. At the same time, it is also sometimes tempting to give a quick answer without really understanding the marketplace, and that can easily lead to errors. The antitrust lawyer has to weigh those two considerations and try to provide the best answer possible within the clients constraints.

One mistake an antitrust lawyer can make, potentially , is to rely too much on a clients decision- makers . Thats because the people at the top of large corporations, in my experience, rarely have very good information about the detailed issues that are critical to an antitrust lawyer. An antitrust lawyer really needs to understand the details of how a market works. Many very smart CEOs, when I interview them and ask them these questions, give me answers that I later learn through looking at detailed documents and talking to people in the trenches are incorrect because the CEO operates at a more general high level. An antitrust lawyer should not hesitate to say that he needs to talk to other people and learn what they have to say; the boss may not know it all.