When You Need an Antitrust Lawyer

There are times when it will be obvious that antitrust counsel should be retained. Receipt of an antitrust grand jury subpoena, Department of Justice civil subpoena, or a plaintiffs antitrust complaint quickly come to mind. However, there are many instances where retaining antitrust counsel is prudent, but not obvious. Early identification of these situations and prompt retention of counsel is often critically important because antitrust counsel is frequently able to practice preventive antitrust law the way many doctors practice preventive medicine. In other words, early involvement of antitrust counsel can often permit a business to avoid antitrust issues before taking action that converts those issues into antitrust investigations, lawsuits and the like. In short, in antitrust, as in medicine, an ounce of prevention can truly be worth a pound of cure.

A short, non-exhaustive list of situations in which antitrust counsel should be consulted follows :

Activities with competitors

Any activity in which the business interacts or cooperates with its competitors will likely be antitrust-sensitive. The heart of antitrust enforcement is stopping and preventing collusion among competitors. Such activity price-fixing , bid-rigging and market allocation is frequently prosecuted criminally. Not surprisingly, government antitrust enforcers are deeply suspicious of any joint activity by competitors. Such activity is often the subject of government investigation, either civil or criminal. Accordingly, before any activity with competitors is undertaken, antitrust counsel should be consulted to determine if the contemplated activity is appropriate and, if so, how the competitor communications can be managed to avoid any improper activity or information exchange. Equally important, counsel need to be consulted on how to avoid even the appearance of such activity.

Joint Ventures

Joint ventures with other firms, especially if they involve competitors, frequently raise antitrust questions that may make operation of the joint venture difficult or impossible . Antitrust counsel can frequently identify those issues (and hopefully offer solutions) before a significant investment of executive time is made in developing and negotiating the terms of the venture. Once the venture is established, antitrust counsel may need to monitor or police its operation to ensure that the venture does not become a vehicle for collusion among the parties in their competitive activities outside the venture.

Merger and Acquisitions

Significant corporate transactions frequently require merger clearances in the U.S., the European Union and other countries before they can be consummated. In addition, documents prepared or used by the parties in the transaction that analyze its competitive implications may have to be turned over to the Department of Justice and Federal Trade Commission as part of a Hart-Scott-Rodino premerger filing. Antitrust counsel should be contacted promptly when such transactions are contemplated, especially when competitors are involved. The early involvement of counsel may permit the parties to identify and address antitrust issues that may delay or derail the transaction. Counsel will also be able to help the parties develop a strategy for defending the deal and responding to any anticipated government investigation of the transaction.

Licenses

Restrictions imposed in connection with the licensing of trademarks, patents and copyrights frequently raise significant antitrust questions. Licensors often wish to include in their agreements limitations on licensees prices and quantities , territories and customers to whom the business may sell, exclusivity provisions, and the like. Similarly, clients may wish to pool their Intellectual Property Rights with the similar rights of other licensors.

Distribution Questions

Any firm that is in the business of producing and/or selling goods or services through third parties will eventually encounter antitrust issues. Commonly encountered antitrust situations arise from, resale restrictions that the supplier wants to impose on its resellers, efforts to influence the price at which the resellers offer the suppliers product, changing a distribution strategy, terminating distributors or dealers, cooperative advertising plans and related promotional plans. All of these situations require guidance of antitrust counsel.