Working with Clients


Working with Clients

As is true in most other areas of legal practice, clients who need antitrust counsel come in many different shapes and sizes and bring with them a wide variety of legal needs. Antitrust clients can range from individuals who are the victims of a price-fixing conspiracy , to small businesses that have disputes with their suppliers, to mid- size businesses trying to do a joint venture, to large multi-national companies facing a gamut of antitrust issues in their daily operations. Each of these clients has unique needs that require customized attention from counsel to ensure that the clients special concerns and problems are appropriately addressed.

In this connection is it is important to understand that some clients are extraordinarily sophisticated in terms of antitrust while others have little understanding or appreciation for the code of conduct the antitrust laws embody. Some business people instinctively understand antitrust or have been through investigations or large transactions before. As a result of that experience, they may have developed a good ear for knowing what is antitrust-sensitive and what is not. Others either have not had that experience or just do not have the gut sensitivity as to what works and what does not from the standpoint of antitrust compliance.

In addition, irrespective of a clients degree of sophistication, it will frequently be surprised by certain characteristics of government antitrust proceedings . For example, in an investigation, clients are almost uniformly surprised at the scope and intensity of the documentation the government wants. Responding to a government CID (Civil Investigative Demand), a grand jury subpoena or a Second Request for Information as part of a Hart-Scott-Rodino [43] merger review can be very burdensome and, in the eyes of many businessmen, astoundingly invasive. Responding to such information requests often imposes a real burden on the company. It takes a long time, is very expensive, and requires the attention of many people and often diverts managements attention from running the business. Perhaps more disturbing to the client, however, is the fact that such investigations require the disclosure of documents, emails and other communications that the client views as private to the business or personal to its employees . These concerns often become especially intense when it comes to the executives own files that must be searched and perhaps produced in response to the government discovery demand.

Given the broad spectrum of clients, their relative degrees of sophistication and the antitrust issues they may face, antitrust counsel must deal with the clients needs in a nimble and flexible fashion. Responding to those needs precludes a one size fits all approach. For sophisticated clients with meaningful antitrust experience and real inhouse antitrust knowledge and sensitivity, antitrust counsel needs to give refined, targeted , rifle shot counseling and representation. For less sophisticated clients, the representation may need to be far more handson with more fundamental advice and representation. It may also require doing things for the client that other clients may be able to do for themselves .

In the context of joint ventures, my sense is that, depending on the venture, management is usually surprised at how much time the venture takes, not only to put together, but to operate and police, as well. I suspect that financial surprises are not uncommon, that the expense of putting it together is always greater than expected, and that the time it takes to see if the venture succeeds is longer than expected and frequently ventures fail. I think ventures fail especially when you are trying to create a new product; failure is part of the nature of new product development. And when you are trying to create a new product with somebody else, you have the added complexity of trying to coordinate.

[43] Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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