Some Personal Reflections about Effective Representation of Clients

Fundamental Role of the Antitrust Lawyer

Antitrust lawyers not professors or judges advise clients about potential activity and whether those activities might violate the antitrust laws. They help clients achieve legitimate business objectives in a way that avoids, not evades, antitrust liability.

Second, an antitrust lawyers role is to defend a client who has been charged with a violation of the antitrust laws, whether it is by the government or in private litigation, to the extent consistent with the law, or to prosecute an antitrust violation as vigorously as the law allows.

Third, an antitrust law practitioner today can represent both plaintiffs and defendants. In some fields, for instance in labor relations law, a lawyer is usually on one side or another, labor or management. In the antitrust field, 20 years ago, major companies would never have thought of being plaintiffs in an antitrust case; and now they do exercise their rights to bring antitrust cases.

Area of Concentration

My own practice consists of representing businesses as a consultant or litigator or both, either in court or before federal or state agencies. The common theme is application of antitrust law principles.

It is also rewarding to concentrate on particular industries. Presently, the healthcare and securities industries, and to some extent, real estaterelated matters have been my principal litigation and consulting focus, although in recent years, manufacturers and retailers as well as importers have been the focus of my antitrust work.

Make Friends, Cut Risks, Help Clients

Another issue is how to deal with public agencies. In my opinion, it is always a good idea to deal with them candidly and cooperatively. For the most part, they are good lawyers and economists. You and your client are making a big mistake if you try to keep your cards close to the vest and then slide something through. It is virtually always a mistake. If you have an issue, my view is to deal with it openly, and in that way the agencies, just like any other business, have a sense of trust in the lawyers with whom they are dealing.

The added value that a good antitrust lawyer brings to his or her client is not only knowing the law, but also knowing how markets work. The antitrust laws are not just torts they deal with markets, and always ask the question, did some agreement (or merger) for the sale of goods or services harm a market?

Thus, antitrust lawyers make judgments about markets, who the players are, who competes with whom, where competition exists, and what the choices are that a consumer has. Dealing with those kinds of issues, in the context of what are the parameters of the market and what effect, if any, the activity in question is having in that market, is what antitrust lawyers do for a living.

So competition is not a mathematical certainty, and if you believe in mathematical certainty , you are not cut out to be an antitrust lawyer.

Strategies with Clients

When a client sits down with you and says, I received a subpoena or a CID (civil investigative demand) from an agency questioning an agreement that I have made. The approach is, number one, to figure out what is bothering the agency about the program. And second, what is the real reason this agreement was entered into? By the way, this is a very simple question, but it very often leads to some very helpful or troubling information.

If, when you ask the reason for entering into this agreement, the answer comes back, Well, if you want to know the truth, its because we figured we could squeeze out our competitors , that tells you something. But if, on the other hand, the answer is, Because we thought we could operate more efficiently , that also tells you something. If the client cant answer the question, you know there is some concern somewhere.

If you get the right answer to the first question, then one needs to figure out what impact it has, or why the FTC or the DOJ, or some attorney general in some state is concerned about it. At that point, you may or may not retain an economist to help you understand the economic impact. Keep in mind that the antitrust agencies, both the DOJ and FTC, have economists, as well as the lawyers, reviewing each deal, whether it is a competition complaint or a merger. Make certain you have somebody who is very skilled at understanding what the Bureau of Economics of the FTC is saying to its lawyers about this deal and how you should respond to it.

With respect to a proposed merger, you should assess whether you think it will be challenged and if so, why. Are there ways to fix the problem? Other considerations: Do you need to get an economist now? Is the merger likely to get the infamous Second Request? A Second Request is a questionnaire from the government asking more in-depth multi-part questions. You try to figure out whether that is coming and try to avoid it by answering questions ahead of time.

In terms of litigation, you try to figure out what has been done, what the clients objective is, and whether it is something that should be settled or something you have a chance of winning. Estimate the cost, and try to be candid about it and the exposures.

In some respects, the antitrust laws favor plaintiffs in litigation in significant ways. First of all, actual damages are automatically trebled, plus reasonable attorneys fees. Second, losing defendants have no right of indemnity or contribution among each other, and each is responsible for the entire amount. For example, if you have two defendants that engaged in price-fixing , and both are sued, and the plaintiff wins, the plaintiff can decide to collect the entire trebled amount from one defendant. The other defendant cant say, We did this together, so we should share the liability.

This puts tremendous leverage in the hands of plaintiffs to obtain a settlement . That is what Congress wanted and why you see so many treble-damage class action antitrust cases settled. The deck is stacked , but again, that is what Congress wanted to do.