The Basics of Practice

The role of the antitrust lawyer is to provide guidance to clients in an understandable and practical way as to the legal restrictions that the antitrust laws place on their conduct and the transactions in which they may engage. A good antitrust lawyer helps clients achieve their legitimate business objectives in ways that minimize legal risks and avoid the substantial penalties, proceedings , expenses, diversions and embarrassments that can result from violations of the antitrust laws.

It is important to approach antitrust cases with a substantial degree of common sense, and an ability to explain economic and legal concepts in pragmatic terms. Antitrust is fact intensive and strategies for dealing with an antitrust case or transaction vary considerably. The facts are key in many areas of law, but particularly in antitrust. The antitrust cases decided by the United States Supreme Court tend to involve an extensive review of the industry and the practices or transactions at issue. Every industry is different with discrete market participants , competitive dynamics, entry conditions and types and numbers of customers. The same approach is not necessarily appropriate in every transaction or activity.

This is particularly true in the area in which I work principally - corporate mergers, acquisitions and joint ventures . No two mergers are alike. A cookie- cutter approach will not be successful in dealing with transactions that are reviewed by the worlds major competition law enforcement agencies such as the Federal Trade Commission (FTC) and the Antirust Division of the Department of Justice (the DOJ) in the United States, the Commission of the European Union (the EU or European Commission) and various individual countries in Europe, and the Canadian Competition Bureau, among others.

In advising clients, generally I review the risks of contemplated conduct or transaction, and let the client decide whether it wants to take the risk or not, although I tell the client why I think running the risk would or would not be reasonable. Most antitrust advice involves rule of reason situations where if you fully understand what the client is trying to accomplish, you can advise the client that while there is a hypothetical risk, it is remote and a reasonable one to take given strong legitimate business reasons. However, that is certainly not the case with regard to cartel activities, which involve potentially enormous fines in many jurisdictions and criminal sanctions including serious jail time in the United States. In cartel situations, the only sensible advice is not to engage in the conduct.