What Are The Fundamentals of an Antitrust Expert s Practice?

What Are The Fundamentals of an Antitrust Expert's Practice?

This admittedly brief description of key antitrust laws points to the roles of the antitrust legal expert. The fundamental tasks of this specialist include (a) helping the client understand the nature and scope of the antitrust laws and potential consequences for failing to comply with them (e.g., including the criminal penalties, government civil actions, and private actions by consumers or competitors , which are described above); (b) exploring with the client which antitrust statutes or rules have or are likely to have the most impact on the clients business; (c) working with the client in formulating a compliance program and rules of conduct designed to avoid or minimize antitrust risk, particularly with respect to antitrust violations that may carry criminal penalties; (d) identifying and assessing the antitrust law risks and consequences of proposed business and marketing strategies and, where appropriate, exploring with the client alternative courses of action that satisfy legitimate business objectives while minimizing antitrust risks.

Because certain antitrust violations (e.g., agreements to fix prices, divide or allocate markets or customers, or rig bids) are very serious, and in the United States (and, increasingly, in other countries as well) can be prosecuted criminally, antitrust counselors may be involved in educating the client to make sure that its executives understand the consequences of behavior subject to criminal prosecution and advising the client as it implements rules for corporate compliance. This involves (a) emphasizing with corporate employees the principle that, as a general matter, conduct of the business vis-  -vis competitors must be based on independent business judgment and that, because the client competes vigorously on the basis of price, quality and service, it needs to acquire in legitimate ways information about its competitors' strategies and their efforts to obtain the business of customers and potential customers, and (b) emphasizing with corporate employees the need to avoid conduct involving competitors, customers or suppliers suggesting that an illegal agreement exists.

Other business activity may raise significant antitrust issues or questions, but yet not be of a type for which criminal sanctions are typically sought. Not infrequently business conduct (such as an acquisition of, or joint venture with, a competitor; agreements obligating customers to purchase all of their needs from the client-seller; and charging different prices for the same product to competing customers) may fall into a gray area of legality. In such circumstances, whether or not a company complies with the antitrust laws may be unclear, may turn on the underlying facts peculiar to the parties and business involved, and may involve legal principles or rules whose impact and meaning are unsettled.

Antitrust advisors sometimes counsel clients about a business opportunity, project or initiative that may not be either clearly legal or clearly illegal, but that could, depending on the factual situation, raise significant antitrust legal risk. The antitrust counselor applies (a) his or her knowledge of the governing legal principles and judicial interpretation of those principles, (b) to the facts that counselor knows from experience and legal precedent control or in a major way affect the legal analysis.

The relevant facts often involve, for example, the product and geographic markets in which the client competes, the degree to which it has market power (an inquiry that in turn implicates consideration such as the definition of the market in which it competes and barriers to entry or effective competition in the market); the likely impact of the restraint on prices and output; and the business reasons for which the practice is being undertaken. The counselor will then assess for the client the degree of antitrust risk involved in light of the legal rules and relevant factors. As just noted, the counselor may also explore with the client alternative ways to structure the transaction or practice in order to minimize, and even substantially reduce, antitrust risk, while at the same time achieving the clients business objectives.

The key skills that an antitrust lawyer can bring to the table for the benefit of the client include, of course, an in-depth knowledge and appreciation of antitrust law and its objectives, rules and principles. An antitrust expert should have an understanding and appreciation for those economic disciplines (such as microeconomics and industrial organization) that have increasingly become imbedded in antitrust analysis. An antitrust lawyer should be prepared, indeed eager , to understand a number of dimensions of the clients business, such as business objectives and strategies, the competitive milieu in which it operates, and its corporate values and culture.

An antitrust counselor is best equipped to advise clients (or litigate antitrust claims on their behalf ) when proceeding from her or his own accumulated personal counseling or litigation experience, supplemented by the experience of other antitrust experts in his or her firm. (This includes an awareness of current and anticipated government enforcement policy, embodied in current prosecutorial initiatives, speeches and policy statements, and personal experience with agencies.) Drawing on this experience, the skilled counselor is able to think through how particular conduct will be viewed by a jury, judge or government agency in assessing antitrust risk and should be able to explain to the client simply and directly why certain types of conduct will or will not be viewed with suspicion, e.g., Here is how what you want to do may well be viewed by a judge or jury. . . . This storehouse of knowledge and experience enables the antitrust counselor to better identify and explain practical risk and to explore and identify alternatives for structuring a transaction or course of conduct, so that the conduct will not give rise to a misleading impression of impropriety to persons (e.g., jurors) who are not intimately involved in the clients business on a daily basis.

Top- notch antitrust counselors will have a strong intellectual interest in antitrust law, economics and policy. This intellectual curiosity often has a strong practical payoff because it helps the lawyer identify cutting-edge issues and, more generally , to think creatively when approaching difficult antitrust issues of critical importance to the client. In short, the degree to which an antitrust lawyer has an intellectual curiosity in the subject matter, blended with a keen interest (even fascination) with the clients business and the transaction being analyzed , and an eagerness to work with the client to explore ways in which to minimize antitrust risk, often distinguishes that practitioner from others.