The antitrust laws are designed to foster competition and promote consumer welfare by ensuring that businesses compete fairly based on the strength of their product and service offerings. The antitrust laws target unlawful business practices that may lead to higher prices, fewer choices, or lessened innovation for consumers. For example, the antitrust laws prohibit agreements among competitors to fix prices or allocate customers (Section 1 of the Sherman Act), illegal or attempted monopolization by firms with leading market positions (Section 2 of the Sherman Act), certain tying and exclusive dealing arrangements (Section 3 of the Clayton Act), mergers and acquisitions that are likely to substantially lessen competition (Section 7 of the Clayton Act), price discrimination between competing purchasers (Robinson-Patman Act), and, generally, unfair methods of competition (Section 5 of the FTC Act). In addition, individual U.S. states and more than 100 countries around the world have enacted antitrust laws.
Courts and governmental enforcement reflect the inherently fact-specific nature of antitrust jurisprudence. Variations in laws across different jurisdictions can add further complexities to analyses of business arrangements and practices. Accordingly, clients typically engage antitrust counsel to assist with the following types of matters:
Strategic Transactions. When contemplating a merger, acquisition, joint venture, or minority investment, antitrust counsel are engaged early in the decision-making process to advise clients regarding the potential antitrust risks of a proposed business combination and to help structure the transaction to address those risks. Antitrust counsel also assists in identifying jurisdictions that may require a pre-merger notification filing and coordinating antitrust review from enforcement authorities around the globe.
Litigation. Antitrust litigations frequently involve allegations of monopolization, price-fixing, and other agreements and activity that lessens competition. These suits often proceed as class actions, in many cases involving enormous exposure representing treble damages across entire industries. In their roles as plaintiffs, defendants, or third parties, businesses require advice from antitrust counsel regarding the risks and benefits of the antitrust litigation process, which can involve treble damages (in civil litigation) or incarceration and significant fines (in criminal prosecutions).
Government Investigations. Antitrust counsel play an indispensable role in guiding companies through administrative and, when necessary, criminal processes in the U.S., European Union, and other jurisdictions for issues related to cartelization, price-fixing, monopolization, and vertical restraints. In particular, antitrust agencies around the world increasingly investigate and prosecute illegal cartels. Antitrust counsel provide overall coordination of approaches to multiple jurisdictions, especially with regard to the potential for criminal sanction, third-party access to evidence, and follow-on private litigation.
Counseling. On a day-to-day basis, many firms require antitrust guidance regarding strategic pricing decisions, structuring distribution and licensing agreements, potential competitor collaborations, interlocking directorates, and a variety of other customer-, supplier-, or competitor-facing issues that may implicate the antitrust laws. In addition, many businesses implement antitrust compliance, monitoring programs, and internal reviews in consultation with antitrust counsel.
Shepard Goldfein and Steven C. Sunshine, Partner