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Business Law: Antitrust & Trade Regulation

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Antitrust & Trade Regulation

Antitrust is an ever-increasing concern to every business. Criminal and civil penalties for antitrust violations have been substantially expanded. Mergers and acquisitions face heightened scrutiny by the federal antitrust agencies. State attorneys general have become more active in the antitrust area. International authorities such as the European Union have also greatly expanded their antitrust reach. Antitrust class actions and multi-district litigation have increased substantially over the past several years.

One of the interesting things about an antitrust/trade regulation practice is that it’s a hybrid between litigation and transactional practice. An antitrust lawyer needs both the skills of a litigator and the skills of a transactional lawyer. To be effective, he or she should have the following skill sets:

• a working knowledge of economics;

• a desire to undertake a deep understanding of the client’s business, and the industry in which the [...]

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Antitrust is an ever-increasing concern to every business. Criminal and civil penalties for antitrust violations have been substantially expanded. Mergers and acquisitions face heightened scrutiny by the federal antitrust agencies. State attorneys general have become more active in the antitrust area. International authorities such as the European Union have also greatly expanded their antitrust reach. Antitrust class actions and multi-district litigation have increased substantially over the past several years.

One of the interesting things about an antitrust/trade regulation practice is that it’s a hybrid between litigation and transactional practice. An antitrust lawyer needs both the skills of a litigator and the skills of a transactional lawyer. To be effective, he or she should have the following skill sets:

• a working knowledge of economics;

• a desire to undertake a deep understanding of the client’s business, and the industry in which the client operates;

• strong organizational skills, particularly in litigated matters which are typically multi-year endeavors, with a broad scope;

• a capacity to come up with creative solutions, which address both a client’s business goals and the potential claims that could be pursued by private and governmental plaintiffs.

A typical antitrust and trade regulation practice encompasses such specialty areas as:

Mergers & Acquisitions: Antitrust lawyers represent companies in obtaining antitrust clearance of mergers and acquisitions from various competition authorities around the world. They provide counseling to evaluate potential antitrust challenges to proposed acquisitions and to structure transactions so as to minimize antitrust risk. Antitrust lawyers may handle matters before the Department of Justice’s Antitrust Division (DOJ), the Federal Trade Commission (FTC), state attorneys general and the European Commission on behalf of parties or third parties to transactions. Antitrust lawyers may also advise clients on how to avoid antitrust problems relating to gun-jumping, information exchanges and pre-merger integration and planning, particularly in connection with large, complicated deals.

Antitrust Counseling: Antitrust lawyers may counsel clients in all facets of business strategies, including effective distribution programs, pricing issues, antitrust compliance programs and audits. For example, antitrust counsel advise on whether a new “minimum price” program is legal under the antitrust laws, or whether an agreement with a competitor is permissible. They advise on whether a proposed business combination is likely to be challenged by the government. The answers to each of these questions require a great deal of background work and investigation, and will often require the lawyers to develop a factual record before providing advice.

Civil Litigation: Antitrust lawyers may represent national and international companies as both plaintiffs and defendants in actions brought under the Sherman Act (restraint of trade and monopolization), the Clayton Act (mergers and acquisitions), the Robinson-Patman Act (price discrimination), state antitrust laws and matters before the FTC. They may also be experienced in class action and other multi-party and multi-district civil litigation involving price-fixing and other antitrust claims in federal courts throughout the U.S. Because, often, so much is at stake, these litigations tend to be hard fought --- which means that there are a multitude of motions seeking to address elements of the case: beginning with whether a complaint seeking relief is sufficient, and what discovery should be obtained (or what discovery should be objected to). A massive factual record is typically generated in antitrust litigation, and there are often many significant witness depositions to take and defend, particularly those of expert witnesses.

Criminal Representation: Antitrust lawyers may represent companies, individual targets of investigations and witnesses in a variety of antitrust criminal matters such as grand jury proceedings, amnesty and immunity negotiations, plea agreements and trials.

Antitrust and Intellectual Property: Antitrust lawyers often work closely with IP and business transaction attorneys to avoid antitrust problems in intellectual property management before they occur. Antitrust lawyers regularly provide advice on how to avoid antitrust problems in IP licensing transactions.

Regulated Industries: Antitrust lawyers frequently represent clients on antitrust matters in regulated industries, such as financial services, telecommunications, transportation, health care, energy and other regulated industries where companies regularly are confronted with quite difficult competitive problems.

Many antitrust lawyers work in private law firms, ranging from large national firms to boutiques. Typically, large firms (with 500 + lawyers) represent businesses with significant market share who seek counseling and litigation defense as a complement to corporate and transaction advice. Smaller “plaintiff’s side” firms typically represent the plaintiffs making antitrust claims, sometimes on a contingency.

There are also many opportunities to work in the government sector. For example, antitrust lawyers working with the DOJ or the FTC evaluate competitive conduct and proposed business mergers to determine whether the combined entities could exercise market power in a way that could limit choices for the consumer in the relevant market. They may impose conditions like the sale of a significant business division before granting clearance to a merger.

Antitrust law can be practiced from any location. Typically, however, government lawyers working for the United States are centered in Washington D.C. Private practitioners and litigators are most often located in major metropolitan areas.

 
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