Antitrust and Trade Regulation Counseling and Litigation

Calfee provides decades of experience and trusted guidance to clients in the field of antitrust law and trade regulation. We regularly represent corporations and individuals on antitrust matters in every procedural context—before the Federal Trade Commission, U.S. Department of Justice, and in state and federal courts in complex civil and criminal litigation. The industries in which we provide antitrust counsel are as diverse as the firm’s client base, and have included health care, real estate brokerage, software development, supermarkets, electric utilities, industrial coatings, consumer goods, mining, dairies, and automobile components. We provide counseling and litigation services in the areas of competitor and customer relations, pricing policies, dealer relations, Hart-Scott-Rodino compliance, joint venture/acquisition analysis, advertising and franchising.  We also regularly assist clients in developing and implementing antitrust compliance programs.

In the context of antitrust law, the question often is not whether conduct is plainly legal or illegal, but the degree of risk of liability it may carry. Assessing that risk involves more than just knowledge of the law. It also requires an experienced assessment of how a judge or jury will perceive the conduct, how state and federal antitrust enforcement authorities will view it, and a sensitivity for the particular client’s business goals.

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The stakes in antitrust litigation in particular often are enormous.  Substantial resources usually must be brought to bear in prosecution or defense of such claims.  At Calfee, we have the resources and the experience necessary to employ these resources efficiently and effectively. We use the counseling aspects of the practice to inform our litigation strategies, and vice versa. Presenting such cases in court is best done by skilled litigators who, through personal experience, have guided clients through the antitrust maze to achieve their business goals.

Corporate Counseling

  • Merger and acquisition analysis
  • Hart-Scott-Rodino pre-merger notification
  • Joint venture evaluation and structuring
  • Development and enforcement of pricing policies
  • Consumer protection
  • Franchising
  • Intellectual property restrictions
  • Robinson-Patman Act
  • Dealer terminations
  • Antitrust compliance programming

Government Enforcement

  • Grand Jury investigations and criminal litigation
  • FTC enforcement proceedings
  • State enforcement proceedings
  • Unfair trade matters
  • Deceptive advertising claims
  • Department of Justice civil investigations
  • Federal merger investigations

Private Litigation

  • Price fixing
  • Monopolization
  • Discriminatory prices and promotions
  • Tying arrangements
  • Exclusive dealings
  • Refusals to deal and boycotts
  • Dealer terminations
  • Market allocations

 

What are the penalties for violating antitrust laws?

Penalties for violating the Sherman Act, the principal federal antitrust law, can reach up to a $100 million fine for corporations and a $1 million fine for individuals, per violation, and under certain circumstances even higher.  Prison terms up to ten years also are possible.

 

What is Antitrust and Trade Regulation Law?

It is the label commonly used to describe a wide range of statutory, common law and regulatory schemes designed to ensure that a free market economy operates without artificial restraints that impair economic efficiency and consumer welfare.  The principal federal antitrust statutes are the Sherman Act, Clayton Act (including the Robinson-Patman Act), and FTC Act.  Most states have statutes analogous to the Sherman Act, with most of these laws embodying a dual level of enforcement that allows for governmental and private causes of action.  The agencies responsible for enforcing federal antitrust laws in the U.S. are the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice.

In the U.S., antitrust law recognizes two broad categories of conduct:  (1) Per se offenses, and (2) conduct analyzed under a “rule of reason.”  The per se offenses (such as horizontal price fixing, bid rigging, and market division) are most likely to result in criminal prosecution.

 

Do smaller or mid-size businesses really have Antitrust law issues?

Yes.  There are many examples of businesses of all sizes either being harmed by or committing serious antitrust violations.  Businesses of any size need to consider potential antitrust implications when making decisions regarding pricing and output, and in their relations with competitors, customers and suppliers.

 

Representative Projects

Calfee’s Antitrust and Trade Regulation attorneys have been involved in a multitude of projects and cases. Summaries of some are listed here.

  • Through an eleven week trial, successfully defended a local brokerage in an action brought by the world’s largest real estate organization alleging violations of Sherman Act Sections 1 and 2.
  • Defending an incumbent local telephone exchange carrier against a competitor’s claims of monopolization and violation of the Telecommunications Act of 1996.
  • Counseled a nationally recognized manufacturer of luxury consumer goods in restructuring its marketing and distribution systems and cooperative advertising programs, and successfully defended the manufacturer in a Justice Department investigation of its programs.
  • Represented a nationally recognized manufacturer and retailer in connection with an industry-wide investigation of competitive effects on retail pricing of certain labeling practices.
  • Successfully defended a leading steel container manufacturer in multi district, treble damage price fixing class actions, and in a parallel federal grand jury investigation based in Chicago.
  • Counseled a national manufacturer of hobby products regarding application of the Robinson-Patman Act to its marketing and promotional pricing programs.
  • Advised intellectual property clients with respect to possible antitrust implications of field of use restrictions in licensing agreements, as well as the antitrust implications of computer standard setting.
  • Represented the target of a $1 billion takeover in the Federal Trade Commission’s investigation of the competitive effects of the transaction.
  • Successfully defended a first tier supplier to the automobile manufacturing industry in a federal grand jury investigation of possible price fixing.
  • Routinely counsel clients on Hart-Scott-Rodino pre-merger notification requirements, prepare and administer filings, and present issues to the FTC and Justice Department enforcement staff in support of the transaction.
  • Represented a regional health care institution in connection with the Federal Trade Commission’s investigation of, and efforts to enjoin, its acquisition by a competing hospital system.
  • Successfully defended a national lighting manufacturer against civil allegations of resale price-fixing.