The Antitrust Attorney Blog
Author: Jarod Bona
Some lawyers focus on litigation. Other attorneys spend their time on transactions or mergers & acquisitions. Many lawyers offer some sort of legal counseling. Another group—often in Washington, DC or Brussels—spend their time close to the government, usually either administrative agencies or the legislature. And perhaps the most interesting attorneys try to keep their clients out of jail.
But your friendly antitrust attorneys—the superheroes of lawyers—do all of this. That is part of what makes practicing antitrust so fun. We are here to solve competition problems; whether they arise from transactions, disputes, or the government, we are here to help. Or perhaps you just want some basic advice. We do that too—all the time. We can even help train your employees on antitrust law as part of compliance programs.
Perhaps you are a new attorney, or a law student, and you are considering what area to practice? Try antitrust and competition law. Not only is this arena challenging and in flux—which adds to the excitement—but you also don’t pigeonhole yourself into a particular type of practice. You get to do it all—your job is to understand the essence of markets and competition and to help clients solve competition problems. And in the world of big tech, antitrust is kind of a big deal.
For those of you that aren’t antitrust attorneys, I thought it might be useful if I explained what it is that we do.
Antitrust and Business Litigation
Although much of our litigation is, in fact, antitrust litigation, much of it is not. In the business v. business litigation especially, even in cases that involve an antitrust claim, there are typically several other types of claims that are not antitrust. As an example, we explain here how we see a lot of Lanham Act False Advertising claims in our antitrust and competition practice.
Businesses compete in the marketplace, but they also compete in the courtroom, for better or worse. And when they do, their big weapon is often a federal antitrust claim (with accompanying treble damages and attorneys’ fees), but they may also be armed with other claims, including trade secret statutes, Lanham Act (both false advertising and trademark), intellectual property, tortuous interference (particularly popular in business disputes), unfair competition, unfair and deceptive trade practices, and others.
In many instances, in fact, we will receive a call from a client that thinks they may have an antitrust claim. Perhaps they read this blog post. Sometimes they do, indeed, have a potential antitrust claim. But in other instances, an antitrust claim probably won’t work, but another claim might fit, perhaps a Lanham Act claim for false advertising, or tortuous interference with contract, or some sort of state unfair trade practice claim.
Antitrust lawyers study markets and competition and are the warriors of courtroom competition between competitors. If you have a legal dispute with a competitor, you should call your friendly antitrust attorney.
Antitrust litigation itself is great fun. The cases are usually significant, document heavy, with difficult legal questions and an emphasis on economic testimony. Some of them even involve class actions or multi-district litigation.
Here is something you might not consider: Companies have historically headed to the big law firms for antitrust litigation. But the core team for most antitrust litigation is relatively small, if staffed right—just a few to a handful of attorneys. The antitrust litigation team, however, swells for document review and production. That is where the big firms have made their big profits—putting junior and mid-level associates on document review at several hundred dollars or more per hour.
But nowadays allowing big firm associates to perform document review is like washing your car with hundred dollar bills—flashy but stupid. There are many third-party providers, like Pangea3 of Thomson Reuters, or Integreon, or Lighthouse that can handle document review, organization, and production much more effectively and efficiently than the typical law firm.
If you have an antitrust case and your attorney says that they are just going to have their associates review several hundred thousand (or more) documents, you might want to ask about alternatives (if you care about money, that is). Seriously, look into it.
You don’t need a big law firm to handle antitrust cases anymore. You need someone that can put together a strong team and can manage third-party providers for document and related issues. This is particularly true when defending antitrust class actions.
Transactions and Mergers & Acquisitions
When companies merge or buy each other’s assets, antitrust issues may develop. Indeed, for transactions of a certain size, the parties will have to file what is called a Hart-Scott-Rodino filing (named after some legislators). Attorneys that do this call them HSR filings. These filings put the US antitrust agencies (FTC and DOJ) on notice that you have a transaction and gives them thirty days to decide whether to issue what is called a second request.
If you have an upcoming HSR Filing, don’t forget to read the article on the ten minefields to avoid in your HSR filing to the antitrust agencies. You might also want to better understand what aggregation means under the HSR rules.
If the agencies issue a second request, it is time to start the copy machine because they are going to want to see a lot of your documents. The process can take a long time—many months—and there is a decent likelihood that they will either challenge the transaction or require you to give them something, often a divestiture, to go forward without a challenge.
If the antitrust agency actually challenges the transaction, then your antitrust attorney gets to wear his or her litigation or administrative agency hat—depending upon which agency challenges the merger.
The FTC or DOJ might even call you about a merger in your industry that doesn’t involve you. If that happens, an antitrust lawyer can help you.
Antitrust corporate and transaction work is not, however, limited to mergers and acquisitions. Antitrust attorneys are often brought in to analyze the antitrust-liability risk of certain other agreements. This is especially common in the intellectual-property arena. Licensing agreements, for example, may be fraught with potential antitrust concerns. This is a often a chance to evaluate whether a restraint is truly ancillary to a greater pro-competitive goal.
Antitrust Counseling
This is quite common. Sometimes a company or association will want to develop an antitrust compliance policy. That is a smart idea, by the way. Other times the company will want to know if taking a certain action or developing the business a certain way carries antitrust risks.
To be useful, an antitrust attorney cannot just say “no” to any idea that could touch on antitrust issues. There is great disagreement among attorneys, judges, agencies, and legal systems about whether certain types of conduct violate the antitrust laws. And antitrust cases are usually big-enough affairs that there aren’t too many of them, so the law that does develop isn’t sufficient to fill in all the gaps. And as economic thinking changes, so does the law.
What that means is that the answer to most antitrust questions is “maybe,” or perhaps, “it depends.” An antitrust attorney serves the client best by explaining the level of risk of a particular type of action, then describing how variations of that action will add or diminish the risk. To do this the antitrust lawyer must understand the client’s industry and business objectives—which is important for any antitrust and, frankly, legal task. The antitrust attorney, in this role, is a business partner that can help the client craft their strategy by helping them understand the levels of risk of various alternatives. Our job is not to just say “no.”
Administrative Law and Government Antitrust Enforcers
Finally, the Federal Trade Commission is kind of a big deal in the antitrust world. They are one of two federal antitrust agencies, along with the Antitrust Division of the Department of Justice. An antitrust attorney becomes an administrative lawyer when they have a client with FTC-dealings.
These matters could range from clients that are targets of an FTC investigation or FTC complaint, clients that are providing the FTC with pertinent information about other companies that may be subject to an investigation, clients that are contacted by the FTC for information about a transaction or investigation, or merger issues.
Anyway, the FTC plays a big role in US antitrust law, so a good antitrust lawyer will pay attention to the FTC’s priorities and practices because that knowledge forms an important part of antitrust counseling, as well as straight FTC dealings.
In Europe, the European Commission is the government entity that is most important to competition law. At Bona Law, we are fortunate to have an attorney on our team with substantial experience practicing competition law in Europe, so we can help you with any questions about that arena. If you are interested in how companies can file antitrust complaints with the European Commission, you can read about the Intel case, as an example, here.
Criminal Antitrust Law
Antitrust violations, in some instances, also create the potential for criminal sanctions, including jail time. The Department of Justice prosecutes antitrust criminal violations and they take them seriously. The types of conduct that most often end up as part of a criminal investigation or indictment are the per se violations: mostly price-fixing, market-allocation, and bid-rigging agreements.
An antitrust attorney can help you here too. If you discover that you or your company is under investigation, you should definitely contact an attorney.
As you can see, there is a lot that your friendly antitrust attorney can do for you. You should give us a call. Perhaps we can help.