Antitrust

In a nutshell

Antitrust Antitrust attorneys advise clients on whether their business practices comply with regulations domestically and abroad so that markets function effectively on the basis of fair and open competition. In doing so, they undertake a broad range of different legal activities, including litigation, government investigations, merger advice and counseling.

Within litigation, generally there are cases alleging improper single company conduct and those alleging anticompetitive agreements or collusion among two or more entities. The former refers to claims against a single entity for monopolistic conduct, such as predatory pricing or abuse of monopoly power. The latter refers to an agreement or conspiracy among two or more entities that could include conduct such as boycotting, bid-rigging, price-fixing and dividing markets or customers. Many of these cases are brought by a class of affected customers or consumers. Both types are private and civil.

Government investigation, or enforcement, can be brought as a civil or criminal proceeding. Civil enforcement involves investigating companies for certain conduct, asking them to change their behavior, and sometimes fining them. Criminal investigations revolve primarily around cartels and price-fixing, and carry steep criminal penalties.

Merger advice (often called merger control) is another big piece of antitrust work, whereby attorneys shepherd their client through major regulations associated with M&A transactions, which generally result in a greater market share, the likely elimination of competitors and a greater risk of monopolistic conduct. Counseling involves providing clients with advice about their current and future business practices, such as co-marketing or distribution.

What lawyers do

Civil litigation on the defense side

Receive complaint and file for motion to dismiss. This can often go through several rounds, as the claimant amends the complaint.
If working on a class action, attorneys conduct 'class' discovery, during which they work with experts to attempt defeating class action certification. They will depose the experts and file and defend their reports.
If class certification is granted, or if the case was never a class action to begin with, lawyers conduct 'merits' discovery. This requires producing all the relevant documents and conducting depositions about liability and damages.
Apply for summary judgment. If summary judgment is denied, attorneys prepare for trial, which involves determining what evidence and depositions to use and whether they will be admitted, drawing up the exhibit list, and deciding what sort of discovery or motions to push for.
Go to trial. Handle post-trial steps.
Attorneys for plaintiff conduct due diligence before filing a complaint, oppose motions to dismiss, defend class action certification and oppose summary judgment.

Civil government investigation

Receive Civil Investigative Demand (CID) from the Federal Trade Commission or Department of Justice, requesting documents. State attorneys general can also initiate investigations.
Negotiate with the government to narrow the categories of violations, limit the bounds of discovery and win more time.
Produce the requested documents, ensuring those provided comply with the government’s demand. Jay Srinivasan of Gibson Dunn describes this portion as capable of being a “massive implementation effort” in larger cases.
Negotiate and maybe give interviews to the government while waiting for its decision.
Depending on the three possible outcomes, attorneys close the investigation, negotiate, or defend the client in court or before an administrative law judge.

Criminal government investigation

Receive grand jury subpoena or FBI warrant.
Conduct investigation into possible wrongdoing.
Produce materials requested by the subpoena or warrant.
If evidence suggests possible wrongdoing, counsel client on strategies to defend against a possible charge or advise on possible plea arrangements.
Client decides whether to fight or plea. If the latter, negotiate plea agreement (including scope of charge and fine amount).
Enter into a plea agreement.
If negotiations fail and the client does not enter into plea, or chooses to fight the charge, attorneys will go to trial.

Mergers

If the merger meets one or more of the government’s enumerated thresholds, attorneys file a Hart-Scott-Rodino form (HSR), indicating the intent to merge.
Conduct due diligence and spot issues.
Determine the likelihood that the merger will be challenged, reviewed or investigated.
Depending on the government’s response to the HSR, lawyers wait, go ahead with the merger, agree to a consent decree, or defend the client in an injunctive trial or administrative hearing.

Realities of the job

Attorneys must know how markets work, how they are defined and how different forces will affect them. You don't need to have studied economics as an undergraduate but it will certainly help if you have.
The Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 are the body of law most antitrust attorneys work with and which forms the foundation for most state antitrust laws.
Legal precedent plays the largest role in antitrust matters. Lawyers must know their case law, especially US Supreme Court decisions, and the issues that have and have not been resolved.
Even the smallest antitrust case can take two to three years to make its way through litigation. If it’s only a two-party case of smaller companies, it could still take two years or more.
Because the cases tend to be large and high-profile, young associates often have to share responsibility among a larger team. If the case is big enough, however, associates may get an opportunity to second-chair depositions.
Discovery is a crucial part of the litigation process and is document and time-intensive. Associates will play a key role in document review and become integral members of the team, because nobody is more valuable to litigation than those who know the documents well.
The stakes in criminal cases are higher than in civil ones, since there is more potential for individual exposure. Public companies will tend to plead if there is a substantial basis for criminal charges, since trial will carry significant risk and uncertainty.
The DOJ, the only agency that handles criminal matters, has historically lost more than half its cases. Juries are very particular in applying an exacting burden of proof on the government. Recent Supreme Court decisions have also been favorable to antitrust defendants.
Whereas the antitrust section of the DOJ is a small part of a large department, the FTC is an independent regulatory agency and handles some matters the DOJ doesn’t, such as unfair competition and advertising. Attorneys will have different experiences with people at both the DOJ and FTC, based on the different rules and procedures of each, as well as on personalities.
Generally speaking, antitrust work on mergers will increase when the economy is good, while a downturn will bring more litigation work.
David Wales of Jones Day explains how “antitrust is really quite cyclical, so moves from periods of intense activity to moderate activity. By nature, antitrust issues are company issues, so with that comes the client demands so that you sometimes have to work night and day to get good results.”
Antitrust will also be affected by intellectual cycles and en vogue economic theories. Daniel Swanson of Gibson Dunn says: “We’re currently in an upswing of thought calling for greater activism, internationalization, and coordination in jurisdictions.”
Antitrust is renowned for its constantly evolving nature, as David Wales says: “It's not about black and white answers, so you have to be someone that embraces ambiguity. You have to be able to take a vague area of the law and give clients practical advice.”
Steven Newborn at Weil, Gotshal & Manges says: “One of the advantages of working on mergers is that they have a beginning, a middle and an end and they normally last only a few months. I find it very attractive to be able to have a decision within a relatively short period of time.”

Current issues

June 2022

An ever-evolving landscape has seen conventional antitrust understandings change as we become increasingly integrated online. Regulation of a digital economy is, and will be, a contentious battle ground in the years aheadThe biggest news in antitrust over the last 12 months has been a focus on so called ‘Big Tech,’ with Amazon, Apple, Facebook (Meta), Google, and Microsoft all coming under the microscope. As tech specialists Wilson Sonsini’s managing partner, Doug Clark, notes “There has been heightened scrutiny of all activity in life sciences and tech and litigation flows from both, so that’s kept us busy too.”
Keeping on that theme, in January 2022, US courts ruled that the Federal Trade Commission could proceed with its lawsuit to breakup Meta, which is the parent company of Facebook, Instagram and WhatsApp.
2020 marked the busiest year for the FTC since FY2001. It saw 28 merger enforcement actions in the fiscal year: ten settlements accepted for public comment; seven complaints voted out by the Commission; and 11 transactions abandoned or restructured.
Data from Decipher – a company performing due diligence for law firm hires – found that between November 2020 and January 2021, antitrust lateral moves have increased 80% compared to the average across the same period from the three years prior.
While the tech and life sciences industries are under scrutiny as a result of a glut of M&A activity in those industries, the Biden administration is cracking down on all industries. Shipping is one such industry, which has previously enjoyed limited antitrust immunity. However, the Ocean Shipping Antitrust Enforcement Act, will aim to level “the playing field in ocean shipping,” according to US congressman, Jim Costa, who introduced the bill.
US president, Joe Biden’s State of the Union Address in March, 2022 , emphasized his commitment to increased competition and you can expect firms’ antitrust departments to be busy as a result.
Jennifer Rie a senior antitrust ligationanalyst at Bloomberg , describes “the antitrust world as being in the midst of a revolution.”She notes that current policiesand weak enforcement of those policies has led to the monopolisation of several industries, with Rie pointing to Big Tech as one example. Growing dissatisfaction of business-friendly policiesand legal precedent is behind Congress’ drive to review and renew its current competition policies.
However, big mergers are still happening and Discover and WarnerMedia’s merger cleared antitrust regulation in February, with the is expected to close in the second quarter of 2022.
The election of President Biden looks set to tighten the US’ regulatory landscape, with his administration beefing up approaches to merger and conduct enforcement. Commentators suggest that while Biden is more likely to be more proactive in enforcement than his predecessor, a finely balanced Congress makes progressive or radical antitrust legislation unlikely. As of January 2021, the Biden administration was openly considering the creation of a White House antitrust czar to focus on competition policy and antitrust related issues.
Tech giants are increasingly under the spotlight for their handling of data privacy, protection and misinformation. Pro-consumer and innovative models of fair competition will be crucial as we become further defined by the digitized age. Accordingly, ‘Big Tech’ company lawsuits dominated much of 2020, with a whole host of suits filed against the industry’s giants.
A Democratic-led House panel concluded its year-and-a-half investigation last year and found that the ‘Big Four’ tech companies – Google, Facebook, Apple, and Amazon – all “wield monopoly power” and warrant more stringent antitrust enforcement.
Google were notably in the limelight on various counts. In October, the DOJ and 11 states sued the company, alleging its search functions violated aspects of the Shearman Act. The end of the year saw further suits, with Texas and other states alleging that Google had manipulated digital advertising markets. Colorado and 37 states also joined the party in filing against Google for its alleged monopoly limiting consumer choice and stifling competition.
Social media giant Facebook also took center stage after the FTC and 48 other states sued the company in December, alleging it to have abused its monopoly by swallowing smaller social networking competitors. The FTC have Facebook’s acquisition of both Instagram and WhatsApp in mind, alleging that the buying of both companies quelled the potential of any competitive threat, with the Commission seeking remedies that would include the divesture of both entities.
The United Kingdom’s departure from the EU potentially allows the UK a more robust opportunity to pursue antitrust cases against dominant US tech behemoths.
Within the EU, Margrethe Vestager – the European Commissioner for Competition – continues to have antitrust enforcement in her sights, particularly in the digital space. In 2019, Vestager hit the headlines in an unprecedented move as she ordered Broadcom to end specific practices while under investigation for potential anticompetitive behaviors.
Wedded to these concerns is the emergence of 'killer' acquisitions in the tech sphere. Defined as an acquisition from an established company acquiring a smaller start-up, these strategic buys ostensibly eliminate potential future competitors. Examples include Google’s acquisition of Fitbit and Apple’s buyout of Shazam. These types of acquisitions are also particularly prevalent in the healthcare space – experts suggest the consolidation of the US pharmaceutical industry is in fact stifling competition.
As the world becomes further defined by its commitment to decarbonization and a greener economy, companies working together to fight climate change will need to be cognizant of existing antitrust laws.