Antitrust Lawyer

When a business or an individual is involved in litigation surrounding competitive practices and issues, they will likely retain an antitrust lawyer; similarly, anyone suing a business in these cases may also have an antitrust lawyer. Often, these cases have very high stakes and can be very contentious or high profile, and thus they require an extremely nuanced understanding of the law as well as business practices, including products and services, how they are made and sold, and how firms compete and collaborate.

Types of Antitrust Law

There are five basic practices that make up antitrust law: litigation and appeals, mergers and joint ventures, market conduct counseling and compliance, civil and criminal investigations, and regulatory and political advocacy.

• Litigation and appeals antitrust law occurs in court, where attorneys represent either plaintiffs or defendants. This can be in a state court, federal court, or before the Federal Trade Commission.
• Mergers and joint ventures are when companies of any size combine their businesses in some way. An antitrust lawyer may advise on strategy or help to write up contracts in these deals. They can also help to negotiate requests or manage court proceedings related to a merger. Mergers typically go most smoothly when an attorney is involved in early discussions to help streamline the process. Some mergers may create monopolies, which are regulated by the FTC and may need to be approved, which is where a lawyer’s knowledge may be most helpful.
• Market conduct counseling is a service offered by attorneys who give advice when it comes to competition and relationships within their market. Interactions with competitors can often be mischaracterized as a violation of antitrust law, and lawyers can help properly capture the discussions. They will also advise on actions that could expose a company to liability and help design proactive compliance programs to prevent future accusations.
• Criminal and civil investigations and defense focus specifically on companies and individuals accused of breaking antitrust law and defending their cases in court.
• Regulatory and political advocacy may include advising lawmakers who focus on these laws or lobbying for new laws to be put in place.

Federal Antitrust Law

The first antitrust law was the Sherman Act, passed by Congress in 1890. This act is a “comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the tule of the trade.” In 1914, two additional laws were passed: the Federal Trade Commission Act, which established the FTC as an agency, and the Clayton Act. These form the three primary laws still in effect today. The basic objective is to protect the process of competition for the benefit of consumers, ensuring strong incentives for businesses to keep prices down and quality up.

The Sherman Act

The Sherman Act explicitly outlaws any “contract, combination, or conspiracy in restraint of trade” and any “monopolization, attempted monopolization, or conspiracy or combination to monopolize.” The Supreme Court has since said that this only applies to “unreasonable” restraints of trade. This may include arrangements among competing parties to fix prices or divide markets. Under the Sherman Act, these actions are “per se,” meaning no defense or justification is allowed.

Penalties for violating the Sherman Act can be severe. Most cases fall under civil suits, but it can be enforced as a criminal law under the Department of Justice. Criminal prosecutions usually require intentional and clear violations, but when this happens, penalties can reach $100 million for corporations and $1 million for individuals, along with ten years in prison. Federal law allows these fines to be doubled to twice the amount conspirators gained or victims lost if this exceeds $100 million.

The Federal Trade Commission Act

The Federal Trade Commission Act bans “unfair methods of competition” and “unfair or deceptive acts or practices.” The Supreme Court has decided that any violation of the Sherman Act also automatically violates the FTC Act, meaning the same types of cases can be brought under both. The FTC Act also extends beyond this. All violations of this act are tried by the Federal Trade Commission, the agency established to oversee this law.

The Clayton Act

The Clayton Act addresses specific cases that the Sherman Act does not clearly prohibit, such as mergers and interlocking directorates (when the same person makes business decisions for competing companies.) Section 7 of the Clayton Act is prohibitive of mergers or acquisitions that have an effect which “may be substantially to lessen competition, or tent to create a monopoly.

In 1936, the Robinson-Patman Act was used to amend the Clayton Act to ban discriminatory prices, services, and allowances in dealings between merchants. The 1976 Hart-Scott-Rodino Antitrust Improvements act further amended it to require companies planning large mergers or acquisitions to notify the government in advance.

The Clayton Act also authorizes private parties to sue for triple damages when they have been harmed by violations of the Sherman or Clayton Act, as well as to obtain court orders that prohibit the practice in the future. This act does not allow for criminal penalties but has financial penalties related to the damage created by the legal behavior.

State Antitrust Laws

In addition to these federal statutes, each state may have additional antitrust laws. Georgia’s Fair Business Practices Act includes several provisions, primarily focusing on real estate transactions and complementing the federal laws. In addition, the Uniform Deceptive Trade Practices Act can be invoked for antitrust violations where real estate is involved.

Under Georgia law, a private lawsuit can be filed against a party for an alleged violation of antitrust law at the same time that federal action is pending. The state usually allows the aggrieved party to file suit for fraud.

Examples of Antitrust Cases

Antitrust law can have hundreds of applications, but below are some of the most common instances in which a person may retain an antitrust lawyer outside of contracts and merger planning.

• Price-fixing: This is an agreement between competitors to raise or maintain prices. This may include goods or services, but can also include conspiring to change the terms of warranties, discount programs, shipping fees, or financing rates. In doing this, they would both keep their costs or quality down due to less competition.
• Bid Rigging: When a bidding process is coordinated by the bidders, the fairness of the process is undermined. Competitors can conspire to raise prices in situations where purchasers solicit. One example is complementary bidding, which occurs when competitors agree to each submit bids with unreasonable prices or terms that the buyer will not accept. Rather than winning the bid, this is intended to make the winning bid seem fair and reasonable.
• Market Division: Also known as customer allocation, these schemes are agreements in which competitors divide markets among themselves by product, territory, or another category.
• Monopolization: Antitrust law’s goal is to prevent monopolies that take the entire market for a particular good or service. Monopolization is when one company deliberately destroys its rivals to obtain this power and is marked by the ability to raise prices and reduce supply without fear of competition. When individuals suffer financial harm due to this, it can be mitigated by an antitrust lawyer.

To learn more about how an antitrust lawyer at Lowther Walker, LLC can help you in your defense, contact us today.