The antitrust laws govern the way companies and individuals must compete and conduct business. As such, antitrust laws affect nearly every manufacturer, distributor, retailer, seller, and buyer of goods or services. Not understanding the antitrust laws, or deliberately ignoring them, can have extraordinary consequences for companies and individuals, including jail time, crushing criminal fines and restitution, and treble damages. In addition, antitrust cases, whether government initiated or private actions, are very costly to defend and litigate, and criminal antitrust investigations and prosecutions in particular can wreak havoc on companies and their employees.
Ulmer’s antitrust practice and attorneys, led by a former senior trial attorney with the U.S. Department of Justice’s Antitrust Division, have years of experience and a track record of success in helping clients navigate federal and state antitrust and competition laws so that they can eliminate or greatly reduce antitrust risk and pitfalls and achieve their strategic business goals. We aggressively defend clients’ antitrust interests in government-initiated investigations, proceedings, and cases, as well as in litigation, including private plaintiff actions. Ulmer has both extensive criminal and civil antitrust expertise.
There are two distinct yet related parts to Ulmer’s antitrust practice: counseling and litigation.
The first line of defense for our clients is to avoid antitrust problems in the first place through front-end counseling. We advise our clients about what the antitrust laws allow and prohibit. We partner with our clients in providing antitrust training tailored to their specific needs, and we devise and help them implement antitrust compliance procedures to minimize antitrust risk. In the antitrust world, an ounce of prevention is worth more than a pound of cure. This is especially so because certain types of agreements – such as price fixing, bid rigging, and market allocation agreements between competitors – are per se illegal.
At Ulmer, our antitrust attorneys have more than four decades of experience and proven success in helping clients avoid antitrust pitfalls. Our experience ranges from representing clients involved in criminal cartel enforcement investigations and proceedings, to conducting sophisticated relevant market analysis and advising our clients as to the likelihood of government intervention with respect to proposed mergers and acquisitions, to providing antitrust counseling on everyday antitrust issues related to pricing, sales, distribution, purchasing, and interaction with competitors. At all times, our goal is to work with our clients to limit their antitrust risk and exposure through smart, effective, proactive antitrust counseling, so that our clients can prudently achieve their business objectives.
Ulmer’s antitrust attorneys regularly advise and defend companies (both large and small) and individuals on a wide variety of horizontal and vertical restraints that bring into play federal (principally the Sherman and Clayton Acts) and state antitrust laws, including the following:
- Cartel Conduct – Horizontal agreements between competitors to fix prices, rig bids, allocate markets, or otherwise work to subvert the competitive process.
- Pricing – Pricing policies and decisions of all stripes, including analyzing the pros and cons of vertical pricing restraints, such as Resale Price Maintenance (RPM) agreements, Minimum Advertised Price (MAP) policies, Manufacturer Suggested Retail Price (MSRP) policies, and Colgate policies; drafting appropriate Colgate, RPM, MAP, and MSRP policies to fit our clients’ business strategies and goals; predatory pricing issues; and bids for government and private contracts.
- Price Discrimination – Price discrimination under the Robinson-Patman Act and parallel state price discrimination laws, including seller and buyer-induced liability; related defenses to price discrimination claims; and bundling arrangements with customers and suppliers.
- Distribution – Exclusive dealing arrangements; dealer terminations; dealer relations; structuring distribution systems; and dual distributor issues.
- Purchasing – Exclusive purchasing agreements with customers or suppliers; monopsony issues; and illegal tying issues.
- Group Boycotts and Concerted Refusals to Deal – Horizontal group boycotts and concerted refusals to deal, and horizontal group boycotts facilitated by vertical suppliers or customers.
- Monopoly and Attempt to Monopolize – Analyzing monopolization and attempted monopolization issues in highly concentrated markets.
- Mergers and Acquisitions – Advising clients on all issues related to proposed mergers and acquisitions, including the likelihood of Second Requests and government challenges by the U.S. Department of Justice’s Antitrust Division or the Federal Trade Commission; identifying and analyzing relevant product and geographic markets; conducting HHI analyses; compliance with pre-merger notification requirements; responding to CID and subpoena requests from third-party witnesses; and representing clients in merger proceedings involving the Federal Trade Commission and U.S. Department of Justice.
- Non-Solicitation and Non-Compete Agreements Involving Labor Markets – Non-solicitation and non-compete agreements between competitors and between employers and their employees, and analyzing ancillary restraints of trade imposed by contracts.
- Competitor Collaborations – Joint venture and co-operative ventures, and dual distribution issues arising between competitors and customers.
- Trade Associations – Trade associations and what members can and cannot do regarding trade association activities.
- International Competition Issues – Analyzing the effect of foreign antitrust laws on international commerce conducted by U.S.-based companies, and analyzing the effect of U.S. antitrust laws on foreign companies.
- FTAIA – Analyzing the application and effect of the Federal Trade Antitrust Improvement Act of 1982 (FTAIA) on U.S. commerce.
Not all antitrust issues can be avoided or resolved outside the court room. Many antitrust practitioners have never seen the inside of a court room. Not so at Ulmer. Ulmer’s antitrust attorneys have extensive experience litigating and trying antitrust cases and have a proven track record of success. Ulmer’s attorneys have successfully represented clients in criminal and civil cases and proceedings involving the U.S. Department of Justice, the Federal Trade Commission, state antitrust agencies, and in complex antitrust cases in federal and state trial and appellate courts. We partner with our clients on strategy and objectives, and we do so in a cost-effective way to maximize our value to our clients.
Criminal Antitrust Investigations and Prosecutions
In the criminal antitrust context, the stakes are the highest. The possibility of jail exists for culpable executives and employees. “Bet the company” criminal fines and restitution can wreck a company, as well as other potential collateral costs (such as tag-along private treble damage actions) flowing from criminal antitrust prosecutions. When faced with possible criminal antitrust exposure, it is experience, skill, and judgment that matter most.
Understanding how the government builds, evaluates, and tries criminal cases is imperative. The issue boils down to whether there was an agreement between competitors or not, and whether the government can prove the existence of one. Time is of the essence. Identifying possible criminal exposure quickly is imperative. Often there is a race to the U.S. Department of Justice’s Antitrust Division by co-conspirators seeking leniency under the Antitrust Division’s unique Amnesty program. Amnesty is a zero sum game: only one company will get amnesty under the Antitrust Division’s rules. Waiting even a day (or an hour) longer to act than another competitor can have catastrophic impact for a company and its directors, officers, and employees. After conditional leniency is granted to one co-conspirator, there often is another race to the Antitrust Division where co-conspirators seek favorable treatment for early cooperation credit. Not understanding the full range of collateral consequences and risks, including near-certain tag-along private treble damage actions and the implications of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA) resulting from amnesty or other early cooperation, however, can also be devastating for a company.
Ulmer’s antitrust bench includes a former senior trial attorney with the U.S. Department of Justice’s Antitrust Division, who has extensive first chair experience handling all phases of government-led criminal antitrust investigations, prosecutions, and trials, including federal grand jury investigations involving cartels engaged in price fixing, bid rigging, and various forms of market allocation. Our antitrust team has a proven track record of quickly and comprehensively identifying and assessing the crucial facts, law, and policy factors that drive criminal antitrust investigations and prosecutions; analyzing and weighing the full array of client options; and developing practical and effective defense and litigation strategies appropriate to each client’s situation.
Ulmer is experienced in handling all phases of criminal antitrust cases, including:
- Conducting internal corporate investigations;
- Representing companies and their officers and employees in federal grand jury proceedings;
- Representing individual witnesses in federal grand jury proceedings;
- Responding to grand jury subpoenas, including managing and coordinating voluminous document productions;
- Evaluating the benefits and risks of corporate or individual leniency under the U.S. Department of Justice’s Antitrust Division’s Amnesty program;
- Evaluating the benefits and risks of seeking early cooperation credit when amnesty is not possible;
- Developing and implementing successful defense strategies;
- Proffering negotiations with the U.S. Department of Justice’s Antitrust Division and other government agencies;
- Plea negotiations;
- Sentencing under the federal sentencing guidelines (U.S.S.G.);
- Trying criminal antitrust cases; and
- Appellate practice involving antitrust cases.
Ulmer Partner Richard Hamilton was featured during the June 7 episode of “Nightly Business Report,” a national news program produced by CNBC that airs on PBS. Offering his insider perspective as a former attorney in the DOJ’s Antitrust Division, Hamilton was interviewed regarding the Justice Department’s antitrust probe of Google and...
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