Antitrust

We represent clients in civil and criminal litigation, agency investigations and proceedings, administrative actions, and class actions across the country. Our attorneys have served on the revisions committee for the ABA Model Jury Instructions in Civil Antitrust Cases, and they have held leadership positions in the antitrust section of the American Bar Association, Federal Bar Association, Missouri Bar, State Bar of Texas, Dallas Bar Association, and Bar Association of Metropolitan St. Louis. They have litigated antitrust and advertising cases in federal and state courts in many states and jurisdictions including courts in the First, Second, Third, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Federal Circuits, and Alabama, Arizona, California, Delaware, Florida, Hawaii, Illinois, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, and Texas.

We analyze competitive impacts, prepare Hart-Scott-Rodino filings, collaborate with expert economists, and advocate before the FTC and DOJ to secure antitrust clearance for mergers and acquisitions. We advise on strategies to avoid Second Request expenses, including whether to pull and refile, and coordinate with agencies to maximize clearance opportunities. Our advocacy has successfully obtained clearance, sometimes with early termination, without facing a Second Request. Clients involved in joint ventures, mergers, or acquisitions rely on us for antitrust guidance, including navigating compliance, avoiding pitfalls, and advising on board composition, interlocking directorates, and firewalls.

We advise on competition issues across the supply chain, implementing antitrust compliance programs and guiding clients through antitrust limitations at every operational level. Our services include advising on purchase and supply agreements, distribution, dealerships, franchises, marketing and contests, packaging, labeling, and trade associations. We also assist with responding to inquiries from the FTC, DOJ, National Advertising Division, and handling complaints from competitors or consumers.

Our antitrust lawyers represent clients in state and federal government enforcement actions and private litigation involving various antitrust issues, such as exclusive dealing, tying, resale price maintenance, price fixing, monopolization, and conspiracy to monopolize. For example, we successfully defended a client in an FTC investigation over alleged monopolization through exclusive distribution agreements by demonstrating that the client’s market share was due to superior products and services. We have also defended numerous Sherman Act Section 1 and 2 challenges to dealer agreements and state law claims related to distribution arrangements.

Additionally, we defend clients against enforcement agency allegations concerning packaging and labeling, trade regulations, resale customs regulations, intellectual property, dealer termination, and refusal to deal. When clients face anticompetitive conduct from competitors, we advise on available remedies, including legal action.

We also represent distributors and traditional franchisors in dealer termination matters and other claims brought under state “franchise protection acts,” which often broadly define “franchisors” to include many distribution/dealer relationships that might not typically be considered franchises.

Information technology developers faster than the laws regulating it. We have defended, prosecuted, and counseled in “Kodak”-type aftermarket claims arising from matters such as restrictions over software code and the licensing and distribution of software. We have prosecuted and counseled in cases where Walker Process and sham patent litigation claims were asserted as the basis for stripping patentees of immunity from antitrust laws.

Open source software, software licensing negotiations, and technology transfer all come with the potential for legal disputes for information technology producers, vendors, and users. We assist in the development and implementation of IT and outsourcing initiatives and negotiate joint ventures, outsourcing deals, co-development arrangements, and manufacturing and distribution agreements. Our IP counseling and patent practice enables our clients to leverage and protect their intellectual property and establish a competitive position.

Our attorneys advise major trade associations and professionals on the associations’ standards and policies and provide monitoring on the association level. We serve as outside antitrust counsel for a national trade association in the pharmaceutical industry, and we have successfully defended a national trade association against a $400 million Sherman Act Section 1 conspiracy claim. We also guide standard-setting organizations in developing and implementing standards, offer individual advice on trade association activities, and provide guidance for surveys, best practices, and meetings. Additionally, we have represented clients in Sherman Act claims related to their participation in trade associations.

We combine exceptional antitrust capability with our longstanding preeminent national health care practice. As a team, we work with a broad range of health care organizations and have hands-on experience in industry regulations. Our antitrust lawyers counsel systems and provider organizations on how to navigate antitrust impact on their operations, the negotiation of payor and provider agreements, physician employment agreements, group purchasing organizations or arrangements, information exchanges, and existing or proposed transactions. We have defended providers in FTC investigations and actions. We also have vast experience in health care mergers and acquisitions and joint ventures when it comes to ensuring compliance with applicable antitrust laws.

We develop antitrust compliance policies and programs tailored to our clients’ needs, including written materials and in-person or virtual training sessions. We have developed a comprehensive and adaptable web-based antitrust compliance program that includes a policy manual, model forms, training, and certifications. We also work with clients to monitor meetings and events and administer their antitrust compliance programs.

Pre-merger notification proceedings (Hart Scott Rodino Act)

• Represented seller in commissary industry; challenged by FTC; transaction successfully consummated after pull and refile
• Represented buyer in product supplies distribution industry; challenged by FTC: transaction successfully consummated after pull and refile
• Represented seller in shipping vessel industry; challenged by DOJ; transaction successfully consummated after pull and refile

Litigation

• Represented national agriculture companies, defending more than 20 nationwide putative class actions alleging Section 1 conspiracy in agricultural industry.
• Represented putative class of independent retailers of higher education course materials in antitrust suit alleging Section 1, Section 2, and Robinson-Patman Act violations by competitors and suppliers.
• Represented chemical manufacturer in defending antitrust claims brought under Section 1 and 2 (monopolization, conspiracy to monopolize, and attempted monopolization) by a customer’s alleged competitor.
• Represented a national bank and major credit card company defending Section 1 and 2 claims, resulting in grant of motion to dismiss these antitrust claims.
• Obtained dismissal by FTC of industry-wide investigation that accused our client and several competitors of restraining trade and artificially inflating prices to consumers.
• Obtained a favorable settlement in an adjudicatory proceeding before the FTC involving price-fixing allegations.
• Obtained defense judgment for a trade association, defending an international arbitration alleging Section 1 claims seeking $400 million in damages; plaintiff ordered to pay millions in defendants’ attorneys’ fees, costs, and expenses.
• Obtained summary judgment on Section 2 claims seeking $1.8 billion in damages alleged against our client, a national cell tower operator.
• After defeating a motion for preliminary injunction, obtained dismissal of Section 1 tying claims, including “Kodak” type claims, brought by a dealer against U.S. distributor of copying machines and products.
• Obtained dismissal for major online review company of a suit related to allegations of anticompetitive use of a review platform.
• Represented distributor against dealers in RICO/fraud matter, resulting in favorable multi-million dollar settlements.
• Represented a carbon steel flange manufacturer in defense of Lanham Act and common law false advertising and unfair competition claims brought by a competitor, prevailing on summary judgment and asserting counterclaims for Lanham Act and common law false designation of origin, false advertising and unfair competition.
• Represented foreign reprographics (copy industry) manufacturer and its U.S. distributor in defending putative nationwide class action on behalf of all public schools seeking $500 million in damages for Section 1 and 2 “Kodak” claims; no class was ever certified, and after favorable rulings on a series of our clients’ Illinois Brick motions, the case was favorably resolved under confidential terms.
• Obtained dismissals or favorable settlements for numerous manufacturing clients of cases alleging false advertising and unfair competition.
• Represented numerous companies in responding to subpoenas and CIDs from government agencies related to antitrust investigations.
• Represented a manufacturer in direct and indirect purchaser putative class actions regarding an alleged conspiracy to fix prices.
• Represented individuals in defense of advertising and intellectual property claims related to sale of head covering products, resulting in favorable settlement.
• Represented offshore drilling company in putative class action alleging antitrust and RICO violations, resulting in summary judgment in favor of client.
• Represented a group of physicians in an adjudicatory proceeding before the Federal Trade Commission involving price-fixing allegations.
• Represented foreign reprographics (copy industry) manufacturer and its U.S. distributor in defending $75 million Section 1 and 2 “Kodak” claims, including state law antitrust and consumer protection act claims; case settled after three years on favorable terms.