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Focus on Antitrust

Antitrust law is a specialized area of the law that focuses on the balance between consumer protection and free commerce. Antitrust and trade practice implicate the availability, variety and price of any good or service at any stage of development worldwide. Consequently, an array of legal and market data is essential to define the issues and identify the problems that legal professionals and their clients grapple with on a daily basis. Antitrust demands the mastery of statutory, administrative, and case law. Economic theory and empirical analysis play a central role in antitrust decisions in the courts, and in formulation and enforcement policy. Courtroom arguments speak of game theory, economics of information, and transaction cost economics. The best antitrust lawyers understand intimately the businesses and markets in which their clients operate. 
 
Types of Firms Practicing Antitrust Law
 
Antitrust law is practiced by small and large national and international firms. Cases can proceed as civil or criminal—both with high stakes. Larger firms routinely handle complicated mergers and acquisitions and multidistrict litigation (the “big cases”). Antitrust law practiced in small law firms tends to be confined to litigation boutiques and compliance specialists.
 
Small Law Perspective: The key for small firms is to get to the truth and the whole truth quickly and accurately as discovery is extremely expensive, and economic experts and investigators are retained immediately for the life of the case.
 
Large Law and National Perspective: Large law firms dominate antitrust counseling and litigation by offering specialized knowledge and skills in trade, mergers, franchising, intellectual property (licensing, patents and copyrights), health care, and litigation. In addition, virtually all of the aforementioned professionals provide counsel to clients on international law, compliance programs, standard setting, and criminal and civil liabilities. Outside counselors and litigators strive to team up with Corporate Counsel and management to understand the business, products, personnel and risks.
 
International Perspective: Today’s global businesses face a challenging framework of antitrust, competition, and consumer protection laws in jurisdictions around the world. With the advent of the internet, the global market place, and multinationalization of corporations, U.S. antitrust attorneys report that in the last several years they have been devoting between 10 and 20 times more time researching international law. Because the European Union has a consumer base roughly twice as big as the U.S., you can be sure that U.S. businesses will continue to expand into this market and exploit every cost-effective measure to deliver products and services to this pool of customers.
 
In-House Counsel Perspective: It isn’t enough for companies to have an antitrust compliance program—businesses have to show that their compliance program is “effective.” Though large corporations have dedicated antitrust counsel and compliance staff, businesses retain outside counsel for independent analysis, audits, a “fresh look,” and litigation support.
 
Typical Tasks Performed by Antitrust Law Attorneys 
  • Determine the elements of a cause of action and whether they are satisfied.
  • Determine the size of the relevant market.
  • Measure market power.
  • Determine whether the client has monopoly power.
  • Determine and discuss conflicts.
  • Determine the parties.
  • Implement a document control plan.
  • Interact with economic experts.
  • Interview persons with knowledge of events.
  • Conduct discovery and hire investigators.
  • Determine whether to proceed to trial or settle the action.
  • Draft pleadings.
  • Assess disclosure under the security laws, rules and regulations as case develops.
  • Create a trial logbook.
  • Discuss and proceduralize billing arrangements.  
Key Organizations for Antitrust Law Attorneys