Antitrust and Competition Law

Overview

Arent Fox’s antitrust practice cuts across the entire spectrum of antitrust and competition law. We represent clients in civil and criminal investigations, mergers and acquisitions and commercial counseling. We have extensive experience handling complex antitrust and distribution-related matters for clients in a broad range of industries, including automotive, oil and gas, biotechnology, chemicals, computers, e-commerce, retailing, consumer products, financial services, media, pharmaceuticals, health care, telecommunications and many others.

Litigation & Government Investigations

Arent Fox has experience in litigation and civil non-merger enforcement matters, representing clients in complex proceedings.  Highlights of recent matters include:

• Defending the lead defendant in civil and criminal actions arising out of allegations of price-fixing in ferrosilicon and industrial silicon markets. 
• Defending a manufacturer in Kodak-style monopolization actions alleging a tie-in of the sale of proprietary replacement parts to service contracts.
• Defending a pharmaceutical drug wholesaler against Sherman Act Section 1 and Robinson-Patman Act claims related to the pricing and distribution of brand name pharmaceuticals.
• Defending the lead defendant in a price-fixing class action that began when a disgruntled former employee falsely accused potash producers of price-fixing during an antidumping proceeding.
• Defending a sportswear manufacturer against Sherman Act Section 1 claims brought by a retailer following termination of its distributorship.
• Defending a provider of anti-spam solutions against Sherman Act Section 1 group boycott claims asserted by a “spammer” that claimed e-mails were improperly blocked by our client and other Internet Service Providers.
• Prosecuting exclusive dealing and monopolization claims on behalf of automotive chemicals manufacturer against a competitor.
• Representing the college bookstore industry in litigation of price discrimination claims against major academic publishers.
• Representing a Fortune 100 consumer products company in false advertising litigation challenging a competitor’s television advertising campaign.

Mergers, Acquisitions & Collaborations

Arent Fox offers comprehensive merger and acquisition services. Before a deal is struck, we work closely with our clients to assess the antitrust risk, structure the transaction to minimize risk and advise on antitrust representations, warranties and risk sharing. When an agreement is reached, we prepare HSR filings, coordinate international filings, defend transactions at the Federal Trade Commission and Department of Justice Antitrust Division, respond to second requests and, when necessary, defend transactions in the courts. We have worked extensively with the United States agencies, as well as Europe and certain South American jurisdictions.

Counseling and Compliance

A significant part of Arent Fox’s antitrust practice involves providing ongoing counseling on diverse antitrust issues related to pricing, distribution and marketing practices, dealer/franchise relationships, intellectual property and technology licensing and other activities. We work closely with clients’ in-house legal staff, marketing and sales personnel and others to identify potential problems and find practical solutions. We also help develop well-tailored compliance programs that work in specific corporate cultures. We also prepare antitrust guidelines and policies, provide corporate training and conduct antitrust audits and internal investigations.

Robinson-Patman

Arent Fox has an active counseling and litigation practice involving the Robinson-Patman Act. We routinely advise clients regarding compliance with the act in relation to their pricing strategies, marketing and promotional allowances and other aspects of the buyer-seller relationship. We also conduct Robinson-Patman Act audits and have litigated numerous primary and secondary line price discrimination claims.

Intellectual Property

Increasingly, one’s intellectual property portfolio is a company’s most valuable asset. But intellectual property can confer market power and raise significant antitrust issues if exploited improperly. Licensing agreements and other I.P. transactions that involve exclusive dealing, tying or other restrictions can raise serious antitrust concerns. We provide comprehensive advice on the application of the antitrust laws to the licensing and enforcement of intellectual property in diverse industries. We offer counsel on the transfer of intellectual property in mergers, acquisitions and joint ventures, and we work closely with clients to anticipate and correct problems before they arise. We also offer comprehensive antitrust intellectual property litigation services, defending and prosecuting antitrust counterclaims.

Trade Associations

Trade associations have unique antitrust needs. Competitors have pro-competitive, efficiency-enhancing reasons for collaborating. But when competitors meet, antitrust issues can arise. With more than 300 trade association clients in every major industry, Arent Fox has expertise in developing association rules, bylaws, compliance programs and document-retention plans, with the goal of minimizing or eliminating potential antitrust pitfalls. We participate in association meetings where sensitive issues may be discussed, review agenda and minutes, and we provide counsel on day-to-day antitrust issues that associations face, including surveys and benchmarking, standard-setting activities, membership standards and termination and other activities. We also represent associations before the antitrust agencies in investigations affecting their industries.