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Antitrust and competition

The interconnected global economy creates new opportunities but there are heightened competition concerns. Businesses are more exposed to competition laws and enforcement actions of governments around the world.

In this environment, our antitrust and competition team is a key resource for developing and coordinating competition strategies on a global scale, responding to government investigations and enforcement actions, defending private lawsuits, as well as helping clients have a level playing field for competition.

Keeping your company competitive

Although the business services that raise antitrust questions vary across industries and countries, three things remain constant: the experience, business knowledge, and insightful representation that the antitrust and competition lawyers at Norton Rose Fulbright bring to every matter.

Government investigations

A government investigation can carry the threat of severe penalties against both organizations and individuals. Norton Rose Fulbright's experience in handling government cases provides us with the knowledge to represent clients from the initiation of investigations to trials and appeals, including negotiating with the prosecutors on production of evidence and plea bargains, when appropriate. Examples of recent matters include:

  • a ready mix concrete company in a DOJ investigation into alleged price fixing and bid rigging
  • a large cement producer in an antitrust investigation by the Attorney General of Texas
  • a trade association in shipping area in a DOJ and EU antitrust investigation regarding alleged exclusionary membership criteria
  • household name supplier in the investigation by the UK Office of Fair Trading of the major UK supermarkets and their principal suppliers in relation to alleged hub and spoke price-fixing
  • petroleum refiners in FTC investigations of pricing and market manipulation
  • British defense, security and aerospace company in an investigation alleging price fixing and group boycott in violation of the Sherman Act
  • freight forwarding company in DOJ investigation into pricing
  • tax preparation company in a civil investigative demand from state attorney general
  • health care group in investigation of alleged wage fixing
  • petroleum exploration company in alleged bid rigging investigation by DOJ on federal mineral leases
  • a private health care system in an antitrust investigation by state attorney general into alleged exclusionary services involving long term acute care facilities
  • offshore service company in a DOJ investigation regarding divestiture of certain assets in compliance with the final order on a merger
  • officer of a French company in bid rigging prosecution in marine hose industry
  • private health care system in an investigation by state attorney general into alleged exclusionary services in managed care contracting
  • concrete manufacturer in an antitrust investigation by state attorney general
  • European supplier to the food and drink industry in a UK investigation under the Competition Act of 1998
  • private health care system in a joint DOJ and state attorney general investigation for monopolization
  • municipal bond underwriting firm in an investigation by the DOJ
  • various physician networks in FTC and state investigations of price-fixing

Private antitrust litigation

Antitrust proceedings brought by competitors and consumers have always been part of the US litigation landscape, and now the availability of private actions has spread to other countries. Moreover, because government investigations often lead to private litigation, expertise in private litigation is critical. Our lawyers are experienced and skillful in defending alleged antitrust violations, including restraint of trade, monopolization, and price discrimination, as well as in bringing antitrust claims for our clients to ensure there is a level competitive playing field. We understand the significant cost of such litigation, including costs associated with document discovery, and we are well-equipped to reduce that cost by staffing cases efficiently and employing efficiency-enhancing tools.

Selected recent representative experience includes:

  • Hospital system in an antitrust suit by a competing hospital and its investors
  • Insurance group in a parens patriae action filed by state attorney general to enforce state antitrust law and redress alleged wrongs committed against the state and its citizens
  • Major movie studio in an alleged monopolization, price-fixing and conspiracy action involving distribution of home videos
  • Hospital system in an antitrust case in which physicians sued to prevent expulsion from provider network
  • A motion picture theater company in an antitrust case by a competitor alleging exclusionary distribution services
  • International energy company in connection with the defense of various antitrust cases alleging market manipulation of the natural gas market via alleged false reporting of market prices
  • Cosmetics company in a claim by former retailers claim that defendant was monopolizing the market
  • UK distributor alleging its supplier violated the brokerage prohibition of the Robinson-Patman Act
  • Stock car racing track owner for antitrust violations and attempt to monopolize the stock car racing market in violation of the Sherman Act
  • Petroleum services company in a monopolization case under the Sherman Act for calcium chloride
  • A hospital system in a suit by physicians alleging exclusionary services

Class actions

A key part of private litigation in the US, which is now being followed abroad, is the use of the class action device. When a client is faced with an antitrust class action, we draw upon extensive experience in all aspects of such litigation, including:

  • obtaining dismissals and stays of discovery
  • removing state class actions to federal court
  • preparing experts to oppose class certification
  • coordinating MDL proceedings
  • handling parallel state or federal proceedings

Selected representative experience in antitrust class actions includes:

  • title insurance company in defense of over 75 different class actions alleging price-fixing
  • health care organization in defense of class action suit alleging conspiracy to lower compensation
  • international refining and petroleum products marketer in defense of an antitrust class action suit against OPEC-related entities
  • international specialty insurance group in defense of a class action antitrust and RICO suit relating to payment of fees by brokers on policies for insureds
  • ready-mix concrete company in defense of 14 consolidated class action suits alleging price-fixing by agreeing to increase list prices and submitting rigged bids
  • freight forwarding company in a class action case alleging price-fixing in Europe, China and Japan
  • insurance company in a class action by insureds for property damage in California alleging price-fixing, breach of contract, breach of the implied covenant of good faith and fair dealing and unfair business services

Mergers, joint ventures and strategic alliances

We provide a crucial element to completing a merger, acquisition or joint venture successfully: highly experienced antitrust counsel who can take the deal from start to finish. Among the services Norton Rose Fulbright provides at all stages of the transaction include:

  • analyzing the antitrust implications of the proposed transaction
  • determining reportability and preparing filings required under the Hart-Scott-Rodino (HSR) Act
  • winning agency clearance
  • defending clients in investigations by FTC, DOJ and state attorneys general

In addition, a well-established global presence enables us to provide comprehensive, cross-border counsel on international mergers and acquisitions, joint ventures, and strategic alliances wherever needed.

Representative engagements include:

  • acquisition of large pharmaceutical company by international competitor
  • combination of global competitors in point-of-sale terminal products
  • hospital in the preparation of a written analysis of application of the federal and state antitrust laws if the hospital were to acquire another hospital with significant market share within the hospital's market area
  • concrete company in Hart-Scott-Rodino filing in connection with acquisitions of competing companies
  • petroleum refiner and marketer in numerous acquisitions
  • non-profit health care company in connection with a possible acquisition
  • regional airline regarding antitrust approval for a merger
  • one of major producers and designers of embedded computer chips with advice regarding an acquisition
  • sale of a leading international rice company to a competitor
  • antitrust advice to a large non-profit health care system about the possible formation of a new health care system joint venture
  • investigation by the FTC and state attorney general relating to acquisition by a non-profit, multispecialty academic medical center
  • advice to global provider of technical, safety and certification services on U.S. aspects of European merger including due diligence, antitrust, and other matters
  • acquisitions and dispositions by a major building products company
  • acquisitions of competing firms by a major national retailer
  • sale of a major defense manufacturer
  • acquisitions and dispositions by one of the nation's largest pipeline companies
  • acquisitions and dispositions involving hospital systems throughout the country
  • acquisitions and dispositions by major oil services companies
  • sale of a leading seismic company to a competitor

Planning and compliance

We encourage our clients to consult with us in their development of distribution, marketing and strategic growth plans. In addition to helping develop and implement customized audit and compliance programs, we assist in conducting internal investigations to uncover potential wrongdoing with the goal of limiting the company's exposure to civil and criminal antitrust claims. Representative engagements include:

  • develop antitrust compliance program for a Japanese company which produces chemical polymers
  • advice to an online market research company regarding FTC issues related to "cookies" and disclosure requirements
  • South African industrial brand management company with antitrust compliance counseling
  • review and create internal antitrust policies and compliance program for a Japanese chemical corporation
  • advice regarding potential antitrust implications of dispute with supplier to an independent hotel group
  • design a compliance program for a European supplier to the food and drink industry
  • antitrust advice regarding a health care provider network to an acute care corporation
  • antitrust advice to an industrial tools rental company
  • counseling on antitrust RESPA compliance for a title insurance company
  • assistance to a South African company with the review of the findings for an antitrust compliance report
  • advice regarding Robinson-Patman Act issues related to petroleum product pricing for an integrated energy company
  • analysis and advice on antitrust law implications for medical product purchase arrangements to an acute care corporation
  • advice to benchmarking company on antitrust issues regarding surveys
  • counseling and training on antitrust issues regarding marketing of petroleum products to an independent refiner
  • antitrust counseling for a marketing research company
  • counseling for a global trade association composed of energy trading and marketing companies on standards-setting services to promote trading crude oil and refined petroleum products
  • antitrust counseling to leading domestic paper manufacturer
  • development and implementation of an antitrust compliance program for a joint venture of leading publishers

Mergers and acquisitions

Without thorough preparation, any merger or acquisition can be subject to delay or even denial. That is why we help clients assess potential marketplace and government agency reactions to proposed transactions. We have handled hundreds of mergers and acquisitions that have withstood scrutiny in dozens of industries.

We provide services at all stages of the transaction, including:

  • analyzing the likely antitrust issues in proposed transactions
  • preparing the Hart-Scott-Rodino Act filings
  • defending clients in merger investigations by the FTC, DOJ and state attorneys general
  • representing third parties who may be impacted by proposed mergers

Civil antitrust litigation

Every business faces the possibility of civil antitrust litigation in the normal course of operations, whether brought by a government agency or a private party. We have represented both defendants and plaintiffs on virtually every type of civil antitrust claim, including RICO claims and business torts.

We have extensive experience in industries, involving issues as diverse as:

  • monopolization
  • dealer terminations
  • price fixing
  • gasoline marketing
  • price discrimination
  • educational services

Our antitrust work has included class actions and multi-district litigations ("MDL") across numerous industries. We have worked on class action antitrust cases, involving issues as diverse as oil royalties, natural gas sales, explosives, corrugated containers, title insurance, cement and milk production.

Criminal defense

Our antitrust lawyers represent clients from the outset of grand jury investigations. Whatever the extent of the proceedings, we assemble a team with the right experience for a client's particular industry.

In fact, we handled one of the first contested court hearings to determine the fine for a corporation under the federal sentencing guidelines in an antitrust price-fixing case.

Distribution and marketing issues

Our antitrust legal team advises clients on structuring distribution systems, marketing programs, licensing and other business arrangements with suppliers, wholesalers, agent/brokers and customers.

Our antitrust lawyers focus on helping clients achieve their business goals while limiting their exposure to antitrust claims such as:

  • Price discrimination
  • Tying and bundling products
  • Resale price maintenance
  • Territorial and customer limitations
  • Discriminatory promotional allowances
  • Refusals to deal

Government agencies

Whether coordinating multi-state investigations or seeking business review letters from the appropriate agencies, our antitrust lawyers want to reduce antitrust concerns for our clients' business operations.

In representing clients in civil and criminal matters, we work with governing agencies to avoid litigation, if possible.

We have represented our clients on matters before:

  • Federal Trade Commission
  • Department of Justice
  • State Attorneys General

Intellectual property

We handle complex issues that arise at the crossroads of antitrust and intellectual property.

Our intellectual property lawyers are prepared to protect our clients' copyrights, patents, trade secrets, trademarks or related interests and have represented clients in antitrust matters arising from a misuse of intellectual property, settlements of intellectual property disputes and related branding issues.

Compliance programs and audits

To reduce a company's risk, proactively developing and implementing customized antitrust audit and compliance programs is crucial. We help formulate these programs designed to encourage compliance and mitigate sanctions should a violation occur.

Our antitrust lawyers also assist companies in internal investigations and audits to uncover any wrongdoing by employees and limit exposure to civil and criminal antitrust claims.

Deceptive trade services, consumer protection and advertising

What may seem like a clever promotional tactic can result in antitrust charges from competitors or regulatory agencies. Proactive monitoring by experienced legal counsel can reduce exposure. But if it comes to litigation, we are consistently ranked as one of the top litigators in the nation.

Whether the alleged unfair or deceptive services are governed by the FTC Act itself or "Little FTC Acts" enacted by various states, we have the experience to help, both in individual cases and in class actions.

We have also handled claims of unfair or false advertising before the Better Business Bureau's National Advertising Division and have both defended and pursued false and deceptive advertising issues under the Lanham Act.

Awards and accolades

  • Best Law Firms, national ranking for antitrust, US News & World Report and Best Lawyers, 2016
  • Chambers USA, Texas: Antitrust, Chambers & Partners, 2016
  • Global Competition Review, GCR 100: Global Elite: No. 12 among the top 25 global law firms for antitrust and competition matters, Law Business Research Ltd, 2017
  • Legal 500 US, Nationwide: Antitrust: Civil Litigation & Class Actions, The Legal 500, 2016