I N S I D E
T H E
M I N D S
Antitrust Law
Client Strategies
Leading Lawyers on Best Practices for Compliance,
M&A Transactions, and Litigation Proceedings
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So You Have a
Big Antitrust Problem:
Now What?
John K. Bush
Member
Greenebaum Doll & McDonald PLLC
Inside the Minds
Antitrust Law: Introduction
Antitrust is the field of law that sets rules regulating business competition
and places restrictions on companies with monopoly power or the potential
for such power. However, as one court explained, the antitrust laws “are
not intended to support artificially firms that cannot effectively compete on
their own.” As another court wrote, “competition is ruthless, unprincipled,
uncharitable, unforgiving, and a boon to society, Adam Smith reminds us,
precisely because of these qualities that make it a bane to other producers.”
The goal of an effective antitrust lawyer should be to provide skilled advice
and representation in order for the client to achieve success under these
rules of competition. Essential to this task is remaining focused on
objectives that benefit the client rather than drain its resources through
unnecessary and unproductive legal work. In antitrust, as in all areas of legal
practice, there is a need for practical, cost-effective solutions to the client’s
concerns and issues.
The antitrust attorney can bring value to the client by, among other things,
providing advice early in the decision-making process as to whether a
proposed course of action makes sense legally. The job of counsel should
be to point out potential legal obstacles to be overcome and, in some cases,
anticipate roadblocks that may require taking a different course altogether
to achieve the client’s business objectives.
When an antitrust lawyer advises a client on a legal matter, he or she should
try to anticipate any antitrust dimension of the problem, even if not brought
up by the client. Some antitrust rules are not necessarily in synch with the
typical businessperson’s understanding of the law, so it is important that
counsel remain sensitive to antitrust issues that may be implicated,
regardless of what particular legal matter the client asks the attorney to
address.
It is also important to be proactive in representing clients that seem
especially vulnerable to antitrust problems. Such clients are typically those
with large market shares as to particular types of products or services and
those in industries targeted by government enforcement agencies. For
So You Have a Big Antitrust Problem: Now What?
example, in recent years Japanese parent companies, along with their
subsidiaries in the United States and other countries, have received
especially close attention by government price fixing investigations because
of American (and European Union) regulators’ suspicion of collaborative
business practices in Japan. One should seek not simply to act defensively
on behalf of clients such as these that may be vulnerable to antitrust
challenges, but also to assist them in implementing corporate policies to
avoid antitrust problems in the first place.
The Antitrust Statutes
There are only a handful of federal antitrust statutes, but the small number
does not mean antitrust is a simple area. (Key federal antitrust statues are
reprinted in Appendix A.) The cases and doctrines developed by the courts
in the antitrust field are legion, and together they comprise a rather
complicated regulatory structure.
The Sherman Act
The oldest federal antitrust law is the Sherman Act of 1890, named for
Senator John Sherman, who was its chief author. Senator Sherman was also
the brother of Union General William Tecumseh Sherman, who led the
“March to the Sea” that pummeled the South near the close of the Civil
War. The Sherman Act has wreaked similar havoc on antitrust defendants
over the past 116 years, from American Tobacco and Standard Oil in the
early years to AT&T and Microsoft in more recent times.
The Sherman Act has two principal components. First, the statute forbids
contracts, combinations, and conspiracies in unreasonable restraint of trade.
Second, it prohibits monopolization and attempts to monopolize through
certain illegal methods.
The Sherman Act and other federal antitrust statutes attack a variety of
illegal practices, including horizontal agreements between competitors to fix
prices, restrict output, divide territories or customers, and boycott another
company, as well as certain vertical agreements between suppliers and
customers on prices and certain non-price restrictions, and different forms
Inside the Minds
of price discrimination. The federal antitrust laws also regulate in various
ways the ability of companies to grow, merge, acquire other companies, and
make use of patents if done in an improper manner to create or attempt to
create a monopoly.
Other Statutes
Other important federal antitrust statutes are the Clayton Act, which
together with the Sherman Act addresses issues such as exclusive contracts,
mergers and acquisitions, and interlocking directorates; the RobinsonPatman Act, which amended the Clayton Act to prohibit certain types of
price discrimination; the Celler-Kevauver Antimerger Act, another
amendment to the Clayton Act, which regulates certain aspects of mergers
and acquisitions; and the Federal Trade Commission Act, which provides
the Federal Trade Commission with authority to enforce the federal
antitrust laws.
Complementing the federal statutes are the laws of each state. The latter
include state antitrust statutes and state laws pertaining to trade regulation,
unfair competition, and consumer protection.
The Hart-Scott-Rodino Act
For mergers and acquisitions, the Hart-Scott-Rodino Act is the federal
statute that governs whether and how notification should be made to the
relevant federal regulatory agencies, the U.S. Federal Trade Commission
and U.S. Department of Justice, before the deal can be completed. Such
notification is required if the transaction and companies involved are of a
large enough size to require such notification and certain exemptions do
not apply. The Hart-Scott-Rodino notification consists of a form and other
documents and materials that must be submitted to the government
describing the deal and providing information pertaining to the market
share of the combined companies in the relevant market and the
competitive impact of the transaction on that market. (This notification
form is available on the Federal Trade Commission’s Web site at
www.ftc.gov/hsr/hsr.htm.)
So You Have a Big Antitrust Problem: Now What?
The purpose of Hart-Scott-Rodino notification is to give the federal
regulators a “heads-up,” so to speak, as to a pending merger or acquisition
that might adversely affect competition in a particular industry. The
regulators have a certain period of time, which may be extended, to review
the transaction and determine whether, in their view, it complies with the
antitrust laws. Often, the government does nothing to question a deal.
Sometimes the government concludes that certain divisions or other assets
of the combined businesses must be divested for the transaction to proceed
unchallenged. On very limited occasions, the government concludes that
none of the merger or acquisition should be allowed to go forward at all.
If Hart-Scott-Rodino notification must be made, it is essential for counsel
to work closely with the client to foster good relations with the regulators
who are reviewing the transaction and to try to structure the transaction so
it is not challenged. If the government does bring suit and the client
strongly disagrees with the regulators’ views, a vigorous defense must be
made to achieve a favorable resolution for the client in court.
Selected Major Antitrust Issues
Distribution
Many issues can arise from dealings between manufacturers and wholesalers
and distributors on matters such as exclusive territories and product lines,
refusals to deal with certain buyers, and contractual regulation of the
advertising, promotion, and pricing of products and services. In my
practice, these questions often arise in the context of manufacturer
promotional contracts with retailers regarding shelf space and location,
promotion, and pricing of various consumer goods such as tobacco
products and soft drinks.
Disputes between suppliers and customers can also arise in the context of a
dealer termination and may involve resale pricing, territorial restrictions,
and other related issues. These types of cases can be challenging to litigate
or arbitrate on behalf of the defendant when there is evidence that the
dealer’s termination was not carried out in compliance with governing law
Inside the Minds
and contractual requirements or was instigated as a result of complaints
from competing dealers who also had a pricing agreement with the supplier.
In many of these disputes, a key legal question to answer is whether the
business practice at issue falls into a category of activities that are per se (that
is, always) illegal or instead may be justified as reasonable under a factually
specific analysis. The legal resolution of most distribution disputes
involving antitrust issues will turn on whether the per se or so-called “rule of
reason” standard is applied. If rule of reason governs, the challenged
business practice will be upheld unless the plaintiff shows concrete anticompetitive harm in the relevant market.
By “harm,” it is not simply enough to show injury to the plaintiff. Rather,
injury to the consumer, such as higher prices or reduced production of the
relevant product or service, must be demonstrated. To make this showing,
or to dispute it, the parties typically rely on experts who “duel” as to such
highly factual issues as the appropriate market definition (both as to
product and geography) and the extent of foreclosure to the market and
impact on competition resulting from the challenged practice.
Pricing
In addition to distribution issues, questions as to pricing often occupy the
time of antitrust counsel. Pricing claims may be brought by the government
as well as private plaintiffs. Price fixing claims generally come in two
varieties: (1) a “horizontal claim,” which arises when two or more
companies on the same level of distribution (in other words, competitors)
are accused of agreeing to have the same prices or rigging bids, and (2) a
“vertical claim,” which involves companies at different levels of distribution
(e.g., a manufacturer and a wholesaler or retailer) that are charged with
agreeing on resale prices.
Other important pricing issues arise under the Robinson-Patman Act,
which is a federal law that prohibits discrimination in price between
purchases of commodities of like grade and quality that are likely to cause
substantial injury to competition. In other words, similarly situated buyers
in the same product market are generally supposed to be offered the same
So You Have a Big Antitrust Problem: Now What?
terms by sellers. There are, however, important exceptions to this rule that
have to be considered and applied in each case.
The classic price fixing scenario is the smoke-filled room where competitors
gather in secret to coordinate strategy, or perhaps the OPEC cartel, in
which representatives of foreign oil-producing countries meet quite openly,
without any U.S. antitrust law restrictions, to agree on fixed output levels to
support a targeted price. The price fixing investigations and cases I have
encountered usually are not of this sort. They typically do not involve
explicit, face-to-face agreements between competitors, but instead arise
from circumstantial (that is, indirect) evidence that can be read different
ways.
For example, there may be proof of informal, ambiguous exchanges of
pricing, cost, or output information between two competitors (such as
e-mail exchanged by one competitor’s employee with a friend who works at
a competitor), followed by similar pricing by the competitors. It is the job
of the plaintiff’s attorney or prosecutor to “connect the dots” and prove the
elements of an illegal conspiracy from these facts. In contrast, the
defendant’s counsel must convince the jury to accept a more benign
explanation.
If a price fixing claim can be proved, it is one of the most powerful of all
antitrust charges. Price fixing between competitors is one of those per se
offenses discussed earlier—the kind of activity that is always illegal.
Health Care
One industry that has been investigated and the subject of significant
litigation involving antitrust claims is health care. A major issue is the extent
to which physician groups and other health care providers may collaborate
without running afoul of antitrust laws. This question typically arises in the
context of negotiations between managed care insurers and medical
providers over reimbursement rates. Other antitrust concerns may arise
from activities such as mergers and acquisitions and the granting (or
termination) of physician staff privileges.
Inside the Minds
Other Wrongful Competitor Collaboration
Another area in which allegations of wrongful competitor collaboration can
arise is that involving private standard-setting organizations. In many
industries, a private association or group agrees upon standards as to
specifications for certain products so there is standardization for ease of
consumer use and for other reasons such as safety considerations.
Often, competitors participate in or have input in the decision-making of
the standard-setting organization. If the resulting standard puts one
competitor at a disadvantage—which can happen if that competitor is
unable to produce or has more difficulty than its competitors in producing
a product that meets the standard—the disadvantaged competitor
sometimes will argue that the competitors who are able to meet the new
standard and financially benefit from its use somehow improperly
influenced the standard-setting organization’s deliberations. In its most
extreme form, this argument will be that all of the other competitors
colluded to interfere improperly with the disadvantaged competitor’s
business through the standard-setting process.
Besides standard-setting organizations, another context with the potential
for claims of wrongful competitor collaboration is the area of joint
ventures. Although the rules have been relaxed somewhat in recent years to
allow for pro-competitive joint ventures between otherwise independent
competitors, counsel should still play a key role in structuring any such
project to ensure that it fully complies with the antitrust laws.
Antitrust Counsel’s Role in Adding Value
In sensitive situations that may erupt into legal disputes, it is often helpful
to have outside counsel involved behind the scenes reviewing the client’s
correspondence, e-mails, and other communications with potentially
adverse parties and other relevant parties to the dispute. In many instances,
antitrust counsel can advise clients as to the language used to communicate
their position, which will either help prevent the matter from escalating into
litigation or, if legal action is inevitable, put the client into a better posture
to prosecute or defend the suit or arbitration.
So You Have a Big Antitrust Problem: Now What?
Another important means for avoiding legal situations is the
implementation of an effective antitrust compliance policy at a corporate
client. It is always helpful for a company to have its employees reminded of
pricing and distribution issues typically arising in their industry that may
have antitrust concerns. Not only does such training help employees avoid
making mistakes that might lead to a lawsuit, but also an antitrust
compliance policy may help protect the corporation from incurring
significant civil and criminal penalties in the unfortunate event that an
employee undertakes unauthorized action giving rise to an antitrust
investigation or suit.
The financial goals for advising and representing an antitrust plaintiff are to
recover money damages for the client and to obtain changes in the
marketplace, either through a negotiated settlement or through court order,
that allow the client to operate more successfully and achieve greater
financial success.
Damages recovery in antitrust litigation can be particularly rewarding for a
successful plaintiff because the federal antitrust laws allow for trebling, or
tripling, of damages that can be proved, and they allow for recovery of all
reasonable attorneys’ fees and costs. This relief is in stark contrast to the
normal rules for litigation in the United States, which do not allow the
prevailing party to collect for attorneys’ fees and do not allow a damages
multiplier.
Potentially even more important for a successful antitrust plaintiff is the
ability to obtain a settlement or consent judgment or a court order that
restructures or regulates a portion or even all of a particular industry to
allow that plaintiff to compete more effectively. Depending on how serious
the structural issue is, this form of relief can have huge financial
implications. Consider, for example, the monetary impact of the breakup of
a large corporation such as AT&T, or the effect on Microsoft’s competitors
from the changes in Microsoft’s business practices effected through
antitrust claims brought against that company.
On the defense side, counsel can add value to the client by analyzing at an
early stage the legal risk of a claim. The antitrust defense attorney can advise
Inside the Minds
as to a reasonable settlement or counsel for a rigorous defense in court
based on anticipated liability exposure and advancement of the client’s
legitimate business objectives.
Common Mistakes of Clients
A big mistake for clients to avoid is putting themselves in positions where
they are perceived as being too close with competitors. This problem
frequently arises at trade shows and other occasions when competitors
gather together. There is a natural human tendency for salespeople to be
friendly to others, and this sometimes translates into conversation on
“dangerous” topics between employees of rival companies at these events.
For example, an invitation from one competitor’s employee to another
competitor’s employee to have a drink or play a round of golf together can
put both persons in an awkward position if there is ever a claim made of
collusion between the two companies. Even if no improper information is
exchanged between the two, the existence of the meeting can be
circumstantial evidence to support a conspiracy claim.
Unless there is a properly formed joint venture between competitors and
the communication legitimately pertains to its activities, the best advice is
simply to avoid situations where a client’s representative is alone in a
meeting with a competitor’s representative. If there is a need for direct
communication between competitors, such as at an industry association
meeting, any substantive discussion should be held in the presence of at
least one lawyer who can advise as to topics raising antitrust issues that
should be off limits. Counsel also should document exactly what took place
at the meeting so the exchange cannot be used as evidence of collusion in
the event of future litigation.
Client Strategies
Before Meeting a New Client
For a corporate client, counsel should research its Internet site and review
recent press releases and other news items about the company to get a feel
So You Have a Big Antitrust Problem: Now What?
for the client’s business objectives and position in the market before the
first meeting. It is also important to seek out information from the Internet
and other sources about the background of the person who is the direct
contact at the client (often the client’s general counsel) and other persons at
the client whom counsel anticipates will be decision-makers on the matter.
Knowing something about the client’s business before the interview allows
the attorney to focus on issues likely to arise for that client based upon its
particular industry and market position.
Such an approach enables counsel to show the client from the start that the
lawyer will take initiative in gathering relevant information and formulating
strategy. Also, as discussed, it helps narrow the focus of the meeting so the
client and attorney can more quickly get to the legal issues that need to be
addressed.
Types of Information Sought
Counsel should seek information regarding the types of products and
services sold by the client, the client’s market share, the client’s competitors,
the extent of government investigation of the industry regarding antitrust
matters, and the history of the company and industry as to antitrust
disputes. It is also helpful to ask questions regarding management structure
and organization of the client, including any relevant subsidiary and parent
entities.
Information regarding the client’s position in the marketplace is important
for many antitrust issues, which often turn on market share, the number
and size of competitors, and the impact of business practices on
competition. Information regarding the client’s internal management and
structure is key to understanding how decisions are made within the
company and to ensure that there is proper communication of business and
legal objectives and strategy.
Communication with the Client
An attorney should meet and communicate by telephone and e-mail with
the client extensively to understand its business strategy and legal issues. It
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is important for the lawyer and client to be on the same page as to the right
strategy. In addition, one often gets good ideas for legal strategy from the
client’s feedback as to what intuitively makes sense for the business.
There is a famous antitrust adage from Judge Learned Hand that “the
successful competitor, having been urged to compete, must not be turned
upon when he wins.” Nonetheless, if the client is a dominant player in an
industry, it will often receive more legal scrutiny from competitors and the
government. Thus, a company with a large market share will need to be
more cautious in certain business practices (e.g., exclusive contracts) than
companies with smaller sales. Likewise, for a client that is in an industry
that has been recently prone to government investigation or private
antitrust suits, there is a need for extra caution in planning business strategy
to avoid raising antitrust concerns.
To plan strategy, counsel should obtain from the client information as to its
market position and the type of product or service and industry involved.
Also, as in every legal dispute, strategy will be dictated by the strength of
the client’s legal position and the amount of money involved, both of which
should be “early and often” topics of conversation between the client and
counsel.
Keys to Success
Essentially, important steps for effective representation are:
•
•
•
Get an accurate assessment of the relevant facts.
Make an informed judgment as to the strength of the client’s legal
position based on those facts.
Determine if the opposing party’s view of the relative strengths and
weaknesses of the claims are close to the client’s, and if so, usually
the dispute can be resolved.
If any of these factors are not met or are misapplied, usually the dispute
continues. In an antitrust matter, like any other legal dispute, counsel and
client should continually reassess the client’s position as the matter
So You Have a Big Antitrust Problem: Now What?
proceeds to determine if an opportunity for resolution exists, or if the
parties are so far apart in their relative perceptions of the case that litigation
continues to make sense.
Formulating a Strategy
As a plaintiff’s counsel, one should look for ways to move the case or
arbitration along as quickly as possible. That means pursuing discovery
aggressively and responding to defense counsel’s discovery requests in a
timely and professional manner. The plaintiff’s counsel should strive never
to miss a deadline or seek an unnecessary extension. Delay in litigation
usually works to the favor of the defendant.
Defense counsel also has ethical obligations to comply with litigation
deadlines and not be obstructive to the judicial process. However, defense
counsel does owe a duty to his or her client to raise all legitimate defenses,
procedural and substantive, that by definition have the impact of delaying
or ending the plaintiff’s case.
In short, the objective of the plaintiff’s counsel should be to obtain
monetary recovery and other relief for the client in the most expeditious
fashion. The objective of defense counsel is to minimize the defendant’s
cost, which may or may not be achieved through a long dispute.
Asking the Right Questions
To resolve an antitrust dispute, counsel should ask the client numerous
questions to determine its objectives and the potential legal and business
obstacles to achieve those goals. Examples include:
•
•
•
•
What do you want to achieve?
What do you believe the opposing party wants to achieve?
What are you willing to sacrifice in terms of time and money to
achieve your objectives?
Are you aware of the financial and non-financial impact this matter
could have on your company?
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•
What are you willing to sacrifice from your stated objectives to
achieve resolution of this matter?
A client can be very emotional at the beginning of a case and very willing to
litigate not just for monetary reasons, but on principle alone. These
questions are designed to nudge the client toward a more objective and
rational view of the case. The answers hopefully allow the client at each
stage of the dispute to assess realistically whether and on what terms the
matter can and should be resolved.
Documentation
There is an old litigation saying that “paper kills,” and this maxim is
especially appropriate for antitrust litigation matters. As early as possible in
the case, counsel should seek to review the relevant e-mails and other
internal communications of key employees to learn what has been written
about matters pertaining to the dispute and determine if there are any
important documents (there usually are) that help “kill” the position of one
side or the other. Judges and juries tend to place more weight on what was
written at the time of the events at issue than what is testified to by
witnesses after the fact.
It is important to develop strategy and prepare witnesses to testify
consistently with the documents and to understand those documents so
important facts stated in them can be explained and used to further, rather
than harm, the client’s case.
Bad Facts
Hopefully, any “bad facts” are disclosed by the client to counsel early in the
representation so the legal strategy takes them into account. Unfortunately,
sometimes the management at the client are not aware of bad facts until
they are unearthed through investigation. Once the attorney becomes aware
of the bad facts, the best approach is not to hide them but to understand
the context in which they occurred and present them to the judge and jury
in the best possible light. Often, there are explanations for bad facts that
So You Have a Big Antitrust Problem: Now What?
can persuade a judge and jury that those facts may not be as bad as they at
first may seem.
Many times, negative facts pertain to matters that are ultimately not legally
relevant to the dispute. An important strategy is to develop and push case
themes and arguments that focus attention away from the negative
irrelevancies and towards the positive probative facts. Clients generally
benefit from not trying to cover up negative facts, but rather being
forthright and placing them in the right context.
Building a Relationship with the Client
Antitrust laws can create serious issues for a company, often presenting
crises that can have a major impact on the financial health of a business.
Counsel should maintain close contact with the client and provide clear,
objective, and level-headed advice.
On a general level, it is important to understand the client’s legitimate
business objectives to ensure that the legal strategy facilitates rather than
hinders those goals. As to particulars, it is important to be highly responsive
to the client (e.g., return telephone calls and respond to e-mails promptly)
and to maintain clear communication to understand the client’s needs and
to take appropriate legal steps.
With each new client, the attorney must ask enough people at the client to
understand their concerns and business objectives, and make sure the
proper decision-makers at the client understand the potential legal risk and
rewards of a chosen course of action.
Ideally, an attorney should know the decision-makers at the client well
enough personally to feel comfortable telling them when he or she disagrees
with their goals from a legal perspective. Counsel should also make a
practice of keeping the client informed, in a timely manner, of potentially
bad outcomes so no one can claim surprise in the event that the worst case
scenario does occur. Good surprises are nice, but they rarely have the
impact of bad surprises, which are not welcome in a corporate
environment.
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Boundaries
It is important to establish boundaries with clients. They must know the
attorney will only act legally and ethically to achieve business objectives.
Also, counsel should take a cooperative approach with opposing counsel
(unless they are unreasonable themselves), because typically antitrust
matters are discovery-intensive, complex disputes that can be drawn out
over a long period, thus necessitating that each side act with civility and
professionally to see the matter through to successful resolution.
If an attorney and his or her client are perceived to be “taking the high
road,” it usually gains points with the judge and jury and may positively
impact the other side’s view of resolving the dispute, making settlement
more easily attainable.
Creating a Game Plan
To develop the legal theory of the case, counsel should ask, “What are the
facts that would make a judge and jury in their gut want to decide in the
client’s favor?” The attorney then takes those facts and distills them into a
short statement or phrase that resonates with the average person. Many
times, the client will come up with the theme itself through comments and
observations made by its employees in interviews and depositions. Nonlawyers are often better than lawyers at plainly stating the essence of a
matter in a way the average person can understand.
For complicated issues, it is usually helpful to set forth in writing for the
client all of its options and their potential consequences. The presentation
should be concise and should clearly state counsel’s recommendations.
Diagramming potential outcomes and probabilities for different stages of
the dispute can be very helpful. It puts into tangible terms what is at stake
for the client in the dispute. This approach is particularly effective for
antitrust disputes in which the applicable law may be abstract conceptually.
Specifying different concrete scenarios makes the issues more
understandable to the businessperson who is not an antitrust specialist.
So You Have a Big Antitrust Problem: Now What?
If the representation does go off track as to legal strategy or its execution,
counsel should set up a face-to-face meeting with the client as soon as
possible (preferably over a good meal) to discuss what has gone wrong,
how to fix it, and how to ensure that it won’t happen again.
To Litigate or Not
Football is a mild metaphor for litigation—many would call it war. In
litigation, as in any endeavor to which it may be analogized, things rarely go
as planned on the field, so success depends on the ability to adjust to tactics
of your opponent and other conditions. Think of a football game won by
the team that had a horrible first half but made critical adjustments at halftime to come back in the final minutes of the game.
Counsel should consider the implications of a legal strategy as it may affect
all facets of the client’s operations and make the client aware of such risk so
informed decisions are made. Non-legal ramifications can also be very
important. It makes no sense to pursue a legal strategy that wrecks a client’s
business from a public relations perspective. There often is a public and
customer relations component of the matter. It is important that litigation
developments and results are communicated accurately to the public
generally and customers particularly in a manner that minimizes disruption
of the client’s business relationships and goodwill.
Litigation is always a distraction for a well-run business. With the exception
of a limited number of industries that deal with lawsuits as part of their
normal business practices, or the wronged competitor with a rock-solid
complaint, most companies rarely benefit financially from litigation. It is
therefore essential to devise a strategy based on the client’s market position,
strength of the case, and size of the dispute that seeks to minimize the
amount of time and money spent in a legal action or arbitration.
If the client believes strongly in its position and understands the costs
involved in litigating, counsel should be prepared to engage in vigorous
prosecution or defense of the matter. If the client’s heart is not in the fight,
however, the lawyer should not waste the client’s time and money in
unwanted litigation. Exploring creative ways to settle becomes a higher
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priority for the client who loathes litigation of an antitrust dispute involving
a significant amount of money.
A client’s willingness to settle dictates how much time and money are spent
in discovery, motions practice, trial preparation, and other aspects of the
case. Of course, usually it is more difficult to settle a matter if the other side
knows the client badly wants to settle. It can be a tricky balancing act to
maintain the impression to the other side that a client is willing to take a
case all the way to trial or arbitration while the same client urgently reminds
its counsel privately that it truly wants to settle as soon as possible.
In addition, one should consider that there may be other parties who are
also defendants whose interests may impact resolution of the dispute. In
cases involving multiple parties, many judges, for better or worse, tend to
lump all defendants together even though each defendant has its own
particular interests and strengths and weaknesses in the case. So, even
though the client’s welfare should be the foremost concern, defense counsel
may find himself or herself having to litigate in a joint defense group with
other parties—sometimes even the client’s chief competitors—who can make
for strange bedfellows.
Conclusion
Success in an antitrust case, as in all legal matters, is leaving the client satisfied
that the work the attorney performed was worth the investment made by the
client. That may sometimes translate into a 100 percent victory in court, but
more often it means working for a solution to the client’s legal problems that
allows it to avoid excessive and costly litigation. Also, in some cases, success
is working out settlements to difficult situations in which the client recognizes
that mistakes were made that need to be fixed.
Remember that the client is the boss, but that to make good decisions, the
client needs good, honest advice from a lawyer who is not afraid to challenge
the client’s first impressions or conventional thinking as to proper strategy.
Ultimately, a lawyer is hired to be objective and use good judgment. Antitrust
law is not a specialty of most successful businesspeople. In fact, it is viewed
So You Have a Big Antitrust Problem: Now What?
with suspicion by most of them. The job of a good antitrust attorney is to
make the client aware of potential antitrust issues but not devise strategies
that are unnecessary impediments to the client’s business objectives.
John K. Bush is a member of the Louisville, Kentucky, office of Greenebaum Doll &
McDonald PLLC, where he has practiced since 1996. From 1990 to 1996, he was an
associate in the Washington, D.C., office of Gibson, Dunn & Crutcher. He graduated from
Vanderbilt University and Harvard Law School, and he served as a judicial clerk for the
U.S. Court of Appeals for the Eighth Circuit.
Mr. Bush represents companies and individuals in antitrust and other complex litigation,
including securities, financial institutions, health care, franchise, insurance, intellectual property,
and product liability disputes. He has litigated in state and federal courts in numerous
jurisdictions and in arbitration proceedings. In 2005 and 2006, Chambers & Partners
selected him as one of America’s leading business lawyers in general commercial litigation. The
2007 edition of The Best Lawyers in America selected Mr. Bush in the areas of antitrust
law and appellate law..
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