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Antitrust

As businesses rely increasingly on beneficial alliances and efficiency-enhancing agreements, compliance with federal, state and international antitrust and competition laws becomes a growing concern. Complex issues that implicate antitrust and competition laws include whether competitors can collaborate on production, sales and marketing initiatives; pool their resources to lobby an administrative agency for favorable regulations; or exchange information through a trade association. Manufacturers wrestle with permissible marketing communications to resellers of their products about pricing, the circumstances under which they can charge different prices to different customers, the design and management of complex distribution systems, and how to craft exclusive dealing arrangements. Protecting and monetizing intellectual property through licensing and patent, trademark and copyright prosecutions also must include consideration of antitrust issues.

McCarter maintains an established practice covering all aspects of antitrust counseling and litigation. Our experience includes litigation and civil and criminal investigations involving claims or charges of participation in price-fixing conspiracies, horizontal market allocations, group boycotts, anticompetitive competitor collaborations/joint ventures/trade association conduct, tying, exclusive dealing, dealer terminations, monopolization, anticompetitive licensing of intellectual property and price discrimination. We analyze and obtain clearance for merger transactions from the Federal Trade Commission (FTC), Department of Justice (DOJ) and foreign competition authorities. We also represent third parties wishing to object to mergers before the FTC, DOJ and State Attorneys General.

The scope of our advice and representation includes:

• Price fixing
• Group boycotts
• Refusals to deal
• Tying
• Exclusive dealing
• Monopolization
• Reverse-payment settlements (Hatch-Waxman Act)
• Licensing of intellectual property
• Dealer terminations
• Franchising
• Drafting of distributor agreements
• Resale price maintenance
• Customer and territorial restraints, and other vertical restraints
• Formulating and implementing antitrust-compliant joint ventures and competitor collaborations
• Drafting and presenting antitrust compliance and training programs
• Trade association conduct
• Government investigations of anticompetitive conduct, including those initiated by the FTC, DOJ and State Attorneys General
• All aspects of the Hart-Scott-Rodino pre-merger notification process, including complying with government-issued Second Requests and securing
antitrust regulatory approvals for a variety of transactions

Antitrust Litigation

We regularly counsel clients on pricing policies, distribution practices, trade association activities, antitrust compliance programs, and mergers and joint ventures.  Our goal is to help our clients implement their business strategies while complying with antitrust laws.

Representative Matters

We secured dismissal of state law antitrust and unfair competition claims brought against our client in Louisiana by that state’s Attorney General. The state court held that the Louisiana Department of Health and Hospitals, not the AG, was the party vested with the cause of action. Furthermore, the court held that indirect purchasers cannot recover damages under Louisiana’s antitrust and unfair practices statutes.
We successfully defended three actions by distributors terminated after our client’s company was sold to a major international beverage manufacturer. We won each case at the pre-trial, preliminary injunction stage and subsequently resolved the matters.
For a fraction of the original demand (less than 1 percent), we favorably settled a multidistrict class action litigation brought in the Eastern District of Louisiana asserting Sherman Act Section 1 and 2 claims against the largest manufacturers and largest distributor in the swimming pool products industry.
We represented more than a dozen Spring Air mattress manufacturers and licensees in MDL litigation in federal court against several domestic and international manufacturers of polyurethane foam. The suit sought damages and injunctive relief from defendants pursuant to §1 of the Sherman Antitrust Act alleging that, for more than a decade, defendants engaged in a conspiracy to fix the price of polyurethane foam used in our mattress products. On the eve of trial, we reached a very favorable settlement.

Speaking

11/10/15

Publications

02/9/16