Antitrust & Competition Law
Antitrust law has five basic practice areas:
- litigation and appeals;
- mergers and joint ventures;
- market conduct counseling and compliance;
- civil and criminal investigations; and
- regulatory and political advocacy.
Bona Law attorneys have exceptional antitrust credentials in all five areas. Our lawyers come from top law schools and judicial clerkships and many have government experience or have worked with other leading global law firms before joining us. The result is that our firm offers the expertise and experience of large law firms, but with the personal treatment, efficiencies, and economies only a boutique law firm can offer.Litigation and Appeals
Our lawyers litigate matters for plaintiffs and defendants in federal and state courts, as well as before the Federal Trade Commission (FTC). Globally, we have in-house expertise in European and Latin American competition law and enforcement, we also have strong relationships with excellent global firms through our IR Global membership that allow us to serve clients no matter where their matter arises.
Bona Law is one of the nation’s leading firms in antitrust federalism. Our lawyers have represented numerous clients in antitrust disputes with state and local governments; they also have advocated for businesses in every case involving the antitrust state action immunity doctrine at the U.S. Supreme Court in the last decade.
We also offer an advanced appellate practice. Our attorneys have handled a substantial number of appeals in federal and state courts across the country. We often support law firms that do not have their own appellate expertise, or clients who need a fresh look at their case on appeal.
Our lawyers have advised on and defended mergers and joint ventures of all sizes—ranging from some of the largest mergers in US history to non-reportable transactions. In addition to advising on strategy and substance, we also negotiate and respond to second requests as well as third-part subpoenas and investigative demands.
For many synergy-mergers, expediting the capture of merger synergies is both important and valuable. Our attorneys have been in the forefront of structuring and overseeing pre-merger integration planning designed to speed-up the recognition of these synergies while avoiding any impact to an ongoing investigation.
Our practice of course includes H-S-R filings, but just as importantly, we advise on possible merger clearance problems and help develop merger clearance strategies while the deal can still be re-structured.
Finally, we also have considerable experience in assisting companies that want to object to proposed mergers or acquisitions—either publicly or confidentially—to federal or state antitrust agencies.
Antitrust law affects both large and small companies, and no matter your size, you should have antitrust advisors who not only protect—but also enable—your business. Because interactions with competitors can sometimes be mischaracterized or misperceived as possible antitrust violations, our advice necessarily includes both capturing the procompetitive aspects of the proposed action as well as avoiding atmospherics that can bring unnecessary scrutiny.
Unilateral actions also may expose a company to potential liability (such as individual pricing decisions, including price discrimination, individual “Resale Price Maintenance” programs, or individual discounting claims).
Compliance programs are critical to avoid both inadvertent violations as well as appearances of impropriety—which are often as costly and time consuming as an actual violation of the antitrust laws. Compliance programs also play an important role in enforcement agency’s decisions about prosecution and leniency. Our lawyers have developed and implemented compliance programs for clients ranging from Fortune 10 companies to regional or local businesses.
We represent companies and individuals in criminal and civil investigations and prosecutions brought by both the Department of Justice and Federal Trade Commission, as well as state attorneys general and other government agencies. In addition to antitrust issues, we have experience representing clients in other white-collar criminal matters including healthcare fraud and money laundering. We also conduct confidential internal investigations for clients to assist with internal controls and compliance.
We regularly handle antitrust and competition matters in federal and state court, and bring and defend antitrust cases, including the defense of class actions. Read here to learn more about our approach to defending complex antitrust class action cases, including multi-district litigation (MDL cases). We have resources that allow our firm to process the massive discovery demands that these complex cases typically involve.
As a boutique focused exclusively on antitrust, we are perfectly situated, and often called upon, to team with law firms that have litigation or industry expertise but lack a dedicated antitrust group. We successfully integrate into client teams in roles ranging from advice and counsel to running the matter. In short, we can do whatever the client and its law firm require.
Our antitrust and competition experience includes:
- Complex litigation and class actions, including the Class Action Fairness Act (CAFA);
- Government civil investigations and litigation, including the Federal Trade Commission and Department of Justice;
- Section 5 of the FTC Act (“unfair method of competition” claims including consumer protection issues);
- Antitrust criminal prosecutions;
- Exclusionary conduct and monopolization including attempted monopolization and conspiracy to monopolize;
- Antitrust claims like bundling, tying, exclusive dealing, refusal-to-deal, predatory pricing, Robinson-Patman Act (price discrimination);
- Horizontal agreements under the per se standard, rule of reason, and quick look standards (price-fixing, market allocation, group boycotts, bid rigging);
- Vertical pricing and distribution issues, including Resale Price Maintenance and Colgate policies;
- Antitrust Group Boycotts;
- Robinson-Patman Act price-discrimination claims;
- Antitrust exemptions and immunities (state-action immunity, McCarran Ferguson insurance exemption, labor exemption, filed-rate doctrine, Noerr-Pennington immunity, agricultural exemption, etc.);
- Antitrust injury, standing, and damage issues;
- International antitrust issues;
- State antitrust cases and issues, including the Cartwright Act;
- Unfair Competition and Deceptive Trade Practice laws;
- Antitrust actions with related claims like RICO, tortious interference, intellectual property, trademark, Lanham Act, breach-of-contract, fraud and misrepresentation, trade secrets, and others.
More and more companies today collaborate with others, including, sometimes, their competitors, in an effort to become more efficient and reduce costs. The ultimate form of collaboration is a full-scale merger. But many companies choose limited collaborations in the form of joint ventures. Both activities are legal, but both can raise antitrust issues.
We typically advise clients whose transactional work is being done by excellent law firms that do not offer advanced antitrust expertise. We can and have fitted seamlessly into transaction teams to help solve problems and get the deal closed with minimum time and expense.
The current antitrust questions in mergers or joint ventures relate to consumer welfare and include whether the collaborations will create or enhance market power, affect prices, reduce output, or lower innovation. Merely the sharing of sensitive information at the wrong time could create antitrust problems. And, contrary to general opinion, the antitrust agencies frequently challenge transactions that are so small that they do not require H-S-R clearance. Recently, the Department of Justice sued to halt a merger worth $3.1 million. Even a small deal in a small market can be challenged if it significantly harms competition.
Our lawyers have experience with hundreds of mergers ranging from small local mergers to multi-billion dollar global transactions. We treat each matter individually, giving it the correct level of analysis and attention.
Depending on its complexity, a merger or joint venture support could require multiple areas of expertise including:
- analyze the competitive effect of the proposed merger or joint venture;
- design and implement a strategy to secure clearance;
- strategies to head off, narrow, or expedite a second request;
- advise on gun-jumping and information-sharing limits during due diligence and pre-close activities;
- when desirable, design and implement a pre-merger planning mechanism to expedite the capture of merger synergies and speed-up post-merger integration;
- identify, where necessary, possible remedies for anticipated challenge areas including structural (divestitures) and behavioral (consent agreements) to ensure clearance (or, to avoid potential subsequent antitrust problems if no clearance is required);
- where necessary, conducting investigations into the target’s antitrust problems that may be revealed in due diligence;
A completely separate area of merger counseling involves individuals and companies that simply make passive investments or exercise options in other companies. H-S-R filings are typically based on the combined holdings that a buyer will have in the target after the deal. This includes what is about to be purchased, combined with all existing holdings in the same target. And the existing holdings are measured not just by the specific buyer, but by the collective holdings of the entire control group to which the buyer belongs. We recommend that companies and executives involved in investments establish an antitrust compliance policy. There is a long list of major fines imposed on Fortune 500 companies and their executives because they neglected to calculate the H-S-R standards correctly.Our Market Conduct Counseling
Antitrust isn’t just litigation and mergers. Antitrust laws also regulate the ordinary-course, day-to-day operations of all legitimate businesses, covering distribution, pricing, information exchanges, and trade association activities, to name just a few examples.
It has been our experience that while most counseling involves identifying potentially problematic conduct, our greatest value at times is identifying pro-competitive conduct that has been unnecessarily restricted by outdated advice. More so than any other area of the law, antitrust laws are constantly evolving to accommodate market realities and economic reasoning and analysis. Our lawyers have counselled hundreds of companies on all aspects of antitrust compliance, including:
- Distribution restrictions;
- Exclusive dealing;
- Loyalty and Bundled discounts;
- Resale Price Maintenance (“RPM”);
- Terminating distributors;
- Discriminatory pricing under Robinson Patman
- Joint buying and selling operations;
- Tying arrangements;
- Creating antitrust compliance programs for businesses, including antitrust training for employees;
- Antitrust audits;
- Standard-setting-organization issues;
- Trade-association membership and activities;
- Intellectual property settlements and disputes, including licensing agreements.
In addition to private litigation, conduct that violates antitrust laws can bring criminal and regulatory sanctions for companies and their executives. The DOJ Antitrust Division has a dedicated staff of attorneys investigating and prosecuting anticompetitive conduct throughout the United States and, in some cases, internationally. Both the DOJ and FTC can also bring civil enforcement actions that result in substantial financial penalties. And state attorneys general and regulatory agencies can bring civil or criminal actions to stop anticompetitive conduct.
Bona Law assists clients in every type of criminal, civil, and regulatory matter, including criminal prosecutions, civil cases brought by regulatory agencies, and internal investigations to respond to auditor inquiries or whistleblower complaints. Our experience extends beyond antitrust issues, and includes fraud, money laundering, and Foreign Corrupt Practices Act matters.
We also have successfully represented clients in investigations and actions brought by competition law enforcement agencies in Mexico, Colombia, and Europe.
No matter what form the action takes, Bona Law can shepherd clients through the entire process, including responding to a subpoena or civil investigative demand, conducting a confidential internal investigation, defending clients before the enforcer or agency as well as at trial, leniency, and appeals. We also represent clients in the follow-on private civil litigation that frequently follows criminal and regulatory matters.
We serve as lead counsel for companies in these matters, and can serve as independent attorneys for executives and employees who need separate counsel. We also co-counsel with other criminal defense attorneys to provide antitrust law expertise.
Our attorneys have:
- Represented clients during DOJ Antitrust Division investigations, including price fixing, market allocation, bid rigging, and no poaching investigations;
- Defended criminal charges brought by the DOJ Antitrust Division, including price fixing and bid rigging charges, against the CEO of a major electronics manufacturer;
- Defended a Fortune 500 company in a DOJ Antitrust Division no poaching investigation, resulting in the closure of the investigation without charges;
- Represented a defendant against bid rigging charges brought by the DOJ Antitrust Division related to government auctions;
- Obtained the withdrawal of a guilty plea for an executive charged with money laundering, ultimately resulting in the dismissal of all charges;
- Represented the CEO of a healthcare company against honest services fraud charges;
- Represented criminal defendants on appeal;
- Conducted confidential internal investigations related to antitrust, accounting fraud, securities fraud, and Foreign Corrupt Practice Act issues.
If you have an antitrust and competition law issue, please contact us at +1 858-964-4589 or via email at email@example.com.