Antitrust & Competition

Our team, which includes several former prosecutors and high-level enforcement agency officials, has been involved in almost every major cartel investigation of the last decade.

Representing companies, individuals, and independent boards and committees, we handle every facet of the defense for clients accused of cartel behavior. This includes internal investigations, US and UK criminal representation, and multidistrict US class action litigation, as well as European regulatory representation, European civil damages litigation, and coordinating representation before other competition authorities in Asia and Latin America.

Today, cartel enforcement is global and multidimensional. Companies facing cartel investigations must anticipate criminal enforcement by the DOJ, as well as enforcement actions from antitrust authorities in the European Union, Canada, Brazil, Japan, and Australia, among others. In the United States, DOJ criminal investigations involve high stakes for corporations and their employees. Corporate criminal fines in large antitrust cases can reach $500 million. Increasingly, executives are receiving longer jail terms for antitrust crimes. Sanctions for cartel behavior in Europe, Asia, and elsewhere can be similarly devastating for companies.

In addition, private litigation predictably follows criminal prosecutions, and lawsuits are often filed as soon as an investigation is disclosed publicly. Those cases brought in US federal and state courts—and in an increasing number of non-US jurisdictions—can have enormous economic ramifications for a business.

High Stakes, Complex Circumstances

Cartel investigations and related civil cases often involve very high stakes and complex questions of jurisdiction, difficult extradition issues, and challenging procedures with respect to the disclosure of information from abroad. Whether the client is a US or non-US firm, it is essential to develop a defense strategy that takes into consideration the likelihood of public enforcement by US authorities, as well as those in the United Kingdom, European Commission, Canada, and other countries.

A significant portion of our antitrust practice is devoted to representing clients facing these complex circumstances. We defend corporations and their officials in criminal and civil matters in the United States and the United Kingdom and in EC proceedings, while also serving as international coordinating counsel. We also represent clients in follow-on private treble damage actions—including actions by class plaintiffs, opt-out plaintiffs, indirect purchasers, and non-US plaintiffs—and damage actions outside the United States.

Experience and Knowledge Across Jurisdictions & Industries

When clients hire Morgan Lewis, they gain access to a team of lawyers that includes former prosecutors and defense counsel with experience handling grand jury and complex criminal litigation, as well as follow-on civil cases. This experience is critical in dealing with search warrants, document production, leniency, immunity, plea negotiations, and ultimately trial. Our lawyers have obtained leniency and amnesty for clients, and have defended against cases where leniency was the basis for the government’s case. The bottom line: our antitrust lawyers’ experience and knowledge help minimize risk and achieve the best possible result for our clients.

The firm’s lawyers have been involved in high-profile international cartel investigations and private damage actions across a range of industries, including:

• Air cargo
• Air passenger surcharges
• Liquid crystal displays (LCDs)
• Vitamins
• Citric acid
• Fine chemicals
• Sodium gluconate
• Maltol
• Graphite electrodes
• Auction houses
• USAID-funded international construction projects
• Construction
• Pharmaceuticals

While clients frequently engage us to react to an investigation once it has been initiated, a large part of our practice is devoted to counseling clients to avoid problems in the first place. For example, we regularly provide our clients with practical guidance and compliance training to avoid risky behavior and potential pitfalls when, for example, interacting with actual or potential rivals. We also provide training to our clients and their employees on how to respond to a “dawn raid,” and how to deal with government investigations in general. These compliance programs and practical tips, prepared and presented with a global legal perspective, are essential tools to help companies avoid the consequences of a multijurisdictional cartel investigation.

In today’s global economy, many of our clients find themselves facing complex issues involving both EC competition law and the competition laws of EU member states.

With competition lawyers in Brussels, Frankfurt, and London—as well as US-based lawyers who are authorities on EU competition law—Morgan Lewis provides clients with the full spectrum of antitrust services.

Our European competition practice encompasses every kind of antitrust issue faced by clients based or operating in the European Union. We make merger and other filings with and obtain clearance from both the European Commission and national competition authorities. We defend clients accused of antitrust violations and negotiate with antitrust authorities. We help clients pursuing or defending antitrust damage claims in negotiations as well as in front of national courts. Additionally, our team provides counseling, drafts agreements, represents interested third parties in merger proceedings, and ensures that clients’ business operations comply with and are not unduly hampered by the applicable competition law requirements.

More specifically, the range of competition law services we provide in Europe encompasses:

• Clearance of mergers and acquisitions (in the United States, equivalent to Clayton Antitrust Act, Section 7) from the European Commission and those national competition authorities that may require a premerger filing (such as the German Federal Cartel Office)

• Defense of cartels and other restrictive agreements between competitors, such as price fixing, market sharing, bid rigging, and production ceilings (in the United States, equivalent to per se violations of Sherman Antitrust Act, Section 1, agreements in restraint of trade), as well as the negotiation of leniency arrangements and fine reductions

• Pursuit or defense of antitrust damage claims in the form of follow-on or independent claims in negotiations as well as in front of the courts of EU member states (such as the United Kingdom and Germany)

• Vertical agreements, including exclusive and nonexclusive distribution, selective distribution, franchising, and agency agreements (equivalent to non–per se violations or rule-of-reason cases under Sherman Act, Section 1)

• Advice concerning competition law with respect to patent, know-how, and copyright (software) licensing

• Abusive behavior by dominant companies, including discriminatory and predatory pricing, refusals to deal, and tying arrangements (equivalent to Sherman Act, Section 2, monopolization or attempts to monopolize)

• Litigation, including defense of alleged violations, complaints against violators, and negotiations with the appropriate antitrust authorities and courts at both the EC and national levels

• Other forms of unfair competition, including misleading/comparative advertising and illegal use of trademarks and trade names (in the United States, equivalent to Federal Trade Commission Act, Section 5)

• Antitrust compliance programs

• International dimensions of EC competition law (such as the European Economic Area and relations with the United States, Japan, and Eastern European countries)

• Public enterprises and state monopolies

• State aid (subsidies) that may distort competition

We recognize that the preferred way to deal with antitrust problems is to anticipate and resolve them before they develop into litigation or lead to government investigations.

Working together with in-house counsel and business executives, we actively address potential antitrust issues before they become problems and find focused, cost-effective, pragmatic solutions that are consistent with our clients’ legitimate business objectives. Our antitrust lawyers routinely counsel clients on a wide variety of antitrust issues, including intellectual property licensing and settlements, competitor collaborations and joint ventures, standards development, pricing, distribution, and dealer termination.

In addition, we create antitrust compliance programs tailored to our clients’ needs. These include written compliance policies, presentations to senior management and employees, and online training programs.

Our antitrust lawyers advise clients on every aspect of competition law, including:

• Managing day-to-day antitrust issues, such as pricing, price discrimination, and distribution practices

• Providing advice on all aspects of supplier-customer relations, including dealer termination and related litigation

• Developing legal strategies for mergers and acquisitions, entry into new markets, relationships with competitors, joint ventures and strategic alliances, and benchmarking

• Preparing comprehensive antitrust compliance programs, including client-specific compliance materials, lectures, and continuing legal education (CLE) courses to educate employees

• Conducting focused and sensitive corporate audits on specific competition questions

• Designing corporate procedures and guidelines to address prospective antitrust problems

Morgan Lewis represents our clients in private antitrust cases and defends against civil antitrust claims brought by government agencies.

Clients rely on our antitrust litigators to craft litigation strategies that advance their business goals. With targeted litigation plans based on the client’s ultimate business objectives, we work to prevail in the best and most cost-effective way, whether by offering creative solutions for avoiding litigation altogether, securing dismissal on a motion, or achieving a favorable settlement. But when needed or desired, our antitrust lawyers have the knowledge and experience to litigate a case through trial.

In the United States, we represent clients in federal and state courts in almost every type of civil antitrust litigation, including government actions, merger litigations, class actions, and other private treble damage actions. In these cases, our antitrust litigators have experience in cutting-edge substantive areas, such as alleged manipulation of financial benchmarks, reverse payments in the pharmaceutical industry, and misuse of standard-essential intellectual property.

The industry knowledge of our antitrust litigators is equally deep. In the United States, we litigate civil antitrust claims in a variety of sectors, including:

• Pharmaceuticals and medical devices
• Healthcare
• Chemicals
• Food additives
• Energy
• Construction materials
• Consumer electronics
• Financial services
• Retail products

Morgan Lewis also has been involved in many groundbreaking civil antitrust cases in Europe. We represent clients in litigation before the Court of Justice of the European Union and the General Court (formerly the Court of First Instance), as well as in private actions for damages.

Intellectual property licensing and enforcement frequently give rise to antitrust issues. Our antitrust team includes lawyers with a thorough understanding of the interplay between IP and antitrust laws, and one of our lawyers was a principal drafter of the Antitrust Guidelines for the Licensing of Intellectual Property issued jointly by the DOJ and FTC. We also work closely with Morgan Lewis intellectual property (IP) lawyers on antitrust issues arising out of patent disputes.

We have experience with antitrust claims relating to:

• Standard-setting and standard-essential patents
• Procurement and enforcement of patents
• Licensing
• Patent and copyright pools

We represent clients in antitrust cases arising from patent disputes involving the technology in products as diverse as CDs and DVDs, pharmaceuticals, cardiovascular stents and balloon angioplasty catheters, semiconductors, VCRs, and flat glass.

Partnering with the firm’s IP litigators, we also advise clients on damages issues in patent cases, including the relationship between damages issues and antitrust claims.

Today’s global economy is having a dramatic impact on antitrust policy and practice. Antitrust cases increasingly have international aspects, whether because the parties are based outside the United States, the conduct at issue is subject to enforcement by multiple antitrust authorities, or the criminal or civil discovery has a transnational dimension. Our antitrust lawyers anticipate and address the complex issues that arise in these situations.

Our team routinely handles multijurisdictional and multinational antitrust matters. We regularly represent non-US companies facing US government civil enforcement actions and private litigation, and are effective at obtaining dismissals for clients based on a lack of subject matter or personal jurisdiction. Where such strategies are unsuccessful, we work closely with non-US clients to develop discovery strategies that take into account the complexity of US discovery for non-US offices and executives.

We also frequently serve as international coordinating counsel for non-US clients facing criminal investigations by antitrust enforcement authorities in the United States and around the world, helping them to develop a comprehensive strategy for the favorable resolution of investigations by multiple agencies. Our criminal antitrust team, which includes several senior enforcement agency alumni, also offers clients based outside the United States unique insights into the DOJ’s Leniency Program and similar programs that have been adopted by more than 50 countries worldwide, so that our clients can make the important decision about whether to seek leniency. Where a client’s best interests are not served by seeking leniency or amnesty in the United States or elsewhere, our international criminal antitrust lawyers have the skill and experience to navigate a cross-border criminal antitrust investigation to a successful conclusion.

Our offices in the United States, Brussels, Frankfurt, London, Paris, and Tokyo enable us to draw from an array of resources to represent international clients in the most efficient manner possible.

For a complex merger, joint venture, or strategic alliance to survive antitrust scrutiny, companies must accurately assess the competitive issues present in multiple jurisdictions and predict the likelihood of enforcement agency action. If enforcement action jeopardizes a significant transaction, the parties need to understand and evaluate the options available—from “fix it first” structural remedies, to consent structural or conduct remedies, to litigation with the government. Our transactional antitrust lawyers have the knowledge and experience necessary to help our clients understand the competitive issues presented by a particular deal in the United States and around the globe and the foresight to assess the risk of an agency action. When necessary, our transactional antitrust team also has the experience required to develop creative strategies to ensure that enforcement activity does not stand in the way of our clients’ legitimate business goals.

Our sought-after merger control specialists have acted as antitrust counsel in a number of groundbreaking deals across various industries, including transactions in which the parties have retained separate M&A counsel. We have encountered and have counseled clients with respect to almost any issue that may arise in the merger context and we have earned credibility with US antitrust enforcement agencies and other US regulatory agencies, state attorneys general, and international authorities. As a destination transactional antitrust practice that includes several former senior agency lawyers, we also have unique insights into evolving DOJ and FTC merger enforcement policy in the United States, as well as the policies of other potential enforcers, which is essential to understanding and addressing regulators’ concerns. In addition to those insights, we have developed innovative tools, such as HSRScan, to ensure that our clients receive real-time advice based on the latest agency guidance. HSRScan is a one-of-a-kind database that Morgan Lewis maintains to track the FTC’s informal opinions on premerger rules and regulations, as well as other guidance necessary to provide comprehensive counsel to clients considering a merger, acquisition, or other strategic deal. HSRScan is just one of the many examples of the practical solutions our transactional antitrust lawyers have developed to assist our clients in resolving their most complex problems.

In addition, our strong international competition capabilities—which include antitrust lawyers in our US, Brussels, Frankfurt, and London offices—enable us to deal effectively with transnational mergers. We handle mergers and acquisitions in regulated industries, and carefully coordinate filings and proceedings with regulatory agencies at both the federal and state levels.

If the transaction is challenged, we present our client’s case at each stage of review. We represent clients before the DOJ, FTC, Federal Energy Regulatory Commission (FERC), and other US regulatory agencies, as well as US state authorities, the European Commission, and authorities from around the world. When a negotiated resolution is not possible or desirable, we actively litigate merger cases.

The Morgan Lewis antitrust team works with our clients to maximize the chances of approval of each transaction by:

• Structuring the transaction to avoid or limit competition problems

• Preparing White Papers to support the transaction and explain the procompetitive benefits to the applicable enforcement agencies

• Working closely with enforcement agency staff to provide relevant information and to resolve any concerns

• Recruiting and preparing critical witnesses, including key customers

• Making document submissions in a timely and efficient manner

• Presenting economic experts to support the client’s position on the transaction’s impact

In mergers and acquisitions, an important part of our practice is preparing and filing the Hart-Scott-Rodino Antitrust Improvements (HSR) Act premerger notification materials with the FTC and the DOJ. Our lawyers are knowledgeable about the latest filing regulations and provisions of the premerger notification law, and we have excellent working relationships with the agency staffs.

Regulated industries give rise to special antitrust problems due to the interplay of antitrust principles within the legal and administrative framework of the industry. The industries in which we have particular proficiency include energy, life sciences, communications, and financial services.

Energy

Our antitrust team works closely with the firm’s energy lawyers in both litigation and counseling. We understand the competitive practicalities of the changing energy industry, which enables us to promptly and effectively respond to antitrust litigation in this industry. For example, we successfully defended antitrust challenges brought by independent power producers to utilities related to industry restructuring. In addition, we provided counsel to clients in many of the largest recent energy mergers, often handling related government investigations involving the energy industry.

Life Sciences

Morgan Lewis understands antitrust issues in the life sciences industry. Our antitrust lawyers handle investigations and cases for pharmaceutical, medical device, and other life sciences clients in a broad range of areas, including FTC investigations of Hatch-Waxman settlements, claims arising from the filing of allegedly sham citizen petitions, antitrust counterclaims arising from patent infringement suits, multidistrict class actions alleging horizontal conspiracies, Robinson-Patman Act price discrimination claims, and antitrust challenges to IP licenses and standard-setting activities. Additionally, we have acted as antitrust counsel in several of the industry’s most high-profile mergers, acquisitions, and joint ventures.

Our team comprises sought-after and trusted advisers to the life sciences industry, including a former general counsel to the FTC with unique insight into the agency’s enforcement priorities in the life sciences sector, a former attorney adviser to two FTC commissioners who focuses on the application of the antitrust laws in the pharmaceutical industry, and the former deputy general counsel of a global pharmaceutical company. In addition to these resources, our antitrust team partners closely with our healthcare and FDA lawyers to understand the regulatory challenges facing our life sciences clients and to provide complete, business-focused antitrust advice.

Media & Communications

Companies in the media and communications industries face a host of antitrust issues, and our antitrust team is intimately familiar with those issues. One of our partners served as assistant chief of the Antitrust Division of the DOJ, principally responsible for enforcement in the communications sector. This provides our clients with a first-hand understanding of the DOJ’s approach in evaluating this complex industry.

Our antitrust team represents companies in the communication industry in civil litigation and handles mergers and government enforcement actions for our media and communications clients. For example, we served as a lead counsel in the resolution of a DOJ and 50-state investigation concerning a cable television industry joint venture and other activities.

Financial Services

Our antitrust lawyers understand the antitrust issues arising in the financial markets, including the securities and commodities markets. We represent clients in government and private litigation, including class actions, as well as investigations initiated by the DOJ, the Division of Enforcement of the US Securities and Exchange Commission (SEC), the US Commodity Futures Trading Commission (CFTC), and non-US financial regulators. For example, we are actively defending clients in several cases involving alleged manipulation of financial benchmarks, which are among the most highly visible financial services antitrust cases in the world. In addition to litigating on behalf of our financial services clients, we routinely advise them on joint ventures and mergers, and we assist key industry trade associations, national securities exchanges, broker-dealers, and other firms on SEC regulatory issues involving competition.