What Can Your Antitrust and Competition Lawyer do for You?
Some lawyers focus on litigation. Other lawyers spend their time on transactions or mergers & acquisitions. Many lawyers offer some sort of legal counseling. And another group—often in Washington, DC or Brussels—spend their time close to the government, usually either administrative agencies or the legislature.
But your friendly antitrust attorneys—the superheroes of lawyers—do all of this. That is part of what makes practicing antitrust so fun. We are here to solve competition problems; whether they arise from transactions, disputes, or the government, we are here to help. Or perhaps you just want some basic advice. We do that too—all the time.
Perhaps you are a new attorney, or a law student, and you are considering what area to practice? Try antitrust and competition law. Not only is this arena challenging and in flux—which adds to the excitement—but you also don’t pigeonhole yourself into a particular type of practice. You get to do it all—your job is to understand the essence of markets and competition and to help clients solve competition problems.
For those of you that aren’t antitrust attorneys, I thought it might be useful if I explained what it is that we do.
Litigation
Although much of our litigation is, in fact, antitrust litigation, much of it is not. In the business v. business litigation especially, even in cases that involve an antitrust claim, there are typically several other types of claims that are not antitrust.
Businesses compete in the marketplace, but they also compete in the courtroom, for better or worse. And when they do, their big weapon is often a federal antitrust claim (with accompanying treble damages and attorneys’ fees), but they may also be armed with other claims, including trade secret statutes, Lanham Act, patent, tortious interference (particularly popular in business disputes), unfair competition, unfair and deceptive trade practices, and others.
In many instances, in fact, I will receive a call from a client that thinks they may have an antitrust claim. Perhaps they read this blog post. Sometimes they do, indeed, have a potential antitrust claim. But in other instances, an antitrust claim probably won’t work, but another claim might fit, perhaps a Lanham Act claim for false advertising, or tortuous interference with contract, or some sort of state unfair trade practice claim.
Antitrust lawyers study markets and competition and are the warriors of courtroom competition between competitors. If you have a legal dispute with a competitor, you should call your friendly antitrust attorney.
Antitrust litigation itself is great fun. The cases are usually significant, document heavy, with difficult legal questions and an emphasis on economic testimony. Some of them even involve class actions.
Here is something you might not consider: Companies have historically headed to the big law firms for antitrust litigation. But the core team for most antitrust litigation is relatively small, if staffed right—just a few attorneys. The antitrust litigation team, however, swells for document review and production. That is where the big firms have made their big profits—putting junior and mid-level associates on document review at several hundred dollars or more per hour.
But nowadays allowing big firm associates to perform document review is like washing your car with hundred dollar bills—flashy but stupid. There are many third-party providers, like Pangea3 of Thomson Reuters, that can handle document review, organization, and production much more effectively and efficiently than the typical law firm.
If you have an antitrust case and your attorney says that they are just going to have their associates review several hundred thousand (or more) documents, you might want to ask about alternatives (if you care about money, that is). Seriously, look into it.
You don’t need a big law firm to handle antitrust cases anymore. You need someone that can put together a strong team and can manage third-party providers for document and related issues.
Transactions and Mergers & Acquisitions
When companies merge or buy each other’s assets, antitrust issues may develop. Indeed, for transactions of a certain size, the parties will have to file what is called a Hart-Scott-Rodino filing(named after some legislators). Attorneys that do this call them HSR filings. These filings put the US antitrust agencies (FTC and DOJ) on notice that you have a transaction and gives them thirty days to decide whether to issue what is called a second request.
If they issue a second request, it is time to start the copy machine because they are going to want to see a lot of your documents. The process can take a long time—many months—and there is a decent likelihood that they will either challenge the transaction or require you to give them something, often a divestiture, to go forward without a challenge.
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