We advise clients on complex antitrust and trade practice matters and represent clients in related litigation, including class actions and governmental challenges. We also conduct internal investigations on such matters and represent clients facing governmental investigations before the U.S. Department of Justice, the Federal Trade Commission, or states’ Attorneys Generals into alleged cartels, mergers and acquisitions, abuse of market power, and similar such matters. In doing so, we take creative approaches to increase the chances of a successful result for our clients.
We have been retained to act as potential testifying experts on various aspects of antitrust law and their experts. While expert testimony on US legal matters is generally not permitted in US courts (since the court is itself presumed to be an expert on US law), we have been retained to provide testimony on such things as the merger review process and exemption analysis.
We have successfully defended and pursued antitrust litigation in state and federal court. Our litigation experience spans the antitrust universe, from alleged cartel behavior to novel monopolization claims. In doing so, we apply our substantial knowledge of class action defense, cartel follow-on cases, and of industrial organization economics, to seek early dispositions through the courts or resolutions through settlement, to preserve client resources. We also believe in staffing litigation with a core, dedicated team of professionals to avoid repeated learning curve or team communication issues, again to further an efficient, effective litigation strategy.
Representing subjects of a governmental investigation has been at the heart of our practice since its inception in 1995. Our investigation defense work has covered the gamut of antitrust issues, including many, such as lose of competition among buyers, that have only recently become fashionable. We have also been actively engaged for corporations and individuals in several grand jury investigations, often by assisting and guiding traditional corporate counsel through the grand jury process employed by the Antitrust Division of the US Department of Justice. Many of these matters have an international component and our direct experience with antitrust enforcers outside the US gives us an ability to manage or assist in the coordination of multinational investigations.
Often a neglected area of antitrust practices, we believe that sound counseling helps lessen the risks of problems before they develop into a difficult to control investigation or litigation. Yet, sound counseling requires more than advising clients not to engage in conduct, it requires careful thought and creativity to help the businesspeople to achieve their business goals, all while attempting to keep legal risk to a minimum. We have been engaged to counsel on pricing practices and Robinson-Patman Act matters, distribution matters, joint venture creation and operation, intellectual property licensing, enforcement, pools, and standard setting, network access, extraterritorial application of US law and risk of antitrust-oriented enforcement outside the US, and exemptions and immunities (including application of antitrust to regulated sectors).
Baker & Miller has been engaged to represent companies alleged to have participated in cartels in violation of the criminal antitrust laws. Such representation often has an international element and we are extremely mindful of the high stakes to the company and its officers and employees in such matters. We have represented corporate defendants in several of the largest criminal matters in US history including the Vitamins and Auto Parts matters. Our representation has extended to the follow-on litigation – both class action and direct action – by alleged aggrieved private parties.
The firm represents buyers and sellers in mergers, and we have broad experience in countless industries. Our work includes all aspects of the antitrust review of the transaction, from risk assessment at the initial proposal stages, to preparation of requisite filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, to managing the response to any governmental investigation, to defending the transaction from governmental or private challenge. The firm also has extensive experience coordinating the international merger review process, perhaps stemming from the firm’s founders’ work on Rowley & Baker, International Mergers: The Antitrust Process, the leading and authoritative treatise on the subject.
Our experience extends to the creation and operation of joint ventures, which usually implicates a merger review-type analysis. The firm’s expertise extends back to the original publication of governmental guidelines on the analysis to be applied to joint ventures, to Baker & Brandel, The Law of Electronic Fund Transfer Systems, which contains chapters discussing the antitrust review of joint venture creation and operation, to current representation of companies involved in joint ventures.
Creating and implementing an antitrust compliance program requires more than just an abstract knowledge of US antitrust law – it requires a sense of how the law interacts with business decision-making and natural human behavior within the industry at issue. We have successfully used our broad and varied industry knowledge, and sensitivity to different business cultures, to create and implement dozens of such programs, all designed to achieve our clients’ goals of ensuring that the program is designed to be effective at minimizing the risk that a company’s employees will engage in conduct that violates the law and at bringing conduct that may be questionable to the attention of appropriate supervisory personnel. We have also run drills and mock raids to test the programs that are in place.
Theory development is a critical aspect of legal analysis that involves constructing coherent and persuasive arguments based on legal principles and precedent. It involves crafting a narrative that explains how the law applies to a specific set of facts and circumstances.
While theory development is critical for the defense of our clients, we also excel at the development of the theories justifying litigation or governmental investigations, and we have been retained in numerous matters to pursue confidential complaints to the government in wide variety of antitrust and trade regulation matters. These matters include mergers and acquisitions, patent pools, Hart-Scott-Rodino Act violations, horizontal restraints, monopolization, and monopsonization.
Monopolization and monopsonization are specific types of single firm, anticompetitive behavior prohibited by federal and state (and most international) antitrust laws. It occurs when a single firm or a group of firms dominates a particular market, allowing them to control prices, reduce output, and limit consumer choice. We have worked on numerous such matters, representing companies being investigated as well as complainants. Such matters require grounding in developing theories of and economic tests for the exercise of market power and the industry at issue in order to develop arguments in defense (or in pursuit) of allegations that the company at issue has market power which cannot be quickly and easily dissipated by entry or technological developments. We have worked on numerous such matters and apply our economic and industry experience to achieve positive results.
