Antitrust & Competition

Antitrust and competition law has become a force of gravity that impacts virtually all major business plans, transactions, relationships, and market strategies at home and abroad. Antitrust laws establish competition and efficiency as the cornerstones for our domestic economy and, increasingly, markets of countries around the globe. But the pursuit of these fundamentals is often elusive. In today’s economy, market realities are often short-lived. Political, regulatory, technological and supply chain changes constantly disrupt the conventional wisdom about how markets operate.

Like the Constitution, our antitrust and competition laws are built to accommodate and even encourage change. Antitrust statutes speak in broad strokes about promoting competition and efficiencies by prohibiting agreements “in restraint of trade,” and conduct that threatens to “monopolize” any part of commerce. The lucid application of these precepts to a particular market context requires analysis of antitrust court decisions, agency regulations and enforcement actions – along with sound economic principles and intersecting intellectual property and regulatory regimes.

Good outcomes in the face of antitrust challenges require a legal team with genuine antitrust bona fides, industry depth, and a proper economic perspective about how the client’s posture in the marketplace and regulatory environment promote competition. Pierce Atwood brings that plus vigorous advocacy and sound judgment on a cost-effective platform. Our approach combines decades of substantive antitrust, consumer protection and competition experience with vital capabilities in intellectual property licensing and litigation, Foreign Corrupt Practices Act, cross-border transactions, securities law, multijurisdictional and international government investigations, and regulatory regimes governing a variety of domestic and international industries. Many Pierce Atwood attorneys have prior government agency and industry experience in agribusiness, construction, financial services, energy, healthcare, manufacturing, and emerging technology markets. True to form, over half of the firm’s lawyers were selected by their peers for inclusion in The Best Lawyers in America® 2016 (Copyright 2015 by Woodward/White, Inc., of Aiken, SC).

Our competition trial attorneys are also recognized leaders in the profession, handling a variety of civil and criminal enforcement, private plaintiff and class action disputes in federal, state and agency venues across the nation and globally. Pre-merger due diligence, HSR and agency merger review, internal investigations, federal and state and international antitrust investigations, trade organization activities, and antitrust compliance audits and advice are also mainstays of Pierce Atwood’s competition practice.

Areas of Expertise

Antitrust & Competition Counseling

Pierce Atwood's antitrust group provides timely, reliable and cost-effective antitrust and competition counseling to clients in a wide variety of markets. Areas of recent counseling analysis include:

  • Antitrust compliance policies, training and audit
  • Responding to competition in product development, distribution, pricing, non-price vertical modalities
  • Pricing, including loyalty and market share discounts and Robinson-Patman Act issues
  • FERC market manipulation rules in natural gas, electricity and other energy fields
  • Standard setting, including trade association and government-sponsored enterprises
  • Tying and bundling, including full-line forcing and other dealer purchasing requirements
  • Distribution networks, including exclusive and dual distribution issues
  • Exclusive dealing, in healthcare and other sectors
  • Trade association activities, including data exchanges and compliance programs
  • Refusals to deal, including dealer terminations and intellectual property licensing
  • Pre-merger due diligence, including gun-jumping issues
  • Joint ventures among competitors, including joint bidding and customer allocation issues
  • Consent decree compliance, including agency audits and sunsetting
  • FTC Statements of Antitrust Enforcement Policy in Health Care
  • Application of state action, Noerr-Penington, File Rate Doctrine and other implied exemptions
Antitrust & Competition Litigation

The firm’s trial attorneys have amassed decades of experience representing industry leaders and new market entrants alike in cutting edge antitrust and unfair competition litigation under the Sherman and Clayton Acts, the Lanham Act, and state antitrust and consumer protection statutes. Representative matters include:

  • Defended trade association in MDL class action challenging data exchange and other association activities as horizontal conspiracy among pharma members to restrict output of certain plasma protein therapies. (N.D. Ill.)
  • Represented leading global tire manufacturer in trial and favorable settlement of antitrust, intellectual property and Lanham Act claims in multi-party litigation challenging vertical and horizontal restraints of trade in truck tire markets. (D. Iowa)
  • Represented outpatient imaging facility challenging integrated hospital system's exclusive dealing and alleged group boycott. (D. Md.)
  • Represented marine engine manufacture challenging monopolist’s exclusionary discount and other vertical restraints – favorable settlement. (E.D. Va.)
  • Defended major fast food restaurant against competitor’s trademark and unfair competition claims – defeated preliminary injunction motion. (E.D. Mo.)
  • Prosecuted trademark and unfair competition claims against competing alcohol beverage producers and marketers – favorable settlement. (S.D.N.Y.)
  • Prosecuted Lanham Act remanufactured goods claims against unauthorized distributors of client’s household appliances – successfully trial judgment upheld on appeal. (W.D. Tex., 5th Cir.)
  • Represented animation studio in antitrust class action brought by former employees alleging that no-poaching agreements and information sharing through industry salary surveys constituted horizontal conspiracy in violation of Sherman Act Section 1 and state antitrust laws. (N.D. Cal.)
Agency Enforcement Response

The Federal Trade Commission, Department of Justice, State Attorneys General, and a variety of other federal agencies and international bodies are actively engaged in enforcing domestic and international competition legal regimes. Responding to agency investigations and enforcement proceedings puts a premium on sound judgment, credibility, advocacy and knowing the ropes. Pierce Atwood attorneys are adept at navigating these sensitive matters and the collateral corporate governance, litigation, public relations, and customer issues that often accompany them. Many of our attorneys served in federal or state agencies with enforcement responsibilities in antitrust, competition or international compliance matters, so we understand that better outcomes result from being persuasive and persistent on vital client interests while picking the right battles, and understanding how to generate successful resolutions.

  • Successfully represented major defense contractor in confidential DOJ/DOD Antitrust Division investigation – investigation closed with no further action.
  • Represented trade association responding to multi-state AG investigation paralleling antitrust class action litigation.
  • Represented community bank responding to DOJ investigation and enforcement suit as part of federal financial regulators’ coordinated Operation Chokepoint initiative challenging payment processing practices related to certain categories of online merchant. (E.D.N.C.)
  • Represented wireless carrier responding to state AG investigation and enforcement action challenging disclosures of certain line item fees. (E.D.Mo.)
  • Defeated Federal Trade Commission contempt proceeding challenging vitamin and dietary supplement marketer’s efficacy and ingredient claims, upheld on appeal. (S.D. Fla., 5th Circuit)
Mergers & Acquisitions

Pierce Atwood attorneys assist clients in federal and state antitrust merger and acquisition-related reviews. Recent representations include the following:

  • Represented client in HSR filing related to acquisition of fuel oil and natural gas distributor in metropolitan New York
  • Advised bank about contemplated acquisitions and antitrust review by applicable agencies
  • Represented client in HSR filing related to its acquisition by multi-national computer and technology corporation
  • Represented client in HSR filing related to its acquisition of aviation support services company
Industry Expertise: Antitrust & Competition

The firm's antitrust and competition law clients include established market leaders and new entrants participating in regional, national and global markets. Our competition and antitrust attorneys have first-hand knowledge about how businesses operate in several key markets of the United States and global economy – insights gained from their practices at Pierce Atwood, prior industry experience, and at state and federal regulatory and enforcement agencies. The result: reliable antitrust guidance that’s cost-effective and ready for application in the real world. Representative industries include:

  • Automotive and marine manufacturing, including supply chain sectors and dealer distribution
  • Aquaculture, including commercial fisheries
  • Banking and financial services, including payment and credit processing systems
  • Construction and land use
  • Education, including private secondary school systems and universities
  • Energy and utilities, including gas, electric. petroleum, solar, wind and other emerging markets
  • Food and beverage
  • Healthcare, including integrated hospital systems, physician practice groups and third-party payors
  • Human resources and employment practices
  • Hospitality and tourism, including fast-serve restaurant franchise sectors
  • Manufacturing and related supply chain and distribution systems
  • Music and entertainment
  • Online retail merchant sectors, including advertising, e-commerce and franchising
  • Paper, pulp, containerboard, timber and other forest products
  • Pharmaceuticals and medical devices
  • Shipping and transportation, including fleet management, rail and marine sectors
  • Software and information technology
  • Waste transportation and storage
125 Years