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Practicing Antitrust Law
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Practicing Antitrust Law

Summary: What is a typical day like for an antitrust lawyer? What sorts of issues do their cases present? Who are their clients? Read more below to find out.

Antitrust law is an exciting, lucrative area for attorneys. There’s the potential for obtaining damages awards that exceed millions of dollars. These attorneys are involved in the restructuring of major industries, for example, the split of AT&T from Bell Operating Companies.

  
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What is Antitrust Law?

What exactly do antitrust laws govern? The purpose of antitrust laws in the United States is to protect competition. Specifically, these laws prohibit reductions in price that are so low that it’s possible competitors will be driven out of business. For example, in 1999, American Airlines was slapped with a lawsuit by the Justice Department when it engaged in slashing prices and increasing the amount of flights they offered, which had the potential to drive other airlines out of business.

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In a nutshell, the antitrust laws stop the formation of any business monopolies and both preserve and encourage competition in industries.

There are two sets of laws that oversee antitrust law: the Sherman Act and the Clayton Act. The Sherman Act prevents unreasonable anticompetitive conduct. For example, attempts to monopolize an entire market or interfering with pricing and distribution are prohibited under this Act. The Clayton Act enforces bans on price discrimination, contract exclusivity, mergers and acquisitions, and interlocking directorates which may create a monopoly.

Who files suit under the antitrust laws? The lawsuits can be brought by private parties, or by government agencies. The Department of Justice and the Federal Trade Commission commonly bring such actions. Depending on the conduct, criminal charges may also be filed against these companies.

Some examples of actions that may lead to the filing of complaints under antitrust law include agreements between companies to refuse to sell products to a third party; sales of products below cost to obtain the market share and drive out competition at the same time, and tie-ins, which occur when manufacturers demand purchase of additional items from customers in order to receive the items they need.

Mergers and acquisitions are governed by the Clayton Act. There are two types of mergers, vertical and horizontal. Vertical mergers are between suppliers and customers in an industry. An example would be an oil drilling company and a retail distributor of gasoline. Horizontal mergers occur when industries at the same level combine into one. For example, this type of merger occurs when competing soft drink companies undergo a merger.

During these mergers, divesting, or selling off, portions of acquired companies alleviate antitrust concerns. Courts will evaluate the effects of these changes on the market, and the Federal Trade Commission and the Department of Justice review mergers. Courts must also pay careful attention to how a market is defined when evaluating these industries.

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What Is an Antitrust Law Practice Like?

So where do attorneys come in in these cases? Many attorneys work in law firms that have antitrust law departments or in government agencies. Both state and federal agencies employ attorneys in this area. In fact, many attorneys begin their careers in a government position.

These attorneys have an interest in economics and the interplay between economic theory and law and must be able to analyze the market as clients are typically businesses.

Ralph Lipshitz, an attorney with Carlton Fields in Tampa, Florida, stated that he represents businesses of all sizes in antitrust disputes. His practice takes him to federal courts, where he litigates with and against skilled counsel and other business personnel. He must spend a great part of his practice developing strategies and understanding the facts of a case. He added that cases can go on for several years due to the discovery process, expert testimony and other pretrial issues.

Bill Hilgardalso also practices at Carlton Fields, and says that much of his practice is devoted to compliance counseling. His clients are large institutions who wish to avoid litigation.

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Stacy Gottsford practices antitrust law in a specific industry: health care. She works with Jones, Day, Reavis & Pogue in Washington, D.C. Her clients are hospitals, HMOs, health insurance companies, and other health care providers. She assists competing hospitals when they wish to merge.

Alex Morrisey of Akin, Gump, Strauss, Hauer & Feld in Washington, D.C. represents everyone from Fortune 500 companies to sole proprietors in antitrust cases as they relate to merger and acquisitions.

What’s a typical day like for these busy attorneys? Morrisey states there’s really no typical day in such a practice, and Lipshitz added that his days are spent mostly at his desk as he develops strategies for his clients’ cases. He says one downside of the practice is that depositions and trials can take over his life at times. Hilgardalso said that in addition, he must also perform business counseling roles for his clients. It’s important for his clients to know the antitrust risks in their industries and how to prevent them. Essentially, he explains that antitrust attorneys must become mini-experts on the industries of the companies they represent. This means the attorney will have to make site visits, conduct interviews and research legal issues to develop a strategy. Evidence can be obtained through the use of discovery and depositions.

Further, these attorneys explain the government has thirty days to decide whether they will investigate a transaction. If, after thirty days, the government has not given notice that it will investigate, the transaction will be completed by the attorneys. Otherwise, a lawsuit will be filed by the government in federal court, and the attorneys must litigate the case.

What do these attorneys like about their area of practice? Most enjoy the role they play in helping their clients solve difficult problems. Of course, the attorneys enjoy getting great results for their clients. Many enjoy arguing cases in front of the government and counseling their clients. They also enjoy learning about new industries through their representation of their clients.

How Do You Become an Antitrust Lawyer?

When asked how attorneys can get involved in an antitrust practice, these attorneys advise taking antitrust case law because the practice is heavily dependent upon case law. Further, take classes that emphasize critical thinking. Economics courses are also helpful. Clerking for a federal judge or working as a summer associate in a firms’ antitrust law practice is also excellent preparation. Business experience is also a plus. Network with your student bar association, participate in your school’s law review or moot court, and take courses to understand marketing and finance to set yourself apart in this field.

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For more information on practicing antitrust law, check out the article below.

What It Is Like Being an Antitrust Lawyer

Click here to search for antitrust attorney jobs in your area.

Click here to contact a recruiter about antitrust law jobs on BCG Attorney Search.

Click here to submit your resume to a BCG Attorney Search recruiter.

Photo credit: cdgraphic.ca

 



 

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