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Antitrust & Competition

For decades, our antitrust team has successfully guided clients even as theories have evolved to reflect new technologies, lines of business, and economic approaches. Evolving economic theories of liability involving two-sided markets, “dirty tricks” as antitrust violations, no-poaching agreements, and “disintermediation” in the health care setting are just a few examples of the recent trends in the federal antitrust arena, and as state and federal agencies and private litigants have changed emphasis and tactics, our defense team has remained at the cutting edge.

Antitrust law invites novel claims requiring creative and expert responses, and we address those challenges by understanding how those claims relate to our clients’ business, goals, and tolerance for risk, and then designing strategies to meet them.

While we carry a broad docket of cases, our attorneys may be best known from our work for a high-profile client, the National Collegiate Athletic Association (NCAA). For the NCAA we have defended a host of important cases, including challenges to its tournament, eligibility requirements, scholarship rules, and licensing practices and policies. Not only are these cases of immense importance to the NCAA and its member institutions, but they are also important to the continuing development of antitrust jurisprudence, touching on topics such as the proper application of the rule of reason — as a balancing test or a more rigid, three-step burden-shifting test — procompetitive and anticompetitive effects and how to distinguish between them, and the types of proof necessary and sufficient for each, and the proper analysis and definition of relevant markets.

Over the decades, our attorneys have also occasionally served as plaintiffs’ counsel, seeking relief from, among others, the Motion Picture Association of America, News America Marketing, and the Episcopal Diocese of Michigan.

Much of our work takes place outside the courtroom. We counsel companies on the antitrust risks in proposed joint ventures and other competitor collaborations, as well as internal compliance training for company employees. In litigation, when appropriate, we work with our clients to fashion creative settlements. The settlement process is enhanced by our reputation for winning before juries and judges, use of quality econometric theories and experts, and willingness to take cases to trial.

Our practice has also long included distribution-related disputes. While these matters often require the same analysis as more traditional antitrust cases, they typically grow out of contract, dealership, or franchise disputes. We have handled national and local matters for banks, communications, food, and manufacturing companies. We counsel our clients on risk and avoidance strategies. In this area, too, the most efficient handling of litigation often is to avert it.

We recognize that disputes often need to be resolved quickly and effectively to keep a business relationship on course or to preserve scarce resources. To meet that need, we have the experience to provide insightful early case assessment and to develop appropriate early exit strategies. But when a prompt resolution is not possible, we bring the same creativity, passion, and resolve to the courtroom.