What We Do

Antitrust

Our lawyers have represented clients on antitrust matters at the Department of Justice’s (“DOJ”) Antitrust Division, the Federal Trade Commission (“FTC”), and various state Attorney Generals. We have also represented clients in litigation in federal courts. We have experience in a number of industries including advertising, auto parts, concrete, asphalt, healthcare, hospitals, high speed cameras, telecommunications, technology, software, computers, internet, mobile phone, movie studio, retail stores, data storage, steel, scrap, health insurance, publishing, pharmacy benefit manager (“PBM”), pharmaceuticals, oil and gas, and waste collection.
 
Antitrust Advice & Counseling: 
We believe in providing effective antitrust counseling before there is a need to respond to a government investigation by one of the antitrust enforcement agencies. Counseling is not limited to being defensive as in some cases it makes sense for companies to take a proactive, offensive approach.
Some strategies require actions before the DOJ, the FTC, Congress and any number of Executive Branch agencies–from proposed legislation to agency rulemakings, hearings, congressional investigations, confirmations of Executive Branch nominees and licensing decisions.
We work well with lobbyists, legislative consultants, efficiency experts, damages experts, economists, econometricians, and statisticians to devise creative strategies to help companies achieve their goals.
 
Civil & Criminal Antitrust:
We have represented corporations and associations in private antitrust litigation involving claims of price fixing, concerted refusal to deal, actual or attempted monopolization, price discrimination, or other alleged violations of federal and state antitrust laws. In addition, we handle civil antitrust proceedings and investigations brought by the DOJ, the FTC, and state attorneys general. Our antitrust practice also includes representation of clients in grand jury investigations and related criminal proceedings.
    We have:

  • Represented clients involved in complex commercial, patent, and regulatory litigation in federal and state courts, at both the trial and appellate levels, involving the restaurant, security alarms, publishing and scrap industries;
  • Conducted internal audits, due diligence reviews and corporate internal investigations;
  • Represented clients in various civil conduct investigations by the FTC and the DOJ; and,
  • Represented corporations and individuals during grand jury investigations as well as in related civil and administrative enforcement actions.
Distribution, Strategic Alliances, & Joint Ventures: We provide creative and practical suggestions to companies on how to achieve our client goals in product distribution, strategic alliances and joint ventures. We have years of experience counseling large and small corporations in a variety of industries.
      We have:
  • Advised companies wishing to collaborate with competitors, suppliers, or customers in undertaking joint research, development, production, or marketing ventures and in bids for government contracts;
  • Provided assistance concerning product pricing and distribution, including policies that address pricing by downstream distributors and retailers that establish territorial and customer limitations in distributor and retailer agreements;
  • Assisted biotech clients by drafting intellectual property licensing agreements and advising consumer technology clients about patent pooling agreements;
  • Helped trade associations form membership policies, gather and disseminate industry statistics and advocate for public policy change;
  • Designed general antitrust compliance programs and audits and conducted internal investigations to determine exposure for specific suspected activities;
  • Offered counsel on pre-merger antitrust issues, structuring transactions to reduce risks and satisfying Hart-Scott-Rodino pre-merger notification requirements;
  • Evaluated antitrust immunities and defenses, including foreign sovereign immunity, statutory defenses, state action limitations on antitrust liability, and Noerr-Pennington immunity; and,
  • Evaluated clients’ claims against competitors, suppliers or customers regarding merger or joint venture activities, product pricing or distribution, standard-setting activities, and predatory business conduct.
International Antitrust: 
We understand that for many companies their business activities have increasingly become global. Therefore, we do not limit our focus on any one nation’s antitrust regime. Competition laws are proliferating. The United States and other countries are applying their national laws extraterritorially, and cross-border cooperation among enforcement officials is growing under recent bilateral and multilateral agreements.
      We have:
  • Provided the full range of antitrust advice and representation to foreign-based firms operating in the United States;
  • Represented U.S. manufacturing companies in connection with a multi-jurisdictional review of an acquisition of a European competitor; and,
  • Represented developers of telecommunications facilities in challenges to allegedly exclusionary conduct by U.S. and foreign competitors in the Pacific Rim.
Mergers & Acquisitions: We have years of government, private sector and academic experience in applying antitrust law to mergers and acquisitions.
We have:
  • Defended numerous mergers and acquisitions in a variety of industries often avoiding Second Requests;
  • Defended major domestic transactions in all phases of Antitrust Division and FTC “merger” reviews and successfully defended a number of companies through significant investigations;
  • Represented parties to significant mergers that were being reviewed simultaneously in multiple foreign jurisdictions–the United States, Canada, the European Union, the United Kingdom, Mexico and others;
  • Counseled clients on the antitrust risks associated with contemplated transactions and given advice on compliance with Hart-Scott-Rodino pre-merger notification requirements;
  • Represented companies with concerns about others’ transactions, as well as third-party witnesses in government investigations;
  • Represented small companies, and companies involved in smaller transactions, when their transactions were investigated by the FTC or Justice Department;
  • Provided legal counsel to a trustee appointed by the FTC to supervise an asset divestiture under an FTC merger consent, and prepared a report for the FTC on the outcome of an arbitration of intellectual rights that was relevant to the review of a merger pending before the FTC;
  • Provided expert testimony on antitrust enforcement policies on behalf of a major software company in commercial litigation arising from a corporate takeover attempt;
  • Prepared and filed Hart-Scott-Rodino notification forms and represented companies under FTC investigation for suspected Hart-Scott-Rodino violations;
  • Handled mergers in a wide range of industries, including local and long distance telecommunications, automotive parts, entertainment, outdoor advertising, pharmaceuticals, drug wholesaling, broadcast advertising, hospital care, banking, high speed cameras, scrap metal, computer software and hardware, floor covering, industrial products, petroleum products, textile products, clothing and shoes, and retailing.

Merger Risk Arbitrage

Our firm provides antitrust and regulatory advice and counseling to risk arbitrage managers of investment banking firms, private equity groups, hedge funds and institutional investors. Such advice is crucial to managers considering strategic investments and sophisticated trading strategies in the securities of publicly traded companies that are parties to either hostile or friendly mergers, tender offers, spin-off transactions, or re-capitalization participants. The services that we provide to our arbitrage clients are especially useful because they embody perspectives that can only come from former senior government antitrust attorneys who have had direct responsibility for reviewing mergers with both national and international implications. Our attorneys have appeared in front of the Department of Justice (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC”). Andre P. Barlow is a former trial attorney at the Antitrust Division. Andre has accumulated extensive experience in analyzing transactions at the DOJ, and that experience has given him a unique understanding of how government attorneys review transactions.

A comprehensive compilation of industry and company data sources is an additional valuable asset available to our clients. We maintain current files on all major corporations and have access to a number of electronic databases. These databases cover a wide variety of subjects and publications and can provide general economic data, company profiles, and investment banking research reports, as well as abstracts of all significant information appearing in hundreds of newspapers, magazines, journals, and government reports.
    In the course of our review of a particular transaction, we undertake one or more of the following activities:

  • Analyze public information regarding the parties to the transaction and the markets in which they compete, including company documents, various industry and trade data sources, past DOJ, FTC, Department of Defense, Federal Communications Commission (“FCC”) and foreign antitrust agency enforcement activities in the relevant product and geographic markets, and current antitrust agency enforcement policies;
  • Interview customers and competitors who complain about particular transactions and assess their credibility as potential government witnesses, interview other participants in the industry who also may be affected by the transaction;
  • Provide estimates of the likelihood of a government antitrust investigation, DOD investigation, DOE, FCC investigation, and/or enforcement action, the likely outcome of such an action, and whether a consent order can be negotiated eliminating the necessity for litigation;
  • Evaluate the viability of a proposed buyer for the government’s requirement that the parties divest certain assets, and provide estimates of the likelihood that a transaction will close within a certain amount of time considering a variety of factors including political pressure that may accompany the antitrust review at the particular agency;
  • Monitor litigation by the government and any private enforcement action and, in hostile transactions, analyze the viability on antitrust and regulatory grounds of possible white knight candidates;
  • Analyze the requirements and procedures of various federal and state regulatory approvals that may be required, depending upon the nature of the acquired company’s business operations, as we are familiar with the various agencies that regulate the banking, communications, energy, transportation, and insurance industries;
  • Analyze the viability of various anti-takeover devices created by the target corporation in anticipation of, or in the course of, the unwanted takeover attempt and litigation arising from these defenses;
  • Evaluate risks associated with state corporate and contract law issues including fiduciary duty claims, corporate takeover defenses, and merger agreement interpretation including “material adverse effect” and “best efforts” provisions;
  • Evaluate risks associated with transactions that potentially raise national security concerns, which are increasingly reviewed by the Committee for Foreign Investment in the United States (“CFIUS”), a multi-agency panel, pursuant to the Exon-Florio Act;
  • Evaluate and analyze risks associated with transactions where one of the merger partners reveals current or prior Foreign Corrupt Practices Act (“FCPA”) violations which could delay or prevent the completion of a transaction; and
  • Analyze mergers and other combinations among participants in regulated industries including banking/financial, telecommunications, and electric and gas generation and distribution. Combinations in these industries typically require the approval of federal, state and/or local authorities. Such approvals can be time consuming and complex.

Analysis Library

We have analyzed transactions involving numerous industries including beer, banking, delivery service, software, real estate, healthcare, pharmaceutical, oil & gas, technology, consumer products, retail, defense, industrial, railroad, semiconductor, among others. Some of the recent deals that we have analyzed include Charter/Time Warner, Mylan/Teva, Intel/Altera, Avago/Broadcom, Monsanto/Syngenta, Comcast/Time Warner, Applied Materials/Tokyo Electron, Steris/Synergy, Halliburton/Baker Hughes, Dollar Tree/Family Dollar, Staples/Office Depot, AT&T/DirecTV, Ball/Rexam, CVS/Omnicare, Orbitz/Expedia, Office Depot/OfficeMax, Sysco/US Foods, Zillow/Trulia, Safeway/Albertsons, Siemens/Dresser-Rand, NCM/Screenvision, Lorillard/Reynolds, Verso/NewPage, InBev/Modelo, TNT/UPS, SAP/Ariba, IDT/PLX, Hertz/Dollar Thrifty, CoStar/LoopNet, Google/Motorola Mobility, Pfizer/Wyeth Pharmaceuticals, InBev/Anheuser Busch, Ticketmaster/Live Nation, United Healthcare/Sierra, Teva Pharmaceutical/Barr Pharmaceuticals, Roche/Genentech, Republic Services/Allied Waste Industries, BAE Systems/United Defense, Finmeccanica/DRS Technologies, Dow Chemical/Rohm & Haas, Alcoa/Alcan, Monsanto/Delta and Pine Land, United/Delta, XM/SIRIUS, Express Scripts/Wellpoint, Whole Foods/Wild Oats, Google/Yahoo, Mars/Wrigley, Brocade/McData, Nokia/Navteq, Oracle/Sun, Oracle/PeopleSoft, First Data/Concord, JNJ/Guidant, Boston Scientific/Guidant, Express Scripts/Caremark, CVS/Caremark, Merck/Schering Plough, and Western Refining/Giant Industries. With respect to CFIUS issues, we have reviewed a number of deals including BAE Systems/United Defense, Finmeccanica/DRS Technologies, CNOOC/Unocal, Huwaei/Bain Capital/3com, and Safran/L-1 Identity Solutions. With respect to FCPA issues, we have reviewed National Oilwell/Robbins & Myers, GE/Invision, Lockheed/Titan, and L-3/Titan. With respect to FCC investigations, we have analyzed numerous transactions including XM/Sirius, AT&T/BellSouth Corporation, Verizon Wireless/Rural Cellular, and Verizon Wireless/Alltel.