Antitrust & Competition Law
Bona Law attorneys have exceptional antitrust credentials in all three areas. Our lawyers come from top law schools and many worked with leading global law firms before joining us. The result is that our firm offers the expertise and experience of large law firms, but with the personal treatment, efficiencies, and economies that you can expect from a boutique law firm. Our offices in San Diego and New York allow us to serve clients across the United States and globally.Litigation and Appeals
We litigate matters for plaintiffs and defendants in federal and state courts and also represent clients in investigations and actions before the Federal Trade Commission (FTC) and the Department of Justice. We also have strong relationships with excellent global firms through our IR Global membership that allow us to handle the U.S. parts of international antitrust investigations and litigations.
We also offer an advanced appellate practice. Our lawyers have handled over 200 appeals in federal and state courts across the country. We typically represent law firms that do not have their own appellate expertise, or clients who need a fresh look at their case on appeal.
Our lawyers have supervised the antitrust aspects of hundreds of mergers, including multi-billion dollar U.S. and global transactions. These include contested mergers involving “second requests” and complex econometric evidence.
Our lawyers regularly make H-S-R filings, but more important, they advise on possible merger clearance problems, help develop merger clearance strategies while the deal can still be re-structured, solve problems if they appear, and advise on integration planning. We also represent companies that want to object to proposed mergers before the antitrust agencies. Separately, we advise on joint venture activities, including essential steps needed to protect our clients against the sharing of sensitive competitive information.
Antitrust law affects both large and small companies, and it is important to obtain accurate antitrust counselling to protect your business. Many interactions with competitors (even innocent ones) have the potential to be mischaracterized as possible antitrust violations. For example, merely following “accepted industry standards,” or engaging in trade association activities, are two areas that can—and have—created problems for businesses of all sizes, unless they followed antitrust safeguards.
Even unilateral actions (like some individual pricing decisions, including price discrimination, individual “Resale Price Maintenance” programs, or individual discounting claims) can expose a company to liability from antitrust agencies or private plaintiffs.
We offer counseling and guidance to help our clients navigate antitrust icebergs that could affect their business. We regularly develop antitrust compliance programs for companies, joint ventures (including joint buying and marketing ventures), and trade associations. We also are leading experts on antitrust actions against state-and-local government entities.Our Litigation Practice
We regularly handle antitrust and competition matters in federal and state court, and bring and defend antitrust cases, including class actions. Read here to learn more about our approach to defending complex antitrust class action cases, including multi-district litigation (MDL cases). We have resources that allow our firm to process the massive discovery demands that these complex cases typically involve.
As already mentioned, we have a strong network of global law firms with whom we collaborate to handle international antitrust investigations and cases, which are becoming more common. Indeed, we actively participated as a non-governmental advisor to the International Competition Network (ICN), an organization that includes 92 international antitrust agencies.
We are often brought in to provide specialized antitrust expertise for other law firms that don’t have those resources. We can—and have—successfully integrated into the client’s team in any role, from background counseling to running the matter, depending upon the desires of the client and local attorney.
We handle antitrust and competition matters in any industry, but have particular expertise in technology, health-care, pharmaceutical, manufacturing and retail, insurance and finance, agriculture and food, energy, and many others.
Our antitrust and competition experience includes:
- Complex litigation and class actions, including the Class Action Fairness Act (CAFA);
- Government civil investigations and litigation, including the Federal Trade Commission and Department of Justice;
- Section 5 of the FTC Act (“unfair method of competition” claims including consumer protection issues);
- Antitrust criminal prosecutions;
- Exclusionary conduct and monopolization including conspiracy to monopolize;
- Horizontal agreements under the per se standard, rule of reason, and quick look standards (price-fixing, market allocation, group boycotts, bid rigging);
- Vertical pricing and distribution issues, including Resale Price Maintenance and Colgate policies;
- Antitrust Group Boycotts;
- Robinson-Patman Act price-discrimination claims;
- Antitrust exemptions and immunities (state-action immunity, McCarran Ferguson insurance exemption, labor exemption, agricultural cooperatives exemption, filed-rate doctrine, Noerr-Pennington immunity, etc.);
- Antitrust injury, standing, and damage issues;
- International antitrust issues;
- State antitrust cases and issues, including the Cartwright Act;
- Unfair Competition and Deceptive Trade Practice laws;
- Antitrust actions with related claims like RICO, tortious interference, intellectual property, trademark, Lanham Act, breach-of-contract, fraud and misrepresentation, trade secrets, and others;
- Antitrust and real estate.
More and more companies today collaborate with others, including, sometimes, their competitors, in an effort to become more efficient and reduce costs. The ultimate form of collaboration is a full-scare merger. But many companies choose limited collaborations in the form of joint ventures. Both activities are legal, but both can still raise antitrust issues.
We typically advise clients whose transactional work is being done by excellent law firms that do not offer advanced antitrust expertise. We can and have fitted seamlessly into transaction teams to help solve problems and get the deal closed with minimum time and expense.
The antitrust questions in mergers or joint ventures are whether the collaborations will create or enhance market power, affect prices, reduce output, or lower innovation. Merely the sharing of sensitive information at the wrong time could create antitrust problems. And, contrary to general opinion, the antitrust agencies frequently challenge transactions that are so small (below $80.8 million) that they don’t even need H-S-R clearance. In one case, the Department of Justice sued to halt a merger worth $3.1 million. Even a small deal in a small market can be challenged if it significantly harms competition.
Our lawyers have experience with hundreds of mergers ranging from small local mergers to multi-billion dollar global transactions. We treat each matter individually, giving it the correct level of analysis and attention.
Depending on its complexity, a merger or joint venture review could have few or many components, including:
- analyzing the competitive effect of the proposed merger or joint venture;
- devising, where necessary, possible remedies including structural (divestitures) and behavioral (consent agreements) to ensure clearance (or, to avoid later antitrust problems if no clearance is required);
- considering the transaction’s vertical as well as horizontal impacts;
- advising on information-sharing limits in due diligence;
- where necessary, conducting investigations into the target’s antitrust problems that may be revealed in due diligence;
- designing transition and integration-planning activities.
A completely separate area of merger counselling involves individuals and companies that simply make passive investments or exercise options in other companies. H-S-R filings are typically based on the combined holdings that a buyer will have in the target after the deal. This includes what is about to be purchased, combined with all existing holdings in the same target. And the existing holdings are measured not just by the specific buyer, but by the collective holdings of the entire control group to which the buyer belongs. We recommend that companies and executives involved in investments establish an antitrust compliance policy. There is a long list of major fines imposed on Fortune 500 companies and their executives because they neglected to calculate the H-S-R standards correctly.Our Market Conduct Counselling
Antitrust doesn’t mean just litigation and mergers. Antitrust laws also regulate the ordinary-course, day-to-day operations of all legitimate businesses, covering distribution, pricing, information exchanges, and trade association activities, to name just a few examples.
Businesses need to know the “do’s and don’t” of the road. These “do’s and don’t” obviously affect all joint activities, including joint activities with competitors. But, as we mentioned before, they also affect the unilateral business decisions that companies make all the time. Our lawyers have counselled hundreds of companies on all aspects of antitrust compliance, including:
- Distribution questions;
- Exclusive dealing;
- Exclusive territories;
- Tying arrangements;
- Loyalty discounts;
- Bundled discounts;
- Resale Price Maintenance (“RPM”);
- Terminating distributors;
- Joint buying and selling operations;
- Creating antitrust compliance programs for businesses, including antitrust training for employees, especially those in sales and trading;
- Conducting antitrust audits when necessary;
- Standard-setting-organization issues;
- Trade-association membership and activities;
- Intellectual property settlements and disputes, including licensing agreements;