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Antitrust
The Antitrust and Trade Regulation Practice Group at Ropes & Gray approaches clients' needs with extensive regulatory knowledge, business understanding of company practices and variations, negotiation experience, litigation skills, transactional expertise, and sound legal judgment. This combination of strengths enables us to provide our clients with successful, cost effective representation.
Our lawyers represent a broad range of national and regional clients, including private equity, investment and hedge fund clients, corporations, individuals and trade and professional associations, in all aspects of antitrust and competition law counseling and litigation. Our practice is grounded in the traditional areas of competition law – mergers, acquisitions, price fixing, distribution and licensing – and extends its frontiers to high technology, life sciences, sports, communications and health care. We have developed considerable expertise in representing the specialized needs of our private equity, investment, hedge fund and venture capital clients.
Ropes & Gray enjoys a national reputation for effective advocacy in complex antitrust and competition law. We have successfully guided numerous clients through the U.S. pre-merger process with federal and state antitrust enforcement agencies and applicable foreign merger review processes, negotiating resolutions as necessary. Our lawyers are involved, at the trial and appellate level, in state and federal antitrust, business tort, and unfair state law competition cases, and in business negotiations to resolve issues before the litigation process begins. We also defend clients and represent third-parties in investigations and prosecutions brought by the Department of Justice and the Federal Trade Commission as well as investigations conducted by state attorneys general.
Our practice extends to advising and representing clients with respect to privacy, advertising, and consumer protection issues. We advise clients in connection with Department of Justice, Federal Trade Commission and state attorney general investigations, including investigations and claims of Sherman Act Violations, unfair trade practices brought under the FTC Act and "baby" state FTC Acts, such as Massachusetts Gen. L. Chapter 93A, New York's Donnelly Act, and California's Cartwright Act, Unfair Competition Act, and Unfair Practices Act.
Who We Are
The Antitrust and Trade Regulation Practice Group at Ropes & Gray consists of a variety of antitrust experts in our Washington, D.C., Boston and New York offices who provide antitrust advice and support across all Ropes & Gray offices, including our two newest offices in Tokyo and Hong Kong. Our experienced antitrust practitioners include former officials and staff from the Antitrust Division of the United States Department of Justice and the Federal Trade Commission.
Practice Focus Areas
U.S. and International Pre-merger Review
We have successfully counseled and guided hundreds of clients through the U.S. pre-merger process with federal and state antitrust enforcement agencies and applicable foreign merger review processes and, where appropriate, obtaining guidance and clarification from the applicable merger control agencies. Ropes & Gray's specialized Pre-Merger Review Group is extremely knowledgeable about the complex regulatory environment created by the Hart-Scott-Rodino (HSR) Premerger Notification Act as well as foreign merger control regimes, including the requirements and regulations enforced by the European Union. Our Pre-Merger Review Group has particular expertise in advising and representing specialized needs of our private equity, investment, hedge fund and venture capital clients.
We have guided numerous clients through the review processes known as the "quick look"¨ and the "second request" so that they can proceed with their transaction efficiently and promptly. We are prepared to advocate, negotiate and, if necessary, litigate with the merger review agencies to ensure that our clients transactions are permitted to close. In addition to representing our clients in the U.S. review process, we have substantial expertise in the growing area of global merger review in foreign jurisdictions, including the European Union. Working with an established network of correspondent counsel from around the world, our Pre-Merger Review team has obtained clearance from merger control authorities in China, Japan, Korea, South Africa, Australia, New Zealand, Turkey, as well as most of the member states of the European Union.
Competition and Antitrust Counseling
Of course, the ideal way to deal with antitrust and competition problems is to identify them early and work to prevent or resolve them. We work closely with our clients and transactional lawyers in our Corporate Practice to anticipate and address antitrust concerns that arise in the context of joint ventures, licensing and cross-licensing agreements and other contractual and transactional strategies and devices. We have developed considerable expertise in representing the specialized needs of our private equity, investment, hedge fund and venture capital clients. We also work with clients to develop workable solutions to competitive problems arising in the distribution chain that involve upstream suppliers, downstream distributors and customers, exclusive dealing agreements, "most favored nation" clauses, pricing policies and price discrimination issues, and other distribution and sales related issues. We bring our experience as counselors, negotiators, and advocates to bear when resolving client problems.
Government Enforcement
Clients in any field face the prospect of increased government enforcement of antitrust and competition laws by federal and state agencies. Federal and state agencies are increasingly using subpoenas, civil investigative demands, and voluntary requests for compliance to aid in their investigations and enforcement activities. We represent not only clients who are the targets of investigations, but also clients who are non-targeted industry members, competitors, or customers in investigations and claims of unfair trade practices brought under the Sherman and Clayton Acts, Federal Trade Commission Act as well as the "baby" state FTC Acts, such as Massachusetts Gen. L. Chapter 93A, New York's Donnelly Act, and California's Cartwright Act, Unfair Competition Act, and Unfair Practices Act. We assist clients in maximizing results or minimizing the burdens of compliance by negotiating and advocating with the investigating agencies.
Public and Private Litigation
In situations where negotiating is impractical or unlikely, our litigators successfully defend and bring claims under applicable competition law. In terms of responding to government enforcement actions, we have significant expertise in defending actions brought under the Sherman and FTC Acts as well as cases arising under state competition law and "baby FTC" act litigation in a number of states. We have also prosecuted and defended private actions at both the state and federal level and have considerable experience in multi-district and complex litigation. Together with our extensive litigation and trial skills honed in state and federal court and before the Federal Trade Commission, our antitrust expertise allows us to master complex competition law cases promptly and cost-effectively and we have a significant history of producing favorable results for our clients.
Intellectual Property
In recent years, courts and agencies have focused on the interplay between antitrust issues (competitive freedom) and intellectual property rights (the ability to exclude others). The increasing number of high technology and intellectual property-based businesses have brought these tensions to the forefront of antitrust practice and have become important factors that require careful consideration in the context of mergers, acquisitions, licensing arrangements, joint ventures and joint research and development efforts.
In addition, federal and state antitrust enforcement agencies as well as private plaintiffs have taken a much more aggressive position with respect to the scope and exploitation of intellectual property rights owned by companies in the technology, pharmaceutical, biotechnology and medical device sectors of the economy. Ropes & Gray's Antitrust Group works collaboratively with the Life Sciences and Intellectual Property Groups to develop strategies to help clients secure intellectual property protection for their innovations and defend them against antitrust challenges.
As the courts and agencies have focused on the relationship between antitrust and intellectual property, we are seeing a significant increase in instances where patent infringement actions brought by our clients have been met with antitrust counterclaims. In anticipation of such claims, we work closely with our colleagues in the Intellectual Property practices to identify potential antitrust issues before they become obstacles in infringement actions. Where antitrust counterclaims arise, we work closely with our Intellectual Property counterparts to ensure that such claims are dealt with effectively.
Health Care
Pharmaceuticals and Life Sciences
Few areas have drawn as much attention from federal and state antitrust enforcement officials or private antitrust plaintiffs as the pharmaceutical and life sciences sectors. The competitive potential of emerging technologies have become a critical element in assessing the potential anticompetitive effects of mergers, acquisition, joint ventures and licensing agreements in these sectors. Substantial attention has also been focused on those features of the federal regulatory structure administered by the U.S. Food and Drug Administration and on the rights of pharmaceutical, biotechnology and medical device manufacturers to companies to avail themselves of that regulatory structure.
Attention has also focused on the acquisition and licensing of intellectual property and the prosecution and settlement of intellectual property disputes in this sector. Ropes & Gray's Antitrust and Life Sciences Groups along with the Intellectual Property Group work together to develop comprehensive strategies to help clients secure intellectual property protection, obtain the necessary federal regulatory approvals and anticipate and defend against any attendant regulatory, intellectual property and antitrust challenges. Ropes & Gray is one of a select number of legal service providers having the range of competencies and experiences that permit us to provide these comprehensive services.
How We Help Our Clients
- Representation of TravelCenters of America, a nationwide truck stop operator, in antitrust litigation brought by Flying J, a competitor, alleging an unlawful group boycott.
- Representing an air cargo company in a high-profile criminal investigation and related class actions involving allegations of a conspiracy among major air cargo carriers to fix charges related to air cargo transportation worldwide.
- Persuaded Department of Justice to drop its investigation of major financial institution on grounds that lobbying activities were protected by the First Amendment.
- Advise a major coffee manufacturer, a major shoe manufacturer, and other consumer products manufacturers on all aspects of distribution and pricing under the antitrust laws, including the Robinson-Patman Act.
- Representing TravelCenters of America and Petro Stopping Centers, two affiliated truck-stop chains, who – along with almost every other major fuel retailer in the country – have been sued over the practice of selling motor fuel without adjusting the retail price according to changes in the fuel’s temperature. These so-called “hot fuel” cases have been consolidated and involve claims under the unfair competition laws of over 30 states.
- Representing a major telecommunications company in litigation alleging its licensing practices and conduct before various standards development organizations violate Section 2 of the Sherman Act.
- Representing a major private equity firm in antitrust class actions alleging a conspiracy among private equity firms to restrain competition for large leveraged buyout tender offers.
- Representing Fidelity in federal antitrust litigations alleging violations of Robinson-Patman Act via preferential allocations of hot IPO's.
Contact
For further information on this area of practice, please contact:
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