Practices: Antitrust (Litigation)

Ungaretti & Harris offers comprehensive antitrust counseling and litigation services. Because of the expense of defending an antitrust lawsuit and the high-stakes nature of treble damages, we work with clients to prevent antitrust problems before they happen. Should litigation become necessary, the Ungaretti & Harris Antitrust Group has the requisite experience to litigate all manner of antitrust claims.

Antitrust Counseling

To avoid antitrust problems, clients often need to employ creative methods for achieving their business objectives. Because we first seek to understand clients’ businesses, we are adept at structuring alternative ways for them to achieve their desired outcomes while staying within the allowable confines of the antitrust laws. Attorneys in the Antitrust Group regularly advise clients on a wide variety of antitrust compliance issues and provide counseling services including:

• Preparing antitrust compliance policies and conducting training seminars for client employees.
• Reviewing prospective transactions and joint ventures to assess Clayton Act Section 7 risk and whether any terms of the agreements raise issues under Sections 1 or 2 of the Sherman Act.
• Reviewing marketing plans and pricing policies to ensure compliance with the Robinson-Patman Act.
• Advising firms with large market shares on how to compete without running afoul of Section 2 of the Sherman Act.
• Preparing and enforcing MSRP programs within the boundaries of Section 1 of the Sherman Act.
• Reviewing trade association activities to ensure that client employees do not engage in behavior that creates antitrust risk.
• Conducting internal investigations for clients to determine whether antitrust violations have been committed.

Antitrust Litigation

Ungaretti & Harris attorneys have represented clients in all varieties of antitrust litigation and have tried some of the most significant antitrust cases in recent years. Because of this experience, we know how to aggressively defend or prosecute client interests while staying within budget. Our antitrust litigation experience includes:

• Price-fixing criminal investigations and civil class action lawsuits including jury trials.
• Robinson-Patman claims including primary and secondary line claims, claims concerning promotional discounts and even inducement claims.
• Claims of unfair competition under several states’ unfair competition laws.
• Claims asserting violations of Section 2 of the Sherman Act, including claims of improper bundling/market share discounts, exclusive dealing, disparagement, predatory pricing and sham litigation

Our Antitrust Group has particularly extensive experience trying merger cases alleged to have violated Section 7 of the Clayton Act. Representative cases include:

• The FTC’s post-acquisition challenge to Chicago Bridge & Iron’s acquisition of Pitt-Des Moines, Inc.
• The FTC’s post-acquisition challenge to Evanston Northwestern Healthcare’s acquisition of Highland Park Hospital.
• A bitterly contested consent decree with the Alaska Attorney General regarding Crowley Maritime’s acquisition of Yukon Fuel and the subsequent effort by the objecting customers to obtain a federal TRO.

The group’s broad experience in Section 7 litigation provides us with a unique perspective in advising clients on their proposed mergers, acquisitions and joint ventures.

The Intersection of Intellectual Property and Antitrust

Increasingly, the assertion of intellectual property rights is drawing scrutiny from governmental authorities and private litigants under the antitrust laws. Attorneys in the Antitrust Group have both asserted and defended antitrust counterclaims in patent infringement and trademark infringement litigation.

Firm lawyers also advise clients on how to structure licensing agreements so as to avoid claims of patent misuse or antitrust violations if the licensing agreement is ever challenged. The need for such preventive review has been made greater by the Supreme Court’s January 9, 2007 decision in MedImmune, Inc. v. Genentech, which gave existing licensees standing to challenge the validity of the patent to which they have been licensed. Misbegotten provisions in licensing agreements now carry serious risks that may previously have been avoided by the limitations on standing. Licensors look to Ungaretti & Harris to ensure their licensing agreements minimize antitrust/misuse risk. Conversely, licensees work with our attorneys to determine whether the terms of their licensing agreements provide a basis for a misuse/antitrust challenge.

Healthcare Antitrust

The healthcare industry carries its own unique sets of antitrust challenges and risks. With one of the nation’s premiere healthcare practices, Ungaretti & Harris has deep experience advising clients in all substantive antitrust areas from both a provider and a payor perspective. Please see the firm’s separate description of its antitrust healthcare practice for more information.